Nurse Practitioner Case Study: Missed test result notification leads to delayed colon cancer diagnosis

Relying entirely on your employer’s medical malpractice insurance may be a mistake. For example, if a malpractice claim is filed against you and your employer, and your interests conflict with your employer’s, your employer’s insurance company is most likely going to back your employer. Or there may be serious gaps in your employer’s malpractice insurance. If multiple parties from your workplace are named as defendants in a malpractice lawsuit, your employer’s limits of liability may not adequately protect you, leaving you responsible for paying the difference. This medical malpractice case study and risk management strategies, presented by NSO and CNA, involves a family nurse practitioner (FNP) who was working in a physician-owned internal medicine office and almost made the mistake of relying on her employer’s insurance.



The patient was a 35-year-old female with a history of Vitamin D deficiency, iron deficiency anemia, rosacea, hypothyroidism, gastroesophageal reflux disease (GERD) and attention deficit hyperactivity disorder (ADHD). She had been a patient of a large internal medicine practice for several years and had been treated by many of the providers in the practice.
Her primary care provider (PCP) was an internal medicine physician and the owner of the practice.  The patient would typically see him for wellness and chronic disease/medication refill visits. During a medication refill visit, the patient reported new problems she was experiencing. which included being easily fatigued, vague abdominal pains and bloody stools.
She also reported a family history (her father and grandfather) of metastatic colon cancer requiring surgical resection, chemotherapy and radiation.  Therefore, the provider performed a fecal blood test (FBT), which came back positive.
The test results were sent through the electronic healthcare record (EHR) system to alert the provider’s nurse to inform the patient of the test results. Due to a system error, the communication did not occur.
Three months later, the insured came in for her chronic disease follow-up visit and was seen by an insured Family Nurse Practitioner (FNP). The insured FNP treated the patient but failed to review the previous patient healthcare information records related to the fecal blood test results.
Over the next nine-month span, the patient was seen by other providers in the practice who also failed to address the positive fecal blood test results.
More than a year later, the patient scheduled an appointment with the insured FNP. The appointment was due to ongoing abdominal pain and lower back pain for the previous three to four weeks.  She reported that the pain was more severe after eating and disturbed her at night.
An H. pylori test was performed in the office with negative results, leading the FNP to refer the patient to a gastroenterologist.
Before the patient’s initial visit to the gastroenterologist, she was seen at a walk-in clinic for nausea and two episodes of hematochezia with diarrhea. The clinic performed lab work and gave the patient an H-2 blocker and docusate. The lab work was normal except for her liver enzymes, which were AST 72, ALT 87, alkaline phosphatase 389, total bilirubin 0.4 and CRP 2.64.
Three days later, at her initial visit with the gastroenterologist, the patient’s lab work was repeated and the liver enzymes were higher. The patient underwent a colonoscopy, where a large mass was discovered in the patient’s transverse colon.
The patient was diagnosed with Stage IVB colon cancer and referred to an oncologist for treatment. The cancer had metastasized to the liver, and she had near complete obstruction in the lungs.
After several failed attempts to treat the cancer, the 37-year-old patient was placed on hospice care and later passed away. The patient had two minor children and a husband.
The patient’s husband filed a lawsuit against the EHR system, the internal medicine practice, and several employed providers individually, including the insured FNP.

Risk Management Comments

After the patient’s PCP learned of the patient’s diagnosis, but prior to the lawsuit being filed, the patient’s PCP, and owner of the practice, sent a letter to the patient and her husband. The letter asserted that a problem with the EHR’s alert system was the cause of her FBT result being missed which led to a delay in her cancer treatment. The letter was signed by all the providers involved in the patient’s most recent care, which included the insured FNP. The FNP and all the other providers who signed the letter were all later named in the lawsuit.
Unfortunately, the practice did not properly investigate the incident. When the EHR company investigated the incident, it was able to prove that the missed lab result was a human error by the practice and not due to a defect in the EHR system.
During his deposition, the PCP was forced to admit the error of the practice. However, the situation had already resulted in the insured FNP being named in the lawsuit.


The FNP notified NSO/CNA a few weeks prior to her deposition, which was two years after the claim was filed and four years after the patient’s death. Her reasoning for the delayed notification was that she believed her employer would work with her to defend the claim.
It wasn’t until she learned about the other named providers holding her responsible during their deposition testimony that she reported the incident. The possibility of a jury awarding the plaintiff with an excessive verdict amount due to the emotional aspect of the claim concerned the FNP.
Several of the providers were distressed about being named in the claim, thus compounding the difficulty of defending the FNP.
Despite having defense experts that could defend the actions of the FNP, the insured was very concerned and requested that the claim be resolved.
The claim resolved on behalf of the insured FNP with a total incurred of greater than $1,000,000.

(Note: Figures represent only the payments made on behalf of our insured family nurse practitioner and do not include any payments that may have been made by the FNP’s employer on her behalf or payments from any co-defendants. Amounts paid on behalf of the multiple co-defendants named in the case are not available.)

Risk Control Recommendations Related to Diagnosis:

  • Review the patient’s most recent laboratory and diagnostic testing results and/or visit notes, either prior to or during the appointment. Assure that test results (e.g., abnormal lab and/or diagnostic tests) and/or outstanding items (e.g., referrals or additional testing) have been addressed and/or scheduled.
  • Diligently screen for, monitor and/or treat diseases known to have high morbidity and mortality, such as diabetes, heart disease and cancer.
  • Document the decision-making process that led to the diagnosis and treatment plan.
  • Obtain, review and consider pertinent patient and family medical history, and document all findings.
  • Perform a patient clinical assessment and physical examination to evaluate and address the specific clinical issues under consideration.
  • Respond to patient questions or concerns prior to obtaining a witnessed, signed consent for the test or procedure.
  • Notify patients when screening is due and follow up if patients do not respond, documenting all communications.
  • Seek timely consultation and advice regarding patients with recurring complaints and/or signs and symptoms that do not respond to the prescribed treatment.
  • Utilize available clinical practice guidelines or protocols when establishing a diagnosis and providing treatment, documenting the justification for deviations from guidelines or protocols.
  • Establish the patient’s diagnosis by obtaining and documenting the results of diagnostic tests such as biopsies and other appropriate diagnostic tests, as well as by initiating consultations and referrals, as indicated.

Risk Control Recommendations Related to Incident Response:

  • Notify your employer’s risk management/legal department as well as the professional liability insurance carrier immediately following the unexpected death of a patient or whenever one’s actions may be under scrutiny.
  • Immediately contact your personal insurance carrier if you become aware of a filed or potential professional liability claim asserted against you, receive a subpoena to testify in a deposition or trial, or have any reason to believe that there may be a potential threat to your license to practice nursing. If you purchase your own professional liability insurance policy, report possible claims or related actions to your insurance carrier, even if your employer advises you that he or she will provide you with an attorney and/or will cover you for a professional liability settlement or verdict amount.
  • Provide your insurance carrier with as much information as you can when reporting real or potential legal situations, including contact information for the organization’s risk manager and for the attorney assigned to the litigation by your employer.
  • Never testify in a deposition without first consulting your insurance carrier or, if you do not purchase your own professional liability insurance policy, without first consulting the organization’s risk manager or legal counsel. In addition, do not testify in a deposition without having had specific deposition preparation by your attorney.
  • Promptly return calls from your defense attorney and the claim professionals assigned by your insurance carrier. Contact your attorney or claim professional before responding to calls, e-mail messages or requests for documents from any other party.
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.

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.

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