Malpractice Issues Affect Nurses

By Lisette Hilton
March 14, 2005

Nurses once were, for the most part, outsiders in the physician-led fight to reduce malpractice insurance rates. Sheltered no more, nurse practitioners are finding their annual malpractice costs tripling, nurse-midwives are facing annual premiums as high as $35,000, and only one company is willing to write policies for nurse anesthetists, says Janet Selway, RN, DNSc, CRNP, instructor at Johns Hopkins University School of Nursing, Baltimore.

Selway, a state affiliate representative and board member of the American College of Nurse Practitioners, was among the nurse leaders who, out of concern, quickly convened a recent meeting in Washington on the topic.

“We wanted to have a dialogue between the insurance industry and representatives of the major national nursing organizations, just so we had a clear idea of what was going on,” Selway says.

Nursing industry legal experts, representatives from the American Association of Nurse Anesthetists and American College of Nurse Midwives, as well as representatives from three nurse practitioner malpractice insurers, met to discuss the problem of rising rates and why rate hikes are hitting advanced practice nurses. Representatives from several nursing associations attended, including the American Association of Critical Care Nurses, the National League for Nursing, and the Emergency Nurses Association.

The meeting was successful in that representatives of the national nursing organizations in attendance are now armed with information to take back to their memberships, Selway says.

Some key points from the roundtable:

• Malpractice suits against advanced practice nurses are rising in number and increasing in severity, according to malpractice insurers. APNs need to learn about the basics of malpractice, including their liability, options with malpractice coverage, and legislative issues like tort reform. Associations, colleges, and societies are often good resources.
• Some 20% to 30% of nurse practitioner care is delivered by phone, exposing APNs to a liability that they might not have previously considered.
• In deciding these cases, courts must establish what’s reasonable for a prudent APN. They establish “reasonable” by looking at policies and procedures and the literature existing at the time of the event, then look at national standards and causation: Was the action or inaction actually caused by the APN?
• APNs named in lawsuits should consider calling the American Association of Nurse Attorneys for counsel or advice even if they are covered under their employers’ malpractice policies. Nurse attorneys might have a better grasp of the legalities involved with nursing practice.
• Malpractice insurers’ profitability in covering APNs has dropped, perhaps because more nurses are being sued these days.
• APNs working in practices and clinics should ask to see their employers’ malpractice policies to make sure they’re named in the documents. They should consider having their own policies as well, especially if they moonlight.
• APNs should be aware that if they practice with a physician who is under- or uninsured, the nurse might become the deep pocket — the one who is covered for the highest amount and, therefore, is the more attractive to name in a lawsuit. Lawyers representing the injured have been known to go after anyone who might have provided care to the patient — anyone whose name is on the chart.
• Factors resulting in more malpractice claims and higher premiums aren't all due to big jury awards — experts say the nursing shortage is putting undue stress on hospital staffs, increasing the chances for drug errors and medical mistakes. What’s more, fewer physicians are going into practice nowadays, which means a bigger patient load for current health care workers. The greater the patient load, the greater the chance for error and, ultimately, liability.

Sadly, state boards of nursing may be underreporting unprofessional behavior and incompetence to the National Practitioner Data Bank, according to one government representative who spoke at the meeting. APNs who’ve had a lot of claims against them and have settled out of court can often work in different states without fear of retribution because of confidentiality agreements.

In short, the Washington roundtable was an eye-opener for many nurses. Selway herself is quick to admit to that. “I think I have a better understanding of why the premiums are going up, and it’s not just greed,” she says. “The sad fact is that [because of increased lawsuits] we’re not a profitable group to insure anymore.”

Lisette Hilton is a freelance health care writer.