Jeffrey G. Nicholson‘s Dissertation

CHAPTER II

REVIEW OF THE LITERATURE
Chapter II, the review of current literature, provides a basis for this study. Chapter II is
divided into four main sections with several sub-sections within each category. The first section
provides an historical underpinning of the Physician Assistant professional field. The second
section analyzes the current impact of PA utilization on the nation’s health care work force. Risk
management is the main topic of the third section. The fourth section synthesizes literature
related to medical misconduct and malpractice. The final section outlines the extent of practice
safety education in the PA profession. The chapter summary integrates the section together in
preparation for Chapter III, study methods.

Evolution of the PA Profession
Unlike physicians, osteopaths, and nurses, PAs have a relatively short professional
history. Beginning with four trained military corpsmen in 1967 the ranks of PAs have swelled to
over 60,000 certified practitioners in 2007 (AAPA, 2007). This type of growth is unprecedented
for any other health care field including nursing, physical therapy, and dentistry (Medical News
Today, 2004). Federal health policy changes served to spur the profession forward. Following
the 1964 Stead beginning discussed in Chapter I, the first legislative support for the PA
profession was the 1966 Allied Health Professionals Act (PL-751). This public law encouraged
the development of training programs aimed at new types of primary care providers. The Health
Manpower Act (PL-490) was passed in 1968 funding training for health care providers including
PAs (Shafrin, 2006a). This year also saw the incorporation of the American Academy of
Physician Assistants (AAPA), the singular organization that represents all PAs in the United
States. Important marketplace movements also supported the early fledgling PA profession. In
1970 Kaiser Permanente became the first health maintenance organization (HMO) to employ
PAs (Shafrin, 2006a). This led to the 1972 development of certifications for accredited PA
educational programs under the auspices of the National Board of Medical Examiners (AAPA,
2007).

Further federal legislative issues followed in successive years with the 1976 Professionals
Assistance Act (PL94-484) which provided monetary support of PA education, and the
watershed 1977 Rural Health Clinic Services Act (PL95-210). The Rural Health Clinic Services
Act was a major turning point for a profession that up until 1977 was struggling to be reimbursed
by Medicare, state Medicaid programs, and many private insurers. This act provided Medicare
reimbursement for PAs and nurse practitioners that provided services in rural clinics (Shafrin,
2006a).

Almost nine years transpired before the 1986 Omnibus Budget Reconciliation Act
(PL99-210) allowing for Medicare Part B reimbursement for PA services in hospitals and
nursing homes. In the following year (1987), the federal government strengthened this legislation
by allowing Medicare reimbursement to PAs in a larger portion of the rural underserved areas
and designated health professional shortage areas (HPSAs) (Shafrin, 2006a). It should be noted
that though HPSAs are found in many rural locations, many also exist within metropolitan areas
(Shafrin, 2006a). A full ten years later the Balanced Budget Act of 1997 (BBA97) became law.
In this most recent Federal act affecting PA practice, PA reimbursement rates increased to 85%
of that of physician costs across all practice settings. Previous to the BBA97, PAs were
reimbursed at 75% in hospitals, 65% for assisting in surgery, and 85% for work in skilled
nursing facilities (Shafrin, 2006a).

Throughout the ensuing years, the PA profession worked to ensure that PAs were able to
practice in every state. Mississippi was the last state to enact legislation to authorize PA practice,
and this occurred in the year 2000 (AAPA, 2007). The PA profession has enjoyed unparalleled
success in the last 40 years. While the numbers of certified and registered professionals grew, the
acceptance of this professional as more than a physician extender also grew. The profession is
well-positioned to address critical issues of affordability, access, and quality. However, the PA
profession, similar to other professional medical entities, is plagued by factors that prevent
further growth. These include (a) lack of schools and universities that can subsidize their
expensive training programs; (b) lack of growth of new training programs; and (c) lack of
appropriate faculty to train the next cadre of practitioners. Similar to the physicians that the PA
profession found a niche to fill, there now appears to be the problem of more demand and not
enough practitioners (Crane, 2007).

Training and Certification
PAs spend an average of 25 months in core curriculum following a shortened form of
traditional medical education. The foundational emphasis has been as a generalist serving in
primary care (Simon & Link, 2001). To be accepted to a PA training program, most students
already have at least two years of health care or health care related experience. Competition is
fierce for acceptance with a reported five applicants for every open position nationwide. Because
of the close working relationship PAs have with physicians, PAs are educated in a medical
model designed to complement physician training. PA students are taught, as are medical
students, to diagnose and treat medical problems (AAPA, 2000). Education consists of classroom
and laboratory instruction in the basic medical and behavioral sciences (such as anatomy,
pharmacology, pathophysiology, clinical medicine, and physical diagnosis), followed by clinical
rotations in internal medicine, family medicine, surgery, pediatrics, obstetrics and gynecology,
emergency medicine, and geriatric medicine. To become accredited as a PA, a student must pass
the national certifying examination of the National Commission on the Certification of Physician
Assistants, an independent accrediting body. To remain certified, every PA practitioner must
complete 100 hours of continuing medical education every two years and pass a recertification
examination every six years (AAPA, 2007).

PA Impact on the Healthcare Workforce
Prior to PA and NP licensure, the only individuals permitted by law to perform a variety
of medical procedures were physicians. But PAs now practice medicine in more than 60
specialty fields, treating patients with diverse disorders (AAPA, 2007). Table 1 provides a
snapshot of where PAs were employed as of 2007, the most recent year that accurate data are
available. It is interesting to note that the most common employer listed was a single specialty
physician group. Hospitals, as employers came in second, while other physician groups followed.
Community health clinics employ close to 6% of PAs reported in the 2007 AAPA Census. The
data indicate that PAs have moved beyond serving rural and underserved areas to a demographic
pattern similar to physicians.

Table 1. Summary of Physician Assistants by Treating Area
Primary Employer		Percentage
Single Specialty/physician group	31.0%
Other hospital	14.2%
Solo physician practice	12.6%
Multi-specialty physician group	12.9%
University hospital	8.6%
Community health center	5.8%
Self-employed	2.9%
HMO	1.9%
Freestanding urgent care center	1.9%
Other	18.2%
______________________________________________________________________________
Note. These are aggregated data from the 2007 Census of the AAPA as reported by the AAPA (2007) “Other hospitals” include those acute care centers not otherwise categorized in the list. “Other” includes federal facilities such as prisons and the military, medical staffing agencies ,nursing homes, home health agencies and practice management, and unreported.

Physician assistants are beginning to specialize into diverse fields of medicine. Table 2
provides information that reviews the most recent reported specialty practice areas of PAs. While
family medicine remains the most common medical field of practice, surgical subspecialties and
almost all areas of medicine are represented by PAs.

Table 2. Summary of General Specialty Areas of PA Practice
______________________________________________________________________________ Area of Practice Percentage
Family medicine	24.9%
Surgical subspecialties	22.2%
Other	12.8%
Internal medicine subspecialties	11.3%
Emergency medicine	10.3%
General internal medicine	6.9%
General surgery	2.7%
General pediatrics	2.4%
Obstetrics and gynecology	2.4%
Occupational medicine	2.4%
Pediatric subspecialties	1.6%
______________________________________________________________________________
Note. These are aggregated data from the 2007 Census of the AAPA as reported by the AAPA (2007). The “other” category includes all areas that PAs may practice that are not included in this list.

PA annual income for a full-time practitioner is found in Table 3. This represents data
retrieved from the AAPA website and based on its annual census (2007). The living wage of PAs
is rising, offering an upper middle-class standard of living.

Table 3. Reported Annual Income (Full-time PAs only)
Benchmark		Amount
Mean	$86,214
10th percentile	$64,374
25th percentile	$71,908
Median	$82,223
75th percentile	$96,010
90th percentile	$112,889
______________________________________________________________________________
Note. These are aggregated data from the 2007 Census of the AAPA as reported by the AAPA (2007).

Cost Effectiveness
The last decade of health claims analysis has found physician extenders to be a costeffective
strategy to reducing overall health care expenses. Though salaries started relatively low
15 years ago, PAs now enjoy salaries that approach those of newly trained physicians (Sultz &
Young, 2006). It seems this ongoing trend of salary growth will go unchecked unless there are
other, unforeseen economic pressures, or an unanticipated surplus of physicians. Realistically,
PAs supported by evidenced-based practice guidelines and computerized treatment protocols
may become the patient’s first point of entry into the health care system (Amara, 2000).
Health policy analysts have been interested in health care costs and methods to reduce
costs while providing effective care. Hooker (2000) completed a thorough review of literature
focusing on cost effectiveness in the use of PAs. The cost benefit model used by Hooker
suggests that PAs can perform at least 75% of a physician’s tasks at a cost of 44% of the
physician’s salary. He extrapolated the data finding a cost-benefit to using PAs, pointing out that
the cost of training a PA is one-fifth the cost of that to train an allopathic physician. Due to the
difference in length of training between PAs and physicians, the PA will provide five years of
patient care valued at $380,000 (1999 U.S. dollars) before the physician completes training.
Thus, factors to consider in the cost-effectiveness of PAs include the compensation-toproduction
ratio which establishes the PA as a cost-effective clinician.

The Hooker cost benefit model was used by this study to determine if PAs negate their
cost effectiveness through the costs of malpractice. In brief, the Hooker model, based on a
comprehensive view of the literature, asserts that PAs are at least 75% as productive as
physicians, are capable of managing at least 83% of all primary care encounters, and are salaried
at least 50% less than physicians (Hooker & Cawley, 2003).

Researchers Anderson and Hampton (1999) provided an alternate view to costeffectiveness
of PA in their work analyzing reimbursement for PAs and NPs. Though their
research supported other research efforts (e.g., Pan, et al., 1996) noting that there is a significant
rural-urban difference between payment sources and use of PAs and NPs, they had surprising
results when considering prepaid and HMO reimbursements. They found that prepaid or HMO
reimbursement had no affect on utilization as to whether a client saw a physician versus an NP or
PA. They observed this phenomenon in both rural and urban settings. After controlling for other
influences, this study did show that physicians, PAs, and NPs are each as likely as the other to be
present at a rural managed care visit. However, physicians are much more likely than PAs or NPs
to be present at an urban managed care visit (Anderson & Hampton, 1999).

PAs Cost Effective Impact on Rural America
Rural America has benefited from the advent of PAs. Researchers Bergeron, Neuman,
and Kinsey (1999) studied survey data from 285 small rural hospitals along with case studies
from 36 of those hospitals to determine the extent to which physician extenders benefited those
facilities. In the aggregate study, 70% of the surveyed hospitals used nurse practitioners, 30%
used PAs, and 20% used both. The hospitals in this study reported that the use of physician
extenders reduced recruitment costs, operating costs, and staffing needs of those hospitals. A
further benefit noted was that physicians cover only half of their own costs in the first year of
practice, while PAs generate enough revenue to cover their own costs in year one of
employment. Once hired, PAs reduced the average cost of operations by over 40% (Bergeron,
Neuman & Kinsey, 1999).

Supporting these findings, Staton, Bhosle, Camacho, Feldman, and Balkrishnan (2007)
completed a comprehensive study of the PA profession and its effect on rising health care costs
and inaccessibility of many patients to physician services. These researchers performed a
retrospective analysis of the National Ambulatory Medicare Care Survey Data (1997–2003) on
outpatient visits. The researchers found that patients who paid out-of-pocket had higher odds of
visiting PAs compared to patients with private insurance. Further, patients in rural areas were
more likely to visit PAs than were patients in urban areas. The researchers concluded that
“considerable use is made of PAs in all settings, and they tend to be utilized in otherwise
underserved, rural populations who do not have health insurance” (p. 34).

Patient Satisfaction
Patient satisfaction and acceptance of the PA profession has helped propel the profession
forward. The first patient satisfaction survey conducted soon after the first PA class graduated
found that upper middle class communities more readily accepted PAs (and NPs) than lower
middle class communities (Hooker & Cawley, 1997). Patient satisfaction surveys that date back
to 1972 noted an inverse proportion of satisfaction when compared to the complexity of the
needed service. That is, patients were less satisfied with care the greater the medical care need.
However, these are very old data and may hold little relevance to today.

Work by Hooker, Potts, and Ray (1997) examined patient satisfaction comparing PAs,
NPs, and physicians. Through a mailed questionnaire method, members of a large HMO were
surveyed regarding their satisfaction with care provided in 1995 and 1996. The findings suggest
that patient satisfaction is dependent more on communication and style than type of provider.
Thus, the authors suggest that policy decisions should move toward incorporating PAs and NPs
into more medical practices as patient acceptance is gained (Hooker, Potts, & Ray, 1997). A
study published in 2000 investigated patient satisfaction with PAs and wait times in an
emergency department of a hospital. The findings reported that patients were very satisfied with
care rendered by PAs, and few patients were willing to wait longer to see physicians versus PAs
(Counselman, Graffeo, & Hill, 2000).

Managed care organizations (MCOs) have been working on methods to redesign primary
care delivery systems while improving patient satisfaction. One of the cost-containment
strategies targeted by MCOs is the use of associate practitioners, PAs and NPs, in care delivery
systems. A study by Roblin, Becker, Adams, Howard, and Blumberg (2001) studied this MCO
strategy. Their findings indicated that indeed PAs and NPs were a viable option for MCOs to
employ, and that patients were very satisfied with this service delivery mode.

Risk Management and the PA
Risk management is a broad term that explores risk, risk assessments, and developing
strategies to reduce potential problems or negative results (U.S. EPA, 2004). For the PA
profession, risk management is related to analyzing the risk of practice and developing methods
to eliminate or significantly reduce the chance of liability or lawsuits. The PA profession has
been taking steps toward risk management as a profession. Licensure for PAs in all 50 states
assured that licensed and certified PAs had at least a basic PA education and had passed rigorous
licensure exams (Hooker & Cawley, 1997). Physicians had been licensed since the late
nineteenth and early twentieth century. Thus, the PA profession recognized the value of licensure
and followed other health care professions that were also in the midst of state licensure efforts.
Licensure and state practice acts protect the public against quackery, commercial
exploitation, deception and professional incompetence. Licensure boards have created methods
for consumers, peers, providers, and the health insurance industry to report PAs who may be in
violation of practice acts or been detrimental to the public good. Such reporting mechanisms
complete with discipline procedures allow for the profession to perform internal risk
management.

Unlike physician licenses, PA licensure is more complex (Hooker et al., 1997). Current
contemporary issues for PAs concern the distribution of job tasks and duties. Physicians have
unlimited licenses to perform all functions; the critical questions are what functions they may
delegate to physician assistants, and under what conditions such delegations may occur.
Functions within the scope of PA practice may be either “independent” or “dependent” of a
supervising physician’s orders, direction, or supervision (Kohlhepp, Rohrs, & Robinson, 2005).
Autonomous yet dependent is a phrase often used to describe the PA scope of practice
relationship with the supervising physician. The complexity of this relationship continues to be
examined for both the PAs and their physician counterparts. Ongoing efforts to further define
distribution of tasks, while ensuring that state practice acts stay current, is an area that requires
ongoing risk management analysis by PAs.

Communication
Communication is the key element to all risk management efforts. Multiple studies
demonstrate that effective communication with patients is the best way to avoid malpractice
claims (Lester, 1993; Kaplan, Greenfield, Gandek, et al., 1996; Frankel, 1995). Communication
was one of the earliest values given for the hiring of PAs. It was speculated that a PA could
reduce the risk of malpractice judgments for supervising physicians since the mere presence of
PA allowed the physician more time to concentrate on more complicated cases (Charles,
Gibbons, Risch, et al., 1992). Further, the thought was that PAs might prevent patients from
feeling rushed or deserted during a physician visit.

The AAPA Guidelines for Ethical Conduct state that PAs should disclose errors to
patients if such information is significant to the patient’s interest and well-being. Through
serious consideration, the AAPA Government Affairs and Reimbursement Committee (GARC)
presented a policy paper regarding acknowledging and apologizing for Adverse Outcomes (Gara,
2007). The committee put forward a policy that was adopted by the AAPA in 2007. The policy
encourages PAs to apologize for errors. The policy also supports laws that limit the admissibility
of such apologies in lawsuits (Gara, 2007).

This AAPA work mirrors the current national movement called Sorry Works (Braxton,
Poe, & Stimmel, 2007). A majority of states have adopted or are considering apology laws that
exempt apologies, expressions of regret, sympathy, or compassion from being considered as
admission of liability for medical malpractice lawsuits. The intent of the legislation is to
encourage physicians and other health care providers to sincerely apologize to patients. The idea
behind Sorry Works is that open, honest discussions are the best policy. These types of
conversations appear to reduce medical malpractice lawsuits (Braxton, Poe, & Stimmel, 2007).

Report Cards
Physician report cards are fast becoming a method for savvy consumers to assess how
well their own provider performs on evidenced-based measures (NCQA, 2007). The initiation of
such report cards met with large resistance in the 1970s when the Code of Ethics of the
American Medical Association (AMA) determined that “information that would point out
difference between doctors” would be strictly prohibited (Sultz & Young, 2006, p. 15). However
contentious, report cards and reporting on physician practices have become commonplace. For
example, Health Employer Data Information Sets (HEDIS) criteria are collected every year at
every primary care clinic across the U.S. (NCQA, 2007). State health departments are further
using these data to determine health care priorities and to investigate providers who are outside
the collected norms of the data. Several states have begun initiatives that further take the HEDIS
aggregate data dividing it into clinics and in some cases, providers. It will not be long before
individual PA data become readily available for consumers, providers, and other professionals to
view. It is this researcher’s belief that report cards will assist with appropriate assessment of PA
risk and promote the true value of PAs.

Medical Misconduct and Malpractice
In 1999, the Institute of Medicine released To Err is Human, which estimated that
medical errors in hospitals alone cause as many as 98,000 patient deaths and more than one
million patient injuries, at a cost of up to $29 billion each year (Kohn, Corrigan, & Donaldson,
2000). The last section of this review investigates medical misconduct and malpractice in the PA
profession. Medical liability insurance costs remain on a steep upward trend (Kessler, Sage, &
Becker, 2005). Rising costs are a concern for all health care professionals, particularly physicians
who bear the brunt of these costs (Moses & Feld, 2007). These increased costs are a direct result
of ever-increasing malpractice jury awards and a public perception that someone needs to pay
when an unfortunate medical outcome occurs (Sultz & Young, 2007). PAs are not immune from
these trends. As physicians explore ways to reduce their own risk exposure, there is push-back
for PAs to become individually responsible and liable for the care they provide without harming
an overseeing physician or increasing his insurance liabilities.

Brock (1998) wrote a seminal article on the malpractice experience of PAs. He examined
five years of data from the National Practitioner Data Bank (NPDB) that revealed that PAs had a
very low rate of malpractice judgments. He asserted that this factor would actually lead providers
to hire PAs as a way to reduce the risk of malpractice liability. Brock used data published in
1996 to determine that there were significant differences in malpractice experiences of PAs and
physicians. Brock (1998) found that one claim was paid for every 46.6 physicians, but only one
paid for every 808.1 PAs.

Cawley, Rohors, and Hooker (1998) also published an examination of the NPDB data in
1998. Their findings were similar to those of Brock. They examined NPDB data from
September, 1990, through December 1, 1997, and found that PAs had a mean malpractice
payment of $55,241 while that of physicians (MDs/DOs) was $139,581. By controlling for the
number of PAs and physicians in practice, they found that physicians had a malpractice payment
ratio of 2.4% while PAs had a ratio of only 0.76% (Cawley et al., 1998). One interpretation of
these data are that on average, PAs had one-third the liability cost of physicians for malpractice
payments. Another interpretation is that they carried one-third the risk of such payments over
that time period.

The Brock and Cawley findings are now a decade old and require revisiting. At the time,
only six years of data were available. Thus, this researcher integrated the findings of Brock and
Cawley as a foundation to studying the current experiences of malpractice claims. The number or
PAs in practice has expanded significantly since 1998, and three times the data are now available
in the NPDB for analysis than was available in 1998. Additionally, the earlier data which they
relied upon may have underreported the true malpractice of PAs due to confusion regarding
reporting requirements.

Historically, physicians were liable for the practice of the PAs that the physician
supervised. This may have led to an underreporting of actual cases where the PA was involved in
a medical error. The data that Brock and Cawley used were the first six years of NPDB existence
during which time the underreporting concern may have impacted these data. More recently,
there has been legislative movement to limit the liability of the supervising physician, shifting
the liability to the treating PA (Gore, 2000). As professionals, PAs welcomed this movement as
it ensured more accurate data that reflects PA practice alone that is not entwined with
confounding variables such as supervising physicians or health care facility reporting problems.
Inclusion of all available years of NPDB will therefore reflect a more accurate perspective of PA
malpractice than the data used by the researchers in 1998.

Research provided information about three legal theories that are used to impute
physician liability from a PA: (a) respondeat superior; (b) negligent supervision; and (c)
negligent hiring (Hooker, 2000). To assess a physician’s liability for PA mistakes, it is important
to understand each of these legal theories and the basis for the actions that distinguish these
theory applications from the typical claims.

The first legal theory is respondeat superior, a term referring to “let the master answer.”
This is a legal doctrine that states the principle or employer is liable for harms done by agents or
employees while acting within the scope of their employment. This doctrine has been used to
determine medical malpractice by holding a supervising physician liable for malpractice or
negligence of a PA that the physician supervises (Regan & Regan, 2002). Through this doctrine,
to hold a physician or other provider individually liable for malpractice, one must demonstrate
“(a) the standard of care, (b) that the provider deviated from that standard, and (c) that as a
proximate result of the provider’s negligent act or omission, the patient suffered injuries which
would not have occurred otherwise” (Regan & Regan, 2002, p. 546).

The case of MacDonald v United States demonstrates the successful use of the
respondeat superior theory. In this case, the patient was under treatment for a hiatal hernia with
reflux. The patient presented to the PA with severe upper abdominal pain for which the PA
prescribed laxatives for constipation and then attempted to discharge the patient. However, the
patient felt the pain was too severe and refused to leave; a subsequent electrocardiogram revealed
an evolving myocardial infarction. The patient suffered extensive heart damage. The physician
was found liable as the court stated that, “In this case the oversight required by the standard of
care was missing” (p. 548). Another case attests to the respondeat superior theory along with
standard of care issues. The 1994 case Oliver v Sadler resulted from an instance where a patient
had an anaphylactic reaction leading to multi-organ system failure. The patient claimed that she
was unaware that she had been treated by a PA and believed that the treating practitioner was a
physician. The jury found for the plaintiff.

Negligent supervision is the second legal theory that has been used to impute physician
liability for the actions of a PA. The legal relationship between physicians and PAs has become
well-established by tradition, case law, statutes, and regulations. Due to this dependent
relationship, in many cases the liability for PA negligence is imputed to the physician even if the
physician did not employ the PA. State laws vary with regards to negligent supervision. For
example, in Ohio, the law states, “A physician assistant’s supervising physician assumes legal
liability for the services provided by the PA.” In Vermont, the supervising physician delegating
activities to the PA shall be legally liable for such activities of the PA, and the PA shall in this
relationship be the physician’s agent” (Younger, 1997, p. 380). Since the work of Younger, the
practice of PAs has changed such that many state laws no longer directly require the direct
supervisor/supervisee relationship between PAs and physicians. With federal legislative
movements including BBA97, PAs may practice without a referring physician and may even
open private practices. This theory is now used less often than previously for medical
malpractice that includes a PA with a supervising physician. Negligent supervision was the basis
of Andrews v United States. In this case the court found the physician provided inadequate
supervision in negligently failing to investigate a report of sexual impropriety with a patient
treated by a physician assistant in which the physician had supervisory responsibility (Moses &
Feld, 2007).

Negligent hiring is the third legal theory used to assert liability against a physician who
employs a PA. Within this theory, an employer physician may be held liable for malpractice
claims brought against a PA where the issues include inappropriate hiring, training, supervision,
or monitoring; or for the physician failing to establish required or appropriate policies to ensure
that their employees understand their responsibilities and job requirements (Hollowell, De Ville,
& Warner, 2006).

The issue of negligent hiring is highlighted in the case Khan v Medical Bureau of
California. This case dealt with the hiring of a PA by a physician. The physician hired an
individual as a licensed and nationally certified PA on the basis of the individual’s attestation of
licensure. The individual was not licensed. In this case the physician had his own license revoked
for aiding and abetting the unauthorized practice of medicine. The courts found “if… a
practicing physician…can claim that he could not tell from the paperwork whether an individual
was licensed, than what hope is there for the average person seeking medical care?” It is the
responsibility of the employer to contact the licensing agency and ensure that a license does exist
for any purported licensed individual upon hire (Moses & Feld, 2007, p. 7).
Negligent hiring along respondeat superior may be determined to be a type of vicarious
liability. Vicarious liability is a type of indirect legal responsibility for an injury. It refers to the
liability of a physician for the negligence of another based solely on the nature of the relationship
between the two parties. Where physicians are employers of a PA, the employing physician may
be held liable for negligence of PAs within their scope of employment (Kachalia & Studdert,
2004).

The most common form of a malpractice suit against any type of health care provider is
the tort of negligence (West Group Publishing, 1999). A tort is defined as a civil wrong for
which a remedy may be obtained, usually in the form of monetary damages (Druss, Marcus, &
Olfson, 2003). For a plaintiff to be successful in a medical malpractice lawsuit, the plaintiff’s
attorney must prove four things. First, that the provider has an obligation or duty of care for the
patient. Second, this duty was violated or breached by practice that was below the accepted
standard of care. Third, that this substandard practice caused the harm. And fourth, that the
plaintiff suffers compensable damages (Moses & Feld, 2007).

The basis of malpractice claims brought against non-physician providers, such as PAs,
most often includes one or more of the following five allegations. The five allegations are: (a)
lack of adequate supervision by a physician; (b) untimely referral to a consultant; (c) failure to
diagnose properly; (d) inadequate examination; and (e) negligent misrepresentation (Moses &
Feld, 2007). Each of these allegations has been used in malpractice cases against PAs or NPs.
AAPA provided a series of articles termed “Issues in Quality Care” in the Journal of the
American Academy of Physician Assistants. Davidson (1996) addressed each high risk allegation
area through case scenario examples. The outcome of the series was to direct PAs to take proper
precautions to reduce risk of liability and subsequent lawsuits. Risk reducing activities include:
(a) ensuring that one has adequate physician supervision; (b) making timely referrals; (c)
knowing the limits of one’s own diagnostic skills and remaining within the permissible scope of
PA practice; and (d) conducting an examination that is appropriate for the patient complaint
(Davidson, 1996).

PA state practice acts are moving toward more autonomy for PAs. This means that PAs
are beginning to practice with less supervision than was required even five years ago. Further,
physicians may not always be held liable for the negligent acts of PAs. With practice act
revisions nationwide, PAs are now encouraged to purchase their own malpractice insurance and
be responsible for their own negligent acts (Pozgar, 2007). However, case law is still scant in the
move to sue PAs without including a supervising physician in the lawsuit.

National Practitioner Data Bank
The National Practitioner Data Bank (NPDB) was established under Title IV of Public
Law 99-660, the Health Care Quality Improvement Act of 1986. It has acted as a clearinghouse
of information relating to medical malpractice payments, certain adverse actions taken against
practitioners’ licenses, clinical privileges, professional society memberships, and eligibility to
practice in Medicare/Medicaid. These databank is germane to this current research and was the
source data used in the methodology portion of this research. The most recent annual report of
the NPDB was placed in the public domain in 2006, containing data through 2005 (NPDB,
2006). However, the public use data file, which was used for this research, is updated
continuously throughout the year.

The NPDB receives reports of malpractice payments and adverse actions concerning
health care practitioners in the U.S. The NPDB is the depository for medical practitioner
misconduct whose reporting is required by federal law from the following sources: medical
malpractice payers; medical/dental state licensing boards, hospitals and other health care entities,
professional societies with formal peer review, the Department of Health and Human Services
Office of Inspector General, the U.S. Drug Enforcement Agency (DEA); federal and state
government agencies, and health insurance plans.

In 2005, the majority of reported actions were for medical malpractice payments for
physicians, dentists, and other licensed practitioners. The report also included adverse actions
taken against a provider’s ability to practice. Such adverse actions included: licensure actions,
clinical privileges actions affecting a practitioner’s privileges for more than thirty days,
Medicare/Medicaid exclusion actions, professional society membership disciplinary actions, and
actions taken by the DEA concerning authorization to prescribe controlled substances. The work
of Brock (1998) and Cawley, et al. (1998) was based on data culled from the NPDB. This current
research included datasets and findings that were more comprehensive than earlier work based
on 1991-1996 data.

In 2005, physicians had more reports per practitioner than any other practitioner group.
However, the report cautions that NPDB reporting of state licensure, clinical privileges, and
professional society membership actions are only required for physicians and dentists. Thus, not
all PA state licensure actions may be part of the current database sets. Physicians were
responsible for eight out of ten malpractice payment reports in 2005. However, the number of
physician malpractice payments reported decreased by 2.5 percent from 2004 to 2005. During
2005, physicians were responsible for 14,034 malpractice payment reports equating to 81.1
percent of all malpractice payment reports received during the year. In contrast, only about two
out of 100 malpractice payment reports were for all types of nurses while less than one percent
was for PAs.

Health insurance plans, HMOs, and providers all use the NPDB in hiring processes for
medical practitioners that are covered by reporting criteria for the NPDB. These entities are
required by the Centers for Medicare and Medicaid (CMS) to investigate licensed practitioners to
ensure that sanctioned and non-licensed individuals are not treating patients (NPDB, 2006).

Education in Clinical Practice Safety
As a science with new treatments and discoveries occurring on a daily basis, education in
medicine is a life long process. The education of physician assistants may be divided into preservice
and in-service aspects. As noted earlier, the education of physician assistants most often
begins after the completion of an undergraduate degree and plan of study that includes courses in
the basic sciences and health sciences. Once accepted into the average two-year graduate
professional program, further courses are taken in the clinical sciences which parallel those of
medical students (Simon & Link, 2001). The curriculum of PA programs is dictated by the
Atlanta-based Accreditation Review Commission on the Education of Physician Assistants, Inc.
(ARC-PA). All PA professional programs must adhere to the standards outlined by this
organization to attain and maintain accreditation. Graduation from an accredited PA program is
required by all 50 states for graduates to receive professional licensure. Standard B6 outlines
curricular requirements for the provision of education in health policy and professional practice
issues including quality assurance, risk management, legal issues of health care, political and
legal issues that affect PA practice, and professional liability. Table 4 provides an outline of the
accreditation standards relevant to health policy and professional practice. Specific requirements
relevant to medico-legal education and patient safety are bolded.

Table 4. ARC-PA Standards for Health Policy and Professional Practice
______________________________________________________________________________
Standard Designation
______________________________________________________________________________
B6.01 The program must provide instruction in:
	a) the impact of socioeconomic issues affecting health care.
	b) health care delivery systems and health policy.
	c) reimbursement, including documentation, coding, and billing.
	d) quality assurance and risk management in medical practice.
	e) legal issues of health care.
	f) cultural issues and their impact on health care policy.
B6.02 The program must provide instruction in medical ethics to include:
		a) the attributes of respect for self and others.
		b) professional responsibility.
		c) the concepts of privilege, confidentiality, and informed patient consent.
		d) a commitment to the patient’s welfare.
B6.03 The program must provide instruction on:
			a) the history of the PA profession.
			b) current trends of the PA profession.
			c) the physician-PA team relationship.
			d) political and legal issues that affect PA practice.
			e) PA professional organizations.
			f) PA program accreditation.
			g) PA certification and recertification.
			h) licensure.
			i) credentialing.
			j) professional liability.
			k) laws and regulations regarding prescriptive practice.
______________________________________________________________________________
Note. This table is taken from the ARC-PA Standards, page 14, Third Edition with clarification, 10.07.

On the in-service side, continuing education for physician assistants may take many
forms. To remain certified, every PA practitioner must complete 100 hours of continuing
medical education (CME) every two years and pass a recertification examination every six years
(AAPA, 2007). Certification and recertification is provided by the National Commission on
Certification of Physician Assistants (NCCPA). During every two-year period, PA-C designees
must earn and log a minimum of 100 hours of CME and submit a certification maintenance fee
to NCCPA by June 30 of their certification expiration year (NCCPA, 2008). The 100 hours of
CME may include clinical and professional topics. One of the most common means for clinically
practicing PAs is to attain CME credits at state and national professional conferences where the
CME has been pre-approved for credit by the American Academy of Physician Assistants
(AAPA), American Academy of Family Physicians, American Medical Association or other
approved body. According to Shelly Hicks, the CME planner for the AAPA professional
conferences, seminars on practice risk management, PA malpractice experience and other legal
aspects of PA practice are annually offered by the AAPA and are well attended (Hicks, S.,
personal communication, April 16, 2008). A review of the 2008 CME offerings lists nine
seminars with a medical-legal topic. A sample of the titles of the 2008 seminars include: a)
“Medical Malpractice/Risk Management for the Allied Healthcare Professional;” b) “The
Anatomy of a Medical Malpractice Case;” c) “Saying ‘I’m Sorry’ for the Physician Assistant;”
d) Public Reporting of Medical Statistics and Outcomes in Hospitals: Gaming the System;” and
e) Asset Protection for the Physician Assistant: Could I Lose It All?” (AAPA, 2008).

A second area of CME opportunities on legal issues for physician assistants includes
periodicals of the American Academy of Physician Assistants and the Physician Assistant
Education Association. While a recent search for articles going back 10 years in the PAEA
Journal retrieved no results for legal or malpractice searches, a similar search in the Journal of
the American Academy of Physician Assistants revealed only three articles since 2000, one on
apologizing for medical errors, one on avoiding malpractice for breast cancer diagnosis through
documentation and one on reducing medical errors in primary care. The AAPA also publishes a
monthly professional newsletter, AAPA News that contains a monthly article on PA malpractice
issues and malpractice insurance. It is written by a representative of the malpractice insurance
industry who is a member of the AAPA services staff. The AAPA contracts with a private
insurer to provide AAPA members with optional individual malpractice insurance. As previously
described, most PAs are covered by their supervising physician’s malpractice policy, but the
AAPA still encourages its members to purchase additional individual policies. A future study of
interest would include a survey to determine how many PAs carry their own malpractice policies
in addition to the coverage from the supervising physicians’ policies and to determine if those
duplicate policy holders are sued more or less frequently than their peers without duplicate
coverage.

Summary
Chapter II, the comprehensive review of current literature, began by tracing the historical
growth of the PA profession. From this historical underpinning, this researcher investigated the
literature related to the impact of the PA profession on the health care work force. The impact on
health care access has been significant, especially in rural and medically underserved areas
where the profession was first developed. Cost-effectiveness and patient satisfaction with the PA
profession has also been well documented. The third section of this chapter analyzed risk
management as it relates to PAs while the last section synthesized available information
regarding medical misconduct and malpractice. The researcher included several cases to
highlight the types of malpractice cases that have been successfully prosecuted against PAs. The
courts are challenged in determining the extent of liability and culpability of PAs as practitioners
independent of their supervising physicians, though the trend is to hold PAs separately
accountable.

The extent of accountability of medical practice between the PA and the supervising
physician may be treated differently in different courts. This literature review laid the foundation
for the investigation into the safety of PAs. Through the literature review of Chapter II, the
researcher highlighted the concern of patient safety in the integration of PAs into health care
practices. This researcher attempted to show that the PA profession is relatively new with little
research into the safety of PAs as determined by malpractice cases or NPDB reports.
Additionally, it was demonstrated that PA practice safety and malpractice education is required
in PA training programs, that some literature on malpractice issues is available to in-service
practitioners, and that very few articles with a medico-legal topic are published in PA
professional journals. Next, Chapter III, presents the methodology section of the study and lays
the conceptual framework and methods to be employed in data collection and analysis.