Demetrius Mazacoufa, P.C.

1985 CRNA DECISION UNDERSCORES IMPROPER PA SUPERVISION IS NEGLIGENCE PER SE IN MEDICAL MALPRACTICE CASE

Kimberly Rockefeller brought a medical malpractice action against an HMO of which she was a member and against various of its corporate affiliates and individual employees. She complained that a PA (physician's assistant), supervised by physicians who had not been approved by the Composite State Board of Medical Examiners, treated her and performed tasks not authorized by the PA's job description on file with the Medical Board. For these reasons, she complained that the various defendants committed negligence per se by violating the PA Act.

Rockefeller was a member of the Kaiser Permanente HMO. Dr. Bruce Sabin was her primary care physician and was employed by a Kaiser subsidiary. Also employed by that subsidiary were Drs. Sean Murphy and Martin Ettinger and PA Jimmy McPeters. As required in the PA Act, Sabin filed an application with the Medical Board for utilizing McPeters as a PA. Other physicians were listed on that application, but Murphy and Ettinger were not.

McPeter's job description was on file with the Board and it authorized him to "order/select a dangerous drug or controlled substance or order medical treatments or diagnostic studies in any health care setting in accordance with [the rules of the Board] and to perform those routine medical treatments and diagnostic procedures for which he/she is qualified by training and which fall within the normal scope of practice of the supervising physician as delegated by the supervising physician." There were other delegations to the PA in that job description.

On April 21, 1997, Rockefeller appeared at the Kaiser HMO center complaining of nasal congestion, dry cough, and fever to the extent that she was unable to sleep. Sabin was not there. After McPeters examined Rockefeller, he arrived at a provisional diagnosis of viral syndrome and selected ventolin inhaler, cough syrup, Motrin, and Guiafenesin for her treatment. Ettinger reviewed and countersigned Rockefeller's medical records, noting his determination that documented clinical conditions justified the action taken. Murphy reviewed and countersigned the prescriptions.

The next day, Rockefeller experienced severe shortness of breath. She was taken by ambulance to a hospital where a chest x-ray revealed pneumonia. Shortly afterwards, she fell into a coma and remained that way for two months. She now suffers from severe permanent disabilities. She claims defendants were negligent in misdiagnosing her condition and in failing to order an appropriate diagnostic study; that is, an x-ray of her chest.

In moving for partial summary judgment on her claim of negligence per se, Rockefeller argued that defendants violated the PA Act and, most specifically, OCGA § 43-34-103 because the Medical Board had not authorized McPeters to treat patients or carry out prescription drug orders under the supervision of Ettinger or Murphy. As authority to support her claim, she relied on the decision of the Supreme Court of Georgia in Central Anesthesia Assoc. v. Worthy. Additionally, she asserted that McPeters's job description did not authorize him to render a provisional diagnosis of her condition.

The GA legislature enacted the PA law "to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to [PAs} where such delegation is consistent with a patient's health and welfare." In order to obtain approval of the utilization of a person as a PA, the Act requires the licensed physician who will be responsible for the performance of that assistant to submit an application to the Board. The Board's regulations make it clear that more than one physician may be listed on the application, although the number of PAs to be licensed to any one physician is limited the the Act. Both the Act and the regulations require that each physician provide individualized information to the Board relating to his or her professional background and practice specialty before being approved as a PA's supervising physician. In approving the application, the Board thus determines whether a physician is qualified to supervise competently that particular PA.

The application also must include a job description for the PA. The Act states that a PA may perform tasks described in the job description "under the direction of the applying physician." Board rules further state that a PA may perform only those tasks which are specified, for the physician or physicians named, in his job description then on file with "and approved by the Board."

As recognized by the court in Central Anesthesia Assoc. v. Worthy: it is well-settled that Georgia law allows the adoption of a statute as a standard of conduct so that its violation becomes negligence per se.[Cit.] The standard of review to determine whether the violation of a statute is negligence per se is two-fold. . . .'[I]t is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. [cits.]'. . . . For a violation of the statute to be negligence per se, the violation 'must be capable of having a casual connection between it and the damage or injury inflicted upon the person.' [Cit.]. . . . This refers not to the proximate cause element of the negligence action, which [Rockefeller] must still prove by a preponderance of the evidence, vbut rather to the character of the legal duty involved. Is this statutory duty one which, if breached, is capable of producing injury to [a person being treated by a PA]?

Violation of a regulation may also constitute negligence per se.

Rockefeller's primary claim is that the defendants were negligent per se because they violated OCGA §43-34-105. In full, it provides: On receipt of notice of the board's approval, a [PA], under the direction of the applying physician, may perform the tasks described in the job description, providing that nothing in this Code section shall make unlawful the performance of a medical task by the [PA], whether or not such task is specified in the general job description, when it is performed under the direct supervision and in the presence of the physician utilizing him.

The statute is thus composed of two parts. The first part creates a general rule, and it establishes a standard of conduct under which a PA may perform only those tasks in his job description and only under the direction of the applying physician. These limitations are intended to protect the health and general welfare of patients such as Rockefeller, by ensuring that the PA's treatment of the patient is overseen by a physician who is qualified to supervise the PA in the tasks performed. These limitations are certainly intended to guard against harm suffered by patients as a result of mistakes such as those charged to McPeters. Consequently, under the analysis set forth in Worthy, the defendants' violation of this statutory standard constitutes negligence per se.

[back to top]



	1985 CRNA DECISION UNDERSCORES IMPROPER PA SUPERVISION IS NEGLIGENCE PER SE IN MEDICAL MALPRACTICE CASE Kimberly Rockefeller brought a medical malpractice action against an HMO of which she was a member and against various of its corporate affiliates and individual employees. She complained that a PA (physician's assistant), supervised by physicians who had not been approved by the Composite State Board of Medical Examiners, treated her and performed tasks not authorized by the PA's job description on file with the Medical Board. For these reasons, she complained that the various defendants committed negligence per se by violating the PA Act. Rockefeller was a member of the Kaiser Permanente HMO. Dr. Bruce Sabin was her primary care physician and was employed by a Kaiser subsidiary. Also employed by that subsidiary were Drs. Sean Murphy and Martin Ettinger and PA Jimmy McPeters. As required in the PA Act, Sabin filed an application with the Medical Board for utilizing McPeters as a PA. Other physicians were listed on that application, but Murphy and Ettinger were not. McPeter's job description was on file with the Board and it authorized him to "order/select a dangerous drug or controlled substance or order medical treatments or diagnostic studies in any health care setting in accordance with [the rules of the Board] and to perform those routine medical treatments and diagnostic procedures for which he/she is qualified by training and which fall within the normal scope of practice of the supervising physician as delegated by the supervising physician." There were other delegations to the PA in that job description. On April 21, 1997, Rockefeller appeared at the Kaiser HMO center complaining of nasal congestion, dry cough, and fever to the extent that she was unable to sleep. Sabin was not there. After McPeters examined Rockefeller, he arrived at a provisional diagnosis of viral syndrome and selected ventolin inhaler, cough syrup, Motrin, and Guiafenesin for her treatment. Ettinger reviewed and countersigned Rockefeller's medical records, noting his determination that documented clinical conditions justified the action taken. Murphy reviewed and countersigned the prescriptions. The next day, Rockefeller experienced severe shortness of breath. She was taken by ambulance to a hospital where a chest x-ray revealed pneumonia. Shortly afterwards, she fell into a coma and remained that way for two months. She now suffers from severe permanent disabilities. She claims defendants were negligent in misdiagnosing her condition and in failing to order an appropriate diagnostic study; that is, an x-ray of her chest. In moving for partial summary judgment on her claim of negligence per se, Rockefeller argued that defendants violated the PA Act and, most specifically, OCGA § 43-34-103 because the Medical Board had not authorized McPeters to treat patients or carry out prescription drug orders under the supervision of Ettinger or Murphy. As authority to support her claim, she relied on the decision of the Supreme Court of Georgia in Central Anesthesia Assoc. v. Worthy. Additionally, she asserted that McPeters's job description did not authorize him to render a provisional diagnosis of her condition. The GA legislature enacted the PA law "to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to [PAs} where such delegation is consistent with a patient's health and welfare." In order to obtain approval of the utilization of a person as a PA, the Act requires the licensed physician who will be responsible for the performance of that assistant to submit an application to the Board. The Board's regulations make it clear that more than one physician may be listed on the application, although the number of PAs to be licensed to any one physician is limited the the Act. Both the Act and the regulations require that each physician provide individualized information to the Board relating to his or her professional background and practice specialty before being approved as a PA's supervising physician. In approving the application, the Board thus determines whether a physician is qualified to supervise competently that particular PA. The application also must include a job description for the PA. The Act states that a PA may perform tasks described in the job description "under the direction of the applying physician." Board rules further state that a PA may perform only those tasks which are specified, for the physician or physicians named, in his job description then on file with "and approved by the Board." As recognized by the court in Central Anesthesia Assoc. v. Worthy: it is well-settled that Georgia law allows the adoption of a statute as a standard of conduct so that its violation becomes negligence per se.[Cit.] The standard of review to determine whether the violation of a statute is negligence per se is two-fold. . . .'[I]t is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. [cits.]'. . . . For a violation of the statute to be negligence per se, the violation 'must be capable of having a casual connection between it and the damage or injury inflicted upon the person.' [Cit.]. . . . This refers not to the proximate cause element of the negligence action, which [Rockefeller] must still prove by a preponderance of the evidence, vbut rather to the character of the legal duty involved. Is this statutory duty one which, if breached, is capable of producing injury to [a person being treated by a PA]? Violation of a regulation may also constitute negligence per se. Rockefeller's primary claim is that the defendants were negligent per se because they violated OCGA §43-34-105. In full, it provides: On receipt of notice of the board's approval, a [PA], under the direction of the applying physician, may perform the tasks described in the job description, providing that nothing in this Code section shall make unlawful the performance of a medical task by the [PA], whether or not such task is specified in the general job description, when it is performed under the direct supervision and in the presence of the physician utilizing him. The statute is thus composed of two parts. The first part creates a general rule, and it establishes a standard of conduct under which a PA may perform only those tasks in his job description and only under the direction of the applying physician. These limitations are intended to protect the health and general welfare of patients such as Rockefeller, by ensuring that the PA's treatment of the patient is overseen by a physician who is qualified to supervise the PA in the tasks performed. These limitations are certainly intended to guard against harm suffered by patients as a result of mistakes such as those charged to McPeters. Consequently, under the analysis set forth in Worthy, the defendants' violation of this statutory standard constitutes negligence per se. [back to top]
Copyright © 2001, Demetrius Mazacoufa, P.C. All rights reserved.