Can Medical Assistants Who Work Under the Doctor's "Umbrella" be Sued?

Please Note: The information contained on this page is provided for information purposes only and should not be considered legal advice, nor is it a substitute or interpretation of regulations established by authorities having jurisdiction over practicing doctors, nurses and their medical assistants in your state. Please contact your State Board of Medical Examiners directly for specific advice, official business, or consult with your attorney. We cannot provide this information to you.

Laws that Govern Medical Assistants in USA

Many medical assistants are under the impression that when there are no specific laws and organizations that govern them then there are no liabilities. Nothing could be further from the truth.

It is NOT TRUE that Medical Assistants cannot be sued and held legally responsible for their actions!

The Tex Med Website has put it so well where they state: the term “medical assistant” has no real legal significance. Medical assistants (MAs) are not licensed, certified, or registered by any agency of the State of Texas, nor are they recognized under federal Medicare or Medicaid laws as a species of “provider.” There is no reference to medical assistants in the Medical Practice Act, or any other Texas Statute, thus, there is no specific legal regulation of medical assistants in Texas.

The same applies to many other US States, however, it doesn't mean total absence of laws and regulations for medical assistants. Fact is...

Medical Assistants Can, Have and Will Be Sued If They Cause Harm

It cannot be said often enough: although medical assistants are dependent hires working under the employ and direct supervision of the physician, or supervised by a licensed practitioner, or clinician, it does not exonerate them from direct liability, nor protect them from being sued, should anything that causes injury or losses happen to a patient--and not only injury, but any medical assistant who inadvertently oversteps their bounds and scope of practice, e.g. writes and signs a prescription, instead of the doctor, or carries out a full range of physical therapy modalities, which will constitute practicing medicine without a license, to name just one of many possible scenarios, exposes her/himself to a civil fine of at least $10,000 per violation and almost always other severe charges, penalties and consequences.

Many medical assistants falsely believe that if there are no specific laws that regulate the medical assistant profession where they work then there are no laws to be followed.

Most state laws don't specify exactly which duties medical assistants can perform, but anything they do that goes above and beyond basic low level tasks which can be delegated, such as taking patient vital signs, can be questioned in court, should a lawsuit ensue. Listen in as Gerry Oginski, an experienced medical malpractice, wrongful death and personal injury lawyer in and around the New York City vicinity explains:

What does this mean for medical assistants? 

It means to always be sure to practice only skills that you have been taught and are clearly within your discipline's scope of practice. Never act on your own without a doctor physically present in the office when providing any type of direct patient health and medical care procedures. Don't independently give any kind of medical advice, don't ever share confidential patient information with other parties unless a valid need to know exists and never venture into territory that can be viewed as "practicing medicine without a license".

Medical Assistants Can be Held Responsible for their Own Actions

Under the USA laws and policies any person who believes that they have a case can initiate a law suit against anybody, even if the accused is completely innocent, this also includes medical assistants who work under their doctor's umbrella. It can cost the accused medical assistant thousands of dollars in legal fees to defend this innocence. For instance, if a medical assistant gives an injection and accidentally hits a nerve the patient may sue for pain and losses caused by the accident (for example, cost of medical treatment, or lost income during time off work) even if they could have continued working and just gave it some time to heal. Anybody can sue anyone and when the economy is tough, these kinds of law suits tend to go up in hopes of financial gain.

Now, while this would indeed be a legit lawsuit, there are still too many medical assistants who falsely believe that the doctor will be held responsible for such incidences. Nothing could be further from the truth! Each, and every healthcare worker, despite acting under the employ of a doctor, or other supervising healthcare practitioner, can be held directly responsible for their own negligent acts! Since malpractice is defined as "the negligent act of a person with specialized training and education" it clearly includes medical assistants, especially those who are certified. Certified medical assistants are often held to a higher standard than their non-certified peers.

Last but not least, make sure you carry your own professional malpractice and liability insurance policy which often is provided at a group rate by your certification organization as part of your professional membership benefits.

Medical Assistant Charged with 10 Felonies and Unlawful Practice

A medical assistant was arrested in 2009 in Las Vegas, Nevada for administering Botox treatments while under the direction of a doctor. She was under the impression that she was simply doing what all medical assistants do and it never crossed her mind that she may be practicing outside her scope of practice as legislated by the Nevada State Board of Medical Examiners. The state of Nevada Medical Board took the position that their law prohibits medical assistants from administering any kind of medications, this includes giving injections. While the restriction had largely gone unenforced it wasn't until this medical assistant's arrest on 10 felony counts on allegations of "unlawful practice of medicine" received media attention.

Medical Assistant Arrested

The unsuspecting medical assistant's whole world came to a crashing halt when she was arrested and charged and physicians became concerned about what duties their medical assistants could perform. However, as this case progressed it took a massive, surprising turn on October 14th, 2009. The medical assistant's nightmare was over. The 45-year-old former medical assistant learned from her attorney that the 10 felony counts against her on allegations of “unlawful practice of medicine” were to be dismissed.

Initially the Nevada medical board director Louis Ling said that upon reading a 30-year-old law, he concluded that medical assistants in his state could not give shots. Then, spurred by this case, the State Medical board reversed its position, determining that state law allows medical assistants to administer everything from flu shots to Botox as long as they are under the “direct supervision” of a physician; meaning the doctor is on the premises.

Issues With Respondeat Superior

In one very interesting report Attorney Neil Lieberman invited to comment on the issues of respondeat superior. He states that it creates legal issues that trap medical personnel, but since these cases are handled on a contingent basis, lawyers may be reluctant to sue people with a strong defense. Read below...

Invited Commentary by Neil Lieberman, ESQ
Read: Emergency Medicine, Nov. 2002 EMU PDF

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