Scale Fail

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 again, Jannah Amiel, and joining me is Dr. Sally Miller. Dr. Miller, how are you? 

Sally Miller: Well, thank you. And you? 

JA: Yeah, you know, not bad. We were just saying before we hopped onto this that it’s Friday. Today is Friday and I am excited about that. Not all of us-I realized that most of us are probably healthcare clinicians listening to this and Friday means absolute nada. So I recognize that. But- 

SM: Indeed. Every day is a happy day. Every day we get up is a happy day, right? 

JA: That’s it. That’s it. That’s it. That’s a good point. I like that silver lining. So, if you’re joining us for the first time, hopefully you’re not, but if you are welcome, we are really excited to have these episodes. I’m super excited, always, to meet with Dr. Miller and talk about these cases. So, Dr. Miller actually serves as an expert witness for medical malpractice cases. And we talked through some of these cases that she served on really as an opportunity to learn, 

right?  

To learn and to understand how the things that we do and the things that we don’t do, right, really make some real, real different implications for our patients and our practice. But one thing that we wanna make sure that we always set the tone for is that, listen, like we’re both clinicians, everyone who listens to this probably is a clinician, and we all make mistakes. Because aside from being a clinician, we are humans and mistakes happen. So, we don’t want this to sound like we’re bashing any of these providers who may have made some mistakes or been involved in this. 

But really, really, really take this as a learning opportunity because it is. It’s a learning opportunity for every single one of us who could be in any single one of these scenarios. What do you think about that, Dr. Miller? Anything you want to add? 

SM: Oh, 100%. I mean, we all will make mistakes. And sometimes the mistake is in a clinical judgment or a clinical action or, you know, prescribing a med with which there’s an interaction, you know, some clinical error. Sometimes the error is in documentation, but it doesn’t matter. They’re all things that-you know, like one of my famous lines is, “there are those of us who have made mistakes and then there’s the new clinicians who will make a mistake someday.” So yeah, we definitely are not being judgy here or casting aspersions.  

It’s just about just staying on our toes because it is a litigious world out there. And a mistake in our line of work can have bad outcomes that can be actionable. But the other thing that I hope people can get out of these cases is that sometimes there is no mistake. Sometimes the APRN did everything right, did everything the way you’re supposed to, but because it’s a litigious world, someone may come back and try to sue you anyway. And then it’s important to remain firm and confident in the proceedings when you know that you didn’t do anything wrong and to not let any attorney or anybody in the process of deposition and testimony intimidate you.  

Because I read a lot of depositions from nurse practitioners who this is the first time they’ve ever had a problem. It’s the first time they’ve ever been sued. You can almost read off the page how nervous they are. And attorneys are really masterful at capitalizing on that and manipulating it. And as I say this, I again need to point out that I’m being politically correct. Not all attorneys-like, listen, some attorneys are just there to find out what you’re going to say and they’re advocating for their client, really. I’m not trying to be politically correct here. Some attorneys are just- 

JA: Yeah. 

SM: Doing what they need to do, they’re advocating for their client. But others are manipulative and will really exploit someone who is nervous and not confident. And we want to remain confident when we know we’ve done the right thing. So we’ve got all kinds of cases to review that elicit all those points. 

JA: Yeah, that’s a really good point too, because sometimes it happens. Sometimes you do everything right and still the outcome is not what you hoped, right? 

So, alright, so for those of you that are listening for the first time, one thing that’s really exciting, that I find exciting anyway, as I’m talking to Dr. Miller about this, is trying to determine what side she was serving as a expert witness on. Was it the plaintiff, was it the defense? And the other thing that I’m doing today, new, legitimately, I have a piece of paper in front of me, because every time we have these stories, there are so many little things that pop out, that jump out, as Dr. Miller goes through the cases, that you’re like thinking, ‘Wait, what? Wait, what about that? Was that wrong? Was that right?’  

And so it is a really good opportunity to listen and try to pick up on those red flags, if you will, or those things that stand out as outliers that seem a little strange and maybe could play into the story. So, I’m doing it this time because I’m not leaving anything off the table when I’ve got these questions for you. Now, when you’re ready, Dr. Miller, I am ready. I got a pen, I got paper. Give us the story. 

SM: You got a pen, you have paper, I have a story. Okay. Well, this one isn’t the most dramatic. You know, anyone who’s listened before, we have some very dramatic cases. This one’s not the most dramatic of cases, but I chose it for today because I think it’s a really good case for any NP who is planning to open his or her own practice, own business. 

Any circumstance in which you will employ not just clinical staff, but ancillary staff, you know, a front desk person, someone to answer your phone or a biller or a medical assistant or whomever. If you own a business, there are certain responsibilities inherent in owning that business. And I think most NPs don’t know that because most NP programs really don’t include anything about a business, how to run a business. But more and more- 

JA: It’s true. 

SM: And more, it’s happening. And I’ll tell you, I opened a four walls practice in 2010. So, I can’t believe it’s been 14 years ago now, but I-you know, I had a practice, you know, regular practice, front door, come in, you know, receptionist, waiting room, exam rooms, and all of that. And in retrospect, I didn’t realize a lot of these things. And as I look through some of my cases, I think, ‘Boy, was I lucky that X never happened.’ So, let’s take a look at this circumstance. So this is about-the patient is an 87-year-old lady.  

And by the way, there is not an NP involved in this. This is really more of the administrative or business piece.  

JA: Oh, really!?.  

SM: Yes. There’s a medical assistant, but not an NP. So, what we have is an 87-year-old lady who presents to the primary care practice for a scheduled appointment. And so, she gets to the facility, she checks in, she’s taken to the patient care area by the medical assistant. 

SM: The medical assistant then proceeds to do vital signs. You know, everybody here has also been a patient, I’m sure, as well as a provider. So, you know, typically the medical assistant will come call your name from the waiting room, take you back, a little area where you do your weight and your vital signs and stuff like that. And that’s what the medical assistant did. And part of that, of getting vital signs, is to have the patient step on the scale. So, the patient stepped onto the scale, she fell backward and she sustained some injuries. 

JA: Oh no. 

SM: She was immediately-I mean they weren’t life-threatening injuries, but she knows she had a hip fracture, which is unfortunately just so common in the older population. And remember she was 87, but she fell backward. She was immediately attended to by the facility staff. The medical assistant was right there and the medical assistant, you know, stayed with her and initiated phone calls and things like that. The patient was immediately transferred to the hospital. 

She had hip surgery, she went to rehab, she completed the appropriate treatments, the appropriate therapies, she has recovered, she has gone home, and actually at the time of this lawsuit, she was back home and she continues to receive care at this practice.  

JA: Oh.  

SM: So, she continues to go there for her primary care, right? Yeah, so it’s, like I said, it’s not a real dramatic story. The patient certainly had injuries and she had to have a surgery and she had to have rehab, but she recovered. 

She did well and she continues to go to that practice for her care today. So, you would say to yourself, ‘Why are we having this conversation? Where is the malpractice? What’s going on?’ Well, the patient-the 87-year-old patient has an attorney and I always wondered if she, on her own initiative, got herself an attorney or if the relative said, ‘You should get an attorney and sue somebody.’ But you know, whatever. So, she gets herself an attorney and the attorney-of course the attorney does all the language and when you watch attorneys interview the patients, they will often sometimes make suggestions about, ‘Well, was this a problem for you afterward? Could you not do that? Do you have any deficits today?’  

So I mean, I don’t know what happened here, but I’m gonna make some assumptions. Anyway, the assertion, the complaint that was served. So, it was both the medical assistant was sued and the practice was sued. 

So, this is why it’s relevant to nurse practitioners who own a practice, right? You are liable for-you have vicarious liability for the actions of anyone who is working for you. And even if somebody’s not working for you, even if they are an independent contractor, so they’re not an employee, but you contract them to come do work in your facility, you are still liable for any injuries or any problems that might be sustained. 

And so, if you’re just thinking about opening a practice, this is something to file away here. So, you might say, ‘Well, I’m going to hire an NP, but not really work for me. It’s 1099, like an independent contractor, and she’ll just see some patients here and she’s her own boss.’ But if you own that business and something happens there, in addition to suing that person, that probably is going to sue you too. So anyway, the first assertion was to the medical assistant and it asserts that the medical assistant and I’m quoting here: “failed to render reasonable and proper care. Two, chose not to act with the best interest of the patient’s safety, chose not to act, you know. Three, chose to leave the patient unattended and unsupported on the scale. And four, because of the patient’s age and inability to walk without assistance, the defendant should have known to provide a heightened standard of care.but did not even provide ordinary care.” 

So, that was the assertion to the medical assistant. You know, in practicality, there’s probably not much to recover from a medical assistant. I honestly don’t know if medical assistants have malpractice insurance, but I doubt it. I don’t think so.  

JA: Okay. I don’t-I can tell you no. I have, before my whole world of nursing, I was an MA.  

SM: Okay, so if you sue a medical assistant, you’re not really going to get anything. You’re really trying to get at the policy that the practice has that will cover the medical assistant. So, but yes-failed to render reasonable and proper care, chose not to act with the best interest of the patient’s safety, chose to leave the patient unattended and unsupported on the scale, and because of the patient’s age and inability to walk without assistance the defendant should have known to provide a heightened standard of care, but did not even provide ordinary care. Those are the assertions against the medical assistant. So, then when you go to the patient herself, the patient’s deposition testimony, the patient, you know, the 87-year-old lady, she testified that the medical assistant told her it was time to do her weight. 

The patient said she had a cane. She ambulated in the office with a cane. She set her cane aside and took her shoes off. She testified that while she was removing her shoes, she saw “the girl.” You know, “the girl” is a medical assistant. But she’s 87, so, I guess we give her a pass on that. I don’t know. She saw the girl and she said, “I don’t actually-she could have been to the back of me. I don’t know. But I don’t know why she didn’t help me.”  

The patient then goes on to say, “It seems like there was a little step or something and I walked up there a little bit too. I don’t know why. I didn’t think it would be there, but then I saw a handle and I went to grab it and I just missed it. I missed it and I flew sideways.” So, I mean, what the patient is saying is that the medical assistant said, “It’s time to check your weight.” You know, “We want to check your weight.” 

JA: Right. 

SM: So, the patient takes off her shoes, she puts aside her cane, she goes to step on the scale, the medical assistant is behind her, she reaches for the handle, misses it, and falls. And so, you know, anybody who’s listening, visualize what’s going on here. You know, the scales usually are in a little cubby area, which was what’s described here. And then the patient steps into it and the medical assistant was behind her.  

So, there really probably isn’t anywhere else for the medical assistant to be, except behind her as she stands on the scale. But keep in mind the assertions, you know, ‘didn’t even provide ordinary care, should have known to provide heightened care because of her age, should have known she couldn’t walk.’ So, there’s more coming here, but that’s the complaint against the medical assistant. The scale-I actually did a site visit. I went out to the practice- 

JA: Wow. 

SM: To see how things look there. Yeah, I’d never done that before and I haven’t done it since, but I did go out for a couple of reasons. And yeah, the scale sits like in a little recess and then, you know, like there’s the wall. Look, I’m making all these gestures like anybody knows what I’m talking about. But you know, there’s a wall, right? But in the wall, there’s that little recessed area, just enough for a scale. And then right next to it, there’s a chair, you know, so the patient sits in the chair, takes off her shoes, puts aside her cane, gets off the chair. 

JA: Yeah.  

SM: Goes to step onto the scale in the cubby and the medical assistant was standing behind her. There really isn’t any place else for the medical assistant to be except behind her as she’s approaching. So, hold onto that thought for a minute. There are also complaints against the employer. Cause of course there are complaints against the employer, because not to be too cynical, but the employer is the one with the high dollar insurance policy. So, the complaints against the employer-and these are the things that NPs that are going to open a business-I’m not trying to talk you out of it. Just- 

JA: Right. 

SM: Be aware of these are things for which you are responsible. So, complaint against the employer that the employer failed to establish, maintain, and enforce proper policies and procedures for doctors, nurses, and medical assistants. And as an employer, we are required to establish, maintain, and implement and enforce proper policies and procedures- 

JA: I’m writing that down. I don’t like that. 

SM: For our staff. So, that’s why when you go get a new job and you have to sit for like 3 days in orientation and go through all these policies and then you have to sign something that says you went through them, this is why. So, is it a pain? Yes. But when you’re the one that owns the practice, you do want to make sure they’re there. Big organizations, they have, you know, they have all shared drive files full of policies, but you know, an NP who’s wanting to open his or her own practice and has never done anything like that before may very well not realize that you do have to establish, implement, maintain, and enforce policies.  

I didn’t know it. Like that’s one of those things I was like, hmm, I mean, I can’t say I had a policy book, you know, I have a policy book. So, I would now. Alright, that was the first assertion. Number two: properly hire adequate, experienced, and competent employees who are able to ensure the safety of patients. There is a responsibility when you hire- 

JA: Yeah. 

SM: To ensure that who you’re hiring is adequately experienced and competent to do the work. So, then you have to decide, ‘Well, what does that mean? So, number one, verify their license, or at a minimum, verify their license, see if there are any complaints against the license. But what about have they had training? Like, are they a medical assistant with training? Or are they just coming in to- 

JA: Sure. 

SM: Fill out a role, which they could do, but then you have to make sure they’re appropriately trained. So, either you do the training or you document that they’re appropriately trained, the things that you’re going to have them do, even little things like change a dressing. Well, okay, it might seem, like, easy enough. We’ll teach you how to change a dressing. But when they take off the dressing, what if there’s an infection there? Should they be expected to identify that and let you know or just change it? 

JA: Right. 

SM: And they say, ‘I didn’t know that all that stinky green puss that was falling out was a problem.’ You see where I’m going with this? You know, it is the employer’s responsibility to properly hire adequate experienced competent employees. Okay. ‘Properly supervise and manage them once they are hired.’ So, what does that mean? Ensuring ongoing competency to do the job, ongoing continuing education. 

JA: Yeah. 

SM: It may not be hours and hours, but if you have somebody in your employ for an extended period, you do, at a regular basis, need to ensure that they remain competent to do the things that they need to be doing in that role. Properly and adequately trained employees, these are all assertions against the employer here that they failed. Properly and adequately trained employees and or instruct them as to their duties and responsibilities, including safety and special precautions needed when caring for elderly patients. And then properly and adequately train employees and or instruct them out to their job duties responsibilities, including safety and special precautions needed when caring for patients with limited ambulation. 

So, you got your aging population, you got your limited ambulation, which could be anybody who has an ambulatory need. And so, you see how this policy and procedure manual, like the best defense to assertions like this are to be able to pull out that manual and say, ‘Here it is, here’s my policy on this, here’s where this employee signed it, here’s where I maintain an annual file of their- 

JA: Yeah. 

SM: Their review and competency to keep their job. So, opening a practice, starting a business involves so many things and these are the little things that it’s easy to miss. So, for those of you that are thinking about opening a practice and maintaining it, it’s not just about your business license and can you legally do this procedure or that procedure, but there’s all these other things. Even if you just have like, one medical assistant and one front desk person, you know, and maybe like one thing you want to be able to, it’s not just good patient care, but it also protects you to make sure that they know that they, that you have all of this on board just in the event that you get sued.  

So, those were the assertions. Those were the assertions against both the medical assistant and the employer, all stemming from the fact that this 87-year-old lady who came in with a cane tried to step on a scale and fell. 

And it wasn’t even that she had like permanent, ongoing disability or damage. She fractured a hip and I don’t mean to minimize that-I’m sure, you know, for her that means going in the hospital, which is an adventure in its own right and having to recover and all the infection risks and the time out of her world. But, like, you typically think of like long -term, permanent damages as being the real issue for malpractice, but you know, it’s not always the case.  

So, that’s what was asserted against these two entities, both the medical assistant and the practice. So, you may have figured out I was hired by the defense on this one, but here was what I gave in my opinion. And I think-I mean, they are objective and valid. It’s not just my opinion. It’s never just the experts. You always wanna be able to substantiate it with objective data. 

The first one that I thought really was subject to some response here was the assertion that age and inability to walk required a heightened standard of care was not accurate. Certainly advanced age doesn’t in its own right mandate heightened care. In fact, actually the current standard of care is that presuming that age renders people helpless or requiring additional care is ageism. 

JA: Yeah. 

SM: In the healthcare community it’s really an insult or a violation to patients to assume that just because they’re older, they need extra care because they don’t. It’s presumptuous, it’s insulting, and it’s a violation of the most compelling ethical principle of practice, which is patient autonomy. Any patient is competent to make their own decisions about what they need and what assistance they require unless they are incompetent, unless they’re deemed incompetent by a court order. 

And we are taught that-I mean, we are taught to presume that just because someone is elderly doesn’t mean they need help with daily functions. Now, we would make an assessment of all of our patients to see if they need additional help with something. But my position on this is that I’m not saying it’s not appropriate to evaluate whether or not a patient needs additional help. I’m saying that just based on age we don’t just say, ‘Well, you’re 87. We better, you know, we better see if you need some additional help.” 

And some people listening might disagree with me on that one, but I-you know, I would hold on that assertion that ageism is that practice of projecting disabilities on people because of their age or just not just disabilities, but stereotypes.  

JA: Yeah. And isn’t one of those like-I mean, it makes me think of saying every elderly person is confused and that’s just not true.  

SM: Yeah. Exactly. Exactly. It’s not true. It’s not true and it’s insulting and it’s demeaning and it’s minimizing. It’s many not good things. And we are taught that in the healthcare population, not just to presume that because somebody is older that they’re sick, they’re demented, they’re disabled, they’re weak or whatever. We’re not supposed to assume that. So, I really genuinely believe that it’s clearly not appropriate to say she had an inability to walk because of her age.  

Now, she had the cane. You know, she was in the office with the cane and that was one of the assertions that we should have, or that the defendant should have recognized she needed additional help. But further in her deposition, the patient said that she typically only uses the cane when she’s outside, that for the most part, she walks independently. And in her own deposition, she said that she drove to her appointment, she walked from the parking lot- 

JA: Yeah. 

SM: To the building without using her cane. She went through the lobby of the building without the cane. She navigated the elevator. Like she had it, but she wasn’t using it. She said she did all of this without assistance. She navigated the elevator to the second floor. She walked the long hallway to the office and the office lobby all without assistance. And in her deposition, she acknowledged that. So, that’s another one of the things I was looking for when I went out was to see how far she actually walked without a cane. 

JA: Yes. 

SM: And it was far, it was like, this is a big building. She parked in the parking space, she had to go, get out of the car, go through the parking lot, you know, up the curb, down the walkway, into the building, through the door, through the lobby, in the elevator. She was walking just fine. It really sounds like by her own admission that the cane was there as a security blanket, you know, that sometimes like maybe on difficult terrain or an elevation. 

JA: Well, wait a minute now. Sounds like she’s walking. What’s going on? 

SM: Difficult terrain sounds like she’s out in the tundra. But you know, if you have to walk through like rocks or stones or something like that. But she testified that she did all of this walking, that she doesn’t usually use the cane, but sometimes she uses it outside. Then I went back through the medical records. So, she had been a patient of this practice for over 5 years. There had been 25 documented visits to this office in the last 5 years. 

And every one of them, her gait was documented as normal, no assistive devices, the review of systems documented no falls. Like there was absolutely nothing in her record for anybody to think that she might need heightened assistance. There was one mention in the record that apparently 2.5 years prior, she called the office to say that she had a fall, but there was nothing else about it.  

It apparently did not even warrant an office visit. Like there was nothing else. And it turns out that she tripped over a pillow at home while trying to answer the phone. So, she tripped over-I mean, I’m not laughing at the patient. It’s just the irony of the whole thing. She tripped over a pillow while she was trying to get to the phone. So, she fell and then she called the office and I don’t know what else happened. It was a very brief documentation of the phone call, but apparently it didn’t warrant anything else. So, you know, when you look at objectively the facts, you’ve got this healthy, active 87-year-old woman- 

SM: Who lives alone, who does not routinely use assistive devices, who had no falls at all for the past 2.5 years and no falls before that except tripping over a pillow. There’s just no reason to assume that she is at increased fall risk just because she’s 87. And so, there’s certainly-it’s inappropriate to suggest that she needs a heightened standard of care. So then of course, the next question is, ‘was reasonable and proper care appropriate and was it provided?’ 

JA: Right. 

SM: So, the medical assistant takes her back. She takes off her shoes. The patient sets aside her cane. She gets up to step on the scale and the medical assistant stands behind her. So, you know, one would ask yourself if that was a reasonable care to the patient. And then as far as-and so that’s for the medical assistant. 

As far as the assertions against the employer, there was an employee policy and procedural manual. It was introduced to all new employees. It was made available online to all employees and every employee had to review it and then sign off that they reviewed it initially and then at regular intervals. This is a big organization, so they had a big policy and procedure manual, thankfully. 

The hiring process, the human resources file, if you’ve ever worked for a bigger organization, your human resources file is this long. I mean, it’s enormous. 

JA: Yeah, that’s true. 

SM: And it documents all of these things that she was eligible for hire, that she completed accredited medical assistant training, that she had experienced in the assessment of vital signs. 

She met all the job requirements because there was a job description, which is something else for any of you planning to open your own practice. If you have even one employee or one person working in that practice, there should be a job description for them because not only is that how you review them on a regular basis, which is necessary to be compliant with employer-employee laws, you know, fair employment practices, you have to be able to-the employee has to know what’s expected of them. 

They have to be told what’s expected of them so that you can fairly evaluate if they meet it or not, but also as a barometer for you to assure that they are competent for the position for which you hired them. So, there’s all of that. They also had the references on file that necessary laboratory screening like infectious diseases and illicit drug use, that was all documented. So, the employee file for this person was really well collected. 

There was a supervision hierarchy. Everything was there and it was produced and it was readily available. So, a couple of morals of this story here. Number one: some attorneys will sue you for anything. I mean, they can just throw it out there. To make these assertions like the medical assistant chose not to, that’s almost inflammatory actually, yeah. But even- 

JA: Yeah. Yes! I hate that word! That’s so wrong. 

SM: They throw all of this out there, having absolutely no idea whether it’s true or not. So still, as the defendant, you then have to have your attorney involved, and you have to answer all of these, and they pay people like me to look all this stuff up and answer it. And so, as it happens, and then the patient, clearly the patient was still comfortable with the practice because she continues to go there. She continued to go there right up until this time.  

But I do think it’s an interesting eye-opener for anybody who’s thinking about opening their own practice. There’s, you know, nurse practitioners who are gonna open a practice seem to tend to focus on like the clinical, technical piece of the job. What can I do? Can I inject this thing or this procedure, like that kind of stuff. And those are important, but there’s also a whole other world of potential liability out there.  

And so…I would never discourage anybody from doing it. In fact, you can hire a consultant and I’m sure there are probably packages available and things you can buy yourself an employee policy and procedure manual and then just take out of it what you need. But you definitely want to have those things because on any clinical day, anybody can fall down in your office and it could be totally their fault. It could be that nobody did anything wrong, but boy, you definitely want to be able to demonstrate that. 

JA: To CYA, right? And we all know what that stands for. You know, I’m being kind of cheeky, but this reminds me of like, you know, those commercials you see either at like three o ‘clock in the afternoon or three o ‘clock in the morning. And it’s the attorney that’s the weird, like, skeevy-looking attorney who’s like, ‘Call me! Did you fall? Did you do this?’ And it’s like, you don’t look, like, trustworthy at all. It sounds like one of those types of things. I’m not saying it is. 

SM: Sadly. I know. 

JA: But I am happy that the patient didn’t have, like, a fatal outcome, you know, in this way, but it kind of does seem like one of those opportunities because I have to say to what you shared about the assertions. 

And the policy and procedures. I mean, if someone’s listening in thinking like, ‘Well, how detailed do we have to be in the policy and procedural? Do I have to get down to like, if this is an older person who comes in with an assistive device, you must wrap your arms around them and ensure…’ You know, like how, how nitty gritty do you have to be to feel like secure? 

SM: Yeah. See, there’s not a good answer to that question. There is not a good answer because the more you put in writing, the more you are accountable to do. You don’t want to get too detailed like, if someone comes in using a cane, then we must provide this. Because then what if somebody comes in using a cane, but the patient says, ‘I don’t need it. I don’t need it. It’s just there because it looks cool.’ Because some people do have canes because they look cool. I don’t need it. It’s just there. 

JA: Yeah. Right. Yeah. 

SM: And you say, ‘Okay.’ And then they go boom, you know, and then their significant other or somebody says, ‘Well, you should call a lawyer because, you know, it’s just their insurance and so they don’t care.’ And then they get a lawyer and then all of a sudden, you know, that one time. So you want to be careful about the level of precision that you describe in a policy and procedure, because if it’s-I mean, the written word really does rule in circumstances like this. I mean, I’ve seen entire cases revolve around a comma or a phrase or something like that. 

So, you need to have enough to demonstrate that you have set these policies and procedures for your employees, but you don’t want to have too much in the event that there might be an exception. 

JA: Yeah. And then you like, paint yourself into, like, a true legal corner and that could be crappy.  

Wow. So what happened ultimately? Did the case-like what happened?  

SM: There was a settlement, there was a minimal settlement, but there was. And see, that’s the booger too. Did I say booger? Sorry. I guess I could have said, I’m from New Jersey, I could have said a whole lot worse. The concern is that once it even gets to this point, then the question isn’t, ‘Is it really appropriate to give money?’ It’s, ’Okay, how much more is it gonna cost if we have to pay them?’ And you know. 

We have to hire experts and do all this kind of stuff. How much would it cost if we go to court? So they, I mean, they give people ‘go away’ money. Now you give them X amount of money. it’s just not that much. We’ll throw like 25. And I don’t know how much this person got, but you know, we throw 25 or 30 at you and that way the lawyer gets 10,000 for doing very little and the patient gets something. And the insurers tend to think they got off easy. Like that’s all the way that kind of stuff goes. So she did get something.  

JA: Yeah, just let this go. 

SM: I was just going to say legit, like for real legit, it really wasn’t deserving of anything, but they got something. 

JA: Yeah. And you know, though we feel bad for the patient for sure, nobody wants to get injured and have a fractured anything, but the former MA in me is feeling pretty sad for the MA, who I’m sure, that was very scary for. Heck yeah. 

SM: Probably scared to be an MA. Probably scared to do patient care again. I mean, this is why good people leave patient care. Unfortunately. 

JA: Yeah, yeah. Wow. Well, Dr. Miller, thank you so much for sharing this story. This was really interesting. I hope everyone got some good takeaways from that, including make sure you have your policy and procedures because that is really important.  

SM: And definitely like, yeah, do it, but just do it right, right? Just make sure that you got your ducks in a row. Yeah, don’t be afraid to open a practice just to make sure you’ve got your P’s and Q’s lined up, you know? Yeah. 

JA: This is fantastic. We hope you enjoyed listening. We got some good tidbits from us. And if you want to hear more, check out what else we got going on at FHEA.com. Thanks again for joining us and thank you, Dr. Miller, as always. Bye for now. 

SM: Bye bye. 

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.