Nurse Practitioners and Medical Malpractice: Case Study with Risk Management Strategies

Medical malpractice claims may be asserted against any healthcare provider, including nurse practitioners. This case study involves a nurse practitioner in an in-patient alcohol/drug treatment setting.

Case Study: Failure to manage the patient’s care in order to maximize individual recovery and quality of life, Failure to advocate and promote a system and climate that is conducive to providing ethical care, Failure to utilize ethical principles to advocate for access and parity of services for mental health problems, psychiatric disorders, and substance use disorder services

Total Incurred:  Greater than $1 million

(Monetary amounts represent only the payments made on behalf of the treating nurse practitioner.)

The patient was a 52-year-old woman who had been admitted to a privately-owned alcohol and drug rehabilitation inpatient facility with diagnoses of long-term depression, fibromyalgia and chronic pain. She was treated with pain medication and antidepressants. The facility required full payment at the time of admission and asserted that it was capable of caring for and treating her multiple problems and symptoms.

The insured was a board certified psychiatric nurse practitioner who was working as an independently contracted (i.e., non-employed) nurse practitioner for the co-defendant facility. The nurse practitioner assessed the patient shortly after her admission. He determined that while the patient had a long-past history of alcohol use and required medication for pain management, she did not have a current substance abuse disorder.

Within his scope of practice, he was able to make a determination of mental illness. He believed that an alcohol and drug program was not appropriate for the patient, who needed psychiatric inpatient treatment. On at least two occasions, he reported his findings and concerns to his supervisor, the patient’s psychiatrist and the facility co-owner. The nurse practitioner demonstrated appropriate concern for the patient and reported his findings regarding her past and current use of narcotic pain drugs to his supervising psychiatrist. In response to the insured, the psychiatrist indicated that the patient’s diagnosis was his responsibility and he would manage her care. The psychiatrist further stated that the patient was in the correct treatment setting.

Following a family visit, the patient attempted suicide, wounding herself in the neck. She survived the attempt, but suffered severe anoxia and permanent brain damage. The insured was not working on the day of the suicide attempt.

The patient’s permanent condition dictates that she cannot be left alone and requires full-time assistance with all aspects of her personal care. The plaintiff’s family filed a lawsuit on behalf of the plaintiff, naming the alcohol and drug rehabilitation facility and healthcare professionals responsible for her care, including the insured nurse practitioner. The plaintiff sought economic, noneconomic and punitive damages, as well as plaintiff’s attorney fees. The plaintiff’s experts valued her future care expenses at $4-6 million. Defense experts placed the value at $2.7 million.

Analysis

Defense experts and the defense attorneys judged the nurse practitioner’s actions to be appropriate and within the standard of care, deeming his potential liability in the matter to be 2 percent or less. Relevant state law imposed a limitation on noneconomic damage awards in medical malpractice claims for physicians (psychiatric) and limits attorney fees. However, this law did not extend to nurse practitioners.

Defense counsel vigorously contended to the court that the nurse practitioner should be included within the statutory framework, as he was being supervised by a covered professional. However, these arguments were rejected. All co-defendants to whom the damage caps applied settled or were dismissed from the case, with the CNA/NSO-insured nurse practitioner as the sole remaining defendant. Attempts were made to offer a reasonable settlement, but the plaintiff’s demands greatly exceeded the nurse practitioner’s policy limits.

Notwithstanding his minor role in the care of the patient, as well as the fact that there were positive expert opinions regarding the care he provided, the plaintiff’s attorney was unwilling to release the insured from the case or even to offer a reasonable settlement demand. Due to state joint and several liability laws, if the nurse practitioner were found personally responsible for as little as 1 percent of the patient’s damages, he could theoretically be held personally liable for the entire amount of any jury verdict. Given the nurse practitioner’s positive expert reviews and the plaintiff’s unreasonable settlement demand, the decision was made to vigorously defend this case, and the trial commenced.

Resolution

Despite expert opinions and a vigorous defense, the jury found the nurse practitioner to be 8 percent liable for the patient’s injuries. The judgment amount could have been in excess of $4 million. Counsel determined that there were several appealable matters related to the trial and the judge’s rulings. As a result, discussion ensued about appealing the jury’s decision. However, re-trying any of those matters would not necessarily change the result, in light of the plaintiff’s obvious mistreatment and grievous injuries.  Moreover, the nurse practitioner suffered emotional distress and anxiety from the entire matter and was eager to settle the claim without further legal action.

Post-verdict jury interviews included juror comments that the nurse practitioner should have notified the patient or her family that she should not have been admitted to an alcohol and drug treatment facility, or taken more aggressive steps to have her transferred to an appropriate setting.

Defense counsel leveraged the possibility of an appeal to obtain a post-judgment settlement that included a total dismissal of the claim against the insured. As a result of the defense’s counsel’s strategy, the claim was resolved. The settlement monies with defense cost were greater than $1 million.

Risk Management Recommendations

  • Know and understand state medical malpractice laws as they pertain to potential professional liability exposures. Review the state practice act, speak with representatives of professional associations, and discuss potential liability risks with a broker or the insurer.
  • Before accepting employment, investigate the facility’s suitability by reviewing its website and asking direct questions during hiring interviews regarding the facility’s patient population, relevant policies, commitment to quality and scope of care.
  • Contact regulatory and professional licensing agencies if questions arise regarding the competence of facility management and/or the level of clinical care provided by the licensed professional staff.
  • Document assessment findings clearly and factually, including how results were arrived at, who was notified of the findings and what recommendations were made for additional diagnostic evaluation.
  • Notify regulatory bodies when the chain of command fails to address concerns relating to patient care, treatment and safety within the facility. Most states offer anonymous complaint hotlines. However, even if reporting protocols require self-identification, it may be necessary to make such a statement to protect patients who are clearly in jeopardy. In this case study, the nurse practitioner had notified all possible parties within the facility, to no avail. Reporting his concerns to an external regulatory body would have been the only remaining option within his scope of practice.

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