Midlevel practitioners (MLPs) are increasingly becoming an important fixture in American health care, and although their use provides great opportunities to improve the provision of health care around the country, the novelty of their increasing scope of practice in a burgeoning number of jurisdictions presents their supervisors, and them, with the possibility of increased legal liability. It is important, therefore, to define who they are, what they do, and how best to protect them and their supervising physicians and institutions from liability. First, any reference to “physicians” or “doctors” in this chapter refers to graduates of accredited medical schools with the degrees of MD or DO. For our purposes, an MLP is a practitioner who is performing a function that has traditionally been thought of as being within the purview of medicine but who is not a physician. While there may be other providers that fit some portion of this category, for practical purposes, our discussion is limited to nurse practitioners (NPs), including those who have a doctorate in nursing practice (DNP), and physician assistants (PAs). Moreover, although these practitioners dislike being referred to as MLPs, that designation was placed on them more as a billing standard by the Centers for Medicare and Medicaid Services (CMS) than by physicians. MLPs came into existence for a reason, they persist for a reason, and when properly utilized, they can provide significant contributions to patient care and the efficiency of the health care system. It is only when their practice overreaches their education, training, and experience or they practice in a manner for which their training has not prepared them that difficulty begins. First, therefore, some background is provided.
The first program to produce an MLP was at Duke University in 1965 and was founded by Eugene A. Stead, Jr., MD, then chairman of Duke’s Department of Medicine. It was proposed in partial answer to an impending primary care physician shortage in the United States, and because it occurred during the Vietnam War, it was reasoned that if military medics entered the program, they would already have a significant amount of clinical experience, especially with trauma, and could supplement physicians working in their offices, hospitals, and clinics. It was a two-year program meant to fill the gap between physicians and nurses, and graduates were referred to as PAs.1
Perhaps wanting to protect the place of nurses in health care, the first program to graduate NPs was founded at the same time at the University of Colorado by Loretta Ford, RN, and Henry Silver, MD. The goal was to “increase the supply of primary care providers, especially in underserved urban and rural areas by training Registered Nurses (“RN”) in clinical care so they could … free up physicians for those patients who really needed their attention.”2
Early on, PAs and NPs worked in physicians’ offices, clinics, or rural health settings, in many cases making ...