This case involves a family nurse practitioner working under the supervision of a family medical physician in an office setting. The patient was a 48-year-old female who had been treating regularly with our nurse practitioner for the past two years.
Indemnity Reserve: Greater than $650,000
Legal Expenses: $79,000
The patient was a two pack a day cigarette smoker with a long medical history of hypertension, diabetes, anxiety, insomnia and asthma. She was a recovering alcoholic that was being treated by a psychiatrist for depression and anxiety due to be sexually assaulted as an adult.
On one of her office visits, the patient complained of right shoulder and neck pain with muscle spasms due to a fall she had suffered two days prior. She knew she had an old neck injury from a car wreck, but it had not bothered her in several years until she fell at her home. On examination the patient was alert and cooperative, but appeared in pain during the shoulder examination. The nurse practitioner noted muscle spasms during her examination of her neck and shoulder with weakness in the right hand. The patient was scheduled to for a MRI of her shoulder and neck and follow-up appointment with our nurse practitioner for two weeks. Our nurse practitioner gave the patient prescriptions for Valium® (ten pills), Dicloflex® (a non-steroidal anti-inflammatory) and Vicodin®.
Two weeks later the patient returned to the office as scheduled, but at this point claimed she was having significant intractable pain in her neck down into her shoulders and the top of her arms. The MRI showed multiple level right-sided stenosis from C4-C7 and positive impingement syndrome of the right shoulder. Our nurse practitioner referred her to an orthopedic surgeon for future treatment to her neck and shoulder. The patient was out of pain medication and was having problems sleeping at night due to the pain, so our nurse practitioner gave her a refill of the Vicodin® and a new prescription for Ambien®.
One week later, she was seen by the orthopedic surgeon with increasing symptoms of right shoulder pain. They discussed surgical interventions and she was given a cortisone injection in her right shoulder. The patient wished to proceed with surgical intervention to her shoulder as well as epidural injections to her cervical disc area. Since the orthopedic did not do epidural injections he scheduled her appointment with a physiatrist in the same practice the following day. The surgeon refilled her pain medication and noted that she was encouraged to use the pain medication sparingly.
The physiatrist performed the first of three epidural injections into the patient’s cervical disc area without difficulty, despite the patient complaints of severe pain and muscle spasms during and after the procedure. Following the procedure he gave her prescriptions for Soma® and Fentanyl transdermal patches and scheduled an appointment to see him the following week. During the follow-up appointment the patient stated that she was having break through pain and requested additional pain medication as well as something to help her sleep. He prescribed oxycodone and Trazadone® and told her that he would schedule another epidural injection after her shoulder surgery.
The patient returned to our nurse practitioner for pre-surgical testing for shoulder surgery. She also claimed to be having extreme anxiety over the anticipation of shoulder surgery the following week and requested “something for my nerves and help me sleep”, she was also out of the pain medication prescribed by the pain specialist and requested a refill. Our nurse practitioner told her to follow-up with her psychiatrist for her anxiety issues as soon as possible and gave prescriptions for Xanax®, Ambien® and Fentanyl transdermal patches.
The patient underwent open repair of the anterior capsular tear and was discharged with a prescription Dilaudid® by the orthopedic surgeon following surgery. She was again seen by our nurse practitioner one week after surgery for a regularly scheduled medical appointment. The patient stated that due to pain, the many doctors’ appointments and surgeries that she had lost her job and was about to lose her medical insurance. She requested an “early” refill of her Ambien® and Xanax® so that her insurance would pay for the prescriptions. The nurse practitioner reviewed the medical record and noticed the last prescriptions were given three weeks ago, so she agreed to give the patient a refill of both medications. The patient told our nurse practitioner that she was following up with her psychiatrist later that week.
On her follow-up visit two weeks after surgery the orthopedic noted the shoulder was doing well, although she did complain of some pain. He documented that she was neurovascularly intact and the motion was slowly increasing. She was told to continue with home physical therapy and was given a prescription for the Fentanyl patches and requested that she return to the office in a month.
Five days later police responded to a call from the patent’s mother (plaintiff) indicating that patient was unresponsive. The report stated that upon arriving, the patient was found in her bedroom face down with no pulse. At that time, she had four Fentanyl patches on her chest. The patch wrappers were found near the bed, indicating that one patch should be applied every 72 hours. It is noted on the EMS report that the cause of death appears to be related to abuse of prescription medications and alcohol. There is no indication that her death was the result of a suicide or any criminal action.
During an interview, the patient’s mother indicated that her daughter was on pain medications following recent shoulder surgery, was going to Alcoholics Anonymous and was being treated for depression. According to plaintiff, her daughter had not drank for the past two days, but according to the police report the patient’s bedroom had six empty beer bottles on the bedside table. At that time, the police also search her car and found two empty prescription bottles, one for Fentanyl and one for Ambien® and an empty bottle of brandy. The Fentanyl prescription was issued five days prior and appears to have been a prescription previously given by her orthopedic surgeon.
The medical and pharmacy records of the patient were reviewed after her death and found that in the 12 weeks prior to the patient’s death she was given multiple prescriptions in varying doses and quantity including Fentanyl transdermal patches (5 prescriptions), Valium® (2 prescriptions), Ambien® (6 prescriptions), Vicodin® (3 prescriptions), Soma® (1 prescription), Xanax® (3 prescriptions), Lidocaine transdermal patch (1 prescription), Dilaudid (1 prescription), Trazadone (1 prescription). The final prescription for 100 milligrams of Fentanyl transdermal patches was given just five days prior to her death.
A few months after the patient’s death, our nurse practitioner received a letter from an attorney indicating that the plaintiff intended to file a lawsuit against our nurse practitioner, her collaborating physician, the orthopedic surgeon and the physiatrist responsible for the patient medical treatment prior to death. It is plaintiff’s allegation that our nurse practitioner improperly prescribed these medications and failed to communicate with plaintiff’s various other physicians in order to keep track of the medications the patient was taking in an effort to prevent an overdose. There are also allegations of a failure to take a proper history in the treatment of this patient who was a known alcohol and substance abuser.
Risk management comments
Our defense is that the patient was monitored closely by the nurse practitioner. Additionally, at the time of patient’s death four 100 microgram Fentanyl patches were found upon her and none of these patches were prescribed by our nurse practitioner. It was our defense that the decedent knew of the risks associated with the Fentanyl patches and placed the patches upon herself regardless of those risks and that the Fentanyl and other medications were appropriately prescribed by our nurse practitioner to this patient.
We had a number of experts review this matter and although they felt this case was defendable, the overall impression from these experts is that they felt this is a matter that should resolve. Our expert nurse practitioner stated that our nurse practitioner was well qualified, but there were issues with communications between the patient’s physicians.
Defense counsel’s analysis of value of this case was in the area of $1.5 million based on the loss of guidance to the patient’s 16 year-old daughter with our nurse practitioner having at least 50 percent of liability.
Risk management recommendations
- Monitor controlled drug usage by patients and reconcile all medications the patient is prescribed. Refer to your collaborating physician as necessary.
- Coordinate with patient’s other providers regarding medication management.
- Talk to your patients about their medications, informing them of brand and generic names, does or strength, route frequency and times, realistic expectations of results, potential side effects, signs of adverse reaction and symptoms warranting immediate mediation attention.
- Document all communications with patients/family members to include telephone calls.
- Discuss the patient’s treatment plan and ongoing response to treatment with your collaborating/supervising physician as required and appropriate, and document the interaction.
Guide to sample risk management plan
Risk management is an integral part of a healthcare professional’s standard business practice. Risk management activities include identifying and evaluating risks, followed by implementing the most advantageous methods of reducing or eliminating these risks. A good risk management plan will help you perform these steps quickly and easily.
See the Risk Management Plan created by NSO and CNA. We encourage you to use this as a guide to develop your own risk management plan to meet the specific needs of your healthcare practice.
*CNA HealthPro Nurse Professional Liability Exposures: 2016 Claim Report Update, CNA Insurance Company, October 2015. Read the complete study.
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