Advisen FPN

Advisen Special Conference Edition FPN - Tuesday, September 26, 2023

Mitigating exposure for advanced practice clinicians

Mitigating exposure for advanced practice clinicians

By Chad Hemenway, Advisen

The number of primary-care physicians is shrinking and will likely continue to do so. Meanwhile, there is an increase in advanced practice clinicians, including physician assistants and nurse practitioners. While use of APCs offers benefits, it also brings professional liability concerns. Advisen spoke with Bridget Zaremba, Healthcare Claims Practice Leader at QBE North America, to find out more.

What prompted the increase use of advanced practice clinicians?

The growing number of advanced practice clinicians (APCs) is largely due to the increased demand on the healthcare workforce and the need to control costs. A study funded by the Association of American Medical Colleges notes that by 2020 there will be a shortage of 91,500 physicians. A major factor in the shortage is the growing number of insureds following the implementation of the Affordable Care Act (ACA). The Association of American Medical Colleges reports an estimated 15 million more Americans will be eligible for Medicare and more than 30 million Americans overall who will be participating in the health care system by 2025. [1] 

What are the professional liability concerns related to advanced practice clinicians?

Overall, the increasing use of APCs has the potential to lower overall professional liability risk by taking the pressure off overworked physicians, who might be more prone to error due to exhaustion or lack of time to address worsening medical conditions and provide adequate preventative care.

This benefit will not be realized, however, unless healthcare entities successfully comply with state-specific guidelines that vary widely for licensing, training, supervision and prescriptive authority of APCs. Moreover, these regulations change constantly in response to the ongoing debate among industry stakeholders about the use of APCs.

Frequent allegations include failure to diagnose, failure to refer to a supervising physician, practicing beyond the accepted scope of practice, and failure to abide by the elements of a collaborative agreement.

To address these risks, healthcare entities should have the confidence that their insurance broker and carrier understand the nuances of the regulations and liability exposures, as an added check on their own compliance practices.

Industry-wide, are there any insurance claims trends related to the shortage of physicians/development of APCs?

One trend we see is that lawsuits rarely target the APC alone. The supervising physician and healthcare facility are almost always named as a defendant where an APC is involved, even when the physician was not directly involved in the patient’s care.

In some states, APCs are held to the same standard of care as a supervising physician; whereas in others, the standard is of a similarly trained and certified APC. In some states, the standard of care has yet to be determined by the courts.

Lawsuits involving APCs are likely to grow as their numbers increase and the scope of an APC’s practice expands.

How are these risks approached from an underwriting perspective?

It may be helpful for underwriters to ascertain the required level of supervision and prescriptive authority applicable in a given state, as they differ, sometimes dramatically, from state to state.

They must then check that the prospective insured has both solid credentialing policies and quality assurance measures in place. Healthcare entities that fail to perform these key functions may be viewed as negligent, and the supervising physician or facility may be deemed liable.

Healthcare entities need to consider that physicians, supervisors and employers may be held accountable for the actions of an APC. While the risk of being sued may not increase when APCs are part of a physician practice, physicians may still be exposed if a patient is harmed by a treating APC, even if the physician is not directly involved in the patient’s care.

How do APCs compare to other healthcare specialists?

Research based on the National Practitioner Data Bank shows that the liability risk for APCs is less than that of physicians in terms of malpractice payments and number of citations. One study concluded that APCs were 12 times less likely to make a malpractice payment than physicians from 1991-2007. [2] This data may reflect that legal actions more often target physicians who treat higher risk patients.

APC advocates argue that APCs are sued less frequently because they provide more individualized care, which has been shown to reduce the likelihood of a patient filing suit against a provider. Thus, APC advocates argue that employing APCs may reduce physician malpractice suits.

Is there a “malpractice crisis” as some have alleged?

Our goal should always be to reduce actual malpractice no matter how prevalent it is. However, malpractice claims are not necessarily getting worse. The frequency of medical malpractice claims has remained relatively flat in recent years. Also, medical malpractice insurance premiums have trailed inflation for many physicians. Some pay less in unadjusted dollars than they did in 2001.

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This article is for general informational purposes only and is not legal advice and should not be construed as legal advice. This information in this article is descriptive only. Actual coverage is subject to the language of the policies as issued.