QTastrophe

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: Hello and welcome to another episode of Scrubs and Subpoenas: Tales from the Witness Stand. I’m your host, Jannah Amiel. And joining me again is Dr. Sally Miller. Dr. Miller, thank you for joining me again for another story.  

Sally Miller: Always a pleasure.  

JA: So, we were so happy to have you. Dr. Miller serves not only as faculty here with FHEA, but also as an expert witness, right. 

Like you are the only expert witness for medical malpractice cases, specifically NP cases, right.  

So, this is really interesting. Dr. Miller, we get on these-we talk about these stories-these real cases that you’ve worked on really from the perspective of learning and understanding. I think the big thing that we want everybody to always understand, listening to these podcasts, is that mistakes can happen to any single one of us. 

And in fact, mistakes will probably happen to every single one of us, especially those of us that work in healthcare. And that kind of is the nature of the beast, right? And this is an opportunity for us to listen to, you know, real cases, real things that have happened when things don’t go quite as perfect. And how do we learn from that? 

How do we take, you know, these cases, these opportunities to practice better, right. And to maybe practice, you know, at a level that we feel really confident that we’re making great decisions, and that we’re not falling into some of the common pitfalls that, let’s face it, just happen. And I think about myself as an RN and the things that you get really used to doing that maybe you’re like, ‘I’m a little too relaxed in that way.’ 

And it just helps to reset. You know, personally, myself, it really does help me to kind of reset my mind frame and think about these things a little bit differently. So, super excited to hear this story, Dr. Miller. This is always a really good opportunity to learn. I always learn new things and to think a little bit differently. 

So, I’m going to be quiet now and I’m ready to listen to what you got for it.  

SM: I-you know, I was actually I was going to add something that you just said, but I’m going to wait. I don’t know-wait until after the case and then, you know, see if it-I know it’ll be like a cliffhanger, you know. 

I do have a different kind of point to make about this one. But maybe you’ll get there before I even have to highlight it. So, this is a case of a 24-year-old female. So, she’s younger than both of us. We’ve talked today I know in different episodes about cases of somebody your age and somebody my age. 

This one, I guess, is probably young enough to be my granddaughter if we really stretch out, so I can’t identify there. But she’s a 24-year-old female, and so she presented herself for admission to an inpatient detoxification program. So, this was a 24-year-old female who had an opioid use disorder. She was addicted to heroin. And again, these cases, you know, by the time I can present them to you, they’ve been through the system. 

They have either been settled or gone to court. And so, it’s always several years out before we can even talk about them, because from the time something happens, there’s 2 years of the statute of limitations to even file the complaint. And then the attorneys get involved, and then they amass the witnesses and the documentation, all of that. 

And that can take several years. And then they get court dates which invariably are put off. In fact, I have three court dates scheduled for the end of this year that were originally scheduled for the middle of 2023, and they just get postponed because somebody can’t make it. And so, I mean, I just say this to let you know that the cases I generally can talk with you about often are 10 years old, because these are the ones that are actually settled or, you know, they’ve settled or been adjudicated or whatever. 

So, this case is just around 10 years old. And so, this 24-year-old patient presented herself with-it was heroin. What made me think of all of that was fentanyl wasn’t even a big thing yet. Like, oh, my. Years ago, fentanyl was what we used to manage your cancer pain when you had hit a dose ceiling with morphine, you know, because it was so much more potent. 

So anyway, she had a heroin addiction, and she had, 4 to 6 bag a day heroin addiction, which is, you know, sort of middle of road. And, she’d been using it for a couple of years. Before that she had been on Percocet for some extended periods. So, she is a well-established patient with heroin addiction. 

She also admitted to smoking cigarettes, which is probably the least of her problems. Ten-cigarette a day habit, marijuana, alprazolam aka Xanax. I always laugh when people call it alprazolam instead of Xanax, thinking it doesn’t sound as bad, but yeah, it’s like we don’t all know what alprazolam is.  

JA: It’s got a bad connotation, I think. 

SM: And I think I know some how it sounds. 

In fact, I always-when someone calls it alprazolam, I have to stop myself from thinking, ‘Oh, I’m being manipulated here.’ And nitrous oxide, just to round out, you know, the abuse here.  

JA: Nitrous oxide? Is that what you said?  
 
SM: yeah, yeah.  

JA: Wow. Okay 

SM: From what I understand, it can be fun. I don’t know what else to, you know, be very dangerous, but that’s beside the point. 

So anyway, she had, you know, she had a history of using all of these, but she is presenting herself for inpatient detoxification and to begin treatment of her disorder. The primary drug of abuse that was her concern at this point was the heroin. So she went, you know, go to the emergency room at this program. 

The program is articulated with the hospital, you know, physically located in the hospital, a different managerial structure and stuff. But it’s in the hospital building and you have to go through the ER. So that’s what she did. And she was in withdrawal when she was there. The admission notes that she was having classic withdrawal symptoms, like, you know, the hot and cold flashes, a lot of cramping, body aches. 

There’s agitation, for sure, but a lot of GI symptoms with heroin withdrawal, because when you withdraw from heroin, you’re withdrawing this cholinergic system. So basically, the cholinergic system goes into high over gear, which is why the GI thing accelerates nausea, vomiting, diarrhea, even sometimes urinary incontinence, all that kind of stuff. There is also of course an agitation response. 

And she was having all of it. So anyway, she’s there. The nursing documentation notes that this is a good time to get her into care and now that she’s begun withdrawal. So, she’s admitted and she was admitted with, you know, standard orders, the standard protocol for opioid withdrawal protocol. She also was admitted with an order to continue her outpatient medications. 

She had psychiatric diagnoses, and she was on some psychiatric medications as an outpatient, which is not at all unusual. You know, I think the vast majority of people with the use disorder, it started because they were self-medicating symptoms or because they were prescribed something. And then, an underlying personality disorder or something just facilitated a dependency. So anyways, I know without going off on too much of a tangent, there’s almost always an underlying psychiatric disorder with a use disorder, whether it’s diagnosed or not. 

In her case, it was diagnosed. She was on some meds. So, let’s see…what are some of the stats here. She was admitted and the night she was admitted, she started to evidence withdrawal. The next day-you know, she was admitted on methadone. At the time, that was primarily the thing that was used in the inpatient setting. 

She was admitted on, like, 10 milligrams of methadone and then escalating. And then there was just a protocol, you know, the skeletal muscle relaxants, like Robaxin, Anaspaz for the GI motility and, clonidine just to calm down the sympathetic nervous system from the brain down. Like there was a whole protocol there, and she was put on it, and the protocol included Compazine for vomiting. 

And so, the next morning she was throwing up and she got Compazine, and it didn’t help. Later that morning, the day after her admission, when the nurse came in to evaluate the patient, she said she had been vomiting all morning and the Compazine didn’t work. So, the nurse called the APN on-call and the APN on-call, gave a verbal order for Zofran (ondansetron) 4 milligrams orally disintegrating tablet. Right. 

So, you might guess from the way I highlighted that, that that becomes a bone of contention later on. So, she was ordered the Zofran and the Zofran was administered. Like an hour later, the APN came to the bedside. She evaluated the patient. The patient, you know, still was having some nausea. I guess her vomiting had calmed down a bit, but she was still symptomatic. 

She was having very classic withdrawal symptoms, things like, you know, the agitation, the GI motility, and some diarrhea. Typical stuff. The APN documented a physical examination. It was consistent with a patient who was in a controlled opioid withdrawal. At this point, she did have clonidine on board. She had methadone on board. Now she had the Zofran on board. 

So, her symptoms were starting to calm down. But there’s still-I mean it’s certainly not a perfect physical exam. So, it was documented appropriate with what you would expect.  

JA: Right.  

SM: According to the nursing notes-and again, this isn’t a hospital per se. Like, yes, it’s in the hospital building, but it’s not a hospital unit. It’s a detoxification unit. 

And their protocols are a little bit different. Their supervision is not quite as robust. So, the patient will have periods of the day, but excuse me, where she’s not being directly supervised. But during the day, apparently, it was uneventful. In the afternoon, the nurse documented a complaint of headache and body aches, again, both very consistent with opioid withdrawal. 

The evening nursing assessment recorded a complaint of nausea, also consistent with opioid withdrawal. The last dose of Zofran was given at 5:00 that night. So again, this is like not even 24 hours since her admission.  

JA: Right.  

SM: She came in in the evening. She had a little withdrawal and she got started on her protocol. 

In the morning the Compazine didn’t work. She got Zofran. The day was essentially uneventful. She had a headache. She had some body aches. That night, she was still nauseous. She got another dose of Zofran at 5:00 in the evening. The evening hours of that day and the early morning hours are documented as uneventful with no complaints recorded.  

So, we have the evening, the full day, two doses of Zofran. The next morning-let’s see at 7:39 a.m. nursing documents had an ADL assessment that was, you know, within normal limits, as expected. Nothing significant. About an hour later, at 8:35 in the morning, the day shift nurse entered the room to perform her assessment and found the patient unresponsive with agonal respirations. 

JA: Oh my God. 

SM: A code was called. Code protocol was initiated. The patient was resuscitated but experienced anoxic encephalopathy and she was stabilized, meaning she didn’t die, but she was, you know, permanently-I mean, she was, you know, permanently unresponsive. She was anoxic. She had anoxic encephalopathy. She was stabilized. She was 24, you know, strong heart. She was resuscitated. 

And she was ultimately-she went to a, you know, she stabilized and then, you know, in the hospital for a while. And then she went to a rehab facility, and then she was transferred to home. But she was still transferred to home needing full care because of her encephalopathy. And that was the last I heard at the time of this case. 

So, it’s a-you know, it’s a pretty short discussion of events here. So, what do you think the bone of contention was? You know, I told you the APRN’s role was she was called early in the morning to respond to the nausea and vomiting. The patient did not respond to the Compazine. 

So, the APN gave a verbal order for Zofran 4 milligrams. Then she came in about an hour later and did her assessment. That was unremarkable and that was it. That was the APN’s interaction here. And so, of course, the APN was the subject of the complaint that I was involved in. So, what do you think could possibly have been the assertion of deviation? 

JA: Well, the one thing I’m stuck on is Zofran. One, because you highlighted it. Two, because I feel like I remember some just, like, in, in my own, like, nursing brain, something about Zofran. That’s like one of those things that’s like the weird things that happened. But wait a minute, wait a minute. 

So, the unremarkable bit too, if this patient was-I’m curious about there’s nothing remarkable to document if this patient was actively going through withdrawals and was very, very, very sick. I mean, sick to the point that she was vomiting, that med wasn’t working. So now Zofran had to be ordered like, something’s missing here.  

SM: Well, she-I mean when you’re in withdrawal you are uncomfortable for sure. And the documentation was like it was consistent with the withdrawal. It wasn’t like she had a totally normal exam.  

JA: Okay. So not like not just inconsistent. She’s behaving as expected. 

SM: Yeah. And also at this point she had she had received clonidine, methadone, Robaxin. And like, you know, the whole protocol of withdrawal meds. 

JA: Yeah.  

SM: So, she was medicated at this point too. So, she wasn’t perfect and I did-I thought I mentioned that and maybe I didn’t highlight it clearly enough, but during the APN’s visit, the exam was consistent. It wasn’t a normal exam, but it was consistent with her opioid withdrawal. 

JA: So, the encephalopathy is throwing me Doctor Miller. Like, first I’m like honestly was it like just too much meds and she like bottomed out respiratory wise or-but the encephalopathy is throwing me.  

SM: So, the encephalopathy was documented as anoxic encephalopathy. So she went for whatever reason, she went too long without air. 

JA: Yeah. Respiratory depression. Is that something that was happening? 

SM: Well, that’s the $30 million question. I mean, on that end, again, there’s like lots of different pieces to this. Lots of people are being sued for did they not do stuff right. But, you know, and then of course, at 7:39 in the morning, the patient was documented as being, you know, responsive normal ADL stuff like that. 

And then at 8:35, which is what, 56 minutes later she was unresponsive. So, you know what happened in that interim? Did she aspirate? But, you know, did she aspirate and then choke and like, or did she vomit too? So, nobody knows how she got to this place. But 56 minutes later she was unresponsive and her respirations were agonal, so who knows how long her respirations were not productive. 

But to bring the NP into this suit, the only thing the NP did was prescribe Zofran and then document a visit that was consistent with her withdrawal. And so, what the assertion was dragging the APRN into this. I mean, I’m not saying somebody somewhere, something might not have gone wrong, but the only thing that this APRN did was prescribe Zofran. 

JA: Is that so wrong, like bad? 

SM: I love Zofran. So, the assertion was reversed and you know it, the listener can decide how valid this is. Like number one, nobody seems to know why she became unresponsive.  

JA: Yeah.  

SM: Did she aspirate? Did she cardiac arrest? Did she go into a dysrhythmia?  

JA: Yeah.  

SM: Nobody knows because you’re not even monitored. 

This wasn’t a hospital bed. This wasn’t an ICU. So, we don’t know. We don’t know. But the assertion was by the plaintiff that she was on a medicine that prolonged the QT interval and that she probably had, like, a run of Vtach and died, and that it was because the APN put her on Zofran that could prolong the QT interval in combination with methadone. 

JA: That’s the thing I was wondering. 

SM: So, the assertion was that the NP should have done an EKG before prescribing the Zofran because of the methadone.  

JA: Oh, I don’t know about that.  
 
SM: Like well, I mean, I-you know, I had I knew a little bit going into this, but definitely before the case I had to do some research. 

But so, methadone is notorious for prolonging the QT interval in high doses. There is like a lot of debate actually in the literature. Like that’s one of the things about methadone, one of the safety issues is that in high doses it can prolong the QT interval. That’s really not debatable, but the high doses is the key phrase. 

So, in the world of methadone, the literature is clear that in doses over 100 mg a day, there is the potential for a prolonged QT interval. So, anybody who’s on 100 mg of methadone a day, that’s definitely a consideration. So, when we look at methadone dosing-excuse me-generally the evidence-based literature will tell you to try to stay under 20 mg a day of methadone. 

In real life, anybody who manages opioid use withdrawal will sort of laugh at that. Haha. Because that’s like not much better than waving methadone over somebody’s head. While we very often use higher doses than that, when we look at the dose conversion, like the morphine milligram equivalents, anything under 40 mg is considered a low dose of methadone, like I shouldn’t say, acceptable, you know, no particular safety concerns. 

This patient had just been titrated. She’s only there for a day. She got there on the night of, you know, we’ll say day one. All day, day two she got her Zofran. In the morning of day three this happened. So, she was on a methadone titration protocol. And it started off at like 10 milligrams twice a day. 

So, based on the way the order is written and the sign outs are documented, there’s some bone of contention about how much she actually got. But the absolute most was 50 mg for the duration of that. So, 50 mg. So, of course then one side is going, ‘Well, it’s over 40. 

So, there’s an increased risk of a prolonged QT interval. So, the nurse there specifically should have done an EKG.’ And then of course the other side says, ‘Wait a minute. It’s nowhere near 100 mg.’ The literature is really ambiguous on this. Like if there’s that whole debate of not doing a bunch of unnecessary tests on people. She was 24 years old. 

She had no cardiac history that was documented, you know, that nobody knew of. She was 24 and she was being titrated up on methadone. At the time the NP gave the order it may not even have been that high. So, should the NP have ordered the ECG? That was the whole-like that was the whole thing here. Should the NP have ordered an EKG before giving that order for Zofran? 

So, the plaintiff’s report had three experts to testify against the nurse practitioner. So, I guess I’m giving it away here. I was not one of them. I was retained by the defense.  

JA: Yeah.  

SM: The plaintiff had three experts, two physicians and one nurse practitioner. One of the physicians was a cardiologist with a particular expertise in QT-interval prolongation. 

Like, that was his life’s study.  

JA: That’s so specific.  

SM: Yeah. He was recruited because his expertise was QT-interval prolongation. And in support of his-I mean, of course. Look, somebody who spends their whole life studying the interval.  

JA: Yeah.  

SM: They think like, that’s just like everybody in psychiatry thinks you have a mental health disorder, you know, and everybody in orthopedics thinks you have osteoarthritis. 

I mean, we tend to see things to our own world. So yeah, a cardiologist with a particular subspecialty in QT-interval prolongation is really not equipped to speak on the standard of care of a nurse practitioner. You know, no. And I mean, that was one of the, one of my biggest bones of contention. He’s seeing it through his own lens. 

He also, to support his position, he cited a single reference that supported doing a 12-lead for everyone. For everyone that was on Zofran.  

JA: One reference? 

SM: Of course. Yeah. And there are tons of others that are really much more nebulous. It really is under 100 mg a day, like the combo of methadone and Zofran. 

If the patient is on more than 100 mg a day of methadone, yes, then there would be enough concern about QT prolongation that it would have been. At least it would have been harder to defend, you know. But this-like this person just really should not have been opining on the care of this nurse practitioner. And that was that was part of my defense of her was that her care is not being evaluated by somebody in the same or similar-you know, clinical expertise and experience.  

And then the other physician was a cardiologist, perhaps not a QT-interval specialist, but the other physician was a cardiologist and the nurse practitioner was a nurse practitioner who had only ever practiced in cardiology. And really, her opinion really echoed that of the cardiologist. And cardiology, of course, their bias is that everyone should have a 12-lead ECG. 

Well, listen, if you ask gastroenterologist, they would have said she should have had an endoscopy, right.  

JA: Right.  

SM: You know, I mean, there’s just every, you know, GI scopes everybody. Cardiology they EKG and echo everybody because it’s what they do. And I really don’t mean that tongue in cheek. I mean, that’s the way they see the world, because by the time patients come to them, there is usually a reason to do that. 

They’re not in that same place as a generalist or a primary care provider who is seeing a 24-year-old woman with no cardiac history. And as it turns out, she had an ECG in an emergency room record from like a year prior, and there was no QT prolongation. You know, like the whole assertion here was, what if she already had a prolonged QT interval and then methadone made it worse, and then we gave her Zofran. 

And it’s just really a ridiculous assertion at this point. But that was that. And so, the thing, you know, we said in the beginning of this case, I said, you know, there’s another thing I wanted to mention that I think I’ll wait till the end.  

JA: Yeah.  

SM: So, I mean, sometimes we make mistakes for sure, whether it’s a mistake in care or documentation or whatever. 

But like in this case, there was no mistake. She didn’t do anything. I don’t think she did anything wrong. I don’t think anybody listening here would have said that before ordering that Zofran she should have done a 12-lead ECG. How many of us have prescribed Zofran? And even if it’s not methadone, there are plenty of meds out there that are asserted to prolong the QT interval. 

In fact, people that use electronic prescription writers I know you can identify with me when I say every time you try to order something, you get like four red exclamation points that say, you know, red alert, red alert, don’t do this and that together. Try to order Motrin here. I mean, literally with Motrin you will get alerts about not using them in obesity. 

JA: Wow.  

SM: I mean like it’s just the script writers are that aggressive about alerts. And it doesn’t take long at all before you don’t even see them anymore, honestly. I mean, maybe it’s just me. I hope it’s just me and everybody else-but yeah, I mean, you tune them out after a while. So, it really comes down to your, you know, your clinical judgment and your understanding. 

And so, I-listen, hopefully anybody who’s listening, if you have a different opinion, you please email us. I’m happy to hear it, but I genuinely don’t think that a nurse practitioner in the same or similar circumstances would have said, ‘Oh, before I order 4 milligrams of Zofran,’ which we give to a five-year-old, you know.  

JA: Yeah. 

SM: ‘If before ordering 4 milligrams of Zofran, I better get an ECG on this 24-year-old patient with no cardiac history who is taking a dose of methadone, that is appreciably under the threshold for concern about QT prolongation.’  

JA: Yeah, this sounds like one of those like, very obscure, like very obscure things that like you’ll write a story about because like if that was the actual case, right. 

SM: It’s like it’s just-it is the plaintiff’s attorneys’ job to do, to advocate for their client. And they’re just going to look through this and try to find whatever they can. I mean, I don’t want to sound-I don’t want to sound disrespectful to plaintiff’s attorneys because they serve a purpose, too. And there are patients who are on the receiving end of a true deviation of standard of care, and they need those attorneys to help them, you know, to help them recover in any way, you know, to be made whole. 

I totally support that. And there are circumstances where I will testify in a plaintiff’s case when the NP really did deviate from the standard of care, if for no other reason than because I don’t want-I want all of us to be practicing within the standard of care because we still, you know, we still are struggling, with some of the biases about nurse practitioners. 

You know, it’s gotten a lot better, but we still are. We are observed under a closer lens, you know, and so I don’t want any of us to be out there practicing in deviation of standard of care. So yeah, I have no problem holding an NP accountable. But in this case, I just I don’t see it. I just can’t imagine. 

JA: Yeah. And with so many of these cases, I mean, I tend to agree with you because we acknowledge this when we talk about these cases and it’s really easy to find like the things that oh, here it is. This is where the like the first thing went wrong, the second thing right and wrong. This for me listening was not one of those that was a very like, ‘Oh well, here, here’s where we find the issue there.’ 

And I’m wondering, I just don’t know enough about this topic. But I’m wondering, Dr. Miller, did they ever-could you-I guess, really is my question-could you on this patient do an EKG post-you know, this event that happened, unfortunately, to her to show like if she had QT prolongation and that in fact was the cause. 

Like can you go afterwards to check for that or that’s not really how that works.  

SM: No, at this stage of the game, she-I mean, she had so much downtime.  

JA: Yeah.  

SM: That alone would have had a significant impact on her 12-lead. So, you really couldn’t get a sense of what it would have looked like before. 

I mean, there were all sorts of theories asserted here about why she went unresponsive in the first place. And the one really that I tend to favor-and it’s not a bias, it’s just statistically speaking, it’s not all that unusual for people in this kind of detox facility that somebody will come to visit and bring them something. 

I mean, I don’t know if I should say that or not. It happens. It totally happens. It totally happens. Then if she overdosed, because methadone in combination with some other opioid could totally do that. And I don’t know at all if that’s what happened. Nobody knows. Nobody knows what happened. But this was just one assertion. 

JA: Wow. So, what happened to the NP in this case, who like, from my perspective, seems to have just a very small like role in this story.  

SM: Yeah. No, nothing. I mean, there was a settlement from the facility because there’s always going to be when a young person has such a catastrophic loss like that. 

But no the NP and, you know, the other thing, of course, of interest is that, you know, it’s not the first time Zofran was ordered there. Like it’s a place where people vomit. And if there were any sort of concern, they would have surely had a protocol for doing EKGs at the time of admission. That’s no, that’s true. 

JA: Do those guidelines exist like today in these types of settings? As far as like, are there actual guidelines that are kind of loud in your face that say, if this, you know, for instance, taking methadone and over this amount, do an EKG before you give that. Like, is that a set in stone guideline?  

SM: No, that would be-I mean, we do have we have literature that is very clear that if you’re if your methadone is over 100mg a day- 

JA: Yeah. 

SM: There is a significant risk for QT prolongation. But how that translates, it really would be up to the facilities. Facilities have their own protocols. And, you know, I mean, it’s just the nature of the litigious 21st century that unfortunately many protocols are derived based on things like this happening. So, you know, undoubtedly the other thing that there’s been a real big shift to buprenorphine for withdrawal rather than methadone. 

I mean, methadone is still used out there. There’s a role for it, and there are patients for whom it is the better option. But there’s been a large switch to buprenorphine, which also might prolong the QT interval. I mean, buprenorphine is not like the be all, end all perfect drug. It’s got issues too. But comparatively, from that perspective, it’s much safer. 

JA: Wow, wow. This was an unexpected turn. And this is really hard to try to figure out what happened. And still, honestly, it sounds like we may never know actually what happens now.  

SM: It’s funny, like sometimes you just want to say to the person taking your deposition, ‘Are you nuts? Do you really believe this foolishness?’ And in this case, the attorney that took my deposition was also a physician. 

JA: Oh, wow.  

SM: And, you know, like, they have their techniques about how they will come at you. ‘Well, why couldn’t she have done the ECG? Why shouldn’t she do the ECG or why shouldn’t she have done it?’ And the question is not why shouldn’t she do it? The question is why should you do it? Like for any diagnostic test, the question is why should you do it? 

And in this circumstance, there was no reason to do one. But they’re just like weird games that get played in for a skilled interviewer, a skilled attorney, it really can make the difference to a jury. Like, you could see the jury going, ‘Well, why? Why shouldn’t she do it? 

It’s only like what? How much is a cost? $20.’ Yes, but if you multiply that by doing, like, a million of them unnecessarily every year, right. It all comes back to our healthcare premiums. I mean, like, that’s the idea we only we should only be doing diagnostic testing when it’s indicated. When there’s a reason to do it. 

And, I-remember just being like my response to that question was so incredulous. It was just such a silly question. And in a clinical circumstance, she would have known it. But in her job, trying to, you know, make a case for her client that was that was part of how she tried to go about demonstrating that there was a deviation. 

And all I could say was, ‘That’s not the question. The question isn’t, why wouldn’t you do it? The question is, why would you?’ And here there is no answer to that.  

JA: Yeah. Wow. You know, we like to really end these with like the big takeaways for NPs. And I often I can think like, ‘Oh, this is a good thing to think of to tell NPs. This is a good thing to think.’ This one, I can’t-I mean, honestly, Dr. Miller, can give you a takeaway for this? 

SM: A takeaway for this one is that when NPs are subject to a suit, like when they are the subject of a malpractice action, it’s scary and intimidating, especially if it’s the first time. I have read so many depositions of nurse practitioners, like this one who is the subject of the case, and they get unsure and frazzled and let these very skilled plaintiff’s attorneys talk them into things that they really don’t mean to say, you know, like, why wouldn’t you do that EKG? 

Well, you know, I don’t mean, I don’t know, there’s really no reason I couldn’t like that’s not, you know, that that that’s what somebody might say if they’re unsure. They’ve never been deposed before. They’re scared and all that kind of stuff. So, the takeaway from here is for sure, if you are confident in your care, even if you’re not, if you’re being deposed, you know, be firm either way. 

But when you know that you have done nothing wrong and you haven’t done anything wrong, be firm in that. And don’t let anybody intimidate you into saying something you didn’t mean. Don’t let them push you into answering a question. There’s all these little techniques where you feel rushed. You feel like you have to answer it. You might try to give an answer even if you don’t really understand. 

There are certain phrases that attorneys will use, like is this an authoritative reference? In some states, authoritative reference is actually defined by law to mean certain things, but you don’t know it, you know, like so just don’t let yourself be intimidated into answering a question you don’t understand or saying something you don’t mean. Don’t be intimidated into agreeing with a statement when they say, ‘Well, would you agree that x, z, and z? 

Well why not? Well, would you agree that you know ABC?’ And I’ll read these depositions and see people like I think, ‘No, dude, you didn’t mean that. Don’t say that. That’s not what you’re supposed to say.’ But they do it because they are scared and intimidated and unsure.  

JA: Wow. That’s frightening. I mean, let’s be honest. 

That’s frightening. It’s frightening to get in trouble in any degree.  

SM: Yes, it is.  

JA: And for this, my God. 

SM: We always overthink this stuff. ‘Oh no. My license.’ You know, like-but don’t think that way. Don’t think that way. And don’t-if somebody and if the person taking your deposition needs to intimidate or try to force an answer from you that way, it’s usually because they don’t have a very strong case. 

JA: Oh yeah. You know frightening.  

SM: So that’s the takeaway from that one.  

JA: Wow. Good. This was a really good story. This was kind of an eye opener, I have to say, for me, in the sense of like when you really don’t see anything coming in how some things can just come out of-I don’t want to say nothing, but come out of the dark that you didn’t believe. 

Oh my gosh. Wow.  

SM: And it’s the nature of the beast.  

JA: Yeah.  

SM: It’s like, ‘Oh like what about this one article? Should I have ordered that?’ No, the answer is no. Don’t doubt yourself if you’re confident in what you did. Well then yeah. No, you answer the question about what you did. Take your time to answer the question. 

If you don’t understand it, have them repeat it. If you can’t answer it, just say, I can’t answer that. That’s the thing.  

JA: That’s good advice. That’s good advice. Dr. Miller, appreciate you as always. This was a great story. Thank you for this.  

SM: Always a pleasure.  

JA: Awesome. And we hope you guys enjoyed this and learned something new. Definitely things that you can apply, right? 

Take it with you. Practice strong. Practice confident. Advocate. We really want you to do awesome things. And if you’re looking for more stuff to listen to or just resources from us, check us out at FHEA.com to see what else we got going on. We hope you enjoyed our podcast and bye 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.