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Minimizing Risk When Using Medical Assistants in Nevada
Running a practice requires support but it is important to understand the liability for the actions of your medical assistants on staff in Nevada.
If you practice conscientiously and within the standard of care as a physician, you shouldn’t be held liable for medical malpractice, right? You might think that if you do your job in accordance with your oath, experience, judgment, and training that you’ve insulated yourself from liability. However, it’s not that simple. It is important for physicians to recognize that the use of medical assistants can increase the risk associated with their practice.
Physicians have incredibly complex jobs and they cannot do them in a vacuum. Physicians need someone to answer the phones, check in patients, take care of billing, take vital signs, and contribute to a patient’s medical chart. No physician could practice without support. Physicians must be mindful, however, that their responsibilities are broader than their own care and treatment of their patients. This article examines how a physician may face liability for the actions or omissions of his or her medical assistants(MAs).
1. Risk of Medical Malpractice Lawsuit
Inadequate supervision of a MA or the delegation of inappropriate tasks to a MA can expose you to medical malpractice liability. If a MA you are supervising is negligent, as the supervising physician, you will be liable in any lawsuit that results. This legal theory is called vicarious liability. You may also face liability for your own negligent supervision of the MA’s actions.
For example, in Wong v. Chappell, a trial court allowed the question of whether it was negligent to allow the MA to assess the severity of a patient’s symptoms to go to the jury. The MA was not a defendant in the matter, and the issue was being decided to determine if the physician’s delegation or supervision was itself negligent. The issue arose when a post-procedure patient contacted the Defendant physician’s practice to report complaints of pain and bleeding and the MA advised the patient without consulting with any physician. Although no physician Defendant was made aware of the patient’s complaints or spoke to the patient, they were exposed to liability for what did and did not take place during that phone call.1
Another example is found in The Estate of John Swanzy case in which claims were brought against a medical practice when a MA answered the phone and incorrectly directed the patient’s wife regarding the dosage of the patient’s insulin, resulting in his death.2 The Plaintiff brought claims against the practice and against the supervising physician, but not against the MA even though the MA had advised the patient to take 100 times the recommended amount of the newly-prescribed medication.
In Nevada, it is rarely even litigated whether a physician or medical practice is liable for the actions of MAs. It is accepted by counsel, insurance companies, and judges that a physician is vicariously liable and responsible for the assistant’s actions and that physicians have the duty of supervision.
This type of liability also arises in situations in which a patient falls in the practice while being moved by the MA. This scenario can be particularly troublesome if the facts point to simple negligence rather than medical malpractice or professional negligence, because simple negligence claims have no caps on damages like medical malpractice claims do.
Lastly, the claim of negligent hiring, retention and supervision may be brought against a physician or a practice for hiring assistants that are unqualified, untrained, or unsupervised.
2. Risk to Your Medical License
The delegation of care to a MA who is not qualified to perform that care is grounds for disciplinary action by the Nevada Board of Medical Examiners.3
The law sets forth duties and rules regarding a physician’s use of a MA. In Nevada, a “medical assistant” is defined as a person who performs clinical tasks under the supervision of a physician or physician assistant and does not hold a license to perform those tasks. The term does not include employees who perform administrative or other nonclinical tasks.4 Therefore, by definition, a MA must be supervised by a physician or physician assistant (PA) when performing clinical tasks (Nevada law also requires a physician to supervise a PA).
It is your duty as a physician to properly supervise your MAs. Nevada deems it “Prohibited Professional Conduct” to allow any person to act as a MA in the treatment of a patient unless the MA has sufficient training to provide the assistance.5 This requires that physicians know the level of training and expertise of their MAs and only delegate tasks to assistants that are qualified to perform those tasks. Nevada also deems it “Prohibited Professional Conduct” to fail to provide adequate supervision of a MA who is employed or supervised by the physician or PA.6
A MA may not make a diagnosis, initiate treatment, or prescribe any drug.8 As a physician supervising a MA, you cannot delegate that supervision without the knowing acceptance of the duty to supervise by the delegee.9 A MA is not permitted to delegate his or her own tasks.10 A MA may not administer an anesthetic agent which renders a patient unconscious or semiconscious.11
In summary, your MA is an extension of you, and is legally part of the care and treatment you provide to the patient. The MA must be supervised by you and must be qualified to perform assigned tasks. The Rules governing physicians and PAs specifically state that a delegating practitioner retains responsibility for the safety and performance of each task assigned to a medical assistant.12 If your supervision or delegation is improper or if the MA is negligent in their care of the patient, you could face both civil liability in the form of a medical malpractice lawsuit and disciplinary action against your license to practice medicine.
How do you protect yourself?
1. Familiarity With Your MAs
You don’t need to pull out a MA’s chart every time you delegate a task to determine if they are qualified to do the task. We all know that isn’t feasible. What can you do then to make sure you’re in compliance with the requirements without bogging down your patient flow?
Meet with your practice administrator to discuss the qualifications of the MAs periodically, and include notes in the assistant’s employee file. Get to know your assistants and their backgrounds. That will likely have the added benefit of smoother operations in the office as well as a more collegial atmosphere. Most importantly, that may give MAs the level of comfort they need to come to you with a potential problem, averting mistakes before they happen and mitigating risk for all involved.
2. Exercise Caution Regarding What Tasks are Delegated
Take the time to familiarize yourself with the tasks that may and may not be delegated to medical assistants. Test and document competency on tasks the MA will be assigned, both at the start of employment and periodically after that.
Have your office provide periodic training to MAs on subjects they would use in their everyday duties. Save the materials in their personnel files, so when a Plaintiff’s attorney asks you if you trained your MAs and how you did, you can answer easily and comprehensively. This training can be outsourced or coordinated by your practice administrator and have little impact on your own workload, but can add a layer of protection for you in that the MAs will be better trained.
1 Wong v. Chappell, 333 Ga. App. 422 (2015
2 Estate of John Swanzy v. Kryshak, 336 Mich. App. 370 (2021)
3 NRS 630.305(1)(f)
4 NRS 630.0129
5 NAC 630.230(g)
6 NAC 630.230(h)
7 NAC 630.810(1)
8 NAC 630.810(4)
9 NAC 630.830(2)
10 NAC 630.830(3)
11 NAC 630.830(4)
12 NAC 630.830
The content of this publication or presentation is intended for educational purposes only; is not an official position statement of Mutual Insurance Company of Arizona (MICA); and should not be considered or relied upon as professional, medical, or legal advice or as a substitute for your professional judgment. Consult your attorney about your individual situation and the applicable laws. The authors, presenters, and editors made a reasonable effort to ensure the accuracy of the information at the time of publication or presentation but do not warrant or guarantee accuracy, completeness, or currency of such information. As medical and legal information is constantly changing and evolving, check for updated information and consult your attorney before making decisions.