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Why Nurses Need Their Own Malpractice Insurance

When it comes to acquiring malpractice insurance, there can be many uncertainties that the majority of nurses will face. As with any type of insurance being sought, most of these questions will pertain to the variances in coverage that can be obtained in relation to one’s assumed risks, income level, and personal and professional needs. However, there remains one prevailing fallacy existing today among nurses that may be causing thousands of professionals millions of dollars annually, though perhaps less consternation when it comes to choosing an appropriate plan: the inherent belief among many nurses that they do not require their own insurance, for a variety of reasons, according to Lawrence F. Kobak, Esq.

“I think that most nurses are totally unaware that malpractice insurance is necessary [for them],” said Kobak, an attorney on staff at Frier Levitt, a practice based in Pine Brook, NJ, that specializes in pharmacy law and healthcare law. “Over the years, it has been my experience that our clients who are registered nurses or licensed practical nurses, and there have been many of them, don’t know whether or not they have malpractice insurance, let alone the need to have malpractice insurance. They just don’t have a clue. Many people think that it’s something that ‘only the doctor has to worry about,’ and that simply is just not true.”

It is also not accurate to assume that one’s employer, whether it be a hospital, home health agency or any other entity, can absolve any nurse of the need to maintain and active malpractice policy that covers liability.

“Where patients are actually being treated in a clinical setting, and the nurse has anything to do with that care, they need malpractice insurance,” Kobak continued. “Because, legally, in any state, the nurse can be held liable for anything that he or she does involving the patient, even though, besides the nurse being held liable, any negligence could be imputed to the physician or any other healthcare provider who the nurse may be working for. Both parties can be sued, not just the nurse.”
A current lawsuit that has been opened in Pittsburgh, PA, exemplifies this potential. According to numerous reports, a former patient is suing University of Pittsburgh Medical Center (UPMC) after learning that she was among thousands of individuals said to be potentially exposed to tuberculosis by an emergency room nurse who may have been contagious with the disease for four months. The plaintiff is reportedly seeking more than $25,000 in damages and other relief through a class-action complaint that could include as many as 4,700 people potentially affected.

While any potential awards being granted as a result of this case may be paid directly by the employer, Kobak warns that an attorney’s attempt at suing could go directly through the nurse as well. “It’s likely that the employer’s coverage is going to be the only avenue any attorney is going to seek out because the employer has the deep pocket, but the nurse can still be sued,” he said. “The nurse is the agent, which by definition is the employee, and according to the laws of agency, the hospital being the employer of the nurse would be responsible with having their own insurance coverage. “And any attorney may be afraid of being charged with legal malpractice, so he or she may seek to sue any nurse, as well as anybody else who could be even remotely responsible, in any case in an attempt to make sure that nothing is left out — from an individual level and a corporate level.”

When a nurse is sued, it is often more than just the $90-plus million awarded to patients who filed malpractice claims from January 2010 to December 2014, according to the Nurse Professional Liability Exposures: 2015 Claim Report Update. Published by the Nurses Service Organization, Hatboro, PA. Any nurse being sued will also require an attorney to defend oneself and could incur costs connected to the protecting of one’s active licensure.

“Most malpractice policies for nurses will also offer administrative coverage, such as the legal fees for administrative problems, such that if a nurses is brought up on charges for their license in front of a state nursing board, this insurance would cover their legal fees,” Kobak said. “And that’s an important consideration. But the nurses are still always going to be better protected if they have their own insurance. “Let’s say that a patient alleges that a nurse is incompetent related to the way they inserted an IV, or something similar. This type of insurance could cover the defense to protect their professional license. And that in some ways can be as important, or more important, as the malpractice coverage.”

TYPES OF INSURANCE TO CONSIDER

When choosing an appropriate insurance option, Kobak says it is important for nurses to ask pertinent questions. For example, nurses should know whether or not the aforementioned administrative coverage is part of a plan. “Not all insurance companies are going to offer this coverage, so nurses will want to inquire about this type of policy and seek a lawyer who will specifically cover this in their policy, if that’s something they really want.” Kobak said. Additionally, another major distinction to make is that there are two types of malpractice insurance.

“There’s ‘claims made’ and there’s ‘occurrence’ insurance, which is the better coverage of the two,” Kobak continued. He offered insight as to the differences between each approach: “If you’re sued and you have an occurrence plan, which is a little more expensive, you’re covered for when the action that brought the claim occurred, as opposed to claims-made insurance, where you’re only insured for when the claim is made. Now, let’s say you’re working for ‘Dr. Jones’ in 2016. You leave Dr. Jones in 2017. You’re sued for malpractice in 2018, which will still probably be within the statute of limitations. If you have a claims-made plan and nothing else, you’d only be covered for the year that you had that policy — in this case 2016, for the patients you treated in 2016. An occurrence plan, since it insures the party for when the alleged malpractice occurred, which in this case would be 2016, would provide coverage even if the nurse is sued in 2018 or, if the statute of limitations permitted it, in 2019 or 2020.”

Additional safeguarding of a policy can be conducted through purchasing a “tail,” an extended reporting period endorsement offered by malpractice insurance carriers that allows an insured physician the option to extend coverage after the cancellation or termination of a claims-made policy. Other potential components of a liability policy that nurses should inquire about before signing paperwork include defendant expense benefit, license protection, personal injury coverage, assault coverage, first aid expenses, reposition representation, and educational and consulting activities.
“Often, the average nurse, as well as physicians, is not appropriately insured,” Kobak said. “They really don’t know what types of coverage they have. Or perhaps they change jobs and there’s just no provision to get that tail insurance. And the result is, in effect, they are not insured for the patients they have seen in years past. They may think they’re protected, but may not be and can be blindsided. And that happens more frequently than people realize.”

Kobak also points to several OB/GYN cases that have served as examples as to the need for appropriate coverage. Many of these cases have involved a nurse giving advice directly to patients. For instance, one client was sued after a patient alleged that a nurse gave her the wrong advice over the phone as to whether or not she should go to the emergency department or go into the office to be seen by the physician, Kobak related. “Other times there are instances in which nurses are said to have given [bad]advice about how to take medication,” he said. “And, this should be at the behest of the [employer]who they are working for, but if a nurse gives what is claimed to be the wrong advice, that is an example of how someone can be individually named in a suit.”

CALL TO ACTION BEFORE LEGAL ACTION

Kobak encourages nurses who are either unsure of what type of coverage(s) they have or feel they are not adequately insured to have a conversation with their employer about the potential for an add-on policy benefit. “Any nurse should certainly speak with their employers to get that benefit,” he said. “And it shouldn’t be an uncomfortable conversation because the [employer]is going to make sure that he or she is covered with malpractice insurance. And, for the very same reason, they should make sure that a trusted employee is covered for the same malpractice to the same patients.”

He also suggests being vocal within one’s nursing societies and/or medical societies to encourage peers to behave in the same fashion. Additionally, specialty societies may have arrangements with various insurance companies that offer coverage for nurses that they can buy on an individual basis, Kobak said. Another potential route is for nurses to collaborate in group plans with their peers, though Kobak said this is an unlikely path because nurses don’t typically have the financial resources to form their own risk-retention groups in the manner that physicians do. “And that’s not meant to be condescending,” Kobak said.

For those nurses who are competently covered presently, certain instances will warrant a comprehensive look at an existing policy to ensure adjustments are not needed, including a change in job location or any kind of change to the number of patients in one’s care within their current setting, as well as any changes to the types of patients being seen, change to internal employment setting, and/or any kind of change in job status.

“You can always have your policy reviewed by a competent insurance agent or attorney who is familiar with this area of practice,” Kobak said.

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Joe Darrah

Joe Darrah is a freelance author based in the Philadelphia region who has been covering the healthcare field since 2004. He may be reached at jdarrah17@yahoo.com.

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