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Doctor Liable for PA’s negligence, not for PA’s unprofessional conduct

January 5, 2013
I just read about another instance of a state medical board filing inappropriate charges against a physician.
In the Vermont case of In re Jon Porter, MD, the Vermont Medical Board accused a physician of unprofessional conduct after the physician assistant whom the physician agreed to supervise was found to be inappropriately prescribing narcotics.
The PA was engaging in unprofessional behavior, therefore because the physician agreed to supervise the PA, the Board alleged that the physician was acting unprofessionally as well – even though the physician did not know of the PA’s actions until he heard about the inappropriate prescriptions from a nursing student.
Ultimately, the doctor prevailed, but he had to go all the way to the Vermont Supreme Court to do it. The Supreme Court’s opinion showed that there was no statutory basis for the Board’s claims.
If a physician filed a lawsuit against someone without a legal basis, they would likely be ordered to pay for the opposing party’s attorney’s fees and costs. When a medical board is involved … meh … maybe not.
Hopefully Dr. Porter filed a claim for fees and costs against the state and individually against the Medical Board members who made those unsupported allegations.
 
Importantly, the Supreme Court noted that the Vermont legislature sought to “affirm the path for a tort plaintiff to recover from the supervising physician where the PA has committed a tortious act.” In other words, if the PA commits malpractice, the doctor will be liable for damages.
When doctors sign supervising agreements for physician extenders or agree to supervise physician extenders when they sign their physician employment contracts, realize that if those people perform negligently, the law will likely consider that the doctors performed those negligent acts.
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