In the August 2023 issue of MD Linx, Stephanie Srakocic writes about a Philadelphia jury that awards a $1.4 million verdict against a nurse practitioner for failing to treat hyperthyroidism. The patient, who is hyperthyroid, is admitted to the hospital for acute abdominal pain, nausea, and vomiting. The patient subsequently dies. The implication is that the patient is under the care of a nurse practitioner, and there is no supervision. Instead of implicating a nurse practitioner, or even the physicians who supervise, or fail to supervise, the nurse practitioner in the management of hyperthyroidism, the take-home message is really one about the nature of a medical malpractice lawsuit.
This article is “fact-checked,” and still, the author misses the point.
First, in Pennsylvania, nurse practitioners have a collaborative agreement with physicians. Lack of supervision was never a question in this case, and the doctors and the hospital are co-defendants.
Second, there are 85,000 medical malpractice lawsuits per year. All are predicated on a complication, which can be a medical error, an error of nature, or even a fabrication.
No health care provider is immune from complications. Death, acute abdominal pain, nausea, and vomiting are complications in a long list of comorbidities that can accompany hyperthyroidism. Most of these conditions, however, are surgical emergencies. Near the bottom of the list are abdominal pain, nausea, and vomiting caused by hyperthyroidism by itself.
Yet, according to the author, thanks to the shenanigans of a plaintiff attorney, likely coupled with the unartfulness of a defense attorney, the jury is left with the Hobson’s choice between departing from standards of care regarding hyperthyroidism or not departing from them. Worse yet, this choice is made with no more confidence than the burden of proof, which is 50 percent probability plus a scintilla—just enough to win. This underlies all medical malpractice lawsuits.
In truth, this case likely represents negligence, but not because of mismanagement of hyperthyroidism; rather, because of mismanagement of, or the misdiagnosis of, a surgical emergency.
Thanks to the author, an erstwhile health law authority herself, the reader is never exposed to the real point, which is that plaintiff attorneys, defense attorneys, malpractice carriers, and self-professed health law authorities all make their livings from fabricated claims of negligence or errors of nature that appear as medical errors. They are the medical liability litigation industry, and they profit from such tragedies.
I, too, am an erstwhile health law authority, but I do not miss the point. Instead, I have a solution. It adapts the scientific method to a lawsuit. The scientific method tests a null hypothesis with 95 percent confidence. The null hypothesis is always that the treatment in question is the standard of care. Ninety-five percent confidence, rather than 50 percent probability plus an ill-defined scintilla, makes the truth stand out in stark contrast to the alternative. The null hypothesis is either retained or rejected. Furthermore, with 95 percent confidence, the chance of erroneously rejecting a true null hypothesis, called a type 1 error, is only 5 percent. With traditional decision-making, type 1 error is closer to 49 percent.
Hyperthyroidism alone does not cause these presenting symptoms. An acute abdomen does. However, with hypothesis testing, this verdict may never have been delivered. More likely, as a meritorious claim with 95 percent confidence, the case would have conveniently settled. Avoidable costs to the carrier would have been reduced. Malpractice premiums would be lower. Health care is more affordable, available, and safer. As importantly, justice is served.
Tort reforms have not done this, and neither have other health law authorities, to whom we entrust the future of health care.
Ms. Srakocic’s article may have drawn the attention and even the disdain of readers, but for the wrong reasons. They are looking for a solution, and instead, this author provides a more provocative subject—a nurse practitioner who is entrusted with the care of a patient with hyperthyroidism, who subsequently dies on this provider’s watch. If this case had been settled, the article would never have been written.
Howard Smith is an obstetrics-gynecology physician.
