The following is a written adaptation of a Jan. 18, 2006 presentation to the Nevada Society of Medical Assistants and a May 5, 2006 presentation to the Wisconsin Society of Medical Assistants.
- The delegating physician, the practice as a whole, and the medical assistant can be subject to disciplinary actions by the state if a medical assistant is delegated procedures that: (a) constitute the practice of medicine, and require the skill and knowledge of a licensed physician; or (b) can only be delegated by state law to certain health professionals other than medical assistants. An example of the latter is physical therapy. Although some states—explicitly or implicitly—permit physicians to delegate very minor physical therapy modalities to competent and knowledgeable medical assistants working under the physician’s direct supervision, no state allows a physician to delegate the full range of physical therapy to anyone other than a licensed physical therapist.
- State disciplinary actions can result in fines and other criminal or quasi-criminal penalties for the delegating physician, the practice, and the medical assistant. Professional liability (malpractice) insurance policies do not provide coverage for violations of state laws. These policies only offer coverage in civil matters, such as malpractice and wrongful death suits.
- A medical assistant should never refer to herself/himself as a “nurse,” “office nurse,” or “doctor’s nurse.” In every state this is a violation of the Nurse Practice Act, and can result in fines and penalties. All office personnel should avoid referring to medical assistants as “nurses.” If a patient addresses you as a nurse, you should politely and pleasantly say that you are a Certified Medical Assistant® (CMA), not a nurse.
- The delegating physician, the practice, and the medical assistant can be sued for negligence if the medical assistant does not perform a duty up to the standard of care of a reasonably competent medical assistant. The physician is potentially liable under the legal doctrine of respondeat superior, and can also be liable under the theory of negligent delegation.
- The “standard of care of a reasonably competent medical assistant” is not necessarily the same in all parts of the United States. The standard may vary from state to state or even from one region of a state to another. This is one reason why it is important for medical assistants to attend continuing education sessions given by component chapters and state societies.
- A court may hold a CMA to a higher standard of care than a medical assistant who does not have the CMA credential. This is another reason why continuing professional education is so important for Certified Medical Assistants.
- A delegating physician, however, can also be liable for the negligence of a licensed professional, such as a registered nurse (RN) or a licensed practical/vocational nurse (LP/VN). Contrary to common belief, the delegating physician is not sheltered from civil liability because the professional to whom he/she is delegating is licensed. A health professional—licensed or unlicensed—can be held civilly liable for negligent acts. Likewise, a supervising and overseeing physician is responsible for the negligent acts of professionals to whom he/she delegates—whether such professionals are licensed or unlicensed.
- An increasing number of malpractice insurance carriers are requiring medical assistants to have a professional credential, such as the Certified Medical Assistant® (CMA). Some carriers insist that the credential be the CMA.
- The fact that the practice’s medical assistants are current CMAs is powerful evidence in a malpractice action. Having a staff of current CMAs can lessen the likelihood that physicians will be held liable for negligent delegation.
- The Certified Medical Assistant® (CMA) of the American Association of Medical Assistants (AAMA) is the only medical assisting credential that requires graduation from a postsecondary medical assisting academic program that is accredited by either the Commission on Accreditation of Allied Health Education Programs (CAAHEP) or the Accrediting Bureau of Health Education Schools (ABHES). The CMA is the only medical assisting credentialing examination that utilizes the National Board of Medical Examiners as test consultant.
- The AAMA CMA certification/recertification program is accredited by a national accreditor of certifying boards and programs. Accreditation is an attestation of the high standards of the CMA credential. The proven quality of the CMA can be beneficial in many legal contexts, including malpractice actions.
- The phrase “Certified Medical Assistant®” is registered as a service mark with the United States Patent and Trademark Office. The AAMA can enforce its intellectual property rights in federal and state courts. The AAMA Executive Office receives complaints against medical assistants who are unlawfully using the CMA credential, and takes appropriate action.
- Only those medical assistants who have earned the Certified Medical Assistant® can use the CMA credential. Other medical assistants, such as Registered Medical Assistants (RMAs), National Certified Medical Assistants (NCMAs), California Certified Medical Assistants (CCMAs), National Registered Medical Assistants (NRMAs), and their employers can be in legal jeopardy if they use the term “certified medical assistant” or the CMA initialism. (Of course, a CMA cannot use other medical assisting designations, such as RMA.)
- There is an important difference between programmatic (specialized) accreditation and institutional accreditation. Programmatic accreditation of a medical assisting program provides a greater degree of scrutiny and accountability of the program than institutional accreditation of a school that has a medical assisting program. CAAHEP and ABHES are the only accreditors that provide medical assisting programmatic accreditation.
Any questions about the legal principles discussed in this article should be directed to AAMA Executive Director and Legal Counsel Donald A. Balasa, JD, MBA, at email@example.com or 800/228-2262.
Questions? Contact Donald A. Balasa, JD, MBA, at firstname.lastname@example.org or 800/228-2262.