Health Law Pointers - Volume XVIII, No. 1

Brought to you by Hurwitz & Fine, P.C.
Editor: Lawrence M. Ross
[email protected]

 

As a public service, we are pleased to present this issue of our health law newsletter addressing the legal concerns of health practitioners. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.

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Medical Assistants

The increased reliance on medical assistants by physicians’ offices to assist in the care of patients may pose a significant liability concern for licensed professionals.

Unlike many other states, New York regards medical assistants as unlicensed assistants and does not have any laws addressing the delegation of clinical functions to these unlicensed persons. Further, New York does not recognize common law principles permitting such delegation. Thus, a New York physician (or nurse practitioner) may not justify the assignment of certain clinical tasks to a medical assistant on the grounds that (1) the medical assistant is qualified by education and training to perform the delegated task or (2) the physician is personally present and supervising the medical assistant. For this purpose it is immaterial that the medical assistant is “competent” or “supervised.”

The rule in New York is simple and straight forward: a medical assistant may not perform any task that is restricted to licensed professionals. Yet, the New York State Office of the Professions believes that a “significant number” of physicians’ offices may not be abiding by this clear principle. Anecdotal evidence seems to support the proposition that licensed professionals may be routinely delegating tasks requiring the exercise of medical judgment and assessments, or tasks that are expressly restricted to licensed professionals. However, habitually instructing an unlicensed person to engage in a task does not excuse the professional from medical malpractice exposure and it may, in the worst case, constitute medical misconduct. Under Section 6530(11) of the Education Law, unprofessional conduct includes “permitting, aiding or abetting an unlicensed person to perform activities requiring a license.”

In general, medical assistants may engage in various administrative tasks such as marketing and finance, financial and strategic plans, perform workplace communication and education, and the like. Certain patient care related activities may also be performed by the medical assistant but the authorized duties of a medical assistant are quite limited. The State Board of Medicine expressly allows the following tasks to be performed under appropriate circumstances by medical assistants:

  • Secretarial work

  • Measuring vital signs

  • Performing ECG’s

  • Taking laboratory specimens including blood work

  • Acting as a “second set of hands” to a licensed professional

  • Removing sutures

The State Board of Medicine prohibits a medical assistant from engaging in any of the following tasks:

  • Administering medications through any route

  • Administering contrast dyes or injections of any kind

  • Placing sutures

  • Taking x-rays

  • Independently positioning patients for x-rays

  • Applying casts

  • First assisting in surgical procedures

  • Pulmonary function testing

  • Allergy “scratch” testing

Medical assistants face daily challenges in applying these standards to their office duties, and it is not unknown for some physicians’ offices to instruct the medical assistant to perform duties that may exceed their authority. The Board of Medicine takes the position that any licensed professional who knowingly delegates a medical task to a person who is not legally authorized to perform such a task is guilty of professional misconduct. It is therefore incumbent upon the licensed professional to monitor the tasks performed by medical assistants and to take appropriate steps within the office to assure that delegated tasks do not fall within the scope of practice of the licensed professional who assigns the tasks. Failure to do so may subject the licensed professional to unwanted scrutiny.

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