Urgent Care – an Emerging Source for Medical Malpractice Attorneys

Introduction

Urgent care centers are increasingly becoming Americans’ go-to option for certain health problems according to a study in JAMA Intern Med. 2018. Visits to urgent care clinics increased by 119% among commercially insured Americans between 2008 and 2015During the same time period, emergency room visits for low-severity conditions — like those treated at urgent care centers — decreased by 36%. The reasons for these trends are numerous, including the high costs and long wait times associated with ER visits. While there are certainly benefits to such clinics, there are potential pitfalls for patients.

Urgent care centers are part of the rapidly growing “convenient care” industry, which encompasses a broad spectrum of consumer-oriented innovations providing swift, easily accessible, and more affordable care.

A confluence of factors — including expanded health coverage, lengthy wait times for primary care appointments, crowded emergency departments, and increasing health care costs — have stimulated considerable interest and investment in convenient ambulatory care in recent years. However, physician organizations such as the American Academy of Pediatrics and the American Academy of Family Physicians have expressed concerns about the potential for convenient ambulatory care to fragment care and provide lower-quality care. These debates have ensued with greater frequency in recent years as several states consider legislation around the practice of convenient ambulatory care.

Most patients turn to these clinics for illnesses and injuries that don’t rise to the level of an emergency. But for a layperson, it can be difficult to know when a particular medical problem is too serious to be handled by an urgent care facility. While a patient cannot be expected to recognize a medical emergency that is beyond the scope of urgent care, the doctors, nurses, physician’s assistants and other medical staff at these clinics definitely should. This is not always the case, and the results can be devastating.

In the state of Rhode Island, for example, most urgent cares are operated for profit. One company owns multiple sites. For them and others, it is more profitable to utilize physician extenders (physician assistants and nurse practitioners). The law requires that a physician be available to consult when the physician extender deems it necessary. In the case of the Rhode Island company, it turns out that one physician is available to cover eight or more sights, while seeing his own share of patients. This sort of arrangement has the potential for problems. In order for the physician extender to contact the physician, he would have to first recognize the need to summon the physician. It is likely that physician extender may not recognize this need. The “available for consult physician” plan is inherently flawed.

At the very minimum, a physician should be in the same building as the physician extender. At best, each and every case should be discussed with the physician. Having a physician close-by will not necessarily mitigate this limitation. An experienced assistant can perform a significant percentage of routine primary care services. Physicians are not precluded from hiring assistants to perform adjunctive services related to their practice as long as those assistants and the physician are working collaboratively and within the same office building. Every health care professional has a valuable role, and physician extenders are no exception. It is when we veer outside of our respective lanes that problems can result.

A more fundamental problem is that many (if not most) urgent cares are created as profit centers. Urgent care business owners are taking advantage of deficiencies in the law and expanding physician extender utilization beyond the point of safe medical practice. Actual patient care can take a back seat in terms of priorities. It is this arrangement that may create a source for malpractice attorneys, and worthwhile including as part of the attorney’s marketing activities.

Background

The delivery of health care has changed dramatically in the past couple of decades. Many functions which had been exclusively the domain of physicians are now shared by allied health care providers known as physician extenders.Physician extenders are comprised primarily of physician assistants and nurse practitioners. Frequently, it is more economical for a physician to hire a physician extender than a physician to the practice.

The underlying problem is that physician assistants and nurse practitioners, do not have the medical training adequate to diagnose and treat patients independently. This applies to all medical settings, whether ambulatory care or the surgical setting. This is not an elitist comment – it is a fact. Physician extenders are required to have a bachelor’s degree. This is followed by two years of medical training. Compare this to a typical physician. A bachelor’s degree is followed by four years of medical school. Next comes three years of internal medicine training and perhaps another two to three years of fellowship training. Next, the physician must become board certified by taking a comprehensive two-day examination. Board certification has to be re-affirmed by examination every ten years.  If the physician fails to achieve or maintain certifications, he will not be adequately reimbursed by the major healthcare insurers. While it is true that most states will allow a physician to practice after one year of post-graduate training, they will be reimbursed at a significantly lower rate.

These comments are not intended to be self-aggrandizing. They are to point out that physicians undergo much more training. While training does not guarantee competence, a lack of training guarantees clinical deficiency. Competency in clinical practice requires a high level of training.

By comparison, physician extenders have two years of medical training. For the most part, most have no post-graduate training and do not have available to them board-certifications. Current law in many states allow physician extenders to practice independently provided that a physician is available by phone for consultation. Physician extenders are, in effect, often left to their own devices.

Many physicians, who are engaged in the business of medicine, find this sort of arrangement to be highly profitable. In my experience, this is both dangerous and reckless. The opportunity for error is significant. In my clinical experience, the lion share of medicine is routine. In fact, within a given specialty, we tend to see the same group of illnesses over and over. Diagnosing and treating these becomes routine. The issue at hand is that occasionally we see a patient who is not routine – who needs a real doctor. Recognizing this patient is where the skill lies. Most of the time, the outlier patient requires decisive and timely intervention. Sometimes such decisiveness determines survival.  A physician extender is unlikely to recognize this patient.

One potential method to mitigate the problem is by utilizing video links. This is a solution that I believe can be effective. While it is not as good as seeing the patient in person, it is certainly a better solution than any of the others. The video link could potentially be used to have actual face time with patients. Used in this manner, it is potentially a powerful tool that I believe is entirely viable. The primary criticism is that the physician is not able to perform his own physical exam.

As might be expected with respect to physician extenders, failure to diagnose is the most common claim in urgent care medicine.One study of primary care, including urgent care centers, found that pneumonia, decompensated heart failure, acute renal failure, cancer, and urinary tract infections were the most commonly missed diagnoses, although each consisted of less than 10% of the errors.These are diagnoses that should be made by adequately trained physicians.

Conclusion

Part of the cost-saving potential in urgent care is attributable to its profit model, which relies on physician extenders—predominantly nurse practitioners and physician assistants—who receive lower salaries than physicians and lower third-party reimbursement to provide more affordable care than might be delivered in an emergency department or urgent care clinic.

Traditional office-based healthcare providers—primary care physicians and pediatricians in particular—have been vocal about the downsides of this alternative healthcare service, expressing concern about the quality and continuity of care, particularly the treatment of patients with serious or chronic conditions. These physician groups urge close physician oversight of non-physician providers in the retail clinic setting.

What are the medical malpractice exposures of an urgent care, and what kind of medical malpractice insurance costs are involved in managing an urgent care clinic? Potential claims include the absence of proper policies and procedures, lack of written practice guidelines, inadequate physician supervision, physician excess clinical oversight responsibility.

Again, while there is not enough data on urgent care malpractice claims to extrapolate any conclusions, there has been an uptick in liability claims. This uptick is likely due to the to the increased number of physician extenders.

When a malpractice claim is made against an urgent care clinic, the cause is similar to any traditional healthcare practice that employs physician extenders—failure to meet the standards of supervision with advanced practice clinicians or vicarious liability resulting from substandard care delivered by advanced practice clinicians. The malpractice attorney should be on notice of the potential for claims to be brought against urgent care centers.

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