Can a nurse practitioner own a clinic in Texas

Editor’s Note: This story has been updated to include a lawsuit filed by the Wattenbarger family in December 2020, as well as the defendants’ response to the lawsuit claims, provided to KXAN by the Wattenbargers’ attorney in March 2021.

NEW BRAUNFELS, Texas (KXAN) — It’s Sunday afternoon, and David Bushnell is getting ready for work. He’s packed his bags, said his good-bye to his wife and hits the road.

It will be a four-hour drive through the Hill Country as he heads west to Big Lake. 

“It was part of the start of the Permian oil field. The Santa Rita oil well is five miles from downtown,” Bushnell described. “Has a population of a little over 3,000 unless it’s an oil boom, then it hits double that easily with oil field workers.”

Bushnell, a nurse practitioner at the only hospital in town, makes the commute once a week. 

“When I’m at work, there’s been two doctors and a nurse practitioner that work during the week. There’s another nurse practitioner from Abilene that’s there when I’m not there,” Bushnell said. “Basically we are it for Reagan County, other than EMS.”

Both the lack of access to health care and the pandemic have intensified the push for nurse practitioners to work independently, especially in rural areas, their supporters said.

Who is treating you?

“I have a pretty large population that is dependent on Medicaid, and lot of these patients do not have alternatives in this area of people to go to that are openly taking new Medicaid patients,” nurse practitioner Ashley Ferguson said. “There’s still a lot of medically underserved people in this community.”

Ferguson Family Practice is just a few blocks from Interstate 35 in San Marcos. She opened it a little more than five years ago. 

“I always wanted to be a nurse since I was in first grade,” Ferguson said. “I love taking care of people.”

A nurse practitioner is a registered nurse who has advanced education and training, including a Bachelor’s Degree in Nursing and a Master’s degree or higher in a healthcare specialty. 

In Texas, nurse practitioners can diagnose, treat patients and prescribe medications as long as they are under a doctor’s supervision. They cannot prescribe Schedule II medication, such as narcotics and depressant drugs, outside of the hospital and hospice settings. They also cannot sign death and birth certificates.

“There’s a lot of paperwork that depends upon—you know, we can’t sign, or my collaborating physician has to, so that can delay care for people,” Ferguson explained. 

According to the law, the supervising doctor can be anywhere in the state and must meet once a month with the nurse practitioner to review patients’ charts. Ferguson’s supervising doctor is in San Antonio. 

“We explain with new patients when they call to schedule an appointment that they will be seeing a nurse practitioner,” Ferguson said. “We let them know that right away so they don’t come in and think they are seeing a physician.”

According to the Texas Nurse Practitioners (TNP) organization, that oversight from physicians comes with a price. The organization said a recent survey shows when nurse practitioners sign a contract with physicians, they’re paying them between $1,200 to $87,500 a year. 

“This mandate makes our state less competitive for healthcare providers and more difficult for nurse practitioners to care for Texas,” said Christy Blanco, President of Texas Nurse Practitioners and a nurse practitioner in El Paso. “Nurse practitioners are well trained and well educated to provide safe, reliable care.”

A family’s warning 

“Nurse practitioners are a critical component of our healthcare system, and the healthcare system could not function without them,” said Dr. Amy Townsend, board member of Physicians for Patient Protection.

However, the grassroots organization that advocates for physician-led care questions whether nurse practitioners’ training and education prepare them for more nuanced circumstances. 

Nurse practitioners average six years of “academic and clinical preparation,” according to Texas Nurse Practitioners. In comparison, doctors must complete a bachelor’s degree, four years of medical school and then an additional three to seven years in a residency program focused on their specialty.

Townsend explained for minor illnesses, it’s appropriate to see a nurse practitioner who has oversight.

“I would try to make sure that if you’re doing that, it’s in a clinical situation where a doctor is immediately available, that there’s also a physician in that clinic working directly with the nurse practitioner, in case something unexpected comes up,” she said.

Dr. Townsend practices family medicine near Beaumont and said what happened to Betty Wattenbarger should serve as a warning. 

Betty’s family said an autopsy revealed that she died Jan. 31, 2019 from flu complications caused by pneumonia and sepsis, the body’s severe response to an infection.

The family said they had called her pediatrician and were told to take her to a pediatric urgent care. 

Betty’s father told KXAN investigator Arezow Doost in October that the 7-year-old was treated by a nurse practitioner at Pediatric Urgent Care Denton near Dallas-Fort Worth. 

“When we take her into the urgent care, she’s looking very discolored at that point,” Wattenbarger said. “She started to become slightly discolored. A little bit of yellowish tint, bluish tint to her lips.”

Wattenbarger said Betty was diagnosed with the flu and given Motrin to help with the fever. He explained she started to perk up a little, but no x-rays were taken, and no other medical tests were done. 

He said they were sent home where she looked to be improving and her coloring was going back to normal.

But, the next day he said he found Betty in the living room with blood coming out of her mouth. He immediately rushed her to the ER, where she died.

‘The misdiagnosis ended up costing her, her life’: A Texas family’s warning for all parents

“She had a 1/3 cup of fluid in her left lung. Her other lung had the start of pneumonia,” Wattenbarger said. In Wattenbarger’s opinion, “The misdiagnosis ended up costing her, her life. She didn’t take the time; she didn’t put the effort in to properly examine Betty.”

The family filed a complaint about the nurse practitioner with the Texas Board of Nursing and another one with the Texas Medical Board against her supervising doctor, who they said was not there during her treatment.  

Read the Nursing Board Orders in this caseDownload

The nurse practitioner has not returned repeated requests for comment. After multiple attempts, Doost was able to reach her supervising doctor Monday afternoon and was told he has no comment.

The family filed a lawsuit in December of 2020 against the urgent care and the healthcare workers who treated Betty, alleging medical negligence.

In March of 2020, the defendants’ attorney said he does not respond to the media on pending litigation. 

In a legal response to the lawsuit filed on behalf of the family, the defendants deny the allegations stating, “the injuries and damage alleged were not caused by the negligence of any party.”

The court document also said that Betty’s cause of death was due to pre-existing health conditions. 

“You never know what’s going to walk into your door. Something that can seem very simple can turn out to be not so simple,” Dr. Townsend said. “Betty’s case is a good example of that, in that you know what they thought was something simple like just flu, ended up costing her life.”

Betty’s father turned to Dr. Townsend after he couldn’t get any answers for what happened to his daughter. He had come across her as he was reading about her experience with nurse practitioners, who she said mismanaged patients in her community and cost two men their lives.

The Wattenbarger’s said their complaint was heard by the Medical Board and they were notified several weeks ago there was no evidence of a violation on the doctor’s part.  

The Texas Board of Nursing confirmed to KXAN the nurse practitioner was required to undergo additional training and education, because she didn’t complete medical records. 

The Wattenbargers just recently learned the nurse practitioner no longer has a supervising doctor listed, which could impact her ability to treat patients. 

Is Texas next? 

The lack of accountability worries Dr. Townsend, especially as more than 30 states pass laws allowing nurse practitioners to work independently. Most recently California and Florida passed legislation related to that.

TNP is hopeful that in January when the legislative session begins, Texas could be next. The organization said military branches and Veterans Administrations have already done away with requirements. 

“We don’t have sufficient providers right now to provide the care that Texans need,” said Rep. Donna Howard (D-Austin), who is a former nurse. “One of the options is to increase the number of advanced practice nurses, who can fill in some of the gaps of that primary care provider role especially in the rural and underserved areas.”

Last session, Rep. Howard co-authored House Bill 1792 with Rep. Stephanie Klick, R-North Richland Hills, which would have allowed nurse practitioners to work independently after more than 2,000 hours under a doctor’s supervision. 

The bill said nurse practitioners could perform and interpret diagnostic tests, formulate medical diagnoses and manage chronic diseases, but it didn’t make it out of subcommittee.

“You know, I think that the pathway may be a little different now with our experience with COVID and the recognition of the lack of adequate provider care for Texans, especially in our underserved areas, in our rural areas where we’ve seen hospitals close, clinics close, people have very few options for getting care in their immediate vicinity,” Rep. Howard said.

Shortage concerns 

According to the Texas Medical Association, which advocates for physician-led team care for patients, a recent report found while primary care physicians increased 1.7 times faster than the population, there are still challenges. 

The report said 11% of the state’s counties do not have a physician, 54% do not have a pediatrician and 59% are without a gynecologist. 

The Association of American Medical Colleges forecasts a physician shortage of between 46,900 and 121,900 by 2032.

“There’s an unmet need, and there’s a really obvious way to fill it. We’d like to see the state better support that,” Blake Hutson with AARP Texas said. “What we’re asking is for the state of Texas to make it easier for people to have additional options to access health care.”

Dr. Townsend said the push to give nurse practitioners more authority also comes from corporations with a stake that are looking to reduce costs and have more control over medical staff. 

“We do have a vested interest in this. We want to make sure we can keep healthcare costs low, provide affordable coverage for individuals, and when they purchase that coverage, they have increased access providers to choose from,” said Jamie Dudensing, CEO of Texas Association of Health Plans, the trade organization which provides health insurance coverage. 

What research shows 

As soon as California and Florida signed laws to allow independent practice, Dr. Townsend said her organization started meeting with lawmakers in Texas to make sure they understand that patient safety is on the line. 

She said they want stricter requirements for nurse practitioners, not less oversight.

“Each legislative session, you know, physicians have made concessions that reduced the amount and quality, really, of supervision that actually occurs, and so currently, you know, the laws that are in place that actually outline what supervision entails are extremely weak and that is a big problem,” Dr. Townsend explained. 

Dr. Townsend said it comes down to training, transparency and education. 

“Because of the differences in education, we see that nurse practitioners actually make more referrals to specialists,” Dr. Townsend explained. “They actually do more when you’re looking at, you know, skin lesions and things like that, they do more biopsies. They order more inappropriate chest x-rays and lab work.”

She pointed out that at stake is not only ordering unnecessary tests, which can cost patients more, but also misdiagnosing medical complications of patients. If they end up in the ER, that also costs the patient more, she added.

“We have a lot of training, and if anything we feel like is beyond our scope, we refer. There is never a hesitation on my part to refer when I feel like something is beyond my scope,” explained Ferguson who has 11 years of experience as a nurse practitioner.

Supporters pointed to a number of studies that detail when a nurse practitioner is involved, patients have shorter waits for treatment, save money and have lower hospitalization rates.

“We have well over 40 years of research to show that as far as when it comes to patient safety and patient outcomes, nurse practitioners when compared to physicians do show to have equal outcomes,” Blanco explained. “We understand that our education is different, however that research has not shown one to be superior over the other.”

Dr. Townsend takes issue with those types of studies and explained they rely heavily on common conditions, like patients with high blood pressure, which has well-laid-out protocols. 

“To extrapolate that data to try to say that a nurse practitioner is equally qualified to see a patient without a previous diagnosis, and walk into a clinic, you know, that’s completely undifferentiated and be able to practice medicine and make that diagnosis—that is a huge stretch,” Dr. Townsend explained. 

Pandemic reality 

As Bushnell wrapped up another week in Big Lake, he said COVID-19 has exposed the lack of access to care even more. 

“You can make a difference where there is not a difference being made,” Bushnell said. “The appreciation that you get from taking care of people who don’t have a regular provider and are so relieved to have to sit with someone, and that will listen to them and learn about them, not just their disease process—it is eye-opening.”

He’s approaching retirement but hopes patients are given more options and nurse practitioners more authority to treat them.

“I used to say I didn’t know if it would happen in my work life time in Texas,” Bushnell said. “I think there’s a chance. I think that COVID has shown, with some of the changes that happened with that, that it’s possible.”

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