Nurse Practitioner’s Prescription Results in Negligence Lawsuit

By | 2022-10-06T17:13:32-04:00 October 10th, 2022|1 Comment

According to the American Association of Nurse Practitioners (AANP), there are more than 355,000 licensed nurse practitioners (NPs) in the United States and 96.2% of them prescribe medications. The demand for NPs’ services continues to increase — but so, too, can their liability risks. In the following case, an NP’s actions raised many questions and led to a negligence lawsuit.

Facts of the negligence case

One Christmas Eve, a patient had a bad cough, which she believed was caused by bronchitis. Her primary care provider’s office was closed, and she did not want to go to the emergency room. When she told a friend about her symptoms, the friend suggested contacting a nurse practitioner she knows. The NP worked for an express, walk-in clinic but was not working on Christmas Eve.

The NP was called, but it is unclear whether the friend shared the patient’s symptoms with the NP or if the NP spoke directly with the patient. The NP prescribed an antibiotic, oral steroids, and an asthma inhaler for the patient without personally seeing her or having previously treated her. The patient’s friend took the prescriptions to a local drug store and picked them up later that day.

Neither the NP nor the pharmacist informed the patient that taking the antibiotic and steroids might cause tendonitis. She read the insert for the antibiotic but thought the risk of tendonitis only applied to elderly patients. So, she took the medicine as prescribed.

Several days later, the patient experienced arm and shoulder pain and was seen by her primary care provider who told her the “most likely cause of her condition” was the medication prescribed by the NP.

Challenges in this negligence lawsuit

When the patient filed the lawsuit, she had difficulty determining who should be named as defendants. One reason for this problem was that the NP had outdated information filed with the state board of nursing as to who her supervising physician was. The other reason was lack of clarity on where the NP actually worked. Naming the incorrect supervising physician and the clinic was not legally acceptable. She did ultimately name the pharmacy as a defendant.

In an amended complaint, the patient dropped the clinic as a defendant and named the NP as a defendant. The NP denied liability and raised several affirmative defenses, including the fault of the patient and “other person(s) and/or entities for whom” the NP was not responsible.

The NP was sent an “expedited set of requests for admission” to determine who her supervising physician was. She denied she was working for her employer and using its prescription pads that Christmas Eve, and that the named physician was her supervising physician that day.

The NP was temporarily dropped from the complaint for unknown reasons, but she was deposed. In the deposition, the NP identified the clinic as her employer and named her supervising physician. The NP also admitted that the physician named earlier was, in fact, her supervisor on the day in question — so her answers to the requests for admission were false.

In her third and final amended complaint, the patient named the NP, the supervising physician, the clinic, and the pharmacy.

The physician and the clinic filed Motions to Dismiss the claims against them. The court treated these motions as ones for Summary Judgment, which were granted in favor of the clinic and the physician. The pharmacy also filed a Motion to Dismiss, which was granted by the court although not certified as a final order.

The appellate court weighs in

The patient claimed that her allegations of negligent hiring and supervision were not governed by the state Medical Malpractice Act. The appellate court disagreed, however, and held that her claim that the physician failed to properly supervise the NP required an evaluation of his medical judgment.

The Medical Malpractice Act also stated that there’s a three-year limit on when malpractice actions can be filed unless there is “fraudulent concealment on the part of the defendant.” The patient did not file her malpractice action against the defendants within the three-year limit. As a result, she was required to present evidence of fraudulent concealment, which she did not do.

In fact, the NP never informed either the physician or her employer that she had written the prescription for the patient. Neither of the defendants knew of the malpractice action until they were served with the complaint, so they had nothing to conceal.

The appellate court affirmed the trial court’s Summary Judgment motions for the physician and the NP’s employer based on the three-year limit and the lack of fraudulent concealment evidence.

The appellate court sent the case back to the trial court for further proceedings on the professional negligence allegations against the NP and the physician’s alleged failure to properly supervise the NP.

This case’s directives about NP practice

The NP’s conduct in this case is troublesome at best. She contradicted herself several times during the pendency of the negligence lawsuit, which raises doubts about her credibility and trustworthiness both in court and in her practice.

Remember these key directives that were brought to light by this negligence lawsuit:

  • Never prescribe a medication for a person you have never met, assessed, or treated.
  • Never give a prescription to someone other than the patient — unless it is a known family member who the patient has identified as someone who can receive the prescription.
  • Always inform a patient of any potential side effects of a medication you prescribe.
  • Never lie or omit facts about the circumstances surrounding a case filed against you. Even if you later acknowledge your false testimony, this casts a shadow on your credibility.
  • Inform your supervising physician and employer of prescriptions written that are not consistent with employer policies and usual standards of practice.
  • Always keep your state’s board of nursing informed of all required information to be updated, including your supervising physician (if one is required).

These courses shed more light on nurse practitioners’ roles and responsibilities:

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The current healthcare environment offers new opportunities and a growing demand for advanced practice registered nurses. The American Association of Colleges of Nursing describes four types of nurses who are considered APRNs: certified nurse practitioners, certified nurse-midwives, certified registered nurse anesthetists, and clinical nurse specialists. This module will provide initial guidance to an RN who is interested in returning to school to attain an advanced degree and transition to become an APRN.

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Written and peer reviewed by pharmacists and advanced practice nurses, this course features a wide range of medical conditions and the medications associated with them. Chapter topics include hypertension, GI, critical care, sexually transmitted diseases, asthma, oncology, non-opioid analgesics, diabetes, weight loss, and mental health conditions. The chapters highlight clinical uses, dosing, interactions and adverse effects for the common medications used in your practice.

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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, concentrates her solo law practice in health law and legal representation, consultation, and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. 

One Comment

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    Cheryl tramontana October 23, 2022 at 4:13 pm - Reply

    Would this also hold true I’m reverse – giving preoperative stoppage orders for a patient you haven’t established a patient provider relationship with. You are not the prescriber either, and you have had no face to face or telehealth contact with the patient?

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