When looking at the second factor—foreseeable harm—the court noted that Dr. C admitted that his failure to adequately supervise and review Ms. B’s charts, as required by their collaborative practice agreement, could result in harm to her patients. This also pointed toward a duty by the physician, because he knew his action or inaction could affect Ms. B’s patients.
Finally, the court looked at public policy and noted that the legislature had created a detailed list of requirements that a collaborative practice agreement must fulfill. The reason, the court noted, is to protect and ensure the safety of the public.
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Based on this, the court rejected Dr. C’s argument that he did not owe a duty to the patients of Ms. B with whom he had a collaborative practice agreement, and it ruled that the case could proceed against him.
The lawsuit is not over, however. The case has been sent back to trial court where a jury will decide the remaining issues: whether the clinicians breached their duty to the patient, and whether the breach was the cause of the patient’s death.
Protecting yourself
Collaborative practice agreements vary widely from state to state. In some states, nurse practitioners need a written agreement with a physician to diagnose, treat, and prescribe. In other states, physician collaboration is only needed for NPs to prescribe. Some states do not require collaborative practice agreements at all.
If you have a collaborative practice agreement with a physician, be sure you understand and follow the requirements, for the benefit of yourself, your patients, and your collaborative practice partner. Both Ms. B and Dr. C were aware that the agreement into which they entered required the physician to review a random 5% of Ms. B’s patient charts each week. Yet neither clinician took this seriously.
Had Ms. B pushed the physician to look at the charts, he might have spotted a dangerous prescribing behavior that could have better protected Ms. B’s patient and thus, protected Ms. B from a lawsuit. In the case of Dr. C, it is even clearer why he should have complied. The Court of Appeals held that, had he fulfilled his legal obligation to review the required number of charts and found nothing wrong, he would not be liable for malpractice committed by Ms. B in the care of a patient whose chart was not reviewed.
Although malpractice in this case has not yet been established, nor may it ever be established, this case is an example of how necessary it is for both parties to comply with all requirements of a collaborative practice agreement.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.
