Dr P is a bariatric surgeon who specializes in the treatment of obesity. He maintained privileges at a local health system (the hospital) and rented office space in one of its buildings. As part of the rental agreement, the hospital assigned a nurse practitioner (NP), Ms M, to assist Dr P in his office. Ms M’s duties as an NP included evaluating new and postoperative patients and covering Dr P’s patients admitted to the hospital when he was not available.

Dr P performed laparoscopic gastric band placement on Mrs F, a 40-year-old woman with obesity. In addition to placing the adjustable gastric band, the surgeon placed an access port under the patient’s abdominal skin. Over the years, Mrs F routinely followed up with the physician for adjustment of the gastric band tightness.

Nine years after the gastric band was installed, Mrs F went to see Dr P with complaints of severe pain near the port site. Dr P ordered a computed tomography (CT) scan. The scan results revealed a hiatal hernia and inflammation. Seven weeks later, the patient returned to the office and saw Ms M, the NP. At this appointment, the patient said that the pain at the port site had resolved. Ms M tightened the patient’s gastric band by inserting more saline into the port.


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The next day the patient returned to the office complaining that the band was too tight. When Ms M attempted to aspirate fluid from the port, purulent liquid came into the syringe. Concerned about a possible infection, Ms M sent a sample of the fluid to the laboratory to be cultured, prescribed antibiotics to Mrs F, and recommended that the patient follow up with Dr P. Ms M discussed the case and her findings with Dr P, and the physician ordered additional laboratory studies.

A week later, Mrs F went to the hospital with abdominal pain, fever, and chills. The wound was aspirated and cultured at the hospital. Dr P was called in to examine Mrs F; he noted an enlarging left sided abdominal mass in the vicinity of the patient’s port. He surgically removed the infected subcutaneous gastric port and drained the abdominal wall abscess. The patient was discharged home.

The patient was seen 2- and 4-weeks postoperatively by Ms M, who evaluated the patient’s wound and repacked it. On those dates, the NP noted that the wound was clean and seemed to be healing. On the third postoperative visit, Ms M noted a strong fishy odor at the site of the wound. She took a culture and sent it to the hospital for analysis; the laboratory results indicated the presence of pseudomonas and staphylococcus bacteria.

Fourteen days later, the patient was admitted to the hospital for an abdominal abscess and discharged 5 days later. The last time Ms M examined Mrs F was 3 weeks later when she checked the patient’s incision and noted a small amount of drainage. She spoke to the patient about the possibility of having the gastric band removed and recommended that she follow up with Dr P if there was no improvement.

Two days later, Mrs F was admitted to the hospital with abdominal pain. Dr P performed surgery to remove the gastric band. After approximately 2 weeks of treatment in the hospital, an infectious disease expert determined that the infection had resolved and Mrs F was discharged. Three days later she was brought to the hospital by ambulance for evaluation of symptoms of right-sided weakness and droop, and she was diagnosed with intracranial and subarachnoid hemorrhage. The patient spent the next 18 months in nursing homes and extended care centers until she died at age 50.

After her death, her husband sued numerous parties including the bariatric surgeon, infectious disease specialist, NP, and hospital that employed the NP. Ms M. The hospital and Ms M filed a motion for summary judgment, asking the court to dismiss them from the case.

Legal Background

To support the motion to dismiss the case, the hospital and Ms M noted that Dr P had testified that although Ms M could make recommendations as to whether a band or port needed removal, the ultimate decision was made exclusively by the physician. The defense also introduced an affidavit from an expert surgeon. According to the expert, Ms M acted in accordance with accepted standards of good medical practice and fulfilled her duties and responsibilities as an NP to Dr P. The expert said that Dr P, not Ms M, was ultimately responsible for all aspects of surgical care and follow-up treatment including the timing and removal of all devices related to the gastric band. The expert said that Ms M met the standard of care with respect to her communications with Dr P, and that none of the injuries suffered by Mrs F, including her death, were caused by any negligence on the part of Ms M.

In opposition, the plaintiff introduced an affidavit from a board-certified surgeon. The surgeon said that Dr P should have realized that the entire gastric band, not just the port, needed to be removed based on the patient’s condition and the fact that she made several visits to the office for treatment of her wound. According to the plaintiff’s expert, Ms M cannot avoid responsibility for her failures simply because she is an NP and not a medical doctor. The assessment and recommendation for band removal was well within the bounds of what a bariatric surgery NP is authorized to perform. Dr P relied on Ms M to assist in the diagnosis of gastric band infections, recognize the need for surgery, and recommend surgery to remove the band, noted the expert. With the exception of performing the actual surgery, Ms M was responsible for appropriately assessing and diagnosing the patient’s condition and recommending immediate band removal.

In its decision, the court said that “the practice of a registered nurse practitioner includes the diagnosis of illness and physical condition and the performance of therapeutic and corrective measures in collaboration with a licensed physician qualified to collaborate in the specialty involved.” The court said that Dr P and Ms M worked as a team, and Ms M saw Dr P’s patients on her own and planned and ordered necessary treatment without needing Dr P’s authorization or supervision. Although surgical removal of the gastric band is not within the scope of Ms M’s responsibilities, she had a duty to determine if the gastric band was infected, recognize the need for surgical removal, and recommend surgical removal, said the court. The court concluded that there is sufficient evidence from which a reasonable person might conclude that Ms M’s conduct was a substantial factor in causing injury to the patient.

The court refused to dismiss the case against Ms M and the hospital. The case has been remanded for trial.

Protecting Yourself

With increased responsibilities comes increased risks, which makes it all the more important to advocate for patients and not simply rely on a supervisor’s judgment.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York