Should a nurse practitioner be responsible for assessing the severity of a patient’s health concerns over the phone, or should the patient ultimately be the one to decide whether a trip to the hospital is necessary? This case explores that question.

Mr. L, aged 35 years, was a nurse practitioner working for a family practice made up of four physicians, two nurses, and an office manager. Mr. L worked primarily with one of the physicians, Dr. C. The policy of the practice was for patients to see their own physician, rather than any available doctor, unless it was an emergency. Mr. L liked working with the same patients and developing relationships, although there were always some patients that were somewhat more challenging than others.

One such patient was Mr. W, aged 68 years. He was what Mr. L and Dr. C referred to as a “frequent caller” — someone who contacted the office whenever he so much as sneezed. He seemed to be reassured by speaking with his physician, even for the most minor matters. “He’s retired and has time on his hands,” explained Dr. C. “Sometimes that allows people to focus on every ache and pain.”

Late one afternoon, Mr. L was wrapping up with his final patient when the office manager told him that Mr. W was on the phone, calling long-distance from his vacation in Florida. He was asking for Dr. C, but she had already gone for the day, so Mr. L agreed to take the call.

During the conversation, Mr. W told Mr. L that he’d noticed that the lower portion of his right leg was somewhat pale and that he wanted to speak to Dr. C. Mr. L explained that Dr. C had gone for the day but that she would return his call the following day. The patient did not seem thrilled by this response, but gave Mr. L the phone number for his vacation home. Mr. L noted it and wrote the complaint in the patient’s file. “The doctor will call you tomorrow, but if your leg gets worse, you should go to the emergency department [ED],” Mr. L told the patient.

By the time Dr. C returned the patient’s call the following day, Mr. W had already taken himself to a local hospital, where it was determined that he had a ruptured aneurysm in the popliteal artery of the right leg. The rupture interrupted blood flow to the lower leg and could be limb-threatening if left untreated. Surgery was immediately performed to graft an arterial bypass, but adequate circulation could not be restored, and Mr. W eventually underwent an above-the-knee amputation.

Mr. L and Dr. C were sorry to hear about their patient’s hospitalization and resulting amputation, but didn’t give it much further thought until they were served with papers informing them that they were being sued for malpractice. The clinicians’ defense attorney explained the situation.

“Mr. W is suing you for malpractice based on delayed treatment,” said the attorney. “His complaint against you alleges that Mr. L did not tell him to go to the hospital immediately, and thus, the practice is vicariously liable for the injuries he suffered as a result of waiting for Dr. C to call him the next morning.”

“That’s ridiculous!” exclaimed Mr. L. “All he told me was that his leg was pale. No other symptoms that present with popliteal-artery aneurysm were there; Mr. W did not describe edema or complain of pain from nerve compression, and we know from his history that he did not have deep venous thrombosis. Plus, he didn’t sound like he needed emergency treatment. He only asked to speak to Dr. C. How could I know, based on his description of a pale-looking leg, that it warranted an immediate hospital visit? Wouldn’t he have been in a better position to know whether he should go to the hospital? We were hundreds of miles away!”

“Exactly,” said the attorney. “That will be our defense if this goes to trial. Mr. W was in the best position to determine if he needed to go to the ED. He should have sought help from a local clinician or gone to a walk-in clinic if he wanted a judgment on the seriousness of the issue. I’ve had an expert physician look at his records, and it appears that even if he had gone to the hospital the night before, it would not have made a difference.”

When the case went to trial, the plaintiff’s attorney made a passionate opening argument about how Mr. W’s life was changed forever and how his health-care practitioners could have prevented this by simply advising him to go to the hospital for treatment.

Mr. W then limped to the stand on his prosthetic leg. He claimed that he suffered phantom pain that stemmed from the missing portion of his right leg. He testified that he had previously enjoyed an active life but that the loss of his leg was greatly limiting. Mr. W also claimed that he might have to undergo additional treatments that could include the replacement of his prosthesis. He sought recovery of damages for past and future pain and suffering.

When it was the defense’s turn, Mr. L described in detail the brief phone conversation he’d had with Mr. W. The defense attorney then introduced various expert clinicians who testified that even if Mr. W had gone to the hospital a few hours earlier, the outcome would have been the same.

The jury was asked to determine whether Mr. L had deviated from the accepted standard of medical care and whether his practice was responsible for Mr. W’s injuries. After short deliberation, the jury found no liability on the part of Mr. L or his practice.

Legal background

Delayed diagnosis, like misdiagnosis, can certainly rise to the level of medical malpractice. A good example of this is when a doctor neglects to look at a patient’s test results, and the patient is later diagnosed with a condition that could have been successfully treated had it been caught right then. Another example is when a clinician ignores obvious signs or symptoms resulting in a delay in diagnosis that worsens the patient’s ultimate prognosis. In this case, however, the alleged delayed diagnosis was minimal, and catching it earlier would not have altered the end result.

Protecting yourself

Giving advice on the phone is risky. Without seeing a patient in person, it is hard to accurately assess his or her condition. Suggesting that a patient seek immediate attention is a safe way to proceed but not always the best option. If it doesn’t seem warranted, unnecessary visits to the ED can waste time and money and leave patients disgruntled. Mr. L answered the patient’s question about when his physician would be back in the office, gave a time when Dr. C would call back, and suggested that Mr. W seek help if his condition deteriorated. It was up to Mr. W to make the call as to whether his condition had indeed worsened. Whether Mr. W had gone to the ED that evening or the next morning was inconsequential, and a jury validated the fact that Mr. L acted appropriately under the circumstances.

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