Legal Pearl: Can a Physician Be Liable for Bad Advice Given By a Nurse Practitioner?

The Case

As part of the discovery process, depositions were taken. During Ms N’s deposition, she was questioned about her treatment of Mr P’s wound and the prescription for antibiotics. Ms N admitted that she didn’t tell the patient to start taking the cephalexin immediately but rather told him to begin if he noticed signs of infection.

“Did you describe signs of infection?” asked the plaintiff’s attorney.

“Well, not specifically. I mean, I told him that if he developed a high fever, that he should take the antibiotics, but I didn’t describe signs of infection otherwise,” replied Ms N.

Dr O was then deposed and questioned about his role. He testified that he was 1 among several physicians who took turns as the on-call physician at the clinic, and that it was his turn that day. He stated that as the on-call physician, it is his duty to go over and sign off on the records of treatment provided by any of the physician extenders.

During Dr O’s deposition, he was shown a copy of the patient’s medical records. “Is that your signature on this chart?” asked the plaintiff’s attorney?

“Yes,” replied Dr O. “I signed it pursuant to clinic procedure, but I, personally, never saw or treated that patient.” 

“But you did review the record?” queried the attorney.

“I looked it over at some point,” said Dr O, “and I did sign the chart, but I’m not sure when.”

“So,” continued the plaintiff’s attorney, “you saw that Ms N noted in the chart that the wound involved multiple layers of fat, fascia, and muscle as well as being grossly contaminated?”

“If that was in the chart,” replied Dr O, “then I assume I must have seen it.”

Before the trial began, the physician’s attorney made a motion to the judge to dismiss the case, claiming that the physician had not seen the patient himself, and that he may not have even seen the chart until weeks after the event occurred. The judge denied the motion to dismiss, and on advice from their attorneys the physician and nurse practitioner settled out of court with the patient for an amount covered by their malpractice insurance.

What's the Take Home?

The physician could not absolve himself of liability by simply saying that he hadn’t seen the patient. It was his responsibility to review the files of the physician extenders on the day he was on call. Even if he had reviewed it a day or 2, or even a week after the incident, he could have followed up with the patient to make sure he was recovering properly. That simple act of making the phone call to the patient might have been enough to prevent both the infection and potentially the lawsuit.

The nurse practitioner erred by prescribing an antibiotic to a patient and leaving it to the patient to decide when and if the antibiotic was necessary. Most patients have no medical training and can’t be expected to determine whether they have an infection or not, particularly if the signs of infection haven’t been properly described.  Antibiotics should not be prescribed for a “what if” scenario that the patient must figure out, particularly in this era of antibiotic resistance.

Finally, she should have considered giving the patient a tetanus booster, and should absolutely have told him to contact his physician when he returned home, or had him return to the clinic in a day or 2 for a follow-up exam.

Bottom Line — Most patients have no medical training and can’t be expected to determine whether treatment is necessary. It is important to explain treatment to your patients and encourage follow-up.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.