Navigating Legal Liabilities in NP and PA Supervision: Informed Consent

Introduction In recent years, the roles of Nurse Practitioners (NPs) and Physician Assistants (PAs) have expanded significantly, driven by healthcare reforms, technological advancements, and consolidation in the marketplace with corporate entities looking to minimize labor costs. With this changing landscape, the scope of practice of NP/PAs has continued to broaden, with some states now allowing for completely independent practice in certain settings and specialties. As their roles continue to expand, the importance of understanding the legal implications of their supervision by physicians has increased with an uptick in malpractice cases involving PA/NP supervision. One underrecognized area of liability lies with the practice of obtaining informed consent.

Informed Consent is Often Overlooked

Informed consent is the duty to secure informed consent from patients. NPs and PAs are required to provide patients with the necessary information regarding their treatment, including potential benefits, risks, alternatives, and likely outcomes if no treatment is pursued. Failure to obtain proper informed consent can lead to legal claims against the provider. The doctrine of informed consent moves beyond simple permission; it involves an educational dialogue that results in the patient’s understanding and agreement. The responsibility to collect patient consent can fall on any of either the physician, PA, or NP depending on the medical setting. NPs, often primary care providers, bear responsibility for obtaining informed consent for various procedures within their scope of practice. They must communicate the details of treatments to patients, ensuring comprehension. Similarly, PAs working under physician supervision must educate patients about treatment options and secure informed consent. Physicians, ultimately responsible for patient care plans, must provide comprehensive information and answer questions to ensure patients fully understand their medical decisions.

However, in all cases, there is an underlying responsibility on the practicing physician. “Someone else can collect the paperwork, but doctors are the only ones who can ensure informed consent” (Jotform 2023). A recent case that underscores the liability associated with PAs operating beyond their delegated responsibilities of informed consent is Shinal v. Toms (2017). In 2017, the Pennsylvania Supreme Court ruled on Shinal v. Toms, a case involving Mrs. Shinal, who underwent surgery for a benign brain tumor near her pituitary gland. Before the procedure, Mrs. Shinal discussed treatment options with Dr. Toms, a neurosurgeon, and consented to surgery over the phone with Dr. Toms’ assistant. However, complications during surgery led to permanent injury, prompting Mrs. Shinal to sue Dr. Toms for failure to adequately explain the risks and alternatives.

Following the court’s decision, Pennsylvania healthcare providers and researchers must adhere to stricter standards regarding informed consent. Physicians are now mandated to personally engage with patients, ensuring they understand the medical procedures they undergo. This requirement aims to enhance patient autonomy. This also carries legal liability implications for PAs, as their influence within informed consent has been limited. The court’s decision underscored a critical shift in the interpretation of informed consent. Traditionally, physicians could delegate the task of obtaining informed consent to qualified staff members, such as physician assistants or nurses. However, the Pennsylvania Supreme Court emphasized that effective informed consent hinges on a direct interaction between the physician and the patient. This “meeting of the minds,” as the court described it, necessitates that the physician personally discloses relevant medical information, evaluates risks in light of the patient’s medical history, and ensures the patient comprehends the implications of their decision (Applied Clinical Trials 2017). With the continued expansion of the scope of practice by NP/PAs, there undoubtedly will be a higher rate of malpractice cases centered around supervision.

Physician Involvement Cannot Be Bypassed.

The evolving roles of Nurse Practitioners (NPs) and Physician Assistants (PAs) in the healthcare landscape underscore the critical importance of understanding the legal liabilities associated with their supervision, particularly in the context of informed consent. As these professionals take on more responsibilities, the need for clear and effective communication with patients becomes paramount. The landmark case of Shinal v. Toms highlights the necessity for direct physician involvement in the informed consent process, reinforcing the principle that patients must fully understand their treatment options and associated risks through a direct dialogue with their physician.
The implications of this legal precedent are significant. While NPs and PAs play a crucial role in patient care, the ultimate responsibility for ensuring informed consent remains with the supervising physician. This responsibility cannot be entirely delegated, as the personal interaction between the physician and the patient is essential for fulfilling the legal and ethical standards of informed consent. As the scope of practice for NPs and PAs continues to expand, healthcare providers must remain vigilant in adhering to these standards to mitigate potential legal risks.

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