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Doctor not liable for physician assistant's misconduct, court rules

Had the Vermont Supreme Court ruling gone the other way, some believe physicians might have shied away from supervising PAs.

By Tanya Albert Henry — Posted Dec. 27, 2012

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If a physician has supervised a physician assistant properly, the state medical board shouldn't discipline the supervising physician for the PA's improper conduct, the Vermont Supreme Court has ruled.

The ruling upheld a 2012 decision by the Vermont Board of Medical Practice, which found that the physician wasn't answerable for a PA who prescribed opiates improperly.

The state argued that Jon Porter, MD, should be held accountable for the PA's actions because physicians are vicariously liable for those that they supervise. “With the court's decision, physicians may be less likely to supervise PAs to a certain degree,” said Vermont Assistant Attorney General Kurt A. Kuehl.

An attorney for Dr. Porter and an executive for the Vermont Medical Society each said the court got the ruling right. If it had ruled the other way, it likely would have made it difficult to find physicians willing to supervise PAs, they said.

“Physicians' licenses would have been at stake for physician assistants' conduct, even though in this case the board found the doctor had done everything he was supposed to do while supervising the PA,” said Madeleine Mongan, Vermont Medical Society deputy executive vice president.

She said if the ruling had held the physician responsible for the PA, it could have put residency programs at risk, because similar statutes govern physicians who supervise residents.

S. Crocker Bennett II, an attorney for Dr. Porter, said the Nov. 9 ruling is a relief for physicians. He noted that physicians can buy insurance to cover certain actions of their employees. But, he said, “you can't buy insurance for your license.”

“Physicians would have been extremely reluctant to sign on as a supervising physician for a PA,” Bennett said. “It could have resulted in a loss of an important part of the health care system.”

In 2009, Dr. Porter, director of the University of Vermont Center for Health and Wellbeing, found out that the PA may have been prescribing opiates improperly. While nursing students conducted a drug diversion study at the University of Vermont, a student interviewee told them that the PA was a source of controlled substances.

Dr. Porter heard about the comment and began investigating the assistant using electronic medical records, court records show. He concluded that the PA had engaged in improper prescribing practice.

Dr. Porter filed a complaint with the Vermont Board of Medical Practice. The PA admitted to prescribing opiates improperly, and the board disciplined him.

In December 2010, the state filed charges against Dr. Porter, alleging, among other things, that the doctor had “vicariously engaged” in unprofessional conduct and should face disciplinary actions. In January 2012, the state medical board held a hearing and dismissed all the charges, concluding that Dr. Porter “did not engage in the conduct, was not aware of it and could not reasonably be expected to be aware of it.”

The state appealed that decision to the Vermont Supreme Court. The court said the law outlines 39 scenarios in which a physician can be held professionally responsible, and “the list does not include misconduct of a PA, but focuses instead on a physician's acts, namely actions that bear on a physician's fitness and ability to practice in the state” (link) .

“Any finding of unprofessional conduct in this case would necessarily have been based upon the PA's conduct alone, because the board found that Dr. Porter did not fail to meet the standards of care, and in one case exceeded that required by the board,” the court said. “Because the law does not include a basis for disciplining a physician based solely upon the acts of a PA, the board quite simply would not have had the authority to sanction Dr. Porter for the PA's acts under that statute.”

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