By Matthew K. Wollin and Jordan J. Szymialis
On Dec. 31, 2015, the Indiana Court of Appeals issued a ruling in Collip v. Ratts, 49A05-1501-CT-1, 2015 WL 9589777 (Ind. Ct. App. Dec. 31, 2015). The underlying facts show that on March 30, 2009, one of a nurse practitioner’s patients, Robert Ratts, died as a partial result of mixed drug intoxication. Vickie Ratts, deceased’s mother, (hereinafter “Ratts”) brought a medical malpractice claim on behalf of her son against John Collip, M.D. (hereinafter “physician”). Ratts filed a motion for partial summary judgment and argued that the physician, who had entered into a collaborative practice agreement (CPA) with the nurse practitioner, owed a duty to the deceased as a matter of law. The physician filed a cross-motion for summary judgment and argued that, as a matter of law, he owed no duty to the deceased. After oral argument, the trial court issued an order granting Ratts’ summary judgment motion and denying the physician’s cross-motion. In so doing, the trial court held, as a matter of law, that the physician owed a duty of care, even though he had never treated Ratts’ son. The Court of Appeals affirmed the trial court’s decision and held that physicians who undertake the responsibility to oversee nurse practitioners who prescribe “legend drugs” owe a duty to the nurse practitioner’s patients to fulfill their contractual obligations with reasonable care. Id. at *1.
The Court of Appeals began its discussion by pointing out that under Indiana law, a nurse practitioner cannot prescribe legend drugs without a CPA with a licensed physician. Id. at *1. The CPA between the physician and nurse practitioner provided that the nurse practitioner practiced under the direction and supervision of the physician. The physician was paid for his oversight. Id. at *1. According to the CPA, the physician was to review at least 5 percent of the nurse practitioner’s charts on a weekly basis and document her prescriptive practices. Id. at *1.
Although the CPA required the physician to review at least 5 percent of the charts, the physician admitted he did not comply with these requirements. Id. at *1. He did engage in a limited review, and apparently this review caused him to become concerned about the amount of narcotics the nurse practitioner was prescribing to her patients. Id. at *1. He even suggested that the nurse practitioner attend a narcotic prescribing seminar but did not follow up with her regarding this seminar. Id. at *1.
The deceased was a patient of the nurse practitioner and was described by the court as a high-risk patient. Id. at *2. The nurse practitioner prescribed multiple medications for him. Id. at *2. An autopsy review revealed that the cause of his death was acute bronchopneumonia complicating mixed drug interaction. Id. at *2. It was noted that the physician neither treated nor consulted with the deceased and never reviewed any of his medical records before the litigation. Id. at *2.
The Court of Appeals rejected the physician’s argument that a “physician-patient relationship” must exist for a duty to be found and analyzed whether a legal duty existed under the seminal case of Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991). Id. at *3. Under Webb, the three well-known factors to review when determining the existence of a legal duty are (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person who is injured, and (3) public policy concerns. Webb, 575 N.E.2d. at 995.
Analysis of the Webb factors, section 324A of the Restatement of Torts, and the Collip holding
In analyzing the first factor, the court looked at the relationship between the physician and the third-party patient. The court noted that the only link between the two was the CPA between the physician and nurse practitioner. Collip, 2015 WL 9589777, at *3. Notwithstanding the lack of privity between the physician and the deceased, the court found that the relationship factor did weigh in favor of the existence of a duty. Id. at *3. Significantly, the court noted that the physician had “actual knowledge” that the services he was providing were for the benefit of third parties and that those third parties might “reasonably be affected by the manner in which he performed the services.” Id. at *3.
With respect to the second factor, the court focused on whether the person harmed was a “foreseeable victim and whether the type of harm actually inflicted was reasonably foreseeable.” The court noted that the physician had admitted that his failure to adequately supervise the nurse practitioner could result in harm to her patients. Id. at *4. The harm that occurred to the deceased, his unfortunate death partially from mixed drug intoxication, was the type of harm one would expect if the physician negligently performed his obligation under the CPA. Id. at *4. Thus, the court also found that the second factor weighed in favor of a duty. Id. at *4.
Lastly, in analyzing the third factor, the court reviewed the policy reasons behind the legislation passed by the Indiana General Assembly authorizing nurse practitioners to provide medical services. The Court of Appeals noted that nurse practitioners are not physicians and the Legislature determined that physician oversight of nurse practitioners is required. Id. at *4. Specifically, if a nurse practitioner seeks to prescribe legend drugs, she must fulfill a number of conditions, including submitting proof of collaboration with a licensed practitioner in the form of a written practice agreement. Id. at *4. The court determined that the primary public policy underlying the requirement of collaborative practice agreements is to protect and ensure the safety of the public. Id. at *6. Therefore, the Court of Appeals found that public policy was strongly in favor of holding that physicians owe a duty to the nurse practitioner’s patients pursuant to a CPA. Id. at *6.
The court held that doctors have a “duty to the patients of the nurse practitioners of reasonable care and fulfilling the doctor’s obligation under the CPA.” Id. at *6. The court ended its opinion by addressing section 324A of the Restatement of Torts. The court stated that the physician voluntarily undertook to enter into the CPA and to perform the duties required by that agreement. Id. at *7. He undertook a duty to directly supervise the nurse practitioner in her practice, including her prescribing practices, and was paid for the services. Id. at *7. The court found that the scope of a physician’s undertaking when entering into a CPA is to comply with the terms of the contract to protect the safety of the nurse practitioner’s patients. Id. at *7. The physician’s “specific undertaking” did, in fact, extend to the safety of the nurse practitioner’s patients. Id. at *7. Thus, the court held that whether it analyzes the duty question under Webb v. Jarvis or under section 324A, the answer is the same: the physician had a duty to the third-party patient as a matter of law. Id. at *7.
Short-term impact of Collip decision
The immediate consequences regarding physician liability are clearly stated in the appellate court’s opinion: if a physician has a CPA, he has a duty to fulfill those contractual obligations with reasonable care. Id. at *6. The Indiana Court of Appeals, however, made clear that physicians “are [not] the guarantors of the nurse practitioners pursuant to a CPA.” Id. at *6. The court provided further guidance to doctors by noting by example that if the physician reviews the charts pursuant to the CPA, the doctor “has not breached the duty to that patient” if he “sees nothing troubling, and one of the patients is harmed by the negligence of the nurse practitioner.” Id.
As a result, physicians should ensure that they have the time and resources to fulfill their CPA obligations. The Court of Appeals impliedly criticized physicians who take on numerous CPA obligations that are unrealistic with a full-time practice schedule. See Id. at *5 (“They [physicians] would feel free to adopt [the physician’s] approach, which involved entering into eleven to twelve CPAs while also maintaining a 90-hour-per-week medical practice. This result is clearly not what the General Assembly intended when it enacted this legislation.”). Although a duty of care may not be created simply by entering into the CPA based on a lack of patient-physician relationship, the physicians do have a duty to third-party patients under Collip to fulfill their obligations under the CPA.
By holding that a duty was owed, the Court of Appeals aimed to ensure physicians would refrain from taking on more than they could handle. Any other holding, the court noted, would run contrary to the public policy set forth by the General Assembly when it “enacted a statutory scheme ensuring that physicians will provide meaningful oversight, with an apparent end goal of protecting the safety of the public.” Id. at *6.
Who could best avoid the injury and at what cost?
Perhaps most notable is the Court of Appeals decision to extend a physician’s duty to a third-party patient whom the physician neither saw nor cared for. The physician had argued he could not be found liable where there was no physician-patient relationship. Indeed, in Harper v. Hippensteel, 994 N.E.2d 1233 (Ind. Ct. App. 2013), the other Indiana Court of Appeals case addressing CPAs, the appellate court held that a physician who had entered into a CPA “did not owe a duty to [the patient] because he did not, at any time, enter into a physician-patient relationship with [the patient].” Id. at 1242. The Harper decision, as the Court of Appeals in Collip noted, however, merely provided that the CPA alone “does not create a physician-patient relationship.” Collip, 2015 WL 9589777, at *3.
Rather, the Court of Appeals applied the well-known Webb v. Jarvis factors and held a duty did exist to the third-party patient. Threaded throughout the Court of Appeals decision are concerns regarding the safety and well-being of the patients that align closely to public policy concerns. Indeed, applying the specific facts of this case, the Court of Appeals analysis of duty under the public policy factor is consistent with recent case law involving whether a duty is owed to a third party. For example, in Rodriguez v. United States Steel Corp., 24 N.E.3d 474 (Ind. Ct. App. 2014), trans. denied 29 N.E.3d 125 (Ind. 2015), the Indiana Court of Appeals noted that the public policy factor focuses “on who is, or should be, in the best position to prevent an injury and how society should allocate the costs of such injury.” Id. at 478 (citation omitted) (quotation marks omitted). Moreover, the Indiana Supreme Court has stated that “[w]hat the public policy of a state is must be determined from a consideration of its Constitution, its statutes, the practice of its officers in the course of administration, and the decisions of its court of last resort.” Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 518 (Ind. 1994) (quoting citation omitted).
In Collip, the court’s discussion of the relationship between the parties, the reasonable foreseeability of harm to the person injured, and public policy discussion itself, referenced the safety of the patients, a nurse practitioner’s lack of the knowledge or education possessed by a physician, the physician’s actual knowledge (due to the CPA) that his services benefited third parties, and the need for physician oversight. 2015 WL 9589777, at *3-4. Although the Court of Appeals did not cite Rodriguez, the same analysis is clear through its decision: the physician was positioned to prevent the injury.•
Mr. Wollin is of counsel and Mr. Szymialis is an associate with Stuart & Branigin in Lafayette and are members of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the authors.