The 5th Vital Sign

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 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: Hello and welcome to another episode of Scrubs and Subpoenas: Tales from the Witness Stand. I am your host, Jannah Amiel, and joining me is Dr. Sally Miller. Dr. Miller, how are you?  

Sally Miller: I’m very well, thank you. And you?  

JA: Very good. Thank you. Thank you. Always a good time joining you for these podcasts. I really, really do enjoy this. 

For those of you who might be listening for the first time-hopefully you’re not-hopefully listening to a lot of our episodes. Dr. Sally Miller not only is one of our amazing faculty here at FHEA, but also serves as an expert witness for medical malpractice cases and has graced us with some of these actual, real patient stories as an opportunity to kind of dissect, listen, and learn. 

You know, because we know we’re all healthcare providers. We know mistakes can happen to every single one of us. And it is a really good opportunity to listen, right, and to hear some of the things that have gone wrong, for lack of a better term. And, you know, what are some of the takeaways that we can carry with us in our own practice to help us to practice better for ourselves and for our patients? 

Is there anything you want to add to that, Dr. Miller?  

SM: I don’t think so. I just, you know, always a reminder that this is not meant to be critical or punitive or cast aspersions on anybody’s judgment or care. I think all of us can identify with some of these things and just hopefully learn from it. 

JA: Yeah, I agree, I agree. Alright. So, without further ado, ready for you to give us our next case. And while you all are listening, I do the same thing, I don’t know these cases until Dr. Miller tells us, but as you’re listening, it is kind of interesting to play a little game in your head: was Dr. Miller serving for the defense or serving for the plaintiff, as you hear her go through these stories. 

Alright. So, I’m going to be quiet. I’m ready for it. I’m ready to hear it.  

SM: Okay. Well, this story starts in January. We’ll just say in January of year one as, you know, the baseline discussion here, although the events are all pretty concentrated here. So, this is a patient who-she was my age. Like I can identify with this because this patient is the same age as me. 

JA: She was 21 is what you’re saying.  

SM: Yeah. Yeah. Well, it’s not 21. She’s actually 60-she was 61 years old. You notice I said she was 61 years old. So, she was 61 actually in this case. And she was 61 when she died. And it really is interesting how you look at that and internalize it. 

You know, you identify with that. So, and as an expert, it is of course-I wasn’t 61 when I was reviewing the case. But just on a side note, as an expert, we really have to mitigate that. You know, that’s an example of implicit bias. And you can’t identify with the patient. 

You just have to review the facts and evaluate them in accordance with standards of care. So, anyway, this patient in January of this year, she actually had been admitted to a rehabilitation facility because she had bilateral knee arthroplasty. And they were uncomplicated. So, this was intended to have been a rather brief stay in a rehab facility, probably because it was both knees at the same time. 

Oh, you know, it’s one thing if you have one knee, you go home, but if you have two, you need some professional help. So, it was not intended to be a long stay. She truly was there for rehab. And then she was going to go home. So, her surgery was on the 20th of January. Excuse me, her surgery is on the 20th of January and the story starts on January 23rd. 

So, for the first, you know, the first couple of days, it was uneventful. You know, she was doing well. Just got admitted, starting off with her early physical therapy assessment, etc. And on the 23rd, on day three of her stay, there is a nursing note that initially discusses, you know, she denies pain or discomfort, basically a benign assessment. 

And then later on that evening at 8:00, the nurse notes for the first time that the patient is complaining of right lower quadrant discomfort. So, she’s a 61-year-old lady who is complaining of right lower quadrant discomfort after, you know, being in a rehab for 3 days following her bilateral knee arthroplasty. The abdominal exam is documented as benign. 

Her vital signs included a temperature of 100.9, blood pressure 105/60, respirations 20, pulse was 120, and her room air sat was 95%. Okay, so it just provides a framework. You know, the real, like analysts will go, ‘100.9?! It’s not 100.5. And what does that mean? And why does she have it. And she’s 3 days post-op.’ 

You know-I mean, listen, we’re all going to do that when we are evaluating a case. But she does have a low-grade temp and her pulse is 120.  

JA: Fast. 

SM: Which, you know, which is not-I mean, as your as your temperature elevates, your pulse will elevate. 

JA: True.  

SM: So, it’s not quite the same as having a pulse of 120 if your temp is 98, but 120 is, you know, it catches your attention. It should catch your attention when in any setting. But especially-this is not a hospital setting. This was an outpatient, you know, basically outpatient. It was inpatient, but it was a rehab. 

So anyway, okay, that’s enough early, early analyzing here. That was at 8:00. At 8:45, the nursing assessment then documented that she had right lower quadrant pain, eight on a scale of 1 to 10, and the pain was with palpation. And then when she released her hand from palpation, the patient got some relief, and the pain went down to four on a scale of 1 to 10. 

And the reason that that’s significant, you know, and nurses are taught this too and often document this, is that if it hurts worse when you palpate and it feels better when you let go of it, it’s not likely consistent with, you know, a perforation or a free air. It’s not likely a surgical abdomen, a surgical abdomen will have rebound tenderness where it actually can feel better with pressure. 

And then the pain is worse when you release it. So, I’m assuming that that’s why the nurse documented it the way that she did. So, the patient felt better. You know, her pain dropped by 50% when she let go of her hand. At 9:15 that night, nursing staff spoke with the attending physician by phone and received orders for a CBC, a CMP, a urinalysis, a culture and a KUB. 

You know, kidney, urethra, bladder, basically a radiograph of the abdomen. So, the orders were given that night. The next morning, the physician and the NP, whom I was, you know, asked to evaluate care, they rounded and saw the patient the next morning. So, they rounded. Apparently, their practice was to round as a pair, and based on the deposition of the nurse practitioner, it really appears as though the NP was more of a truly an extension of the physician that the NP on these rounds did-they, you know, took notes, did the documentation that if the physician said, you know, we’re going to order this, this, and this, the NP did it. It sounds as though, by way of deposition, that the NP really did not exercise a lot of independent decision-making. This was 10 years ago. And note, there have been some differences in the role of the NP in 10 years, although not a lot. 

So, I only say that, just because later on it may be something to consider when we’re trying to decide if she is functioning within the standard of care. So, the two of them are rounding together. The history of present illness that is noted on that day documents the right lower quadrant abdominal pain with the absence of nausea, vomiting, and diarrhea. 

Review of systems notes that the patient denies constipation or change in bowel habits. Physical examination of the abdomen is negative. Vital signs have a temp of 99.1, blood pressure of 121/77, respiratory rate of 20, and a pulse of 112. So, it does appear that the pulse has come down a little bit with the temperature, but 112 is still higher than we like to see. 

It usually implies that there is some sort of reason for metabolic acceleration. You know, for, you know, increased rate. So anyways, that was the history that was recorded in the physical exam. This is inpatient, you know, it’s not like the big, long stuff necessary that we do in the primary care setting, but that’s what was recorded. 

And then the relevant assessment for that evaluation included, number one, you know, assessment one: abdominal pain rule out appendicitis. White blood cell count is 14 with a mild left shift. Number two: rule out small bowel obstruction. And then there’s a hyphen. Cannot rule out SBO or appendicitis. The third item in the assessment/diagnosis line was rule out UTI, UA, C&S pending. 

And then the last note: CAT scan of the abdomen and pelvis for further evaluation. And so, the patient was noted to have constipation and a bowel regimen was ordered, monitor for regularity. So that’s the, you know, the conclusion and the outcome of that visit. And I’ll leave it to everybody to decide if it’s, you know, if it’s evidence-based, standard of care, if it’s inclusive, this is appropriate or if it’s not, we can come back and talk about that later. 

But, you know, bottom line, when you look at it in a nutshell, she was doing fine for 3 days. On the third day she had this abdominal pain in the right lower quadrant. She had a low-grade temp. She had tachycardia. She had no rebound. Nurse called the doctor, got an order for some studies. The next morning, she still has abdominal discomfort. 

Eight on a scale of 1 to 10, she is essentially afebrile at this point. She’s still tachycardic. And the notes are, you know, ruled out appendicitis, rule out small bowel obstruction, rule out UTI, get a CT of the abdomen and pelvis. And for right now, let’s do a bowel regimen.  

JA: Okay.  

SM: So, on that day, orders were written-she was on Percocet for pain management because this was before Percocet was evil. 

You know, this was, believe it or not, not that long ago. Like, in retrospect, it’s not that long ago. So, the Percocet was discontinued and the patient was put on Nucynta, which is another-it’s an opioid analgesic. It’s a schedule two opioid analgesic. I’m not entirely sure why the switch from Percocet to Nucynta. 

I mean, the implication here is that there might be a lesser impact on GI motility.  

JA: Okay, okay.  

SM: But I don’t know. I don’t know why anybody would think that. But at the time, the Nucynta was fairly new. So maybe that was why. Anyway, so she was written that for moderate pain, a higher dose for severe pain. 

Milk of magnesia, warm prune juice. I mean, it was rehab. So, they actually have that stuff there. Dulcolax, Fleet’s enema, you know, if there’s no bowel movement. So, okay, later that same day-and there’s really no good documentation about why like-remember in a facility that’s not really an acute care hospital facility, the documentation really isn’t as detailed and robust as it would be in a hospital.  

JA: Yeah.  

SM: And so, like these are you know, these are just staffed primarily by nursing staff, very often LPNs. And then like there’s one RN supervising and the documentation just isn’t the same. And so, and I say that because I don’t know why there’s no documentation to bridge to this point. 

But later that same day the patient was transferred to the hospital. I mean, presumably for her abdominal pain or-but there’s nothing in the note about what happened in the rehab, you know, why they suddenly decided to transfer her. The notes did document that. I mean, sometimes notes are just missing, you know, or sometimes they just disappear, you know, I don’t know, they went to that. 

Great. They’re in the dryer, you know,  

JA: Yeah, with all your socks.  

SM: Yeah, with all the socks. We don’t know. But interestingly, there were vital signs documented upon transport and they were the best vital signs she had. Her vital signs were 97.8, blood pressure 132/76, respirations 20, and a pulse of 68. So.  

JA: Oh great.  

SM: I know! I don’t what else is going on, but she went to the hospital. So, that evening she was received in the emergency room for an evaluation of abdominal pain. So, it’s definitely the abdominal pain was the reason she went, the physical exam was recorded as within normal limits, excepting positive McBurney’s point.  

JA: Oh.  

SM: Right. Which suggests appendicitis. So, that’s what was documented. The emergency room evaluation included the CT of the abdomen and pelvis, the UA, the CMP, a CBC, PT and an INR. 

Like a lot of these were already ordered in the rehab, but they don’t get done with the same level of urgency. I mean, they’re probably still pending from the rehab. And now the ER is doing them right away. So, they’re doing the CT of the abdomen and pelvis, which is what you would do to rule out the appendicitis and the obstruction. 

The CT preliminary report states, “No appendicitis. Questionable thickening at the rectum and given the presence of dilated colon, recommend sigmoidoscopy to exclude obstructing lesion. Cecum is dilated. Terminal ilium normal.” So, you know again it’s like it’s not really telling you a whole lot here except no appendicitis. It does say that. And that’s a leading differential. So, that’s important. 

You know, I mean the CT is the way we find appendicitis. And if it’s not there, it’s not there, presumably.  

JA: Right.  

SM: Remember too that the day before they did have the CBC back and it was like a white cell count of 14 with a mild, mild left shift, but doesn’t really sound like appendicitis either. Usually with appendicitis you do have a significant shift. 

You have leukocytosis and neutrophilia and bandemia and that is typically sensitive. So, given that really equivocal white blood cell differential and this CT saying no appendicitis, questionable thickening of the rectum and the dilated colon, it’s all like a typical radiologist speak, kind of vague and ill-defined and not really very firm. No disrespect to radiologists. 

We love you, but it is sort of a standing joke, you know that they never want to take a position. But please don’t hate me if you work in radiology, you’d be-I mean, you know, we’re just kidding, right? Because we get teased. Everybody teases everybody. Okay. That was the preliminary report that was read. That was like a wet read given right to the emergency room physician. 

So, that was what the emergency room physician was working with. The final report that was dictated the next day reported, “Dilation of the entire large bowel, most prominent in the cecum. No obstructing mass was identified. Colonoscopy was recommended to correlate. There was no free air or fluid.” So, there was no concern about obstruction. So, you know, we can reasonably assume-anybody would reasonably assume at this point that there was no perforation, there was no appendicitis, and no overt obstruction. 

But a colonoscopy is recommended to correlate. So, the patient was offered an enema. Patient declined the enema. She was returned to the rehab facility with final diagnoses of abdominal pain and urinary tract infection. Discharge instructions going, you know, from the ER back to the rehab, were to resume her existing medications and begin nitrofurantoin aka Macrobid or Macrodantin for a UTI and to increase her water intake. 

So, this is all just like-this is the same day that she was seen by the NP and the physician in the morning, and it’s only one day after she started having abdominal pain in the first place. Remember surgery on the 20th, nothing until the 23rd when she had the pain, and then she had some orders written in on the 24th when the NP and the physician made rounds in the morning. 

We talked about their note. Later that afternoon she goes to the ER and that’s that night. This is what happened that night. She’s sent back with nitrofurantoin, water, and resumed her meds, having ruled out emergent things.  

JA: Oh my gosh. Okay. All those I feel like you said so much more than she’s already back and just that. 

All right. 

SM: I mean, there was a lot of findings, but none of them were read or interpreted as urgent or emergent, you know. Okay, dilated thing, you know, give her stool softeners, give her an enema.  

Now again, remember we were talking the last time we had a Scrubs and Subpoenas discussion here. We talked about hanging your hat on a diagnostic study.  

JA: Yeah.  

SM: And just assuming that the diagnostic study is right. So, I mean, maybe it is, maybe it isn’t and I don’t know, it will be a surprise. Oh, wait. See to the end of the case. So, she goes back to the rehab and then the next morning nursing notes begin at eight in the morning. 

And the first note says that the patient denied any pain or discomfort. An hour and a half later, she was given Nucynta for pain. For knee pain she was given Nucynta for knee pain. Remember the bilateral arthroplasty? That’s why she’s there in the first place. Later that morning, the patient reported eight on a scale of 1 to 10 abdominal pain. 

The abdomen is recorded as soft and mildly distended. She was given Tylenol and a Dulcolax suppository. Following that, the notes reported zero acute distress. And at 12:30 p.m. that day, at noon that day, the patient is documented to be resting comfortably. Zero distress, zero BM noted. I don’t know if I had zero BM might be in distress, but that’s me anyway. 

JA: Yeah, no kidding. 

SM: Okay, back to her. So, at 3:30 that afternoon, nursing notes indicate that Nucynta is given for abdominal pain. The physician was in to see the patient, not the NP, but the physician was in to see the patient and ordered a Fleet’s enema at 5 p.m. Nursing note documents a bowel movement and some relief. And then at 9 p.m. that night, the patient was resting with zero discomfort. 

So, that’s that day. So, we have the 24th with initial rounds in the ER. We have the 25th with intermittent reports of abdominal pain and knee pain. And the physician was in and the patient got an enema and she had a bowel movement and had some relief. And that night, reportedly zero pain and discomfort. The next morning, nursing pain scale reveals abdominal pain intermittently reported as eight on a scale of 1 to 10. 

JA: Wow. So that’s pretty bad.  

SM: So yeah. So, it keeps sort of coming back.  

JA: Yeah.  

SM: You know this eight, zero, eight, zero, eight. So, Nucynta must be pretty good. So that’s actually the only note that is relevant on that day because, again, it’s rehab. It’s not you know, like the nurses in the room every hour or 2 hours or every 4 hours or whatever. 

So, the next day, intermittent abdominal pain eight on a scale of 1 to 10. Otherwise, it’s responding to medication. That’s it. The next day. The next day. So, we went from 20th to 23r she reported pain, 24th had her first visit with the physician and then the ER that night. On the 25th the physician was there, ordered the enema, got some relief. 

And on the 26th, all we know is that she was reporting intermittently abdominal pain at eight on a scale of 1 to 10. On the 27th, the patient and the NP together see the physician-God bless it. There are three people here. I have to put the right two together. The physician and the NP see the patient together on the morning of the 27th. The patient continues to complain of abdominal pain. She does report having had a bowel movement the day before, but we knew that. The review of systems documents diffuse pain, appetite change, bloating, change in bowel habits, and constipation. Physical examination is significant for “mildly distended with diffuse tenderness to palpation” and then bowel sounds hyperactive. 

That’s what we’ve got. So, now like this is a building, you know, program here. You know that the NP and the physician presumably are amassing information, the results of their physical exams, the results of the ER visit, the CT report, the labs, you know, the UTI. and all of that kind of stuff. And so, now today their relevant assessment and plans are: one abdominal pain – CT abdomen, pelvis, reportedly negative. UTI noted. 

And then colon may be due to narcotics constipation. So, they’re thinking maybe her abdominal pain is due to opioids. Because remember, in the world of opioids, opioids do have this really interesting impact on the bowel. They bind to mu2 receptors in the gut. And they tend to exaggerate non-propulsive contraction and inhibit propulsive contraction. So, they inhibit the movement of bowel contents toward the rectum. 

But they increase non-propulsive control, like baseline peristalsis is increased in the setting of an opioid. So yes, I mean it is. You can assume that opioids might worsen abdominal pain while simultaneously contributing to constipation.  

JA: Right?  

SM: I don’t know that anybody thought it through that heavily. But I mean, you know, it’s not an unreasonable impression here. So, they’re thinking, ‘Well, we don’t know why she’s having abdominal pain. 

She has a UTI. Maybe it’s because of her opioids.’ So, D/C the Nucynta and start tramadol. So, they’re trying to you know come down here on the on the opioid, start tramadol. Give her some simethicone, ambulate as possible. So, they’re clearly trying to promote bowel motility here thinking that this is due to constipation. Continue the nitrofurantoin and continue the bowel regimen. 

Increase the Colace to three times a day. Add MiraLAX. So, between the MiraLAX, the Colace, the simethicone, the fluids, and the ambulation-oof, you know, clearly the goal here is to get her to go.  

JA: Get her to go.  
 
SM: So, that’s the 27th. So, that’s after rounding. And those are-that’s the plan. 

Nursing flow sheets on that day report that she had complained of pain in the abdomen and she was given 100 mg of Nucynta, which was the order for severe pain. So, we didn’t have a pain scale that time. But we can reasonably infer that it’s severe since she was given 100 mg of Nucynta. Now, by the way, that was given early AM before these orders were written, you know, like this was like four in the morning. 

And then then the physician and NP rounded after that. So, she had pain early on. She got new center. Then after all of that, no pain was recorded for the remaining two shifts. Although the pain scale records more eight of ten pain like the next early morning hours. So, it like it seems to come and go. 

Shockingly, with pain management. And you know, and the thing the pain is what feeling exactly it’s masking the pain. Now, that was on the 27th, right? Yep. I have to go back here and make sure I’m giving you the right flow of events. That was on the 27th. So, just to recap, I know I keep doing it, but I don’t want the listener to lose, you know, to lose the trajectory here. 

I talk so much. It’s very easy to think we’re talking about like a 6-month duration. We’re not-we’re talking about a matter of days. Operation on the 20th, goes to rehab. On the 23rd she first has eight on ten-scale pain. It’s the next morning, the physician and the NP round. She got the pain. It’s not-it doesn’t seem to be a surgical abdomen. 

There’s no rebound. They order the KUB, the labs, etc. They order pain management and they go on their way. Later in the day, apparently the pain gets worse. We don’t know what happened, which all we have documented are normal vital signs. But the patient goes to the ER to be evaluated for abdominal pain. She has the CT scan, which is really just rules out appendicitis, rules out a perforation, does not suggest a lesion, but they do recommend a colonoscopy for that. 

She’s diagnosed with a UTI and she’s, like, sent back to the rehab. The next day, there’s really nothing going on except she reports intermittent pain. And then yesterday, the physician and the NP round again. And you know, we’ve talked about their impression here. They’re thinking based on all the information they have, that this is likely just constipation. 

Let’s get her up and get her moving. And now we have the 28th. On the 28th nursing notes document that the patient was received by nursing in the morning in severe abdominal pain. The patient asked to speak to a supervisor. So, the nursing supervisor went to talk to the patient. And the nursing supervisor then called the nurse practitioner and told her of what was going on. 

I again-there’s big documentation here. We know that the nursing supervisor called the NP. They spoke by telephone, and the NP gave the verbal order to send her to the hospital for severe abdominal pain. And then when she got to the hospital, her severe abdominal pain was apparently due to a bowel perforation. And she did not survive a complicated hospitalization. 

You know, she perfed, she was septic. She, you know, she was septic. And so, they would, you know, they did all the things they do: irrigate the belly, treat her for sepsis. It didn’t, you know, and she just never recovered.  

JA: Oh my gosh.  

SM: So, this-so that’s this story.  

JA: Wow. This seems so this seems so long. Like, so long. 

So many steps, so many orders, so many diagnostics to have like this outcome. How in the world?! 

SM: And that’s what like an it’s like it’s so interesting to hear you say these things because these are the things that you have to remember the jury is going to think. 

JA: Right.  

SM: Like, we really have to have to try to convey how this all happens in a really short period of time and that that like, what’s the thought process? 

So, my place in the world was to evaluate the care of the NP and see if there was a deviation of standard of care. So, for all this long story going on here, the NP’s role in things is that she’s rounding with the physician, with this patient who developed abdominal pain last night. And they examine the patient and they find the abdominal pain. 

But there’s no other-no nausea, vomiting, diarrhea like on that first, on the morning of the 24th. There were no real other symptoms there. Physical examination of the abdomen was negative. When they examined her, the temp was 99.1. The pulse was 112. Other vital signs were normal. There was a mild white-so the white cell count was 14. 

JA: Yeah. 

SM: Like, that’s barely an elevation. Mild left shift. They acknowledge, well, we have to consider a small bowel obstruction. We have to consider appendicitis. We’re going to rule out a UTI, CT of the abdomen and pelvis for further evaluation. So, that’s all ordered. But it’s rehab so it’s not going to get done right now. You know it’s going to get done when it gets done. 

None of it was ordered stat. So, just something to file. Just something to file away. And I’m not saying yay or nay on this one, but something to think about here is if you’re ruling out an obstruction or you’re ruling out appendicitis, like if you identify them as differentials that you need to rule out, how long do you wait? 

JA: I mean, those things seem urgent, like they seem like a now thing.  

SM: Like so, my the primary care NPs that are listening, if you’re seeing this patient in the office and you think that you need to rule out appendicitis or a small bowel obstruction, what will you do? Will you order a CT scan? And then the patient can go home and call the radiology center, and then they’ll call back, and then they’ll schedule it. 

Or do you send them to the ER? Just something to think about here again. I’m not-now again, there’s rule outs, and then there’s rule outs. The abdominal exam is negative. There’s no rebound tenderness.  

JA: Right.  

SM: You know, rule out doesn’t necessarily mean rule-like these are the things these are the things that the two opposing sides are going to debate. 

The plane is going to say, ‘Well, if you thought it was a small bowel obstruction or appendicitis, why didn’t she go to the ER?’ And then the other side has to substantiate why they considered those but didn’t think they were emergent. And then the other side will say, ‘Well, where did you write that down? Well, if you don’t think they’re most likely, what is most likely?’ And then everybody will, you know-may the best debater win. 

But it’s just something to think about there, like, you know, in terms of documentation. If we document that we think those are likely, either they need to go to the ER or document why you didn’t, you know.  

JA: But like, okay, so wait. Did I miss something? Because I thought that when we were going through the story, like there was dilation? How did this get missed? 

SM: Oh, that’s after-that was after this. Why wasn’t that apparent on physical exam?  

JA: Yeah. Is that-I’m like,  

SM: All of those findings came later. Like we didn’t know. We didn’t have the CT findings yet.  

JA: Okay, oh. 

SM: This is just the first morning. Remember the pain was first reported on the 23rd. This is the NP and the physician rounding on the morning of the 24th. 

They don’t know any of that yet. All they have in front of them is the physical exam, the patient’s report of symptoms. And apparently they got the CBC back. Like, remember the doc had given an order for some labs on the phone that first day. So, they knew that the white count was 14. But other than that, all they knew was that the patient, right now, actually in the morning, the patient had abdominal pain, no nausea, no vomiting, no diarrhea, no reported change in bowel habits. 

So, that’s what they’re working with. I am neither-I’m really-I’m neither defending nor supporting at this point. But I just want to keep it in context really for like the jury and the big picture and everybody listening, this is just, you know, you go to work in the morning, you and your attending, you’re going to the room. 

Oh, last night the patient complained of abdominal pain. We ordered some stuff and then we’re seeing her this morning. So, this morning she still has abdominal pain, but there’s no other-you know, the rest of review of systems is negative. Her temp 99.1, which never excites anybody. And, she’s got away kind of 14, you know. So, they’re listing all these things in their rule out, but there’s nothing urgently ordered. 

And I’m, you know, Monday morning quarterbacking, is there is a bit of a dichotomy here.  

JA: Yeah.  

SM: And if you know, if you prioritize it, if you there are rule out then she probably should go to the ER unless you document that they are low on your index of suspicion or whatever. It’s just it’s a discordant impression. 

And then remember she got orders for her pain management and then she was going to get milk of magnesia, prune juice, and all that kind of stuff that you do. And that was it. And then we don’t know what transpired that day that landed her in the ER that night. 

JA: Because there’s missing notes. There’s nothing that’s clear except for her new vital signs that seemed great, which were perfect.  

SM: That’s right. So, she went to the ER. We don’t-I mean, we don’t know who got called. And this does happen. You know, remember most of these things we’re looking at documentation like a few years after the fact and sometimes stuff either, it never got recorded or even at the time of the event it was misfiled or something like that. 

So, sometimes things just aren’t there. Yeah, it does happen. But then she goes to the ER and then she has a CT scan. So, now here’s something else to consider. She’s been having acute onset, apparently, started on the 23rd. Acute onset abdominal pain, at least eight on a scale of 1 to 10. And then she got pain meds and then it came back and it got back. 

It’s bad enough to go to the ER. So, she’s in the ER with this, you know, understandably, the abdominal pain has to be severe enough that it warranted getting her to an ER. The CAT scan report says no appendicitis. So, anybody’s thinking, ‘Well, it’s not that.’ There’s no perforation. 

JA: I did think that. I’ll be honest. I did think that. 

SM: Yeah, yeah. And I would too.  

I think anybody would, she must have had bacteria or white cells in her urine or something. So, she gets this diagnosis of a UTI and goes back. Now, of course, again, there are concerns here about the interpretation of the situation. And it was a big bone of contention. 

I mean, she-you know, she perfed a couple days later. So, how do you see them?  

JA: Right.  

SM: You know, you would think that, but not necessarily like if there is an ileus or some slow down of contents evolving. This could have been the very early stages and, you know, it just wouldn’t have been apparent yet. 

Like this was on the night of the 24th. She perfed on-well, she went to the hospital on the 28th. We don’t know if she perfed. We don’t know exactly when she perfed, but it could have been a few days later or so. Again, it’s just the ambiguities here. So, then she goes back to the hospital. 

So, another of the criticisms here is that the CAT scan-the ER evaluation, was inconsistent with the disposition. In other words, one of the criticisms of the NP was, ‘Why didn’t the NP realize that a UTI doesn’t explain this eight on a ten-scale abdominal pain that won’t go away?’ You know, so-and, you know, I again, I leave it to the listener to decide if-I keep saying this, but just because a diagnostic study doesn’t say something doesn’t mean it’s not there. 

It just means it wasn’t interpreted by the radiologist on that study. So, we have to consider if the clinical findings don’t make sense with the diagnostic test results, what do we do with that?  

JA: Right.  

SM: The real great-you know, she’s having this persistent, severe abdominal pain. And it only seems to get better when she’s on pain meds. And then it comes back when she’s not. 

I mean I think we can all interpret that. So, she’s having persistent, severe abdominal pain for a period of days. And one of the criticisms was relying too heavily on the report of the emergency room, you know, the CT report and the labs, like, do we really interpret 3 days of severe abdominal pain requiring 100 mg of Nucynta? 

Does it make sense? And if it doesn’t make sense, then we should investigate further, keeping safety on the brain. You know, if it doesn’t make sense and this one says there’s nothing wrong and this is really bad. And that’s really it. I mean, the NP only had three points of interaction: rounding with the physician on the morning of the 24th, rounding with the physician on the morning of the 27th, and then the phone call with the nursing supervisor on the morning of the 28th. 

And so, the NP in her deposition, you know, basically her deposition is that she was functioning as a true assistant or extender and that the physician made the calls and that it wasn’t-really wasn’t her job description to be doing things independently, that she would not independently order radiographic studies or ordered different treatment modalities. 

And it may be that that was her job description. So, advice to anybody listening, if that’s your job description, be sure about it. Because another thing that happens with malpractice is everybody starts pointing the finger at everybody else. I’ve actually been retained to review cases that like they want to have it on the back, they call it a pocket, a pocket witness that if they need you to testify that the other person did something right or wrong because another defendant is pointing fingers. 

I didn’t explain that very well. But believe me, when it gets contentious, not many people protect each other. It’s really like everybody-  

JA: Everybody for themselves and then I can imagine that gets pretty chaotic.  

SM: Yep. And it’s-I mean, it is often at the direction of the attorneys because their job is to represent their client. And you often have different firms representing the NP and the nurse because they have their own malpractice insurance and your malpractice insurance that provides- 

JA: Right.  

SM: So, they’re often-I know they try to work together when they can, but when push comes to shove, you know, it goes like that. And so, if your job description really is that you are not independent decision-making, just be sure that that is what your job description says. Because if you give a deposition that says, ‘Well, it’s not my role, I’m not, you know, I don’t make those decisions. I have to collaborate.’  

But your job description says things like “functions independently” you know, within the confines of certain protocols. Well, that’s something different. I’m saying.  

JA: Wow. Wow.  

SM: Well, even if she was independent decision-making, then the only thing I think like on the first day, the first visit on the 24th, I don’t know that anybody would do anything differently, except maybe if you really think it’s a small bowel obstruction or you think it’s appendicitis, it’s best to go to the ER and be imaged immediately. 

So, there’s that.  

JA: Yeah.  

SM: And it was her testimony that it was a physician’s call. How they handle that, it was the physician’s call. And then on the third, the second time that they rounded 3 days later, the criticism is just accepting the CT report and the ER disposition, as you know, as the disposition and not questioning it or not saying, ‘This doesn’t make sense.’ 

JA: Right.  

SM: This kind of thing doesn’t explain that. And I really think, I really think it comes down, often, to just relying too heavily on this imaging.  

JA: Yeah.  

SM: I-yeah I do, I think people rely too heavily.  

JA: I agree with you on that. This was-this is really interesting because you know the one thing too that sticks out, I agree, the one-the imaging. 

And you know, I’m like, I’m coming back to nursing school now with like pain is the vital sign. Pain is the vital sign. So, like the bouncing back to no pain obviously with the pain meds. So, they work great. Wonderful. But then really bad like 8 to 10 is severe pain. That means like pain is-I mean now, right? 

Of course you’re right. This is totally Monday morning quarterback. But like the pain was always there then is what you’re saying. It was always really bad pain and it was just muted with medication. So, it’s such a huge disconnect. Like from everything’s okay to no, it’s not, you know what I mean? 

SM: I mean I’ve never seen pain of a UTI last for that many days with that level of severity.  

JA: Right.  

SM: But that doesn’t mean it doesn’t happen either. I’m like, this is what I mean. It’s like, may the best debater win, right?  

JA: Oh my gosh.  

SM: But my little place in the world was standard of care. Did the NP do what an NP of the same training and education would do in the same or similar circumstances? 

JA: Well, you know that you say that, Dr. Miller. Then it makes me think about if the NP has a job description that says one thing like what your role is, but you are in NP so like your state practice act, for instance, right. Like what you can legally actually do as an NP is something different. You could be independent and you could do all of these things, but maybe you don’t at that place that you work at, does that like supersede your actual, like, license capacity? 

SM: Oh yeah. A facility can’t employ a policy or enact a policy that expands the law, but they can certainly make it more restrictive, like the law might say you can function independently, and then the facility can say, ‘Well, we know that’s the law, but if this is our protocol, this is our policy, this is how we do things. 

And if you’re going to work here, you’re going to work under a collaborating physician.’ Yeah, they can definitely do that. Now, what they can’t say is if the law requires a collaborating physician, a facility can’t say, ‘Well, you can work independently.’  

JA: I see. 

SM: Can’t go that way. But yeah, even now, like even now in 2024, there are still facilities that that require some level of supervision or collaboration or protocol or something in states that are entirely independent. 

JA: Wow, wow. So that’s important, I think, to know and keep listening. That’s definitely something important to know. Geez. Wow. This was a-I mean I’m sorry to hear about the outcome. This was hard too, though. I don’t know if I know what side you were called for.  

SM: You want me to tell you or you want to leave everybody hanging? I was retained by the defense.  

JA: Defense?  

SM: I was retained by the defense.  

JA: Okay, okay. Interesting. That is interesting. Wow. So big takeaways on this, Dr. Miller, for sure I would say just as you were you know highlighting really well there was like some disconnects and we can definitely see now. And like if there are those types of disconnects between a diagnostic and physical assessment or even sometimes I feel like when we talk about these stories, just those like gut feelings, that something is still off. 

Like, you really should pay attention to that. You agree with that?   

SM: On the side of safety, absolutely. Yeah, yeah. If something doesn’t seem right or something doesn’t match, almost always it’s because there’s something we don’t know. There’s some piece missing and we got to, you know, got to look for it and got to find it. Yep. That and know your job description. 

Know your job description. And if you’re working with a physician because many places will put, you know, practice pairs together and stuff. If you’re working with a physician who says, ‘Well, I know that’s what the job description is, but that’s not the way I do things.’ I’d get some documentation of that too.  

JA: Oh yeah, that’s a good point. 

SM: So, or even like even an email to credentialing. Like if, you know, if you’re working for a facility like this, even an email to credentialing. Oh, you know, thank you so much for the opportunity. Love to be a part of your facility. I look forward to this exciting role. I just want to confirm that despite the fact that your job description does allow me certain independent practice, you know, my collaborating position, doctor X, has made it clear that you know, that his approach to practice is that in working with him, he will be the decision-maker, like just in an email and write it off. 

And then please advise if this is incorrect, please let me know if I am misinterpreting, because that way if they blow you off and don’t answer it, which does happen, you know you sent it, they can’t produce a response.  

JA: Yeah, that’s a good point. That’s a really good point. Wow. I’m so sorry to hear the outcome about this. 

This was a really interesting case because it’s one of those that we’ve talked about before that, you know, I bring up sometimes like, why don’t we just do all the things right, do all the things, have all the diagnostics. And even so, when you’ve got this kind of list of to do’s and the disconnect is still there and not can and when we can see where these mistakes can happen and can kind of get crummy outcomes. 

That’s sad to hear.  

SM: And I think most people would say, ‘Well, the CT scan was the big yeah thing to do in this circumstance.’ And it didn’t raise any real concerns. And yet that’s where we just come back to, if there’s an inconsistency, keep going.  

JA: Yeah. Wow. Dr. Miller, thank you so much for sharing this story. 

There’s a lot to learn here and a lot to unpack. I appreciate your time.  

SM: My pleasure.  

JA: We hope you enjoyed listening to this and that you learned some new things, maybe that you’re able to apply to your practice to help you. You know, maybe practice was a little bit better, feel like a little bit more confident in what you’re doing and advocate really strongly for your patients. 

So, we enjoy doing these for you. We’re happy that you joined us. We hope that you check out some more on FHEA.com. And in the meantime, 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 resources, visit FHEA.com. Join us again next time as we dissect more medical malpractice cases.