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Document Type

Article

Publication Date

Summer 2020

Publication Citation

95 Indiana Law Journal 821 (2020)

Abstract

The United States’ affordable care crisis and chronic physician shortage have

required advanced practice registered nurses (APRNs) and physician assistants

(PAs) to assume increasingly important roles in the healthcare system. The increased

use of these nonphysician providers has improved access to healthcare and lowered

the price of care. However, restrictive occupational licensing laws—specifically,

scope-of-practice laws—have limited their ability to care for patients. While these

laws, by themselves, have important implications for the healthcare system, they also

interact with other legal regimes to impact the provision of care. Restrictive scopeof-

practice laws can increase the malpractice liability risk of physicians and

decrease this risk for APRNs and PAs via several traditional tort doctrines, such as

respondeat superior. In this Article, I provide the first empirical analysis of the

interplay between malpractice liability and scope-of-practice laws in the provision

of healthcare.

I concentrate on obstetric care and analyze a dataset of nearly 70 million births

over an eighteen-year period. The results demonstrate that relaxing APRN and PA

scope-of-practice laws significantly reduces the caesarean section rate—which is

currently over three times the rate recommended by the World Health

Organization—when malpractice liability risk is low. When malpractice liability risk

is high, however, relaxing these laws results in no change in the caesarean section

rate. I find similar results for other outcomes, such as medical inductions of labor.

The results thus elucidate an important interaction between scope-of-practice laws

and malpractice liability.

Based on this evidence, which shows that relaxing scope-of-practice laws can

significantly reduce the number of women who unnecessarily undergo major

surgery, I argue that states should eliminate restrictive scope-of-practice laws for

APRNs and PAs. Doing so will remove unnecessary limits on capable healthcare

professionals, better allow malpractice liability to deter the delivery of unsafe care,

and improve patient health outcomes.

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