Benevolence’s Bitter Bite

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 health care 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. I’m your host, Jannah Amiel. And joining me is Dr. Sally Miller. Dr. Miller, how are you?  

Sally Miller: I’m very well, thank you. And you?  
 
JA: No bad. Not bad. It’s the weekend. I’m not going to lie, though.  

SM: It’s the weekend? 

JA: I’m coming off the weekend.  

SM: Did I miss a weekend? 

JA: No. You know what? I just came from an eye appointment, and the whole entire time back here I’m going, ‘Please don’t let Sally tell a story about eyes.’ I’m not prepared for any eye stuff at the moment.  

SM: No eye stuff, okay. 

JA: But for those of you that are just joining us for the first time and haven’t listened to any Scrubs and Subpoenas, you know, this is where we come together. Dr. Miller, who not only is expert faculty here at FHEA, but she serves as a medical malpractice witness for actual, real medical malpractice cases. So, this is where we get to come together and talk about these cases that she’s had or that she’s worked on in some capacity and really just kind of dissect it, take it apart from the perspective of how do we learn? 

How do we learn from this? How do we take what we, you know, picked up in these stories and in these cases a lot of times very unfortunate and apply it to our own practice, you know, our own world as healthcare providers so that we are practicing safely and we are practicing based off evidence-based practice, right. 

And this is not like pointing fingers. Everyone is doing a terrible job. Wrong, wrong, wrong. But really that we learn from that. Is there anything you want to add to that, Dr. Miller?  

SM: I don’t think so. I mean, we always emphasize that we’re not here to, you know, to criticize or put down, but just that we could all be in this position and to learn from it and also to be confident when we do things, when we do things the right way. 

I mean, sometimes we do everything right. And there’s an unfortunate patient outcome. And an attorney will connect with the case and try to sue you anyway. You know, not all of these cases are really legitimate. And so, it’s really easy, especially if you’re not experienced in this part of the healthcare world. 

It’s easy to feel uncertain and unsure and second guess yourself and be almost reticent and start apologizing for things that you didn’t do. And you know, you want to be able to learn when something does go wrong and learn from it, but you also want to have the confidence in your work and recognize when you have done the right thing. 

JA: Yeah, I think that’s important too. Not even just to like, scare us into what’s wrong, but to maybe validate that you’re doing the right stuff. And that’s a good thing, too. All right, so you promised, no eye stuff, so I’m ready. I’m ready when you are.  

SM: I promise no eye stuff and maybe even we’re going to look at a case where the employer did need to validate herself and have confidence in herself. 

Right. So. All right, so this is because-this is kind of a long story. Are you ready?  

JA: I’m ready for a long story.  

SM: I really try not to do that. But today I’m going to have to because I just want to give everybody as objective of a foundation as I can for the conclusions that we draw. I do tend to be kind of opinionated, but I try not to let my opinions come into the narrative part of it. 

You know, in the beginning, this is just what happened. So yeah, what happened was there once upon a time, there was a patient, and the patient developed a primary care relationship with a nurse practitioner over a period of 6 years, prior to the events of interest. For 6 years, the NP documented at least 19 office visits with this patient, in addition to 19 office visits over 6 years. 

So, think about for most of us, how many times do we go to our primary care provider in 6 years?  

JA: Not a lot. For like physicals. If I feel junky, maybe if I’m not feeling great.  

SM: Yeah. So, 19 times in 6 years is kind of a long time. You know, that’s a lot of visits. This is a patient who clearly has an established relationship with the NP. 

So, over six years, 19 office visits and in between there were a number of telephone and email messages. You know, the patient had a variety of diagnoses and complaints. Now the patient is exactly my age. So, when this starts getting- 

JA: Which is 21.  

SM: Yes, that’s right, 21 plus 40. That’s the patient. And you know, when she first met the NP, the patient was in her late 40s and then established this relationship really through, you know, a big part of her 50s. 

So, they had this ongoing relationship, and the patient was seen and managed for a variety of things. She was morbidly obese and had some of the attendant conditions that you see with that. Hypertension, she had it on and off. She was seen for a flank pain, leg pain, anxiety. There was a UTI dysuria. And so, the point is that the nurse practitioner was clearly and consistently managing both the primary care, the chronic care and the episodic needs of this patient and doing it well, the documentation actually was consistently strong. 

One of those charts that I learned good things from like it’s, you know, it’s a good idea to remember to do this and always write this down and maybe have a template where you can include stuff and that prompts you-not just to talk to the patient about it, but document it as well. The NP, unlike many NPs, including myself, sometimes this NP consistently maintained documentation of health promotion activities, including mammogram recommendations, colonoscopy recommendation, well woman exam vaccinations, I mean, just to name a few. On these consistent visits, she always attended to this, which I think in part demonstrates a good electronic medical record program that prompts you and reminds you of that.  

But there was also enough narrative, like truly narrative individual documentation, here that you can tell this NP really was paying attention and not just clicking off a checklist. You know, every, every visit. She counseled the patient with respect to weight reduction strategies for a healthier lifestyle. 

Even wrote a letter supporting an insurance company-provided fitness center membership. So, the NP was really proactive in maintaining the care of this patient. For the first 6 years of their relationship. Like I said, it was just it was, well, health promotion, not wealth promotion. I wish I could find somebody for that. It was health promotion and a variety of commonly encountered complaints. 

Well, the events of interest first began at about the 6-year point. So this this was a visit. This was a wellness exam, right? This was a comprehensive wellness exam. The patient offered no specific complaints at the time of this appointment. This was just her annual check-up. But a review of systems was documented and again detailed really more than many providers customarily do. 

And one of the things on the review of systems was that the patient reported she had some bug bites, she had some bug bites on her thigh. And the patient went on to describe and the NP documented that apparently there was like some there are bedbugs or something at the workplace, and people were getting bites and the workplace brought in an exterminator and they sprayed it. 

And, you know, that was the story. So, during the review of systems, when you ask about, you know, skin, rashes, itching, this or that, apparently the bug bites were itching. And then the patient told the NP and she documented all of that and that was it. So, she went through the rest of her primary care visit and the appropriate wellness activities recommended the mammogram, etc. and it was really a benign just checkup visit. 

Almost-well, 3 weeks later, not quite a month later, the patient called to report a collection of complaints she was having, including dysuria, diarrhea, right ear was draining into her throat. She had a perianal rash. There were a series of complaints, but notably there was no mention of the right of the bug bites on the right posterior thigh. 

So, the NP offered some suggestions. You know, recommended a UA, the usual response to those types of things. But what I what is worth noting is that these bug bites didn’t come up in conversation. Now, and so anybody would probably presume that they were no longer an issue. Two weeks later-now, we are 5 weeks after-or I’m sorry, not 2 weeks later, a year and 2 weeks later. 

So, let’s say this wellness exam was at year 0 and the call was year 0 plus 3 weeks. Well, one year and 2 more weeks later the patient returned and now she’s here ostensibly for her wellness exam. But she reported that the right posterior thigh, the one that had bug bites a year and 2 weeks ago.  

JA: Yeah.  

SM: Now had a lump and was hot and itchy. 

So, the NP documented a 5×7 centimeter, which is pretty big in in the world of lesions, a 5×7 centimeter firm, non-tender, irregular, indurated without acute infection, inflammation, or ulceration. And I’m reading you directly from the chart like I said trying to be objective here. Yeah. The patient was referred to dermatology and she was advised to go to dermatology within 2 weeks. 

That was you know, we’ll just say at the end of a month. Well, 6 weeks later, the patient came in for again documented a routine follow-up and reported that she had overslept and missed her dermatology appointment. And she didn’t reschedule it because she thought that this thing was getting better. The NP’s physical exam revealed that the mass was unchanged. 

The patient-she documented in her notes, the patient was strongly advised to see the dermatologist. The NP advised the patient that the leading differential diagnosis was cancer until proven otherwise, and she documented that, the patient expressed that she was considering waiting until after completing. She had physical therapy for something else, and she was afraid of having this thing surgically removed because that was her good leg. 

And she did want to mess up her good leg because her mobility would be affected. And the NP did exactly what she was told, what she should do. She told her, it doesn’t matter. You need to reschedule this. It’s cancer until we rule it out.  

JA: Yeah.  

SM: So, the patient was scheduled for a dermatology visit again, and the next time derm was able to schedule her was 5 weeks later. 

And I know that anybody listening, especially acute care people listening, might think, oh my gosh, you know, 5 weeks later and you think this is cancer. What’s that all about? That’s outpatient. That’s the way it goes. I know, Jannah, we’ve had these conversations before. STAT on an outpatient level is not the same thing as start on an inpatient level. 

If it really needs to be done immediately and emergent, it needs to go to the emergency room. And this is very typical with suspicious lesions that biopsies are frequently scheduled several weeks out. That’s a very normal, you know, I mean derm, knew that this was a suspicious lesion. She was scheduled for 4 or 5 weeks out. 

So, there were documented phone calls. You know, the patient called the NP to say, I have an appointment on this date. And the NP said, well, that’s good. Make sure you get to it this time. This was really a very interactive relationship. So, the patient went to have her evaluation. She went to dermatology. Dermatology told her that they needed to biopsy it and because this was like a healthcare system, where were all the different like specialists had access to electronic medical record apps connected- 

JA: Yeah.  

SM: So, if you go to whomever within the system, they look up your record, they can see X. So, the dermatologist entered in into the patient’s record that she needed to go to for a biopsy. Well, as it happened, the patient already had an appointment with a general surgeon for something entirely different, for something completely unrelated. 

I want to say-I don’t want to say her appendix, although that doesn’t sound right. But anyway, there was some completely unrelated surgical consultation pending. Yeah, it was an appendectomy. So, the patient had the appointment with the surgeon 2 weeks later. So the surgeon sees the patient and she’s evaluating the patient primarily for the abdominal thing, but she evaluates the leg and sees this lesion, and she performs a punch biopsy. 

JA: Oh.  

SM: Pathology pending. So, just to bring everybody up to speed here. You know, we’re talking now about a year and a half after the original routine physical where there was a bug bite. Itchy. And then, a year later, the patient comes back and it’s a 5×7 centimeter mass. And the MP strongly advises a dermatology consult, and the patient sleeps through it. 

And then when she comes back 6 weeks later, the NP says, you need to have that. This is cancer until we prove otherwise. And the patient says, why don’t want to do it now? Because I have to go to the surgeon and I don’t mess up my mobility. And the MP said, no, you need to go right now because this is cancer until we rule otherwise. 

So, the patient then goes to derm. Derm says, yep, you need a biopsy. And then the surgeon says, well, she’s here anyway 2 weeks later, so I’ll biopsy it while she’s here. So the surgeon did a punch biopsy and which I guess we can, you know, look through this all at the end. But just as a point of interest, a 5×7 centimeter induration that is highly suspicious for cancer, a punch biopsy really isn’t the way to biopsy that. 

I mean, for anybody who doesn’t know, a punch biopsy is where you typically-you’d like-the cookie cutter thing, they’re these little like little cookie cutters. They come in two, three, four or five, six millimeter tools or little round tools, just like a, just like a cookie cutter. And you push it into the skin while, you know, at first you push it in the skin and take out a little sample, and you usually do it at the edge of whatever, your biopsy thing, so that you get some normal tissue and some abnormal tissue. 

And then pathology can look at the cell types. It’s very commonly used for benign skin things. Or if there’s a small thing that you can excise in its entirety in the punch, like maybe a 3 millimeter lesion that the patient wants off for cosmetic purposes, you could take a 6 millimeter punch biopsy, take out the whole thing and put a stitch in it. 

But you don’t-I mean, you don’t-I mean, I’m not a dermatologist or a surgeon, and I don’t want to overstep my area of expertise here, but I’ve never heard of a punch biopsy as a small section of a presumed cancer. And I asked the attorney in the end, like, why this? Why was that done? And there was never a good answer for that. 

But this is a point of interest. If you think somebody has a 7 centimeter malignant tumor in their leg, a punch biopsy really is not typically what is- 

JA: Is this more like fine needle aspirations, more appropriate if you needed to like either-a fine needle or even excision or biopsy where you take out the whole thing? 

SM: I mean, I’m not being facetious when I say this isn’t my specialty. I’m not sure. But I do know that a punch biopsy is typically not for that. It’s for benign skin conditions or a very small lesion that you can remove in its entirety. But the surgeon did it. And it was sent for pathology. 

And the pathology report said there was no atypia or malignancy. That was a report. In fact, the report from pathology, the quote here is “certainly there is nothing here which is malignancy.”  

JA: Oh so confident.  

SM: That’s good. We were a year and a half out. So certainly there is nothing there which is malignancy. So the patient you know was seen again by the general surgeon for the follow up on her belly thing. 

Her punch biopsy site was completely healed. She was advised that this was an interstitial dermatitis, some sort of inflammation for we don’t know why. And the general surgeon said we’re going to hand it back to dermatology and let them manage this lesion, which is of course still there. So two weeks later the patient informed the primary care and have the good news. 

She’s like, good news. The skin doctor told her that it wasn’t cancer and it didn’t need to be removed. So the patient was happy about that. The report-the patient reportedly had some dental inflammation and she shouldn’t be like, why? Why am I getting leg inflammation and dental inflammation? What’s going on? And then she said, oh, I don’t know. 

Then she ordered some inflammatory studies. She ordered a separate sed rate and serum ANA which the patient never pursued. The patient never went to the lab to get that done. So okay, put that to the side. Two months after that, the patient was still treating at the dermatologist for the management of this 5×7 centimeter thing that had biopsied as benign. 

And it really wasn’t changing in any way. So that was two weeks. Two months later, the patient is still seeing dermatology. Well, another ten days go by, the patient goes back to the primary care NP and the primary care in documents that this skin thing had been seen by surgery, it had been biopsied. It was diagnosed as interstitial dermatitis. 

The patient was seeing dermatology with no improvement. The NP reported that the lesion was enlarging, and she now measured the duration at 7×10 centimeters.  

JA: Oh wow.  

SM: So the NP told the patient, go back to derm. Tell them what’s happening. Tell them this is getting bigger. This is getting bigger. And the NP said I will contact them as well. 

And the next day she did. The next day, the NP wrote a letter to the dermatologist expressing her concern, acknowledging that the condition fell outside of the scope of internal medicine, but expressing her concern and asking for a future plan of care, which is again, I mean, really, that’s great. That’s an awesome thing to do. I mean, there is one school of thought that would say, hey, shouldn’t a dermatologist know what they’re doing? 

You know, it’s totally reasonable for a primary care person to expect that the specialist to whom you have referred knows their specialty better than you do, and that they’re doing the right thing. But when we’ve talked about this before, too, when something continues to go wrong, you know, when it’s not getting any better or you’re not comfortable with it, it is very appropriate to reach out and question many NPs. 

Wouldn’t this NP did, and that’s awesome that she did that and she did it very well. You know, I read the letter was like, you know, this is clearly a dermatology specialty. And outside of our scope, however, you know, I note that the lesion is increasing in size. And so she wrote a nice letter and she asked for a plan of care. 

So the day after that, there’s a note in the primary care chart that the patient called the NP to say thank you. You know, thank you. Thank you for advocating on my behalf. Well, three weeks later, we’re now pushing two years since the original bug bite. Three weeks later, the patient calls the NP to advise her that a new drug has been ordered and a follow up appointment is scheduled with dermatology. 

Two weeks out. So the NP returns the call, says, that’s great. No, I’m glad to hear it and keep me informed. A month later, the patient calls the primary care NP regarding other medication refills unrelated to the leg and mentions, incidentally, that her leg was feeling numb-ish and there was a spearing sharp pain. And the NP called her back that same day. 

And, you know, to get a more detailed symptom assessment. And so the patient came into the office. The patient came into the office six days later, a patient was seen by the primary care NP for a follow up of this leg thing. That is-now it is two months of a story. The patient reported that she was taking her medications, everything ordered by dermatology. 

She was still struggling and she would like to know the next steps. Now, again, actually, the dermatologist should be answering that question.  

JA: Yeah, yeah. She prescribed the med and was doing the care.  

SM: Yeah. But, but she didn’t. She’s in the NP’s office and the NP, it appears that the NP is the one she feels like will answer her questions and advocate for her. 

Now, that’s a subjective judgment call on my end, but that’s the way it appears. So the NP does a physical exam. She takes a picture of this lesion. She does an objective description, you know, not looks bigger but does all the measurements and documents it and again orders another dermatology referral emphasizing worsening of the condition. And please advise of the next treatment steps. 

Ten days later, the patient calls the NP to advise that she saw Derm again the day before, and now he was going to send her to another dermatologist at a tertiary care, you know, like, a dermatology specialist, you know, the kind that dermatologists refer to. So the patient is going there and she has an appointment next month. 

Okay. In the interim, the patient went back to the surgeon for, like, something totally unrelated. And the surgeon notes that the posterior leg lesion is now a very friable mess where she had that firm induration before a skin biopsy was performed again in the office that day. The surgeon noted that it looks suspicious for a malignancy. 

Now, this is before she even gets to that other derm consult like this is all in that intervening month. So the patient tells the NP, all in this same timeframe, that the general surgeon took a sample and that the general surgeon didn’t really like what she saw. She-the patient had an appointment with wound care. 

That was the thing that was pending for next month. She canceled that. The surgeon did-and the surgeon advised her to go to plastic surgery for this thing that is now very friable and problematic.  

JA: I’m getting whiplash from the referral.  

SM: I know right. And the center core is the NP. Don’t worry, listeners, we’ll put this all together again at the end. 

Now in like in, you know, again in this month’s timeframe, the NP now calls the surgeon and is asking like, hey, is it time to image the leg? Like, what else can we be doing for this leg? And the surgeon said, I don’t think so. You know, I saw at the biopsy, let’s don’t do any imaging until after the patient is seen by plastic surgery. 

So the patient and the NP and the general surgeon all decided that this appointment with the plastic surgeon was pending, and we would just wait and see what they have to say. Okay. Except that two days later, the patient called the primary care office. She wanted to be seen same day. She was like the leg now had like the thing was opening and it was draining. 

Blood and clots is what was in the chart. And the NP wasn’t there, the NP wasn’t there, but the patient came as a walk-in and came in, saw somebody else. The surgical group was unable to see the patient that day, like she just walked into the primary care office. And they really didn’t do anything except to tell her, you know, hang in there until she had her appointment with plastic surgery.  

So the next day, the NP comes back to work. She sees the note. She sees what has gone on. She now reviews the case with both of the internist with whom she works, who would be her collaborating physicians. And, the patient now has this plastic surgery appointment pending in four days, and she has an appointment at the University Medical Center two weeks after that. 

JA: So they’re just all going to wait?  

SM: Well, the patient goes to plastic surgery. The plastic surgeon looked at it and said, this is out of my league. This is cancer. We need to go have cancer care. So that plastic surgery appointment recommended by the general surgeon that everybody was waiting for was basically a big bust. So from this date for the next seven days, there were six telephone interactions between the patient and the primary care provider trying to navigate immediate diagnostic study and appropriate evaluation of this leg in the patient, like immediately had she had, imaging done, she had a CAT scan. 

It was nonspecific. They suggested an MRI. The patient finally wound up at her surgical appointment. This is all happening within a two week-I’m even-I’m getting whiplash from this, but all within like a two week period. She had the CAT scan. They said a nonspecific-have an MRI. Then the patient had her surgical appointment. So like a real surgical biopsy. 

Needless to say that the surgical biopsy was for spindle cell carcinoma, spindle cell sarcoma, particular type of carcinoma. So now we are two years and two months from the original bug bite phenomenon. And then keep in mind for the next full year nothing patient ever came in. Patient never reported it. It was a year later when it became a 5×7 mass. 

And even though I don’t expect anybody listening to remember everything I just said about every day, and this was two weeks later and that was two weeks later, what I would ask you to keep in mind is from the time the patient came back a year later with a 5×7 centimeter induration, the primary care NP told her go to Derm right away and the patient didn’t. 

And when she came back in six weeks, the NP said go to derm, this is cancer. Until we rule it out. And she went to derm and dermatologist said, okay, we’re going to biopsy it. And then the surgeon got involved and did a certain kind of biopsy and then that biopsy was not concerning. So even though the thing was getting bigger, the surgeon and dermatology weren’t really worried about it because it didn’t biopsy for cancer. 

Remember, the pathology said there are certainly no cancer here, right? The patient continued to see dermatology for a few months. Who was prescribing something. But when the NP saw it again it continued to get bigger. So it was the NP who said, excuse me, the NP said, let’s send you back to Derm. I’m going to write a letter. 

We want to see what’s going on. And the NP said, I know it’s out of my scope, but it’s getting worse. What’s the plan of care and that prompted the addition from Derm of a new med and still nothing changed. Then the patient wanders back into the surgeon’s office for her abdominal thing, and the surgeon says, oh, this looks pretty bad, but send you to plastic surgery. 

So time goes by and the plastic surgeon says this is out of my league. And that’s when she got to the right, you know, a surgical, a different surgical consult that figured out what was going on. But every step of the way, the one person who stayed involved consistent, recognizing the deterioration, recognizing the concern, and referring her appropriately was the NP. 

I mean, you know, I’m not a surgeon and I don’t know what the surgeon was thinking, but I do wonder about the punch biopsy in the beginning and referring it to plastic surgery.  

JA: Yeah.  

SM: You know, like the dermatologist. I’m not a dermatologist, and I don’t know what he was thinking, but, you know, a biopsy can say one thing, or any study can say one thing. 

But if your clinical exam is different, you have to go further. We’ve talked about all these things too, but really the only one who was really on top of this and being proactive about getting her the next steps of care was this NP. And actually the patient acknowledged that the patient acknowledged it on more than one occasion. There’s at one point she said, you’re the only one who has my back. 

Thank you so much. Well, of course, when she found out she had cancer, the patient was upset. She wanted to know why it wasn’t figured out much earlier, and which is a good question. But from that point on, from the time she was diagnosed for the next two years, she continued to get primary care from the primary care nurse practitioner. 

And throughout that two year period, the NP managed the rest of her primary care needs and contributed to the cancer care, you know, sequelae and consequences. By the time that this was actually treated, the patient had resulted in sepsis from her treatment. She had anemia and all the appropriate specialties were involved. But the NP continued to be like, what- 

Really what primary care is supposed to be, you know, the center of the wheel where they coordinate the spokes. And she continued to do that for two more years, and there were numerous office visits, documented chart reviews, email, communications, telephone, telephone communications. And then they stopped and they stopped when an attorney got involved, of course. So an attorney took this plaintiff’s case, which I mean, listen, I think  she has a case there of some sort, just not against the NP. 

I mean, I really-as you look through everything this NP did, it was really right on the money she advocated when she needed to. She also put her foot down when she was supposed to and said, I can’t support you not going to Derm, you have to go to Derm. I think anybody listening and I’m just reading you from the chart, I’m not giving you my interpretation. 

I’m reading to you from the chart what happened. So the patient got an attorney, and the attorney got an expert to review the chart and criticize the NP’s care. And here’s what the NP expert said. She said, number one, it is standard of practice for an NP to advocate for their patients. This NP did not advocate for her patient because-and that initial at that initial note where she said, we have to see you in two weeks, that that wasn’t enough. 

The plaintiff’s NP said that the NP at that time should have picked up the phone and called the dermatologist and spoken to the dermatologist herself, and confirmed the appointment within a two week time frame. And then when the patient didn’t go to her dermatology appointment, remember when she slept through it?  

JA: Yeah. 

SM: You know, when she came back and said, oh, I slept through it. 

Instead of recommending that the patient reschedule her own appointment, the NP should have advocated for the patient by calling and speaking to the dermatologist herself. So I would ask everybody listening to decide if they think that this NP deviated from standard of care by not advocating for her patient, should she have picked up the phone and scheduled the dermatology appointment way back in the very beginning, when it first was a 5×7 indurated mass? 

And I would suggest not. I can’t remember ever doing that. There are times when somebody has come into my office and it’s clearly very urgent. You know, I’ve had patients come in like with a collapsed lung and the oncologist said, oh, it’s just fine. Just go home and take a nap. And then, you know, I do an X-ray and half the lung is collapsed. 

JA: Yes.  

SM: Then I would pick up the phone and call. But you don’t call. The ER is what I did, right. But for something like this, I mean really, really the patient has alarm, a big lump, admittedly a big lump. So this is an adult patient who has-who is competent and has been very proactive in her care. 

Remember, she’s made 19 visits to this primary care provider in six months. She doesn’t hesitate to call and she has a problem. She is certainly capable of picking up the phone and calling and making an appointment when she needs to. And she’s also capable of understanding the communicated urgency of making that appointment, and to suggest that the NP should have picked up the phone and called. 

It’s just not something we do, you know? Yeah, hindsight is 20/20. Wouldn’t it have been awesome? But hindsight isn’t what she’s functioning with? So think about that one. And obviously you can see hired me for this one. But it just so obvious. Like I, I was really angry about this. I was really angry that she was even being pulled in. 

But it’s not you know, when a when an attorney gets involved, the patient’s preferences really don’t have much to do with it anymore. Most patients will just let the attorney take over, and the decision of who to sue and not to sue isn’t always centered around who do we really think did something wrong? It really centers around what the limits of their malpractice insurance are, and what have awards been like and comparable awards in the jurisdiction? 

And is there some reason that somebody else in the case can’t be sued like there’s some there are some states where if you’re an employee of the state, like a state university system. Yeah, sue University Medical Center, if the physician is actually an employee of the state, they can’t be sued for that. Or there’s limits or all kinds of weird stuff. 

So who gets sued? Is it really just about who did something wrong and who didn’t? It’s about where can we get the most money out of this? And clearly, in this case, the NP was seen as, you know, as a deep pocket, for insurance. I mean, I can’t think of any other reason to drag her into this. 

I can’t think of any reason that woman with a conscience would do it. Then the NP opined that she didn’t document correctly that the documentation of bug bites back there in the review of systems in that very first initial encounter when she was there for a wellness exam and then going through her review of systems, the patient said, oh, I had these bug bites from work. 

And the plaintiff’s witnesses said that the documentation should have included a diagnosis like a real diagnosis, like spider bite, so that there should have been, you know, this exhaustive evaluation of the patient’s review of systems, report of spider bite. Now, again, anybody listening, if you’re seeing a patient and you go through a review of systems and they say, oh yeah, sometimes I probably get a little constipated. 

Oh I got these bug bites at work, you know, but they sprayed. How exhaustive of an exam do you really do of that? I mean, review of systems is a general review to pull out things that need to be explored. And if somebody told me they had a bug bite and they got it at work, there was bug bites in the chair, and then they sprayed, I don’t think it’s reasonable to expect that I am not going to direct the majority of my energy on that visit to that bug bite. 

JA: No.  

SM: So that was one of the assertions. Not that it would have made any difference in the scheme of things, but it’s just not consistent with any standard of care that when a patient incidentally mentions on a review of systems, oh, we got bug bites from work, but the area was sprayed that there would be this formal exploration of a bug bite diagnosis. 

JA: Sally, I’m actually shocked that I was waiting for you to say you were not called for the NP. You were called for something completely different because there is, there is no way that I honestly, I this is the first story that I’m like that there is no way that the end this you were there for me. 

SM: There’s no way there is-and I am not editorializing here like I am not slanting this in favor. You know, I I’m really not. I mean, this is I’m reading you stuff right from the chart. That’s why I keep throwing out all these dates. Yeah, this happened. And the NP did this, and the MP did this, and the patient came back and the NP did that. 

Like, if you look at the chart, that’s exactly what’s happening. It’s like NP, Derm, NP, surgeon, NP, back to Derm. You know, thenother council you know and but the NP is the consistent one that is driving this and making sure and making sure that it’s explored. And, I just I mean, this is the kind of thing that makes good people want to leave patient care. 

JA: Yeah. No freaking kidding. It really it really is. That is why, I mean, honestly, what you shared is one really good documentation when we talk about advocacy all the time. But we’ve never heard a story about an NP like going out of his or her way to communicate in this way to like, write a letter, you know, like this type of stuff. 

So to say that this was not-the NP wasn’t advocating is pretty frickin annoying.  

SM: I got it, I got it, and this is why I didn’t like-I remember she wrote the letter to the insurance company so the patient could get a fitness center, you know, paid for. The plaintiff’s NP also said that she didn’t refer in a timely manner because that initial 5×7 centimeter mass, like at that first visit, a year after the bug bites, the first volume of the message where the thing is 5×7 centimeters, that this should prompt an urgent referral to general surgery for a cheap tissue, deep tissue biopsy and ordering a radiographic imaging.  

You know, again, you know, like seriously, in real life you don’t refer somebody and then tell them what to do. And right. And you don’t look at a 5×7 centimeter mass and say, oh, you must go right to general surgery and surgery, do a deep tissue biopsy and order imaging like that. It’s just not it’s just not appropriate. 

It’s not the way it goes. And man, talk about a stretch. I mean, if you have a good case, you don’t have to stretch for all this kind of stuff. And then oh, there was some, some other goofy thing, see if I can find it. Anyway, like every assertion against this NP was just absolutely ridiculous. And even like the end, the patient actually did like the thank, you know, she called the patient to thank her for getting her into, you know, getting her in and for advocating. 

And that was documented in the NP for like two years post after like, didn’t stop, didn’t stop seeing her until after, you know, after an attorney was involved and clearly, advised her not to. And then the NP also said that the that the plaintiff’s attorney, the plaintiff’s witness, said the NP was negligent, that she did not explain the possible seriousness of the mass. 

Well, I don’t know what else you can say except this is cancer until proven otherwise. Cancer until you tell me it’s not. What do you mean it’s more serious than that. So this went on like this. This case went on. These events happened years ago. Like they-and then Covid, then Covid happened and everything slowed down in the system. 

But these events happened several years ago and right up until the very last minute. This was scheduled to go to trial, in September. And we were getting ready right up until the end. I kept saying, I can’t believe they’re actually going to involve her in this. I can’t believe she hasn’t been dismissed. And the attorney was great. 

She was a great advocate for the NP. And she said, I can’t believe they are either. But we’re not you know, we’re not settling. We’re not giving it up. You know, we’re going to go. And literally at the 11th hour, the NP, she was dropped from the case. It wasn’t settled. There was no settlement and was finally dropped from the case at the last minute. 

And I mean, I don’t know why. I don’t know if it was a-if they were just hoping they’d offer some settlement and not actually have to go to trial with it or not. And then finally, at the 11th hour, you know, realize there was nothing to get. But at the very last minute, like, you know, the attorney and I had already had our first meeting about this is how trial will be and this is how testimony goes and stuff like that. 

And, you know, we were done and I had made reservations at the hotel to try-and literally at the 11th hour, she called to say that the NP had been dropped and that’s a big difference. That’s not a settlement. That’s not-that doesn’t-that’s not reported to the practitioner databank. There is no, you know, no admission of anything there. 

The NP was dropped. And that’s the way it should have been a long time ago. So I don’t know what the motivation was for that. Sometimes there’s a negotiation like if you drop this one, then we can go after that one or we get more money from that one or it, it really seems like they just kept going to the last minute hoping there would be a settlement offer of some sort. 

And when there wasn’t, they realized that there was just nothing to take to trial.  

JA: Holy moly. So like in a case like this, does it, does it continue on? But just without the NP and whoever else may have been named is that.  

SM: Yeah. So the MP was dropped. So her part of it was done. And I mean, listen, I, you know, I don’t have to be very careful here because I’m not a surgeon and I’m not a dermatologist. 

I have no experience or authority to offer an opinion on standard of care there. But it just it did read a little oddly.  

JA: Yeah.  

SM: You know, the things we talked about with the biopsy and then I dermatology not, you know, not really documenting or catching that had gotten worse. And I’ve read all those notes because they were all in the big system. 

So I guess it’s always possible. There’s other things that that I didn’t know, or maybe not everything was forwarded to me that wasn’t relevant to me. But no matter, you know, the NP in this case, she was just so on it, like I want to be like that when I grow up, right? She was awesome.  

JA: That’s fantastic. Wow. 

SM: And we she knew it too. I mean, she knew I never met her, but, you know, I asked a lawyer a lot of questions. Like, what does she say about this? What does she think about this? And I got the distinct impression that the NP, she knew she had done her best and she knew she had provided good care. 

And I didn’t get the sense that she was arrogant about it at all. I got the sense she was just as surprised as everybody else was that they even pushed it this far. Yeah. Like, how am I in this? Yeah. I mean, it really is gratifying to see that, you know, sometimes it I mean, many times it really does go the way it should. 

It’s not like just every insurance company gives them money for a settlement to make it go away. There are times when clearly it’s good care and there’s no deviation that they will advocate for you till the end.  

JA: Yeah. No. This is I love this. I love and hate this because one that she was dragged into it because it seems like what the heck, but I do I love that you shared a story that really validates like you’re doing all the things right. 

Not even right. Better than right. And sometimes these things can happen. Which, you know, I have a question for you in this way. I’m kind of thinking, is this a jerky thing to do? Or like, could you do this as a provider if you felt like you were, you were, you know, sending your patient to dermatology, referring them out to this dermatologist, and things aren’t happening. 

Right? They’re coming back. They’re not really doing their thing. You’re having to write a letter like you made it a point that you’re like, I should write a letter to this dermatologist at some point. Do you say, you know what, I’m going to talk to a different dermatologist, because I don’t think I don’t think that you’re doing the right thing here. 

Like, is that a dicey kind of thing to do? Provider to provider?  

SM: Well, it’s like, I mean, you certainly can do it. Of course there’s the political business side ticking somebody off. But I think the real question is, what’s accessible in the system, like if the insurance requires that you go to this practice and this practice has a bunch of dermatologists in it, they might not approve outside of the practice. 

So then the best you can do is another dermatologist within the practice, which some of them just won’t do.  

JA: Yeah.  

SM: So there’s that piece of it. Like does she have access? But yeah. I mean yeah. Politically, yes. It could be if you’re trying to establish relationships and you have to work with these people, which, you know, an idealist would say, none of that should matter. 

None of that should matter. And ideally it shouldn’t. But reality isn’t ideally. And if you have lots of patients potentially going there, and you need to be able to advocate for all of those patients, it’s not always as simple as just being that, you know, you can alienate people and then they don’t tend to work with you as well. 

And that’s unfortunately just the nature of the beast. So but yeah, you know, if you think something is really I have been in that position where something clearly is wrong and the specialist just isn’t getting it. I’ve had to push for something like that, but there’s definitely a potential, you know, a potential consequence. So you have to be aware of. 

JA: Yeah. And that’s the reality. Wow. Dr. Miller, thank you so much for this story. This was this was great. And I’m really happy we I don’t think we ever see this at the end I’m not like really happy. Then you didn’t get up. But seriously I’m really happy to hear this particular outcome. Not from the patient’s perspective. 

I think that that’s terrible. And you know, that’s sad to hear for it is but the NP certainly like I think is a really good model of how we all would like to practice for patients. So that’s fantastic and how important the good documentation is later on when it matters.  

SM: Yes. Absolutely. Absolutely.  

JA: Well, I appreciate your time, Dr. Miller. 

Thank you for that. Thank you for those who tuned in and listen, we hope you enjoyed this episode. And if you’d like to hear more, check out our other podcast we have on FHEA.com and our additional Scrubs and Subpoenas. Catch up with us and we’ll see you next time. Until then, goodbye for now. 

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