Nursing Malpractice Insurance
By: Heidi Richmon, Chris Johnston, and Tara Randisi

Torts:

A tort is a branch of the civil law. It is described as a civil wrong doing or injury committed by one person against another person or property. An individual, the plaintiff, seeks damages from a defendant when they believe a wrongful behavior causing injury has been made against them.

Unintentional tort: an unintended wrong against another person. Negligence is the most common form.

Negligence: the failure of a person to act in a reasonable and prudent manner. Malpractice is a special form of negligence.

Malpractice:

The failure of a professional, a person with specialized education and training, to act in a reasonable and prudent manner.

Most Frequent Allegations of Nursing Malpractice

· Failure to ensure patient safety

· Improper treatment or negligent performance of the treatment

· Failure to monitor the patient and report significant findings

· Medication errors

· Failure to follow the agency’s policies and procedures

Required Elements to Prove Malpractice:

1. Standard of Care: defined as acceptable health care practices established by state laws, medical facilities, and professional organizations. To prove malpractice evidence needs to be presented to show that the “standard of care” was not met.

2. Duty: a nurse accepts duty once they receive report and assume responsibility of their assigned patient load.

3. Legal Causation: the plaintiff must prove that had the standard of care been properly followed, injury or damages would not have occurred.

4. Damages: injuries sustained by the breach of standard of care. They can include: death, deformity, disability, additional hospitalization or surgery to correct a medical error, or severe and prolonged pain.

Reasons to Purchase Malpractice:

· Expanding functions of RNs

· Floating and cross-training mandates

· Increasing responsibility for supervising subordinate staff

· Failure of some employers to initiate an adequate defense for nurses

· Insurance coverage limits that are lower than the actual judgment made against the nurse in lawsuit

Liability

· Nurses have the responsibility to evaluate all provider orders before carrying them out. They have the duty to act prudent and prevent harm to a patient when inappropriate orders are given. The excuse “I was only following the provider’s orders” is considered unacceptable in a court room.

· Once a nurse accepts responsibility of his/her patient load they become accountable for the nursing actions they implement.

· Nurses can be held personally liable in lawsuit cases. Medical facilities do not always take on the burden of fighting claims. If a medical facility chooses to accept the responsibility of a claim they can later sue the nurse to regain their financial loses.

Case Study #1:

Woman Suffers Blood Pressure Spike After Administration of Narcan - Failure to Promptly Summon Physician - Brain Damage and Death - $675,000 Verdict.

The plaintiff’s decedent, age fifty-nine, underwent an elective outpatient knee surgery in March 2003 at the defendant hospital. The surgery was reportedly uneventful. However, while in the post-anesthesia care unit her blood pressure began to steadily increase. She soon stopped breathing. The defendant, the nurse in the unit, administered Narcan to the patient.

The blood pressure spiked to 287/169. The plaintiff claimed that this caused the capillaries in her brain to leak fluid and her brain to swell against her skull. A call for a physician was made eleven minutes after she stopped breathing and a physician responded three minutes later. Medication was administered to counteract the Narcan. The decedent had suffered brain damage and was in a permanent vegetative state. Life support was removed two days later. The woman died four days after the surgery.

The plaintiffs alleged negligence by the nurse in failing to call a code or to immediately alert a physician for eleven minutes, during which brain injury resulted. The defendants argued that the nurse had immediately called for a physician, but received no response. The nurse claimed that she had simply followed the orders of the certified nurse anesthetist in the unit when a physician did not immediately appear after her first call. The defendants also contended that the decedent had actually died due to an extremely rare tumor in her adrenal glands, which caused her blood pressure to spike. An autopsy did not reveal any tumor.

According to a report, a $675,000 verdict was returned.

Reference: February 2008 Legal Case Study. Retrieved May 14, 2008 from Nursing Service Organization at http://www.nso.com/professional-liability-insurance/nurse-coverage.jsp

Case Study #2:

Failure to Give Family Proper Instructions Regarding TPN Therapy Administration - Potassium Chloride Administered Into Catheter - $10.5 Million Settlement.

The plaintiff, age twenty-three, was receiving TPN therapy at home under the guidance of the defendant healthcare providers.

The plaintiff’s treatment required the administration of potassium chloride through an intravenous catheter placed in her arm. Prior to administration of the medication the catheter line was to be cleaned with a saline solution. The nurse was unable to demonstrate the cleaning procedure during her instruction because the medication regimen had already been initiated at the time the potassium chloride syringes were delivered to the plaintiff’s home.

Later that evening, the plaintiff’s mother inadvertently mistook the potassium chloride syringe for the saline solution and directly administered the medication into the plaintiff’s catheter. The medication caused her to immediately go into cardiac arrest and suffer severe brain hypoxia. The plaintiff’s sister was present at the time of the incident and her father arrived shortly thereafter. All of the family members attempted to resuscitate the woman.

The plaintiff suffered brain damage which left her unable to provide basic care for her self. The plaintiff claimed that the defendant’s employees failed to provide adequate instructions for the potentially lethal medication.

According to a reporter, a $10.5 million settlement was reached. This included $1 million for the sister and parents for emotional distress

Reference: October 2007 Legal Case Study. Retrieved May 14, 2008 from Nursing Service Organization at http://www.nso.com/professional-liability-insurance/nurse-coverage.jsp

Case Study #3

Extravasation Follows Chemotherapy Administration. Potential Complication or Nursing Negligence
Iacano v. St. Peter’s Medical Center, 334 N. j. Super. 547 NJ (2000)

The patient was an Oncology patient being treated as an outpatient for non-Hodgkin’s lymphoma, a cancer of the lymphatic system. On a regular basis (every third Friday), she would come in for her treatments. Her Chemotherapeutic regimen consisted of four different drugs, three of them given intravenously. The IV drugs were Cytotoxan, Oncovin, and Adriamycin.

On this day, the patient was accompanied by a friend who witnessed her treatment. She would attest to the patient’s account of administration of the medications and complaints of discomfort soon afterwards. She would state that the nurses on duty had been informed of this discomfort not once but twice but did nothing. Reports of a red, swollen and puffy hand appearance were allegedly made to the nurse with no action taken.

The patient was initially given Cytotoxan (not a vesicant) through a peripheral IV line in her right hand. Shortly after the infusion began, the patient would begin her complaints of discomfort in that hand.

The patient would state that even after describing her hand discomfort, the nurse injected the vesicant medications into the right hand IV site.

The nurse would later state that she got good blood return from the site and did not recall any complaints of pain by the patient. No nurse’s notes were available to collaborate her testimony.

Soon after administration of the vesicants, there were further complaints of pain, and new complaints of burning. An extravasation was then reported to the physician. Orders were obtained to discontinue the IV in that hand and treat the extravasation with cold compresses. Apparently, it was not until the patient reported a burning sensation that the nurse took notice and took action on the patient’s concerns.

The patient would need an Orthopedic consult to deal with the extensive damage caused by the extravasation. Debridement and tissue repair would leave permanent scarring and irreversible damage.

The patient sued the Nursing staff on duty that day for negligence. The courts returned an award of 1.5 Million dollars. This would later be ruled excessive and reduced to 0.5 Million dollars.

The defense appealed for a new trial based on the excessive award initially granted.

Summary: In the end, the appeals court would find that even though the initial award was excessive, it was not based on an error or misinterpretation of fact. The request for a new trial was denied and the $500,000 award for the negligence on the part of the nurses was upheld.

References: http://www.extravasation.org.uk/cslide11.gif and http://www.nursefriendly.com/nursing/clinical.cases/040130.htm

Personal malpractice insurance yes or no?

Two RN perspectives . . .

1^st excerpt:

Sigh.

Is $100 (more or less) a good deal if it's not needed?

If nurses "feel better" having malpractice insurance, buy it. But realize it's simply a form of therapy.

Remind yourself: nurses just don't get sued very often. Oh, it happens on a very, very rare basis, but the reason it's "so reasonable" (as we are reminded all the time) is simply because it doesn't happen. Statistically speaking, it's not going to happen to you. Ever. Even if you are unfortunate enough to have bought malpractice insurance.

Attorneys get paid (in almost every such case) a percentage (usually 35-40%) of the final settlement. No attorney in her right mind is going to come after a nurse who doesn't have malpractice insurance because it simply isn't worth it. Why bother? The attorney isn't doing this as a cause: she's hoping to make some money from it.

Such trials often require months or tedious, expensive preparation. Then there's the trial itself, complete with the attorney having to shell out money for expert witnesses, and other such fees. Don't make yourself inviting to such attorneys. Malpractice insurance is an open invitation.

As for the fear of garnishing of future wages, let's put this in perspective. Let's say you have a minimal net worth. You're telling me an attorney is going to salivate at the prospect of a judge ordering a garnishment of -- say -- $100 a week -- against your wages for the rest of your life to pay off the -- let's pick a number: $500,000? -- settlement we're hypothetically talking about? What are the chances you as a nurse will sit still for this? What are the odds you will simply declare bankruptcy, and go on with your life? The attorney is no fool. There are other fish to fry.

Jim Huffman, RN

2^nd Excerpt:

I have carried mapractice insurance for my entire 14 yr nursing career. I don't believe it is a frivolous investment. I pay $74/yr for 500,000 per incident and 3 million aggregate. Not only does the policy "CYA" it also provides license protection. I agree with Jim in that a lawsuit is probably not likely, however, what if it did? What if the nurse is found liable? That would be devastating in and of itself, but what if you lost your license for a period of time or forever? Not worth it to me. Another thing, DO NOT trust the fine institution that you are employed by to stick it's neck out for little ol you....they are going to take care of themselves first. There is no respondeat superior like they told us about in school. On the other hand, if you are acting prudently, following policy, and practicing the standard of care you are in much better shape.

PS I have never been sued or named in a suit.

Reference: http://allnurses.com/forums/f8/personal-malpractice-insurance-yes-no-72612.html

Of the 28 registered nurses surveyed only three had insurance. From the three insured two were TCC instructors and the other was an ICU nurse.

Common Misperception: “I’m already covered by my employer”

A healthcare facility need not carry professional liability insurance for RNs. The fact that a healthcare facility provides liability coverage for employees doesn’t necessarily mean you will have coverage now or in the future. This is why it’s important for you to obtain your own policy. You may not be covered in all instances:

• The policy may cover the facility, but not individual employees;
• It may have gaps in coverage. If you take a job with another facility, the policy won’t cover you for an incident that may have occurred on your previous job. If you are out of work, the policy may not cover you for an incident that occurred when you were still employed;
• If a facility merges with another, closes, or goes bankrupt, the policy may no longer be in effect;
• The facility may fail to make a payment on the premium and lose its protection; and
• The policy may not cover you if you practice nursing at places other than your facility. To make sure they know where they stand, it’s a good idea for RNs to ask their employers for a copy of their facility’s policy.
  

“Liability insurance is critical,” Haebler said. “RNs are RNs 24/7, not just when they’re on duty.”


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