As a nurse attorney who lectures to nurses about the legal aspects of practice, I frequently meet nurses who are "going bare"-an expression lawyers use for practicing while uninsured. The reasons nurses give for being uninsured include the following:
* "Nurses with malpractice insurance get sued more often than nurses without it."
* "They can't get blood out of a rock. Even if I'm sued, I have no assets."
* "It's a waste of money; nurses don't get sued."
* "Juries give higher awards when the provider is insured because they know the carrier picks up the tab."
* "I don't practice in a high-risk specialty."
* "My employer covers me."
* "I work in a state [or religious or charitable] institution, so I have immunity."
Many of these reasons for not having insurance relate to malpractice litigation. However, you will also need legal representation if you are reported to the board of nursing (for example, by an employer, regulatory body, or criminal prosecutor) or if a complaint is made to the board of nursing (such a report might come from a coworker or patient or even because of press coverage). An employer's policy will only cover you for malpractice representation. Should you need to be represented before a state board of nursing, you will be on your own. That can be costly without insurance, and it's never wise to represent yourself before the licensing board. Although malpractice insurance is usually thought to cover representation and indemnity for malpractice claims, some carriers also provide reimbursement for legal services for professional licensing board representation.
But let's look more closely at the reasons nurses commonly give for not having insurance.
MISCONCEPTION: 'NURSES WITH MALPRACTICE INSURANCE GET SUED MORE OFTEN THAN NURSES WITHOUT IT.'
Reality: Plaintiffs don't know who is insured until after a lawsuit has been filed; that information is shared during the discovery process. If a patient thinks you've harmed her or him through negligence, being uninsured will not protect you. If an attorney thinks she or he can convince a jury that you departed from the standards of practice and that departure caused the injury, the attorney will not avoid naming you in the suit simply because you are uninsured.
At the same time, patients who think you have harmed them are not likely to take into account whether or not you are insured when they decide to file a formal complaint with the licensing board. And the board of nursing will investigate all complaints, regardless of your insurance status.
MISCONCEPTION: 'THEY CAN'T GET BLOOD OUT OF A ROCK. EVEN IF I'M SUED, I HAVE NO ASSETS.'
Reality: If there is a judgment against you, the effect will be more disabling than declaring bankruptcy. Unsatisfied judgments (monetary awards that the defendant cannot or does not pay, in violation of a court order to do so) can lead to wage garnishment, the inability to obtain loans or mortgages, and destroyed credit records. Additionally, whatever assets you do have can be seized-including your home, bank account, and other possessions. Such a judgment can even affect inheritance or any future assets.
MISCONCEPTION: 'IT'S A WASTE OF MONEY; NURSES DON'T GET SUED.'
Reality: While it's true that institutions and physicians are more often the object of malpractice lawsuits than nurses, nurses are also named in lawsuits. In addition, nurses are reported to state licensing boards and need to be defended against allegations of professional misconduct. There are also many situations in which the nurse isn't individually named in the lawsuit but is reported to the board by an employer when there is a bad patient outcome. Most insurance plans provide adequate coverage for a cost of less than $100 annually. The small premium is also a business expense, fully deductible when you file taxes. In this way, coverage costs little or nothing.
MISCONCEPTION: 'JURIES GIVE HIGHER AWARDS WHEN THE PROVIDER IS INSURED BECAUSE THEY KNOW THE CARRIER PICKS UP THE TAB.'
Reality: Juries are charged with determining the facts solely upon the evidence presented. Extraneous concerns, such as insurance coverage, are not taken into consideration and juries are not allowed to have insurance information.
MISCONCEPTION: 'I DON'T PRACTICE IN A HIGH-RISK SPECIALTY.'
Reality: Certain specialties such as obstetrics and emergency nursing are associated with higher liability risks than are other types of nursing, but no nurse is immune. Even nurses not in current practice-for example, those who are on vacation, off duty, or retired-can be sued or reported to the state board of nursing.
MISCONCEPTION: 'MY EMPLOYER COVERS ME.'
Reality: Your employer has a policy on you because your employer can be held responsible for your actions. As an employee of the facility, you are acting as an agent of your employer. Under the legal doctrine of respondeat superior (Latin for "let the master answer"), your employer may have vicarious liability for your negligence. The employer has a policy not to protect you, but to protect the institution. The institution looks good if you look good, so it is in the best interests of your employer for you to be vigorously defended. If there is a conflict of interest between the employer and employee, however, the defense attorney's responsibility is to the employer.
Keep in mind as well that your employer is only responsible for occurrences within the scope of your employment. Your employer's policy will not cover you for anything happening outside of work or for allegations of departure from the institution's policies and procedures. For example, hospital policy may state that intubation should be performed only by anesthesia (anesthesiologists or nurse anesthetists), physicians, or respiratory therapists; if an RN intubates a patient in violation of such a policy, the hospital will not be liable for any airway problems the patient might experience.
Most nurses who feel comfortable with their employer's policies have not actually seen the policy they believe protects them. For example, is it a claims made or occurrence policy?
Claims made. This kind of policy covers you for a given specific period. To be covered, the incident must have occurred during that specific period. Additionally, the policy must still be active when you bring a claim. The minute your policy lapses, so does your coverage. To stay protected, you must keep your policy current.
Occurrence. Like a claims made policy, an occurrence policy covers you for incidents that occur within a specific period. Unlike a claims made policy, however, the policy does not have to be active when you bring a claim. Even after the policy lapses, you are protected if the incident occurred during the coverage period.
MISCONCEPTION: 'I HAVE IMMUNITY.'
Reality: The governmental, religious, and charitable immunities have been eroded or abolished completely in most jurisdictions. It would be imprudent to bank your career on what is rapidly becoming an obsolete concept. Even if it were difficult for a claimant to bring a suit against your employer for this reason, it is still very easy to make a complaint to the licensing board.
THE VALUE OF PROTECTION
The American Association of Nurse Attorneys strongly recommends that no nurse be without insurance protection. Recent information from the Nurses Service Organization (NSO) on licensure protection reveals the continuing importance of being insured. Claims through the NSO requiring licensure protection for health care professionals (most of whom were nurses) increased 936% between 1998 and 2006, from 103 to 1,067.
When employers make complaints. Not all claims are associated with malpractice, and many require legal representation not provided by employers. In fact, many complaints to the board have been made by employers, for a variety of reasons (see box, below). Unprofessional conduct and professional misconduct are interchangeable terms in some states but have specific definitions in others. Collectively, they accounted for 77% of complaints made to the boards of nursing (through October 2006). All nurses should be familiar with their own state practice act and definition of misconduct. The National Council of State Boards of Nursing gives contact information for all state boards of nursing at http://www.ncsbn.org/515.htm.
If you practice in some states, such as Florida, California, or New York, your chances of needing licensure representation are higher than in others. While the populations of these states are high, other factors also play a role. For example, in Florida physicians are allowed to practice without malpractice insurance, thus leaving advanced practice nurses with whom they have collaborative practice agreements at greater risk. If you practice in a state that is part of the Nurse Licensure Compact (which allows a nurse to have one license in her or his home state and to practice in other member states on the basis of that license), licensure problems in one state can create difficulty in the others, rendering practice difficult. It is vital that you be familiar with the nurse practice act in every jurisdiction in which you practice and stay within the scope of practice for the state or territory you are in at the time.
Consequences of licensure investigations can vary, from the case being closed out with no action to revocation of your license to practice (see Table 1, page 35).
Not every malpractice insurer offers licensure protection. The NSO does provide licensure protection through its program and offers clients a choice of nurse attorneys. Data compiled by the NSO suggest that lawyers with a nursing background may be better-more efficient-at representing nurses in licensure claims, as shown in Table 2, at left. Other data (not shown) also suggest they achieve better outcomes.
The expenses described represent average out-of-pocket payments in legal fees you will have to make in a licensure claim if you are uninsured. Nurse attorneys (specifically, in Table 2, members of the American Association of Nurse Attorneys) needed fewer hours on average than attorneys who were not nurses to defend nurses against complaints.
Table 2 also shows that, in general, these expenses are increasing annually. This can be quite a financial burden if you are unable to work during the investigation process. Self-representation is never wise, and having these costs paid by your insurance carrier can make the difference in your ability to be represented by an attorney or not.
If you are uninsured, consider the price you may pay should you need to defend your license before your state board. For the majority of us, nursing is our only marketable skill. Without the ability to practice, most of us could not make ends meet. Why not protect yourself?