Patients at risk when hospitals replace physicians with NPs: Attorney Travis Dunn (Part 1)

Systems. Mr. Dunn, welcome to the show

records. And what I ended up leaving out of the book, because it was too convoluted to explain really, was this deletion of medical records after she died. And that's something we really haven't talked about before, but you you really have kind of opened up this opportunity to talk about it, because just to let the story at least have the public so they know.

Essentially, after Alexus died, the admitting nurse practitioner -or the hospitalist - and her supervising hospitalist reached out to medical, I guess risk or the risk management people and said, 'you know, what do we do about this, we recognize that this nurse practitioner missed all this in the ER, we documented it.' And they elected to delete the record entirely. And so there's probably more to

it. But if you could tell me a little bit more about sort of, I guess a couple things, how to get into Mercy and how to get these records and how to find this kind of stuff out?

information. And then the second nurse practitioner said 'okay, go ahead, admit her.' Now the second nurse practitioner, the hospitalist or the nurse practitioner who was assigned to be the hospitalist was at home at about 3am. And she made a quick note in the electronic

medical record. The next morning, she gets to the hospital, she views the actual chart, she sees that Alexus had basically every textbook sign and symptom of a pulmonary embolism, that that information was communicated to her at 3am

in the morning. So she makes a note, we called it the CYA note where she indicates she basically lists all the symptoms that are in the medical record at that time, and specifically notes that she was not informed of the signs and symptoms at the time that Alexus was admitted. And the supervising physician comes into work that morning. He looks at the record, we know that from the audit trail, he then sends an email to risk management is entitled 'urgent contact me immediately.' Then

the 8am note is deleted. And then he signs off on the record. Sothat leaves the original note that didn't provide any symptoms. And then the hospitalist's final note where she was transferred to OU, omitting the note - deleting the note - that lists all the signs and symptoms that were present that second nurse practitioner is not informed. And the only reason we knew about that was because we had a judge that was willing to look at the evidence

and listen to argument. And mercy was ordered to produce the metadata, the audit trail, the audit log, we got that, that's when we realized there was a lot of information that was missing specifically this one note. Had we not had that judge, and we had a different judge that had a different slant, had a different opinion, a different interpretation, we wouldn't got that that was a pretty key piece

of evidence. And the same judge also gave us access to some of the hospital's investigation, and most judges wouldn't have. And that was also another key piece of evidence in the case. But without that audit trail, without the metadata from electronic medical record, we would never have known that there were pieces of information, pieces of medical record and entire nurses notes that were deleted.

guidance. And so you have to look to federal law to provide persuasive authority to the court and allow judges, you know, they have 40 cases on the docket, and they don't want to take the time. And then there's a natural predisposition to protect the hospitals' privileges. And so you really have to lay it out in black and

white, and show them. And it's getting easier, you know, this case was several years ago, the judges in Oklahoma County in Oklahoma are a lot more willing to provide that audit trail information now than they were. Back then it was very rare thing for us to get that. And it took

a lot of work. And, in fact, the investigative part of it went all the way to the Oklahoma Supreme Court on a writ and we had to put the whole case on hold while the Supreme Court looked at it and go argue there, and then come back down and proceed with litigation. So things are easier now. But as far as the electronic medical record aspect, you just really

have to go step 1-2-3-4. And lay out the federal HIPAA regulations to the local courts, and convince them that this is actually the property of the patient, and they should have access.

there's accountability. And I think what's so fascinating about this case, in particular, is that you and your firm were able to show the facts, which were that Mercy had a systematic approach of hiring nurse practitioners to work in positions that they were not supposed to work in. And you actually were able to show that it had to do with cost savings that patients were being deceived. Did you have any idea that any of these things were happening before you had this case?

inform the family. I remember very clearly telling Alexus's boyfriend that the person that he'd been dealing with, that he thought was a doctor was in fact a nurse practitioner. And this was a year after she died. He had no idea. So we really approached it the case from the perspective of understanding that nurse practitioners have a role to play in the emergency room. And that even though this nurse practitioner made a lot of mistakes, she should never been

in that position. Though she was credentialed, she was given assignments, she was she was scheduled to be the only provider in the entire building at the time. And although she certainly made mistakes, and didn't handle things the way that we think she should have, she should never be in that position. She should have been the only provider in the building, she should never have been required to diagnose a

pulmonary embolism. And so we approached it from not necessarily making her the bad guy or blaming her but from why was she there, knowing what should have happened. That's that was our approach.

responsibility of Mercy. So the second piece that I wanted to talk to you about so much is that here they had identified that she had, you know, nurse practitioner Thompson had made a number of mistakes on other cases, and they had sort of deemed her as not doing high quality care. Well, I'm not saying the right words, but essentially, they'd been worried about her and terminated her and then let her work 30 days out.

To finish out the shifts for which she had already been assigned on one of those last shifts is where she ran into Alexus Ochoa and misdiagnosed her, and Alexus died. And so the second question I had for you was sort of how can this go on when you identify someone who's really incapable of doing their job for whatever reason, whether it's a doctor, whether it's a nurse practitioner, how are these hospitals able to shield this and continue to do this?

Contrast that with the way hospitals conduct an investigation, everything is privileged, you know, find out any information about any doctor, or provider, all that information is kept strictly confidential. And I think that is the reason airline travel is the safest way to travel and medical errors are the third leading cause of death states. In Oklahoma, there are two privileges that control those sort of investigations. And we had, again, we had a judge that was going to look at the law.

And we were fortunate in that the peer review privileges in the state of Oklahoma are written about doctors, this wasn't a doc. And so while the hospital believed these investigations were going to be protected and were brutally honest in their internal investigation as a result of that, they weren't because it wasn't a physician, and that these statues to protect those

investigations don't apply. So we had all their internal documents with regard to investigation, that's where it was revealed that she had a long list of quality concerns, Misdiagnosing, not making work ups, misinterpreting test results, ignoring patient symptoms, working back-to-back 24 hour shifts with different hospital systems, and they decided to fire her. And then we got access to internal emails where there's a conversation about 'well, we if we fire her for cause we have to pay her 30

days. But if we just fire without cause and let her work the rest of 30 days, we don't have to pay to people who do that work.' And so they sent her a letter of termination that was to take effect a month after the letter. And it was her next the last shift that Alexus came in. So that was a an aggravating factor. And in the lawsuit, also when we depose the doctors who were part of investigation, they said there were no problem, no problems with her, quality was

fine. And then we get to documents where they were on the records, they will not accept any more patients from this person. she doesn't do a complete workup. And it was it turned out to be a lot of really persuasive information. And again, it's because we had a good judge, that was one to look at the law. A lot of judges would have seen that document stamped 'peer review.' And that have been the end of the

inquiry. And it was peer review but this judge took some time look at the actual records, to the statutes and corrected rule that we should have access to that information. If there were more of those types of investigations that were made public, I really believe we would have a lot fewer medical errors. When they've terminated her, and she went off to Iowa to work, they gave her a letter of recommendation because she

wasn't fired for cause. And so they passed her on to another hospital system without telling anyone that she had had a long list of complaints. So I just really believe that I understand the public policy argument by keeping these investigations confidential. But I think the public would be much better served. If there were no sort of privileges of all the investigations were conducted.

ship=ft. And when we kind of challenged them in depositions about that, 'well, that's not our responsibility. Those are our patients,' which I thought was very telling, but they they didn't even notify Baptist that she was double booking that she was going to work at Baptist, after working a 24 hour shift at Mercy.

he was. And when I compare that to there's a case I'm sure you've probably heard pieces of it out of Minnesota, where there's a physician who got a phone call from a nurse

practitioner. He wasn't even supervising ,had nothing to do with, and he was I think, the admitting physician, and he said, 'No, that person doesn't need to be admitted.' And the information had been repeated to him incorrectly, basically, from the nurse practitioner, and, and so in a nutshell, he is being sued for responsibility for this death of this patient, even though he never saw the patient, he wasn't obligated to oversee the nurse practitioner, the nurse practitioner had a

supervising physician elsewhere. So I guess that's my long way of asking, Why didn't Brent face more backlash or more dings on his license? I mean, technically, he was supervising her. And why was there why were they able to separate that versus other areas of the country don't seem to be able to do that, even when they're a supervisory state?

And, you know, to a couple folks credit, when got those emails, they were doctors that said, 'I'm not going to sign off on being a supervisor for someone that I've never met.' But there were lots and lots of doctors that did. So this physician, and was her supervisor position and also was in a director of the ER department. He took the brunt of that. But there are a lot of doc that had signed off as being supervising physicians for nurse practitioners, but didn't know

their names. They never met him. You know, and I think Dr. Wilson, the main reason that he was assigned some liability was because he had responsibility for overseeing the emergency

department. And he really had no, you know, I took this deposition, very nice guy, but had no concept of the educational limitations, the license limitations of the nurse practitioners, and was operating under the belief that they had a broad scope of practice, as opposed to being a very narrow scope of practice in a very small area of medicine. And so he thought, if there was an I mean, I think he pretty much admitted this, if you got a nurse practitioner, they can do anything.

that's why Alexus died. I mean, Nurse Thompson made a lot of mistakes, but she should never have been there. Alexus died because Mercy was just wholesale substituting nurse practitioners for physicians.

And so we just wanted to make sure that patients were able to ask and say, 'Are you a physician?' If a patient isn't doing well, 'could you please call a physician to oversee my care?' Because it's so interesting - Mercy being a multi billion dollar corporation, and they have only a nurse practitioner as a hospitalist and a nurse practitioner in the ER. I mean, this to me is crazy. And this was not a rural area. They tried to make the argument that they were rural.

Reno. And he was saying, 'you know, in El Paso is an hour away.' And finally one of the prospective jurors, and I think it was actually a jurer that ended up serving said, 'do you do you mean El Reno, because El Reno is not an hour away.' You know, because the ambulance ride, it's important point, they tried to paint this as a rural facility. But when Alexus was transferred from El Reno, to OU Medical Center, Oklahoma City, it was a 22 minute ambulance

ride. So it wasn't a rural area, they have access to whatever they needed. They were just trying to save money. And, you know, when we were going through kind of trying to figure this stuff out ourselves, it was interesting. Their defense was, 'well, she was a firefighter, she was a paramedic, she's worked in emergency room as a nurse, you know,' and that was, you know, when we're taking those definitions, 'okay, well, how many times you order a test isn't? How many times you you

interpret the test result? How many times do you make a diagnosis? how many times - ? ' you know, and it just the comparison doesn't hold up. I mean, nurses are important, provide an important function, but they don't decide what tests are run. They don't interpret those tests, they don't diagnose conditions, and relying on her experience as emergency room nurse to justify her being in charge of an emergency room and making diagnosis especially, you know, diagnosis like pulmonary

embolism. There just really wasn't an excuse for it. It wasn't a way to justify -

qualified. But I can look at a person and say, 'Whoa, this person is sick. And I need to get somebody that knows what they're doing involved.' And I think that's what was so egregious about this case, like 13 hours, with a woman to continuously decompensating and no action taken.

deleted. That's true of the cardiologists that nurse Thompson called initially because she sort of presented Alexus as an amphetamine abuse or toxicity case, and didn't say more. And as she when she called a second time, like you're talking about Rebekah, you know, she finally provided the information the doctor needed, and he just said, 'Wow, we need a CT scan, and we need a D dimer.' The shame is that while she knew she needed help, she didn't even know what kind of help she needed.

practitioner. And so when we're able to get access to that metadata and show the original note where she says, she told me she had all that heart rate, but she didn't tell me all these other textbook signs, it lined up perfectly with what the doctor at the Heart Hospital has said, 'This is what she told me.' And so that's why having access to that sort of metadata and those audit trails is so

important. Had it had we not had that it would have been really a battle of credibility between nurse practitioner and doctor 'he said, she said,' But but but when you had when you see it written down in the note, she had the symptoms, and she didn't tell the nurse practitioner and tell me about it. And then that recitation is precisely and I mean, exactly lines up with what the sworn testimony of the doctor and hospital, it really kind of shows you what the truth is.

But I think really getting the metadata, which is it's so important, because in both cases, so really all three cases I'm aware of where we've had this situation, they go back and they alter the record. And of course, we're trained as physicians not to do that. I mean, I'm on paper. And so my alteration of the record is two lines with a ruler. And I'm sure you're very familiar with that, where you can still see what we

wrote. And it's like, Oops, I made this or that, I put down t e wrong height or the wrong w ight. And cross with two lines nd then initial, and then you rite the proper answer. And enerally, if I'm going to do hat I call as a late entry, et's say I didn't fix a ictation, or I made a mistake omewhere and I find it a year ater, I put the new date like a ear later, I say 'this is a late entry error on this prior dates, here is what it should have said

or whatever. So there, there's trail of it, where 'Yes, I d d this here. And here it is.' Bu I think essentially, that's hid en in this electronic rec rd system, except when you get i to the metadata. And they all nd I'm sure physicians proba ly alter it to I haven't c me across that yet. I'm sure it happens. But I think this i ea that after a person dies, you go back and fix the record is really kind of scary, to

willing to do it. And I always believed, even after this case, that if I got a record, and there was a note, or an op report, or whatever it it said version one of one, that that was it, there were no other versions, because I thought that was at least one check on it. But now I've learned that they can print the third version of the record, third version of third version of the op report, and make it read version one of

one. And so there is no way without getting the audit trail in the metadata to authenticate the record to know that this is the care that was received, actually received, as opposed to something that was put in the record yours later. And that is it's a fight. I mean, we we have multiple Mercy cases right now. And every single case, we have to file a motion with the court to get the audit trail. Now we're starting to get it, it used to be we didn't always but now I think the courts have kind

of caught on to what it is. And we're getting those now. But at the time of this trial, you know, which dates back a few yearsm this is one of the first ones we got.

regard to that. But you know, it's one of those things in the closing argument, and this is probably in the minutia that you don't really want to know about, but we had we had it set up to get into punitive damages. I think if we got into that, and we could have told the jury how much money that Mercy was saving by doing this, the verdict would

have been very different. And the defense counsel said, 'Well, you know, if you check punitive damage, we're going to have to come back and do another trial.' And I, you know, and that that comment slipped past me at the time. You know, I think looking back, if I just said, you know, 'it's one witness, you've been here for two weeks. Give me another two hours.' I think they would have- because I believe that they would have awarded punitive damages, I believe the jury was headed in

that direction. But they're human beings, too. They have their own lives. They just spent two weeks in this trial. You know, and I think that was a key point that I wish I'd go back and do it differently. I would have I would have addressed that.

there. And if we had got to that point, we would have been able to show the investigative documents where they were still using nurse practitioners in the same way, we would've been able to show how much money they saved, we would've been able to show how much money they make, we've been able to argue, 'if you want to change this behavior, you have to hit this billion dollar corporation hard enough for them to change.' And so we weren't allowed to get into that, because the jury did

not find that they acted with reckless indifference.

the same thing today. You know, we had testimony from one of the higher ups that they would hire, they're still doing the same hiring practices. You know, if we could have got that in the second stage of trial, I believe the jury would have awarded punitive damages. And that would have been a function of not have what it takes to compensate the parents of Alexus, but what it takes to change versus behavior, and that would have been a much bigger.

medicine. And we're told, 'Oh, just sign off, and it'll be okay.' And just work without functioning electronic health records and just work without a proper - like, there's an obstetrician right now that's being sued, because she delivered a baby when all the

systems were down. And instead of taking responsibility for their systems, being down the hospital said, 'Well, the doctor shouldn't have delivered her if she thought it was dangerous.' So I mean, but this is the kind of behavior that is so common, and it's, and if you complain, or you say, you're not going to do it, they fire you. And so then you have very little recourse. So I think the only thing we can do is to find these cases and try to bring them public and try to get accountability.

Dr. Death. That's where you find out about all the other incidents that this nurse had, you know, if you can get if you can make the investigations public, if we can get access to that information, then you can show a jury, 'hey, no, this wasn't her first rodeo.' She had lots of other problems and they kept sending her back, or they passed her on to a facility in Iowa and didn't tell them abou

this. You know, that's where yo think you can really creat damages for the system - for M rcy system, for integra system, for those sort of health are corporations as oppose to focusing on individual act

e channel. And if you' e interested in helping out y u can join physicians for patie t protection our websit , physiciansforpatient protection.org Thanks so much.