The Anecdote Has A Face…And A Name

Most health care professionals have that one case in their practice that stays with them forever. That one patient who affected them so profoundly that he/she will never be forgotten. I’m no different. I actually have more than one over my nearly 25 years of emergency medicine practice. But there is a patient I never treated whose story resonated with me so deeply that I feel compelled to pay homage to her.

Alexus Jamel Ochoa-Dockins was a 19 year old college honor student majoring in pre-pharmacy. She was an exceptional basketball player by all accounts. On September 28, 2015, Alexus died. She managed to survive for approximately 10-11 hours before she succumbed to pulmonary emboli (PEs). The Family Nurse Practitioner(FNP) responsible for her care did not only fail to identify the classic symptoms of a PE, she did not notify a physician until 10 hours later because she did not recognize that what she was witnessing was a critically emergent event. Based on the notes by the paramedics who arrived at the scene, Alexus had syncope, shortness of breath, chest pain, hypoxia and was tachycardic. They obtained a history which revealed she was on birth control pills and had just arrived back to her dormitory from a weekend trip with her boyfriend after visiting family. One of the paramedics called the Mercy El Reno ED enroute, informing them that she was bringing in a patient she suspected had a PE and that a CT would be needed. The FNP did order a STAT CT, then subsequently cancelled it. I will add that the FNP had been terminated by the hospital for concerns regarding her care of patients. Although she was given 30 days notice, she was allowed to continue working until her final day, despite the concerns. Alexus arrived three days before the FNP’s last shift. The details of the case can be read in the link below.

Alexus did not have to die. I maintain that it was not just the PEs that killed her, but a hospital system that created a culture in which an unqualified FNP could practice without supervision or oversight in an acute care environment where one must be prepared for any crises that may enter those doors. I fault the FNP for accepting a position for which she was clearly not qualified and a medical director who was not educated on the scope of practice(SOP) for FNPs. However, he is not the exception, he is the rule. Many physicians and hospital systems are simply unaware of the limitations of nurse practitioner SOP, permitting them to work almost wherever they like. No understanding that SOPs vary from state to state and are vague. That vagueness is what creates a gaping hole of liability for both physicians and hospital systems. I touched on Alexus’ case and the SOP issue in another blog I wrote for Authentic Medicine(https://authenticmedicine.com/2020/02/whose-license-is-it-anyway/).

Now, I may be accused of judging by retroscope, but I can argue that as a residency trained, board-certified emergency physician, I am indeed qualified to make that call, especially when the patient was managed by someone without any formal medical training in acute care medicine. It is why I, and many of my colleagues, can be called as experts to testify about events at which we were not present which involve the practice of emergency medicine. “Classic” symptoms are referred to as classic for a reason. They are basically pathognomonic for whatever disease process may be ailing the patient. Alexus was textbook, her diagnosis reinforced by an astute paramedic who sounded the alarm.

After reading about the entire case and perusing the multiple depositions, I decided to contact the law firm representing the Ochoa family. I was impressed by the fact that they had the foresight to question the academic/educational qualifications of the FNP responsible for Alexus’ care. Qualifications that are typically overlooked by legislators, medical facilities, attorneys and physicians who believe as long as a health care professional possesses a certificate for whatever position they are applying, they are qualified. With the exception of physicians. As physicians, we are vetted to the gills and it typically takes 3-4 months to get credentialed to work at a hospital or other medical facility. Yet, mid-level practitioners(physician assistants/nurse practitioners) are permitted to work in ICUs, ERs, PICUs, NICUs or as hospitalists, unsupervised, without the same level of vetting. For instance, a brand new nurse practitioner, fresh from an NP program that was 100% online, with no RN experience whatsoever, but certified and licensed, can be hired to staff a hospitalist service, solo. With patients none the wiser. In the case of Alexus, the attorneys discovered that the situation with the unsupervised FNP was not isolated to Mercy El Reno, it was systemwide. It was the reason they chose not to make the FNP a defendant in the case–it was not about her, it was about the system. I asked one of the attorneys, Travis Dunn, JD, why his firm chose to focus on the education of the FNP as a strategy. His answer: 

“Doctor,

Thank you for your kind e-mail.  We were shocked in Alexus’ case to learn how much responsibility and little oversight and supervision the Mercy Organization placed on Nurse Practitioners.  We made a conscious decision to focus on the corporate decision making that led to placing a family certified nurse practitioner in charge of the ER without any physician supervision, rather than focusing on her individual mistakes.  We felt the NP should never have been placed in that position.  We were shocked to learn the policies that led to this were not confined to that facility, but were system wide – and (we felt) constituted a real danger to the public.

To answer your specific question, we focused on the NP education and SOP because we thought it was important for the jury to understand Alexus died because of a corporate policy, not because of one person’s mistakes.  We wanted it to be clear this case was about more than one unnecessary and preventable death.  We were surprised to learn how narrow the educational curriculum and certification process for NPs was – and even more surprised to learn how little the supervising physicians actually knew about the NP education and certification process.  During the discovery process it became clear that the physicians responsible for supervising the NPs at Mercy thought the nurses had received a thorough broad-based education, when in reality their curriculum was incredibly narrow and limited to their area of certification.  A family certified NP should never have been tasked with diagnosing and treating emergency and acute care patients – especially without any physician supervision.  Sadly the outcome of requiring/allowing NPs to practice outside their area of practice was all too predictable.

Since this lawsuit, Mercy has made wholesale changes to their policies regarding supervision and certification of NPs.  However the problem still persists.  I recently saw an interview with the head of a national NP organization on one of the morning talk shows lobbying for looser restrictions on NPs to help with CoVid 19.  Some of the things she was saying about “unnecessary oversight” and “outdated regulations” was pretty shocking given what we learned in Alexus’s case.  The person interviewing the NP did not challenge her claims and made no effort to point out THE OVERSIGHT AND SUPERVISION REQUIREMENTS EXIST TO PROTECT PATIENTS.

 I agree there is a real need to educate both the public and physicians about the limitations of NPs educational curriculum and certification.  Please let us know if we can help in any way to get the word out.

Thanks.”

Travis Dunn

Attorney at Law

Alexus Ochoa’s case is not unique. As a member of a grassroots patient/physician advocacy group, Physicians for Patient Protection(PPP), I can attest that we get cases every day of mismanaged patients by mid-level practitioners(MLPs) which I described in a blog I wrote in January 2020(https://authenticmedicine.com/2020/01/a-tragic-comedy-of-errors/). It is indeed the basis of how our group formed. An unprecedented number of patients with mismanagement so poor that it rose to the level of malpractice and/or negligence–the great majority managed by NPs. Although enabled by legislators to practice medicine without a medical license, MLPs are not held to the same medical standard as physicians. Instead, the doctors of record, be they a supervising physician, a so-called “collaborating” physician, remote physician, etc. are accountable, present or not. The physician need not even have a pre-existing relationship with the patient, he/she can still be culpable, as demonstrated in the case of Warren vs. Dinter(https://www.medicaleconomics.com/news/physician-found-liable-malpractice-patient-he-never-treated). 

MLPs were never meant to practice unsupervised, legislators permitted that. It should then be no surprise to anyone that errors like those in the Ochoa case occur. The inevitable defense is that physicians make mistakes also. We do. However, the errors are not equivalent. When one possesses the appropriate foundation of medical education, they may be lacking in skills or the ability to apply those skills. Hell, they may just be lousy docs. That is INCOMPETENCE. Those with limited to no medical training are simply UNQUALIFIED to practice medicine. Hence, the necessity of supervision. Since incompetent doctors are trained and licensed to practice medicine, the possibility exists that they may become competent with remediation. They are redeemable. Unqualified individuals cannot be remediated.To change their state of being unqualified, they have to undergo the appropriate training and education needed to practice medicine. Since they are not trained or licensed to practice medicine, errors are predictable. With physicians, not so much predictable as unexpected. So yeah, we make mistakes…it’s just not the same.

The other inevitable argument is that the Ochoa case is anecdotal. True. However, enough anecdotal cases should raise red flags. Where there is smoke, there is fire. And every anecdote has a face and a name. And a family. They matter. Legislators show no interest, neither do most physicians. Our concerns seem more about protecting our jobs and not offending MLPs than protecting our patients. So we say nothing and wait to get sued for someone else’s faux pas. Passive as ever. It is ludicrous to me that an ICU, hospitalist service or ER can be staffed without any physicians present at all. I know it happens, but that does not make it right or acceptable. The excuse that there are not enough physicians is just that, an excuse. There are plenty of physicians and potential physicians; what we need are more residencies. We need hospitals to thin the administrative herd so they can pay for the expertise needed to manage these patients appropriately. Every state can develop an Assistant Physician(not to be confused with physician assistant) program(https://assistantphysicianassociation.com/), similar to those in Missouri, Kansas and Arkansas, and adapt it to a hospital setting, in addition to rural, underserved areas. It can be done. Circumvention of real medical expertise by pontification, false equivalence, Dunning-Kruger and lobbying will only result in more cases like Alexus Ochoa. We simply can’t have that. 

I say to Alexus…We see you. You will not be forgotten.

https://www.medicalmalpracticelawyers.com/emergency-room-malpractice-2/6-1m-oklahoma-medical-malpractice-verdict-for-death-of-19-year-old-in-er/

**ALL INFORMATION REGARDING ALEXUS OCHOA WAS OBTAINED ONLINE AND IS PUBLIC INFORMATION, INCLUDING HER PHOTO. USE OF THE ATTORNEY’S LETTER WAS GRANTED WITH THE EXPLICIT PERMISSION OF TRAVIS DUNN, JD**

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Natalie Newman MD

Dr. Natalie Newman is a residency-trained, board-certified emergency physician who has been practicing for over 20 years. She graduated from California State University in Sacramento, California with a degree in Biological Sciences. She then attended medical school at Case Western Reserve University in Cleveland, Ohio on an Army scholarship. As a graduating senior, Dr. Newman was presented with the Marjorie M. and Henry F. Saunders award for her compassionate care of patients within the family structure. After her graduation, she was accepted into the Emergency Medicine Residency at North Shore University Hospital in Manhasset, New York. Upon her graduation, Dr. Newman entered active duty service with the U.S. Army. Her first assignment was at Womack Army Medical Center in Fort Bragg, North Carolina. During her stint in the Army, Dr. Newman was deployed to Bosnia-Herzegovina(formerly Yugoslavia) where she was Chief of the Emergency Department at Eagle Base in Tuzla, Bosnia. She had the honor of serving under the command of Colonel Rhonda Cornum(now a retired brigadier general), a urologist, pilot and former prisoner-of-war during the Persian Gulf War. While in Bosnia, and as the only American female physician in the Balkans at that time, Dr. Newman was assigned as the official physician for Queen Noor of Jordan during a humanitarian visit to a local hospital in Bosnia. After her return home to the U.S., she was promoted to Major and completed the rest of her Army service at Fort Bragg. Dr. Newman subsequently returned to her home state of California. She has worked in rural facilities, community hospitals and trauma centers. She has also served as a ship physician for a major cruise line and also provided physician services at the Coachella/Stagecoach Festival in Indio, California for three years. Dr. Newman participates in public speaking engagements discussing the value of education, of which she is passionate. She continues to practice clinically as a traveling physician. 

  11 comments for “The Anecdote Has A Face…And A Name

  1. Kimberly Chapman
    June 4, 2020 at 12:57 pm

    Very well written with eloquent explanation of the difference between incompetent and unqualified.

  2. MARK OBRIEN
    June 2, 2020 at 4:44 pm

    For the NP standard of care, whom is the expert witness? A nurse or doctor? Are there nursing standards of care that they are held to? If they are being held to the standards of care of physicians, they should be physicians. The liability will always be filtered to a physician because of deeper pockets. Doesn’t matter if you are a “collaborator”, any physician of a case will be sued. If they can’t figure it out, they consult a physician. Boom. Rub hands together. Not my problem.

    • Natalie Newman, MD
      June 2, 2020 at 9:00 pm

      That is one of the serious problems with their movement. NPs ARE NOT held to the medical standard because they are nurses. They are held to a nursing standard, a much different standard, despite practicing medicine w/o a license. And no, physicians cannot testify against NPs because they are not their peers. In all of the states in which NPs have Full Practice Authority(aka: practicing medicine w/o a medical license), except for two, they are required to have a “collaborating” physician by either the state or their liability insurance company. In most hospitals in those states, they have supervising physicians per bylaws. Now, it stands to reason, if they are truly independent, why does the state/hospital/malpractice insurance company require a “collaborating” physician? Does that not convey concern about risk? Of course it does. If NPs are so safe, why not leave them to their own devices in and out of the hospital without a doctor being involved at all? A collaborating physician is simply a physician who provides little to no supervision and gets paid for it. And they are just as liable. That is not collaboration. That is selling one’s license and should be outlawed.

      I collaborate with physicians all the time. I am not MANDATED to do it nor do I have to pay them. Here is the reality: if there is a physician of record, that is who the attorneys will go after, as well as the hospital. A “collaborating” physician is a physician of record. The hospital wants to share the liability. They can’t if there is no doc in the picture. That is why physicians should stop allowing these facilities to use their license in this way. Either NPs are supervised or they are not. Doctors are in or they are out. No in-between safety net.

      • Joseph Mitton MD FACEP
        June 6, 2020 at 4:26 pm

        Unfortunately some large corporate ED groups (read KKR) have required physician sign-off on MLPs. If you refuse your job can be in jeopardy.
        This is a problem for the legislatures and lawyers to work out. Meanwhile doctors are caught in the middle.

        • Natalie Newman, MD
          June 7, 2020 at 11:31 am

          You are absolutely correct. And it is one of the primary reasons why I left my beloved specialty of EM and decided not to practice it anymore in the U.S. I decided it is my license, therefore my say as to whom can work under it.

  3. MD for patients
    June 2, 2020 at 11:05 am

    It is always incredible that the retort of “well, physicians make mistakes, too” is something people hold as gospel. If they evaluated that statement even a little, they would realize that if physicians make mistakes with the 10s of thousands of intensive hands-on training they get, it would follow that people with markedly less training would make markedly more mistakes. The “physicians make mistakes, too” comment just further proves that those with less training have no business making decisions that can affect patient care.

    • Natalie Newman, MD
      June 2, 2020 at 12:35 pm

      Exactly. Our errors do not condone the illegal practice of medicine.

      • Joe Smegma, DO
        June 5, 2020 at 7:57 pm

        Nice Job Doc! I think the attorney understood as you did the systemic problem and it’s root. Greed. These hospital system hire Mid levels to “act” as doctors. Wear a white coat, carry a stethoscope, talk the talk. But, however they can’t walk the walk. Many of my patients refer to locally employed NP’s as doctor so and so. I don’t have the time or energy to correct their misunderstanding. The NP’s don’t correct them. Patients assume unfortunately that they are residency trained and board certified physicians with years of experience. I blame the hospital administrators who employ pretend doctors to replace the real doctors that they screwed. I also blame the national organizations that tell these young impressionable NP graduates that they are as well trained and clinically competent as physicians. That is on them, shameful. I feel terrible for the patients who have no option but to see these “clinicians “.

  4. Disgruntled patient
    June 1, 2020 at 6:42 pm

    Beautifully written. Lives are at stake. People are being harmed. The organizations that advocate for FPA should be ashamed of themselves. Perhaps we need to hold legislators accountable for carelessly passing FPA laws. When you go see a doctor, you should be able to see a real physician who knows what they are doing. You will pay the same price anyway, why not ask for the real thing?

  5. ken Luckay DO
    June 1, 2020 at 4:00 pm

    Good article Dr. Newman. The problem is not just in the Emergency Department, but in many other areas, as well. This an another example where the interests of Corporate America are not in line with the patients or health care providers. Keep up the good work

  6. Gary Gaddis
    June 1, 2020 at 2:24 pm

    Thank you, Dr NEWMAN, for your illuminating post. The American Academy of Emergency Medicine is working to address this issue of inappropriate, poorly-supervised or non-supervised practice of medicine by ANPs withouat proper supervision. I hope you might be interested in getting involved and thus translate your passion into a part of a useful group action. [email protected] to learn more, I am not leading the group but can connect you to those who are

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