I got subpoenaed

allnurses Guide · May 28, 2015

I agree there is too much hysteria over losing one's license for any and all things that people commonly post about on this forum. My familiarity with the Private Duty Nursing world, as well as simple prudence, would still lead me to advise the OP to get legal advice from someone (not necessarily her malpractice carrier) who can evaluate the specifics of her case, as opposed to getting legal advice from people who don't know anything about that.

If nothing else, if it were me, a modest outlay of money in consultation fees would be well worth the peace of mind it would confer on me.

SDALPN · May 29, 2015

I've been in your shoes. I was called as a witness. Nothing more. It was about what the parent did, not about me. I was very scared at first, but once I found out I was just a witness I felt better.

klone, MSN, RN · May 29, 2015

I was also subpeonaed as a witness several months ago. Case ended up not going to trial, so I ended up not having to go.

smartnurse1982 · May 30, 2015

I agree there is too much hysteria over losing one's license for any and all things that people commonly post about on this forum. My familiarity with the Private Duty Nursing world, as well as simple prudence, would still lead me to advise the OP to get legal advice from someone (not necessarily her malpractice carrier) who can evaluate the specifics of her case, as opposed to getting legal advice from people who don't know anything about that.
If nothing else, if it were me, a modest outlay of money in consultation fees would be well worth the peace of mind it would confer on me.

I do not think the person above knows that we(Pdn's) actually do not work for a facility,and therefore,might not have "other" insurance.

I have to show some agencies that i have malpractice insurance before working with them.

allnurses Guide · May 30, 2015

I do not think the person above knows that we(Pdn's) actually do not work for a facility,and therefore,might not have "other" insurance.
I have to show some agencies that i have malpractice insurance before working with them.

Yes, I do know PDNs don't work in facilities, but perhaps I wasn't really clear that when I said legal counsel I didn't mean other insurance.

The reason I suggested what I did is basically that PDN is a world unto itself. I had worked for almost 20 years in various capacities in nursing prior, and never experienced anything remotely similar to it. If we look at Cloudy Sue's situation..

Fantastic. I've been subpoenaed by the lawyer of a client's parents who recently had their child removed from the home to testify on their behalf

What if Cloudy can't in good conscience vouch for the parents who are trying to get their child returned to them?

The stakes are high here. Since the case is basically between the state and the parents, the presence of a company lawyer means the company is protecting it's interests preemptively.

In PDN the potential for false accusations is high. It is often the nurse's word against the parent's word. Agencies frequently send their nurses up the river when families are angry and retaliate by accusing nurses of even the most ridiculous things. I've had agency people I thought I trusted look me straight in the eyes and lie through their teeth.

Maybe I've read one too many horror stories on this forum, but as I said, there are lawyers who could advise at least on what to expect from a lawyer who hopes to use you to bolster his client's case basically that CPS had insufficient reason to remove the child from the household.

Adele_Michal7, ASN, RN · May 31, 2015

I hope this works out ok, keep us posted.

smartnurse1982 · Jun 1, 2015

Yes, I do know PDNs don't work in facilities, but perhaps I wasn't really clear that when I said legal counsel I didn't mean other insurance.
.

I was responding to this statement below,not your post.

May 28 by RiskManager

And the primary reason why nursing insurance is so cheap is that payouts are rare. This is due to the 'other insurance' clause that effectively excludes the typical nursing claim from coverage by the nurses own insurance policy, noting that the 'typical claim' are those arising from providing patient care as an employee of a hospital or other healthcare facility.

I wonder if Pdn agencies actually have insurance to cover themselves like hospitals do.

caliotter3 · Jun 1, 2015

Home health agencies carry insurance like hospitals do, but that does not mean that they will cover their employees' portion of a settlement. That is why it is always recommended to carry one's own insurance.

CloudySue · Jun 1, 2015

Hi, everybody, I'm not saying too much right now because I have no idea if it'll come back to bite me in the butt. I am, however, following everything said and grateful for the responses. They put a delay on the hearing to give my agency time to get us nurses to meet w lawyers from different parties. I have not heard anything for several business days, so we'll see.

RiskManager · Jun 1, 2015

Home health agencies carry insurance like hospitals do, but that does not mean that they will cover their employees' portion of a settlement. That is why it is always recommended to carry one's own insurance.

I have done risk management and claims for several home health agencies who assign staff employees to do private duty nursing. The agencies carry malpractice insurance that cover the employees for liability. In the majority of states, the employer (agency or hospital) is entirely on the hook for the negligent actions of their employees under the legal doctrine of vicarious liability or respondeat superior. When a claim is filed alleging negligence of the nurse, the employer's insurance responds and covers the claim. In none of my cases has the nurses' own insurance even been involved in the case due to the 'other insurance' clause.

Now, if a nurse were to work for such an agency or facility as an independent contractor, or were to do private duty nursing on the side, having your own insurance would be a good idea, since you are not acting as an employee of the agency or facility, and the employer's insurance will not cover you.

People stating that the employer's insurance will not cover the nurse in the event of a claim are generally incorrect. This is a common misperception in the nursing community, and NSO and Proliability, who sell the insurance, work to foster this misperception. In the typical claim incurred by an employed nurse who provides nursing care to patients of the employer, the employer's insurance coverage covers the claim, and your nursing insurance does not, since it is only excess coverage over and above the employer's insurance. The employer is legally on the hook for the employee's typical claim and cannot escape legal responsibility for the employee's actions even if they wanted to.

I always encourage people if they have questions on this sort of thing to talk to an actual risk or claims manager or defense counsel who actually do liability claims and have knowledge of the insurance coverage. Many hospital risk managers do not, but they can put in you touch with the experts at the facility's insurance company who do.

smartnurse1982 · Jun 1, 2015

I have done risk management and claims for several home health agencies who assign staff employees to do private duty nursing. The agencies carry malpractice insurance that cover the employees for liability. In the majority of states, the employer (agency or hospital) is entirely on the hook for the negligent actions of their employees under the legal doctrine of vicarious liability or respondeat superior. When a claim is filed alleging negligence of the nurse, the employer's insurance responds and covers the claim. In none of my cases has the nurses' own insurance even been involved in the case due to the 'other insurance' clause.
Now, if a nurse were to work for such an agency or facility as an independent contractor, or were to do private duty nursing on the side, having your own insurance would be a good idea, since you are not acting as an employee of the agency or facility, and the employer's insurance will not cover you.
People stating that the employer's insurance will not cover the nurse in the event of a claim are generally incorrect. This is a common misperception in the nursing community, and NSO and Proliability, who sell the insurance, work to foster this misperception. In the typical claim incurred by an employed nurse who provides nursing care to patients of the employer, the employer's insurance coverage covers the claim, and your nursing insurance does not, since it is only excess coverage over and above the employer's insurance. The employer is legally on the hook for the employee's typical claim and cannot escape legal responsibility for the employee's actions even if they wanted to.
I always encourage people if they have questions on this sort of thing to talk to an actual risk or claims manager or defense counsel who actually do liability claims and have knowledge of the insurance coverage. Many hospital risk managers do not, but they can put in you touch with the experts at the facility's insurance company who do.

Why do many Pdn agencies ask to see our Liability Insurance before getting hired?

Most pdn agencies require it as a condition of employment.

RiskManager · Jun 1, 2015

Why do many Pdn agencies ask to see our Liability Insurance before getting hired?
Most pdn agencies require it as a condition of employment.

I can think of three possible explanations:

1. You are working for the agency as an independent contractor, not an employee. If so, the agency's professional Liability Insurance would not cover an independent contractor.

2. The agency thinks that in the event of a claim, the employed nurse's professional liability coverage will be primary and the agency's insurance will not respond. If the agency makes a deliberate decision to not have professional liability insurance, this is indeed true. Recall that the 'other insurance' clause in the individual nurse policy provides that if there is other insurance through the employer, the individual policy is excess coverage. If there is no other insurance through the employer, then the individual nurse policy would be primary.

If the agency does have professional liability insurance for the employees, and the nurse is an employee of the agency, then the agency insurance will be primary, the individual nurse policy will be excess and will probably not be triggered. The majority of nurses or healthcare administrators have no idea about the 'other insurance' clause and that the individual policy is excess over the employer's coverage. So an agency may ask for the individual nurse professional liability coverage in the mistaken belief that it will be primary coverage.

3. The agency may choose to purchase low limits of professional liability insurance such that there is a greater chance that those limits would be exhausted by a claim, and then the individual nurse liability policy will come into play as excess coverage. So the agency is shifting at least part of the liability cost to the individual nurse. This may be a viable risk management strategy for an agency, which likely has little in the way of assets to seize to satisfy a judgment. So with little insurance or assets, an agency may be seen as essentially 'judgment proof', and the claimant then looks for other deep pockets with insurance or assets. An individual nurse policy with limits of $ 1 or 2 million may be that deep pocket.

The takeaway from this is before working for any healthcare employer, an employee should ask about what professional liability coverage is afforded to the employees, and who is the carrier; what are the limits; and can you get a copy of the certificate of insurance or declarations page showing the coverage.