Ms. L, 27, had been a nurse practitioner in the emergency department (ED) of a suburban hospital for the past three years. While she enjoyed the variety of patients and the pace of her shifts, she found some challenges dealing with her supervising physician. Dr. U, 55, had a reputation for being brusque and bossy. She did not like to be questioned and seemingly took great pleasure in putting lower level staff “in their place.”

One Saturday morning, Ms. L’s patients included a 36-year-old man complaining of chest pain and difficulty breathing. The evening before, Mr. J had been doing what he enjoyed most: He had been out on his fishing boat with some friends and his 11-year-old son. Then the sharp pain began. Mr. J didn’t want to alarm his son, so he just told him to start packing their gear. Once home, after his son had been sent to bed, he confided his discomfort to his wife, who urged him to go to the ED immediately.

“I’ll sleep on it,” he told her. “If I don’t feel better in the morning, then I’ll go.”

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But he did not feel better the next day. Each breath hurt, and pain radiated around his chest. His wife took him to the ED, where Ms. L noted that he had an abnormally rapid respiration rate but no fever or cough.

The patient told her that he’d had a surgical procedure on his elbow the previous week. He also told her that he had experienced similar chest pain six years earlier. His physician at the time told him he had pneumonia.

Upon auscultation, Ms. L heard rales, splinting, but no breath sounds on the left side. She noted her findings in Mr. J’s chart and ordered an ECG, blood gas analysis, and routine blood tests. Then she gave Mr. J morphine to ease the pain.

When the test results came back, Dr. U and Ms. L went over them together. The chest x-ray showed left effusion and possible left lower-lobe infiltrates. The ECG was normal, and the WBC count showed no elevation.

Dr. U ruled out MI and infection as potential diagnoses but felt that the symptoms, test results, and history were nonspecific. The doctor and NP went to speak to the patient.

“How are you feeling , Mr. J?” the doctor asked.

“Better now,” he replied. “The painkiller helped, I guess.”

Dr. U listened to the patient’s chest and confirmed the sounds that Ms. L had noted previously. When Dr. U inquired about the history of chest pain, Mr. J told her about the pneumonia.

The two clinicians left the examining room. Dr. U stood in the hallway for a few moments, weighing the diagnostic options. She didn’t ask Ms. L’s opinion, but the NP offered one anyway: “With what we know, it seems likely that either pneumonia or pulmonary embolism (PE) could be causing Mr. J’s pain.”

“Yes,” Dr. U replied. “But I’m going with pneumonia. He can be discharged with antibiotics and pain meds and should see a pulmonologist on Monday morning.”

“But…” Ms. L said, hesitantly, “shouldn’t we do a pulmonary angiogram or ventilation-perfusion (V/Q) scan to rule out PE?”

“Those tests are expensive and time-consuming,” snapped Dr. U. “The patient’s pain was relieved by the morphine, and he’s had a previous incidence of pneumonia. Based on that, I’m comfortable with this diagnosis, and you should be, too.” She handed the chart to Ms. L, turned on her heel, and marched off.

Mr. J was given a diagnosis of probable pneumonia with left pleural effusion, discharged, and told to call the specialist on Monday. But Mr. J did not live long enough to do that. On Sunday night, he developed severe pain and became unresponsive. His frantic wife called an ambulance, but he was pronounced dead at the scene by the emergency medical technicians who tried futilely to revive him. An autopsy revealed the cause of death to be PE.

Once her grief and disbelief turned to anger, Mr. J’s widow consulted a plaintiffs’ attorney who agreed to take the case, filing a malpractice lawsuit against Dr. U, the hospital, and much to her shock, Ms. L.

The NP met with the attorney provided by her insurance company and explained her involvement with the patient, including the fact that she had questioned the physician’s diagnosis and been rebuffed. The attorney considered her words and looked pensive.

“If this goes to trial,” he advised her, “you’ll have to testify against the doctor. She was the one who made the ultimate decision. It was her signature on the discharge papers, and she’s the one who made the diagnosis.” “Maybe I should have been more forceful,” Ms. L speculated.

“Maybe I should have gone to another physician or said something to the patient.”

“No,” said the attorney. “Dr. U was your supervisor. This wasn’t your fault.”

The case proceeded through discovery and depositions. The plaintiffs’ attorney’s potential witnesses included several experts in emergency medicine, each of whom was ready to testify that Mr. J would have had a 90% chance of survival had a V/Q scan or pulmonary angiogram been performed.

The day before the trial was to begin, Ms. L’s lawyer informed her that Dr. U and the hospital had agreed to settle for a total of $1.2 million and the plaintiffs had dropped the suit against her.

Legal background

Often in lawsuits many people are named as defendants — sometimes even people who shouldn’t be. Plaintiffs’ attorneys may sue everyone who was in any way involved in a case in order to optimize the likelihood that someone will be found responsible and maximize the amount of any judgment.

That is how Ms. L came to be sued. She was basically caught in the crossfire. Had the case proceeded to trial, a jury probably wouldn’t have found her at fault. But at a trial, Ms. L would have been forced to testify against her supervising physician and say that Dr. U had rejected her suggestion that further diagnostic testing was necessary.

Protecting yourself

Ms. L was correct to suspect a PE and recommend confirmatory tests. Although pneumonia could have caused similar symptoms, Mr. J’s history was significant: His recent surgery made him particularly susceptible to an embolism. That fact, paired with his symptoms, raised enough concern to warrant a V/Q scan or a pulmonary angiogram to rule out PE.

Ms. L rightly raised this issue with the attending physician. Dr. U was clearly at fault here. Where there are two possible diagnoses, one which is likely to be fatal if not treated, it is negligent not to perform a test that could rule it out.

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