A physician supervised a physicians assistant (PA) at a drug diversion program. It was discovered that the PA had been overprescribing controlled substances. The state Board of Medical Practice (Board) investigated the PA for professional discipline. The PA admitted to professional negligence. The doctor was charged with professional negligence under a theory of vicarious liability. The Board held that the physician could not be found professionally negligent for activity that he did not know about or participate in.
The Supreme Court of Vermont upheld the Board’s decision holding that a physician cannot be held answerable as a matter of professional discipline solely on the basis of a PA’s unprofessional acts. The court reviewed the Board’s decision de novo because the determination of the meaning of “legally liable” and the legal bounds of the agent-principal relationship of a physician and his or her PA under Vermont’s code of professional discipline, falls outside of the Board's expertise and the scope of its statutorily proscribed powers.
The state law that makes supervising doctors strictly vicariously liable for his or her agent’s negligent conduct does not apply to professional discipline. The statute that provides grounds for doctors to be professionally disciplined does not include strict vicarious liability for his or her agent’s negligent conduct.
The court went on to interpret the statute which states, “[t]he supervising physician delegating activities to a physician assistant shall be legally liable for such activities of the physician assistant, and the physician assistant shall in this relationship be the physician's agent.” The court held that “legally liable” does not encompass responsibility for violations of professional obligations. Professional responsibility falls under regulatory discipline, not civil liability. A doctor may have legal liability for his or her agent’s acts of professional negligence, however, the doctor does not have professional responsibility for his or her agent’s unprofessional conduct.
See: In re Porter, 2012 WL 5458088 (Vt., Nov. 9, 2012) (not designated for publication).