Avoiding Liability Bulletin – October 15, 2015
During class at his middle school, a male student did not feel well. He put his head down on his desk. His teacher sent him to the school nurse who took his temperature. It read 98.2oF. When asked, the student said he just didn’t feel well. The nurse called the boy’s mother who picked him up from school, gave him some Tylenol, and the boy rested at home.
Later that day, the mother took her son to a clinic with a chief complaint of “left groin pain”. The patient rated his pain as a 3 on a scale of 1-10 He was seen by a nurse practitioner who noted tenderness to palpitation on his left thigh and muscle tenderness but no bruising. B.P. was 135/68.2
A diagnosis of muscle strain was made. The NP gave an injection for pain, instructed the mother to give him Motrin, to apply ice to the area and to have her son rest for 2-3 days. The boy was then discharged.
The next day, the young boy stayed at home with help with ADLs from his mother and sister. He was able to walk to the bathroom but with a slight limp. He had difficulty swallowing the Motrin pills, so his mother called the clinic to ask if she could administer liquid Tylenol instead and did so according to the instructions from the clinic. The boy was taken to his father’s that evening due to a family commitment the next day.
The mother received a call from the boy’s father the next day that their son’s condition has worsened and the father was taking him back to the clinic. The boy was seen by a certified family nurse practitioner on this visit who was told by the patient that the pain was now a 10 on a scale of 1-10. The patient stated that his left hip bothered him for four days due to an injury he received playing basketball earlier in the week.
Ordered X-rays were negative for any broken bones. Lab results indicated a normal white blood cell count, an elevated sed rate, and elevated granulocyctes and lymphocyctes. In addition, the patient had a rash that was not present at the first visit to the clinic.
A CT scan and MRI were also ordered which the physicians who ordered them indicated a “possible bursitis v. possible bursa tear”.3 The boy was prescribed Tylenol, Demoral, and Lortab and was discharged in stable condition.
The young boy’s pain and developing rash continued, so the next day his mother took him to a nearby hospital. His condition there was described to be “profoundly neutropenic” and in “septic shock”. Fluids were given IV and he was transferred by ambulance to the pediatric ER at a university medical center. The transport was interrupted due to his need for emergency stabilization at a nearby hospital, where he was intubated and airlifted to the university medical center where he was admitted.
At the umc, the boy was diagnosed with septic hip that could be treated with a broad-spectrum antibiotic. Shortly thereafter, however, he developed respiratory distress syndrome. Large areas of ischemia and deep tissue necrosis developed in all four extremities. The patient remained in the pediatric ICU for two months where he died of multiple organ failure, sepsis syndrome, and a staphylococcus aureus infection.
The mother of her deceased son filed a medical malpractice and wrongful death suit against the United States of America pursuant to the Federal Tort Claims Act. The clinic was a tribally operated facility under the U.S. Department of Health and Human Services and Title I of the Indian Self-Determination Act. 4 All of the health care personnel, including the nurse practitioners and the physicians, were employed by the United States acting in their scope of employment. The Department of Health and Human Services denied the mother’s claims.
After a bench trial, the court entered a judgment in favor of the mother. In doing so, the court carefully considered all the expert witness testimony, the testimony of the family nurse practitioner, and others. In awarding a judgment of $1,903,961.00 to the parents, the court opined that the family nurse practitioner failures proximately caused the death of this boy. Her failures, which if acted upon, would have saved the deceased’s life, included the:
- Failure to intervene with the patient’s elevated pulse, tachycardia and decreased blood pressure;
- Failure to inquire about whether the patient had a history of fever or chills;
- Failure to consult with patient’s record of initial visit to the clinic;
- Failure to rule out septic hip;
- Failure to properly document physical examination of patient;
- Failure to evaluate the patient’s ability to walk; and
- Failure to order antibiotics based on a probable bacterial infection.
The case underscores the importance of expert testimony regarding how one evaluates and treats a patient. In this case, two physicians for the parents of the deceased boy and a physician expert for the nurse practitioner provided the detailed, copious expert testimony about the care of the young patient and the breach(es) of the family nurse practitioner’s standard of care.
Although most often it would be another nurse practitioner who would provide such testimony, it has been said that because “nurse practitioners have the same general responsibilities as physicians, they may need to heed the same standard of care as a physician in the same specialty”.5 In this particular case, that principle was followed.
It is also important to note that other health care providers that cared for the deceased arguably did not meet their respective standards of care as well. It was the family nurse practitioner’s failures, however, that proximately caused the death of this young boy.
1. Wendy Chickaway et al v. The United States of America, Civil Action N0. 4:11-CV-22 CWR LRA, U.S. District for the Southern District of Eastern Mississippi, 12/20/13, pp.1-41. Retrieved from http://www.mslitigationreview.com/files/2013/12/Chickaway-opinion.pdf. Accessed 10/1/15.
2. Id., at 1.
3. Id., at 5.
4. Id., at 6.
5. Wendy Wright, MS, RN, APRN,FNP, FAANP (n.d.), “Malpractice:
What NPs and PAs Need to Know.” Retrieved from: www: nurse-practitioner-and physician assistants.advance.com/Web-Extras/Online-Extras/Malpratice-Prevention.aspx.
THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK ADVICE FROM A COMPETENT PROFESSIONAL.