Whose License Is It Anyway?

A national story that made its rounds in medical circles is the tragic case of the 19 y/o college student in Oklahoma who died from a pulmonary embolus that was missed by a nurse practitioner (NP). I’ve read multiple comments in multiple forums about how unfair it was that this NP was dropped from the case while the hospital and medical director of the emergency department were held responsible, resulting in a 6 million dollar verdict for the plaintiff’s family. 

After reading the deposition of the medical director(which was excruciating), it became obvious to me that even though he was on the Medical Executive Committee (MEC) of that hospital and was directly involved in the hiring of the nurse practitioner, he was unaware of some educational deficiencies in her application that were apparent during the credentialing process. Unfortunately for him, the plaintiff’s attorney did his homework. It was this particular aspect that I believe added to the medical director’s culpability in this case.

The majority of hospital bylaws clearly state that the ultimate management of a patient rests with the treating physician. Not the physician assistant, not the nurse practitioner, not the CEO, not the hospital and/or medical facility, not the janitor…but the physician. When we made the choice to become physicians, we accepted this enormous responsibility. To what we did not agree was to permit a corporation to tell us who we must be accountable for under our license, without any input into the selection and hiring of said individual(s). But that is the position in which we have been placed today.

Despite this, just as we should not be co-signing charts of patients stating we have supervised when we have neither seen nor whose care we have been involved(because it is fraudulent), neither should we be supervising individuals who may not be practicing within their scope of practice because it could be illegal or inappropriate. In the Ochoa case, the NP was a Family Nurse Practitioner(FNP). She was neither qualified nor had she received any training to work in an emergency department. The medical director and all those on the Medical Executive Committee knew this. The NP knew also, yet she applied for and accepted a position for which she was ill-equipped to work, let alone solo. In my opinion, the medical director, like many physicians, PRESUMED that her previous experiences as a paramedic and emergency department RN were adequate. They were not and here is why. Paramedics and RNs are not providers. They are not permitted to practice unsupervised or independently. As such, their “hours” are not equivalent to NP hours. In other words, years of experience of being a critical care or ER nurse prior to becoming an NP working in an ED doesn’t mean jack in a court of law. 

70% of NPs today are FNPs. A FNP curriculum is not designed for inpatient care, only out-patient. The fact that many FNPs work as “hospitalists”, in the ICU, ER and inpatient services such as cardiology, nephrology, urology, orthopedics, rheumatology, etc. does not indicate that what they are doing is within their scope of practice or even legal…it may not be. It just means that it has become the status quo, illegal or not. “Normalization of deviance” to preserve the financial bottom line. As is typical with nursing practice in general, scope of practice varies state by state. In some states, FNPs cannot work in an ICU unless they have also completed an Acute Care Nurse Practitioner(ACNP) program or an ED unless they have completed an ACNP or Emergency Nurse Practitioner (ENP) curriculum and received a certificate. NPs who wish to work exclusively with children must complete a Pediatric Nurse Practitioner (PNP) program. In other states, it is up to the nursing board and/or state as to whether they will approve a FNP to work in an inpatient setting. It is the responsibility of the hiring institution, the MEC and the supervising physician to know exactly what the SOP is for the NPs they are hiring and the validity of the programs from which they graduated. In the case of the physicians, their licenses depend on it.

Some health insurance companies have become aware of this distinction in NP practice and have ceased reimbursing for care that is provided by a NP working outside his/her scope. 

The NP scope is narrow. NPs who state they “specialize” in cardiology, neurology, dermatology, etc. cannot when there is no NATIONALLY standardized program with a concomitant competency exam. For instance, no NP curriculum that is cardiology-specific exists–at least one that is nationally approved and accredited. There is a select number of nurse practitioner specialty programs that exist (https://www.nursepractitionerschools.com/programs/). What is not listed in the link is Certified Registered Nurse Practitioners(CRNA), Certified Nurse Midwives(CNM) and Clinical Nurse Specialists(CNS). Thus, when NPs refer to themselves as “specialists” in medical specialties, they are taking license, so to speak. It is dishonest and unethical.

Physicians who “train” NPs in their specialty must understand that what they are doing is, in essence, an apprenticeship. Apprenticeships are subjective, inconsistent and only as good as the doctor teaching. Although a physician may be board certified in his/her specialty, it does not necessarily indicate that the training translates to expertise for a non-physician provider. If apprenticeships such as those were credible, there would have been no need for the Flexner Report 100 plus years ago. In my opinion, it is improper for a specialist to allow a non-physician provider(NPP) to perform primary consults on patients who have been referred by physicians simply because that specialist believes his/her NPP has a knowledge base sufficient to evaluate a patient who has already been assessed by a physician and determined to need a higher level of care or more expertise. Especially when that NP has not completed a legitimate fellowship and competency exam in that specialty. It is offensive. If a specialist is willing to do that, then apprentice a Family Medicine, Internal Medicine or Pediatric physician who has gone through the same vigorous foundation of medical training that the specialist has. Then there is a solid foundation to build upon and they should be allowed the same opportunity. Bottom line, there is no physician so exceptional at teaching medicine that universal, standardized training and competency exams are unwarranted. One’s word that his/her NP/PA is highly qualified in that specialty simply does not suffice in my opinion. And most likely will not stand up in a court of law.

Scope of practice is not vague in the case of physician assistants(PAs) because they are required to have a Delegation of Services(DSA) agreement which CLEARLY delineates what duties or procedures they are delegated to perform in lieu of the physician. I believe it is a mistake for the American Association of Physician Assistants(AAPA) to push for Optimal Team Practice(OTP). It makes the DSA non-specific to a doctor and permits the loose to non-existent supervision that currently exists with NPs. Physicians are tired of compromising their licenses for everyone else’s benefit. If NPs and PAs and seek independence, then let it be true independence. No safety net of physicians if they are considering themselves equivalent. Physicians collaborate with each other daily and do not need a contract to do so. We are responsible for our own decisions. However, physicians may be hesitant to advise or “collaborate” with a NPP seeking a curbside consult who purports to be “independent” because in our society, the attorneys hold the physician of record accountable, as we found in the case of Warren vs. Dinter(https://law.justia.com/cases/minnesota/supreme-court/2019/a17-0555.html). And there is not a damn thing anyone can do about it. In the Ochoa case, the NP was entirely responsible for the outcome. She did not contact any physician for advice until it was too late. Yet, she was dropped from the case and the medical director was not. She has suffered no consequences from the board of nursing to date. 

Physicians, know who you are supervising and know their scope of practice. If you do not know, contact the state nursing board and find out. Ask the NP you interview for the curriculum of the program the he/she attended. Look at the courses. Accreditation is unreliable; know that also and do your homework. I have attached two articles that every credentialing organization and every supervising physician should read. Both articles are written by NPs and the listed questions will help delineate scope of practice. Ask these of potential hires. Stop allowing your licenses to be used like toilet paper on which others can wipe their a**es. Remember what you did to earn it. It is how you feed your family, pay your bills and put your children through college. Protect it. Value it. And treat it with the respect it deserves.

https://www.medscape.com/viewarticle/832164

https://www.medscape.org/viewarticle/506277

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