Exploring the legal implications of using physician extenders in plastic surgery practices

As interest in noninvasive aesthetic procedures continues to grow, plastic surgeons are increasingly using physician extenders (PEs) to assist them with these procedures. The reason for the popularity of PE use is obvious: They can significantly expand the use of lasers, laser-like technologies, and injectable agents in the office setting. However, without appropriate supervision and training, a higher incidence of complications can be expected when these nonphysicians are used.

In general, PEs tend to perform more laser and other light-based procedures than filler or botulinum toxin Type A injections. Therefore, I will focus on PE use of light-based technologies. The American Society for Lasers in Medicine and Surgery (ASLMS), the American Academy of Dermatology (AAD), and the American Society for Dermatologic Surgery (ASDS) have all developed guidelines for PEs using lasers in the office setting. The AAD and ASDS guidelines have no de facto impact on plastic surgeons, but the ASLMS guidelines for member plastic surgeons do apply.

Although there are subtle differences among the recommendations of the different associations, they all are consistent with those of the American Medical Association (AMA). In states that allow PEs to do laser treatments, they require a supervising physician to be on-site and immediately available while the procedure is being performed.

PEs, as a broad group, include physician assistants (PAs), registered nurses (RNs), nurse practitioners (NPs), and a variety of other categories of licensed nurses and aestheticians. According to the American Academy of Physician Assistants, there were 46,002 PAs in the United States in the beginning of 2003, an almost 110% increase since 1993.1 In March 2004, there were an estimated 141,209 NPs, according to the US Department of Health and Human Services.2

Variation in Regulations
Regulations as to who can and who cannot perform laser procedures vary from state to state. In addition, interested professional societies have promulgated a variety of guidelines. It should be noted that state laws always supersede professional-society guidelines even when the latter are stricter than the actual state laws.

State regulations vary widely. In New Jersey, Board of Medical Examiners regulations prohibit nonphysician use of laser-based technology. Gov Jeb Bush (R-Fla) recently signed legislation that allows nonphysician use of laser and laser-like technologies, but requires varying degrees of supervision based on the type of facility.3

In 2002, California’s Medical Board passed guidelines that allowed PAs and RNs to perform such procedures, but only under the direct supervision of a physician.4In California, PEs that are aestheticians, cosmetologists, or electrologists are prohibited from performing laser procedures even if they are directly supervised by a physician. What is clear is that the enthusiasm for PE use has also brought added legislation, and potentially resultant liability, for the supervising plastic surgeon.

PEs’ scope of practice also varies clearly from state to state. In many states, NPs are allowed to practice independently, without a physician. NPs are involved with primary health care; assessing and diagnosing common illnesses; and managing chronic, stable conditions. NPs can order electrocardiograms and x-rays in many states and can perform aesthetic laser procedures. However, NPs often practice under the guidance of a licensed physician.

In contrast, PAs are licensed to practice medicine only under a physician’s supervision, and onlyunder a physician’s license. PAs can conduct physical exams, diagnose and treat illnesses, order and interpret tests, and write prescriptions in most states. In general, most other categories of PEs do work with some “physician supervision.” The degree of that supervision varies from almost nonexistent to direct supervision.

Although a vast literature exists regarding the use of PEs, few studies have thoroughly examined the supervisory role of physicians using PEs.5The issues of concern are:

• PEs’ scope of practice;

• the supply of PEs;

• PEs’ roles and the degree of PE responsibility;

• PEs’ roles for providing care in rural and underserved areas;

• the impact of the employment of PEs on service use, cost, outcomes of care, and patient satisfaction;

• task delegation and patient assignment to PEs; and

• comparisons of models of care or organizational structure in the practice setting—for example, variations on a collaborative practice model, network models, and team models.

The results of the few studies that examine the use of PEs, or the mix of physicians and PEs, suggest that the frequency of PE use depends on the practice arrangement, size, and location.

AMA Study
A study by the AMA Center for Health Policy Research examined data from its 1994 Socioeconomic Monitoring System (SMS) survey on physician utilization of PEs.6 Physicians participating in the survey were asked how many nonphysician personnel (clinical and administrative office staff) were employed in their practice during 1993. Information was also collected on the use of other PEs—PAs and three types of advanced practical nurses (APNs): nurse midwives, NPs, and clinical nurse specialists.

The SMS survey results indicated that 56% of group-practice physicians reported employing PEs. In contrast, solo physicians rarely used PEs. Physicians in both types of practices were more likely to employ PAs than other classes of PE.

Across specialties, surgeons were the most likely to work with PEs, regardless of the type of practice. The findings also suggested that employing PEs increased the size (in terms of total number of visits) of solo physicians’ medical practices and physician productivity (office visits per hour, and patient visits per week and per year). The change in practice size was accompanied by an average increase of 18 hours spent providing patient care and a small decrease in the number of weeks worked per year.

Among surgical specialists in solo practice, physicians in general surgery employed the greatest number of PEs (2.24 PEs per solo general surgeon). “Other specialists” (including plastic surgeons) were also seeing a rise in the use of PEs.

It should be noted that current AMA policy includes comprehensive guidelines for the use of PEs. Policy 4-160.947 (AMA Policy Compendium) contains suggested guidelines for physician and PA practice.7They state that the physician must be available for consultation with the PA at all times, and that at least one physician in an integrated practice must be immediately available at all times for supervision and consultation when needed by the NP. Other guidelines note that the state medical licensing board should determine on an individual basis the number of PAs that a physician may supervise or a group of physicians may employ.

Beyond Malpractice
Although medical malpractice claims can and do arise because of PE-related events, other issues can also arise.8,9The medical malpractice issues are the more obvious problem. Therefore, I will focus on some equally disconcerting issues that may arise outside the realm of medical malpractice.

One common situation arises when the PE does not identify himself or herself as such. The argument centers on the allegation that the PE was acting like a physician, and that the patient relied on his or her advice or treatment as if that person were a physician.

One of the easier ways to avoid potential litigation for such PE activities is to hire the PE as an independent contractor. Practically, this would apply only to NPs who can practice on their own. Even so, the fact that the NP is working in the physician’s office may form the basis for liability.

From a legal standpoint, it is a little easier to defend a lawsuit if the NP is an independent contractor.10 Any time you have someone working as an employee, you can be held vicariously liable for his or her activities. An employee is defined as an individual who receives a salary and benefits and who is performing within the scope of his or her duty. If the employee (the PE) is negligent in this capacity, the physician will be vicariously liable for the employee’s actions.11

In any event, it is prudent for the physician to be fully aware of the clinical expertise of every PE who delivers care in his or her office. In addition, there should be adequate notice to patients that particular individuals are independent contractors who are not under the physician’s supervision.

In theory, the principles about the legal benefits of using an independent contractor should apply to other PEs as well. For example, the physician should be fully aware of the clinical expertise of the PA who delivers care in his or her office.

In practice, however, there is no legal advantage to hiring a PA as an independent contractor, because the PA can practice medicine only under the supervision of a licensed physician. Consequently, the care that a PA provides is, by its very nature, attributed to the physician who hired the PA. The same would apply to nearly all categories of PE.

Safety From Liability
The obvious question that arises is: How can physicians safely guard themselves from legal liability when working with a PE? The obvious answer lies in getting to know the PE’s clinical skills and expertise. Watch him or her interact with and evaluate patients. Review of charts is mandatory.

Physicians often bring problems on themselves when they sign off on everything a PE does without reviewing the chart, or without ever examining the patient. Sometimes, employer physicians are in fact totally unaware of the PE’s clinical competence or expertise. The physician must ask the simple question, “How much do I, the physician, trust that person’s clinical expertise?”

The PE issue can be more confusing yet. In states that allow the use of PEs, there is the occasional requirement that the PE be “registered” to work under a specific physician’s license. In that scenario, the PE may be able to work with one physician in a group practice, but not another physician in the same practice.

An example of this was a Texas case in which a physician was named in a lawsuit even though the individual filing the suit was not his patient.12The PA was seeing someone else’s patient, but the PA was licensed to practice medicine only under the defendant physician’s medical license.

Although the PA had already applied to work under the second physician, the state had not finished processing the application. The case was ultimately settled, but the take-home message is self-evident: Physicians using PEs must know their state laws and ensure compliance with them.

Currently, laws and regulations that define the legal relationships between physicians and PEs differ significantly among states. The differences are partially determined by the specific type of PE, their scope of practice, and the practice setting. State regulations generally include the responsibilities of the supervising physician and the definition of, and criteria for, supervision.

However, as stated above, approximately one half of the states now allow NPs to practice independently. State laws also place limits on the number of PAs that physicians may supervise, generally no more than two PAs per physician.

Limits on the supervisory ratio between physicians and other PEs are generally higher and vary from state to state. In addition, some states allow the formation of collaborative practice arrangements between physicians and certain PEs.

The specific definition of physician supervision also varies across states, but it typically refers to overseeing, controlling, and directing the services provided by the PE. Supervision also includes accepting the responsibility and liability for the activities delegated to the PE. Supervision may be direct, in that the supervising physician is physically present when the PE is providing care. Constant physician presence is not required by many states.

Some state PE laws allow for on-site and off-site supervision. On-site supervision often requires the supervising physician be in the same location as the PE. Off-site supervision specifies that the supervising physician be continuously and easily available for direct communication with the PE. The means of communication and distance limits are often included as conditions for off-site supervision.

In the ultimate analysis, it must be recognized that PEs are available to help care for patients. However, PEs can also be a source of legal liability. Clearly, adequate physician supervision is not only desirable, but essential—if not legally required—in all plastic surgery offices.

David J. Goldberg, MD, JD, is a board-certified dermatologist and director of Skin Laser & Surgery Specialists of New York &New Jersey, headquartered in New York City. He is also a clinical professor of dermatology and director of laser research at Mount Sinai School of Medicine and an adjunct professor of law at Fordham Law School, both in New York City. He can be reached at [email protected]

References
1. American Academy of Physician Assistants. Projected number of people in clinical practice as PAs as of January 1, 2003. Available at: www.aapa.org/research/03projClinPracPAs.html Accessed September 1, 2006.

2. Health Resources and Services Administration, US Department of Health and Human Services. Preliminary findings: 2004 national sample survey of registered nurses. Available at: http://[removed]www.bhpr.hrsa.gov/healthworkforce/reports/rnpopulation/preliminaryfindings.htm[/removed]. Accessed September 5, 2006.

3. Brandell B. Gov Bush signs bill limiting satellite doctor offices. The South Florida Business Journal. June 21, 2006. Available at: www.bizjournals.com/southflorida/stories/2006/06/19/daily21.html?from_rss=1 Accessed September 1, 2006.

4. Medical Board of California. Use of lasers, dermabrators, Botox, and other treatments by non-physicians. Available at: www.medbd.ca.gov/ma_article_laseruse.htm Accessed September 12, 2006.

5. Albert T. Avoid legal pitfalls when hiring physician extenders. American Medical News. 2003;46(26). Available at: https://ssl3.ama-assn.org/apps/ldap/login.cgi/id/amnews?URL=www.ama-assn.org/amednews/2003/07/14/prca0714.htm (membership required).

6. CMS Report 10 – I-98. report of the Council on Medical Service. December 1998. Available at: http://www.66.102.7.104/search?q=cache:E4-PfHJ4acJ:www.ama-assn.org/ama/upload/mm/372/i98cms10.doc+1994+socioeconomic+monitoring
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Accessed September 12, 2006.

7. SHM policy statements on physician assistants and nurse practitioners in hospital medicine. Available at: http://www.66.102.7.104/search?q=cache:XgRWOfau_e8J:
hospitalmedicine.org/AM/Template.cfm%3FSection%3DWhere_We_Stand%26Template%3D/CM/
ContentDisplay.cfm%26ContentFileID%3D1383+policy+H-160.947&hl=en&gl=us&ct=clnk&cd=4&client=safari
.
Accessed September 12, 2006.

8. Semo J. Surgeon liability for nurse anesthetists: Fact or fiction. ASA Newsletter. 2000;64:12.

9. Buppert C. What are the malpractice needs of physicians who supervise NPs? Available at: www.medscape.com/viewarticle/413409 Accessed August 31, 2006.

10. Murrell v Goertz, 597 P2d 1223, 1979.

11. Lindberg v State, 25 NY2d, 1969.