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  • Writer's pictureRebekah Bernard

Patients at risk when hospitals replace physicians with NPs: Attorney Travis Dunn Part 2

In part 2 of this discussion with plaintiff's attorney Travis Dunn, we analyze the tragic case of Alexus Ochoa, who died because a multi-billion dollar corporation elected to replace physicians with unprepared NPs. Mr. Dunn discusses the role of the expert witness in NP malpractice cases and what he has learned about the limited scope of practice of nurse practitioners.

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Rebekah Bernard MD 0:07

Welcome to 'Patients at Risk,' a discussion of the dangers that patients face when physicians are replaced with nonphysician practitioners. I'm your host, Dr. Rebekah Bernard, and I'm joined by my co-host and the co-author of our book, patients at risk the rise of the nurse practitioner and physician assistant in health care. Dr. Niran Al-Agba.

Niran Al-Agba MD 0:25

Good evening.

Rebekah Bernard MD 0:26

Well, we are back with Mr. Travis Dunn, he is a plaintiff's attorney in Oklahoma talking with us about some of the details of the Alexis Ochoa case. And we wanted to kind of start talking a little bit about some of the nuances of expert witnesses because you called several witnesses; you had physicians, but then the I guess the defense had a nurse practitioner expert witness. And tell us a little bit about- first of all, how difficult is it to do expert witnessing when it comes to a nurse practitioner? Does it have to be a physician? Does it have to be a nurse practitioner? Explain a little bit more about that.

Travis Dunn 1:03

Well, you know, everything is different in different states - medical negligence is driven by state law. In Oklahoma, only a physician can testify to causation as to the pulmonary embolism that caused the death. And as the standard of care, there is a little bit of a gray area when it comes to nurse practitioners. The defense believes that only a nurse practitioner can testify to the standard of care applicable to the nurse practitioner. So

We called the nurse practitioner to testify to the standard of care, but we also called a physician because it was our philosophy that healthcare corporation doesn't get to adjust the standard of care. The standard of care that a patient should expect going into the emergency room is the standard of care, period. It doesn't matter whether you attempt to meet that standard with a nurse practitioner, or you actually have a physician.

So that was our philosophy. I think it put the defense in a difficult position. Because if their nurse practitioner testified to a different standard of care, that proves your point. Right? So if the nurse practitioner testifies, 'Well, I didn't know to do that, because I'm just a nurse practitioner,' then that shows well, you should have been in that position.

But I think as a technical matter, the law requires a nurse practitioner to testify to the standard of care of a nurse practitioner. But we approached it as it's not the standard of care for the provider, it is what is the standard of care for a patient walking in the ER.

Fortunately for us, well, not fortunately, it's the way it should be, they both matched up. I mean, the pulmonary embolism should have been diagnosed, the D-dimer should have been ordered, the CT scan should have been ordered. The PE should have been diagnosed, she should have lived. Doesn't matter whose treating it. And by approaching it that way we put the defendant in a bit of a spot because if when you write and said, 'Well, I didn't know that I was supposed to do D dimer because I'm just a nurse practitioner,' then that would illustrate the point that the physician should be in that position. So we call so I don't know if I should question.

Niran Al-Agba MD 3:09

Well, I think this concept comes up a lot where a lot of physicians are aware that nurse practitioners to a certain extent, based on a few older cases that we've covered in our book, aren't really held to the same standards of physician and what I find so interesting about this case. And I think this will occur in cases moving forward. I'm involved in one that I'll be testifying in next year, where I think the same thing is going to happen, where it's not about the nurse practitioner being held to the standard of the nurse practitioner, it's about the fact that if you go into an outpatient clinic, that's a pediatric clinic, or you go into urgent care or you go into an emergency room, it's the standard of care that you would assume you would get under normal circumstances with physicians. And I think that's such an important point that if lawyers aren't making that when they do cases, I think it's really important because when you walk into an emergency room, and as you remember mercy had it published on their, on their website, that 24/7 coverage with physicians, right.

So the expectation was you would have a physician, so then the care provided no matter who's doing it should be held to that physician standard. And I think that's going to become the norm. Moving forward, as we see more and more deaths of children, you know, other sorts of young people that were unnecessary deaths. I think there's this idea that this business of nurse practitioners can't be held to the same standard is probably going to go away just because they are playing doctor and they are functioning as a doctor. And they're introducing themselves now as doctors. And I think that's a really important piece of this. And what's interesting about Wendy Wright is she's made a bit of a career, hasn't she out of being an expert witness defending nurse practitioner mistakes? Could you talk a little more I don't know if you know much about her background, but I'm sure you know.

Travis Dunn 4:52

Yeah, no, I don't I don't specifically know a lot about her background, but I know that there are I mean, there are a lot of doctors and nurse practitioners There's that make a good living, testifying on behalf of descendants. And I know that she had testified on multiple occasions at this time, but I'm sure she's done a lot since now since then testifying as to the standard of care for nurse practitioners, she'd made a lot of money doing that.

Niran Al-Agba MD 5:18

Well, and the other piece of it, I find so interesting, there were two things I found interesting about Wendy's deposition was the first her differential diagnosis, which is something she was clearly never trained to do because it's completely different than the doctors. And it's really interesting to listen to, you know, there was this whole thing about when Alexis passed out, that Antoinette Thompson canceled the head to cancel the chest CT that she had ordered, and she really wasn't sure why but would have been the right test and ordered head CT. And you know, Wendy did the same thing. In her deposition testimony, she sort of said, well, when she passed out, it could be your head. Where's the rest of us that are physicians were sort of saying, It's not her head. It's her cardiac. It's something you know, pulmonary or cardiac-related based on our vital signs. And what's interesting is even when you asked about D dimers, I think she said something about she's not a lab expert.

And I find in testimony what's fascinating is, you know, if I as an ER physician, I'm not an ER physician, but most ER physicians would answer, of course, I know what a D dimer is. And of course, I know when to order it, because we would have been spanked, frankly, in residency if we hadn't known those sorts of things. Those are the things that get you kicked out. And what's fascinating is in Wendy's mind, it was 'well, no, that's outside of my scope. I don't need to know labs. I just need to know diagnosis.' So if you could comment a little more about that, I would appreciate it.

Travis Dunn 6:37

Absolutely. No. Another question wasn't specific to our case. But it was important in our case, because there was a blood test that came back positive for methamphetamine, but negative for amphetamine. And so first of all, we went through those questions about well, does she have any signs and symptoms of meth use? No, none? Well, how does the body process methamphetamine? I don't know. No, but it did well, okay. Did you know that it breaks it down into amphetamine? So it's physically impossible to have methamphetamine in your blood and not amphetamine? But now I wasn't trained about that. Okay, then why are you interpreting lab results? Why are you in a position where you're making a diagnosis based on a blood test if you don't understand basic physiology from the blood test? So that was a you know, and the reason that we're talking about punitive damage, or where we're getting to due to damages was the affirmative act of canceling the chest CT, right. That's an affirmative act. It's not an omission, she canceled and she did that, because she thought Alexis was on meth, because she relied upon this false positive that any version of physician would have recognized as a false positive based on his face, be set aside the fact that this was not, she had zero signs and symptoms, in fact, she had low blood pressure, she had low, she was passing out, you know, people on methadone pass out. The test itself should have demonstrated that it was a false positive.

But for a family practice nurse practitioner, who has never been trained to evaluate those types of tests, were run overhead, she had no idea she couldn't even report the science, she recognized the signs and symptoms. And so I think back to your point, I think that's why it's important to talk about the standard of care in an emergency room, not the standard of care for a nurse practitioner. Because anyone that's ordering that lab tests, anyone has the authority to order that lab test needs to have the education and experience to interpret it. No one is going to form a differential diagnosis or a diagnosis based on that lab result needs to understand what it means.

And so I think that's why I think if it's presented correctly, and someone like when you write trust to say, well, that's not within my practice, but the practice you use that to illustrate the gap between a nurse practitioners training and a physician's training.

Rebekah Bernard MD 9:07

Yeah, and this is exactly the problem with shortcuts. And we often hear it said all the time, from advocates for independent practice for nurse practitioners, that they can do the same thing because they have this nursing experience. But yet, Antoinette only had 500 hours of clinical experience, which is the minimum required for nurse practitioners working providing prenatal care in a health department. And how does that give her any I mean, there's no physician in the world that would be credentialed to work in an ER with that kind of background.

Travis Dunn 9:39

Exactly. We approached this case based on there's nothing wrong with a family practice nurse practitioner working in the emergency room. She can work on family practice issues. She shouldn't be if you're going to have a nurse practitioner, that making these type of diagnosis they need to be an emergency Certified Nurse Practitioner when acute care certified nurse practitioners, and even then they need to work collaboratively with a physician or under physician supervision. But what I didn't know any go into this case, we had to educate myself.

So what I've learned is that a family nurse practitioner goes, in this case,to an online school, with very little practice. Their scope of practice is tiny, narrow, and they can essentially in Oklahoma act as a physician, and that they're supposed to act in that really small scope of practice. If you credential and grant privileges to a family nurse practitioner to work outside that little sliver of her training, people die. And that's what this case was about. Really, it was about taking a license and stretching it to make money.

That's, that's what we thought.

Rebekah Bernard MD 10:54

Yeah. And that's exactly what's happening. So as much as I hate for these things to happen, and no, nobody wants to see anybody get in trouble. This is the only way to stop this kind of behavior. Because patients need to make - they need to get high-quality care. They don't know where they're going when Alexis was brought in by an ambulance. She didn't have any say in where - What hospital she was going to go to or who was going to see her and none of us will. And one of the points

Sometimes we're told that we're engaging in a turf war. And I always say, 'Yes, I'm a physician, but I'm a patient too. And I will be a patient if I'm not one.' One day, I'll be rolling in on an ambulance, on a gurney. And I want to make sure that the person that's taking care of me is someone that's qualified to do the job. And I don't think that that's asking too much for any of us.

Travis Dunn 11:41

I think nurse practitioners have an important role to fulfill, but because their training is vastly different than physicians, you can't treat them as physicians, they have to stay within their scope of practice. And what I learned from this case is their scope of practice is shockingly small.

No, it is very, very small. And they're not qualified. I mean, in one of the other hospital systems in Oklahoma City using the way they should be used, in my opinion, they stay in their lane, they work under supervision. So you may have one physician in the emergency room, and he may have four or five nurse practitioners, they're all assigned different types of patients after the triage, and they're all supervised by a physician, left alone in the emergency room by themselves to diagnose conditions that they were never educated or trained about.

Rebekah Bernard MD 12:33

But don't you think part of the problem is that their true scope of practice is really small. But the way the statutes are written, like the Nurse Practice Act, and things like that, it's so vague, it says, you know, work to the top of your license and to the top of your training and the full extent of your blah, blah, blah. And I think it's really hard for people to tease out what that scope really is.

Travis Dunn 12:54

Yeah, well, I don't think it's hard if you want to do it. I mean, if if you read the statute, it says you must stay within this in Oklahoma. That's the only statute I've looked at, and I apologize, stay within your scope of practice, your scope of practice is defined by your postgraduate education, right by your, not your RN after are in education. So if you go to a family nurse practitioner program, your scope of practice is limited to that if you go to acute care, you're limited to that. Pediatrics, you do that. I mean,

A nurse practitioner knows where the scope of practice, she knows what her line is, I think the problem comes from an administrator says, 'Oh, I've got a nurse practitioner,' having no idea how truly narrow the scope of licensure and scope of practices, 'I'm going to put her in the ER, she's got a nurse practitioners license, I can do that,' with no real understanding of the fact that she's never seen a pulmonary embolism.

Right. So she can't diagnose that

Rebekah Bernard MD 13:54

you're 100%. Right. And again, what's just shocking is that we're seeing this happen across the country. And in so in, even in, like I was saying, university teaching centers, we're seeing nurse practitioners being used, in my opinion inappropriately, and I think it is this idea of, oh, they can do everything, just let them do it. And I think a lot of it is those cost savings, which is really unfortunate.

Travis Dunn 14:17

And I think, you know, I'm not a nurse practitioner. I haven't gone to nurse practitioner school.

[NPs] know what their scope of practice is. And I think they probably would prefer to stay within that. But when they're granted privileges to do things that far are far broader than that. And they're put in a position where they're required to do things that are far outside their scope. They're put in a position to fail. They're done a disservice by organizations that want to compare them to physicians

and say the need that they can wear I think, if their organizations want to truly do what's best for nurse practitioners They focus on the scope of practice and staying within the scope of practice, not putting their members in a position to fail.

Niran Al-Agba MD 15:08

You know, it's interesting that I mean, going back to Wendy Wright. She's a outpatient sort of family nurse practitioner on the East Coast. And so she isn't in an emergency room, but I felt like she made the opposite argument during her depositions that, you know, any nurse practitioner should be able to diagnose a pulmonary embolus. And, you know, any nurse practitioner should know how to do resuscitation and manage emergencies. And so, um, yeah, can you speak to that a little bit, because I found it fascinating.

Travis Dunn 15:34

She definitely did this, she, her opinion was that once you get the nurse practitioner, certification, you go through the nurse practitioner's education without you, you're gonna do anything. You know, as long as you're educated and you have experience in this person. And her she again, fell back to the RN experience, which is just my thing. I mean, I think is a disingenuous argument. Her position was, well, this person had been trained as a firefighter, as a paramedic, as a nurse in the ER. So obviously, she has experienced emergency medicine. Well, did she ever order a test as an ER nurse? Was she ever required to interpret a blood test? Does she ever form a differential diagnosis? Does she ever diagnose the PE as an RN? No, because those aren't functions that are performed at the RL.

And so she just basically ignored the fact that experience at the RN level does not translate to experience that the APRN level, right, as a nurse practitioner, you're asked to basically perform some of the functions of a physician to do to diagnose to order tests to interpret tests, to diagnose conditions. And those are not functions that are that you learn how to do as an ER nurse.

So the argument was disingenuous on its face because she knew in her testimony that that's when at Thompson was not given market share and training in her family nurse practitioner. She was not trained education, she was not trained how to diagnose a pulmonary embolism, or which tests to order to, to kind of get around that. She said, Well, she knew all that from being an ER, nurse. That's that's just there's a gap there. You know?

Rebekah Bernard MD 17:22

Yeah, you're totally right. And I think your point that many nurse practitioners want supervised practice, they want to practice within their scope, but they're being put in these really uncomfortable positions. And I agree with you, I think their leadership, the AANP, has really been advocating for them to practice a lot more than many of them want to. So hopefully, some of their members will speak out. I know that they find it hard to do that because their or their leadership is very vocal and loud and can be punitive to nurses that don't agree with that stance.

Travis Dunn 17:54

Yeah, I mean, I've seen I remember watching on the Today show, I don't remember the person's name. But she was a spokesman for one of the organizations and they were pushing. She described the and this was not long after this trial. She described antiquated statutes and antiquated supervision responsibilities that haven't kept up with modern education, you know, if all you have to do is compare the education and training that goes into becoming a physician, to the education and training that goes into becoming a nurse practitioner, and there's a big difference.

Niran Al-Agba MD 18:30

I think they make the argument though, Travis, now that we don't need the training, right. So what I hear a lot of people saying now, and I'm sure as a medical malpractice attorney, you have an opinion about this, but which I'd love to hear. But now they say that really, doctors are overtrained. I mean, how hard is it to order a test and interpret it? How hard is it to get an x ray or CT? Or how hard is it to just diagnose when someone's got a sore throat and what I try to tell people is the causes of sore throat I mean are vast actually from something as normal as strep throat to a viral illness all the way to Lumieres disease or Ludwig's angina, which can kill children. And so I think that's the piece that people miss is our job is to find the one in a million and of course, you see the cases where we don't, or even the one in 100 that we don't or we're not paying attention, but I guess my feeling is do you think the training physicians receive is unnecessary based on what you the work that you've done? Absolutely not.

Travis Dunn 19:25

I mean, oh, you have to look at this case, you know, and there's an algorithm and every emergency room textbook that says if you have any suspicion for pulmonary embolism, you already don't have any suspicion for blood clotting you were ready to. But in order to get to that point, you have to recognize the signs and symptoms of blood clotting or pulmonary embolism of any of the other things that relate to that. And if you haven't received the training to recognize what a sign is, what a symptom is, then you don't know to order what test order. So it's easy to say just ordered, just order the test. That's okay. But you have to understand what the signs and symptoms of the condition is before you know which test to order. And so that is yes, we have modern technology is amazing, we have tests that can assist in diagnosis. But if you don't have the education, and training to form a differential diagnosis, to know what the possible causes are, feel recognize the signs and symptoms, then you don't know what tests are. And all you have to do is look at this case. And you know, any first-yea medical student would say, well, I already hammer on that just to see, you know, and it was never done.

Rebekah Bernard MD 20:49

Well, thank you, I want to thank you for validating all of our years of training, because sometimes people say, Well, I can do blah, blah, blah, just like and I think, Well, why would I go to medical school and residency for what did I need all that aggravation? There's a reason

Travis Dunn 21:03

' I don't need to go to medical school.' No, in all seriousness, I think if the education and training come in making sure that the right thing is under differential diagnosis, and it's okay to have a whole bunch of stuff on it. But if you don't have the right thing on there, people are gonna die. And that's where, you know, going to an online school and doing whatever it was 30 weeks. You know, that's that is not the equivalent

Rebekah Bernard MD 21:29

great to talk to you. We're just we really admire your work so much. And we appreciate the diligence that you put into uncovering. I mean, this case was just so illustrative of every single issue that we've dealt with, in this discussion, it was just a perfect case to use for the book, because all sorts of different scenarios that are happening across the country were described in this case.

Travis Dunn 21:52

Well, let me say to you guys, I really, and I know Marlon and Amy, we're very, very moved by the way you use Alexus's story to illustrate the problems that are brought about by overextending nurse practitioners and, and I know that they would want me to thank you guys for telling Alexis the story because that was really important to them. And to me.

Rebekah Bernard MD 22:20

Well, thank you so very much. And if you'd like to learn more, we encourage you to get our book. It's called patients at risk the rise of the nurse practitioner and physician assistant in healthcare. It's available at Amazon and at Barnes and Noble. Of course, subscribe to our podcast and our YouTube channel. And if you're interested in helping out you can join physicians for patient protection, our website, physicians for patient Thanks so much.

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