Nov
14

Legal Implications Associated With The Increased Use of Physician Assistants to Provide Health Care

Physician assistants were introduced in 1965 at Duke University as a strategy to help over-extended physicians provide more services. By 1974, 37 states had passed legislation authorizing practice by these new practitioners, and today, physician assistants are licensed in all 50 states. Physician assistants typically graduate from a two-year program with a master’s degree, and then take a national exam to become licensed or ‘certified’ physician assistants. In 2011, approximately 6,500 physician assistants graduated and entered the medical work force. By contrast, in 2016 approximately 19,000 students graduated from medical schools in the United States. In 2014, there were 190 accredited PA programs in the United States, and an additional 75 had applied for accreditation.

In recent years, medical providers have dramatically increased their use of physician assistants in providing care to patients. This recent surge has been attributed to the passage and implementation of the Affordable Care Act, leading to a significant increase in the percentage of the American population that now has access to health care through insurance. Additionally, the increase can also be explained by these practitioners’ ability to perform an advanced level of care and procedures, as authorized by their supervising physician in the appropriate supervisory agreement.

The increase in patient care via physician assistants has led to a slow but steady increase in medical malpractice plaintiffs directly naming these providers as defendants. As a result, the standard of care for a physician assistant becomes directly relevant. A medical malpractice plaintiff must establish this standard of care by expert testimony. This presents two issues: Must a plaintiff naming a physician assistant defendant in a medical malpractice case (1) obtain a physician assistant expert to criticize the physician assistant defendant in a 2-622 report; and (2) must that same plaintiff obtain that same physician assistant expert to establish the applicable standard of care at trial?

735 ILCS 5/2-622 states that in a medical malpractice action, the plaintiff’s attorney shall file an affidavit declaring that he/she has reviewed the case with a health professional who is knowledgeable in the relevant issues in that action, practices in the same area of health care or medicine at issue, and is qualified by experience in the subject of the case, and that the reviewing health professional has determined there is a reasonable and meritorious cause for the filing of the malpractice action. Further, the statute requires that if the defendant is a physician that does not use medicine or surgery, a dentist, a podiatrist, a psychologist, or naprapath, then the reviewing health professional authoring the report must be licensed in those respective fields.

Otherwise, “for affidavits filed as to all other defendants,” the reviewing health professional must be a physician licensed to practice medicine in Illinois in all of its branches. Thus, on its face, section 2-622 does not explicitly carve out an exception for physician assistants. Faced with this issue, Illinois courts have been prone to allowing a plaintiff to proceed with his/her case as long as a physician has authored the 2-622 report criticizing the care of a physician assistant.

This practice—of using a physician to criticize a physician assistant—arguably holds the physician assistant profession to a higher standard of care, namely the physician standard. While physician assistants are granted explicit authority to perform some of the same procedures and exams that their supervising physicians perform, nonetheless physician assistants attend half the schooling and are not trained extensively through residencies, internships, and fellowships as physicians are. A physician authoring a 2-622 report criticizing a physician assistant may have never worked with a physician assistant or even be familiar with their scope of practice, and certainly is not familiar with the physician assistant’s education and training. The stated purpose of section 2-622 is to act as a gatekeeper and only allow meritorious actions to proceed. But in the aforementioned scenario, there is the possibility that a physician could author the report, and then once trial arrives the plaintiff is without a physician assistant expert to establish the relevant standard of care.

In a medical malpractice action in Illinois, the plaintiff must establish the standard of care against which the defendant’s conduct is measured through expert testimony, and then must show that the defendant’s conduct was negligent in light of that standard and that the negligence caused injury. Cassady v. Hendrickson, 138 Ill. App. 3d 925, 934 (4th Dist. 1985), citing Walski v. Tiesenga, 72 Ill. 2d 249, 255-6 (1978). Illinois courts have not faced the issue of whether a plaintiff must use a physician assistant expert when the defendant is a physician assistant.

But recently, the Tennessee Supreme Court held that the standard of care applicable to physician assistants is distinct from that applicable to physicians. Cox v. M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240, 243 (2010). That court recognized that in 1985 the Tennessee legislature enacted the Physician Assistant Act, and in doing so recognized physician assistants as medical providers that were distinct from physicians, and held that the legislature did not intend for physician assistants to be held to the same standard of care as physicians. The court reasoned that physician assistants practice in a circumscribed scope of practice and do not have the same autonomy of physicians, and it would be logically inconsistent to both impose limits on their practice while also holding them to the same standard of care as physicians.

It is highly likely that the Illinois courts will be faced with this issue due to the increase in the utilization of physician assistants resulting in such practitioners being named more often in malpractice litigation going forward.

In order to give these defendants a fair shot at defense, Illinois courts can do them justice by allowing their own profession to be its keeper and judge of its own standards.

 

Philip Micha

Philip Micha

Phillip received his J.D. from Chicago-Kent College of Law where he graduated magna cum laude in the top 4% of his class, made the Dean's list every semester, and was elected to the Order of Coif. He received four CALI awards, was an editor on the Law Review and Journal for Environmental and Energy Law, and participated in Environmental Law Moot Court team.

During law school, Phillip worked for the Illinois Attorney General's Office and U.S. Environmental Protection Agency. He was a judicial extern to the Honorable Matthew F. Kennelly in the United States District Court for the Northern District of Illinois, and to the Honorable Richard D. Cudahy in the Seventh Circuit Court of Appeals. Prior to joining Cassiday Schade LLP, Philip was an associate at a firm in Chicago specializing in insurance defense.

Phillip is licensed to practice law in the State of Illinois and in addition to his law degree has a B.S. in biology and zoology from the University of Wisconsin-Madison, and a Masters in Environmental Management from Portland State University.

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