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Implicit Delegation of Authority

Implicit delegation of authority occurs when the physician allows nonphysician personnel to act on their own initiative, by carrying out medical tasks without strict protocols. This is not a problem if these personnel are under the direct supervision of the physician, as a nonphysician surgical assistant is. Physicians are legally responsible for the actions of these personnel, but they also can recognize and correct any improper actions.

Problems arise in two situations: when nonphysician personnel initiate care outside the physician's direct supervision and when the physician allows these personnel to perform tasks that the physician is not competent to perform. The physician remains legally responsible but can no longer prevent improper actions. The classic example of this type of implicit delegation of authority was the medical equipment sales representative showing the surgeon how to place a hip prosthesis. The salesman scrubbed and participated in the operation, to the point of placing the prosthesis. There was much consternation about a sales-representative in the operating room, but this was no more legally significant than the use of a nonlicensed surgical assistant. The physician could not supervise the sales representative's actions because the physician did not know how to do the procedure. Despite the proximity of the physician, knowledgeable supervision was impossible.

Triage by the front desk clerk is a common and legally dangerous form of implied delegation of authority, particularly in large group practices and clinics. In this situation, the physician implicitly authorizes the appointments clerk to determine whether a patient needs follow-up care. Certainly this is not the physician's intent, but it happens when the office manager or clerk is permitted to deny appointments to patients who are behind in paying their bills or when there are no provisions for evaluating patients who may need to be seen more quickly than the physician's appointment calendar allows.

If the front office tells patients that they will not be seen until they pay their bills, this is implicitly determining that the patient does not need the return appointment. If, as frequently happens, the patient does not return for care, the physician will be liable for any consequences that flow from the denial of care. This is also the case when the patient is made to wait more than the medically acceptable time for a follow-up appointment. If the obstetrician tells a patient to come back in three days for a preoperative visit because it is time to put a stitch in her incompetent cervix, the appointment clerk must not schedule her for an appointment in three weeks. The obstetrician would be liable if the patient lost the baby during this delay. Physicians must ensure that a patient's medical condition is considered when appointments are being scheduled. They should always be consulted before a patient is denied a timely appointment.

Physicians sometimes implicitly delegate the evaluation of medical test results to their filing clerk. This happens when the office charting system is not set up to ensure that every test result is reported to the physician. From both a legal and a medical standpoint, a test should not have been ordered if the results do not warrant evaluation. Deciding that a report is normal for a patient is a medical judgment. A physician may reasonably delegate many of these evaluations to laboratory or nursing staff--the gynecologist does not need to see every normal Pap smear report that comes back--but there should be a formal system for checking in the reports, and it should be explicit about what can be filed and what must be evaluated by the physician. If a laboratory report did not come back at all, it needs to be located or the test repeated.

Physicians do not need to review every piece of paper that comes to the office. Consequently the nonphysician personnel must have specific written orders or protocols for handling reports and for finding lost reports. The receptionist must have a tracking system that identifies and locates patients who miss appointments or fail to make return appointments the physician has recommended. For example, if a report comes back with a notation that the patient has trichomonas, some action should be taken. Nurses in the office might have a protocol that allows them to arrange treatment and a follow-up visit, or the secretary might have instructions to pull the chart and leave it with the report on the physician's desk.

Physicians sometimes delegate authority by allowing others to practice medicine at times when it is inconvenient for them to attend to the patient. A common complaint of nurse-anesthetists is that they are competent only at night: they are allowed to do cases at 3:00 a.m. that are beyond their expertise at 10:00 a.m. This is legally and medically indefensible. The determination of whether a task may be done by a nonphysician cannot depend on when the task must be performed. If the time of day matters at all, it mitigates against delegation of authority at night when physician backup is not readily available.

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