Medical Malpractice in an Evolving America

As a result of a chronic physician shortage, especially in rural areas, the medical landscape is drastically changing to include more non-physician healthcare providers. [1] This demand for additional medical professionals allows Advanced Practitioner Registered Nurses (APRNs) — a class of registered nurses with additional graduate-level training — increased prescriptive and decision-making authority over patients’ health care than traditional registered nurses. While the added value of having an educationally diverse healthcare team is clear, especially when the healthcare system is plagued with widespread accessibility issues, this phenomenon introduces new challenges in the realm of medical malpractice, accountability, and scrutiny that has been, for decades, primarily focused on physicians. Some states allow APRNs to practice without supervision or collaboration from a physician, and act as the primary care provider to an increasing percentage of Americans. [2] In considering questions of accountability for erroneous medical decision-making, a substantive increase in medical authority and jurisdiction over patients’ health needs to be logically accompanied by an increase in legal scrutiny. 

Physicians hold the power to make life-or-death decisions for a patient’s health, and when those decisions are blatantly contrary to medical standards, they expose themselves to a wrongful death lawsuit or criminal charges. It is not the M.D. or D.O. degree that enables physicians to be sued and charged for mistakes, but the gravity of the decisions they make that impact their patients so greatly (either positively or negatively). In Warren v. Dinter (2019), a Minnesota on-call physician was held liable for the wrongful death of a patient when the physician himself had never spoken to or examined them, but recommended to a nurse practitioner over the phone that the patient should not be admitted to the hospital. [3] The patient later died due to what was assumed to be a treatable infection, had they been admitted to the hospital. The defendant argued that no doctor-patient relationship exists between himself and the plaintiff, and therefore owes no duty of care to the patient, since the physician never examined or spoke to the patient. While the court agreed with the defendant on these facts, the logic behind the decision was based on “foreseeability of harm”, since working as the on-call physician in a hospital, receiving a call regarding whether a patient should be admitted implies that whoever is asking intends on taking the expert advice. [4] While the doctor had no relationship with the patient, his judgment and actions impacted them significantly. The Minnesota Supreme Court opined that this logic also applies to legal professionals. In legal malpractice claims, attorneys owe their clients duty regardless of their status as their client during situations where ‘expert opinion’ and ‘professional’ advice is given, and thus one can reasonably expect that advice to be followed by the non-expert client. Other professionals can and should be held to this standard, especially when acting in a professional capacity. 

According to the decision in Warren, all people, especially professionals, are responsible for the consequences of their workplace decisions that are made in a position of authority over their client due to their occupation, and could therefore cause injury to them. [5] In essence, this argument promotes the idea that professionals are liable for their acts, whether directly or indirectly, under the standard of foreseeable harm to their clients who depend on their advice. A physician-patient relationship need not exist directly to place liability, and the analysis uses the idea that other professionals, physician or not, are indirectly culpable for the consequences of people taking their professional advice.

It is clear that doctors who directly examine and treat patients are liable for medical malpractice lawsuits, and other cases have extended the meaning of what situations qualify for a sound basis for medical malpractice claims. In a similar case, Irvin v. Smith (2001), the Kansas Supreme Court heard a case involving a physician responding to an informal consultation from another physician. [6] While the physicians in question were found not liable, in its decision, the Court explained that indirect consultations, such as a phone call, communication through family members, or consultations through other healthcare professionals “does not preclude the finding of a physician-patient relationship”, and thus implies that in other specific situations, the physician could be held liable. [7] 

The standard in which a patient can possibly sue a physician for medical malpractice and negligence, as shown in Warren and Irvin, includes physical examination, treatment, indirect consultation via phone to another physician or even to other healthcare providers. Generally speaking, a physician can be held liable when their negligent professional advice, formally or informally used, logically leads to preventable harm. As previously mentioned, it is not the title of the physician itself that opens them to malpractice, but the decisions they make and the advice they give in a professional capacity. Thus anyone making these types of decisions, physician or not, should be held accountable in a comparable manner. 

As the healthcare landscape changes, nurse practitioners and other types of APRNs do much of the same tasks that are associated only with physicians. In many states, nurse practitioners can sign death certificates, institutionalize patients for mental health concerns, independently prescribe schedule II drugs, and in general, can serve as a primary care provider. [8] [9] [10] While institutional rules at particular hospitals might address this, many states don’t require APRNs to be supervised by physicians at all and many institutions authorize nurse practitioners with hospital admission privileges. [11] [12] Ironically, hospital admitting privileges is what started the cascade of events that led to the Warren case. Logically, as APRNs are now performing many of the duties for which patients are holding physicians accountable, sometimes independent of physician oversight, they should then be held to the same standard of legal scrutiny for their professional decisions. 

As APRN roles and responsibilities expand in authority and independence across the United States, so should their legal responsibilities to the patients they care for. Due to the changing medical landscape, the primary provider role has been increasingly shifting to include APRNs — and physician assistants, who differ in medical education and oversight law — as independent providers to many physician-deprived and even urban areas. States have varying laws regarding APRN independence and medical authority, and these rules are often institution-dependent. By and large, the complexity and variation of these rules has led to a stunning lack of coherent national and state judicial precedent dictating the legality of non-physician medical malpractice law. Because of the increasing medical authority of many classes of APRNs, they are often making life-or-death decisions for patients. Thus, additional consideration needs to be made in regards to bringing unlawful death or damage lawsuits against APRNs in the medical setting for flawed decision-making, especially in the states in which APRNs have increased independence and medical authority.  

Edited by Alexander Liebeskind

[1] Hilary Barnes, Michael R. Richards, Matthew D. McHugh, and Grant Martsolf. “Rural And Nonrural Primary Care Physician Practices Increasingly Rely On Nurse Practitioners.” 37 Health Affairs, 1 (2018)

[2] Advanced Practice Registered Nurse (APRN) Licensed General Information. Minnesota Board of Nursing, online at https://mn.gov/boards/nursing/advanced-practice/advanced-practice-registered-nurse-(aprn)-licensure-general-information/ (visited February 5, 2021)

[3] Warren v Dinter, 5, 9 10 (Minnesota Supreme Court 2019)

[4] id.

[5] id.

[6] Irvin v Smith (Kansas Supreme Court 2001)

[7] id.

[8] Oregon State Legislature. 678.375 (3) Accessed May 11, 2021. https://www.oregonlegislature.gov/bills_laws/ors/ors678.html. 

[9] Oregon State Legislature. 426.005 (B), 426.232 (A) Accessed May 11, 2021. https://www.oregonlegislature.gov/bills_laws/ors/ors426.html. 

[10] Arizona Administrative Code. R4-19-512 (A, B, C) Accessed May 11, 2021. https://apps.azsos.gov/public_services/Title_04/4-19.pdf.  

[11] Alaska Statutes: AS 08.68.265. Accessed May 11, 2021. http://www.touchngo.com/lglcntr/akstats/statutes/title08/chapter68/section265.htm. 

[12] Minnesota Department of Health, Office of Rural Health and Primary Care - Rural Health Advisory Committee (RHAC). RHAC Brief: Nurse Practitioners in Rural Minnesota – Results of an Employer Survey. Online at https://www.health.state.mn.us/facilities/ruralhealth/rhac/docs/npbrief.pdf (visited May 11, 2021).