Bad outcomes, personality conflicts, communication issues, emotions, and negligence all lead to possible litigation between and among patients and their care providers.  State boards who are tasked with the policing of professions have varying degrees of success.  The Courts and juries dispense verdicts that can be argued to be fair or not.  The system is not perfect.  What is agreed upon is that some lawsuits appear to be frivolous, some have merit, and it is sometimes difficult to determine which are which.

There are some states who have instituted tort reform and these states proclaim that tort reform is great for business.  There are injured patients in every state who have not gotten justice or fairness.  There are frivolous lawsuits.  Both sides of the professional liability issue have their poster cases of justice and injustice, of fairness and unfairness that are held up as examples of where the system has worked or has not worked.  The macro view of tort reform should, in my opinion, be focused on the issue of protecting patients from harm.  Compensating those who have been injured and trying to make them “whole” as much as one can financially.

Health care reform has introduced newer providers into the primary care marketplace.  Nurse practitioners and other physician extenders are being presented as physician replacements to insure access points into the health care system.  The government’s reform is pushing for the training of more mid-level and nursing providers to provide primary care for patients.  This is changing the health care system from “medical care” to “health care”.

One would think that the use of the highest trained and educated individuals to treat patients would result in the best care.  Will reducing the education and training of the primary care personnel in the health care setting result in a lesser quality of care or in bad care?  Will there be patient’s harmed when “medical care” is supplanted by “health care?”  Is this an acceptable or calculated risk under the concept of population medicine?  Medical care can only be provided by physicians (allopathic or osteopathic) who are educated and trained in medicine and can therefor provide medical care to patients.  Physicians may delegate certain duties and functions to other members of the care delivery team.  These physician extenders help the physician take care of patients and help provide care.  The leader of the medical care delivery team must be a physician.  Physicians do, should and must supply the leadership, quality, perspective, and patient advocacy to the care team.  In the arena of public awareness, the term “medical care” is being substituted by “health care”, the disclaimer of  “see or consult with your medical doctor” is changing to ” see or consult with your health care provider.”  Medical care by definition must be provided by a physician (MD or DO) or a physician led care team.

As physicians, we must expand our view of medical care and medical education to include preventive, coordinated, and cost effective care.  This change is inevitable and physicians should and must lead the way.  Nurse practitioners can provide nursing care because that is their training.  Nurses teach nurses.  Nurses have no medical training and cannot provide medical care.  Therefor, a government public relations, legislative, and regulatory campaign to lessen the value of medical training and inflate the value of nursing training in underway.  The medical profession is under assault by the government.  This can be the topic of another discussion.  (medical training, nursing training, medical care, health care)

Non MDs or DOs cannot provide medical care as they have no medical education and have only very limited exposure, if any, to medical training or clinical practice.  Nurse practitioners are trained by nurse practitioners.  Exposure to medical training as well as any clinical exposure is limited if not absent during a Master’s program.  This glaring lack of clinical exposure much less experience is glaringly lacking in the DNP curriculum.  More mid-level providers are being pumped out of programs with fancy bookwork degrees (Master’s and DNP) with little more “clinical” nursing experience than a Registered Nurse.  Many of these programs are through distance learning using a computer and the internet.

National mid-level provider trade associations and state boards of nursing are expanding the scope of practice (or being able to practice to the full extent of licensure and training) with little to no ability of medical boards to define, much less regulate, the practice of medicine by these non-medically trained persons.  State boards of nursing are not regulating the scope of nursing practice, but openly embracing unlimited “nursing” practices.  The IOM study, without any physician input, finds that these mid-level providers can function as primary care access points and provide care as good as a primary care physician.  The government, in PPACA, promotes mid-level, non-medically trained personnel as equal substitutes for primary care access points and as a solution to the projected physician shortage.  Numerous mid-level provider generated “academic” papers tout the equal care, equal outcomes, and, sometimes, superior outcomes of mid-level non-medically trained provider care.  Some of these poorly designed and questionable “studies” are then promulgated and touted as truths to further an agenda.

Everyone has anecdotal tales of over and under treatment, over and under diagnosis, inappropriate referrals for testing and consulting, and damage to patients that occur with mid-level providers who either work independently or in loosely collaborating practice arrangements.

Rather than everyone blindly clamoring for tort reform, as physicians, we should be looking out for those patients who will be harmed by the care provided by this vast wave of unregulated non-medically trained mid-level care givers.  The government is going to use these providers as physician replacements (just look at how the definition of physician has been revised).  The federal government, state boards of nursing, national mid-level trade associations, national policy organizations, and insurance companies are all willing to accept the premise that the care given by these “cheaper” replacements is at least equal to those of physicians.

It is time for the courts and the plaintiff’s bar to look at these individuals and hold them responsible for their actions.  If one truly believes that they are equal to a physician and are licensed to practice as physician replacements and substitutes, they should be held equally accountable and liable as physicians.  Patients should expect that the quality of care received and the liability of the practitioner be the same wherever the care is given.  The liability for the care should not be shifted to the “collaborating” physician when the decisions that lead to negligence are totally within the purview of the treating non-medically trained mid-level provider.  Plaintiff lawyers should be educated to identify and hold accountable the provider responsible and not just look for deep pockets.

Mid-level non-medically trained providers who practice independently or through loosely devised “collaborative” arrangements should have liability insurance coverage equal to or greater than a physician.  The cost of a mid-level’s insurance should be at least the cost of a physician’s liability policy when practicing independently or “collaborating” off site from a supervising or collaborating physician.

When practicing to the “full extent of training and licensure,” non-medically trained mid-level providers who are independent and/or offsite “collaborators” should be held to the standard of care provided by the physician that they are substituting or replacing in the healthcare delivery system.

I cannot see any other stance for true patient advocates to take.  Only by effectively and honestly advocating for equality of patient care and safety, for equality in the quality of care patients deserve or have a right to expect can physicians truly consider themselves patient advocates.

Tort reform, which will disproportionally protect lesser trained personnel providing less quality of care,should be advanced only with full disclosure of all unintended consequences.

I was allowed to read a manuscript on tort reform and a proposed method to make it more reasonable, if that is possible.  I was one of the guest editors to read and comment on this article before selecting it for publishing.  This article will be published in the SMJ (Southern Medical Journal) within a few months.  I would recommend that all read the article and think about what it proposes to level the playing field and reward provider’s quality, experience, compassion, and empathy when outcomes are less than ideal and litigation initiated.  www.smj.org