Medical malpractice claims may be asserted against any healthcare provider, including nurse practitioners. This medical malpractice case study with risk management strategies, presented by NSO and CNA, involves a Certified Pediatric Nurse Practitioner-Primary Care (CPNP-PC) working in a pediatric practice.
A pediatric clinic in a large urban city had been caring for a patient since she was two days old. The mother reported no problems during the pregnancy or birth of the patient. The patient lived with her parents and three older siblings in a two-story house a few minutes from the clinic. The three older siblings also were patients at the clinic and, apart from the occasional ear infection or viral illness, were healthy and meeting all of their developmental milestones. Over the course of two years, the patient was treated by several of the providers in the practice for both well and sick visits.
The patient had met all of her developmental milestones for the first year of her life. At the 12-month wellness visit, the patient was seen by one of the three CPNP-PC (co-defendant) working in the clinic. The mother testified that during this visit she asked the CPNP-PC if any blood work needed to be performed, as her other children had blood work drawn at their 12-month well child visit. The CPNP-PC reported that she discussed milestones and vaccines with the mother. However, there was no record in the patient’s healthcare information record of this discussion or of the query regarding lab work. The only note related to lab work was “deferred”, written by the provider next to the topic of lead screening on the form, but no explanation as to the reason for this notation.
Three months later, the patient presented to the office with symptoms of a cold and a runny nose. This was the first time the insured CPNP-PC (defendant) saw the patient. The insured CPNP-PC testified that she did not conduct a risk assessment for any needed wellness lab work or vaccinations because this was a "focused sick visit". She diagnosed and treated the patient for an upper respiratory infection.
The insured CPNP-PC saw the patient again for her 15-month well visit. The intake nurse documented that the mother has "new concerns because she doesn’t feel like the child is talking much." The intake nurse checked the box indicating the patient was meeting the 15-month milestone of saying "single words," but added "sometimes" beside the check box. The mother reported that she did not believe that her daughter was talking appropriately for a 15-month-old. The mother stated the child was not stringing words together and frequently pointed to items, rather than verbalizing.
The mother contended that the CPNP-PC responded by stating that a response of single words was normal for a 15-month-old. The mother testified that she verbalized a concern with the issue of lead exposure and a lack of blood work during the visit. She stated that she was familiar with such testing due to her other children having been tested, as well as based upon her prior employment as a medical assistant at a pediatric practice. The CPNP-PC asked if they "lived in an old house," to which the mother responded that she did not know the year that house was built, as it was owned by her parents. The mother testified that the CPNP-PC stated, "She's probably fine."
The healthcare information record did not reflect any reference to an inquiry regarding lead exposure or lead testing. On the section of the healthcare information record labeled "Lead Test," the CPNP-PC wrote that the patient was "Ø at high risk," which she testified as meaning that she had reviewed the risk factors with the parent.
The CPNP-PC also testified that her customary practice was to review the last two progress notes before a wellness visit, if time permitted. The insured further testified that, if the patient was new to her, she would typically consult with the last provider that saw the patient in order to obtain an informal intake report. However, she could not recall if she had taken these actions with this patient at her 15-month-old wellness check. Moreover, no documentation existed to that effect.
The insured testified that, during the 15-month wellness visit, she was unaware that the test had been deferred at the 12-month visit. She could not confirm whether she would have expected the triage nurse to flag the deferral for her as part of the intake process.
The insured saw and treated the patient on three additional occasions over the next four months. The visits were "focused sick visits", which included gastroenteritis and upper respiratory infections. The insured did not perform lead exposure assessments on the patient as these were characterized as “focused sick visits.”
For her 18-month-old wellness visit, the mother took the patient to the pediatric practice where she was previously employed. As part of the visit, the mother completed a risk assessment questionnaire on which she checked a box indicating her daughter "frequently puts things in her mouth." The mother testified that her daughter had never had blood drawn for a lead test or a complete blood count (CBC). A finger prick sample was tested and came back elevated at 47 µg/dL. Venous blood was ordered to confirm the level, revealing a level of 48 µg/dL.
The mother testified that her house was built in 1963. Per state reporting requirements, the State Health Department was notified of the patient’s elevated serum lead level. During a home inspection, the State Health Department inspectors found large amounts of lead in the basement, hall closet and exterior paint of the home. She stated that she never saw the child eat paint chips. Her father repainted the house exterior and remodeled the basement and closet himself.
At the 24-month wellness visit, the current treating pediatrician recommended that a repeated venous blood level be performed. He also ordered a special education evaluation to include evaluation of speech and motor skill delays. The evaluation revealed a speech delay, with a vocabulary of only six to eight words, as well as a fine motor skills delay. Speech and occupational therapy also were started. The repeat venous blood lead level remained elevated at 23 µg/dL. The patient did not receive chelation therapy, but ongoing monitoring was conducted.
Over time, monitoring revealed her lead testing levels had returned to normal. However, the parents asserted that the patient experienced global development delays as a result of the high lead levels in her blood. The treating pediatrician confirmed difficulty with language processing, speech, attention, and memory. He advised that the patient’s intellectual abilities were borderline, core academic skills were below average, phonological processing and attention were limited, and her spelling and computational math were exceptionally low for her age. It was noted that the deficiencies were not unusual and typical for many children with developmental disorders, even without intervening disease. The parents also confirmed that the child had been participating in virtual learning and had not been in a school setting for approximately a year.
Risk Management Comments
When the child was six-years old, her parents (plaintiffs) filed a malpractice lawsuit against our insured CPNP-PC, as well as the CPNP-PC who treated the patient at her 12-month wellness check visit, the practice and the collaborating pediatrician. The allegations against the insured included:
- Failure to screen and test for lead poisoning leading to a delay in diagnosis.
- Failure to provide anticipatory guidance to educate the patient’s mother on lead paint exposure risk.
The state screening guidelines require all children ages 6-72 months to be screened for lead poisoning if the child lives in or regularly visits a house or childcare center built before 1978. Plaintiff’s counsel contended that because the insured was a CPNP-PC, she should have been conversant with the state requirements for lead testing.
While the insured’s collaborating physician and defense experts were supportive of the treatment provided during the sick visits, neither could support the missed lead screening during the well visits.
The co-defendant CPNP-PC who treated the patient at her 12-month wellness check visit left the country and would not participate in the case. While she was employed as an independent contractor at the clinic and required to have her own malpractice insurance, the defense counsel investigation revealed that her policy had expired prior to the treatment of the patient. Thus, the insured became the primary defendant in the claim.
Defense counsel believed that, based upon the significantly elevated lead levels at the time of diagnosis, it would be difficult to present a strong causation defense. The experts concurred that it would be impossible to definitively state that the lead exposure at 12 months and thereafter did not have a negative effect on the infant plaintiff.
The claim was settled on behalf of the insured CPNP-PC prior to a jury trial. The practice and the collaborating physician also settled with the plaintiffs, but the amount of the settlement is unknown.
Total Incurred: $550,000
(Monetary amounts represent the payments made solely on behalf of the individually insured CPNP-PC and do not reflect payments made on behalf of the other parties involved in the claim. Amounts paid on behalf of the co-defendants named in the case are not available.)
Risk Control Recommendations
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.
- Remain current regarding state requirements, clinical practice, medication, treatment, and equipment utilized for the diagnosis and treatment of acute and chronic illnesses and conditions related to clinical specialty.
- Utilize evidence-based clinical practice guidelines or protocols when establishing a diagnosis and providing treatment and document the clinical justification for deviations in protocols.
- Document all patient-related discussions, consultations, clinical information, and actions taken, including any treatment orders that are provided.
- Compile, document and utilize appropriate comprehensive patient clinical history, as well as relevant social and family history.
- Perform a physical examination to determine the patient’s health status and evaluate the patient’s current symptoms/complaints.
- Engage in timely and proactive discussions with physicians and other members of the care team to ensure that the team is educated about the patient’s treatment plan.
- Prescribe medication in compliance with state nurse practice act, state prescriptive authority, authority for nurse practitioners and employer policies and protocols.
- Order and follow up with all indicated monitoring tests and document results in the patient healthcare information record.
- Educate and document education given to patients and/or their parents regarding their responsibilities for adhering to medication and treatment regiments, including lifestyle modifications as well as the risk of noncompliance.
This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. This information is provided for general informational purposes only and is not intended to provide individualized guidance. All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. Any references to non-Aon, AIS, NSO, NSO websites are provided solely for convenience, and Aon, AIS, NSO and NSO disclaims any responsibility with respect to such websites. This information is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., NSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information.
Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc., a licensed producer in all states (TX 13695); (AR 100106022); in CA, MN, AIS Affinity Insurance Agency, Inc. (CA 0795465); in OK, AIS Affinity Insurance Services, Inc.; in CA, Aon Affinity Insurance Services, Inc., (CA 0G94493), Aon Direct Insurance Administrators and Berkely Insurance Agency and in NY, AIS Affinity Insurance Agency.