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Nurses in a Retail Setting: The Risks to a Supervising Physician
By: Michael J. Schoppmann, Esq.
Kern Augustine Conroy & Schoppmann, P.C.

Lost amongst the argument, anger and angst of the phenomenon known as “retail-based nursing” is an analysis of what risks, if any, the explosion (such clinics will grow form 400 to 1500 by year’s end) of this new concept in healthcare poses for the physician who agrees to serve as a supervisor for the nurse practitioner providing care and treatment in such “store” based settings. As legislatures, lobbyists, (and yes, lawyers) fight over what specific limits, if any, the future will hold for these retail clinics, physicians who consider serving as the designated supervisor/collaborative physician must also consider the risks inherent (and still evolving) in such a role.

First, physicians must gain a critical insight. While the fight raging across the country focuses on the nurse practitioner, every physician should understand that, in accepting the supervisory role, he or she bears non-delegable, unwavering and ultimate responsibility for the provision of medical care and treatment. Moreover, it is not only the quality of care for which the physician bears responsibility – it’s also the mandated compliance with various legal mandates as to appropriate structures, contracts, policies and a host of other, inherent practical realities. As a result, any physician contemplating service in the retail world of medicine should obtain and carefully weigh the answers to certain key questions:

• Who hires and/or fires the nurse practitioners?
• What is the ratio of physicians to nurse practitioners?
• Is there a readily available form of collaboration agreement?
• Does the collaboration comply with state and federal law?
• Can the retail entity provide a written legal opinion as to collaboration compliance?
• Is the collaboration permitted by the physician’s malpractice insurer?
• What is the decision/policy making hierarchy?
• What are the billing/coding structures for services rendered?
• Are there any policies which effectively deal with serious or chronic medical conditions?
• Has the clinic obtained approval/licensure from both private and public payors (Medicare/Medicaid)?

Echoing such concerns, the American Academy of Family Physicians has defined “the desired attributes in retail clinics” as follows:

• a well-defined and limited scope of clinical services;
• clinical services and treatment plans that are evidence-based and quality improvement-oriented;
• formal connections with physician practices in the community, preferably with family medicine practices, to provide continuity of care. Other health professionals should operate only in accordance with state and local regulations and should be part of a care team operating under physician supervision;
• codified systems for referring patients to physicians when patients’ symptoms exceed the clinics’ scope of services;
• use of electronic health record systems – preferably, systems that are compatible with the continuity-of-care record supported by the AAFP – that can communicate patients’ information with the family physicians’ offices.

Of equal, or perhaps greater, concern is whether there can be an adequate balance between the inherent motivations of the retailer to provide such a clinic setting for its consumers and the duties (medical and legal) of the physician. In fact, only several weeks ago, the American Medical Association has called for a formal investigation of retail clinics for possible conflicts of interest. Foundational to the AMA’s concerns are the potential connections between the boast by such retail clinics they their placement boosts sales of prescription drugs and other products not related to health and help drive additional store traffic. As stated by AMA Board Member, Dr. Peter Carmel, “The nation’s physicians want the AMA to ensure these incentives do not compromise the basic obligation unfolds, and the corollary political battles over store-based clinics are waged across the nation, every physician should realize that any allegation, cause of action or investigation that such a clinic may have compromised patient care (in any manner or to any degree) carries with it a permanent and inescapable focus – the supervising physician.

In light of the foregoing, perhaps the only conclusion and/or recommendation can be that any physician contemplating a supervisory role in a retail based clinic should ask every question imaginable, tread as slowly as possible and act when (or if) the potential benefits outweigh the considerable, and not yet fully defined risks.

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