Case Study: Vicarious Liability Relating to Advanced Practice Providers

By Donnie Richman, Esq., and Tammie Smeltz, Content Marketing Manager

Many physicians employ advanced practice providers such as nurse practitioners or physician assistants. When involved in medical professional liability cases, physicians may find themselves vicariously liable for these providers. Vicarious liability is defined as imputed liability which holds a person responsible for the actions or liability of others, such as employees.¹

Below is a case study and legal analysis for a claim involving vicarious liability.

The Medicine

The patient in this case was a 57-year-old male with a past medical history significant for hypercholesterolemia, irritable bowel syndrome and gastroesophageal reflux. He was a current smoker, and his family history was positive for prostate cancer. He was employed as an auto mechanic.

He was treated at his primary care physician’s office for an array of medical conditions over time. On most occasions, he was treated by advanced practice providers.

For many years, the patient’s prostate specific antigen (PSA) was within normal range. In early 2012, he presented for a routine physical exam and was seen by a nurse practitioner. She noted his levels had risen 1.2 points within a two-year period. As part of the physical, a rectal exam was performed and showed his prostate was small and smooth.

The patient returned at the end of 2012 for a routine checkup. He complained of fatigue. He was again seen by the nurse practitioner who ordered lab work, which the patient never obtained.

In May 2013, the patient returned complaining of elbow pain. He was seen by a physician. X-rays were ordered and were negative for fracture.

The patient returned five months later, in October 2013, for a physical exam and was again seen by the nurse practitioner. He complained of lower abdominal issues on this date. Labs were ordered, but they did not include a PSA. The nurse practitioner performed a digital rectal exam and noted his prostate was smooth and small. She ordered a GI consult, occult stool, H-pylori and ova/parasite test. This was the last time the patient was seen by the nurse practitioner because she left the practice.

He returned to the office approximately one year later and was seen by a physician assistant. He had swollen lymph nodes under his arm at that time. An ultrasound was done and read as negative.

A few months later the patient returned and was again seen by the physician assistant. He complained of bleeding hemorrhoids. A rectal exam confirmed one external hemorrhoid and no internal hemorrhoids. The record does not mention an exam of the prostate.

In June 2014 he returned to the office with complaints of an upper respiratory infection. He was examined by a physician assistant. No lab work was ordered at this visit.

In September 2014 he returned for a physical exam and was seen by a physician assistant. Labs were ordered at that time, including a PSA which was found to be elevated at 5.9. The patient was immediately referred to a urologist for a biopsy. The biopsy was positive for prostate cancer with a Gleason score of 7. An MRI was ordered and showed that the cancer extended beyond the capsule.

A few months later the patient underwent robotic surgery which confirmed the cancer had spread outside of the capsule and into the neck of the bladder. Pathology revealed one positive lymph node. Post-operatively, the patient underwent radiation therapy.

As a result, the patient suffered from stress incontinence and erectile dysfunction. His PSAs for the following five years were normal.

The Lawsuit

The patient commenced a lawsuit against his MLMIC-insured primary care physician. He did not name the physician assistant or nurse practitioner in the suit. The Bill of Particulars alleged that the physician failed to properly examine the patient, failed to order and perform proper tests, failed to appropriately review prior reports, failed to track the patient’s medical condition, failed to order a PSA test in October 2013 and failed to adequately supervise professional office staff. As a result, there was a delay in diagnosing Stage IV prostate cancer, Gleason score 7, with multiple margins and extracapsular extension. The patient underwent a robotic-assisted radical prostatectomy with bilateral pelvic lymph node dissection, cystogram and radiation therapy.

Because the plaintiff did not name the nurse practitioner in the suit, the MLMIC-appointed defense attorney commenced a third-party action naming her as a third-party defendant. Even though the patient did not sue the physician assistant, the MLMIC-insured physician would be vicariously liable for her treatment because she was her supervising physician and an employee of the group.

MLMIC retained numerous medical experts in the fields of internal medicine, family practice and oncology to defend this matter. All the experts felt this would be a difficult case to defend. Because the patient had a family history of prostate cancer and his PSA was slightly elevated in early 2012, our experts felt a PSA should have been repeated in six months. Additionally, there were issues with the recordkeeping and a portion of the patient’s records were misplaced.

The oncology expert opined that if the patient was diagnosed with prostate cancer a year earlier, he would have had a 50% chance to cure the disease and would have had a normal life expectancy.

Despite the above concerns, the case proceeded to trial. The plaintiff made a settlement demand of $2 million, but there were no negotiations prior to trial. A few days into testimony, the judge scheduled a court-ordered settlement conference. The case settled that day for a global settlement of $1.3 million. The MLMIC-insured physician and the third-party nurse practitioner defendant each contributed 50% to the settlement.

Supervision of Advanced Practice Providers

With respect to a nurse practitioner, the vicarious liability of the physician may depend on the nurse practitioner’s experience. Nurse practitioners with less than 3,600 hours of experience are required to be less independent in practice.² As a result, the physician would be obligated to regularly review patient records to assess the ability of the nurse practitioner to independently treat patients.³ A nurse practitioner with more than 3,600 hours of practice is considered an independent practitioner.⁴ Unless the physician and the nurse practitioner discussed the case, the risk of vicarious liability for that nurse practitioner would be less likely. That said, a physician may be included in a suit, since the patient was part of a practice, as in the case summarized above because the nurse practitioner was employed by the physician.

The physician assistant law requires that a physician assistant be supervised by a physician, no matter how much experience he or she has had.⁵

The physician in the above case did not seem to supervise or collaborate either with the nurse practitioner or physician assistant with respect to this patient. There is no evidence that the physician reviewed any of their records on a regular basis.

Unfortunately, even when the physician saw the patient for an unrelated office visit and complaint, she clearly did not look at prior notes by her employees. Nor did any of them seem to consider the patient’s prior family history of prostate cancer, as well as his age. He had a family history of prostate cancer, of which they should have been aware. Even when he had complaints, they did not think that a PSA test was indicated.

The physician should have told each of her employees caring for this man that he needed to have regular PSAs performed since he clearly was at higher risk for prostate cancer than other patients. Therefore, she was responsible for the negligent acts of her professional employees.  She should have carefully looked at the patient’s record, not just for this one unrelated visit she had with him, but the prior visits he had with her employees. In that way, she might have realized he was at a higher risk than normal for prostate cancer and should have received regular PSA testing.

Legal Analysis

It was crucial for the defense counsel to implead or bring the nurse practitioner into the suit, as she was no longer employed by the practice. She had seen the patient for many years while working for this practice. The fact that this patient had a history of prostate cancer in his immediate family makes it almost mandatory that he be checked on a regular basis. This is especially true at his age, even though his chief complaints for those visits did not necessarily indicate such a need.

The documentation by all three of the providers involved was very poor. Thus, it was much easier to find fault with the way this patient was treated. Poor documentation often leads to a very poor outcome and may contribute substantially to an expensive plaintiff’s verdict. When the physician saw this patient, she did not review any prior office notes or lab results. Failure to document, not only tests ordered or not ordered, but some of the rationale behind this may well lead to the kind of poor outcome this patient had.

Additionally, the physician should have been concerned when she realized a portion of the records was missing. This makes it much easier for a plaintiff to say, as this plaintiff’s attorney did, that the loss of those records must have been intentional in an effort to hide the medical malpractice that occurred. If the lawyer alleges that there was an intentional spoliation of the records, the judge can make a finding that the defendant intentionally lost these records, which would severely affect the defendants⁶. Again, since this was the physician’s practice, it was her duty to see that all the records were properly handled and stored.

Finally, since the nurse practitioner no longer worked for or with this physician, the physician had impleaded her and brought her into this suit. Although her testimony could have been adverse to that of physician and physician assistant, fortunately, it did not appear to be. Impleading the nurse practitioner in this case was important for the physician’s defense since it was the nurse practitioner who took care of this patient for numerous years.

It is important to emphasize that perhaps this outcome would not have occurred if the patient’s medical condition was recognized much earlier or if the physician had reviewed the notes of the nurse practitioner. The physician was not able to show any evidence that she had carefully checked the work of her nurse practitioner and physician assistant with respect to this patient. She certainly had the opportunity to do so when she saw the patient for an unrelated problem as the medical record was in her possession. Thus, when a physician hires either a nurse practitioner with less than 3,600 hours of experience or a physician assistant, he or she must review the work of those practitioners on regular occasions⁷.

Further Resources

MLMIC has been successfully defending medical professional liability claims for over 45 years. Our decades of New York-centric claims experience have made us the leader of medical professional liability in New York State.

MLMIC policyholders can reach our 24/7 emergency support services for questions regarding vicarious liability by calling (844)-667-5291. You can also submit a specific question by sending an email request here.

This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.

Sources

1. Black’s Law Dictionary 11^th Addition, 2019
2. NY Education Law 6902 (3)(a)
3. NY Education Law 6902(a) (iii)
4. Education Law 6902 (3) (b)
5. NYS Education Law 6542 (1)
6. Michele Phelps-Vachier vs Genovese Drug Stores Inc. 207AD3d 582 (2022)
7. NY Education Law 6902(3a iii) and 6542(1)

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