Q I found a physician that might be my delegating physician, but he has concerns about legal liability he might incur for my actions. What is his legal liability if I commit an error and I get sued?
A First, a professional’s liability in any given case always depends on the facts of the case. Unless the physician is working for a state agency or facility that has specific protection against lawsuits, no one can say that a physician will not be named in a lawsuit, even when the physician had no direct involvement with the patient or the care the patient received. However, results of malpractice cases tend to show that physicians are not found liable if the physician was not involved (Buppert, 2012).
There are some provisions in Texas law that might impact physician liability.
Section 157.060, Medical Practice Act
PHYSICIAN LIABILITY FOR DELEGATED ACT. Unless the physician has reason to believe the physician assistant or advanced practice registered nurse lacked the competency to perform the act, a physician is not liable for an act of a physician assistant or advanced practice registered nurse solely because the physician signed a standing medical order, a standing delegation order, or another order or protocol, or entered into a prescriptive authority agreement, authorizing the physician assistant or advanced practice registered nurse to administer, provide, prescribe, or order a drug or device.
The Texas Medical Board (TMB) repeats that statement in TMB Rule 193.5(a), but adds a subsection, that, at least to some extent, confuses the issue. Rule 193.5, Subsection (b) states:
(b) Notwithstanding subsection (a) of this section, delegating physicians remain responsible to the Board and to their patients for acts performed under the physician’s delegated authority.
Clearly the TMB wants physicians to recognize they have responsibility for the services provided under their delegation, but this does not necessarily create a physician’s duty to a patient beyond meeting the quality assurance (QA) & supervision requirements established in the Texas Medical Practice Act. (Those QA and supervision requirements are included in the article, Prescribing in Texas.)
For instance, if a physician cosigns an entry in the patient’s chart, then the physician is probably going to be involved if any lawsuit pertaining to that patient and incident. (For that reason, physicians should never co-sign entries in charts.) In A Guide for APRN Practice in Texas, elaborates a little more on this topic.
APRNs are professionally responsible for acts performed under the scope and authority of their own licenses. This includes delegated medical acts. A statement by Carolyn Buppert, CRNP, JD, (2002, March) should be reassuring for physicians who work with APRNs. She states “physician collaborators are being dropped from malpractice lawsuits against NPs when the physician testifies that the NP did not consult him or her, and when there is no evidence that the NP conferred with the physician about the case” (Woolbert & Ziegler, pg 158).
Another fact that you can use to reassure physicians is that NPs are sued far less often than physicians. The Peason Report always includes that data. Another fact that may be be helpful is that the Texas Medical Liability Trust (TMLT), one of the largest medical malpractice insurers in Texas, does not charge a premium for physicians that delegate prescriptive authority to PAs and APRNs. The evidence is good that physicians who work with APRNs are not sued more often than physicians who only work with other physicians.
It is important that APRNs are honest with prospective delegating physicians. Physicians usually understand that no one can make any guarantees when it comes to liability since anyone can sue for any reason. However, Texas does have reasonable lawsuit protections for physicians and other health care providers.
Buppert, C. (2012). When is a physician liable for a nurse practitioner’s malpractice? JNP: The Journal for Nurse Practitioners.
Woolbert, L. & Ziegler, B. (2015). A guide for APRN practice in Texas. Austin: Coalition for Nurses in Advanced Practice & Texas Nurse Practitioners.