|Civil Division- Kent County (739-7641)
||February 28, 2002
Iva Boardman, RN, MSN
Delaware Board of Nursing
861 Silver Lake Boulevard, Suite 203
Dover, DE 19904
RE: The obligation of nurses to honor orders issued by Physician's Assistants
Dear Ms. Boardman:
You have requested the opinion of the Attorney General regarding the extent of a nurse's obligation to honor orders issued by a duly licensed physician's assistant. As you know, we previously issued an opinion in 1992 on this issue, but subsequent statutory changes expanding the authority of physicians' assistants to initiate orders, including prescription orders as part of their delegated medical duties, have prompted your most recent inquiry. Based on the discussion below, we conclude that a licensed nurse should honor a reasonable treatment or medication order issued by a duly licensed physician's assistant acting under the supervision of a physician. The nurse who honors such an order does so because it is, in effect, the order of the physician, and does not thereby violate the Nurse Practice Act.
This is not the first time this issue has been a matter of concern in the nursing community. In July 1991, 24 Del. C. §1770A was enacted. This new section of the Medical Practice Act established standards for "physician's assistants". In 1992, this office advised the Delaware Board of Nursing that under the newly-enacted statute there was, at that time, no statutory authorization for nurses to provide services as a result of orders initiated by a physician's assistant, however, orders of a physician relayed or communicated by a physician's assistant to a nurse are, in fact, orders of the doctor, not the physician's assistant, and should be honored by nurses. This opinion clarifies our prior advice in light of statutory changes since that time which have further expanded the authority of physicians' assistants to initiate orders, including prescription orders.
The authority of a physician's assistant to issue orders is dependent upon, or derives from, that of a licensed physician as set forth in the Delaware statutes which provide that a physician's assistant has no authority to function independently apart from the supervision and direction of a physician. Likewise, physicians' assistants may not perform any medical act which has not been delegated by a supervising physician nor assign a delegated task to any other individual. See 24 Del. C. §§1770A(a)(2)a and (b)(2)c-d. In order to facilitate the goals of a physician's treatment plan, the statute, as amended, provides that a licensed physician's assistant may now exercise prescriptive authority, and also contemplates the exercise of some independent judgment to make diagnostic and treatment decisions. See 24 Del. C. §1770A(b)(2)b.5.
The authority of duly licensed Delaware physicians' assistants expressly includes the authority to perform delegated medical services including "[r]elaying, transcribing, or executing specific diagnostic or therapeutic orders so long as all such notes, orders and other writings shall be reviewed and countersigned by the supervising physician within 24 hours, barring extraordinary events or circumstances." 24 Del. C. §1770A(b)(2)b.3.
When a physician's assistant issues therapeutic orders, he or she does so as the agent of the delegating physician, and orders of a physician relayed or communicated through the physician's assistant should be viewed as orders of the doctor rather than as independent orders of the physician's assistant. Such orders should normally be honored by the nurse as an appropriate nursing activity under 24 Del. C. §1902(b)(6). In executing such orders, the nurse may rely upon the statutory authority of the physician's assistant to relay and transmit the doctor's orders, and the nurse should execute those orders to the same extent as those given by a physician.
In furtherance of the statutory grant of authority to perform "delegated medical acts," the licensed physician's assistant not only has prescriptive authority but may issue orders as directed by the physician to other health care professionals when it is necessary to effectuate the directions of the supervising physician. The fact that the physician's order is communicated by a physician's assistant rather than the physician personally does not lead to the conclusion that the order exceeds the authority or scope of the delegated medical duty which the physician has assigned to the physician's assistant. Furthermore, the fact that the physician gives the assistant some level of professional discretion in the precise manner in which delegated healthcare activities and duties are effectuated is a matter of the scope of the physician's assistant's implied authority. A fair reading of 24 Del. C. §1770A, contemplates that a physician's assistant will, under the supervision of the authorizing physician, exercise their training, experience and independent judgment in the performance of delegated medical activities. The fact that the physician's assistant exercises some independent judgment in formulating and transmitting orders to carry out medical activity delegated by a physician does not, in itself, equate to the exercise of impermissible independent practice by the physician's assistant, nor does it make it any less the authorized order of the supervising physician.
The 1994 revisions of the Medical Practice Act expanded the role of the assistant to no longer require the constant physical presence of the supervising physician (24 Del. C. §1770A(a)(2)) and to expand the scope of the assistant's practice to expressly authorize delegated acts of diagnosis and prescription of therapeutic drugs and treatments as well, as the authority to make independent diagnoses and treatment decisions subject to biennial review.(1)
One of the practical concerns in this area stems from the fact that, in some instances, there may be the perception that a physician's assistant is issuing prescriptions and orders without the specific direction from or, in some cases, the knowledge of his or her supervising physician. This issue is made more difficult due to the statutory language which provides that supervision of a physician's assistant requires only the exercise of "control and direction" over the assistant as opposed to the constant physical presence of the supervising physician. 24 Del. C. §1770A(a)(2).
Although it may be difficult for a nurse to determine if a particular order given by a physician's assistant is issued pursuant to the assistant's delegated medical authority or if it is beyond the scope of that authority, it is the professional responsibility of the supervising physician, and not the nurse, to control and direct the actions of the physician's assistant. See 24 Del. C. §1770A(a)(2)e.(2) In addition to the general statutory obligation to supervise, physicians are also required to review and countersign specific diagnostic or therapeutic orders relayed, transcribed or executed by a physician's assistant. 24 Del. C. §1770A(b)(2)b.3.
By openly agreeing to act as supervising physician to a physician's assistant, a doctor cloaks that physician's assistant with the authority to relay, transcribe, or execute diagnostic or therapeutic orders as an agent of that physician. The physician who has delegated medical responsibility and duties to a licensed physician's assistant is responsible for that individual's medical activities and must provide adequate direction and supervision. A nurse receiving an order from a physician's assistant can normally rely on the apparent authority of the physician's assistant but only to the extent that reliance on that authority is reasonable and based upon some indicia of the existence of such authority originating with the supervising physician. See, Billops v. Magness Const. Co., Del Supr., 391 A.2d 196 (1978) (discussing the basic theory of apparent agency); see also, International Boiler Works Co. v. General Waterworks Corp., Del. Supr., 372 A.2d 176 (1977) (concluding that ordinarily an agent can bind the principal on the basis of apparent authority but only if the third party reasonably concludes that the agent is acting for the principal). Determinations as to the reasonableness of reliance on a physician's assistant's authority and the reasonableness of the orders given by a physician's assistant are highly fact-specific.
As the Iowa Attorney General appropriately advised in discussing the issue:
To allow nurses to refuse [orders given through a physician's assistant] would frustrate the functioning of the physician's assistant and thereby thwart the intent of the legislature in recognizing the legal status of that profession and in giving substance to it. This is not to say that in all circumstances a nurse must blindly follow the dictates of a physician's assistant - or for that matter, even the orders of the physician himself. There may be instances where a nurse may properly wish to confer with a physician on an interpretation of an order. There may also be instances where a nurse may wish to confer with the physician to determine if, by rendering an order, a physician's assistant has overstepped his legal authority or the extent of his delegation from the physician. However, we believe that it is not in the best interest of good medical care for a nurse to be reluctant to follow orders merely because they are transmitted by a physician's assistant. (Emphasis added).
See Iowa Op. Atty. Gen 897, 1978 WL 17577 (Iowa A.G.)
This good advice finds ample justification and support in 24 Del. C. §1770A. It is the opinion of this office that a nurse is obliged to follow the written or transmitted orders of a duly licensed physician's assistant, not because they are the orders of the physician's assistant, but because they are the medical acts and orders of the physician transmitted by and through the physician's assistant who, under Delaware law, is the physician's authorized agent.
The term "reasonable" is used in this opinion in discussing orders which nurses must follow. Naturally, the extent and type of care that a nurse owes a patient depends on the circumstances of each case. Larrimore v. Homeopathic Hospital Association of Delaware, Del Super., 176 A.2d 362, 368 (1961). A nurse has an obligation to the patient whether orders are issued directly by a physician or through a physician's assistant.
A nurse should not follow a patently unauthorized or unreasonable order. For example, as noted in one commentary: "[i]f a drug order is incomplete, confusing, illegible, or otherwise unclear, the prudent nurse will not attempt to interpret the order, but will instead seek out the physician and clarify. The nurse's duty is to detect ambiguities, inconsistencies, and contradictions and bring them to the attention of the physician. Failure to check with the physician for clarification or corrections of a medication order exposes the nurse to liability. If a drug order is contradicted because it contains abnormally high dosages, incompatible medications or conflicts with the patient's allergies or physical condition, the prudent nurse will refuse the order and immediately seek corroboration from the prescribing physician or other health care provider as indicated by hospital policy." See, F. Cavico and N. Cavico, The Nursing Profession in the 1990's: Negligence and Malpractice Liability, 43 Clev. St. L. Rev 557 (internal citations omitted). As the physician's assistant acts as the agent of the physician, the nurse should view the physician's assistant's orders with the same degree of care for benefit of the patient.
The nurse who reasonably relies on the apparent authority of a physician's assistant should be viewed as carrying out the order of the physician consistent with her duties under the Nurse Practice Act. The fact that the term "physician's assistant" is not present in the Nurse Practice Act is of no significance, since the nurse is deemed to be following the order of the physician issued by a statutorily authorized and supervised agent, and the term "physician" is included in both of the relevant sections of the Nurse Practice Act. See 24 Del. C. §1902(b)(6) and 24 Del. C. §1902(c)(5).
Nevertheless, it must be reemphasized that a nurse should not blindly follow all such orders. In practice there may be instances in which a nurse, in the proper exercise of nursing judgment, may wish to confer with a physician to determine if, by rendering an order, a physician's assistant has gone beyond the scope of his or her authority or in the event the nurse in the exercise of their own nursing judgment reasonably believes there is some other problem with the order as given.
In conclusion, assuming reasonable indicia of authority and the absence of any countervailing indication of impropriety, a nurse should follow orders given by a physician's assistant.
Very truly yours,
Michael M. Tischer
Deputy Attorney General
Lawrence W. Lewis
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady, Attorney General
Phillip Johnson, Opinion Coordinator
1. Section 1770A(b)(2)b. provides:
Delegated medical services provided by a physician's assistant to include but not limited to:
1. Performance of complete medical histories and physical examinations;
2. Recording of patient progress notes in an outpatient setting;
3. Relaying, transcribing, or executing specific diagnostic or therapeutic orders so long as all such notes, orders and other writings shall be reviewed and countersigned by the supervising physician within 24 hours, barring extraordinary events or circumstances;
4. Delegated acts of diagnosis and prescription of therapeutic drugs and treatments within the scope of physician's assistant practice defined within the Rules and Regulations promulgated by the Physician's Assistant Regulatory Council and approved by the Board of Medical Practice;
5. Prescriptive authority for therapeutic drugs and treatments within the scope of physician's assistant practice defined within Rules and Regulations promulgated by the Physician's Assistant Regulatory Council and approved by the Board of Medical Practice. The physician's assistant's prescriptive authority and authority to make independent medical diagnoses and treatment decisions shall be subject to biennial renewal uponapplication to the Physician's Assistant Regulatory Council;" (Emphasis added).
2. "A supervising physician who fails to adhere to these regulations would be considered to be permitting the unauthorized practice of medicine (as defined under § 1703(c) of this chapter (the Medical Practices Act)) and would be subject to disciplinary action by the Board of Medical Practice." 24 Del. C. § 1770A(a)(2)(e).