Ms. B realized instinctively moments into her interview that this was the job she wanted. At age 27, the young NP listened carefully as 
Dr. Y, her prospective employer and a 56-year-old pediatrician, described the often difficult working conditions in his small clinic.

She was not deterred by the fact that Dr. Y’s practice was set in the heart of a depressed, urban area, where many patients were so poor they were unable to follow the simplest of recommendations. Nor was she put off by the overcrowded waiting room or the long work hours he described. For her, this was the chance of a lifetime — the opportunity to give something back.

Ms. B had grown up in a neighborhood much like this one. She felt a different texture here, but the telltale markings were the same: constant hardship, abject difficulty and loss. Ms. B remembered her mother’s constant focus to obliterate the obstacles that prevented her from going to school, from enjoying a life filled with professional meaning, and she knew this was where she wanted to be. 

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But one crisp fall morning two years into her career at the clinic, a phone call changed everything. Ms. B had just come on duty when the mother of a 21-month-old child called the practice looking for advice. Mrs. R’s baby was throwing up, feverish and wouldn’t stop crying. Mrs. R also reported that her son was unwilling to even try standing or walking. 

“Should I bring him in?” she asked. 

“No,” Ms. B said to the mother. “It sounds like influenza. You don’t need to come in now. He should get better in a few days.” 

It had not taken long after she started with the practice for Ms. B’s idealism to wane. Under pressure, she had gradually found herself adopting a more hardened attitude towards patients who used the practice as an emergency clinic or tried to get free medical help over the telephone. Early in her tenure at the clinic, Dr. Y informed Ms. B that she needed to cut back on the amount of time she spent with each patient. 

“I appreciate your efforts,” Dr. Y began, “but we have too many patients and too little time to see them all.”

After that, Ms. B began speeding up her examinations as she tried to comply with Dr. Y’s suggestion that she spend 15 minutes or less per patient when possible. 

Three days after that initial phone call, Mrs. R showed up in the office with her baby boy, who was still quite sick. Ms. B was with a patient, but briefed Dr. Y on the phone conversation and the flulike symptoms that Mrs. R had described.

Dr. Y was harried; his earlier appointments had taken longer than expected, and he was running behind. 
He rushed mother and child into an exam room and made a cursory examination of the baby, who screamed loudly when his abdomen was palpated. A few minutes later, Mrs. R and her son left the clinic. Ms. B was too busy to ask Dr. Y what he had diagnosed, and by the next day, she’d forgotten about it — until the local hospital called.

“That was the hospital,” a shaken Ms. B told Dr. Y. “Baby R died today. They say it was acute appendicitis.”

Extremely upset by losing her first patient — a baby at that — it took Ms. B several months to recover. And just when routine normalcy was settling in again, Dr. Y was served with papers. Mrs. R was suing him for negligence in the death of her child. In addition, as Ms. B’s employer, the suit claimed he was indirectly responsible for medical advice delivered over the phone.

The coroner’s report was introduced at trial; the cause of death was acute appendicitis, which had been gangrenous for two to six days. The mother testified about how she had relied on the NP’s phone diagnosis of influenza, and held off on bringing her child to the doctor for three days because of that diagnosis. Mrs. R also testified that when she did bring the baby in, Dr. Y spent only a few minutes examining the child and ignored the fact that the baby screamed loudest when his stomach area was touched.

“They told me my boy had the flu,” the mother sobbed, “and that I should take him home to rest. But the next day he was dead.”

When Ms. B was called to testify, she described her initial conversation with Mrs. R in detail. 

“Do you generally make diagnoses without even seeing the patient?” the plaintiff’s attorney asked.

“Well… sometimes,” Ms. B murmured.

“Do you think you can adequately diagnose a patient on the phone,” opposing counsel pressed, “especially a baby who can’t describe his own symptoms?”

After Ms. B spent an uncomfortable hour on the stand, it was Dr. Y’s turn. The plaintiff’s attorney grilled him about the little time he spent with the boy. Although Dr. Y’s attorney did what he could to diffuse the situation, the facts — the cursory exam, the incorrect phone diagnosis — were damning. The jury returned almost immediately with a guilty verdict and awarded $1.25 million in damages. 

Legal background

Ms. B was not personally sued in this case, even though the plaintiff’s attorney alleged that she was negligent in her phone diagnosis. Instead, the decision was made to sue Dr. Y, both for his own negligence in treating the patient and as Ms. B’s employer. As a general rule, physicians have larger malpractice insurance limits than nurses, so suing the physician is a tactical decision on the part of the plaintiff’s attorney.

Protecting yourself

Making a diagnosis on the phone can be dangerous, yet clinicians get calls all the time asking for help with seemingly routine problems. Knowing which symptoms can be left untreated and which warrant attention can be challenging — even in a face-to-face examination. While the fever and vomiting certainly could have been signs of a viral illness, the child’s unwillingness to stand (or walk) might have been a clue that he was suffering from something else.

It is important, even when discussing symptoms over the phone, to ask as many questions as necessary: “How long has the child had fever? Is his abdomen swollen or tender? Does he cry more when you touch one side of his stomach?” Aside from probing further, Ms. B should have insisted that the child be brought in for examination if he didn’t improve the next day.

Appendicitis is a fairly common pediatric ailment, and it can complicate soon after occurrence. Urgent medical care is often required, as the appendix can burst within one or two days after symptom onset. 

Lastly, Dr. Y’s negligence in not giving a thorough examination in inexcusable. Taking the time needed to properly evaluate each patient is fundamental, despite the economic pressures of practicing medicine today.

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