1. Medical Malpractice
Case studies for Advanced
Practice Providers
Kathy Davis RN, RNP-C, MSN
November 11, 2006
Objectives
1. Recognize chief complaints that lead to
malpractice
2. Identify approaches to care to minimize
liability
3. Discuss malpractice cases involving
advanced practice providers
Legal consultant
Expanded role in nursing
Employed in law offices, insurance
companies, private practice, risk
managers, government agencies
Specialties within the specialty
Chart review only, testifying experts
Expert witness

2. Malpractice
Four legal element
Duty-The clinician owed the patient a duty
of care
The clinician breached the standard of
care
The patient suffered an injury
The patient’s injury was caused by the
clinician’s mistake
CNA Claims Study
Reported and analyzed CNA-insured
nurse practitioner claims data from 1994 to
2004
Study was done to identify high risk areas
for nurse practitioners and to analyze the
overall litigation environment in which NP’s
work.
There were 718 policies in effect for NP’s
in 1993 and 22,311 policies in 2004
841 claims (over 10 year period)
318 cases were eliminated from the study
Remaining 523 claims: 113 closed without
any payment
122 closed with expense payment only (no
indemnity payment)

3. 288 claims results in indemnity payments.
75% CNA claims involved NP’s in family
practice and adult/geriatric specialties
Average indemnity payment was
$130,000-$170,000
Average adult claim: $135,000 (41 cases)
family practice claim: $154,000 (41 cases)
pediatric/neonatal claim: $308,000 (7
cases)
OB/GYN NP’s (pre-natal and post-natal
care): $81,000 (9 cases)
nurse anesthetists and midwives not
included in this Claims study but may be a
future focus
Claims by State
reported closed with
indemnity
Florida 87 34
California 48 9
New York 48 5
Massachusetts 29 1

4. Location of claims
Physician offices
Clinic setting
Emergency departments
Hospital claims less frequent but most
expensive indemnity paid
Most Expensive Injuries
Number Average paid
Paralysis 1 $750,000
Back injuries 1 $600,000
Dislocation 1 $400,000
Brain damage 6 $377,000
OB/maternal death 1 $300,000
Number Average paid
Cancer 10 $235,000
CVA (stroke) 2 $192,000
Neurological
deficit/damage 3 $191,000
Death 33 $177,000
Loss of organ or
organ function 9 $161,000

5. Cancer related claims
Involved the failure to diagnose,
misdiagnose, mistreatment or lack of
treatment by the NP
Plaintiff alleged their conditions worsened,
or their prognosis and or course of
treatment were altered due to the NP’s
actions or failure to act
Case Study
Failure to diagnose colon cancer
1986, plaintiff aged 52 with strong family
history of colon cancer, seen by NP
Rectal exam, stool guiac. Discussed with
MD need for barium enema. He suggested
colonoscopy (never done)
1992-1996 pt saw NP, rectal exams and
stools guiac done
1996- CBC showed anemia, June 1996,
colonoscopy showed colon cancer
Cecal adenocarcinoma, moderately
differentiated, metastatic adenocarcinoma
in 3 out of 15 regional lymph nodes
Plaintiff argued standard of care
demanded complete colorectal screening
and that earlier diagnosis and treatment
could have been curative

6. Settlement
$950,000 settlement reached in favor of
the plaintiff
Case in Massachusetts, anonymous vs.
anonymous nurse practitioner
82% of claims involved allegations
related to:
Diagnosis
Treatment
Medications
Diagnosis
Failure to diagnose
Delay in establishing diagnosis
Failure to obtain appropriate tests

7. Failure to diagnose
Top 5 conditions
Breast cancer 33.5%
Lung cancer 16.9%
Myocardial infarction 13.1%
Appendicitis 10.3%
Colon or rectal cancer 9.7%
Red flag complaints
Breast lump, nipple discharge, breast
rash, enlarged lymph node
Chest pain or shoulder pain in a person
with a 20+pack year history of smoking
Chest, jaw, or neck pain in an adult
Lower abdominal pain
Breast Cancer
Most common cancer in American women
Accounts for 31% of cancers in women
and 15% of cancer deaths
White women are more likely to develop
African American women are more likely
to die from breast cancer
If found early, 5 year survival rates 97%

8. Myocardial Infarction
MI is the leading cause of death in the
United States
One third of individuals who have a MI do
not survive
Listen to the story…history, history, history
Case study #1
Case study #2
Rules
Know red flag complaint and conditions
Rule out the worst things first
Know the risk factors that call for
screening tests
Following up on diagnostic tests and
referrals
Revisit an unsolved problem until it is
resolved
Rules
Prescribing musts:
Have office systems and policies for follow
up
Audit charts for mistakes or omissions
Treat every medical opinion that you give
as if it were given during an office visit
Have specific follow up activities for tests
or procedures

9. Treatment
Failure to treat symptoms in accordance
with established standards
Failure to obtain consultation
Improper management
Delay in treatment or care
Improper treatment
Medication
Failure to properly discontinue medication
Administering wrong medicine
Incompatibility/contraindicated
Cost of malpractice
Costs about $100-250,00 to defend a case
Depends on number of experts, may be 6
experts on each side
Causation, damages expert
Rehabilitation expert, life care planner
About 85% of cases are settled out of
court

10. Case studies
Almost every nursing paper, and
publication, whether specific for NP, PA,
Midwives or CRNA has legal advice and
case studies
NSO on line has a case of the month
Kaiser Permanente
Self insured for medical malpractice
In-house legal team at region
Kaiser lawyers also contract out to
defense law firms
Every facility has a risk manager
Ombudsman
KP program based on National Naval
Medical Center Program in Maryland
Different from member services or risk
manager
Informal process used
Shift from adversarial to early collaboration
KP to date – over 9,000 cases with
positive provider and member response

11. Ombudsman
Impartial third party
Resolves healthcare conflicts at the
earliest possible time as close to the
event as possible
Clarifies perceptions, frames issues
Helps create options & assist in reaching
sustainable & mutually satisfactory
solutions
Addresses communication issues, may include:
Unexpected outcomes/deaths
Medical errors
Possible systems/practice issues
Communication problems
Lack of information
What do patients and families want?
An honest explanation
Sincere acknowledgement, sometimes
comes in the form of an apology
Fix of the problem/system so “it doesn’t
happen to anyone else.”

12. Communication Musts
Provider and patient develop a partnership
with shared decision making
Effective communication is essential both
before and after disappointing outcomes
Loss of trust & emotional distress may occur
when accompanied by perceived
professional indifference
Conclusions
Know what you know, know what you
don’t know
Use your critical thinking skills
Listen, listen, slow down, listen
Treat every patient as if they were your
own family
Use your mentors, consult with specialists
Conclusions
Continue to improve your communication
skills
Network with other providers within your
facility, community and the state
Ask your mentor to look at the patient with
you…I need some help here; Can you look
at this patient with me; I’m not sure what’s
going on

13. Conclusions
If no mentor available, find one
Call the MOD, ER doctor or a specialist
Keep your skills sharp, read, go to
conferences
Document, document, document
Know where to go for help if you are
named in a law suit
Conclusions
Be prepared
Relax, work hard
Balance your family, friends, and career
Have fun at a challenging and rewarding
profession
Bibliography
Bogart, J. (ed.). (1998). Legal Nurse Consulting: Principles and
Practice. American Association of Legal Nurse Consultants.
Buppert, C., (2004). Avoiding Malpractice. Annapolis, MD: Law Office
of Carolyn Buppert.
Buppert, C., (2004). Nurse Practitioner’s Business Practice and Legal
Guide. Sudbury, MA: Jones and Bartlett Publishers, Inc.
Nurse’s Legal Handbook. (1999). Springhouse, PA: Springhouse.
Nurse Practitioner Claim Study: An analysis of Claims with Risk
Management Recommendations. (1994-2004). CNA Health Pro;
NSO (Nurses Service Organization).

14. Nurse Practitioner’s Legal Reference. (2001).
Springhouse, PA: Springhouse.
Poynter, D. (2005). The Expert Witness Handbook:
Tips and Techniques for the Litigation Consultant.
Santa Barbara, Ca: Para Publishing.
NSO (Nurses Service Organization).
http://www.nso.com/
The American Journal for Nurse Practitioners: The
Pearson Report. (2006). (Vol. 10 No. 1).
California pp. 40-42.