This continuing-education offering is sponsored by Nurses Service Organization and provided by Lippincott Williams & Wilkins, an accredited ANCC provider.

Nurse’s Guide to Malpractice: Module 2

In an instant, a malpractice judgment can wipe out years, even a lifetime, of scrimping and saving. What’s more, it can seriously harm your personal and professional life. Here are ways to defend against such a disaster.

PROTECTING yourself against malpractice is a little like practicing sound infection control: You do all you can to keep it from happening, but you’re also prepared to minimize the damage if it does.

This doesn’t mean that lawsuits lurk under every patient’s bed. Patients who file a claim may have suffered no more than a “bad experience” that a little more sensitivity would have prevented. (See Preventing Disturbing Perceptions.)

To protect yourself against a malpractice lawsuit, you can use three powerful tools: documentation, compliance with policies and procedures, and malpractice insurance. Let’s look at each of these more closely.

Not documented, not done

From a legal standpoint, the word documentation should probably have its first two letters capitalized. In the law’s eyes, if you didn’t document it, you didn’t do it. And if you didn’t do what you were supposed to do, you can be sued for negligence, another term for malpractice.

But simple documentation isn’t enough; you need documentation with legal credibility. Such documentation can be your best defense if you’re named in a lawsuit and may even help get you dismissed from the suit.

Documentation has legal credibility when it’s contemporaneous, accurate, truthful, and appropriate. Here’s what those terms mean:

contemporaneous: documenting the care when you provide it—include date, time, and so forth. (This is especially crucial during an emergency; see When Every Second Counts.)

accurate: documenting exactly what you did

truthful: documenting only what you actually did or observed (no more, no less)

appropriate: documenting only what you’d be comfortable showing in public.

Those guidelines may appear obvious, but consider the danger in not following them.

Contemporaneous. A medication that’s not immediately documented might be given again by another nurse, resulting in an overdose. Chart that medications are given immediately. Delayed documentation of accurate intake and output could result in dehydration. Not documenting allergies can produce unexpected adverse reactions.

Accurate. If you chart a medication amount that’s less than what you administered, for example, another nurse might notice the difference and administer an additional amount, creating the possibility for a toxic or even deadly overdose.

Truthful. Documenting a treatment you didn’t provide has double damages; it exposes the patient to the suffering the treatment was intended to alleviate, and it exposes you to the charge of fraud because payment will be required from the patient’s insurance company for a medication he didn’t receive.

Appropriate. Placing in the chart judgmental labels such as lazy or sneaky can seem innocent enough at the nurses’ station. But think of their impact when the chart is projected onto a screen in a courtroom and you’re asked to explain those terms. (For a detailed list of practical ways to apply these four characteristics, see Do’s and Don’ts for Legally Credible Documentation.)

Legally credible documentation is an accurate record of both the care your patient received and your competence in providing that care. It tells anyone who reads it that you did all you were expected to do.

Charting by exception is a type of documentation that can be difficult to defend. In this case, investigators would review the entire patient record to see if they could piece together the care given.

Getting with the policy

The second nursing tool, policies and procedures, provides a safety zone that ultimately protects you from suffering the damage of a nursing malpractice lawsuit. They do this in various ways:

They set concrete, specific standards for providing quality care and for interacting appropriately with patients, families, and staff.

They establish the structures and controls that constitute your organization’s chain of command and responsibility.

They guide you in determining what’s expected of you as an employee in your workplace.

Generally, you can find these policies and procedures either in your nursing unit or elsewhere in your facility.

Of course, protecting you from a malpractice lawsuit isn’t the immediate goal of policies and procedures. Nor is it the main reason why nurses and other professionals comply with them.

First and foremost, compliance with policies and procedures helps ensure a safe environment that prevents injury to patients and staff. It guides the staff in dealing with issues such as advance directives. Compliance also helps ensure that government and professional requirements are met. These requirements include, for example, the Environmental Protection Agency’s protocol for disposal of hazardous medical waste.

Finally, although compliance with policies and procedures can’t prevent malpractice lawsuits, it helps reduce their number. When lawsuits do occur, a record of compliance can go a long way toward eliminating or mitigating staff liability.

Despite their advantages, policies and procedures can be annoying and labor-intensive—and you’re probably tempted to sidestep or circumvent them occasionally. Even though it seems perfectly safe, don’t do it. What looks like an innocent bending of the rules can open the door to problems that affect you deeply and directly.

For one thing, any act of noncompliance can be construed as a breach of the standard of care. Into that breach can seep lawsuits from patients, staff, and even casual visitors. As a direct care provider, your chances of being named in some of those challenges are greater than others.

For another, noncompliance with policies and procedures can also lead to losses resulting from actions taken by regulators, reimbursers, and accreditors. State health departments regularly inspect for compliance with licensure and Medicaid reimbursement standards, as does the Centers for Medicare and Medicaid Services. The Joint Commission on Accreditation of Healthcare Organizations inspects for compliance with accreditation standards. Anything that jeopardizes this delicate balance of complying and caregiving can lead to revoked licenses, terminated reimbursement, dried up credit, and large cash outlays for judicial appeals. All of this may sound removed from day-to-day nursing, but eventually it can result in such consequences as reduced wages or loss of your job or license.

Everyone’s responsibility

With so much riding on a facility’s policies and procedures, you can see why they’ve become the responsibility of all employees. Here’s what this means for you as a nurse.

Make sure that you know the policies and procedures that apply to you and your practice, follow them meticulously, and assist others in knowing and following them.

If you cause or observe an infraction, either correct it directly yourself or notify those responsible for correcting it.

Take an active part in keeping your facility’s policies and procedures current.

This last point is crucial. Lawsuits are based on the national standard of care—a broadly accepted reasonable practice standard for nursing care. If your facility’s policies and procedures are below that standard, following them doesn’t protect you from a charge of malpractice. You’re expected to know what the national standard is and to use good nursing judgment in following it, even if this means departing from your facility’s policies and procedures.

To ensure that you’re not put in the vulnerable position of having to second-guess your facility, do everything you can to monitor and maintain its policies and procedures. Become active in committees that develop policies and procedures, and notify your risk manager or nurse-manager if your facility’s policies and procedures are below the national standard of care (see Making Policies and Procedures Work). Policies should be reviewed and updated every 2 years.

Besides complying with policies and procedures, you’re also required to see that appropriate regulatory agencies are notified whenever specific standards aren’t followed. You probably know, for example, that many states require reporting suspected patient abuse or neglect. But as part of your role as patient advocate, most states require a licensed nurse to report when another professional breaches a standard of practice that could result in action by a licensure board. This means, for example, that you may have a duty to report observing another licensed professional give care while intoxicated or performing a task that’s beyond the scope of her license.

If you fail to make a required report, you may do more than increase the risk of injury to a patient or colleague—you may also jeopardize your own nursing license. You need not, of course, report directly to the regulatory agency. Rather, you may make your report to the appropriate authorities within your nursing administration. They’ll determine who should notify the agency. Follow up by checking with the administration that the report was filed.

Another defense:

Malpractice insurance

If you work in a hospital or other health care facility, your first question might be, “Aren’t I covered by the facility’s insurance?” The answer is: more than likely—but. The facility insurance covers you only during the hours when you’re working as a salaried employee of the facility and only when you’re functioning within the course and scope of your duties as an employee. Also, you won’t be the “named insured”; the facility will be. What’s more, without reviewing the facility’s policy, you won’t know how much coverage you have.

If, however, you’re sued for a professional service you performed outside of work—perhaps doing volunteer work and injuring a patient—you’re not covered. You’re also not covered if you do something at work that exceeds the scope of your duties—for example, performing an action that isn’t allowed by your facility’s policies and procedures.

Even if you’re covered by your facility’s insurance, having your own insurance as well provides advantages. It covers you 24 hours a day and while you’re performing activities that aren’t work-related (such as giving an injection to a neighbor).

Another advantage is that your insurance may provide coverage if the facility sues you for repayment of damages from a medical malpractice claim that involves your negligence (a process referred to as indemnification or subrogation). Finally, you’ll have your own attorney looking out for your best interest. That’ll be especially important if your interests and your employer’s interests are in conflict and you suddenly find yourself excluded from the facility’s malpractice insurance policy.

Two types

Malpractice insurance policies for nurses provide either claims-made or occurrence coverage. Claims-made policies provide coverage for incidents that (1) occur from the effective date of the policy through the date the policy is terminated, and (2) are reported to the insurance company during the policy period (or during the tail, which we’ll define in a minute).

To be covered for acts that take place outside the timeframe of a claims-made policy, you’d need to purchase additional coverage. One type of additional coverage is called prior acts or nose coverage. This protects against claims arising from incidents that happened before the inception or effective date of a policy.

The second type is called tail or extended reporting period coverage. An uninterrupted extension of the insurance policy period, this provides protection for covered claims that arise out of incidents that occurred during the policy period, up to the date the policy ended. The claims must be reported to the insurance company during the tail period, which can be for a set period or an unlimited time, depending on the option selected.

This option is important because states vary in how much time they allow for a claim to be filed; it can be 1 to 3 years and even longer if a minor is involved. Facilities usually have claims-made coverage, but it may not include nose or tail coverage.

Occurrence policies cover any incident that occurs during the policy period regardless of when the claim is filed or whether the policy is still in effect. That means it provides long-term protection for any covered claim that may arise at any time in the future—up to the limits of the policy in force at the time of the incident that led to the claim.

For both types of policies, make sure that you don’t allow gaps in coverage to occur. A gap can occur, for example, if you let your policy expire and don’t renew your insurance. It can also occur if you fail to purchase tail coverage when your claims-made policy coverage ends.

If there is a gap in your insurance, you’re referred to as unprotected, or bare. You won’t have coverage to pay for defense costs if you’re sued. And the insurance company won’t pay the damage award, which means that the plaintiff (injured party) can attack your personal assets.

Key questions

Here are some key questions you should ask in considering an individual insurance policy:

How does it define a claim? The definition can be as vague as “a report of an incident that could result in a lawsuit or complaint” or as precise as “receipt by the insured, while the policy is in effect, of a demand for money or services based on an alleged medical incident.”

Be sure the definition includes when you must report a claim. If a claim isn’t reported in what the policy considers a timely fashion, it may not be covered. (Keep in mind that your policy goes into effect on the date the insurer accepts your application for coverage, not the date you sign or mail the application. Unless you have nose coverage on a claims-made policy, or were covered by an occurrence policy at the time of the incident, you won’t be covered for any acts before the acceptance date.)

Finally, you might be covered just for certain claims. If the policy contains a damages only limitation, the insurance company will pay only if the nurse is sued for money damages. The insurance company won’t cover lawsuits intended to force the nurse to stop performing certain actions (such as those outside the nursing scope of practice or outside the facility’s policies and procedures). Those actions that aren’t routinely covered are called specific performance or injunctive relief actions.

What are the limits of liability? Liability limits are generally expressed as two amounts—for example, $1 million/$6 million. The first number reflects the maximum amount of protection for any single claim (per occurrence); the second, the total amount that can be paid for all claims during each year of the policy (annual aggregate).

How much liability coverage should you have? Two determining factors are your assets and your professional level. A third involves state laws that may cap or limit the awards plaintiffs can receive for medical negligence cases.

The greater your assets, the greater your personal risk. Those assets include your savings, properties, wages, and inheritances. Any or all of them can be attached at either their present or future levels. (In most states, money and property held jointly by spouses—designated tenets by entireties—can’t be attached.)

Generally, increased management responsibility or independence of practice brings increased risk of liability. This means that a director of nursing, nursing supervisor, or nurse-educator is at greater risk than a staff nurse. Among the specialty practices that increase your risk are nurse practitioner, certified registered nurse-anesthetist, and nurse-midwife. (As we’ll see, these also require special insurance.)

A cap on damage awards limits the amount of money the insurance company would be liable for if the patient recovers for damages. Depending on your state law, you may be required to pay an added insurance premium to a state fund to cap the damage award and limit the amount of money the insurance company would be liable for.

How are defense costs handled? These costs include more than lawyers’ fees. They also include all costs related to investigating and defending a claim, such as legal fees, travel, photocopying, expert witnesses, transcription fees, and so on.

Your policy will cover defense costs in one of two ways: inside your limits of liability or in addition to those limits. Those covered inside your limits won’t be paid if they exceed the amount of your coverage, which can happen with a high judgment against you. Those covered in addition to your limits will be paid as long as the judgment against you doesn’t exceed your liability. The latter arrangement offers the maximum protection.

What are the exclusions? Common exclusions in a standard nurse’s professional liability insurance policy include nurse practitioner, nurse-midwife, nurse-anesthetist, emergency medical technician, physician assistant or surgeon’s assistant, and X-ray therapist. Also excluded is any liability you may have as a proprietor, superintendent, executive, or administrative officer or director of a hospital, nursing or convalescent home, lab, or psychiatric facility. Special policies are available for these exclusions.

Besides these, other common exclusions include patient sexual abuse, injury caused while under the influence of drugs or alcohol, criminal activity, claims not seeking money damages, transmission of acquired immunodeficiency syndrome (AIDS) from provider to patient, and punitive damages (damages awarded to punish the defendant for an outrageous or egregious act).

Disciplinary defense

Besides insurance against malpractice claims, you may also want to consider carrying disciplinary defense insurance. Your personal malpractice insurance may not provide this kind of coverage.

Disciplinary defense insurance protects you against the financial and professional setbacks associated with having to appear at a disciplinary hearing. Allegations can be brought against you by any third party and, whether you’re justly or unjustly accused, you may have to appear before a state nursing board to defend the allegations against your nursing license. Allegations that may result in disciplinary hearings can range from drug use to inappropriate medication administration to falsification of documents.

If you’re called to appear before a state nursing board to defend your license, you’ll want to have a lawyer well versed in the disciplinary process. This may result in legal fees and expenses, as well as lost income while you attend the hearing. A relatively new form of insurance, disciplinary defense insurance can provide reimbursement for legal fees, wage loss, travel, food, lodging, and other costs.

The best defense

In the best of all possible worlds, legally credible documentation and compliance with policies and procedures would be the only defenses you’d need against a lawsuit. But because you’re human and may make mistakes, and because today’s health delivery system is increasingly complex, relying only on these defenses is at best a dream, at worst a denial. Prevention plus protection is a more realistic response.