N EWSLETTER. Volume Nine - Number Nine September Why Wording is Important in Collaborative Practice Agreements

Transcription

1 N EWSLETTER Volume Nine - Number Nine September 2013 Why Wording is Important in Collaborative Practice Agreements Although the legal dynamics are changing in many jurisdictions, it is not uncommon to find advance practice nurses working under collaborative practice arrangements with physicians. These so-called CPAs are important for many reasons, including the ability of advance practice nurses to round on patients in acute care and long term care facilities and to fulfill many care-giving responsibilities in physician practices and medical clinics. The CPAs not only delineate scope of duties; the terms and conditions may also help to set the parameters for professional liability between the physician and the advance practice nurse. As a recent Indiana court decision 1 suggests, for physicians, following the CPAs is important to avoid medical malpractice exposure. The Indiana Court of Appeal Case. In November 2008, the plaintiffs son, S.H., received treatment from Nurse Practitioner V. at the PC Clinic. Toward the end of that month, S.H. died having experienced an acute pulmonary embolism and deep vein thrombosis. 2 At the time of the patient s death, Nurse Practitioner V. had in place an Indiana Collaborative Practice Agreement for Prescriptive Authority with Dr. S.H. The agreement provided for Dr. S.H. to be available to the nurse practitioner for consultation. 3 RMS NEWSLETTER ALL RIGHTS RESERVED 2013 PAGE 1

2 In November 2010, the plaintiffs filed a Proposed Complaint against Dr. S.H. with the Indiana Department of Insurance. They alleged that Dr. S.H. had provided negligent treatment to their son and that this substandard care resulted in his death. By the time of the Court of Appeal of Indiana ruling, the medical review panel had not yet issued an opinion whether or not the physician was negligent in the case. 4 Dr. S.H. filed a motion for summary judgment in the trial court in which he requested a determination whether or not he owed a duty of care to the decedent even though he did not in any way participate in his treatment. The trial court granted summary judgment in favor of Dr. S.H. and the plaintiffs appealed. 5 On appeal, the plaintiffs argued that Dr. S.H. had a physician-patient relationship with the decedent due to the collaborative practice agreement he had with Nurse Practitioner V. Dr. S.H. disagreed. 6 The appellate court made it clear that the plaintiff had to establish three elements in order to recover under a theory of negligence: (1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship, and (3) an injury to the plaintiff proximately caused by the breach. 7 The appellate court agreed with Dr. S.H. that the facts did not demonstrate that he had in the traditional sense 8 a physician-patient relationship with the decedent. Several important facts were noted on this point: a. The doctor never reviewed the patient s records prior to the initiation of the lawsuit; b. He did not make any recommendations to either the patient or his care providers with regard to his medication, condition or his course of treatment; and c. He did not take part in any of the patient s treatment. 9 The appellate court next rejected the suggestion that Dr. S.H. had a physicianpatient relationship with the decedent by way of the CPA between him and Nurse Practitioner V. On this issue the court first took notice of the language of the RMS NEWSLETTER ALL RIGHTS RESERVED 2013 PAGE 2

3 Indiana law on the practice of advanced practice nurses and nurse practitioners. 10 In particular, the appellate court pointed out that A nurse practitioner shall perform as an independent and interdependent member of a health team. 11 The appellate court then highlighted the fact that an advance practice nurse including a nurse practitioner could be authorized to prescribe a number of drugs as long as the advance practice nurse fulfilled a number of requirements. Of particular note was the regulatory requirement to submit a written collaborative practice agreement that spells out how the advance nurse practitioner and physician will cooperate, coordinate and consult with each other in the provision of health care to patients. 12 On the issue of prescribing medication, the written collaborative agreement between Dr. S.H. and Nurse Practitioner V. included the following provision: Limitations: Physician has placed no limitations on the [advanced practice nurse] prescriptive authority. 13 On the issue of the ability of the nurse practitioner to exercise independent judgment, the collaborative agreement stated: This Agreement is not intended to serve as a substitute for the independent judgment of the [advanced practice nurse] based on the specific needs of the patient, and this Agreement does not place increased liability on the physician for those decisions made by the [advanced practice nurse]. 14 Looking at the facts, the appellate court said it could not find that the doctor had embarked upon a physician-patient relationship with the nurse practitioner s patients just because the healthcare professionals had entered into a formal collaborative practice agreement. The only way in which Dr. S.H. could be said to have entered into a physician-patient relationship with Nurse Practitioner V. s patient was if he performed any affirmative act with regard to the patient. 15 Since he did not do so in this instance, he did not owe a duty of care to the decedent. Thus, the court affirmed the grant of summary judgment in favor of the physician. RMS NEWSLETTER ALL RIGHTS RESERVED 2013 PAGE 3

4 Observations on the Indiana Case. The appellate court ruling demonstrates the importance of designing collaborative agreements to comply with relevant state legislation and regulations. Further, the case highlights the need for care in the design and wording of a collaborative agreement to reduce the risk of the physician taking on responsibility for the decisions made by the nurse practitioner. The court made note of the fact that the terms of the agreement did not increase the liability of the physician for the independent actions of the nurse practitioner. A well-written agreement, free of ambiguity, can help reinforce such limitations in specific situations. It also serves to reinforce why care providers should stick to the terms and not deviate from the collaborative agreement. Risk Management Strategies for Collaborative Practice Agreements. In writing a collaborative practice agreement, guidance is essential from a lawyer familiar with applicable state legislation and regulations. Beyond the legal terms, however, there are a number of practical strategies to consider when managing risk exposures stemming from collaborative practice agreements, including the following: 1. Work Through the CPA with Responsible Parties. Make certain that the process for coordination, communication and consultation is efficient and effective for physicians and advance nurse practitioners that are participants in a collaborative agreement. Offer realistic case scenarios especially with less than clear-cut matters. 2. Educate Personnel Asking for Actions Outside the CPA. Offer orientation and in-service training for those working in hospital, nursing facilities, clinics, and physician practice settings regarding the role and responsibilities of collaborative professionals. Reinforce the reasons why it is imprudent to request that collaborative participants extend their scope of services beyond the terms of the CPA and applicable state law. 3. Set Expectations with Patients and Family Members. Do not assume that patients and family members understand the RMS NEWSLETTER ALL RIGHTS RESERVED 2013 PAGE 4

5 collaborative service and the delivery of clinical services in such circumstances. Consider utilizing patient-centered documentation, visual media in waiting areas, and information on the facility or practice website to set realistic expectations about the practical aspects of collaborative service and what it means to the patient. 4. Avoid Mission Creep. Recognize that so-called mission creep can occur between professionals engaged in a collaborative agreement or when pressure is exerted by either administrative or clinical leadership. Remind collaborative participants to decline requests to offer clinical services beyond the scope of applicable law or the CPA. 5. Review and Update the CPA to Keep Pace with Legislative, Regulatory, Health Care Organization, and Medical Staff Changes. Utilize an annual review protocol to identify modifications in legislation, regulations, healthcare entity or medical staff bylaws and case law that could impact collaborative practice agreements. Include in this process possible changes in federal requirements that could impact both current and future CPAs. Work with legal counsel and compliance to make certain that proposed modifications to the terms of collaborative practice agreements are aligned with applicable legal requirements. 6. Put in Place Necessary Insurance Requirements. Do not assume that existing medical malpractice or HPL policies will address emerging collaborative practice arrangements. Examine the terms and exclusions in the current policy and discuss with the insurance agent or broker what, if any, coverage needs to be added or adjusted for collaborative practice arrangements. Conclusion. The Indiana ruling demonstrated how closely the courts will examine the facts to determine if a physician could bear legal accountability for the demise of a patient treated in a collaborative practice situation. In the Indiana case, the physician had not had any direct contact with the patient. He had not given instructions to the nurse practitioner about the treatment of the patient. Moreover, state law stated RMS NEWSLETTER ALL RIGHTS RESERVED 2013 PAGE 5

6 that the physician did not incur increased liability for the decisions made by the advance practice nurse. What about other situations that are less straightforward? Could the physician be exposed to liability because of the errors or omissions on the part of the nurse practitioner whose clinical decisions resulted in harm to the patient? The answer may be yes. Collaborative practice agreements are not going to fade away. Although there are good reasons why in many settings an advance practice nurse should be able to practice independently, there remain situations in which the collaborative requirement will remain important for the effective delivery of patient services. Recognizing risks associated with CPAs, steps can be taken to minimize misunderstandings, contractual difficulties, and liability exposures. As such, crafting, enforcing, and monitoring CPAs is well-suited to effective risk management measures. If would like assistance with a risk management review of collaborative practice agreements, please contact us at: or (860) S.H. v. G. H., 2013 Ind. App. LEXIS 462 (Ct. Appeals of Indiana, No. 42A MI95, September 25, 2103). 2 Id. 3 Id. 4 Id. at Id., at Id. at Id. at Id. at Id. RMS NEWSLETTER ALL RIGHTS RESERVED 2013 PAGE 6

7 10 Id. at , referencing 848 Indiana Administrative Code (2013) and 4-1-4(202-13). 11 Id. at 475 referencing 848 Indiana Administrative Code 4-1-4(b) (2013). 12 Id. at 478, referencing 848 Indiana Administrative Code 5-1-1(7) (2013). 13 Id., at Id. at Id. at 483. RMS NEWSLETTER ALL RIGHTS RESERVED 2013 PAGE 7