APRNs - What Happens if You are Sued?

[traumaRUs]

Over on the Nurse Practitioner forum, we've been discussing lawsuits - this is something very real and worrisome for providers. While nurses can get sued; most often they are dragged into a suit along with others; while APRNs by virtue of being providers can "stand alone" and take the brunt of the lawsuit themselves.

Unfortunately I can speak to this firsthand. I've been an APRN for over ten years now and I still shudder when I remember the incident that completely changed my practice. For privacy sake, I will keep it general. I made a prescribing error.

So...began the odyssey of lawyer visits, depositions, court appearances, meetings with my boss, with the practice president, and many many years of endless waiting wondering: would I have a job, would I have a license, would my house be taken, my wages from whatever job I could ever get be garnished, would I have to declare bankruptcy and on and on my imagination wandered?

It was very stressful on me, my family, my co-workers. And oh yeah...did I say you can't talk about it to anyone??? Me...who talks all day long! To worry in silence for many years was another stressor.

In the end...an out of court settlement was reached for what I considered to be a lot of money but for what the attorneys patted themselves on the back for negotiating. I came out with my job intact.

On the day I signed the settlement, I received the final blow - oh yeah didn't we tell you that this has to be reported to the board of nursing and the National Practitioners Data Bank? Uh...what???

More worries, more time...in the end after I hired an administrative law attorney to appear with me for the BON hearing, my license was cleared. My name does appear in the NPDB and will always show a payout for a malpractice suit. However, it is possible to get a job with this and it is possible to get credentialed with this on your record.

Some things I've learned along this bumpy road:

1. Always be scrupulously honest with everything. If you are in the NPDB - everyone will find out anyway.
2. Keep your own malpractice insurance. Although your practice will cover your lawsuit expenses, it will usually not cover your licensure protection and you will need that if you are found at fault.
3. If you find yourself being sued, realize this is a long haul adventure. Get yourself some support which can be difficult as you will be told "don't talk to anyone." You can talk to clergy, or a counselor or your spouse with the expectation of privacy as long as you don't discuss the case itself but rather your feelings and emotions.
4. Be kind to yourself - this is stressful. It can happen to anyone at anytime. It does NOT mean you are a bad person, a bad provider or that you made a poor career choice.
5. We always want to do the best for our patients but we are human - we do make mistakes - sometimes our mistakes don't cause harm, but unfortunately sometimes they do.

And to those of you reading this saying, "that would never happen to me, I'm too cautious, I'm too smart, I would never harm a patient," until ten year ago I was thinking the same thing....

It happens....be prepared...

And...if it happens to a colleague...please be very supportive. Realize they can't discuss the details but let them know you care, invite them for lunch, remind them of all the positives they bring to their job. And...remember to keep supporting them thru the long haul - realize when they are gone for a court date, deposition, meeting and touch base with them and let them know you care.

This is a caring profession but sometimes we are least kind to each other...

[Shecallsmedaddy]

I have a question. In my state, if you are taught to do something where you work, then you are authorized to do that, but only at that location. Say if you flip jobs you have to go "forgetful" and forget that you knew how to do that; such as sticking a patient for blood. if you messed up would malpractice practice insurance cover that?

[traumaRUs, MSN, APRN]

You are held to the standards of policy and procedures of the institution where you are employed.

As an APRN, I am only allowed to do what I am credentialed to do - ie I'm actually allowed as a pre-hospital RN to intubate and do needle decompressions pre-hospital. However, when I work in the hospital as an APRN, if I'm not credentialed to do these procedures, I'd better not be doing them.

Does that help?

[Rekkashinorei]

Hi TraumaRUS,

I've always enjoyed reading your blogs and posts. With regarding to obtaining personal medical malpractice in addition to one's active employer's medical malpractice insurance policy, how much liability would you advise purchasing? For example, NSO provides 3 options ranging 500K/1M, 1M/3M, and 1M/6M. To me, it does not seem to hurt to add $77 more to get the $1M/$6M option when comparing the difference between the $1M/$3M option. It's just so expensive, though worth it if something happens. I wish I had thought about self-purchasing a personal policy prior to negotiating my salary. A quote I received was about $2,000/year for the $1M/$6M policy.

Thanks,

Rekka

[RiskManager]

I am not TraumaRUS, but as the risk manager who does this sort of thing for a living, here are my thoughts:

First, did you read my article and do you still think it is necessary to buy your own policy: https://allnurses.com/general-nursing-discussion/one-healthcare-risk-999441.html

Second, the difference between $ 1/3 million and $ 1/6 million is only the aggregate policy limits. For $ 1/3 million, CNA will pay up to $ 1 million for any one claim, and up to $ 3 million for all of your claims in any one policy year. For $1/6 million, CNA will pay up to $ 1 million for any one claim and up to $ 6 million for all of your claims in any one policy year. The chances that you would ever have a malpractice claim that is not covered by your employer, and is therefore covered by your own individual policy is extremely small. The chance that you would have more than one paid claim covered by your own individual policy in any one year is even smaller. The chance that you would have so many paid claims in any one year as to make you grateful that you bought $ 6 million as opposed to $ 3 million in aggregate coverage is probably about one in a trillion. That would mean that you screwed up so bad and so frequently that CNA paid $ 6 million for all your cases in just one policy year, and if that happens, I am pretty confident that you will not have a license since it would have been stripped away by the BON. Probably the more compelling reason to get your own policy is the 'licensure defense' coverage, which provides up to $ 25,000 reimbursement of defense legal fees that you incur in an actual complaint against your license by the BON. Note that it must be an actual complaint to trigger the 'licensure defense' coverage: BON investigations do not trigger coverage and you get no reimbursement of defense legal fees for an investigation. Feel free to post here or send me a PM if you have any other questions.

[traumaRUs, MSN, APRN]

Thanks for the kind words - I am due to renew my malpractice insurance soon and yes I have 1/6 million coverage. Yes, although I don't plan to use it, I look at it just like I look at my homeowners or auto insurance. My car is paid for, yet I still carry full coverage as it would cost me more money to replace it from ground zero without the help of insurance.

I respectfully disagree with Risk Manager and have taken the advice of my attorney. I do appreciate the opposing viewpoint and respect their experience, its just my experience has been different.

[Rekkashinorei]

Thank you both: Risk Manager & TraumaRUS for your timely and thoughtful responses. They are most appreciated.

Risk Manager, thank you for the link. (I find allnurses difficult to use. I have been trying to find a post specifically addressing malpractice for my own learning and haven't been successful until now. It's interface is not friendly and rather counter intuitive or just plain outdated as searching for certain topics is often difficult in the vast sea of random posts/blogs other than relying on the single search bar.) Anyway, thankfully, I read and reread your article tonight, as well as all of the comments following it. You wrote the article pertaining to LPNs/RNs though. I would be interested in what you have to say for NPs/PAs. Perhaps the concept is not any different, though I suspect the risk is higher for NPs given that we have more responsibilities as an advance practice clinician. After reading your article, I realize that I really need to understand what my state's regulatory statues are as well as what is specified in my current medical malpractice policy, as one can only explain so much in generalities given all of the variables at hand. The latter has been the most difficult and frustrating in obtaining.

Do you know of any websites that lists state specific regulations on medical malpractice? Can you explain to me how "tort" reform works?

(I have not been active enough on allnurses to be given the "PM" privilege, so I guess I'll have to respond on this post. I was hesitant at first because after reading (and rereading) TraumaRUS brave post here and responses, I don't want my constant messaging on this thread to be a frequent reminder of something you've been able to put away. I don't mean to open any old wounds. I apologize if this is the case, especially being that this is the first comment on this post since the last comment in 11/2016.)

In my scenario, the realization of medical malpractice began when I requested a Certificate of Liability Insurance through my employer as part of a requirement for an application process for graduate loan consolidation through Darien Rowayton Bank. The check mark was on the box that said "claims-made," and I panicked as I was told that I had occurrence based medical malpractice insurance when I signed onto this new position in 2015. There were also typed comments on that same form which specified having insurance coverage for claims brought after employment has terminated which appears to be language for "tail coverage" though no formal heading ever explicitly stated I also had "tail coverage." Not wanting to assume anything, I sought my employer's risk managers to clarify what exactly I had, because there were other discrepancies on the certificate that was not clear to me. After a phone call with the employer's risk manager, a face-to-face meeting with another employer risk manager and HIS manager (perhaps it was protocol that an upper level person was to attend), as well as another follow up phone call with an administrator at that department, I was dismayed that none of them seem to confidently know exactly what I had. In the end, I was verbally reassured that I had tail coverage, but when I asked for some form of hardcopy policy of my insurance for me to take home to read, it was denied as I was told there wasn't such a paper. How is it, that I can purchase home or auto insurance and be given a pamphlet listing all of its particulars, and yet can be denied a hardcopy form of my medical malpractice coverage through my employer? Is that typical?

I asked my dept manager to see if she could get it to me, but was only given the same Certificate of Coverage only updated for 2017. So, in the end, I feel extremely paranoid by the fact that the risk manager flat out told me "no" that there was no paperwork that I could take home to read about how exactly I am covered. Hence, the question raising the question that perhaps I should just purchase individual/personal medical malpractice insurance for myself being that the employer seem to be so (for the lack of a better word) secretive about telling me exactly how I am insured, other than the generalities listed on the Certificate of Coverage.

All I know is that my employer is self insured, and if a claim was brought against me, it would exhaust it's own self-insured funds up to a certain amount (millions), and if there was still more money to be paid on that claim, my employer has a 2nd insurance company that pays for the excess. For example, if the claim was $20 million, the self-insured policy by the employer has a max of $15 million, which leaves a $5 million of excess yet to be paid, then the 2nd insurance policy will then cover the difference.

In the end, it's a personal decision. Hence, "purchase it if you need it to sleep at night." From a healthcare provider's perspective, I can empathize and understand TraumaRUS's standpoint. On the other hand, in terms of Risk Manager's depth of experience in handling malpractice cases, I can also appreciate the pragmatic and statistical way of looking at it. Like having a financial advisor, I wish there was such a thing for this kind of discussion so that clinicians may be more well-informed and counseled on what he/she ought to do.

-Rekka

[traumaRUs, MSN, APRN]

Thanks for you kind words and don't sweat it about reopening old wounds - I'm past it.

Yes, agree there are vastly differing opinions and since it runs approx $2,000 per year its a big decision.

[RiskManager]

1. Here is a somewhat helpful list of medical malpractice laws by state: Medical Malpractice - Laws & Legal Information - AllLaw.com Having said that, realize the limitations of summaries such as this: malpractice law can be found in three different ways: statutory law (laws passed by the legislature) regulatory law (state regulations made by agencies that implement the statutory law) and case law (decisions made by appellate courts that interpret, modify or discard the statutory and regulatory law). Statutory and regulatory law, but especially case law, changes frequently. What you read today may change next month based upon a state Supreme Court decision. Certain basic principles likely do not change much, but how those principles are interpreted and applied can change.

2. What is tort reform: depending on whose ox is being gored, tort reform either deprives injured people of their day in court and just compensation, to further improve the profits of greedy insurance companies and Big Medicine; or tort reform protects the kindly country doctor from being impoverished by nuisance lawsuits filed by greedy ambulance chasers. In most states, tort reform is designed to control medical malpractice costs by several different means: limits on compensation to injured patients, limits on contingency fees and costs charged by plaintiff lawyers, shorten the statute of limitations (how long you have to file a lawsuit after an adverse event), having all cases screened by a panel before allowing a suit to be filed, requiring cases to go to mandatory arbitration, or having a certificate of merit by a medical reviewer before a suit can be filed. The theory is that this will reduce the number and costs of lawsuits, healthcare providers will not have to pay as much for malpractice insurance, and in turn healthcare costs will not go up as much or as fast and healthcare providers will stay in business. This is a politically-fraught topic, and you can cite literature up the wazoo to prove or disprove the merits of tort reform.

3. If you have occurrence coverage through your employer, you don't have to worry about tail coverage. Tail coverage is built into the occurrence policy. Occurrence coverage is essentially the same as claims-made coverage with a tail. Here is a good article explaining occurrence vs. claims-made: Difference Between Claims-Made and Occurrence Policies

4. Most healthcare risk managers do not know very much about, or have very much to do with, the actual malpractice Liability Insurance. This is usually handled by specialists at the corporate level or by the insurance broker. If your employer is self-insured up to a certain level (as many of them are), there may not be an actual insurance policy to give out, since the employer is basically paying the self-insured claims out of the cash flow. The sticky wicket on corporate liability policies is that they generally state only that the healthcare entity and its employees are insured. There is generally no list of individual names that you can point to and see that you are covered.

5. The article that I wrote is actually pretty applicable to all types of healthcare providers that are employees of a healthcare facility: LPN, RN, ARNP, PA, MD, RPh., etc. The principles are the same, but the exposure (risk) may be different: a licensed independent practitioner has more liability exposure than a lab tech, for example, because the scope of practice and the type of duties performed by the LIP are more broad.

6. As I mentioned in my article, I virtually never hear an employed physician ask about having their own separate coverage nor do they ever buy it. If one of my OB/GYN is already covered by my insurance as my employee, I don't see them going out and spending $ 70,000 per year to get their own $ 1 million policy.

7. If you have any other questions, comments or concerns, feel free to email me at [email protected].

[jlejcar]

TraumaRUs, I have some additional questions about this article and wondered if there is a way I can message you directly. Thank you

[jlejcar]

TraumaRUs, I tried to respond to your message but it will not let me respond because I do not write for this site. I do not think my email went thru to you because of this. If I leave my email here, would you be willing to send something to me so I have your address privately and can email my question there? I am open to any suggestions. I will also send you a friend request on this site and maybe that will help with private messaging. Thank you

[AnnieOaklyRN, BSN, RN, EMT-P]

To the OP sorry you went through this!

I was sued a couple of years ago as a paramedic, and even though I knew the plaintiff had no grounds for the lawsuit it was still pretty stressful and worrisome to go through!

I was not named in the suit, only my company was, so that was a little less of a worry. Thankfully in my state all lawsuits alleging malpractice go to a committee first through the court before they are allowed to go to trial, if the committee finds that the lawsuit is frivolous then the plaintiff, and their attorney can make the decision to drop the suit, or go forward, but the findings of this committee are submissable in court.

Needless to say after many wasted hours at the court house and at the attorneys office doing depositions and testifying in front of the committee the suit was thrown out, but I do wish I, and the company I work for could have countersued the plaintiff!!

Anyway... It is a tough process to go through, but it is a risk of working in healthcare especially!! Thank you to the OP for posting your story and I hope you are doing better now!

Annie