This month we examine a case in which a nurse practitioner (NP) was sued after a patient was harmed because of a prescribing error. How might this have been avoided?

Facts of the Case

The patient, Mrs E, was in her late 60s and had various chronic conditions, including end-stage kidney disease, congestive heart failure, and obstructive sleep apnea. She developed a rash on her neck. Her regular primary care physician, whom she saw regularly for the treatment of her chronic issues, was on vacation so she went to her local walk-in clinic for care.

At the clinic, she was seen by Ms N, an NP who examined the rash and diagnosed it as herpes zoster. The patient was prescribed valacyclovir at the normal dosage for treating herpes zoster (1000 mg three times per day). When prescribing the medication, Ms N failed to take into account the patient’s kidney disease, which should have signaled the need for a lower dosage of valacyclovir.

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Mrs E filled the prescription and began taking the medication. Within a few days of starting the medicine, she began to experience shaking and spastic movements in her arms and legs. She called her regular physician’s office and described the symptoms to a PA who advised her to go to the hospital. At the hospital, Mrs E was diagnosed with valacyclovir overdose and was admitted to the hospital.

Over the next 3 days, Mrs E underwent dialysis to flush the medication from her system. After the dialysis treatments, the shaking and jerky movements resolved. At the same time, the patient began experiencing difficulty breathing and her vital signs became unstable. Mrs E was intubated and placed on a ventilator in the intensive care unit (ICU), where she developed pneumonia.

When she improved, she was removed from the ventilator and moved to a rehabilitation area of the hospital, however, she didn’t fare well. She required dialysis and became weak and hypotensive. She was transferred back to the ICU where her respiratory status declined, and she again required intubation and mechanical ventilation. Her situation continued to worsen because of her compromised condition. She developed a blood clot in her leg that required surgery to insert a filter to prevent the clot from reaching her lungs. She required a tracheostomy and a feeding tube.

The patient was transferred to a long-term care facility where they tried, unsuccessfully, to wean her off the mechanical ventilation. Within a month, Mrs E was found unresponsive in her room and rushed back to the hospital where she passed away.

The Case

Mrs E’s widower sought the counsel of a plaintiff’s attorney. The attorney consulted with an expert physician to discuss whether the prescribed dose of valacyclovir fell below the standard of care and whether it was the proximate cause of the patient’s death. The physician was critical of Ms N’s prescribing and believed that this had caused Mrs E’s death.

The plaintiff’s attorney then consulted with another medical expert to assess whether the hospital had provided proper care and treatment to the patient. The expert believed that the hospital had met the standard of care in treating the patient.

The attorney suggested that they approach the NP’s employer to explore a possible negotiated settlement. At the meeting, the defense attorneys took the position that even if the NP had prescribed too much valacyclovir, the overdose caused only temporary injury. They felt that the NP was only responsible, if at all, for a few days’ worth of harm, but not the extensive hospitalization or death. The parties couldn’t settle, and the plaintiff’s attorney officially filed the lawsuit.

Discovery began and included the exchange of thousands of pages of medical records. Depositions of all parties and witnesses were completed. Expert reports were exchanged. The defense was eventually forced to admit that Ms N should have prescribed a much lower dose of the medication, however, they denied that this mistake caused serious injuries or death to the patient. After several dialysis sessions, the medication was flushed from the patient’s system, argued the defense; thus, the error only caused the temporary shaking and spastic movements. The patient’s death, maintained the defense, was caused by her extensive pre-existing comorbidities, which would have prevented her from living a long life even if she had received the proper dose of valacyclovir.

The plaintiffs were prepared to argue that the medication overdose was the inciting factor that set into motion the unfortunate cascade of events that ultimately led to the patient’s death.

After the court set a trial date, settlement negotiations began again, this time with the assistance of a private mediator. At the mediation, just weeks before the trial was scheduled to start, the parties reached a confidential settlement to resolve the case.

Protecting Yourself

It is not uncommon for cases to settle out of court prior to trial. In fact, most cases either settle or are dismissed and never make it to trial at all, and for good reason. Trials are extremely expensive and the outcome is never predictable. In many cases, settling is a far better outcome for all involved.

Ms N might have avoided the case entirely had she taken into account the patient’s medical history when deciding what and how much to prescribe. Even if a patient is seeking help for something that appears minor — a rash, a cut, a sprain — it is essential to understand a patient’s medical history before prescribing medications.