Cleared To Play Part 2

Voiceover: Every minute someone’s life takes a terrifying detour not down a dark alley, but into the sterile, bright halls of healing. They walk in, seeking care and find themselves plunged into a nightmare. Most malpractice claims in hospitals are related to surgical errors, whereas most claims for outpatient care, which accounts for more than half of the paid malpractice claims, are related to missed or late diagnosis. 

Now, before you raise a pitchfork at every white coat you see, let’s be clear this isn’t an indictment. It’s a revelation. Because the truth is, any provider, any nurse, any human being capable of brilliance is also capable of a mistake. This is about understanding why and using that knowledge to build a safer future for every patient who walks through those doors. 

Welcome to FHEA’s Scrubs and Subpoenas: Tales from the Witness Stand, a podcast where we’ll peel back the sterile sheets and delve into the real stories of medical malpractice. Each episode a cautionary tale, a blueprint for change, a reminder that even in the darkest corners of human error, there’s a light, the light of knowledge, the light of empathy, the light of a future where healthcare becomes not a gamble, but a guarantee. 

So, join us as we dissect the mistakes, illuminate the flaws, and ultimately learn to heal not just bodies, but the very system itself. 

Jannah Amiel: Welcome back to part two of our Cleared to Play case. Let’s get right back into it.  

You know, you mentioned that it took a year from when this, you know, tragedy-this event-happened to when it sounds like the NP was served. 

Is that typical that it can take like a hot minute before you see anything actually happen?  

WW: It’s actually really typical. And I talked with the attorneys about this a lot, because people are often served their subpoena at the very end of the statute. So, in many cases, the statute is different. So, in my state the statue is up to 3 years, I believe, from the death or the time of discovery. 

So, they have up to 3 years to file a claim. And remember, what’s happening during that time is that the case is being sent out to experts. And experts are going to look at that case and say, ‘Yeah, you’ve got a case here’ or ‘No, this, you don’t have a case.’ And I told you, I’ve worked on almost 150. 

I would tell you at least 25% or more, I look at them and say, ‘I wouldn’t waste your time on this. I don’t believe that this is a case that you could take anywhere.’ And remember that if you work on a plaintiff’s case, the plaintiff is responsible for all of the costs associated with that case. So, meaning the plaintiff’s attorney. 

JA: Yeah.  

WW: So, they want to make sure that not only do they have a case that’s going to go the mile, they want to make sure that they’re going to be able to recuperate the 100,000+ dollars that the plaintiff attorneys now tell me is what it takes to take one of these cases all the way to the very end. 

So, yes, it’s not unusual, actually, a year, a little quick. I did just have a case where the person was served 3 months after someone died.  

JA: Oh my gosh.  

WW: That’s pretty quick. Most of the time it’s a year or two, sometimes even longer.  

JA: Wow. So, Dr. Wright on this case, were you on the defense side? 

WW: I was on the defense side.  

JA: Alright.  

WW: I was on the defense. Now, remember that. And I talked to the attorneys about this all the time is I’ll say to them, ‘We’ve got a really tough case.’ And they say, ‘That’s what I want you to tell me.’ Ideally, I would love it if you said, ‘I can march into that courtroom and I can defend this case, and here’s where we’re going to go.’ 

But nine times out of ten, what I say to them is, ‘I can go in, we’re going to have some defense, but we’ve got some holes and we’ve got to figure out how it is we’re going to defend this nurse practitioner.’ What I didn’t tell you, and I’ve saved for the end, that I really wanted you to hear is that once we got all the records, because remember, once this is all coming together, on the defense they’re going to try to get this child’s records from the day they were born. 

JA: Right.  
 
WW: So we can look at this. Well, what we uncovered was he had been in the emergency room on two occasions in the year leading up to his death seen by two physicians, two different ERs for shortness of breath with exercise. And what do you think they said it was? Exercise-induced asthma. No spirometry was done. No cardiac heart sounds were documented in either one of those notes. 

I will maintain that that was not exercise-induced asthma in either time. I will maintain-and this is what I said to the attorneys-I will maintain that that child was presenting with outflow obstruction, interpreted as shortness of breath with exercise. He left with albuterol. But I really believe it wasn’t asthma. There was really no indication on autopsy of any inflammatory issues in the lungs. 

I think his shortness of breath or dismay on exertion was the result of his outflow obstruction due to his hypertrophic obstruction.  

JA: Wow. So, are you saying that, like, for the asthma diagnosis, that you don’t even think really any asthma was going on? Wow.  

WW: None of us believe-none of us that worked on this case believe he ever had exercise-induced asthma. 

Ever. We believe that his shortness of breath, because it was a relatively new diagnosis in the last couple of years, and all of us believe, given the size of his heart and given how big that left ventricle was, that his symptoms were not anything to do with asthma, that but again, this is why we now have guidelines that suggest that do these tests to at least make sure you’re ruling in and ruling out other, more worrisome issues. 

JA: Yes. Oh my gosh.  

WW: And by the way, those two physicians in those 2 ERs were never named in the case. It was the NP whose name was on that clear for sports. Because by the time we uncovered those records, plaintiff hadn’t gone after those records. They don’t want those records from the ER. Well, maybe they did. They should have probably because they probably could have named those hospitals as well. 

But we were the ones who uncovered them. In the end, the work-up of trying to get this child’s records, and it could have been additional pocketbooks for that plaintiff attorney to go after. But by that point, everyone had been named. And let’s talk about that for a second. A plaintiff attorney will often name anyone and everyone remotely connected with the case. 

JA: Yeah.  
 
WW: Anyone who’s touched the case.  

JA: Yeah.  

WW: And then as it moves forward, they’ll let them kind of fall out of the case. It’s harder to introduce defendants into a case once the case has been filed with the court. You can do it. I’ve seen it done, but it’s pretty unusual. Usually they’ll name anyone remote and then let people kind of fall out when there’s no evidence that they played any role in this. 

JA: Wow. So that’s really scary. I think in the initial bit, in part because I can imagine just being the nurse who may have put the patient in the room getting named in a case and like trying to even remember who what patient was that, you know, like what’s going on? How am I involved in this? That can be a really scary thing. 

WW: Well-and it’s scary because you had nothing to do with that, right? You just roomed the child. But you’re being named, and you’re being named because they want to find out when your deposition is done, do you have your own malpractice insurance? And because then you become another pocket, right. And the more that are named, conceivably, if everyone had their own malpractice plan and you name 21, your pocketbook is now 21 million, right, that you have access to, because each one is $1 million claim. 

So, most people don’t carry their own, but some do. And then you’ve got the whole they often name the facility, the hospital, the organization. Like I own a family practice. I know that if any of the NPs in my clinic are ever sued, it’s very likely that I and my company will be sued as well in that case. 

JA: Yeah. You know, can you talk to us a little bit about that piece? We’ve actually gotten an interesting question about the medical malpractice insurance. And I think it was actually for a new practitioner or perhaps a student. But in regards to when, you know, even they said when you go to the doctors and some tell you right off, I don’t have any malpractice insurance, no medical malpractice, some carry their own. 

How does that play in real life in a case like this? Because it’s like, why wouldn’t you have insurance, right? I have insurance for my car, for my house, for my health. Why not have medical malpractice insurance? Clearly there’s cases that happen.  

WW: Well there are, but there are states like Florida where it is next to impossible to get malpractice insurance. 

And if you do it depends on the different counties is my understanding, but they’re limited as to how much they can get. And it’s such a small amount that it’s better to go bare. Now for me, I would never go bare, just like I don’t go bare without car insurance. Right? Even if your house insurance, even if I don’t have a mortgage, I have homeowner’s insurance because I don’t want to take a chance of something bad happening. 

I’m working a case now where the provider said when patients signed in, I don’t have any malpractice insurance, and you are accepting that if something happens, you need to know I have no malpractice insurance. So then it becomes, well, where are they going to get money from? Right. But I have worked on four cases-so let me preface this by saying when I came out of school, I carried my own malpractice insurance. 

It was about $1,000 a year, but I wanted that insurance to protect only me. I wanted someone that if I worked in a facility, that those lawyers would be looking out for me and only me. And I carried that until I opened my own clinic. And I’m glad I did, because there was one time where I was served papers to testify in a case against the physician that employed me. 

So I was not named. I was the one that identified the issue. But I had to testify and my insurance, my malpractice, appointed me my own lawyer, got me ready for the deposition because as you can imagine, here I am testifying against my employer. I don’t want to throw the employer under the bus, but I certainly don’t want to be named in a case either. 

So, I was so thankful I had my own insurance. But I will tell you, I’ve worked on four cases now where nurse practitioners had to give a deposition because they were named or they were not named in the case, but they were involved, so they had to give their deposition. And four times in 27 years, those employees have been then named as a defendant because it was found out during the deposition that they carried their own malpractice insurance. 

So, instead of just being insured under the hospital, they had another million dollars of money. And so they were brought in as a defendant when they weren’t before. So, when I speak of malpractice, I always say I carried my own. Here’s the reason I did it. I’m glad I did it, but this is something you have to think through, and a lot of large organizations will tell you they don’t want you to carry your own because they recognize that it becomes fodder for a company to go after you, or an attorney to go after you. 

JA: Wow. Thank you for that. That really helps to clear that up. Wow. This was great. Dr. Wright, I really appreciate you sharing that story. And for your time, you know. What are some of the big takeaways that you want to leave our audience with? For any practitioners or clinicians that are listening, that are thinking about this story or thinking about jeez, if I would have done that, I may not even have considered moving on to the next step either. 

You know, what are some takeaways that we can learn from this.  

WW: Sure. And maybe it would be good for people to know kind of what happened. What happened was that the case did settle. And that’s true for most cases. Most cases don’t go to trial. I’ve been in a courtroom, I think, five times in 27 years. 

This case settled because it’s obviously a tragic case. And if it got in front of the jury and the jury heard that, you know, it’s going to be a very large kind of punitive or large settlement. So, they were able to work out a settlement that did pay out. The organization paid out. And I think it was appropriate-our job was to just poke enough holes in the case so that it wasn’t as large of a settlement as I think it could have potentially been. 

But with that said, what are some takeaways? Trust your instincts. Benign murmurs don’t radiate. If you hear them somewhere, get an echo. Sports physicals are a liability, and there are a lot of facilities that have nurse practitioners doing sports physicals in 10, 15, 20 minutes. I don’t know how you do it. I say take the time, make sure that those sports physicals that you remember, that that is often the only interaction that a child has with a healthcare provider in a given year. 

We’ve got to use that opportunity to counsel, but also to look for any of these red flags and don’t rest on just history and physical exam. If someone has asthma, the guidelines now say get spirometry. If you don’t have spirometry, at least do peak flow and calculate that out into FEV1 or percentage predicted. But read the guidelines and go read, stay up-to-date. 

One of the things an attorney told me recently was most of the malpractice cases that they’re seeing are nurse practitioners that have been out under 2 years and nurse practitioners that have been out for 20 years or longer. I think that’s fascinating. I understand the under two because you don’t know what you don’t know.  

JA: Right.  

WW: But I also understand the 20 and up because it becomes very easy to stay doing what you’ve always done. 

And things change in medicine and you’ve got to be on top of that.  

JA: Yeah, yeah, that’s a really important takeaway. You know, when we talk about things like lifelong learning, right. And continuing education, it’s not just to like check the box, but if there is one thing I have learned from spending time with amazing NPs like yourself is that guidelines change. 

They change often. Like there are new things coming down. A lot. And you are responsible for knowing it. You’re responsible for understanding it. And that’s absolutely true.  

That is pretty interesting. Under two and over 20. That’s an interesting number.  

WW: It is interesting. And there was a study that actually came out that said people actually get worse care from physicians who have been out in practice more than 25 years than they do from newer physicians. 

So, I think it’s because when you come out, you’re not jaded. You shouldn’t be jaded. I think you are so like, ‘I want to save everyone. I want to do everything I’m supposed to do.’ And I think sometimes people become very complacent. Well, I’ve never seen a kid have this, and I’ve done this for 32 years. Well, you know what? 

We had a brand new patient walk in yesterday, saw the NP, and say I’ve had belly pain since I was in fourth grade. He’s now 25.  

JA: Oh my gosh.  

WW: As she examined him she palpated his belly. He jumped off the table. She tapped his heel. She said, “I think you’ve got an appendicitis.” 

He’s like, ‘How can it be? It’s only a little bit worse than it’s ever been.’ It was an appendicitis. He was in the OR last night. So don’t become complacent because it gets really easy to just. Oh, I’ve never done that. I’ve never seen that. Nothing bad is going to happen. Bad things happen. This is healthcare. 

JA: Absolutely. Things are good until they’re not. And you’re totally right. This is healthcare. It can be all good. And then it’s not. And when it’s not good in something like this it’s really really good.  

WW: Yeah exactly. Yes, ma’am.  

JA: This was fantastic. Dr.  Wright, thank you so much for your time. Thank you for sharing this and just giving us all these pearls of wisdom to take home. 

WW: Well, thank you so much for having me, and I hope everyone enjoys this Scrubs and Subpoenas session.  

JA: Absolutely. And if you guys want to hear more of this, please check out more of our podcasts we have going on. We’ve got lots more episodes of Scrubs and Subpoenas and other episodes of different series for our practicing NPs. So check us out on FHEA.com. 

And until the next one, goodbye for now.  

WW: Goodbye for now. 

Voiceover: Thank you for listening and learning with Scrubs and Subpoenas: Tales from the Witness Stand presented by Fitzgerald Health Education Associates. 

Please rate, review, and subscribe to this podcast, and for more NP resources, visit FHEA.com. Join us again next time as we dissect more medical malpractice cases.