A Legal Precedent Perhaps?

It is no secret that I do not support Full Practice Authority(FPA) for nurse practitioners(NP). In my opinion, it is the practice of medicine without a medical license. Period. The fact that certain state and/or national nursing organizations have managed to finagle politicians into passing this egregious law is more indicative of exceptional lobbying than it is confirmation of quality medical care, which brings me to my next point.

Part of their effective lobbying has been the repetitive claim of their poorly done “studies” purporting “equal or better outcomes” compared to primary care physicians. Add to that the variability and vagueness of the definition of “advanced practice nursing” and a gaping hole of interpretation is created that has given them “license” to practice however they see fit. Of the states and U.S. territories that have been granted FPA, where are the follow-up studies that prove that the quality of care promised during the NPs legislative pursuit for FPA has indeed measured up? There are none. That’s correct. No nursing or legislative regulatory body, upon the passage of FPA, has followed through to evaluate or assess whether patients have been managed appropriately as pledged. No auditing of any state nursing board to review for increased complaints of NP mismanagement nor any investigation validating those complaints; no review by an objective party of malpractice data(increased lawsuits or claims settled) collected over a select number of years; no survey by hospital facilities of increased visits to the ED, categorized by complaint, by NPs before and after FPA; no statistical analysis of increased or decreased morbidity/mortality rates in hospital departments that permit NPs to practice unsupervised, etc. This would be especially relevant since a majority of new NPs today are products of online degree mills with inconsistent and subpar educational standards. Nothing prevents NPs from practicing in a full practice authority state. NOTHING. So how has it been determined that the standard of care has measured up as claimed? PRESUMPTION. Legislators, physicians and medical facilities assume that care is adequate by the sheer number of states with FPA. That’s it. Proclamation of quality surmised because surely these laws would not have been passed if the standards were not met, right? Wrong. I’ve stated this many times: absence of evidence is not evidence of absence, it just means no one bothered to look.

Complicating the picture are the use of “collaborating” physicians. Per MY definition, collaborating physicians are simply doctors who get paid(some inexplicably do it for free) to provide little to no supervision. The fact is, they are being utilized for their licenses and to accept liability, which they foolishly do. The irony is that in the majority of states with FPA, a collaborating physician is REQUIRED by the state, the nursing board(BON) and/or the nurse practitioner’s liability insurance carrier. Surely one must ask that if a NP is indeed “independent” as stipulated by FPA, why this directive? Could it be an indication that the state, BON and malpractice insurance carriers are themselves concerned about the NPs ability to practice unsupervised? Of course it is, otherwise there would be no reason to make such a decree. As a physician, I collaborate with colleagues frequently. I am neither mandated nor do I have to compensate them for the privilege of doing so. It is baffling to me why no one questions the logic of this edict and why doctors continue to allow themselves to be used in this way. The purpose of this type of “collaboration” cannot be more obvious, which is for physicians to be the scapegoat should a lawsuit arise while simultaneously sanctioning NPs to practice medicine without being held to the medical standard. Nowhere is this better exemplified than in the case of Warren vs. Dinter (https://www.medicaleconomics.com/news/physician-found-liable-malpractice-patient-he-never-treated#:~:text=The%20Minnesota%20Supreme%20Court%20ruled,to%20or%20treated%20the%20patient.&text=In%20the%20case%2C%20Warren%20v,prerequisite%20for%20a%20malpractice%20action.), in which two doctors were found culpable, including the collaborating physician. Although MINNESOTA IS A FPA STATE, the NP was dropped from the case. As far as I am concerned, the collaboration dictum validates my perception that despite the extremely influential lobbies of their organizations, NPs are not ultimately trusted to practice COMPLETELY on their own. Use whatever euphemism one may like, independence has only one meaning, and NPs are not practicing it. 

Along the same vein, my colleagues who agree to be remote “medical directors” for nurse practitioner practices or businesses do nothing but add to this irresponsible “collaboration”. Chart reviews are worthless, especially when selected by the NP, as some physicians permit. Although a state law may require only 10% of charts to be reviewed, a physician can review more; however, most do not. The review is only as good as the documentation. What good is a chart review if a patient is diagnosed by an NP with a UTI because she had burning dysuria, only to present later to an ED with pelvic inflammatory disease(PID)? The medical director has no idea any of this occurred because a sexual history was never documented, a relevant review of systems never completed and a pelvic exam never performed. This lackluster “supervision” is not only slovenly, it does nothing to protect the patient, making the doctor just as complicit in the poor care by aiding and abetting the illegal practice of medicine.

Medicine is considered the highest standard of healthcare provision in the United States. Supervision and oversight restrictions of non-physician practitioners exist to protect the health and safety of the public from anyone practicing below that standard. These regulations are neither “outdated” nor “unnecessary” except by those seeking to undermine the practice of medicine for their own unsavory reasons. It is immaterial that full practice authority has been permitted in 23 states and some U.S. territories. It is a bad law that never should have been enacted because, by its very nature, it is illegal. Some laws just need to be revoked. In my opinion, the legality of FPA should be challenged in a court of law. What legislators do not understand, perhaps the courts will.

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Natalie Newman MD

Dr. Natalie Newman is a residency-trained, board-certified emergency physician who has been practicing for over 20 years. She graduated from California State University in Sacramento, California with a degree in Biological Sciences. She then attended medical school at Case Western Reserve University in Cleveland, Ohio on an Army scholarship. As a graduating senior, Dr. Newman was presented with the Marjorie M. and Henry F. Saunders award for her compassionate care of patients within the family structure. After her graduation, she was accepted into the Emergency Medicine Residency at North Shore University Hospital in Manhasset, New York. Upon her graduation, Dr. Newman entered active duty service with the U.S. Army. Her first assignment was at Womack Army Medical Center in Fort Bragg, North Carolina. During her stint in the Army, Dr. Newman was deployed to Bosnia-Herzegovina(formerly Yugoslavia) where she was Chief of the Emergency Department at Eagle Base in Tuzla, Bosnia. She had the honor of serving under the command of Colonel Rhonda Cornum(now a retired brigadier general), a urologist, pilot and former prisoner-of-war during the Persian Gulf War. While in Bosnia, and as the only American female physician in the Balkans at that time, Dr. Newman was assigned as the official physician for Queen Noor of Jordan during a humanitarian visit to a local hospital in Bosnia. After her return home to the U.S., she was promoted to Major and completed the rest of her Army service at Fort Bragg. Dr. Newman subsequently returned to her home state of California. She has worked in rural facilities, community hospitals and trauma centers. She has also served as a ship physician for a major cruise line and also provided physician services at the Coachella/Stagecoach Festival in Indio, California for three years. Dr. Newman participates in public speaking engagements discussing the value of education, of which she is passionate. She continues to practice clinically as a traveling physician. 

  17 comments for “A Legal Precedent Perhaps?

  1. Moss Bliss
    June 27, 2020 at 2:31 pm

    While it is granted that anecdotal evidence does not constitute a study, how many of your friends have stories about NPs refusing to listen to them, or blowing them off from their supposed superior knowledge? I cannot count how often that has happened to me with doctors, and I can count (it’s zero) how many times it has happened with NPs. That is why the care appears equivalent in these studies, because nurses tend to care more, not because they are better trained or informed.

  2. Stephen B
    June 24, 2020 at 5:56 pm

    While I agree with the premise that you put forward regarding LELTs your article is misleading. An actual reading of the case seems to indicate the physician named in the case was the hospitalist who refused to admit the patient being seen by the NP. I imagine that the other physician named was the NP’s supervising physician. In my career I have never once turned away my nurse when she sought to bring a patient to a “higher level of care”. I fully agree that independent practice of medicine by someone without medical training is abhorrent, however this may not be the case to make the point.

    • Natalie Newman, MD
      June 24, 2020 at 9:44 pm

      The NP states the physician refused. However, Dr. Dinter denies he refused. He stated that she called him to get advice. Based on her presentation, he gave the advice he did. He did not know the NP, he did not know nor have a relationship with the patient and he never spoke to the collaborating physician nor she to him. You are presuming the NP is telling the truth that he refused. She may not be.

      I’ve already stated the Minnesota is a FPA(as are 22 other states and D.C.). That means the NPs ARE NOT supervised and therefore do not have supervising physicians. Instead, they pay a “collaborating” physician to be available should they have any questions. The collaborating physician gave the same advice as Dr. Dinter, which suggests to me there was something lacking in the presentation of the NP. Information was either left out, never presented or poorly presented. I refuse to believe that these were two irresponsible physicians who didn’t give a s**t and were incompetent. For the record, she could have requested that the collaborating physician come see the patient. She did not. She also had the option of sending the patient to the ED. She did not. She sent the patient home which indicates she did not recognize the patient was as sick as she was. And she was never held accountable. She was allowed to practice medicine but was not held to the medical standard and the physicians became the scapegoats.

  3. Aaron Levine
    June 24, 2020 at 2:35 pm

    I largely retired. I am looking a part time work. I have had employment agencies (Indeed, etc.). advertise for a MD or DO to “supervise” and review charts for $100-$200 a month. I have not answered any. I know a NP who said this is a well known and accepted means of getting work. She disagrees with this, but said it is common with retired physicians.

    • Natalie Newman, MD
      June 24, 2020 at 3:32 pm

      It is common..and foolish. Don’t do it. Sometimes the “supervising” doc is also the so-called “medical director”. It is a way for a NP to open a clinic in a supervised state w/o having real oversight. In California, where I reside, this is considered “selling” your license and/or aiding and abetting the illegal practice of medicine, depending on the clinic. If the BOM finds out about it, they can and will yank a doc’s license.

      If you are seeking part-time work, do chart reviews for insurance companies or attorneys. Also consider Disability and Pension exams for the VA. Very easy work from what I hear. You can go through the VA, use locum tenens or contracted organizations like the Veterans Evaluation Services(VES). https://www.vesservices.com/

    • Mamadoc
      June 25, 2020 at 10:50 pm

      $100-200 a month for that kind on liability? And people do that?

  4. Gary Gaddis MD PhD
    June 23, 2020 at 7:12 pm

    Dr Newman, are you a member of the American Academy of Emergency Medicine (AAEM) (www.aaem.org)? There is a working group we have in AAEM addressing “scope of practice” issues and you would make a valued member to our committee, as you write with much knowledge and passion. We need more knowledgeable and passionate spokespersons to rise up on this issue and help protect the public. Medicine is a “team sport”; emergency medicine and critical care and the surgical specialties especially so.

    However, on a high-functioning team, team members understand their roles and more or less “stay in their lane”. Those words in quote marks may seem inflammatory to some. But, the facts are plain on this matter.

    For instance, think back to the Super Bowl of 2020. Did any interior lineman throw a pass? Did any tight end line up as a halfback and carry the ball on a rushing play? Did any defensive lineman drop back with the safeties in deep pass coverage?

    The answer to all of these questions is “no”.

    If it is self-evident from sports that highly functioning teams have teammates performing the roles for which they are amply trained, why is it so hard for folks to comprehend that the same is true in medical care?

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  5. ABS
    June 23, 2020 at 2:35 pm

    Please know this is not a Physician versus NP issue. This is a special interest lobbies, healthcare corporations, legislators, private equity, insurance giants versus physicians issue to the detriment of patients

    • Natalie Newman, MD
      June 24, 2020 at 3:20 pm

      It should not be a physician vs. NP issue, but alas, it is.

      The other entities you mention created an environment that conflated the roles of physicians, physician assistants and nurse practitioners. It is no accident that we were all lumped under the term “provider” and eventually mid-level providers became “advanced providers”. Let me reiterate: physicians and MLPs were all providers; however, MLPs became “advanced practice providers”. The implication and play on words is clear and the deception was intentional. That terminology continues to be perpetuated by the American Association of Nurse Practitioners(AANP). Then the sham s**t online Doctorate of Nursing Practice(DNP) degree that ANYONE can obtain was the next step in this duplicity. This post-graduate certificate that some nebulous entity determined was a clinical degree allowed MLPs to refer to themselves as “Doctor”. No one cared that it might not be legal to use it in a clinical setting. No one bothered to check the business and professions code of their state, including physicians and other medical leadership, who then forced medical students, residents and subordinate physicians, in some cases illegally, to call MLPs by this title because they didn’t have the testicular fortitude to challenge them.

      “On 4/20/18, the National Organization of Nurse Practitioner Faculties(NONPF) made the commitment to move all entry-level nurse practitioner (NP) education to the DNP degree by 2025.” (https://cdn.ymaws.com/www.nonpf.org/resource/resmgr/dnp/v3_05.2018_NONPF_DNP_Stateme.pdf.). This indicates the goal is that all practicing NPs obtain a DNP degree by 2025. I will say without compunction that any doctorate degree in which 100% of practicing NPs are expected to obtain is a worthless piece of paper and does not equate to any other doctorate on the planet(MD/DO, MBBS, DVM, DDS, PhD, etc.). It is a travesty of education. So yes, healthcare corporations, legislators, private equity, health insurance companies and special interest lobbies, of which the AANP is one, are all complicit in the promulgation of FPA and the antagonism between physicians and NPs. Add to that the “We Choose NPs” campaign, which not so subtly suggests don’t choose physicians…let’s just say the AANP created the acrimony that currently exists, not physicians.

      When the AANP decided that they wanted to pursue FPA, they became opportunists, as did every NP who supports that movement. They decided, arbitrarily, that ALL NPs could practice unsupervised, alluding to poorly done studies as proof that NPs care was equivalent to physicians. Our jobs as physicians is not only to care for patients, but to protect the public as mandated by our medical boards and our oath. It is a question of integrity and ethics. FPA enables the practice of medicine by those without a medical education, without a medical license and by deception. IT IS FUNDAMENTALLY UNETHICAL because NPs are unqualified to practice medicine. For this reason, one cannot expect the majority of physicians to support such nonsense. Any physician who does is aiding and abetting the illegal practice of medicine.

  6. Labile Cross
    June 22, 2020 at 5:18 pm

    Amazing article, we as physicians must do more to protect our patients against this insensible move.

  7. Gary Pearce MD
    June 22, 2020 at 1:36 pm

    If they practice medicine, I would not understand how malpractice companies charge them any less……in my field, the charges are determined by the services you provide- surgical, in-office surgery, nonsurgical etc…..the only affecting factor is if you practice full time or part time. I would posit that to charge them any less would be discriminatory to us as physicians……..oh no, i forgot we have more assets to protect

    • Natalie Newman, MD
      June 22, 2020 at 3:47 pm

      Because they claim to practice “advanced nursing”. It is ill-defined and varies from state to state. However, as long as they practice “advanced nursing”, their malpractice will not go up. Especially if there is a doc somewhere in the picture(ie: “collaborating physician). IMO, in FPA states, they are practicing medicine, illegally. When closely supervised, we physicians can delegate certain duties which is legal because we are supervising the practice. They want to continue that same practice w/o supervision. So they go to legislators to legalize what is illegal. I say it violates the business and professions code for the practice of medicine and that FPA should be challenged.

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      • Kurt
        June 25, 2020 at 9:29 am

        Great comments Dr. Newman, I would think if the FPA NP’s mess up more, there will be more legal action against them and their malpractice insurance providers would act accordingly. Unfortunately with this “fallback” scenario a lot of patients would be harmed if physicians aren’t able to stop this runaway train. I suspect if we can’t stop it, the system will self-correct itself after untold numbers of people are harmed. (ie. an NP’s malpractice premiums will increase accordingly.)

  8. Fred Powell
    June 22, 2020 at 11:34 am

    Great article

  9. David Adcock
    June 22, 2020 at 10:23 am

    Very well said. As a board certified physician working in a surgical sub specialty I work with NPs and PAs daily. They depend on me for guidance and correction, I depend on them to help shoulder an incredibly high work load. The physician-advanced practice nurse model works when they are a tightly knit team. I catch enough errors by our NPs that could really harm our patients to make me question what other physicians who just “sign off” on an NPs work are thinking. They are a party to potential and real harm to patients. My father died 5 years ago, in part because an NP, not closely supervised, treated his hypoxia with increasing levels of home oxygen rather than diagnosing and treating his pneumonia. There was no accountability for this blunder that would probably not have been made by a first year medical student. My calls weeks later to the pulmonologist supervising the NP went unanswered (even though she knew me from medical school where she did her residency and fellowship training). Why? Because, we as physicians are educated to seek and treat the causes of disease and not stop with treatment of symptoms. It is easy to be lured into believing that our NPs are taking care of things, but they all need our guidance and oversight continuously to assist in providing care.

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    • Natalie Newman, MD
      June 22, 2020 at 3:40 pm

      My sincere condolences on the loss of your father. The behavior you experienced from the pulmonologist is unfortunately something common we see in my advocacy groups. Lousy supervision, bad outcome, the supervising physician distances him or herself. We have no qualms about reporting those physicians to the BOM for lax supervision that results in a patient’ death.

      What you describe in your practice is responsible and close supervision. That I support because it works well within a team, decreases the physician’s liability and keeps the patient safe. The reality is that those pushing for FPA (or in the case of PAs, optimal team practice), are seeking “independence” without the increased liability that is required of one practicing medicine. NPs do this by using the terminology, “advanced nursing”, which has no clear definition when reviewed in the business and professions code or it is defined using the exact term that defines the practice of medicine. If NPs refer to their practice as medicine, then they are accountable to the BOM which they vehemently oppose. In my state of California, they are seeking FPA. If they get it, the BON has refused to oversee that license. BOM has also refused. So a new board has been proposed, a NP board. However, the dentist who sponsored the bill and those legislators supporting it have included a mandate that the new board include physicians. The NP organizations are strongly opposed. Yet physicians are expected to “sign off” on a NPs ability to practice unsupervised after having practiced for so many hours. Why have physicians sign off but not oversee? Because then errors will not be caught or will be swept under the rug. Where there is no oversight, there is no accountability. “Collaborating” physicians are only used if needed; however, they will be convenient scapegoats in cases of malpractice and/or medical negligence. Mark my words, NPs will eventually seek pay parity purporting that they practice the same as physicians and their practice is sound. And there will be no one to dispute it because of the sparsity of supervision and accountability.

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  10. Dr. Z
    June 22, 2020 at 8:08 am

    Another great article!
    Totally agree.
    Let’s protect patients with better laws.
    Or even just enforce the ones we’ve already got!

    Non-physicians should not be independently practicing medicine.

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