This case study involves a psychiatric mental health nurse practitioner (PMHNP) insured by NSO who was employed at a behavioral health/detoxification facility (“facility”).
A male patient in his early 20s with a history of drug and alcohol abuse was brought by his parents to a facility for inpatient treatment. This was the patient’s fourth admission to the facility in two years. However, unlike the prior admissions, the patient reported that he had been homeless for the past three months, living in various shelters or abandoned houses and buildings. The patient reported he had relapsed several months ago and went back to using heroin and crack cocaine daily and, on occasion, drinking beer. He denied any other illicit/street drugs or benzodiazepine use/abuse. His urine toxicology test was positive for alcohol, morphine (heroin) and cocaine metabolites.
Prior to our insured PMHNP seeing the patient, he had been examined and treated by two physicians and another PMHNP employed by the facility. Notably, a formal psychiatric evaluation with a history and physical examination (H&P) were not completed within the first 48 hours of the patient’s admission to the facility, which was the facility’s policy. Incidentally, the federal regulatory requirement for behavioral/psychiatric health facilities is to have a completed H&P within 60 hours of admission. The delay was probably due, in part, to the patient being admitted over a holiday weekend when staffing levels were lower.
The insured PMHNP’s first contact with the patient was at 9:00 a.m. on day three of his admission, which was a holiday. During the assessment, the PMHNP documented the patient’s complaints as difficulty sleeping, nausea, vomiting, diarrhea, abdominal cramps, muscle aches, chills, runny nose, sore throat, cough and goose bumps. She noted his temperature was 99.8 degrees Fahrenheit, pulse oximetry 99 percent on room air, blood pressure was 190/88 and a respiratory rate of 22. During the physical assessment, she recorded that the patient’s tonsils were beefy red with positive exudate, but lungs were clear on auscultation. While reviewing the patient’s chart, she noted that a few of the admission orders had not been completed. She re-ordered a throat swab for streptococcus and added a complete blood count (CBC) to the order. When the insured PMHNP asked the staff about the missing orders, she was told that staffing levels were low due to the holiday weekend, and the nursing staff was doing the best they could at the moment.
The patient requested that the PMHNP discontinue his current sleeping medication and prescribe zolpidem10 mg. Knowing that 10 mg is above the recommended dose of zolpidem, the PMHNP verified that the patient had previously been prescribed zolpidem 10 mg during his last admission, so she agreed to prescribe the zolpidem. In addition to the zolpidem 10 mg, the PMHNP increased gabapentin 300 mg twice-a-day to 600 mg twice-a-day, increased dicycloverine from 20 mg twice-a-day to four times-a-day and added tizanidine 2mg three times-a-day. The insured PMHNP left the facility approximately 2:00 p.m. and this is the last contact she had that day with the patient and the staff.
Later that afternoon, the nurses documented twice that the patient’s temperature was 102.7 degrees Fahrenheit but that his lungs were clear. At 9:00 p.m., the patient received his night-time medications, which included the updated doses and the newly added medications. During the night-shift nurse’s assessment, she documented that the patient’s throat was visibly inflamed, his tonsils were red with scattered white patches, but he had clear lung sounds bilaterally to all lobes.
Unbeknownst to the staff, and against the facility’s policy, at approximately midnight, the patient’s roommate gave the patient a peanut butter sandwich and a soda. Food and drinks are prohibited in patient rooms as a safety precaution to prevent aspiration in cases where a patient was at risk of suffering a seizure due to withdrawals. At approximately 1:00 a.m., the patient was found in severe respiratory distress and nonresponsive. EMS was called, and the patient was transported to the hospital.
The patient was diagnosed with sepsis, acute respiratory failure and aspiration pneumonia. As part of the treatment measures in the emergency department, a drug screen was performed. Consistent with the patient’s drug abuse and the medications he was given at the facility, he tested positive for heroin, cocaine, zolpidem and gabapentin. However, the patient also tested positive for benzodiazepine, more specifically alprazolam. The patient had not been prescribed any benzodiazepines while at the facility, and his admission drug screen was negative for benzodiazepine use. Upon learning of the patient’s positive benzodiazepine result, the facility performed an investigation.
The patient spent four weeks in the intensive care unit (ICU), three of those on a ventilator. While in the ICU, he developed a MRSA infection from a large sacral pressure injury and was diagnosed with pulmonary hypertension. Due to the pulmonary hypertension and sepsis, he developed a hemorrhagic disorder that resulted in the need for additional treatment for several pulmonary emboli.
Upon discharge from the ICU, he remained hospitalized for an additional five weeks. Upon his discharge from the hospital, he was admitted to an inpatient rehabilitation facility to undergo physical and occupational therapy. Currently, the patient lives with his parents and requires assistance with his activities of daily living. He has been disabled due to cognitive impairments and right ventricular heart failure.
Outcome of Facility Investigation
During the facility’s investigation of the incident, it was discovered that the patient likely aspirated after eating the peanut butter sandwich and soda given to him by the roommate. The roommate reported being concerned about the patient and gave him the food because he wanted “to see him eat and drink since he was feeling sick.”
The facility discovered there was a patient selling/distributing contraband alprazolam bars. The bars had been smuggled into the facility by a visitor and distributed by a patient. It is assumed that the patient in this case ate at least two bars, which was the cause of the drug screen being positive for benzodiazepine.
During the patient’s admission, the facility reported several system failures. One such failure was the lack of a medical consult to address the patient’s sore throat and fever. As the patient continued to complain of a sore throat, our insured PMHNP renewed the call for the medical consult. For reasons unknown, the calls for a medical consult went unanswered.
A second failure related to the staffing levels over a holiday weekend. While the nursing staffing levels met acceptable patient/nurse staffing ratios over the weekend, the ancillary staff was limited. The limited ancillary staffing levels placed a greater workload on the nurses and patient care technicians. The facility determined that the increased workload led the staff to miss patient room checks for contraband, patient documentation entries and following up on medical orders.
Risk Management Comments
One year after the incident, the patient/plaintiff filed a lawsuit against our insured PMHNP (defendant) and the behavioral health/detoxification facility (co-defendant). Allegations against the insured PMHNP included failure to order the appropriate medication, untimely management of a behavioral health patient, and failure to timely respond to patient’s concerns related to the treatment plan. The demand from the patient was $1.4 million for physical and mental anguish, physical disfigurement and physical impairment, as well as past and future loss of earnings and medical and healthcare expenses incurred for the treatment of his injuries both past and future. Additionally, his medical costs related to the incident were greater than $3 million.
The plaintiff’s experts focused primarily on the failures of the facility. However, they asserted that the insured PMHNP prescribed medication and treatment for opiate and heroin detoxification, but she failed to prescribe medications for benzodiazepine detoxification/withdrawals. A known side effect of not treating benzodiazepine withdrawals is seizures. The plaintiff’s medical expert opined that the patient suffered a benzodiazepine withdrawal seizure, which resulted in aspiration resulting in his respiratory compromise.
The defense expert supported the actions of our PMHNP and testified that the allegation regarding failure to treat the patient for benzodiazepine was unfounded. In addition, the providers who treated the patient at the hospital testified that they did not believe that the patient had suffered a seizure or any type of seizure-like activity. More importantly, the patient’s hospital CT scan of the brain was negative for any seizure activity during his hospitalization and at discharge; he was not prescribed any medications for seizures.
The defense expert further testified that the patient initially self-reported that he was NOT taking any form of benzodiazepine when admitted and his drug screen was negative for benzodiazepines. This factor represented a key finding, as patients who are addicts tend to over-report what they are using so that they can get more benzodiazepines during their withdrawal treatments. The expert further testified that if a patient potentially was at risk for benzodiazepine and opiates withdrawal, the standard of care is to prescribe withdrawal medications coupled with an anticonvulsant (gabapentin) to prevent seizures, which is what the PMHNP had done.
Shortly after the incident occurred, the insured’s employer filed a complaint against the PMHNP’s license with the State Board of Nursing (SBON). The SBON completed an investigation and dismissed all of the complaints/allegations against our insured just prior to the mediation. The dismissal of the allegations against the insured was shared with the co-defendant and plaintiff at the mediation. The defense argued that the SBON’s dismissal confirmed the defense expert’s opinion that the insured acted within the standard of care.
The PMHNP’s defense team had some initial concerns involving the co-defendant facility’s plans to potentially use the PMHNP’s co-workers to testify against her if the case went to trial. The facility was determined to place as much blame on the insured as possible. The insured’s defense team believed that such finger pointing, coupled with questions regarding the potential cause of the patient’s seizure, his age, his disabilities and the expectation that he required long-term care could lead to a high settlement value.
The court required that the parties mediate the dispute prior to trial, in an attempt to resolve the case. Our strategy at mediation was to emphasize that our insured was not the target of this case. During the mediation, all parties were notified that the SBON claim against our insured had concluded with no adverse findings related to the patient’s care. Coupled with the defense argument that our insured’s actions concerning the patient were within the standard of care, this finding was significant. The insured and her defense team recognized that if a settlement was not reached during mediation, the case would probably go to a jury trial. While the defense team evaluated the chance of a defense verdict at 70 percent, they believed that a jury might find that our insured had a responsibility to ensure that her orders had been implemented in view of her knowledge that the facility’s staffing levels were low.
At the mediation, the insured’s defense team remained adamant that our PMHNP did not breach any standards of care. Ultimately, the plaintiff dismissed all claims against our insured without any settlement. We did not insure the facility, but we later learned that the facility’s settlement with the plaintiff was greater than $500,000. An excellent result for our insured was secured, as plaintiff’s claimed damages were in excess of $5 million, and a potentially significant exposure could have ensued.
State Board of Nursing license protection matter: Expenses were greater than $18,000
Total incurred legal defense expenses: Approximately $79,000.
(Monetary amounts represent the payments made solely on behalf of the insured PMHNP.)
Risk Management Recommendations for Nurse Practitioners
- Remain current regarding clinical practice, medication, treatment and equipment utilized for the diagnosis and treatment of acute and chronic illnesses and conditions related to my clinical specialty.
- Prescribe medication in compliance with the state nurse practice act, state prescriptive authority, authority for nurse practitioners and employer policies and protocols.
- Obtain a comprehensive and accurate history prior to providing patient with treatment or medications.
- 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 regarding their responsibilities for adhering to medication and treatment regiments, including lifestyle modifications as well as the risk of noncompliance.
The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situations. Please note that Internet hyperlinks cited herein are active as of the date of publication, but may be subject to change or discontinuation. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. Use of the term “partnership” and/or “partner” should not be construed to represent a legally binding partnership. All products and services may not be available in all states and may be subject to change without notice. CNA is a registered trademark of CNA Financial Corporation. Copyright © 2021 CNA. All rights reserved.
This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. It reflects general principles only. It 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. This publication is published by Affinity Insurance Services, Inc., with headquarters at 1100 Virginia Drive, Suite 250, Fort Washington, PA 19034-3278. Phone: (215) 773-4600. All world rights reserved. Reproduction without permission is prohibited.
Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc. (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.
© 2021 Affinity Insurance Services, Inc.