The call came at 3 am, waking Ms. J from a sound sleep. She groggily reached for her glasses on the bedside table, grabbed the phone, and quietly slipped out of the bedroom in order to leave her husband undisturbed.

This was the part of her job Ms. J, 42, liked least. As a nurse practitioner in an orthopedic clinic, she took her share of nights on call. Over the years, she found that patients could become anxious in the wee hours. Sometimes, they just needed reassurance, not medical treatment. 

“Yes?” she said, in a scratchy voice.

“Ms. J, this is Barbara from your service. We've got a Mrs. M on the line. She says that she's nauseous and vomiting and feels very ill.”

Ms. J told Barbara to put the call through.

“I'm very queasy and faint,” Mrs. M murmured, “and I threw up earlier.”

“Are you currently on any medications?”

“Yes,” the patient replied. “After my back surgery last week, the doctor gave me the pain patch —I'm supposed to put two on every 72 hours.”

“Did your physician prescribe any other medication for you?”

“Yes. He gave me something called Zofran (ondansetron) in case I felt nauseous from the pain medication,” she said, weakly.

“Okay,” said Ms. J. “It's not uncommon to feel queasy from a fentanyl patch. Just take your anti-nausea medication as prescribed and go back to bed. I'm sure you'll feel better in the morning. If you don't, be sure to call the office.”

Ms. J then returned to bed. Across town, however, things were getting worse.

Mrs. M, a 34-year-old mother of five, tried to take her ondansetron, but she was overcome with dizziness. Her husband noticed that her breathing was shallow and her skin felt clammy.

He helped her back to bed, but within hours Mrs. M began to have seizures and lapsed into a coma. She soon stopped breathing and died, despite the efforts of paramedics.

The news was all over the clinic the next morning. Ms. J was appalled to hear that Mrs. M had died.

“It seems to have been a fentanyl overdose,” a colleague told her. “Maybe due to a leaky patch.  What a shame.”

When the medical examiner ruled that a fentanyl overdose was indeed the cause of death, Mrs. M's husband consulted a plaintiffs' attorney, who said that other overdose incidents had led the the manufacturer to recall the patch several times.

“I believe that you have an excellent case against the pharmaceutical company,” the attorney concluded.

“I don't just want to sue them,” Mr. M angrily replied. “I want to sue that NP my wife called the night she died. Maybe if she'd told us to take off the patch or to go to the emergency department right away, my wife would still be here.”

After meeting the defense attorney her insurance company had assigned, Ms. J felt confident that she would be exonerated.

“I answered the call, and I gave reasonable advice under the circumstances,” she told herself. “Mrs. M never said she was having trouble breathing.”

Two years later the case against Ms. J and the patch manufacturer reached trial. Mr. M took the witness stand first. He calmly characterized his former high school sweetheart as a devoted spouse and mother. But when it came time to describe her final hours, the bereaved man broke down.

After he regained his composure, he testified that his wife had been sent home after back surgery with fentanyl patches for pain and instructions for their use.

“Did she follow these instructions?” his attorney asked.

“Absolutely. She was conscientious about things like that.”

Mr. M then recounted how his wife began feeling ill in the middle of the night, called the clinic, and spoke to Ms. J.

“And as a result of that conversation, what did your wife do?” the attorney asked.

“She tried to take her antinausea pill, but it didn't help. She just kept feeling worse and worse. I asked her if we should go to the hospital, but she wanted to follow the NP's instructions and go back to bed. An hour or two later, she started having trouble breathing. I called the ambulance then, but she was in such bad shape that they couldn't save her.”

The plaintiffs' attorney called on several experts who testified about the faulty manufacture of the patch and explained how a leak in the reservoir that held the medication could result in a toxic overdose.

The drug company countered with experts who swore that the patch was safe if used properly and that any problems with its manufacture had been resolved before Mrs. M started using it.

Then it was Ms. J's turn to offer her version of the fateful phone call. The patient reported nausea and feeling faint, Ms. J said. She mentioned no other symptoms. Had Mrs. M complained of breathing difficulties, seizures, confusion, or tremor, the NP insisted, she would have told the patient to go to the nearest hospital right away.

During closing arguments, Ms. J's attorney acknowledged that the case was tragic but maintained that the NP was not to be faulted. Mrs. M had not given essential information that would have indicated how ill she was when she called.

The jury deliberated for six hours. It found Ms. J to be 20% at fault and thus responsible for 20% of the $13 million award.

Legal background

Juries often apportion fault among defendants and find one to be more liable than another. In this case, the jury believed the patch manufacturer should bear 80% of the responsibility for Mrs. M's untimely demise, but Ms. J's failure to question Mrs. M more thoroughly about her symptoms played a role too.

Protecting yourself

As a clinician, it's not unusual for you to get calls in the middle of the night. But when you've been roused from a sound sleep, will you be able to give the best advice in an emergency?

No one knows what would have happened had Ms. J asked a few more questions—especially once she discovered Mrs. M was using a fentanyl patch. 

But Ms. J's advice indicated she correctly suspected a fentanyl reaction. Given that Mrs. M felt “queasy and faint” and that she sounded weak, Ms. J should have been more aggressive. If she could not get strong, responsive answers from the patient, she should have spoken to the husband, who would have been able to relate whether his wife was having difficulty breathing or appeared to be in shock.

Had the answers been negative, Ms. J likely would not have ended up in court, even though Mrs. M died. The tragedy might even have been averted had Ms. J told Mrs. M to remove the patch immediately and seek emergency help.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.