Although his family declined to file a medical malpractice suit against Ms B, they did report her to the state Board of Nursing. The Board held an administrative hearing, at which time an expert in NP practice testified that Ms B had departed from the standard of care required in this case in various ways. First, according to the expert, Ms B should have responded immediately to the initial fax on the evening of March 23rd. Due to the patient’s age, opined the expert, the right response would have been to order a urinalysis and begin treatment with a standard antibiotic while waiting for the culture to be completed. The expert went on to fault the NP for not assessing the patient herself the following morning and for not referring the patient to a provider who would immediately assess his condition.

The expert believed that the report of “chocolate-colored diarrhea” indicated that the patient had possible gastrointestinal bleeding. Ms B should have gone to see the patient immediately after receiving that fax at 2 PM, said the expert. Her delay in not assessing the patient until 8:30 that night fell below the standard of care. She could have satisfied her duty to the patient by ordering the facility to take him to the emergency department, opined the expert.

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Similarly, after the report that the patient was sweating and had lost his balance, Ms B should have asked the facility to call an ambulance for the patient, said the expert.

There was conflicting testimony about whether Ms B had consulted with her supervising physician, but there were no notes in the file indicating that she had. Ms B introduced her own expert, who testified that Ms B’s handling of the situation fell within the standard of care; however, the expert also stated that Ms B should have been checking her fax machine more frequently and should have seen the first fax before a whole night had passed.

The Board issued a decision finding Ms B grossly negligent in her care of the patient and put her on 3 years of probation.

Legal Background

Ms B was extremely upset about the Board’s decision. Probation meant that she could not continue to work at her current job and could no longer work out of her home office. She filed a request for reconsideration, but it was denied. She then filed a petition in trial court seeking a writ directing the Board to set aside its decision. The trial court denied her petition. Finally, she appealed to the Court of Appeals. That court upheld the trial court’s decision and affirmed the order of the Board of Nursing. The court found that Ms B’s treatment fell below the acceptable standard of care.

Protecting Yourself

The court was critical of Ms B’s method of communication – fax – and felt that she had not acted in a responsive enough manner after being alerted to symptoms that should cause alarm. Faxes can get lost, jammed in the machine, or can go unread or unnoticed. If something important needs to be communicated, one should pick up a phone and make a call. Even an email might have been preferable in this case because Ms B might have gotten it the night of March 23rd and responded promptly.

In addition, although Ms B testified that she called her consulting physician for advice, there was no evidence of the communication, and the physician did not remember the conversation. Without a notation that it happened, it may as well not have – at least legally. Be responsive, take action when needed, and document everything.

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Finally, there were several instances when Ms B could simply have advised the facility to take Mr H to the hospital. That call, made in a timely manner, would have met the standard of care required for the appropriate management of this case.  

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