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Vicarious liability – Physicians can take steps to minimize risk

The following column was originally published in The Journal Record on October 5, 2020.


Martin J. Lopez portrait

Martin J. Lopez III is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

By Phillips Murrah Attorney Martin J. Lopez III

Between 2003 and 2020, the number of certified physician assistants practicing in the United States increased by over 220%. Set against this landscape of PA’s increasing role in health care, supervising physicians must be especially mindful of their responsibilities.

According to the Oklahoma’s Physician Assistant Act, a PA may practice medicine and prescribe drugs and medical supplies only under the supervision and direction of a state-licensed physician. The OPAA requires that the supervisory relationship be articulated and agreed upon by means of a practice agreement, which accounts for protocols and the scope of practice, as well as the PA’s education, training, skills and experience.

For physicians already juggling a busy patient caseload and bearing the responsibility of supervision and delegation of decision-making authority for up to four PAs at once, it is not uncommon for them to abrogate this responsibility by taking a hands-off or passive approach to this working relationship. However, they must be aware that the governing statute establishes that “at all times, a physician assistant shall be considered an agent of the delegating physician.”

This is known in the law as establishing vicarious liability. While no reported case in Oklahoma has actually held a physician vicariously liable for the acts or omissions of a PA, the statutory language creates the possibility of the extension of PA liability to the supervising physician.

While supervising physicians need not be physically present nor consulted in each instance of PA patient care, they must be readily available through telecommunication and appropriately participate in services provided by the PA. The statute specifically notes the supervising physician must:

  • Be responsible for the formulation or approval of all orders and protocols that direct the delivery of services provided by a PA, and periodically review such orders and protocols.
  • Regularly review the services provided by the PA and any problems or complications encountered.
  • Review a sample of outpatient medical records at a site specified in the practice agreement.
  • While the OPAA sets forth the scope of physician supervision of a PA and participation in a PA’s practice, there are a number of steps that can be taken to minimize physician risks of vicarious liability:
  • Pay careful attention to credentials and qualifications during the PA hiring process.
  • Ensure that the practice agreement includes a listing of the PA’s scope-of-practice responsibilities, and the requirements and limitations of the physician’s delegation authority.
  • Specify aspects of care that require prior physician consultation or approval.
  • Include language setting out the manner in which the record review requirement will be met by the PA and physician.

Once the PA begins practice, the supervising physician is advised to actively monitor the PA to ensure compliance with the practice agreement and that the PA provides patient care in a manner that does not exceed the PA’s level of skill and competence. Likewise, the physician should foster an environment in which the PA’s consultation with the physician is not perfunctory, but is actively encouraged to a meaningful extent to further the care rendered to the patient.

As with so many issues in health care today, risk is based not only upon regulatory language but also upon an analysis of the facts. Potential vicarious liability risk is mitigated by beginning with a practice agreement that takes all of these requirements and concerns into account.

Martin J. Lopez is an attorney at the law form of Phillips Murrah.