Legal Issues in Neonatal-Perinatal Medicine

Theories of Liability for Attending Physicians

Attending neonatologists carry substantial responsibility. Generally, they bear ultimate medical responsibility for the neonates under their care. Practically speaking, it is impossible for one physician to provide all of the care for a sick newborn. Depending on the clinical setting, nurses, NNPs, PAs, respiratory therapists, social workers, residents, fellows, consultants, and many others all contribute greatly to patient care. The exact demarcation of responsibility and liability borne by attending physicians for these alternate providers is often difficult to determine.

In holding attending physicians liable for the acts of others, courts tend to rely on three different theories of liability. An early theory of attending liability was known as the “captain of the ship doctrine.” Physicians, particularly surgeons, were assumed to be similar to naval captains and to have complete control over the operating room (the “ship”) and all the medical personnel (the “crew”) within. With this control came responsibility for all negligent actions performed by anyone under the surgeon's “command.” Most courts now recognize the increasing complexity of health care provision and have rejected the captain of the ship doctrine as “an antiquated doctrine that fails to reflect the emergence of hospitals as modern health care facilities.”

Respondeat superior is a more accepted doctrine of physician liability for negligence of others under his or her control. Respondeat superior literally means “let the master answer.” Because an attending physician has a right of control over an NNP or resident, the negligence of that provider is imputed to the attending physician in certain circumstances. Under respondeat superior , the attending physician would be responsible if a resident negligently places umbilical lines or an endotracheal tube. The attending physician would not be liable, however, under respondeat superior if a bedside nurse was negligent in the observation or reporting of a significant intravenous infiltrate. Under the earlier “captain of the ship” doctrine, the attending physician may have been deemed to be responsible for the intravenous infiltrate.

The attending physician can also be held liable for providing “negligent supervision.” For supervisees under his or her charge, the attending physician is responsible for providing adequate training and supervision. The attending physician must be readily available and promptly respond to requests for assistance. This responsibility was underscored in a 2004 obstetric malpractice case in which the attending anesthesiologist was not immediately available for an emergency cesarean section, and the fetus allegedly suffered as a result. The case was settled for $35 million.

Finally, in many cases, an attending physician becomes liable for the actions of supervisees by the creation of a physician-patient relationship that flows from the patient through the supervisee to the attending physician. In a case in New York, a patient was seen by a nurse practitioner in an emergency department, and the nurse practitioner misdiagnosed the condition. The attending physician discussed the patient with the nurse practitioner and signed the chart but did not personally examine or speak with the patient. The court, interpreting New York's law regarding nurse practitioners, held that “the ultimate responsibility for diagnosis and treatment rests with the physician.”

Residents and Fellows

During their postgraduate training, residents and fellows gain increasing experience and clinical skills under the supervision of attending physicians. Under the doctrine of respondeat superior , the educational institution and the attending physician are generally responsible for the medical care provided by residents and fellows.

Residents who have completed their first year of training are eligible to be licensed to practice medicine without supervision. Because of this fact and the expectation of appropriate supervision, most states treat residents as physicians rather than students and hold them to “the same standard of care as physicians who have completed their residency in the same field of medicine.” Nevertheless, because trainees are thought to be agents of the hospitals in which they work, often have limited financial resources from which to pay a judgment against them, and always have an attending physician assigned to the patients for which they are caring, the institution and the attending physician are almost always named in the lawsuit as well.

Neonatologists must be very careful about appropriately supervising residents and fellows. In some cases, inexperienced trainees are responsible for caring for some of the sicker patients in the NICU. From a legal standpoint, the supervising neonatologist must remain involved in the care of these patients and provide an appropriate level of oversight. The level of supervision would vary based on a variety of factors, including the condition of the patient, the likelihood of major changes in that condition, and the experience and skill of the resident providing the care. Failure to provide appropriate supervision can result in liability for negligent supervision.

Physician Assistants

Many NICUs now employ physician assistants (PAs). A PA is a health care professional who may practice medicine only with physician supervision. A certified PA is a health care professional who has completed training and passed a national certification examination. The scope of practice of PAs is governed by state law and varies from state to state. In many states, PAs are authorized to prescribe medications. Physician assistants can contribute greatly to the care of neonates, and some centers that have found it difficult to recruit an adequate number of NNPs have found PAs to be an “untapped resource for the NICU.” It is important, however, for physicians to determine the scope of practice for PAs in their individual state for two reasons. First, there is increased potential malpractice liability for the supervising physician when PAs exceed their scope of practice. Second, physicians may risk loss of their licenses if they are “found to have condoned the unauthorized practice of medicine by a nurse or other health care professional for whose conduct [they are] responsible.”

Advanced Practice Neonatal Nurses

There has been a rapid increase in recent years in the number of advanced practice neonatal nurses (APNNs) in the United States. An APNN is a registered nurse who has completed a master's degree in advanced nursing practice and, in most cases, has passed a national certifying examination. Advanced practice nurses are regulated at the state level, and educational requirements can vary. Most states require a graduate degree, generally a master's, for authorization to practice at the advanced practice level, and 45 states require national certification. Additionally, the National Association of Neonatal Nurses supports a “future goal” of having all APNNs be prepared through a Doctor of Nursing Practice. APNNs have played an invaluable role in improving health care for neonates in various settings ranging from urban academic centers to small rural hospitals. Under certain circumstances, there can also be additional liability for the physician.

In neonatology, there are generally two recognized types of APNNs: clinical nurse specialist and neonatal nurse practitioners. The clinical nurse specialist is a registered nurse with a master's degree who has expertise in neonatal nursing. The NNP is a registered nurse with experience in neonatal nursing (many have completed a master's degree) and additional clinical training in the management of newborns. Neonatal nurse practitioners are allowed to assess, diagnose, and treat newborns independently or under the supervision of a physician.

The licensure and scope of practice of APNNs vary considerably from state to state. Each institution must have policies and procedures for granting privileges for APNNs. The American Academy of Pediatrics Policy Statement on Advanced Practice in Neonatal Nursing released in June 2003 recommends the following:

• A neonatologist should supervise an APNN in the NICU.

• The APNN should collaborate and consult with other health care professionals.

• The APNN should be certified by a nationally recognized organization and should maintain that certification.

• The APNN should participate in continuing education.

• The APNN should comply with hospital policy regarding credentialing and recredentialing.

One critical issue concerning APNNs is the liability of the supervising physician. In some states, NNPs are licensed to practice independently and require no supervision under the law. If an NNP is hired by a hospital as an independent contractor with his or her own privileges, the physician does not employ the NNP. In these situations, when the NNP and physician are interacting in the management of an infant, the physician is acting the same as when consulting with any other provider, with similar liability.

In most instances, however, and in almost all NICU environments, APNNs are not hired as independent contractors but rather as employees of the physician or hospital. In these cases, the employer is vicariously liable for the acts of the employee. The NNP is often supervised by an attending neonatologist who bears ultimate responsibility for the patient, as discussed earlier.