Reducing Your Malpractice Exposure

An intoxicated, agitated, aggressive patient presented to the emergency department and was placed in four-point restraints for his own safety. An ED nurse monitored and assessed the patient every 15 minutes.

While the nurse performed her rounds, the patient attempted to burn off his restraints with a lighter. He ignited his bed linens and clothing, resulting in severe burns over 25% of his body and the loss of the fingers on one hand.

The patient sued multiple defendants, including the nurse, for an undisclosed amount. He alleged “failure to provide proper care in a safe environment.”

Expert witnesses for the defense testified that the nurse had acted within her scope of practice and in compliance with hospital policy. Her documentation was contemporaneous and supported adherence to the organizational policy for checking on and assessing the patient at 15-minute intervals.

The case went to trial, and a defense verdict was rendered. However, the plaintiff appealed. The case required 12 years and $500,000 in legal defense costs to resolve. The ED nurse’s thorough documentation proved critical in establishing that she was not responsible for the patient’s injuries.Gavel and Stethoscope

This scenario illustrates the type of information included in a 5-year claim study by the Nurses Service Organization and its insurance partner, CNA. Besides legal case studies, “Nurse Professional Liability Exposures: 2015 Claim Report Update” provides statistical data and analysis derived from the CNA database of closed claims involving nurses. The report highlights risk management recommendations designed to improve patient safety and reduce nurse liability exposure.


2015 Report Update
NSO and CNA have published three nurse claim reports over the past 8 years. A comparison of data from the 2015 report to the 2010 report identifies several trends, including an increase in malpractice claims arising from care in patient homes.

• Claims involving patient homes increased from 8.9% in 2010 to 12.6% in 2015.

• Claims involving inpatient medical settings declined from 20.2% to 17.7%.

This shift in location of claim occurrence could be a result of healthcare reform. Under the Affordable Care Act (ACA), the healthcare delivery system of the future, and the system into which we have begun to evolve, focuses on greater collaboration between primary care practices and home care providers.

This new model seeks to provide two benefits: delivery of targeted care to the patient at the optimal time, and lower costs for care delivery. The data are not intended to suggest that the home is a less safe care environment. Rather, it reflects a trend indicating a probable increase in the volume of nursing services provided in the home and, in turn, an increase in claim activity.

SEE ALSO: Rarn CE: When Your Nursing License Is in Jeopardy

Another noteworthy trend in the current report is the claim data involving medication administration errors. Between 2010 and 2015:

• Malpractice claims due to medication errors decreased by nearly half, from 14.7% to 8%.

• The average cost of a medication error claim nearly doubled, from $113,070 to $213,005.

Over the past 10 years, significant news coverage has reported about medications that look and sound alike, potentially contributing to medication errors.

Consequently, pharmaceutical companies, manufacturers, healthcare systems and risk managers have collaborated to reduce these errors with innovations. Strategies may be as simple as packaging modifications and as complex as enterprise-wide initiatives in healthcare organizations to ensure safer medication administration.

The report also reveals that claims alleging a violation of patients’ rights, patient abuse or unprofessional conduct are rising. Such claims:

• Comprise only 5.4% of malpractice allegations against nurses in 2010

• Rose to 13.1% in 2015.

This data may reflect increased sensitivity to privacy violations under HIPAA and the proliferation of social media resulting in claims against nurses that allege slander, libel and a breach of confidentiality.

Besides educating nurses about their risk exposure, the report assists the healthcare community in recognizing where problems exist, so that they may initiate discussions about the implementation of controls to help mitigate errors.

An enterprise approach to risk management can result in meaningful change.


Mitigating Malpractice Risk
This section highlights three vulnerability areas for nurses. Recognizing and acting on them can help reduce a nurse’s individual malpractice liability exposure:

Scope of practice. Nurses are required to practice within the state scope-of-practice act as well as within their position description and the policies and procedures of the facilities where they practice. Failing to practice within scope and within organizational guidelines can jeopardize patient safety and make nurses vulnerable to allegations of malpractice and/or board complaints. Review your state’s nurse practice act annually.

Documentation. In case of a malpractice claim, the nurse’s legal team uses the patient record to build a defense. When documentation is absent, incomplete, sloppy or not contemporary, it can reflect poorly on the nurse and make it more difficult to mount a successful case. Whether using electronic or handwritten medical records, nurses should thoroughly document all care, so that any healthcare provider can gain a clear understanding of the patient’s condition, treatment and interventions you performed.

Chain of Command. Often, nurses are patient advocates, ensuring that patients receive the care they need when they need it. Sometimes, calls for assistance go unanswered, or a provider does not appear to grasp the seriousness of a situation. Here, the nurse should intervene and advocate for the patient.

Today’s increasingly complex healthcare environment underscores the value of exercising due diligence, completing risk management courses and, when appropriate, securing individual professional liability insurance to ensure that your rights and interests are protected.


Michael J. Loughran is president of Nurses Service Organization. This article is provided for general information purposes and is not intended to provide individualized business, insurance or legal advice.

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