Every healthcare professional can be vulnerable to lawsuits, regardless of their credentials or workplace responsibilities. This is true not only for physicians and nurse practitioners, but also for physician assistants. And if a PA is implicated in a malpractice suit, they could face significant financial losses—and potentially even the loss of their job, license, or both.
Do Physician Assistants Really Get Sued?
Yes, PAs get sued. They may not see legal action as often as physicians, but the risk is significant nonetheless. This is evidenced by National Practitioner Data Bank (NPDB) statistics gathered between 2000 and 2020, which revealed a total of 6,445 adverse action reports and 3,190 medical malpractice payment reports involving PAs. These numbers fell far short of total medical malpractice cases for MDs, even when taking the increased prevalence of physicians into account. During the same two decades, NPDB referenced over 215,000 malpractice payment reports among MDs.
Before you take comfort in the relatively low number of lawsuits targeting PAs, keep in mind that the pace is beginning to pick up. The NPDB cited just 77 medical malpractice payment reports in 2000, compared to over 200 reports per year in 2017, 2018, and 2019.
The increase in malpractice lawsuits may be attributed, in part, to the growing prevalence of PAs, in general. Data from the Bureau of Labor Statistics (BLS) suggests that about 125,000 PAs worked in the U.S. as of 2020, with the field showing an astounding outlook of 31% projected growth between 2019 and 2029 — compared to an outlook of just 4% across all professions.
With the rise of PAs comes greater concerns among some patients, who, as the American Academy of Physician Assistants (AAPA) explained, "see a potential malpractice target if they believe they've received a poor standard of care."
Why Do Physician Assistants Get Sued?
A variety of circumstances can cause PAs to be named in lawsuits. Many of these cases boil down to poor communication between PAs, MDs, other medical professionals, and, of course, patients.
Attorney and RN Judith A. Berman told Medical Economics, "Most lawsuits are filed because of a lack of communication, a lack of basic follow-up."
This can manifest itself in several ways.
1. Poor Documentation
Attorney Dena Operman, of FullertonBeck LLP, recommended all PAs keep comprehensive notes, as poor documentation lies at the heart of so many malpractice cases. She added that shortcuts, such as copying and pasting, should be avoided. Notes should accompany every treatment, particularly when care is ongoing. This is essential for documenting symptom patterns and how the patient’s condition changes over time. It can also demonstrate that PAs and other professionals consistently abided by necessary standards of care.
2. Lack of Informed Consent From Patients
Certain invasive procedures require that PAs receive formal informed consent from the patient, verifying who is responsible for performing the procedure. Malpractice attorney James Lewis Griffith Sr. explained that this is not always "rigorous enough," and added, "If something goes wrong, the patient is likely to argue, 'I never would have consented to this if I'd known a non-physician was doing it.'"
3. Lack of Timely Referral
When PAs are not equipped to handle specific aspects of patient care, they should seek input from supervising physicians or referrals as necessary. With high-risk cases, simply making the referral may not be sufficient. To further reduce your risk, highlight the referral in the medical chart, or better yet, follow up by directing office staff to make the initial contact with the provider in question, taking care to also note such interactions in the patient's medical chart.
3 Examples of Physician Assistant Malpractice Cases
Case Study #1: Arocho v. D. Kruger, PA
Source: Supreme Court of the State of New York Appellate Division Case Number 2012-05688
This lawsuit began with a patient, Juan Arocho, alleging that the PA responsible for his care at Coney Island Hospital was negligent when treating him after stepping on a screw that became embedded in his foot.
The PA’s defense hinged on the medical records that showed that the patient failed to follow discharge instructions to fill a prescription for antibiotics and to follow up at the hospital's podiatry clinic the next day. The patient did not comply with this directive and instead returned to the emergency room several weeks later. At that point, he was diagnosed with a bone infection, leading to the amputation of a portion of his toe.
When the patient filed a malpractice suit, the PA’s legal defense team submitted an expert affidavit verifying that the "treatment of [the patient] conformed to good and accepted medical practice." Clear records of treatment, combined with the patient’s lack of follow up, resulted in the PA prevailing in court.
Case Study #2: Marchisotto v. Williams
Source: Supreme Court, Kings County Case Number 13106/02
The plaintiff alleged in a 2006 medical malpractice lawsuit that PA Adeyemi Williams was negligent in surgically removing Fay Marschisotti's left radial artery in the course of coronary artery bypass surgery, while under the direction of supervising physician Israel Jacobowitz, MD. The plaintiff named both the PA and the surgeon, the surgeon’s practice group, as well as the hospital, in the suit.
The PA’s legal defense presented the opinion of an expert witness, Kenneth M. Steinglass, MD. After reviewing available medical records, Steinglass testified that the treatment rendered was appropriate, contending that it was common practice for a PA to "harvest a radial artery graft," particularly while an accompanying surgeon performed open heart surgery. According to Steinglass, this procedure fell within the applicable standard of care and would not typically be discussed with the patient before surgery.
The plaintiff claimed that, based on deposition testimony and photographic evidence, the PA exhibited "poor technical skills and inadequate training and knowledge," leading to the inability to appropriately harvest the left radial artery.
The defense successfully claimed that the patient had given informed consent, but the question of whether the PA adhered to the standard of care remained for a jury to decide.
Case Study #3: Howland v. Wadsworth
Source: Court of Appeals of Georgia Case Number 749 S.E.2d 762 (2013)
Misdiagnosis prompted a medical malpractice case involving a PA employed by the Houston Medical Center. Plaintiff Ellen Wadsworth was transported to the emergency room due to severe pain in her feet. After receiving prescriptions for antibiotics and pain medications—and a misdiagnosis of cellulitis—she was promptly discharged, despite not being able to walk.
The PA responsible for Wadsworth's care felt for a pulse in the feet but did not order an arterial ultrasound. Later in the evening, the patient was found unresponsive and returned to the hospital, where the blockage responsible for her pain was discovered. Several days later, both her legs were amputated below the knee.
The defense claimed that the blood clots were not present when Wadsworth first visited the emergency room. Additionally, the defense contended that her condition was completely different from one ER visit to the next, adding that her later condition was "caused by subsequent events which were not present and were not foreseeable."
A doctor's report from the Medical Center of Central Georgia ultimately demonstrated that Wadsworth felt "faint pulses on the top of the right foot and the back of her right ankle." Additionally, a vascular surgeon serving as the defense medical expert witness acknowledged that an arterial ultrasound should have been performed during the initial ER visit. A jury awarded the plaintiff $5 million in damages.
What Can You Do to Reduce Your Risk?
It's impossible for PAs and other medical professionals to completely eliminate the risk of lawsuits, for, as attorney and RN Katherine J. Pohlman pointed out, they can be sued based on whether they're believed by patients to be responsible for adverse outcomes, even when such beliefs are incorrect.
What's more, healthcare workers can be harmed in efforts to win settlements in frivolous lawsuits. Pohlman explained that, in some cases, suits are filed without true merit on the patient’s end, and yet they prompt significant stress and expense for the PAs targeted.
Thankfully, PAs can take several steps to minimize risk.
1. Take detailed notes.
Dena Operman said that every time you advise a patient, you should record your feedback thoroughly. Detailed notes are particularly important when you inform patients of possible drug interactions for prescription medications. Notes should also detail recommendations for follow-up appointments. When treatment is ongoing, notes should be carefully updated with current complaints, assessments, and diagnoses.
2. Don't be afraid to request a second opinion.
When specialized care is required, seek a relevant referral. Operman emphasized that PAs should never prescribe medications or treatment protocol outside of their comfort zone.
3. Keep up to date with continuing education.
PAs should commit to ongoing training according to state requirements. It is also vital that they remain on top of evolving standards of care. These are continuously updated as new research and technologies become available, so PAs should make every effort to educate themselves on the latest healthcare developments.
4. Establish strong lines of communication with supervising physicians.
Communication should always be open between not only PAs and patients, but also between doctors and PAs. Don't worry about disturbing doctors with "too many" questions. This is especially important, as Operman explained, when unsure about ordering tests or prescribing medications. There is some nuance, of course, as PA autonomy varies from one state to the next — but as Operman pointed out, "there is no complete autonomy."
What to Do If You're Named in a Malpractice Lawsuit
How you respond in the immediate aftermath of being named in a malpractice lawsuit can hold huge implications for the final outcome. Taking the following steps can help protect yourself, your assets, and your career.
Step #1: Contact risk management.
If you work for a medical practice, hospital, or long-term care setting, it's crucial that you get in touch with the risk management team as soon as possible. This will ensure, as Operman explained, that "malpractice carriers are put on notice of the lawsuit in a timely fashion." From there, defense counsel can be assigned—and can respond to pleadings—in a timely fashion.
Step #2: Be honest with the defense counsel.
The defense assigned to your lawsuit needs to understand the circumstances underscoring the situation, including treatment details that may be uncomfortable to share. Your defense counsel must be made aware of all relevant details, as this will make it easier to pursue a proactive approach and properly handle complications.
Step #3: Preserve the medical chart in its entirety.
No matter the status of the patient, the medical chart must be set aside in a secure location. This will verify that it is complete and has not been altered.
Should PAs Get Malpractice Insurance?
The simple answer? Yes. For starters, many states require medical professionals, including PAs, to maintain a minimum baseline level of medical malpractice insurance coverage. Even if you don’t practice in one of those states, PAs can benefit from obtaining malpractice insurance. Any role that involves some element of autonomy runs the risk of being on the defense end of legal action. While employers may provide some coverage, having your own personal protection is becoming more and more necessary, particularly given today’s legal climate. Should you change jobs, having your own malpractice insurance will ensure that you remain covered.
The need for malpractice insurance remains clear, as some states shift toward policies that reflect Optimal Team Practice (OTP). Under an OTP-oriented policy, PAs are not legally required to maintain a specified relationship with a particular collaborating physician. Still, as Operman pointed out, PAs are "never completely autonomous," and as such should maintain both sufficient malpractice insurance and open lines of communication with physicians to mitigate personal risk.
The AAPA clarified that a lack of personal malpractice insurance makes PAs vulnerable not only to sustaining significant financial losses, but also, the "possibility of damaging [their] established career[s]." Adverse outcomes may be reviewed by the state's licensure board, increasing the likelihood of suspension.
Another oft-forgotten consideration: the need for personal peace of mind. This should not be discounted and is akin, as Pohlman contended, to purchasing adequate automobile or homeowners insurance.
Am I More Likely to Get Sued If I Have My Own Medical Malpractice Insurance?
Having your own medical malpractice insurance policy will not increase your likelihood of being named in a medical malpractice lawsuit. As Pohlman explained, plaintiffs do not learn of the existence of personal malpractice insurance until after a lawsuit is filed, as the insurance status of specific medical professionals is not public information.
Pohlman added that, while it is possible for the plaintiff to dismiss a case upon discovering a lack of insurance, this largely depends on the significance of the individual's role in the incident and whether sufficient assets exist to satisfy a potential judgment.
Final Thoughts
Though a PA’s autonomy may vary between states, all PAs deserve the protection and peace of mind that only a personal malpractice policy can provide. While risk mitigation strategies like thorough note-taking and open communication with physicians can limit the potential for lawsuits, physician assistant malpractice insurance remains essential for addressing personal, professional, and financial risks.
Image courtesy of iStock.com/isayildiz