EPs, Hospitals Face Liability for ED Nurse Practitioners’ Negligence
If an ED nurse practitioner (NP) is sued for malpractice, the hospital will “almost always” be named, says Melanie L. Balestra, a Newport Beach, CA-based nurse attorney.
However, the hospital does not rally behind the care given by the NP defendant. “They may fire the NP if they feel he or she is liable or report the NP to the board of nursing,” Balestra says.
For this reason, Balestra recommends NPs carry their own malpractice insurance. Sometimes, a quick, low-key settlement is in the hospital’s best interest but not necessarily the NP’s. Sometimes, the NP’s defense is to blame hospital issues such as short-staffing, but the hospital finger-points at the NP for rushing through the exam. To further complicate matters, EPs might blame the NP for a poor outcome.
“When you don’t have your own attorney representing you, you are low man on the totem pole and will probably be blamed,” Balestra laments. Balestra says there are several common malpractice allegations against NPs in the ED setting, including:
- failure to diagnose, incorrect or delayed diagnosis, and premature discharge;
- improper management of treatment, including failure to explore an infected wound and failure to stabilize the neck after a traumatic head injury;
- improper performance or procedure errors regarding intubation, imaging/X-rays, or IV insertion;
- failure to order medication;
- failure to communicate with other providers;
- poor communication with the patient and family, which can be caused by poor rapport, language barriers, or inadequate patient education.
“If the NP does not get the correct history, the diagnosis or treatment can be wrong,” Balestra notes.
NPs face the same malpractice allegations as EPs, the most common of which is failure to properly diagnose and failure to timely treat, according to Amy Evans, JD, executive vice president of business development and liability claims division at Intercare Insurance Services in Bellevue, WA.
“Occasionally, we see a fraud or misrepresentation allegation,” Evans notes. In these cases, it is alleged that the physician extender failed to notify the patient or family that they are not a physician. However, says Evans, “the bias against physician extenders that we saw years ago is fading.”
If the hospital provides the NP’s malpractice coverage, the hospital can make the decision whether to settle or defend the claim.
“Many hospitals hire physician groups to provide medical care. They will always fight for their doctors,” Balestra says. In contrast, Balestra has seen many cases in which the fired NP is left without any coverage for a disciplinary action.
“Unfortunately, there have been some very bad outcomes in the ED,” Balestra adds.
One such case involved a 45-year-old coal miner who complained of thoracic back pain, right upper quadrant pain, and radiating neck pain. The patient also reported nausea and vomiting. ED providers did not perform any diagnostic testing, except to take the patient’s blood pressure, which revealed uncontrolled hypertension.
“Therefore, without running a single test, the defendant nurse practitioner and defendant doctor simply guessed that the patient’s complaints of pain stemmed from his gallbladder and sent him home,” Balestra says.
A few hours later, the patient suffered an ischemic arrhythmia and died due to the 95% blockage in his right coronary artery. The defendants were found guilty of:
- failing to obtain a proper and complete medical history of risk factors for cardiac disease, which included failing to inquire about the smoking history of the patient and failing to obtain a repeat blood pressure;
- failing to appreciate that the history and symptoms of the patient were consistent for acute coronary syndrome or a cardiac event;
- failing to properly manage, treat, and test, including failing to order the proper diagnostic studies (specifically including a chest X-ray, serial cardiac enzymes, and ECG) and failing to administer aspirin in the ED;
- failing to admit the patient to the hospital for monitoring, observation, and a cardiology consultation to determine whether the patient was going to undergo a stress test or directly to the cardiac cath lab.
Plaintiff’s experts further testified that the failure to follow the accepted standards of care directly caused the patient’s death. “The settlement was over $1 million,” Balestra reports.
The NP should never hesitate to consult with the EP and document the discussion. “Otherwise, the physician can just say, ‘I don’t remember that,’” Balestra warns.
EP codefendants have been known to criticize physician extenders to mitigate their own liability. “They are quick to testify that the physician extender should have called or notified them when there was a change in the patient’s status,” Evans says.
The greatest risk to an ED physician extender is when he or she hesitates to go to the EP with a concern about a patient, or when he or she does not realize he or she should be doing so, Evans explains.
“An EP can be found to have negligently supervised the NP, but the hospital will be vicariously liable for the conduct of the NP as the employer,” Evans adds.
If an ED nurse practitioner is sued for malpractice, the hospital will “almost always” be named, says one attorney. However, the hospital may not rally behind the care given by the nurse defendant. For this reason, nurse practitioners should carry their own malpractice insurance.
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