Physician extenders an asset; be aware of liability issues

August 1, 2006

National report - When a patient suffers damages as a result of care administered by a physician extender and a malpractice suit arises, then the physician as well as the physician extender will likely be sued, says David J. Goldberg, M.D., J.D.

"By and large, physicians have an agency relationship with the allied health personnel they are using as physician extenders, which means that individual is an employee directed by the physician. As long as physician extenders perform within the scope of their duty, the physician is liable. When they get sued, we get sued," says Dr. Goldberg, clinical professor of dermatology, Mount Sinai School of Medicine, New York, and adjunct professor of law, Fordham University School of Law, New York.

As an exception, nurse practitioners can practice independently in some states. In that situation, the physician may not be named as a codefendant in a lawsuit. However, the nurse practitioner will only absolve the physician from culpability if the physician does not provide any guidance and supervision to that nurse practitioner.

The duties a physician extender can perform are determined by state law, and the laws vary from state to state.

Within each state there can also be discrepancies between nursing board and medical board regulations. However, in that situation, the medical board is the superseding body.

"Physicians who employ physician extenders need to be familiar with the laws in the state where they practice. Recognize, however, that the laws have been continually changing, and we can expect state regulation of physician extenders to increase," says Dr. Goldberg, who is also director of Skin Laser & Surgery Specialists of New York and New Jersey.

Professional societies, including the American Society for Laser Medicine and Surgery (ASLMS), the American Society for Dermatologic Surgery (ASDS) and the American Academy of Dermatology (AAD), also have guidelines relating to care administered by physician extenders. According to the ASLMS, treatment by lasers and related technology can only be administered by a physician extender when there is direct, on-site physician supervision with the availability of an immediate physician response. The ASDS and AAD have parallel guidelines that state physician extenders can deliver care under appropriate circumstances and in accordance with state statues.

Physicians can delegate to certified or licensed nonphysician personnel, but the physician must be present on-site and immediately available. According to the ASDS and AAD, nonphysician personnel can only administer treatment with laser and light sources. They cannot deliver injections with botulinum toxin or fillers.

"These are only guidelines and they are superseded by state law. For example, in New Jersey, only physicians can do laser and intense pulsed light treatment," Dr. Goldberg notes.

Reasons for malpractice

Most malpractice cases involving physician extenders relate to cosmetic procedures where infections, scarring and/or hypopigmentation occurred as a result of treatment with a laser or related technology.

In states where physician extenders are allowed to deliver filler injections, foreign body reactions and scars are the major issues that can lead to malpractice suits. In the legal analysis, a viable malpractice case requires that there is breach of duty, causation and economic damages.

"In considering reasonable duty, physician extenders are held to the same standard of care as are physicians, and if they breached that duty and damages occurred, they and their employer will be sued," Dr. Goldberg says.

Failure to obtain appropriate consent rather than gross negligence is the most common scenario that leads to malpractice suits, and anecdotally that appears to be a more common pitfall among physician extenders and non-dermatologist physicians performing cosmetic procedures than it is with dermatologists. As another consideration, when a patient experiences a complication relating to a filler procedure involving a material that is not approved by the Food and Drug Administration for soft tissue augmentation, then the physician extender and the supervising physician can both lose their licenses as well as be sued.

Dr. Goldberg also reminds dermatologists that the same rules that apply to physicians with respect to HIPAA issues also apply to physician extenders. While application of the law in this area is still somewhat unclear, the bottom line is that HIPAA compliance requires common sense by the physician and physician extenders.