A $150 Million Mistake Part 1

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 back to another episode of Scrubs and Subpoenas: Tales from the Witness Stand. I’m your host, Jannah Amiel, and joining me again is Dr. Wendy Wright. Dr. Wright, how are you? 

Wendy Wright: I’m great, how are you today? 

JA: I’m well and excited, really excited that you’re back again. I don’t know if anyone has not listened or met Dr. Wright. She’s actually been a special guest on our Scrubs and Subpoenas podcast episode before. Wonderful thing-I didn’t get to tell you this, Wendy-during AANP-this is a really fun story-I ran into somebody at the airport who was a listener of Scrubs and Subpoenas and they said that episode about the sports physical at the clinic-my gosh, that was your episode. That was your episode. Yeah. 

WW: It was my episode. It was my episode. It’s good because, you know, when you’re on the other side, you don’t know how many people-I don’t know who listens and if people take things away. So, that’s really cool. That’s really cool. 

JA: Yeah, it was really good. It left a big impact. So, we’re super happy to have you back and really, you know, excited to hear this particular story, because this story is going to stand out, I think, from the rest just in the sheer size. And we’ll talk about that in a moment. But before we get into it, I just wanted to give you an opportunity, Dr. Wright, to introduce yourself. Of course, you’re one of our amazing faculty here. You serve as an expert witness, but you do a lot of other things, so tell us.  

WW: Thank you so much. Hi everyone and for those of you who have not heard me before, I am Dr. Wendy Wright. I’m an adult and family nurse practitioner and I own a nurse practitioner-owned and operated primary care clinic. It’s located in Amherst, New Hampshire. I have 11 nurse practitioners, soon to be 13, who work alongside me every day. We have 6,500 primary care patients and I continue to treat patients approximately 28 hours a week. 

And then as you heard, I do serve as faculty at Fitzgerald Health and have done that now, I’m coming up in my 28th year teaching the certification course and a variety of other things. I also, as you heard, consult on medical malpractice cases and probably have worked at this point about 150, maybe more, cases, some of which I don’t accept and others that I do. 

Every week there’s probably one case that I am presented with and am asked to take a look at. So, it is something that I am doing fairly often, although it’s a small part of what I- 

JA: That’s a lot. You’re a busy woman. I had no idea that you were getting requests that frequently. That is a lot. 

WW: You know, I think what happens, and I get asked this a lot, so maybe we could take a second to just talk about this, is that people will often say, ‘Well, how do you get these cases?’ Well, I am not a legal nurse consultant. In fact, many of the defendant attorneys, the defense attorneys will say to me, ‘We don’t want you to be a legal nurse consultant. We want you to be an NP who believes in this case.’ And so I’ve never gone back to become a legal nurse consultant because I don’t want to work on the plaintiff’s side, more than I work on the defense side 

JA: Yeah. 

WW: And so, if I did that certification, my understanding from the attorneys is they probably wouldn’t hire me on the defense team. And so, I really like working to defend nurse practitioners rather than being on the other side. Although I have been on the other side and anyone that does this work will be on both sides to show that if a case is appropriate, that you are willing to speak on behalf of a patient as well. 

JA: Yeah, that’s really interesting. I didn’t know that, but that’s a good point. And I bet a lot of people, you know, just even listening to this are thinking about serving in that capacity and really what that means. So, thanks for sharing that bit. And, you know, just to piggyback on that, one thing that we like to do in the beginning of these is listen-like we’re going to talk about real stories, real cases that have happened, right? And I think it’s important for us to make sure we set the tone that this opportunity, this is us coming together to talk, to listen and learn, right? Because one thing I think we all know for sure is that we’re all human, which means we can all make mistakes. We’re truly just not above it, right? And this is our chance really to look back and to see, you know, where we are able to make changes to practice safer, to advocate better, right? To really ensure that when it’s all said and done, we’re doing the very best that we can. 

Not you know, Monday morning quarterback and say, point fingers that this person did this wrong, that type of stuff, right? We really want to take this opportunity to learn. We all work in healthcare and we know what that’s like. Is there anything you want to add to that, Dr. Wright? 

WW: Agree with you 100%. And you know, I make mistakes every day and I just pray that no one gets harmed. We are human and I’m not perfect. And so, I am not here to pass judgment. And in fact, I think I said on the last episode that every time I work a case like this I say, ‘but for the grace, go I,’ right? This could have been me. But I also know that I have a voice and I know that I have the ability to translate something that’s devastating not just for the nurse practitioner, but for the families themselves, and translate that into a teachable moment such that people that listen to us can say, ‘I wanna learn from that.’  

And, ‘What can I take from this case that I will make sure that I do the next time to protect myself and to protect that patient a little bit better?’ 

JA: Yes, absolutely. I think that’s beautifully said, beautifully said. So, without any further ado, I’m ready and I am not excited for this sake of, don’t want to hear the bad news, but excited because this is so big and I love hearing these stories from you and of course learning-quite honestly, learning something new. So, ready whenever you are. 

WW: Well, my goodness, this is so big. And to my understanding, this is the largest malpractice case ever filed against a nurse practitioner. Now, it should be noted that I have no idea the magnitude of this case as I’m being brought in. This was the one case in my career that I was actually asked to be in the courtroom from the beginning of the case until the end. So for 5 days, I sat in the courtroom because what the attorneys wanted me to do is to take notes. 

To watch what was happening and to be able to provide feedback to work on behalf of the team that I was working on. And I know you like me to hold off on talking about which side I’m on, but at the end of the day, what it did for me is it gave me such an appreciation that nothing is clear cut. It may sound clear cut to those who are reading the internet because this case is public domain. 

It’s not clear cut and much of what is out there about this case is missing huge, huge pieces. And I know that because I was in the courtroom for 5 days. So, let’s start back. The case took place in 2015. It took place in a Midwest state and it took place with a nurse practitioner who had graduated from a family nurse practitioner program approximately 9 months or so, give or take. Now my memory, it’s been a bunch of years since I’ve done this-so, just give me a little bit of grace. But the NP had been out of school. But what’s important is she went to a family nurse practitioner program. She had previously been an ER RN and she had previously been a paramedic. So, her career started as a paramedic and educator. 

Then went on to get a family nurse practitioner, but accepted a job in a rural emergency room, a 4-bed rural emergency room that is staffed 24 hours a day in rural communities. And she was alone. On the night that this 19-year-old young woman came in, she was transported in by an ambulance because she was home with her boyfriend and had a syncopal event after complaining of some chest pain and shortness of breath.  

It has been testified in the courtroom that the paramedic or EMT who dropped this patient into this 4-bed emergency room, the NP was the only provider on staff, although there was an RN and that it was alleged and it was testified to that the paramedic EMT said, ‘This sounds like a pulmonary emboli.’ So, this young woman comes in to the emergency room, evaluated by the nurse practitioner who is working there alone. It is late at night. I want to tell you it’s like 9, 10 o’clock at night in that vicinity. And the NP orders up a CT scan of the chest, CTA, to evaluate for a pulmonary emboli, but also orders up a bunch of blood work. Things like D-dimers, things like 

and drug tox screen.  

Okay, I’m going to try to pull the pieces together because it really is a pretty complex case. But the young woman gets up to go to the bathroom and has a syncopal episode in the bathroom. She hits her head on the floor. So, the NP is evaluating her, cancels the CT scan of the chest and orders a CT of the head.  

JA: Oh boy. 

WW: Now, you have to keep in mind, there is no one in that facility to read the CTs. So, you’re good because this is rural America. This is 60 miles away from any of the major facilities. So, this NP is trying to work through-while she’s working through, the lab phones her and says there’s a positive methamphetamine drug test. So, now the NP is trying to put these pieces together.  

We have a syncope young woman, chest pain, shortness of breath-by the way, on combined oral contraceptives. Otherwise healthy. The only past medical history was that 6 months prior, maybe, she had been involved in a motor vehicle accident with some injuries, but nothing serious is my understanding. Okay, so this NP feels like-and this is the stuff that didn’t come out in the press-the NP says, ‘I feel like this is out of where I can handle it.’  

Picks up the phone and calls a cardiologist because this patient is tachycardic, calls a cardiologist at a tertiary center and says, ‘I want to transfer this young woman. I don’t know what’s going on with her. She’s having syncopal episodes. She’s hit her head and I’ve got a positive meth test to which the cardiologist, by the way, the cardiologist is not named in the suit at all, to which the cardiologist says, ‘Better there. Keep her, let her work the drugs and stay in touch if you need us.’  

She ends up calling back two more times to say the pieces are not fitting together to which they, the cardiologist, says, ‘You need to keep her there. We’re not going to accept her as a transfer.’ So the NP admits-so she gets her CT of the head, no CT of the chest, admits her because there’s no one else in the hospital to admit, admits her to a bed in the hospital. 

And the patient is saying, ‘I’m getting worse.’ Well, the NP picks up the phone again, calls and gets a nurse or nurse practitioner, not the cardiologist who says, ‘Have you gotten a CTA on this patient?’ And the NP says,’ I haven’t’ and here’s why, ends up getting a CTA, huge saddle emboli. And so, arranges for transport to the tertiary center. 

I think the patient spends about 8 hours in this rural hospital before she’s received by the tertiary center. She gets there in the vicinity of 3 o’clock in the morning, 5 o’clock in the morning, and dies 2 hours later, cardiac arrest. And so, that’s the premise. It’s a failure and a delay of diagnosis. And that is kind of the premise of the standard of care issue. 

JA: Gosh. 

WW: Now, I don’t know if you have questions about that. I want to tell you a little bit about my role at some point, but that’s kind of the premise. 

JA: Yeah, wow. I’m trying to keep my mouth closed. It sounds-and I think this is the setup that you gave us-it sounds cut and dry, like you missed a PE, right? You kind of missed the PE and you missed doing the things to find it and to treat it to your point. But I feel like we’re missing something. I feel like we’re missing something. 

WW: Right. You are missing something and you’re missing the fact that the judge instructed the attorneys that they were not to allow anyone to testify that she called the facility three times asking for a transfer of this patient. 

It’s a judge’s prerogative. All I know is that the attorneys that I was working for said it was a very political situation that the physician hadn’t been named in the case. And because that physician was not named in the case, it wasn’t discoverable and able to be brought in. I’m not a lawyer and I don’t play one on television. So, I don’t know, but all I can tell you is there was a lot of backroom back and forth and they were instructed-and, in fact, we were told before we got on the stand if any of you bring up the issue that this NP called the cardiologist who is not being named in this case I will hold you in contempt of court. So, I don’t know about you all but I don’t look good in orange. I don’t look good in stripes so I’m certainly not going to go down that road when I’ve already been told I would be held in contempt.  

JA: Oh my gosh, that’s great. 

So what- I mean, this might be a silly question then, what, like, how do you-what’s your role then in this when you have all the information but can’t necessarily use all the information? Like, what was your role? 

WW: I know it’s really, really tough. Now, what is important for the listeners to know is I’m not an emergency room NP. So, I was not actually used to talk about standard of care. That is not what they hired me for. They hired me because in this case, there were a multitude of defendants. Hence the reason over $150 million ask, they were suing the hospital that employed the NP.  

They were suing the NP, her supervising physician. They were suing another organization as a subdivision of the hospital who credentialed her to allow her to work in that emergency room. So, there were so many defendants in this case that I actually was hired as a scope of practice expert. Was it okay for a family NP to be credentialed in an emergency room and did they miscredential her?  

And if they did, was she working outside of her scope of practice? And that is an issue that if we have time, either this episode or another one, we need to talk about scope of practice because it’s becoming, as the attorneys tell me that I work with, it’s becoming a very hot, and it’s becoming a big conversation because NPs have a lot of subspecialties.  

And the more we certify and the more subspecialty we become, they can then allege that you’re working outside your scope. So, that was my role, to say she was credentialed appropriately. She had every right to work in a rural ER because when this case happened in 2015, that year, the American Academy, now the Association of Nurse Practitioners, had their first ER certification come available.  

But in order to be ER-certified, you needed to be a family NP working in an ER for 5 years in order to sit for that exam or to go to an ER program exclusively, which there weren’t a lot of them. So, for me, my job was clear cut. 

I knew she had no pathway to a certification as an ER NP in 2015 when this case actually happened because that certification at that point was just coming on board and there was no way she could achieve it without having spent 5 years in an ER. It’s a catch-22. 

JA: Right. So, can I ask, did they have, to my understanding, right, when we talk about these types of cases, oftentimes it’s not unusual to have an expert witness, to your point, who speaks to the scope of practice, but it’s like a one-to-one, if you will. If she was an FNP working in the ED, you might expect that you would have an FNP who also works in the ED, right? That kind of can help do that. Are we following the standard? Is that right? 

WW: Right, so what they often will do is they will hire someone with the same level of education to opine, did this NP do what an NP with the same level of education in the same setting would have done with that information? Now it was very interesting in this case, they actually did not bring in a nurse practitioner. They brought in an ER physician.  

Now, what a lot of people also may not know about this case, and again, we can talk a little bit about the logistics, but there was a lot of backroom lawyering as well that happened. And the decision was made by every organization that was being sued to allow the nurse practitioner to walk free from this case. It was felt that the case would be better moving forward if they let the NP go loose, didn’t hold as the defendant and bared the responsibility of defending the case.  

And that is exactly what happened, which may have been why they didn’t bring in a family NP working in a rural ER. But you know what? If family NPs are not working in rural ERs, these ERs are not gonna be available to be staffed. I mean, it is the reality. And the key is, as I always say when I do these cases, is to know what you know and to know what you don’t know and hold up that white flag and say, ‘This is beyond what I can handle here,’ and get these people, no matter what situation you’re in, this is true in primary care, get them to where they need to go in a timely manner. So, the NP actually didn’t end up paying out at all as part of this case because she was cut loose by the lawyers kind of at that last minute decision. 

JA: That’s a massive case. I think-let’s get into the scope of practice because it comes up a lot. And we never really kind of dove into it, to be honest, in these particular series. And it seems like a little bit of a gray area and the way of- you can’t, you can, you have the specialty, but you don’t need it or you should have it. I mean, how does this actually play out in real life? It seems quite confusing, I got to be honest. 

WW: It’s confusing. You get-so, I started as an adult NP. My education, my certification said adolescence to end-of-life. Well, what is an adolescent? What’s the age? Well, there’s no definition of the age. So, that’s the first nebulous part. So, then I went back and became a family NP so I could treat womb-to-tomb, right? I could treat the entire lifespan, by the way. That’s why ERs want family NPs because of the ability to treat womb-to-tomb. 

But that is your certification, right? But each state then sets your scope of practice. Now, I’m going to give you a loose definition of my scope of practice. You can perform that for which you are educationally and experientially trained.  

Well, what does that mean? I always say to the NPs that work for me, ‘If I put you on the stand and I said, are you educationally prepared to do this? And are you experimentally prepared? And if you don’t say yes, you shouldn’t be doing whatever it is you wanna do, right?’  

So, it’s so nebulous, but now what’s happening is you’re taking family NPs and then you’re carving out. Some are becoming psych-certified. So, when does my scope end and psych start? So, if I wanna prescribe an antipsychotic, if I can show that I know how to do it, can I? Well… 

Now, in every case I’ve seen in the last year, I’m seeing every reference to outside of scope, outside of scope. It’s one more thing to add into a case that I think we’re gonna see as NPs continue to subspecialize that we’re gonna start. And now a lot of the hospitals are saying, if you wanna work in a hospital, I had credentials as a family NP to see patients in the hospital. 

Now, many of the hospitals say you want to work inside, you want to work as a hospitalist, then you become acute care certified. And so, the more we do this, the more we get into these nebulous areas. And I know Dr. Miller speaks about this a lot because she holds multiple certifications and it really becomes this gray area. Now, it should be noted, I had a very interesting experience. So, I’m on the stand talking about scope of practice. 

And I was told, you cannot mention that there was no specialty certification available for her until the year that this case happened. The judge ordered me not to speak about it. I was told by the attorneys that I couldn’t mention it because it didn’t exist when the child, that adolescent, was in the ER. Okay. Well, the plaintiff’s attorney asked me why was she not certified as an ER NP.  

And I’m thinking, ‘My goodness.’ But the plaintiff’s attorney asked me. And so, I answered and said, ‘It did not exist at the time that this case happened.’ But what am I going to say? I’ve been instructed not to answer. Well, all heck broke loose. I was scared actually. The judge like threw me out of the courtroom. ‘You need to leave the courtroom, Miss Wright.’ 

And the attorneys were called up to the judge. Well, after lunch, she made me sit through lunch out there thinking I was going to jail, brought me back in and the attorneys that I was working with had a board up behind me where they said, ‘Ms. Wright, we wanna expand on this conversation. Why was she not an ER NP certified?’ And so, they drew out on this whiteboard the pathway to become ER certified for us. 

The company that I was working with that day, we ended up with zero fault, which they were thrilled about. And so, a long time ago, Jannah, you asked me, ‘How do people get to you?’ I think people get to me and I get a lot of the work from this big national lawyer company who does med mal defense because my name is in their database as the nurse practitioner who almost went to jail for contempt. 

JA: Yes. 

WW: No, I’m kidding. I did miss my flight that day. I missed my flight, but it was all good. They told me that my people that I worked with had zero fault, which was great and didn’t have to pay out any money. They ended up splitting, you know, the cost of the settlement. But when the jury was polled-and this was what was very interesting to me because after these cases happen, the lawyers like to meet with the jurors to say what? 

So, that they can learn, right? Just as we are all learning today. And what the jurors told the team that I was working with was that we believed her, which was important to me, and that she answered the question as she was asked to answer the question. The plaintiff’s attorney really did make a mistake in asking me that and opened up a door, but that’s not my issue. He’s a lawyer. He knew what he was doing and he just-I think they say in the world of law, never ask a question you don’t know the answer to.  

So, it ended up, for me, I felt like I did the job that I had set out to do and that that was really important. There’s a lot of background stuff that when you read these cases, unless you spend time in the courtroom and you look at the transcripts, you have no idea what’s excluded. And this is what makes these cases so, so tough. 

JA: Yeah. 

WW: It’s never clear cut. It’s never as beautiful as the media wants to make it out. Like this NP missed a pulmonary emboli and this adolescent died as a result. There was a lot of things that happened. And yes, there was a delay in the diagnosis and there was up to an 8 hour, but there were events that happened that no one, unless you were in that courtroom, knew about. 

JA: Yeah, and I would love to get into what we can get into with that. I think that’s going to be a great piece of this for all of our listeners to really understand those unspoken things and even the nuances that happen in between.  

Because you’re right, it sounds so cut and dry, but we know it’s just not that cut and dry. I know, one thing I wanted to circle back on before we start to get into that next piece, thinking about scope of practice today. 

I know that we’ve got folks listening right now that might be an FNP thinking, ‘I’m not going anywhere near an ER or an urgent care’ or ‘I’m not going to do none of this because I’m worried about scope.’ What would be your, you know, your advice about that? Like what’s-what would you say to your peers who are thinking, ‘This just seems like I could be setting myself up for something I don’t want to do.’ 

WW: You know, I mean, what I’m about to say people may not like, but if you have decided as a family NP that you’re going to work in a specialty, i.e., the ER, it is a specialty. The things that are done in the ER are very different than what we do in primary care. Go back and do a post-master’s certification. Get an ER certification if that is the career that you know is the best for you.  

I just had an NP ask me for career advice and he said, ‘I want to work in a hospital.’ I’m thinking, ‘No, I’m sorry, let me turn it around.’ He said, ‘I want to work in outpatient care, but I’m thinking I’m going to get an acute care certification.’ I said, ‘Don’t bother because acute care is hospital-based. It’s not even ER-based.’ And by the way, that was one of the things that the plaintiff’s attorney did not understand in this case is that an acute care NP is not an NP trained to treat acute issues. That was his perception that acute meant anything acute, it isn’t.  

Acute means hospital-based. Those are folks who work in a hospital. As a hospitalist in the ICU, ER is ER, and family covers urgent care. As a family NP we’re trained in urgent care. But one of the things that did come up on the scope of practice was they got this NP’s transcripts, and they said, show me the classes. They asked me this, show me the classes here that say emergency medicine.  

There were none. They were primary care of the family, primary care of the child. Now, what I did say was urgent issues are embedded in each of these classes, but they could show that her transcript was primary care-based. So, if you’re gonna make your career a specialty, i.e., ER, inpatient, think about doing a post-think about getting that additional certification if for no other reason than to protect yourself. I know that people don’t want to hear that, but you know, it’s the reason that I went back and did family. Even though I don’t see a ton of kids, I did it to give me the ability to do it if I need it and to be certified. 

JA: Yeah, I mean, it seems absolutely worth it. Quite honestly, I mean, I’m a little biased on this side because I’ve heard some of these stories so frequently that it just feels like it’s the right thing to do to really set yourself up for success and protection. I hate to say that, but some protections, quite honestly. 

WW: And you know what? I could never go back to the hospital today. The drugs are different, the treatments are different. I don’t even know what they’re doing in a hospital anymore. And so, I think that a lot of people say to me, ‘I’m never going back to school.’ I loved going back and I love to do that because I want to make sure that I’m working in a setting that I’m afforded as much protection as possible. Not that most of us are ever going to be sued because the reality- 

JA: Yeah. 

WW: Most NPs are never sued and that’s important for our listeners. You know, in family practice, they say an average family physician is sued about once every 7 years. Well, you know what? In a 5-year span, there were 250 cases against NPs. There are 388,000 of us over 5 years. RNs are sued 18,000 a year-ish. So, we are a small entity, but there are more of us and we are doing more visits and we’re interacting with more people. As much protection as we can be afforded in a system that can be litigious at times. 

JA: Yeah, I totally agree with you. Dr. Wright, I’m so excited to get into the logistics of this case when we come back and talk about this. Thank you so much for your time on the scope of practice. This was important. And I really think it’s helped to clear up a lot of the gray space that we find ourselves falling into in these conversations. I really appreciate that. Folks, we hope that you enjoyed this piece. Please turn in the second piece when we talk about this case in a little bit more detail and really what led to these outcomes. 

WW: So, we’ll see you for part two. Join us as we talk about this and what could we have done differently. What could have been done differently to avoid the tragedy that happened, if anything? And sometimes my testimony is maybe nothing, but thank you and bye for now. 

JA: Absolutely. Thank you all for tuning in. 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 NP resources, visit FHEA.com. Join us again next time as we dissect more medical malpractice cases.