Can an NP Lose Their Job if a Doc 'Collaborator' Backs Away?

Carolyn Buppert, MSN, JD

As of April, half of states and US territories have adopted full practice authority licensure laws for nurse practitioners (NPs), meaning that NPs in those states may practice in keeping with their education and experience, without physician oversight.

In the states that still require physician collaboration, if a hospital or other entity hires an NP, they also must hire a doctor for oversight. If the physician leaves town or for some other reason won't continue to be the collaborator and can't be replaced by another doctor, then the NP can't practice and has to sit idle until a new collaborator is signed up. Or the employer might terminate the NP.

A recent legal case, Sturdivant v. Tallahatchie General Hospital, focused on a Mississippi hospital that terminated employment of an NP after the physician collaborator terminated the oversight relationship. The facts of that case are as follows:

A hospital hired an NP under an employment contract that specified that the nurse must remain licensed and in good standing with the state board of nursing. The contract didn't specify that the NP must have a current collaborative practice agreement with a physician, but that was implied because in that state — Mississippi — physician collaboration is required for NP practice. The hospital supplied the collaborating physician.

A year into the job, the doctor sent the NP a note saying they were terminating the collaborative practice agreement, effective immediately. The hospital fired the NP, and the nurse sued the physician and the hospital for interference with contract.

Under the state's law, the NP has the burden of proof that the physician's action was inappropriate.

The US District Court for the Northern District of Mississippi found no fault on the part of the physician for terminating the professional relationship with the NP or the hospital for its decision to fire the nurse for lack of a current collaborative practice agreement. The court noted that interference with a contract was inapplicable, as one cannot interfere with a contract to which they themselves are a party.

The legal reasoning in this case seems correct. In states where collaboration is required, the laws simply say that NPs must practice under physician supervision. Nothing requires a hospital to provide a collaborating physician for an NP, though many employers do so. In this case, nothing in state law or the employment contract required the employer to find a substitute physician.

How NPs Can Protect Themselves

The current laws in states that require physician collaboration put NPs in unstable positions, employment-wise. NPs in states that require physician oversight have no control over whether a physician will continue to be a collaborator.

Often, when a physician collaborator leaves or otherwise decides to end the relationship, an employer will find an alternate doctor. But the employer doesn't have to do that. And it's not usually feasible for an employed NP to find their own collaborating physician, because that person would not likely be credentialed at the hospital or other facility. In this case, the hospital did not tell the NP to find their own collaborator.

States that still require physician collaboration may choose to get rid of that requirement in the future. But until then, what can NPs do to protect themselves from losing their jobs if they are in a state where such an arrangement is required and a collaborating physician decides to end the relationship?

One protective measure would be an employment contract between NP and employer that says:

The employer is responsible for hiring or otherwise retaining a collaborating physician for the term of the NP's employment.
In the event that the hospital cannot or will not provide a collaborating physician, the hospital, if it chooses to end the NP's employment due to lack of the overseeing doctor, shall provide the NP with severance pay to equal half of the nurse's yearly salary.

This language puts the burden of securing physician collaboration on the employer, and if the employer can't or won't comply, it gives the hospital a penalty and provides the NP with a financial cushion while searching for a new job.

Another protective measure would be for the NP to insist that they meet with the collaborating physician before the nurse is hired. This measure isn't fail-safe; one never knows how a collaborative relationship will work out until one is in it. But the not-yet-hired NP may get a sense of the prospective collaborator's comfort level with the arrangement.

Setting a Professional Tone Early On

If a physician feels that their employer is foisting on them the duty of collaborating with NPs, the doctor might try to find ways to get out of that responsibility. Being a physician collaborator takes time and is not risk-free. If a doctor doesn't fulfill the supervision/collaboration responsibility or if the NP doesn't ask for help and then makes a mistake, the doctor might be named in a malpractice lawsuit.

If the NP and the potential physician collaborator can achieve some level of professional comfort with one another early on, it is less likely that the doctor will feel trapped into the relationship.

State requirements for physician collaboration can be a good thing if it means that there are two sets of eyes on medical decision-making. Organized medicine has backed laws mandating physician collaboration; those laws protect doctors' professional turf.

It can be bad for:

Employers, because they have to hire two clinicians if they want to hire an NP;
Employed physicians, because of the risk and time; and
NPs, because their job is contingent on the collaborating physician, over whom the NP has no control.

Carolyn Buppert (www.buppert.com) is an attorney and former nurse practitioner who focuses on legal issues affecting NPs.

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