In Primary Care, Who Gets Sued and Why?

The Doctors Company recently analyzed 67 malpractice claims* against nurse practitioners (NPs) that closed over a six-year period from January 2011 through December 2016. These claims arose in family medicine (FM) and internal medicine (IM) practices. To provide context, we compared the NP claims with 1,358 FM and IM claims that closed during the same time period. If a claim was against both the FM or IM physician and the NP, we eliminated it from this study to avoid counting the same claim twice.

We included cases that closed within the study’s time frame regardless of how the claim or suit was resolved. This approach helped us to better understand what motivates patients to pursue claims and to gain a broader overview of the system failures and processes that resulted in patient harm.

Our approach to studying these malpractice claims began by reviewing plaintiffs’/patients’ allegations, giving us insights into the perspectives and motivations for filing claims and lawsuits. We then looked at patients’ injuries to understand the full scope of harm. Physician and nurse practitioner experts for both the plaintiffs/patients and the defendants/nurse practitioners/physicians reviewed claims and conducted medical record reviews. Our clinical analysts drew from these sources to gain an accurate and unbiased understanding of the events that lead to actual patient injuries.

Nurse practitioner or physician reviewers evaluated each claim to determine whether the standard of care was met. The factors that contributed to claims included clinical judgment, patient factors, communication, clinical systems, clinical environments, and documentation. Our team studied all aspects of the claims and, using bench marked data, identified risk mitigation strategies that nurse practitioners and their physician partners can use to decrease the risks of injury, thereby improving the quality of care.



State differences in NP scope of practice
We did not take the following state differences in NP scope of practice (SOP) into consideration because the number of claims in each category would likely lack statistical significance:

• In 23 states and Washington, DC, NPs have full authority to practice independently. They can evaluate, diagnose, and manage treatment—including ordering and managing medications.
• In 15 states, NPs have reduced practice authority that requires a regulated collaboration agreement with a physician.
• In 12 states, NPs have restricted practice authority that necessitates supervision, delegation, or team management by a physician.

The most common patient allegations
When NPs worked in FM and IM practices, the three most common claim allegations against NPs accounted for 88% of their total claim allegations. The top three allegations in claims filed against FMs and IMs accounted for 89% of their total claim allegations.

The diagnosis- and medication-related allegation percentages were similar for both NPs and primary care physicians, while medical treatment–related allegations were more common for primary care physicians (see FIGURE 1). The small number of NP claims may lack statistical significance.


Discussion
The adoption of the electronic health record (EHR) has negatively affected physician satisfaction and practice workflow. As a consequence, physicians are increasingly using medical scribes to untether themselves from their EHRs, enhance efficiency, and reduce burnout. Patient satisfaction also increases with the use of scribes due to improved physician-patient interactions during office visits. A growing body of evidence indicates that NPs provide similar benefits (i.e., they provide high-quality patient care, with patient satisfaction scores similar to those of physicians), which allows physicians to see more patients and focus on those with complex management or diagnostic problems.


Increasingly, the growing need for primary care services will be filled by NPs, not primary care physicians. Subject to individual state regulatory guidelines, NPs may take patient histories; conduct physical examinations; order, supervise, perform, and interpret diagnostic and laboratory testing; prescribe pharmacological agents; and render treatment. In 2017, there were approximately 234,000 licensed NPs in the United States, with 86.6 percent certified in primary care and 95.8 percent prescribing medications.1

Approximately 8,000 new primary care physicians enter practice each year. By 2020, it is estimated that about 8,500 will retire annually. As the number of primary care physicians declines, their services will increasingly be provided by NPs.2 An estimated 23,000 new NPs completed their academic programs in 2015–2016.1 It is projected that by 2025, physicians will represent 60% of the family practice workforce, and NPs will represent 29% (almost one-third).2

For these reasons, it is appropriate to review NP medical malpractice claims and compare them with those of primary care physicians to see if any unique NP risk management issues need to be analyzed. Although this NP claims analysis is statistically limited by the relatively small number of NP claims, it shows that diagnosis-related and medication-related allegations are similar for NPs and primary care physicians—as are the final diagnoses in claims with diagnosis-related allegations.

Medical treatment–related allegations are more frequent for FM and IM, while patient assessment issues, patient injury contributing factors, patient injury-related diagnoses, and injury severity are similar. The key differences are that NPs have lower claims frequency, and their medication-related and medical treatment–related claims have lower indemnity payments. The indemnity payments for diagnosis-related claims are similar for NPs and physicians.

An allegation of failure or delay in obtaining a specialty consultation or referral often occurred when an NP managed a complication that was beyond his or her expertise or SOP.

The alleged failure to perform an adequate patient assessment often occurred when an NP relied on the medical history or diagnosis in a previous medical record rather than performing a new, comprehensive exam.

Many NP malpractice claims can be traced to clinical and administrative factors:

• Failure to adhere to SOP
• Inadequate physician supervision
• The absence of written protocols
• Deviation from written protocols
• Failure or delay in seeking physician collaboration or referral

Many of these factors can be remedied if physicians are clear about the nurse practice laws and regulations within their state and they support the NP in providing care within the SOP. The quality program within the practice should monitor the practice of the NP to ensure compliance with the laws and regulations of that particular state.

References

1. NP Fact Sheet. American Association of Nurse Practitioners Website. www.aanp.org/all-about-nps/np-fact-sheet. Accessed November 30, 2017.
2. Bodenheimer T, Bauer L. Rethinking the primary care workforce—an expanded role for nurses. N Engl J Med. 2016;375(11):1015-1017.
   

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