Nurse Practitioner and Medical Malpractice Case Study with Risk Management Strategies
Presented by NSO and CNA
Medical malpractice claims may be asserted against any healthcare provider, including nurse practitioners (NPs) as well as the firms that employ them. The insured in this case was a family practice clinic, co-owned by an NP who held a Doctorate of Nursing Practice degree (DNP) and a physician. The treating provider also held a DNP degree.
Summary
This case involves a 22-year-old female who presented to the clinic, accompanied by her mother, with a complaint of left calf pain (5/10 pain level) over the previous several days. The patient reported that she had been sedentary and not engaging in her normal physical activities for four to six weeks due to episodes of depression. The patient weighed more than 400 pounds with a body mass index (BMI) of 54.74. Physical examination revealed non-pitting edema of the left calf, peripheral pulses 2+ throughout and a negative Homan’s sign. The neurologic exam was documented as non-focal with normal motor strength in the upper and lower extremities. There was no documentation related to the skin color or temperature of the affected limb. Laboratory studies included a complete blood count with differential, lipid panel and complete metabolic panel, which were all within normal limits, with the exception of elevated cholesterol (195), triglyceride (111) and glucose (328) levels.
The patient’s vital signs were documented as follows:
- Temperature-98.5
- Heart rate-93
- Respirations-20
- Oxygen saturation-100 percent
- Blood pressure-150/108.
The DNP prescribed an oral antihypertensive medication as well as Naproxen 500 mg every 12 hours for the swelling of her calf. The patient was instructed to return in one week for a blood pressure recheck. A counseling appointment was scheduled to address the complaint of depression. Based upon the patient’s chief complaint, the DNP ordered a Doppler ultrasound of the left lower extremity to rule out a DVT. The DNP intended for the ultrasound to be performed the same day and assumed that the office staff would arrange for it to be conducted expeditiously, reflecting the customary office protocol. However, the electronic medical record (EMR) order was entered as a “routine order”, rather than a “same-day order,” and the newly hired medical assistant interpreted it as “non-urgent”. There was no communication between the DNP and the medical assistant regarding the order. As a result, the ultrasound was scheduled for the following week, on the same day as the scheduled blood pressure recheck visit. The DNP’s documentation did not reflect her intention for a “same-day” order. However, the DNP-owner of the practice subsequently added a “late entry” referencing the order for a “same day” ultrasound test.
A few hours following the ultrasound, the patient left the clinic, the DNP realized that she had not received the patient’s ultrasound results from the diagnostic imaging center. However, it was an extremely busy day in the clinic, which led to distraction and, ultimately, a failure to follow-up on the ultrasound results.
One week later, the patient returned to the clinic at 9 a.m., again accompanied by her mother. The patient stated that her pain had decreased to a 3/10 level but that she continued to have swelling of her left calf. Vital signs were stable with a normalized blood pressure. The patient denied chest pain, shortness of breath or dizziness. The DNP advised the patient to keep the ultrasound appointment, which was scheduled for later that day, though the DNP did not convey a sense of urgency or suggest an earlier appointment. The DNP documented that the patient’s blood pressure had normalized, and that the ultrasound test was scheduled for later in the day. The ultrasound was performed at 2:11 p.m. At 3:35 p.m., the DNP received a verbal report from the radiologist that the ultrasound revealed a DVT at the left popliteal and femoral veins. The DNP advised the patient to go to the hospital emergency department for treatment.
Approximately two hours later, the patient presented to the hospital. While awaiting further testing and bed placement, she coded and expired. The autopsy listed the cause of death as bilateral pulmonary emboli secondary to DVT of the left lower extremity.
Risk Management Comments
Six months following the patient’s death, the patient’s mother (plaintiff) filed a lawsuit against the family practice clinic and, individually, against the treating DNP, asserting that a delay in the diagnosis of a DVT resulted in the patient’s death, and that an earlier diagnosis would have prevented the fatal pulmonary embolism. The defense of this case was complicated by the conflicting testimonies of the DNP and the plaintiff regarding the discussions that occurred during the office visits. Specifically, the plaintiff denied that a “same-day” ultrasound was ordered during the initial visit. With respect to the second visit, the plaintiff admitted that the DNP advised the patient to go to the hospital for treatment of the DVT. However, the plaintiff contended that the DNP did not convey a sense of urgency or inform them of the risks. The plaintiff testified that had she known about the risks of delaying care, she would have taken her daughter to the nearest hospital immediately.
Additional testimony regarding the DNP’s credentials further complicated this case. The plaintiff testified in her deposition that she believed the DNP was a physician because she introduced herself as “
doctor.” The plaintiff was not familiar with the
DNP designation, and testified that she would have requested a second opinion with a physician had the DNP informed her about her
qualifications.
The defense experts opined that, although the patient did not have all of the classic signs of a DVT (i.e. negative Homan’s sign and not in a high risk age group), she was in a
higher risk category due to obesity, hypertension and a reported sedentary activity level. The experts collectively agreed that the DNP should have proactively followed-up with the radiologist when she did not receive the ultrasound results as expected during the first visit.
The case had the potential for a high jury verdict, given the decedent’s age and the sympathy factor potentially influencing the jury’s decision. Integral to the resolution plan of the defense was the evaluation of the witnesses’ credibility and the likelihood that the jury would believe the plaintiff’s testimony. Juror opinions as to whether or not the provider met the standard of care are based upon many factors, including the credibility of the witnesses and expert testimony as well as the provider’s documentation in the healthcare information record. In this case, the DNP’s documentation was lacking details to support her testimony that she ordered a same-day ultrasound and that she informed the patient about the risks associated with a DVT. Defense experts were critical of the fact that the DNP-owner of the practice added a “late entry” referencing the order for a “same day” ultrasound test. This note was not dated and may have appeared self-serving to a jury.
Resolution
Based upon the above-referenced defense challenges and diminished potential for a successful defense verdict, coupled with the sympathy factor associated with the death of a young patient, a settlement was negotiated on behalf of the insured DNP and the clinic.
Total Incurred: More than
$950,000.
Risk Management Recommendations for Nurse Practitioners
- Proactively follow-up on diagnostic test results, prioritizing those which have a propensity for identifying conditions requiring emergent care.
- Compile a comprehensive patient clinical history and consider risk factors which may influence the differential diagnosis. The diagnostic process is complex, involving clinical reasoning, coordinating test results, physical exams and past medical history. Diagnostic errors are rarely the result of one factor and frequently involve a combination of system issues, communication failures and clinical judgement errors.
- Document all patient-related discussions, and actions taken, including any treatment recommendations provided.
- Discuss clinical findings, diagnostic test results, diagnosis, the proposed treatment plan and reasonable expectations for outcomes with patients/families, in order to ensure their understanding of the plan of care and their responsibilities. Document this process, noting the patient’s responses.
- Refrain from documenting subjective notes and avoid self-serving late entries, especially after an adverse outcome has occurred.
- Document contemporaneously, factually and comprehensively and include the clinical decision-making process and rationale for the diagnosis. Objective and concise documentation is essential for both continuity of patient care, as well as for the defense of a potential malpractice claim. A comprehensive healthcare information record is the best legal defense.
- Educate the patient and/or responsible party about the need for compliance with treatment recommendations, medication regimens and screening procedures.
- Assess the patient’s health literacy level to ensure an adequate understanding of the patient’s role in the treatment plan. Consider using the “teach-back” method for communicating patient instructions about required tests or other elements of the treatment plan.
- Develop a standardized process for communicating with staff members, especially when there are new team members who may be unfamiliar with office procedures. Communication and teamwork are critical elements of patient safety.
- Utilize evidence-based clinical practice guidelines or protocols when establishing a diagnosis and providing treatment. Document the clinical justification for any deviation from protocols.
Risk Management Recommendations for Nurse Practitioner Business Owners
- Develop and operationalize office practice protocols for ordering and following-up on diagnostic tests, and include all staff members in the policy development process and associated training. The system should be structured to ensure that the test was completed, the results were acknowledged, and the patient was informed.
- Create protocols for providers to delegate diagnostic test follow-up to non-clinical members of the healthcare team, when appropriate, in order to enhance workflow efficiency and reduce the potential for missed abnormal results during periods of high patient volume.
- Provide staff members with ongoing training in documentation strategies and conduct routine EMR audits to ensure compliance.
Disclaimers
These are illustrations of actual claims that were managed by the CNA insurance companies. However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws and regulations, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. This material is for illustrative purposes and is not intended to constitute a contract. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.
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