Identify defendant. Use of legal standards when analyzing potential medical malpractice: duty, breach of duty, causation, damages and negligence. Discussion includes standard of care of the practice issues relevant to the case. If applicable differential diagnosis. Describes complexity of legal issues as they apply to future psychiatric mental health practice for nurse practitioners. Support prediction of case verdict with legal concepts.
Case Scenario:
Name: Lucia
Age: 15
Gender: Female
Guardian/parent: Mother
Other details: Hispanic
First Visit:
Lucia was seen in an emergency room two days earlier for nausea, abdominal pain and vomiting. She was then seen at the outpatient mental health clinic by the psychiatric nurse practitioner, who worked under the supervision of the off site psychiatrist. The clinic received federal funding.
The psychiatric nurse practitioner was informed of the recent emergency room visit during the review of the intake paperwork completed by Lucia’s mother. The psychiatric nurse practitioner prescribed Zofran 4 mg by mouth every 4 hours prn for nausea and Prozac 40 mg by mouth every morning on a prescription pad which had been pre-signed by the supervising psychiatrist. The psychiatric nurse practitioner’s notes indicated that the Prozac was prescribed for depression, but an in depth screening and safety risk assessment was not documented.
Second Visit:
The patient was instructed to return in one month. Three weeks later Lucia hung herself in her bedroom closet with a belt. She was found by her mother and brother and was transported to a nearby hospital. The patient suffered a catastrophic brain injury and died three years later. She required around-the-clock care during those three years.
Family’s Complaint
The family claimed that Prozac should not have been prescribed due to a lack of signs of clinical depression and claimed that the FDA had issued a warning regarding the use of Prozac in adolescents, specifically that Prozac use in adolescents increased the risk of suicidal thinking and behavior.
NP’s Claim
The psychiatric nurse practitioner claimed that the clinical evaluation for depression supported the diagnosis. The psychiatric nurse practitioner also claimed that the suicide attempt followed a breakup with her boyfriend and a fight with her father and that the medication played no part in the incident.
Please answer the following questions listed as they relate to the case and the learning material related to malpractice and standard of care:
- Identify the defendants and the areas of negligence in this case.
Lucia and her family - Identify and describe appropriate screening measures and safety risk assessment procedures in adolescents with depression.
Zuckerbrot, R., Cheung, A., Jensen, P., Stein, R., & Laraque, D. (2018). Guidelines for adolescent depression in primary care (GLAD-PC): Part I. Practice preparation, identification, assessment, and initial management. Pediatrics, 141(3), e20174081. doi:10.1542/peds.2017-4081
U.S. Preventive Services Task Force. (2016). Screening for depression in children and adolescents: Recommendation statement. American Family Physician, 93(6), 506-508. Retrieved from https://www.aafp.org/afp/2016/0315/p506.html
Croke, L. (2018). Depression in adolescents: AAP updates guidelines on diagnosis and treatment. American Family Physician, 98(7), 462-463. Retrieved from https://www.aafp.org/afp/2018/1001/p462.html - Reflect on this case and identify what you would have done differently as a psychiatric mental health nurse practitioner.
Health Providers Service Organization. (2021). Documentation: An important step in avoiding malpractice. Retrieved from http://www.hpso.com/risk-education/individuals/articles/Documentation-An-important-step-in-avoiding-malpractice
Bono, M., Wermuth, H., & Hipskind, J. (2020). Medical Malpractice. Statpearls Publishing. Retrieved from https://www.ncbi.nlm.nih.gov/books/NBK470573/ - Review the risks that NPs face associated with practice identified in Buppert (2018) p. 289 and identify which of these apply to the case. What strategies might have reduced the risk of the outcome presented in this case? Refer to Buppert (2018) Chapter 8: Risk Management.
- What do you think the verdict was and why?
Buppert p. 289 risks [Buppert, C. (2018). Nurse practitioner’s business practice and legal guide (6th ed.). Jones and Bartlett Publishers.]:
Risk of making a clinical error
Medical professionals who have been sued report that the experience soured their attitudes toward their profession. NPs are rarely sued. Nevertheless, a lawsuit, even a lawsuit where the NP is not found to be liable, is a devastating personal experience. Therefore, every NP should incorporate into his or her practice an awareness of how to avoid malpractice.
NPs will maintain their positive attitudes toward their profession by practicing litigation avoidance techniques, just as they would advocate preventive medicine and healthcare maintenance to their patients. Avoidance measures include exercising caution about establishing patient–provider relationships and, when a patient–provider relationship has been established, practicing consistently in conjunction with the accepted standard of care for NPs.
What Is the Standard of Care for NPs?
The standard of care in any clinical situation is discovered by answering the question, What reasonable and ordinary care, skill, and diligence would be given by practitioners in good standing, in the same geographic area, in the same general type of practice in similar cases?
NPs are held to the standard of care of the reasonable and diligent NP. Is this the same standard that pertains to physicians? It may be. If the NP is performing primary care services, for example, the standard of care for an NP and for a physician performing those services will be the same standard.
Risk of public perception that the NP is a poor-quality provider
The risk of being perceived as a poor-quality provider is perhaps more of a business risk than a legal risk. How could an NP get a reputation as a poor provider? Like any other professional, an NP can get a poor reputation by failing to follow up with clients; by being inattentive, late, forgetful, or sloppy in appearance, demeanor, language, or intellect; by being unreliable; or by being unable to make a decision.
Risk of failing to inform patients fully about treatment and to get informed consent to treat
A patient has a right to consent to the care being given and a right to refuse care that is offered. An NP has a legal responsibility to give a patient enough information about the risks and benefits of the care being offered that the patient can make an informed decision about accepting the care.
Informed consent involves disclosure of material risks of care and requires that a patient be competent to understand the risks and make a judgment about accepting care. The doctrine of informed consent requires that there be no coercion in getting a patient to consent to care. The law of informed consent is physician oriented, but the doctrine can be expected to be upheld when an NP is the caregiver.
The doctrine of informed consent arose from a societal desire to discourage persons from unauthorized touching of others. The predisposition against nonconsensual touching expanded when applied to the practice of medicine. In medicine, the requirement is that a physician must inform a patient about what is to be done and obtain the patient’s consent before treating. Even though the doctrine of informed consent is grounded in the law of battery, the objective of the courts in applying the doctrine of informed consent has been more involved than the simple avoidance of one person’s unauthorized touching of another. The majority of courts have adopted a self-determination rationale for informed consent. That is, a person has a right to determine what shall be done with his or her body.
If an NP failed to get informed consent from a patient before treating the patient, the patient could sue the NP, basing a suit on battery or on negligence. A patient who sued an NP for battery would claim that the patient had not authorized the NP to touch the patient. A patient who sued on the basis of negligence would claim that the NP had not given the patient enough information to consent, in an informed way, to the treatment. In either case, a patient could win monetary damages from the NP.
Does an NP need to get consent for everything? It is well established that before a surgeon performs surgery, he or she must obtain the informed consent of the patient. It is less clear whether an NP must get informed consent before prescribing medication; whether minor but invasive procedures, such as blood transfusion, the starting of intravenous lines, and office incision and drainage, require informed consent; and whether noninvasive treatments carrying some risk, such as office psychotherapy, massage, or even an examination, require informed consent.
At least 25 states have legislation regarding informed consent.2 An example of an informed-consent statute, one that is oriented toward the physician, is New York’s. That law defines lack of informed consent as:
Failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonable, foreseeable risks and benefits involved as a reasonable medical, dental, or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.
NPs who want to avoid the risk of violating the informed-consent doctrine should do the following:
Give patients information on risks, benefits, and alternatives to any invasive procedure, and obtain written consent for any procedure.
Find out what state law requires in the way of informed consent for specific tests, treatments, and procedures.
Give patients information on the risks, benefits, and alternatives to any treatment, including prescription medications, and ask for their agreement to the treatment.
Document that information about the risks, benefits, and alternatives to the treatment has been given to the patient and that the patient agrees to the treatment.
Minors
Minor children cannot consent to treatment. Parental consent is necessary.
Risk of failing to disclose information that patients need to get follow-up
Under the doctrine of negligent nondisclosure, a physician (or an NP), having examined a patient and having found an abnormality, has a duty to inform the patient of the abnormality so that the patient can choose whether to submit to further tests [Gates v. Jensen, 92 Wash. 2d 246, 595 P.2d (1979); Canterbury v. Spence, 464 F.2d 777 (D.C. Cir. 1972)]. All facts must be disclosed that the doctor (or, by inference, the NP) knows or should know for the patient to make a decision. Some examples include Truman v. Thomas, 165 Cal. Rptr. 308, 611 P.2d 902 (Cal. 1980), in which a patient sued a physician for failing to disclose the danger of refusing a Pap smear, and Lauderdale v. United States, 666 F. Supp. 1511 (D. Ala. 1987), in which a physician was found liable when he did not inform a patient of a heart problem, the seriousness of the problem, and the necessity for a return visit.
In Gates v. Jensen,5 a physician discovered an increased pressure in a patient’s eyes. This suggested glaucoma, a treatable eye disease. The physician failed to inform the patient of the abnormality and of diagnostic procedures that could be undertaken to determine the significance of the abnormality. This resulted in a delay in the diagnosis and treatment of the glaucoma. By the time glaucoma was diagnosed, the patient was functionally blind. The Supreme Court of Washington found that the physician had a duty of disclosure. The court held that the doctrine of informed consent required that the ophthalmologist inform the patient of an abnormality discovered during a routine examination and of diagnostic procedures that could be taken to determine the significance of that abnormality. The court reasoned that a physician has a fiduciary duty to inform a patient of abnormalities in his or her body.
Risk of poor quality ratings
Increasingly, consumer-oriented groups and Medicare are compiling and reporting data on performance of healthcare providers, using various measures. Consumer-oriented groups collect data from health plans, and health plans collect the data from medical practices. The National Committee on Quality Assurance’s HEDIS (Health Plan Employer Data and Information Set) is currently the most commonly applied performance criterion among health plans. HEDIS data are gathered from patient surveys, patient charts, and billing forms. For more information or current HEDIS measures, visit the website (http://www.ncqa.org). Medicare collects quality data through its Physician Quality Reporting Initiative (PQRI) and, more recently, Merit-Based Incentive Payment System (MIPS). For more information on PQRI or MIPS, visit the Centers for Medicare and Medicaid Services (CMS) website (http://www.cms.hhs.gov).
An NP who wants to avoid the risk of poor-quality ratings should:
Understand what performance measures are currently being used
Develop personal or practicewide systems for complying with performance guidelines and monitoring his or her performance
Request and obtain feedback on performance
Risk of disciplinary action
A state board of nursing approves an NP’s right to practice in a state. A board of nursing can suspend or revoke an NP’s license.
A court cannot revoke an NP’s license. A court can find against an NP in a malpractice lawsuit and direct an NP to pay an injured patient monetary damages, however. If, on the basis of what a judge hears in a case, the judge believes an NP to be grossly negligent, the judge may report the nurse to the board of nursing. Gross negligence is indifference to duty or the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life of another.
A board of nursing will respond not only to reports of gross nursing negligence but also to reports of impairment, fraud, or criminal activity by nurses. Impairment could be reported by a patient, coworker, or supervisor, based on her or his observation of a nurse. Fraud might include falsifying the nurse’s application to the board, falsifying medical records, or documenting that a patient has been seen when the patient has not. A nurse convicted of a felony can expect to be investigated by the board of nursing.
Sample Solution