Latest / Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers / Sidebar - Whose Patient Is It?

Transcript

Sidebar - Whose Patient Is It? · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is Death.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work, or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:26
  SPEAKER_00: Physician asked me a question today that I hadn't thought about before.
• 0:30
  SPEAKER_00: And I bet a lot of you haven't either.
• 0:33
  SPEAKER_00: So he's a hospitalist, and he has no say in the hiring of the PAs or the physician assistants that he works with.
• 0:40
  SPEAKER_00: But his name is on their paperwork, it's on their license as the supervising physician.
• 0:46
  SPEAKER_00: And he has to sign off on their charts.
• 0:48
  SPEAKER_00: So his question was simple.
• 0:50
  SPEAKER_00: When am I on the hook for what the PA does?
• 0:53
  SPEAKER_00: Now I practiced as a PA for years before I retired in 2016.
• 0:58
  SPEAKER_00: So this one is close to home.
• 1:00
  SPEAKER_00: And the honest answer is more often than most physicians think.
• 1:04
  SPEAKER_00: Let me walk you through why, and then in the next sidebar, we'll talk about the part he really wanted to know, which is what is it that his signature should actually say?
• 1:14
  SPEAKER_00: So let's start with Pennsylvania, because the law here is unusually direct.
• 1:20
  SPEAKER_00: The Medical Practice Act, as amended by Act 79 of 2021, says the supervising physician shall be responsible for the medical services that a physician assistant renders.
• 1:32
  SPEAKER_00: Same section says that supervision doesn't require the physician to be on site.
• 1:36
  SPEAKER_00: So you can be responsible for care that you never saw in a room that you never walked into with a patient again that you never saw.
• 1:50
  SPEAKER_00: The State Board of Medicine regulations go a step further.
• 1:53
  SPEAKER_00: They say the physician assistant shall be considered the agent of the supervising physician in all practice-related activities.
• 2:01
  SPEAKER_00: And they say the primary supervising physician maintains oversight and responsibility for the medical services the PA renders.
• 2:09
  SPEAKER_00: When the law costs someone your agent, opposing counsel doesn't have to work very hard to argue, you answer for what your agent does.
• 2:17
  SPEAKER_00: Now, here's what changed recently.
• 2:20
  SPEAKER_00: Those regulations were updated effective July 5th, 2025.
• 2:24
  SPEAKER_00: Under the old rules, a supervising physician had to countersign every PA chart within 10 days.
• 2:30
  SPEAKER_00: Now the 100% countersignature rule only applies in two situations: the PA's first 12 months after graduation and the first 12 months in a new specialty.
• 2:42
  SPEAKER_00: After that, the physician and the PA decide the countersignature requirements themselves and they put them in the written agreement they file with the board.
• 2:51
  SPEAKER_00: One physician can now be primary supervisor for up to six BAs.
• 2:56
  SPEAKER_00: That written agreement matters more than people realize.
• 3:00
  SPEAKER_00: It's signed by the PA and the primary supervising physician.
• 3:04
  SPEAKER_00: It describes the PA's scope and the nature and the degree of supervision.
• 3:08
  SPEAKER_00: So when our hospitalist says he had no say, that may be true about the hiring, but somebody signed that agreement.
• 3:16
  SPEAKER_00: If it was him, he agreed to a level of supervision on paper and in litigation, the paper is what gets read back to him.
• 3:23
  SPEAKER_00: So, how does a supervising physician end up in a lawsuit?
• 3:27
  SPEAKER_00: Usually three ways.
• 3:29
  SPEAKER_00: First, vicarious liability.
• 3:32
  SPEAKER_00: The physician is responsible because of the relationship, not because of anything he personally did wrong.
• 3:37
  SPEAKER_00: The PA was negligent, and the law treats the supervisor as answerable for it.
• 3:43
  SPEAKER_00: Second, direct negligence, failure to supervise.
• 3:46
  SPEAKER_00: The agreement said you'd review charts and you didn't.
• 3:49
  SPEAKER_00: The PA was in over their head on a case and you weren't reachable.
• 3:52
  SPEAKER_00: You knew the PA was struggling and you did nothing.
• 3:55
  SPEAKER_00: Third, and this is the one that catches people, the physician-patient relationship.
• 4:00
  SPEAKER_00: A physician can't be liable for malpractice to someone who was never his patient, but a signature can create that relationship.
• 4:07
  SPEAKER_00: So let me give you a real case.
• 4:09
  SPEAKER_00: Oka versus Avila, a Texas Appeals Court decision from 2024.
• 4:14
  SPEAKER_00: A woman came to an emergency department late at night after a fall.
• 4:18
  SPEAKER_00: A PA treated her.
• 4:19
  SPEAKER_00: Her knee x-ray was red as normal and she was discharged with a knee contusion.
• 4:24
  SPEAKER_00: About an hour after she left, the attending physician, Dr.
• 4:27
  SPEAKER_00: Oka, reviewed the PA's chart and co-signed it on the line marked supervising physician.
• 4:32
  SPEAKER_00: The co-signature said, I agree with the assessment and care plan and confirmed the diagnosis.
• 4:38
  SPEAKER_00: Here's what Dr.
• 4:39
  SPEAKER_00: Oka said.
• 4:40
  SPEAKER_00: The PA never asked for his help.
• 4:42
  SPEAKER_00: He never saw the patient.
• 4:43
  SPEAKER_00: There was no evidence he looked at the X-ray, and he wasn't even the PA's registered supervising physician with the Texas Medical Board.
• 4:51
  SPEAKER_00: The medical director was.
• 4:53
  SPEAKER_00: His understanding was that the cosigning charts was just hospital policy.
• 4:56
  SPEAKER_00: He asked the court to throw out the claim against him because he never had a physician-patient relationship with her.
• 5:01
  SPEAKER_00: The court said no.
• 5:02
  SPEAKER_00: There was enough evidence for a jury to decide that question, and the case against him went forward.
• 5:08
  SPEAKER_00: That signature, a line he probably signed dozens of times a shift, kept him in the case.
• 5:15
  SPEAKER_00: Other states have gone the same direction and some have not.
• 5:19
  SPEAKER_00: A California case from 2022, Lopez versus Ledesma, involved a patient treated at a dermatology clinic by two physician assistants.
• 5:28
  SPEAKER_00: The physicians whose names were on the supervising agreements provided little or no actual supervision.
• 5:34
  SPEAKER_00: She died, and the trial court still held the supervising physician vicariously liable for the PA's negligence.
• 5:41
  SPEAKER_00: In Georgia, on the other hand, a court of appeals held in 2023 that the state's PA statute doesn't by itself make the supervising physician vicariously liable.
• 5:53
  SPEAKER_00: And the Georgia Supreme Court declined to take the case.
• 5:56
  SPEAKER_00: One justice wrote separately that there's a reasonable argument the other way.
• 6:00
  SPEAKER_00: So the answer depends heavily on your state.
• 6:03
  SPEAKER_00: What about the fact that he didn't hire them?
• 6:06
  SPEAKER_00: That matters, but mostly for someone else.
• 6:08
  SPEAKER_00: In Pennsylvania, a hospital has its own duty under corporate negligence, going back to Thompson versus Nason Hospital in 1991, to select and keep competent staff and to oversee the people who practice inside its walls.
• 6:23
  SPEAKER_00: So the hospital that hired the PA has its own exposure.
• 6:26
  SPEAKER_00: It doesn't take the physician's name off the agreement, but it does mean he's not the only one on the frame.
• 6:32
  SPEAKER_00: So if you're the expert reviewing one of these cases, what do you ask for?
• 6:37
  SPEAKER_00: The written agreement filed with the board, what it said about supervision and countersignature, whether the PA was in a first year or a new specialty period, which triggers 100% review, when the charts were actually co-signed, which the audit trail will show, whether the PA tried to reach the physician, and whether the physician answered, and what the co-signature actually said.
• 7:00
  SPEAKER_00: That last one is where we're going to go next time because the words in the signature line can open the door or close one, and most physicians have never read the attestation their system inserts for them.
• 7:12
  SPEAKER_00: Here's today's takeaway.
• 7:13
  SPEAKER_00: A supervising physician doesn't have to see the patient to be responsible for the care.
• 7:18
  SPEAKER_00: In Pennsylvania, the statute says so directly.
• 7:22
  SPEAKER_00: Responsibility comes from the relationship, from the written agreement, and sometimes from a single signature.
• 7:29
  SPEAKER_00: This is educational information, not legal advice.
• 7:32
  SPEAKER_00: Supervision rules and liability for physician assistance vary by state, and doctors of osteopathy are governed by separate board in Pennsylvania.
• 7:41
  SPEAKER_00: So again, check with the retaining attorney.
• 7:45
  SPEAKER_00: This episode of Statutes and Stephenscopes.
• 7:47
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 7:51
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at National Expert Academy.com.
• 7:58
  SPEAKER_00: I'm Tracy Libratori.
• 8:00
  SPEAKER_00: I'll see you on the next episode.