Fatal Family Flaw

Voiceover: Every minute someone’s life takes a terrifying detour not down a dark alley, but into the sterile, bright halls of healing. They walk in, seeking care and find themselves plunged into a nightmare. Most malpractice claims in hospitals are related to surgical errors, whereas most claims for outpatient care, which accounts for more than half of the paid malpractice claims, are related to missed or late diagnosis. 

Now, before you raise a pitchfork at every white coat you see, let’s be clear this isn’t an indictment. It’s a revelation. Because the truth is, any provider, any nurse, any human being capable of brilliance is also capable of a mistake. This is about understanding why and using that knowledge to build a safer future for every patient who walks through those doors. 

Welcome to Scrubs and Subpoenas: Tales from the Witness Stand, a podcast where we’ll peel back the sterile sheets and delve into the real stories of medical malpractice. Each episode a cautionary tale, a blueprint for change. A reminder that even in the darkest corners of human error, there’s a light. The light of knowledge. The light of empathy. The light of a future where healthcare becomes not a gamble, but a guarantee. 

So, join us as we dissect the mistakes, illuminate the flaws, and ultimately learn to heal, not just bodies, but the very system itself. 

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

SM: I’m well, thank you. And you?  

JA: Not bad, not bad. Excited to hear another story. I like to play like a little nurse detective and try to figure out whodunit. 

Where do we go from here? So, I am ready. I’m always really, like, psyched. Be ready to hear these and to learn.  

SM: Oh, okay. Well, this is a rather short story. There’s actually one encounter between the APRN and the patient, and then there’s another physician encounter, 1 or 2 phone calls, and the end of the story. So, it begins with a 39-year-old woman, this 39-year-old woman, presented to an OBGYN practice for a same-day appointment for evaluation of her irregular bleeding. 

So, this was the first time at this practice she had gone to. She had another OBGYN, and apparently it had-she had had, a well-woman exam and a pap 7 months prior to this. And why she didn’t go back to them is unclear. You know, we don’t know why, but we know that she’s here for a same-day appointment. 

So, the nature of the same-day appointment is they’re very focused. You know, most of us that see patients in primary care, you fill up your daily schedule and you leave a few holes in there for those calls. You’re going to get in the morning for patients that are acutely unwell. And then you can bring them right in. 

And these are short complaint-focused visits. And that’s the way it typically goes. So, she somehow wound up at this practice for her same-day appointment for an evaluation of irregular bleeding. So, she comes in and she sees the nurse practitioner. The history of present illness reveals a very precise description of the pattern of normal and skipped cycles, and the irregular bleeding and everything that’s going on between like, well, 7 months ago and now. 

So, we’ve got a good history of present illness about that is very focused on the irregular bleeding, as is the nature of a complaint-focused visit. The patient also requested that this nurse practitioner order thyroid levels for her, because apparently she had a history of thyroid nodules and they were biopsied and they were normal. But the patient wanted thyroid studies and she asked the NP to order them. 

She did admit that she has an endocrinology appointment pending next month. Okay, so on a side note, you know, the NP did order the thyroid studies for her and they turned out to be normal. But as we’re critiquing things here and just not-critiquing is not the right word-as we’re going through just, you know, taking a look at the trajectory of care, a real good takeaway point here is that we don’t order labs unless they contribute to our diagnosis or treatment plan, because if you order a lab and it’s abnormal in some way, then the onus of responsibility is on you to do something about it. 

And, you know, if you’re not-if you don’t do endocrinology and you’re not managing thyroid dysfunction, we really have no business ordering thyroid function tests. Now, if she thought that there might be an endocrine abnormality leading to the bleeding problem, well, then that’s a different story. And she would have a plan based on that. But this was an interesting documentation like that. 

Then the moral of that side note is a lot of NPs are just too nice. We just can’t be that nice if the patient wants it says and then this is what the patient said, ‘Oh, I had these nodules. I’m going to see endocrine next month. But could you just order my thyroid test. I want to see what they are.’ 

The answer is, ‘No, no I can’t do that. No.’ But yeah, that’s not like-we don’t just order stuff because somebody asked. We order things that are necessary to contribute to the diagnosis and treatment. As it happens, that particular thing has nothing to do with anything else that happened. But it could if that kind of thing can blow up in your face. 

So, when people ask you to order a thing, you really don’t want to order it unless there’s a good reason for you to do so. Okay, back to the story here. So now she’s, you know, being seen here because of abnormal bleeding. And she goes on to report that her last GYN exam was 7 months ago and that it was all normal. 

The patient goes on to give a, you know, she fills out our history form, and then the NP is looking over it. She goes on to review her menstrual history, gynecological history, sexual history, her medication, and she’s on a few different things. Review of systems and the family history notes that her sister died of breast cancer. 

And that’s documented in the history. So, then the NP goes on to do a physical examination for this complaint-focused visit, and she documents a detailed examination of the internal and external reproductive anatomy of the genitalia, the history and physical findings that led to this diagnosis, like a very complaint-focused thing. She’s here for irregular bleeding. 

So, there’s a very detailed history of her bleeding patterns and any coincident medical conditions. What medications do you take, what-you know, looking at the history, the physical examination is the pelvic exam, like it’s the external genitalia and the pelvic exam, again, very focused. Complaint-appropriate counseling was documented. The potential causes of irregular bleeding and some diagnostic studies were ordered. 

And that was that. The NP did document that she tried twice in the interview to get more information about the patient’s sister’s breast cancer, and that the patient was-they didn’t want to talk about it. The-now, the note. The note didn’t give all this detail. In her deposition-and the NP said, ‘I absolutely remember I tried on two different occasions to ask her more information about her sister, and she didn’t want to talk about it.’ 

She said she was just there to talk about her bleeding. Okay. The note did say that she assessed the family history and that the patient declined counseling, but that they didn’t go into any anything else about it. So that was the interaction. And the patient-there were some laboratory tests that were done to evaluate for irregular bleeding, some other endocrine, you know, like reproductive endocrinology and stuff. 

And the patient was advised to schedule a follow-up to come in and talk about her laboratory results. Well, 2 weeks later, the patient called the office to ask for her lab results, and she was told that she needed to make an appointment to come in. And she said she didn’t want to. She didn’t want to pay a co-pay to talk about her lab results. 

JA: Oh, geez.  

SM: She was advised she needed another urinalysis. She was told to do that much and otherwise she needed, you know, to make an appointment. She didn’t. She didn’t make an appointment. She came back about 3 weeks later for a different complaint-focused visit with the practice physician. She came in complaining of pelvic pain and back pain, and the physician evaluated her for that and ordered an ultrasound. 

And, you know, again, it was a very complaint-focused visit. I don’t think the physician’s note addressed family history or breasts in any way. It was very focused to her back and pelvic pain. The only other contact was by telephone. When the patient hadn’t had an ultrasound following her visit with the physician, and the physician advised that she’d go through another entire menstrual cycle and then, at a very specific time in the cycle, had her next ultrasound, because that’s when they could best visualize the ovaries and be looking for if there’s an ovarian cyst-that was leading differential. 

JA: Okay.  

SM: So, she was advised her-that she was advised to repeat the ultrasound and then make a follow-up, referral slip was left for her at the front desk. She never picked it up. She never repeated the UA. She never she never did her ultrasound again. The practice reached out to her 2 months later to encourage her to do the ultrasound, and she never did. 

And the next contact was a year and 2 months later, when the patient contacted the practice to advise that she had breast cancer and she felt she was underdiagnosed during her encounter of 14 months previously. So much so, that’s the story. So there was, you know, a plaintiff’s witness looked over things and essentially the allegation against the nurse practitioner was that there were a number of negligent acts and omissions, and that the NP failed to order or prescribe a screening mammogram or other breast health screening test or exam, failed to order a prescribed breast ultrasound CT or MRI, failed to order or prescribe ultrasound guided biopsies of the breast. 

Failed to refer the patient to an oncologist for evaluation. Failed to order or prescribe genetic screening or genetic testing. Failed to perform a clinical breast examination. Failed to conduct any other breast cancer risk assessment. Failed to intervene to protect injury to the patient, and failed to properly supervise staff in the office, like the people that you know were advising her to come back and pick up her thing and stuff like that. 

And then the last one was otherwise acting negligently and carelessly, as more discovery may reveal. When in the world would the NP have done so? You’re going to breast biopsy me when I tell you that my sister has a history of breast cancer, you’re going to do a biopsy of my breast, in that moment. It’s just like order an MRI or anything like it’s really it is just, it just it really is ludicrous. 

Again, it’s just an example of throwing everything out there. Throw out the nurse and hope that you can catch something. So the-now, I’m looking directly at the chart here, not my summary of it. And you know, again, it’s-irregular bleeding is the chief complaint. The history of present illness goes on to enumerate like from for the last 7 months when there was a cycle, when there wasn’t how long this one was that the patient wants the thyroid. 

Done that. The thyroid biopsy was normal, but she’s still going to endocrine that she had a normal pap 7 months ago. She did have a culture positive. Like there’s this for bacterial vaginosis. There is this long thing, and there is a-patient has a sister. Sister dead or sister, you know, dead. Check off. You know, like, it’s like a checklist thing here. 

You know, various family members: sister, dead reason: breast cancer, and then history, breast cancer. So, she clearly discussed the breast cancer. At the end of the visit, she goes, she documents her, you know, irregular bleeding or-I’m looking for exactly how she put it. 

You have a sister? Cause of death, breast cancer. My God, this is long. Know all these click and pick notes are so long now and again that the exam of the genitalia was very detailed. Because that’s why she was there. Right. Okay. Diagnoses: irregular menstruation, unspecified. Because that’s all there is at this point. Because, you know, when you have to assign an ICD-10 code, if you have a diagnosis, you make one. 

And if you don’t have a diagnosis yet, you code the symptom or the various symptoms. And so she had some thought processes about why the patient’s cycles were irregular, but no answers yet. So actually this is really a very appropriate ICD-10 code. Menstruation is irregular. And then a series of tests were ordered prolactin, serum hCG, which is of course a must-do, CBC with differential, FSH. 

These are all suspects when you’re trying to evaluate causes of an irregular bleed. And then in the counseling there’s a counseling section of the note, which is what we would think of for, patient education, you know, the education piece of the visit and everything that was reviewed. And then two attempts to explore the family history of breast cancer patient was nonresponsive. 

So, I mean, I really think any thinking person would realize that if the patient won’t discuss risk factors of breast cancer, that she’s probably not going to have a breast exam today.  

JA: Yeah. 

SM: But it would have been helpful to write that, you know, again, pertinent negatives.  

JA: Yes.  

SM: Would be a good idea. I mean, the patient was 39 and there is no routine recommendation for doing screening mammography on a 39-year-old. 

Now, there is a recommendation to begin breast cancer screening 10 years prior to the age of onset of a first-degree relative. So-but we don’t even know how old her sister was because she wouldn’t talk about her sister.  

JA: Right.  

SM: So, we don’t know when her sister was diagnosed with breast cancer. So to blanket say, ‘Oh, because her sister had breast cancer, she should have done one too, right?’ 

Sister could have been 20 years older than she is. Like, I mean, that’s tough. It really isn’t that unusual. We just don’t know. And then, of course, somebody else would say, ‘Well, Sally, you’re slamming this the way you want to see it.’ Her sister probably was younger. 

They’re just not relevant really, when it comes down to reading the chart there, don’t know. And the other thing that we always have to keep in mind is that when the documentation, it would have been helpful if it was more specific about how we tried to pursue this family history and were rebutted into it.  

JA: Yeah.  

SM: I mean, as I read the note, I can totally visualize what happened here. 

When you read some of the other like some other things that were in the patient’s chart. So the, you know, the NP says, ‘I will see the patient back when diagnostic testing is completed.’ So, then the next thing that you see, I want to read these to you verbatim here. So many blank useless pages in medical records these days. 

Okay, the patient calls asking for the results of her labs. And, you know, that’s when she’s told she needs to make an appointment so that she can come in and talk about her labs. And she says she’s not coming. I’m going to give you the exact word for word. ‘She doesn’t want to pay a co-pay to talk to somebody that doesn’t know what there is,’ something like that-that doesn’t know what they’re talking about. 

I’m going to find it for you tomorrow before I find it, but I want to read you the-anyway, the gist was she was she was not happy with the NP. More likely just not happy with the fact that it was an NP, even though the NP note was really much more detailed, given a complaint-focused visit like the NP elicited the smoking history and the physician said she never smoked. 

You know, just checked off. No.  

JA: Right. Would this have been one of like the cases that like, for instance, it’s like an asthma kind of thing? I’m trying to examine the breast. I’m trying to talk to you about your breast. And like, this is a risk factor and you don’t want to talk about it. You don’t want to let me examine it. 

So, I need to document that this I recognize as a provider is really important for us to talk about. You don’t want to I’m going to document that you don’t want to, but you should because of x-y-z. 

SM: That-it really is helpful to document that, to document how aggressively-it doesn’t have to be all day. You know, you don’t have to. 

Nope. To write like War and Peace. But you do really want to document that. You emphasize this-  

JA: Yeah.  

SM: The patient called with the following message, “Patient states she does not want to come in and pay her co-pay results, which reveal abnormalities and recommends an MRI.”  

She wants results from the doctor. She does not-and this is all capitalized. She does not want “anyone who is not qualified to give results to call her.” 

JA: Oh.  

SM: So there-I mean, listen, the patient has every right to refuse to be seen by anybody. She has every right to that. But you do get a vibe here of an approach to the healthcare system. 

Further, she never did come back to repeat her urine. She never went on to repeat the very precise ultrasound recommendation that was given by the physician. And she didn’t remember that anyone she’s like-she didn’t-she said she didn’t know she had to repeat it. And then when she was shown like, hey, like, see this? No, they actually called you 2 months later and she didn’t remember any of that. 

So, it really does give the impression of someone who knows very much what she wants and doesn’t want, what she doesn’t want, and it’s just really hard to imagine that she would have been amenable to any sort of breast assessment. Even further questioning about her own breast health. I mean, it’s not just a mammogram, you know, it starts with her own history. 

Has she had any history of tenderness, pain, lumps, any discharge, skin changes? Do these things occur like, do they come and go? Do they change with the cycle? She didn’t want to talk about any of that, much less have someone do a breast exam in the office and diagnostic testing. I mean, she wanted her thyroid test, so I am, you know, I’m drawing some conclusions here, and I guess I’m opining a little bit. 

But as a clinician, I’ll bet everybody who’s listening can identify with a patient under these circumstances and the unfortunately, the-it’s unfortunate because there was a settlement here or two.  

JA: Oh was there? 

SM: Unfortunately there could have been better documentation about if there’s a first-degree relative with breast cancer. It just-it could have been more clearly articulated what an effort was made to impress upon the patient her risk and what we would offer her to try to assess for or minimize it. 

JA: Oh, man. And did they bring in excitement thinking about the fact that you said that she had a pap 7 months before seeing this? Was that provider also brought into this?  

SM: No, in fact, that’s who she went back to. That’s who wound up actually-I guess she must have she found a lump like, you know, all these months later she developed a lump. 

And then she went back to that first one, and then they’re the ones that worked it up and found the malignancy.  

JA: Oh, man. So the NP then, in this case was named, not the physician? 

SM: Yeah, he was too. Oh, he was too.  

JA: Oh my gosh.  

SM: Like I said they’ll name everybody, everybody, everybody. And it’s really it’s just about who has the-whose attorney is the better debater. 

JA: Yeah.  

SM: What precedent is in that jurisdiction. And, you know, like sometimes there are clear cut deviations from standard of care, but deposition testimony is sworn testimony and it’s accepted as true. I mean, it’s considered truthful testimony. If somebody testifies to something. And in the deposition, they said, ‘Yeah, I know I didn’t write it all down, but I do remember her.’ because of course, when you when you then get a call or you find out that a patient you saw has a really bad outcome, but you do, you do tend to remember it and you go back through the chart looking thing. 

Did I miss something? So, she remembered the patient and she said she clearly remembered that this patient didn’t want to talk about anything except her irregular bleeding. She wanted to talk about that. And she was, a bit difficult about it. And I totally get how that is. And, you know, we can’t tie somebody down and make them have a breast exam or make them answer your questions. 

And most of us would recognize it. Almost certainly she wouldn’t have been responsive to that. But it-you know what really helps? If it’s  written down that way. Thanks. I mean-sorry for the patient obviously that’s. Yeah, that thing’s a little something as simple as in the note advise patients strongly. We should explore that for a family history breast health, breast issues, patient declines, further history examination etc.. 

You know just a couple of notes. Just a couple of sentences would tell everyone that that that’s what happened.  

JA: Wow. And you know, can I ask a quick clinical question? Is there any correlation between abnormal bleeding and breast cancer? Like, would there have been any reason for someone to have been extra alarmed? This is not just a weird kind of cycle, but there is a connection here. 

SM: Maybe. I’m really not sure. To tell you the truth, I intuitively, intuitively, I would think so. Just because there is a hormonal thing. Yeah, you know, there’s a hormonal relationship going on and the hormonal abnormalities, you know, breast cancer, most of them anyway, were estrogen-fed cancers. And if there’s an abnormality in estrogen production or secretion, that would also produce an abnormality of menstruation. 

But that’s not you know, again, not that’s not my area of expertise, but it is I mean, I know I have the benefit of hindsight.  

JA: Yeah.  

SM: But I can tell you if I ever see anybody. Yeah. You’re thinking it now. Abnormal periods. I mean yeah, we’re totally thinking it now, but I could definitely see that there’s a hormonal articulation. 

Although, I mean, it certainly isn’t the first thing that comes to mind except in the case of a first-degree relative.  

JA: Yeah.  

SM: So just so important. So important. Again, documentation is so important and important to write down. Even the notes when the pertinent negatives to the negatives right now, you don’t have to say you don’t have to say, oh, the head is normal, italic and the square or not. 

The pertinent stuff.  

JA: Yeah, absolutely. Thank you, Dr. Miller for this story. Appreciate you sharing this as always. Such a great opportunity to learn. And thank you all for tuning in and listening. We hope you enjoyed. And if you’d like to listen to more, check us out on FHEA.com. We got lots of Scrub and Subpoenas there or anywhere that you like to listen to your favorite podcasts. 

And until next time, goodbye for now. 

Voiceover: Thank you for listening and learning with Scrubs and Subpoenas: Tales from the Witness Stand, presented by Fitzgerald Health Education Associates. Please rate, review, and subscribe to this podcast, and for more NP resources, visit FHEA.com. Join us again next time as we dissect more medical malpractice cases.