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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