Vicarious Liability for Medical Assistant Negligence August 30, 2024 Practice Management, RCMA/CMA, Resources, Risk Management 0 This informative article is provided by ProAssurance Download Article Medical assistants (MAs) can increase medical practice efficiency, patient satisfaction, and patient care quality. Increased satisfaction and quality can reduce malpractice liability risk. But MAs can also increase liability risk for their supervising/delegating clinicians and employers. Physician employers of MAs may be found vicariously liable for MAs’ negligent actions and may also be directly liable for negligent supervision, delegation, hiring, and/or training of MAs. Additionally, MAs who exceed their own scope of service to the degree that they are practicing medicine (or nursing), can expose the person delegating tasks to charges of aiding and abetting the unlicensed practice of medicine (nursing), which can result in board discipline and criminal prosecution. MAs who perform tasks outside of their scope can be charged with the unlicensed practice of medicine (nursing), which is a crime. This article focuses on what employers can do to reduce vicarious liability risk associated with MAs. In the most general sense, vicarious liability allows an injured patient to hold a third party (e.g., a physician) financially responsible for the negligence of the person who caused the injury (e.g., an MA). Vicarious liability arises in a variety of legally recognized relationships. In malpractice litigation, vicarious liability is most frequently associated with an employment relationship. In other words, liability for patient injuries flows through the employee (by virtue of the employment relationship) to the employer. Vicarious liability is an entirely dependent theory of liability — a finding of liability is not based on improper action by the principal. For example, if a physician appropriately hires, trains, supervises, and retains an MA, but the MA still causes a negligent patient injury, the propriety of the physician’s management of the MA will not shield the physician from vicarious liability. Similarly, if the MA did not negligently cause the patient injury, vicarious liability does not attach to the physician1. In many medical malpractice actions involving patient injuries caused by an MA, the plaintiff's attorney will simply name the employer of the MA as a defendant instead of naming the MA. Although the attorney must prove the MA’s negligence caused or contributed to the injury, the attorney will seek damages via a vicarious liability claim against the employer. Because vicarious liability is automatic in an employer-employee relationship, taking steps to decrease the risk of employee-related harm to patients is essential to minimizing exposure to vicarious liability claims2. For example, an employer (e.g., a physician group, solo practice, etc.) would strive to hire competent MAs and keep them adequately trained and managed via patient safety policies and protocols. Of course, patient injuries cannot always be prevented. If a lawsuit is filed, to support defense arguments that an MA’s treatment of the patient was consistent with the standard of care, MAs should be trained to appropriately document their encounters with patients, appropriately respond to unanticipated outcomes, and otherwise engage in risk reduction strategies. Case Study Medication errors are common in malpractice claims involving MAs. In the following case study, a family practice physician (FP) did not believe he should have been named in the lawsuit, because his MA independently caused the medication error. However, as the MA’s employer, he was vicariously liable. Consider what the FP could have done to reduce his vicarious liability risk. Allegation: An MA negligently called in an incorrect dosage of warfarin to the pharmacy, which resulted in toxicity. An FP had been prescribing warfarin 2 mg per day to an elderly patient for many years. The patient called the office one day and spoke to an MA. The patient requested a refill of warfarin 10 mg. The MA did not review the patient’s record (which was counter to office policy and her MA training) to verify what strength of warfarin the patient was taking. The MA called in the 10 mg prescription to the pharmacy, which filled it. The patient took 10 mg warfarin daily for two weeks, which caused a gastrointestinal bleed requiring surgery, multiple hospitalizations, and extensive rehabilitation. The patient sued the FP and the MA, alleging the MA negligently called in the wrong prescription, and the FP (her employer) was vicariously liable for the incorrect refill because the MA was acting in the course and scope of her employment when the prescription was called in. Discussion The defense team believed it would be very difficult to defend the vicarious liability claims against the FP because failing to check the correct dosage before calling in the prescription was considered negligent by experts, the defendant physician, and the MA herself. If the MA had cross-checked the request for a 10 mg dosage with the order in the patient record and noted it was different, she would have then called both the patient and the FP to confirm the difference in dosage was appropriate. In other words, it is likely that this injury would not have occurred if the protocol had been followed. Cross-check protocols were in place to promote patient safety. Unfortunately, there were no redundancies in the system to catch the type of error that occurred: The MA was authorized to call in refills for warfarin without the physician’s approval, and the physician would not have seen this request because it was identified as a “refill.” The MA admitted she was previously trained during school and at the FP’s office to always cross check the requested refills with the prescription from the physician in the patient file, but she failed to do so in this case. It is also likely that this was not the first time the MA failed to cross check a requested refill. However, because neither the FP nor the office manager were monitoring the MA’s compliance with medication protocols, there were limited opportunities to prevent this type of error. One would hope that the pharmacy would have caught an error like this but, in this case, it did not. Experts noted that 10 mg of warfarin would have been a highly unusual dose for this patient, whose INR had historically been maintained on 2 mg. Although the pharmacy was named as a defendant in the lawsuit, the pharmacy negligence did not supersede the MA’s negligence. Risk Reduction Strategies In most cases, MAs act responsibly, but sometimes they cut corners, or unintentionally fail to follow protocols. MAs, under the direct supervision of a clinician, should only call in routine refills that are exact, patient-specific, have no changes in the dosage levels, and have been authorized by the clinician. Consider the following strategies:3,4,5 Hire people who are trustworthy and qualified. Provide ongoing scope of service training and education. Ensure the office protocol for prescription refills reflects proper clinician supervision and does not allow MAs to exceed their scope of service. Regularly audit employee performance and compliance with policies and protocols. Consistently coach, further educate, and discipline, if necessary, those who don’t comply. Consider a “Just Culture” approach to managing performance. Research whether systems issues are making compliance difficult. Remove barriers to perform duties successfully and safely without cutting corners. Find ways to reiterate that refill protocols must be followed, for example, by integrating them in daily safety briefings. Even if an MA has been through a training program or has work experience, provide job-specific training, which includes an introduction to administrative and patient care protocols. Do not rely solely on shadowing or ad hoc training. Initially assess and regularly reassess MA competencies. To assess the MA’s compliance with scope of service and competency requirements, develop a performance appraisal form based on the MA’s job description. Retrain and retest MAs who do not meet expectations. Document the process of ascertaining competency and compliance. Periodically review and update performance appraisal forms to align with the MA’s current job duties. MA competence to perform a delegated task must be initially assessed and then reassessed on a regular basis. Effective communication, supervision, and training among administrators and healthcare team members based on thorough, workable policies and procedures can further diminish the liability and patient safety risks MAs can introduce into healthcare settings. Applying the risk reduction strategies outlined here can potentially minimize the incidence of adverse outcomes and increase the probability of successfully defending malpractice claims should they occur. 1Thornton RG. Responsibility for the acts of others. Proc (Bayl Univ Med Cent). 2010; 23(3): 313-315. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2900989/. Accessed June 28, 2022. 2Thornton RG. Responsibility for the acts of others. Proc (Bayl Univ Med Cent). 2010; 23(3): 313-315. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2900989/. Accessed June 28, 2022. 3Ballantyne DE, Callahan CM, Wallace C. Are These Risks on the Office Practice’s Patient Safety Radar Screen? Inside Medical Liability. 2018; 22-26. https://www.ecri.org/Resources/In_the_News/Are-These-Risks-on-the-Office-Practice-Patient-Safety-Radar-Screen.pdf. Accessed June 28, 2022. 4Boysen PG 2nd. Just culture: a foundation for balanced accountability and patient safety. Ochsner J. 2013; 13(3): 400-406. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3776518/. Accessed June 28, 2022. 5The Joint Commission. Daily safety briefings ― a hallmark of high reliability. June 2017. https://www.jointcommission.org/-/media/tjc/documents/newsletters/quick_safety_issue_34_2017_safety_briefings_finalpdf.pdf?db=web&hash=9464C65B495614616CC30CDD8D7D42F8&hash=9464C65B495614616CC30CDD8D7D42F8. Accessed June 28, 2022. The information provided in this article offers risk management strategies and resource links. Guidance and recommendations contained in this article are not intended to determine the standard of care, but are provided as risk management advice only. The ultimate judgment regarding the propriety of any method of care must be made by the healthcare professional. The information does not constitute a legal opinion, nor is it a substitute for legal advice. Legal inquiries about this topic should be directed to an attorney. Comments are closed.
