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Mediation Grand Rounds

On Behalf of | Sep 12, 2023 | Mediation

Mediation Notes has changed its name to Mediation Grand Rounds. Grand Rounds are typically held in major teaching institutions weekly or monthly on a department by department basis and is an opportunity for the staff to discuss and learn from challenging cases. In our Grand Rounds we discuss actual cases but do not disclose the parties or their counsel.

Today’s case arises from a worker’s compensation case. As you know, when a worker is injured on the job, he or she is entitled to be cared for under the state worker’s compensation program. The employer’s workers’ compensation insurance company arranges for treatment from contracted providers.

The case is that of a 48-year old injured warehouse worker who suffered a soft tissue injury to his right ankle and later suffered a soft tissue neck injury. He was seen by a workers’ compensation physician and prescribed pain medication, physical therapy, and other outpatient conservative treatment.

The outpatient care was primarily given by various physician extenders with an occasional visit with a physician. The patient was seen frequently and each provider simply continued the original treatment and medications for a year and a half. Nobody, not even the occasional physician, thought to check laboratory tests. The medications were simply renewed time and again. Clearly, very little time was spent with the patient and very little thought given to his medications.

The original and continued prescriptions were for significant daily doses of both Ibuprofen and Naproxen.  These two widely-used medications are among a class of drugs known as Non-Steroidal Anti-Inflammatory Drugs or NSAIDS. Some of these medications are sold over the counter but this should not fool anyone into thinking that they are without significant hazards. Kidney damage is a well-known complication of NSAID therapy and should be watched for and prevented.

The patient developed end-stage kidney disease from the NSAIDS. He is now on dialysis and is fighting the difficult fight to get a new kidney. The point here is to be mindful of situations where physician extenders are basically running the therapeutic show and medication is prescribed indiscriminately. There was little attention to possible harm or there was a knowledge gap among the providers.

A case like this has a seven-figure settlement value. The client may not work again even if he survives for a substantial time. His care will be expensive. Clearly, it is a maximum case for pain and suffering – not even counting the loss of consortium claim. And, even though it is a workers’ compensation case, the clinic and providers are still liable for medical malpractice.

Reliance on physician extenders, physician assistants or nurse practitioners, is virtually ubiquitous in the practice of medicine in the U.S. today. While a majority of these extenders are excellent at what they do, they are not doctors and over reliance on them can lead to serious problems. Our case today is illustrative of this practice and an unfortunate and not uncommon outcome of it.

California law is clear that the acts of the nurse or physician’s assistant working with a physician are as if the physician did them himself/herself and he or she is responsible for them.

The Court in Lopez v. Ledesma (2020) 46 Cal.App.5th 980, 996 stated:

The regulatory scheme suggests that the supervising physician, not the physician assistant, is the relevant “health care provider” for purposes of determining whether particular services are within the scope of a license under Civil Code section 3333.2.

The supervisory physician is tasked with the responsibility to “delegate to a physician assistant only those tasks and procedures consistent with the supervising physician’s specialty or usual and customary practice.” ( Cal. Code Regs., tit. 16, § 1399.545, subd. (b).) Moreover, once a supervisory relationship is established, the physician assistant acts as the agent of the supervising physician.

The regulations go so far as to state that  the acts of the physician assistant are deemed to be the acts of the supervising physician: “Because physician assistant practice is directed by  a supervising physician, and a physician assistant acts as an agent for that physician, the orders given and tasks performed by a physician assistant shall be considered the same as if they had been given and performed by the supervising physician.” ( Cal. Code Regs., tit. 16, § 1399.541.)

Thus, once a physician undertakes to supervise a physician assistant and forms an agency relationship with the assistant, the scope of the supervising physician’s license (and any restrictions on it) define the tasks that the assistant may perform.

It takes great care to work out a settlement in a case of this nature that all parties can live with. Emotions are understandably raw. When you lose your health or your life, you have really lost something. It’s not like losing money.