Liability of Physicians’ Assistants

In any given medical negligence case, the “standard of care” for the specific provider in question is a factual question that must be established through expert testimony. This requirement is set forth by RSA 507-E:2(I), which enumerates the elements necessary for a plaintiff to meet his or her burden of proof. However, until recently, there were contexts where additional New Hampshire law impacted the standard of care depending on the education and licensing level of the treating provider.

For example, physician’s assistants (PAs) were held to different standards than higher level practitioners. Until recently, RSA 328-D dictated that PAs were required to participate in training programs approved by the Board of Medicine and were not permitted to practice independently, i.e., outside the direction and supervision of a licensed physician. Moreover, physicians were professionally and legally liable for the care provided by their PAs. The Board of Medicine regulations further defined the working relationship required between a physician and the physician assistant(s) under his or her care. See N.H. Admin. Rules, Med 601-603.

In June of 2022, however, new legislation modernizing the PA practice in New Hampshire was signed into law. This new legislation represents an overhaul of RSA 328-D and loosens the restrictions on the scope of PA practice. For example, PAs are no longer required to be directly supervised and instead are only required to enter into “collaboration agreements” with a participating physician, who makes an individual assessment as to the permissible scope of that PA’s practice. RSA 328-D:1 (2023). Perhaps the most significant change under the new law is complete removal of physician liability. Under this new collaboration model, physicians are no longer assigned liability for the care provided by PAs. RSA 328-D:12 (2023).  The Board of Medicine still maintains licensing and disciplinary authority over PAs, but their regulations have not yet changed to address the amendment to RSA 328-D.

It is not yet clear how this collaboration model will impact the analysis of the standard of care when a patient is subjected to negligent care by a physician assistant, though the issue may become increasingly relevant to medical negligence litigation over the next decade. In 2021, there were 991 certified PAs practicing in New Hampshire – a 29% growth rate from 2017.¹ That trend is expected to continue: the Bureau of Labor Statistics projects the national growth rate for physician assistant jobs to continue at 28% through 2031.² The factors contributing to such a high profession growth rate include the following: physician and surgeon shortages (projected to worsen as an ageing population continues to require more and more care); an increase in accredited PA education programs;³ and an increase in the median salaries of PAs.⁴ There is also the general appeal of the profession to those looking to enter the medical field but seeking a better work-life balance with less risk of burnout.⁵

In New Hampshire, there is no doubt that PAs have a practical role to play when it comes to availability of qualified medical personnel. As of 2019, 42.4% of PAs in the state were serving rural areas, and a typical PA completed 56 patient visits per week.⁶ With 47% of the state’s population considered to be rural, PAs are meeting an obvious need for access to healthcare in traditionally under-served areas.⁷ So important is such a role to the region that in 2016, Franklin Pierce University’s Master of Physician Assistant Studies program earned the #2 national ranking by the Rural Health Research Center for the highest proportion of graduates that go on to work in rural healthcare.⁸

But exactly how qualified are PAs? The average layperson likely views a PA as a functional alternative to a physician, i.e., someone who is essentially a doctor. In fact, an American Medical Association survey in 2021 revealed that about half of patients have trouble identifying who is actually a licensed physician.⁹ The people receiving care from PAs may not realize that the path to certification as a PA is radically different than that of a true physician. An MD (or DO) program is a four-year doctorate program, whereas a PA program is a 2 to 3 year master’s program. Notably, applicants seeking entry into an MD program must pass the MCAT – a much more technical, specialized exam than the basic GRE required for PA program applicants, which measures only general abilities to reason and write. Further, the average GRE scores for students accepted to PA programs are at or slightly above the 50th percentile, whereas the average MCAT score for medical school matriculants is the 82nd percentile.¹⁰ After graduation, medical school students are required to complete 3 to 4 years of specialized training through residency, and sometimes go onto receive advanced training through a fellowship lasting another 1 to 3 years. By contrast, PAs are not required to complete any specialized training upon being licensed. So while PAs do help to narrow the gulf in access to care for under-served populations, the inherent gulf in the quality of care provided to patients cannot be eliminated. It is hard to imagine that gulf shrinking when PAs are no longer required to be supervised by a physician, but the commensurate education and training requirements remain unchanged.  

There is now also a hidden legal cost to the proliferation of PAs into the healthcare market and the state’s recent expansion of their ability to practice independently. Before the law changed, physicians reaped the benefit of having PAs share their workload, but in turn assumed liability for their PA’s actions. Patients assumed some risk by treating with a PA rather than a more qualified provider, but the risk was mitigated by the supervision of a responsible physician. Now, physicians still reap the benefit of having PAs share their workload, and PAs themselves enjoy the new benefit of having less restriction or supervision on their practice in exchange for assuming liability for their own actions. But without that required supervision, patients assume a much larger risk to their own health by treating with a PA – assuming they have any choice in provider at all. If they are injured because of negligence, it could also mean a smaller pool of funds from which they could recover through a lawsuit, depending on the PA’s available insurance coverage. It is not yet known how malpractice policy limits for PAs will change to reflect their greater independence under the law.

¹ Statistical Profiles of Certified PAs, Annual Report. NCCPA (2022).
² https://www.bls.gov/ooh/healthcare/physician-assistants.htm
³ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8966786/
⁴ https://medicalaid.org/how-much-do-physician-assistants-make-in-2023-pa-salary-reports-and-more/
⁵ https://nam.edu/burnout-and-job-and-career-satisfaction-in-the-physician-assistant-profession-a-review-of-the-literature/
⁶ New Hampshire PA Practice Profile. AAPA (2019).
⁷ https://www.dhhs.nh.gov/sites/g/files/ehbemt476/files/documents2/2014.pdf
⁸ https://www.franklinpierce.edu/academics/programs/physician-assistant/index.html
⁹ https://www.ama-assn.org/practice-management/scope-practice/pa-rebrand-physician-associates-will-deepen-patient-confusion?utm_effort=DAPSRH&gad=1&gclid=Cj0KCQjwu-KiBhCsARIsAPztUF1GMLNCNsSbhRE5PNgXrHpnVBA3z4jKGVZ_HlkDKCQcClUrvt1DzM4aAuv9EALw_wcB
¹⁰ https://www.shemmassianconsulting.com/blog/pa-vs-md