Nurse Professional Liability Exposures: CNA HealthPro Five-year Closed Claims Analysis
(January 1, 2006 – December 31, 2010) and Risk Control Self-assessment
In collaboration with our business partners at Nurses Service Organization (NSO), we at CNA are dedicated to educating nurses about risk. As part of that effort, we have created this report focusing on nurse closed claims over a five-year period. This emphasis is intended to assist nurses in identifying and managing the risk exposures most likely to affect their own practice.
Through the NSO program, CNA continues to be the nation’s largest underwriter of professional liability insurance coverage for individual nurses, with more than 600,000 policies in force. CNA/NSO nurses work in a wide and growing array of specialties and locations, including hospitals, nursing homes, outpatient and ambulatory care centers, practitioner offices, schools, community and retail health settings, spas and aesthetic/cosmetic centers. We believe that nurses in every type of setting will find this report a valuable educational resource.
Our objective is to utilize CNA’s considerable pool of nurse closed claims from the NSO program to identify current liability patterns and trends. By limiting the study to closed claims resulting in significant financial loss, we highlight the types of situations most likely to have serious adverse consequences for both patients and nurses. Using this report, nurses can examine their current practices in relation to the claims and losses experienced by their peers, in order to better understand the risks and challenges they encounter on a daily basis.
In addition, this study contains several high-level risk control recommendations regarding delivery of care and documentation which, if implemented, can help enhance patient safety and minimize liability exposure. A self-assessment checklist is included to assist nurses in reviewing their custom and practice in relation to the risks identified in the report and determining whether they are in compliance with recommended standards.
Using this report, nurses can examine their current practices in relation to the claims and losses experienced by their peers, in order to better understand the risks and challenges they encounter on a daily basis.
In this report, we analyze nurse closed claims that
- involved a registered nurse (RN), licensed practical nurse (LPN) or licensed vocational nurse (LVN)
- closed between January 1, 2006 and December 31, 2010
- resulted in an indemnity payment of $10,000 or greater
The database for this report was derived by applying specific exclusion criteria to the 3,222 closed claims attributed to CNA-insured nurses from the NSO program between January 1, 2006 and December 31, 2010.
In order to focus the analysis on nurse closed claims involving significant patient injury and financial loss, the 3,222 closed claims were carefully reviewed to determine whether they met one or more of the following exclusion criteria:
- The claim closed before January 1, 2006 or after December 31, 2010.
- The closed claim was reported as an incident, never rose to the level of a legal action and did not result in a payment by CNA.
- The claim closed with an indemnity payment by CNA on behalf of the insured nurse of less than $10,000. (Closed claims with indemnity payments of less than $10,000 were excluded for many reasons, including the fact that they typically reflected less severe injuries and resolved without extensive discovery actions, such as obtaining and assessing clinical records, expert opinions and sworn depositions.)
- The closed claim involved an advanced practice nurse (i.e., nurse practitioner, clinical nurse specialist, certified nurse midwife or certified registered nurse anesthetist).
- The closed claim involved a nursing assistant, nurse aide or nursing student.
- The closed claim involved only legal representation for nurse deposition assistance.
These exclusion criteria narrowed the database to 516 closed nurse claims, which were subsequently reviewed and analyzed.
Note that claim-related expenses (including expert witness expenses, attorney fees, court costs and record duplication expenditures) are not included in the total or average paid indemnity amounts reflected in the report. Expenses resulting from nurse closed claims are addressed in Figures 2 and 3 on pages 10 and 11.
As this report uses different data inclusion criteria than do past CNA/NSO nurse claims studies or claims studies from other organizations, readers should exercise caution about comparing the findings.
The focus of the analysis is on the severity of nurse closed claims. Claim characteristics analyzed within the report include location of the event, nurse specialty, allegation, injury and related disability, among other factors.
Unless specifically noted, the tables and charts in Part I of this report include both registered nurse and licensed practical nurse/licensed vocational nurse closed claims. See Figure 20 on page 31 for a comparative analysis of RN and LPN/LVN closed claims.
For purposes of this report only, please refer to the terms and explanations below:
- Aging services – Specialized facilities or organizations that provide healthcare to a senior population. Sometimes also referred to as long term care facilities, aging services settings include, but are not limited to, nursing homes, assisted living centers and independent living facilities.
- Expense payment – Monies paid in the investigation, management and/or defense of a claim.
- Incurred payment – The costs or financial obligations, including indemnity and expenses, resulting from the resolution of a claim.
- Indemnity payment – Monies paid on behalf of an insured nurse in the settlement or judgment of a claim.
- Patient – Any person receiving nursing care in a hospital, aging services/long term care facility, private home, behavioral health facility, prison, clinic, community health facility, practitioner office, retail health setting or other healthcare delivery setting where a nurse practices.
- Practitioner – A licensed independent healthcare provider such as a physician, dentist, advanced practice nurse or physician assistant.
- Severity – The average paid indemnity for those nurse claims that closed with an indemnity payment of $10,000 or greater.
The data analysis within this report is subject to the following limitations and conditions:
- The database includes only closed claims against nurses insured by CNA through the NSO program, which does not necessarily represent the entire spectrum of nurse activities and nurse closed claims.
- Noted indemnity payments are only those paid by CNA on behalf of its insured nurses through the NSO program and do not represent additional amounts paid by employers, other insurers, or other parties in the form of direct or insurance payments.
- The process of resolving a professional liability claim may take many years. Therefore, claims included in this report may have arisen from an event that occurred prior to 2006, yet closed during the period of the study.
ANALYSIS OF CLAIMS BY LICENSÜRE TYPE
- Of the 516 nurse closed claims, 91.9 percent involved RNs and 8.1 percent involved LPNs/LVNs. These percentages vary from the overall proportion of CNA-insured RNs and LPNs/LVNs – a proportion that changes somewhat over time, but approximates 85 percent RNs and 15 percent LPNs/LVNs.
- These data suggest that LPNs/LVNs tend to have fewer and less severe claims than do RNs, possibly due to RNs’ higher level of responsibility and the greater probability that RNs work in an acute care setting.
ANALYSIS OF SEVERITY BY YEAR
- Figure 2 displays average paid indemnity and average paid expense for nurse closed claims with an indemnity payment of $10,000 or greater in each of the five years included in the analysis. The year of highest severity was 2008.
- From 2006 through 2010, losses for individual years vary. The overall pattern of indemnity payments for closed claims with an indemnity payment of $10,000 or greater and their accompanying expenses suggests a leveling trend.
- Year-to-year figures fluctuate, but the overall stability in liability costs over the past five years reflects progress in managing and defending nurse claims. The moderating trend may be at least partially due to research and educational efforts by CNA, NSO, the NSO Nurses Advisory Board, nurse educators and nurse professional organizations. These groups have shared their findings and recommendations with nurses and healthcare organizations regarding the need to implement effective quality improvement, patient safety and risk control initiatives. Another possible factor is the ongoing implementation of innovative claims management strategies and litigation best practices by CNA Claim professionals and defense counsel.
NURSE CLOSED CLAIMS WITH EXPENSE PAYMENTS ONLY
- Figure 3 displays average paid expenses for nurse closed claims with no indemnity payment and paid expenses of one dollar or greater in each of the five years included in the analysis. The highest average paid expenses between 2006 and 2010 occurred in 2009, a year that included one successfully defended claim which resulted in over $500,000 in expenses, an unusually large sum. This claim is discussed on page 29.
- Nurse closed claims in Figure 3 included those that were
- successfully defended on behalf of the nurse (i.e., resulted in a favorable jury verdict)
- dismissed or abandoned by the plaintiff during the investigative or discovery process
- terminated in favor of the defendant by the court prior to trial
- Expenses varied widely for nurse claims that closed without an indemnity payment during the five-year period of this study. In general, expenses for managing nurse professional liability claims showed a gradual rise, as identified by the dotted black trend line.
DISTRIBUTION OF THE CLOSED CLAIMS
An indemnity payment of $100,000 or greater was made in 43.7 percent of the 516 closed claims.
ANALYSIS OF SEVERITY BY NURSE SPECIALTY
- The specialties with the highest average paid indemnities were obstetrics, neurology/neurosurgery and plastic/reconstructive surgery.
- A possible emerging trend involved aesthetic services. Such procedures are most often provided by nurses under the direction of a licensed independent practitioner in the practitioner’s office or clinic, or in a spa. The scope of aesthetic services provided by nurses varies based on the governing state nurse practice act. Risks associated with such patient procedures include
- burns and/or scarring from laser hair removal
- burns and/or scarring from laser tattoo removal
- scarring, disfigurement and/or infection from injections of tissue “fillers” and/or Botox for purely aesthetic purposes
- The highest percentages of closed claims occurred in the adult medical/surgical, gerontology and obstetrics specialties.
- The finding that 40.1 percent of closed claims were in the adult medical/surgical specialty indicates that a large proportion of nurses insured through the NSO program works in these specialties. It does not necessarily mean that such nurses are more likely to be sued. More predictive is the severity of such claims, which indicates that an adult medical/surgical indemnity payment will average approximately $144,000.
- As the population of experienced nurses continues to age, it will be of interest to observe whether experienced nurses migrate toward non-hospital-based specialties and work in locations that offer defined work hours and possibly make fewer physical demands on the nurse.
ANALYSIS OF SEVERITY BY LOCATION
- The location with the highest average paid indemnity was the hospital post-anesthesia care unit (PACU). Most of the closed claims in this location involved deaths or permanent neurological damage and resolved for full policy limits.
- Obstetrics closed claims are analyzed in Figure 15 on page 25.
- The high average paid indemnity for “Clinic – hospital outpatient” was affected by one closed claim that was resolved for the full policy limit.
- Locations accounting for 10 percent or more of the closed claims included hospital inpatient medical services, aging services and hospital inpatient surgical unit.
The analysis of allegations begins with Figure 7, which examines the broad allegation categories and reflects 100 percent of allegations and average and total paid indemnities for all allegation categories. Additional review of allegation sub-categories follows in Figures 8-12.
ALLEGATION BY CATEGORY
- Claims involving scope of practice had the highest average paid indemnity, perhaps because practicing outside the scope of one’s professional license is perceived as egregious misconduct. Claims with allegations relating to scope of practice are thus difficult to defend successfully, as illustrated by the following examples:
- An RN instructed an LPN to administer medication via intravenous bolus injection, which was outside the LPN’s scope of practice and facility policy. The patient suffered a stroke as the bolus was being administered, resulting in irreversible neurological damage and permanent right-sided hemiparesis.
- A nurse removed and replaced an aging services resident’s gastric tube without practitioner orders and without notifying the practitioner. The patient suffered severe infection, sepsis and subsequent death from respiratory arrest.
- Allegations related to patient assessment and monitoring were relatively common and resulted in high average paid indemnity.
- Allegations related to treatment/care accounted for the highest percentage of closed claims.
- The average paid indemnity for closed claims involving medication administration is lower than allegations related to scope of practice, patient assessment, monitoring and treatment/care.
- Documentation deficiencies are contributing factors in many nurse professional liability claims, but documentation was the primary allegation in one closed claim. The documentation claim included in Figure 7 resulted from the complete absence of any form of documentation for an incident in which a nurse removed a tick from the patient’s skin in a hospital emergency department. The nurse did not register the patient and created no records regarding the patient’s treatment. This absence of documentation was a causative factor in the patient’s subsequent death, as no practitioner was aware that the patient had undergone a tick removal. The diagnosis and treatment of the infection resulting from the tick bite were delayed, resulting in unsuccessful treatment.
Figures 8-12 examine the delineated allegation sub-categories in greater detail. Percentages and average and total paid indemnities in Figures 8-12 reflect only those allegations within the specified sub-category.
ALLEGATIONS RELATED TO SUB-CATEGORY ASSESSMENT
- The highest average paid indemnity involved delayed or untimely patient assessment.
- The high average paid indemnity for closed claims related to failure to reassess the patient after a change in condition underscores the fact that nurses are responsible for performing comprehensive patient assessments across the continuum of care and for reporting assessment results.
- Of the closed claims with allegations involving assessment, 70.8 percent related to the nurse’s failure to properly or fully complete the patient assessment or to assess the need for medical intervention. The high average paid indemnity for these closed claims indicates the critical importance of nurses’ assessments in establishing the patient’s clinical, psychosocial and safety needs.
ALLEGATIONS RELATED TO SUB-CATEGORY MONITORING
- Failure to monitor and timely report blood test results had the highest average paid indemnity; however, there was only one claim in this category. The claim involved the nurse’s failure to monitor the results of the patient’s PTT blood test, which revealed an abnormal blood clotting time. Having not seen the PTT results, the practitioner ordered resumption of the patient’s Heparin. The nurse did not question the order and restarted the Heparin. The patient suffered significant brain hemorrhage with permanent total disability.
- The allegation with the highest percentage of closed claims, as well as a high average paid indemnity, was failure of the nurse to monitor and report changes in the patient’s medical and/or emotional condition to the practitioner.
- Assessing and monitoring patients, as well as reporting findings to the practitioner and healthcare team, are integral to the nurse’s role. The difficulty defending nurses who fail to perform and document actions related to these core competencies is reflected in the high average paid indemnity for these closed claims.
ALLEGATIONS RELATED TO SUB-CATEGORY TREATMENT AND CARE
Because of the size and diversity of the treatment and care allegation category, Figure 10 is limited to specific allegations that had an average paid indemnity of $50,000 or greater. Thus, there are no totals at the bottom of the table.
- The closed claims with the highest average paid indemnity included allegations that were relatively infrequent, and were typically associated with failure to fulfill core responsibilities, duties and expectations of licensed nurses.
- The closed claim categories with the highest average indemnity were failure to timely respond to patient’s concerns related to the treatment plan, failure to respond to equipment warning alarms, failure to invoke or utilize the chain of command, and delay in implementing practitioner orders.
- Closed claims involving the failure to invoke or utilize the chain of command represented 5.6 percent of the treatment and care closed claims, and had a high average paid indemnity. Clearly, the attention of all nurses must be directed to this protocol. Nurses are responsible for invoking the chain of command in order to obtain appropriate services and practitioner intervention for the patient. Our review of chain-of-command closed claims revealed that all patients in this group either died or sustained permanent total disability. Half of these claims occurred in the labor and delivery specialty.
- Several categories of high-indemnity closed claims related to the nurse’s failure to timely obtain and/or carry out practitioner orders and failure to notify the practitioner of changes in the patient’s condition. These closed claims reflect the need for ongoing, effective communication between the nurse and practitioner, as well as prompt and precise implementation of practitioner orders.
- The variety of allegations related to equipment issues demonstrates that nurses are responsible for determining that the equipment needed for each patient is readily available and checked before each use. Nurses must ensure that emergency equipment is accessible and ready for immediate use.
ALLEGATIONS RELATED TO SUB-CATEGORY MEDICATION ADMINISTRATION
- Nurses are responsible for providing the correct medication, in the correct dose, to the correct patient, via the correct route and at the correct time – and for remaining constantly vigilant about preventing medication errors. Of the medication-related allegations, administration of the wrong medication had the highest average paid indemnity. Administration of the wrong dose resulted in the highest percentage of medication-related closed claims, and also had a relatively high average paid indemnity.
- Medication safety has become a more prominent issue, in part due to the occurrence of widely publicized drug-related errors. In response, national patient safety initiatives have focused providers’ attention on the need to reduce medication administration errors by improving medication management and error reporting processes.
- Medication safety initiatives may partially account for the fact that medication closed claims had a significantly lower overall average paid indemnity ($113,070) than the average paid indemnity for allegations related to assessment ($228,737), monitoring ($223,282), and treatment and care ($156,857).
- The fact that many claims involved a failure to understand, clarify or properly implement practitioner orders again underscores the critical importance of ongoing, two-way communication between practitioners and nurses.
ALLEGATIONS RELATED TO SUB-CATEGORY PATIENTS’ RIGHTS, PATIENT ABUSE AND PROFESSIONAL CONDUCT
- Patients have the right to receive care from a nurse who is properly trained, experienced and competent to provide patient care. The costliest single closed claim involved the death of a patient under the care of a nurse who was abusing illegal substances.
- Closed claims alleging violation of the patient’s right to receive care in a safe environment included instances where the nurse did not take necessary action to prevent falls, ensure clear hallways, perform pre-employment screening or ensure that patients were at the appropriate level of care.
- The closed claims alleging violations of the patient’s right to privacy involved the unauthorized release of protected patient information.
- Allegations related to abuse included patient-to-patient abuse as well as physical, sexual and verbal abuse of the patient by the nurse.
INJURY BY CATEGORY
- Other maternal obstetrics-related injury closed claims had the highest average paid indemnity. These injuries included permanent brain damage and permanent seizure disorder, as well as complications resulting from a retained IV catheter tip and a retained surgical sponge.
- Death (other than maternal or fetal) was the most common injury, accounting for 45 percent of the closed claims. When maternal and fetal mortality were included, 48.5 percent of all closed claims involved a patient death.
- Maternal deaths accounted for the second-highest average paid indemnity.
- Fetal/infant birth-related brain injury had the third-highest average paid indemnity, reflecting the expected cost of care for such infants.
Death (other than maternal or fetal) was the most common injury, accounting for 45 percent of closed claims. When maternal and fetal mortality were included, 48.5 percent of all closed claims involved a patient death.
As noted above, 48.5 percent of all injuries were fatalities.
Figure 14 provides additional insight into the causes of those deaths.
ANALYSIS OF SEVERITY BY CAUSE OF DEATH
- The three causes of death with the highest average paid indemnity (cardiac injury, loss of organ function and embolism) included a small number of closed claims with extenuating clinical circumstances. These included failure to diagnose and properly manage co-morbidities; failure to properly and timely assess, monitor and report the patient’s condition; failure to invoke the chain of command to the point of resolution; and patient assault.
- In some of the closed claims, patient death was associated with a single injury or acute illness. However, of the 44 percent of closed claims where cardiopulmonary arrest was the ultimate cause of death, many involved patients whose clinical course included a series of illnesses, injuries and symptoms occurring over a period of time, which contributed in varying degree to the patient’s overall decline. This pattern of multiple adverse patient events and injuries leading to eventual cardiopulmonary arrest was most common in aging services settings, but it also occurred in acute care, home care, and other locations and specialties. The box below contains a closed claim scenario illustrating this type of claim.
CLAIM SCENARIO: CARDIOPULMONARY ARREST AS THE CAUSE OF DEATH
Following an elective hip replacement, an elderly woman was discharged from the hospital to a nursing home for skilled nursing care and rehabilitation. Upon admission to the nursing home, she was observed to have skin tears on her extremities and postoperative hip. The resident also suffered from dementia, prior stroke, coronary artery disease and chronic obstructive pulmonary disease. Several skin tears healed, but the hip skin tear became infected, and the resident developed a pressure sore.
Several weeks after admission, the resident was found on the floor of her room, complaining of pain in her shoulder. She was diagnosed with a fracture of the shoulder and was placed in a shoulder immobilizer. She continued to develop and receive treatment for pressure ulcers and skin tears, several of which became infected.
Subsequently, the resident fell again and suffered swelling and discoloration of the previously affected arm and fingers. A wrist fracture was diagnosed, after which surgery was performed and a cast applied. The resident then returned to the nursing home, having acquired additional pressure sores during her hospital stay.
Her symptoms worsened and her downward course continued. The family initiated hospice care and the resident later died from cardiac arrest. The family sued the director of nursing, the nursing home and other healthcare providers, alleging that multiple failures in care over time precipitated the resident’s death. The claim was settled in the mid-six-figure range.
ANALYSIS OF OBSTETRICS-RELATED INJURIES
- It is important to note that not all obstetrics-related closed claims occurred in obstetrics-specific locations. Injuries to the mother or fetus/neonate also occurred in the emergency department, adult medical/surgical units, post-anesthesia care unit, critical care unit, outpatient care locations and the patient’s home.
- The obstetrics-related injuries with the highest average paid indemnity were maternal obstetrics-related injuries with 6.8 percent of the closed claims and maternal deaths with 11.9 percent. These maternal obstetrics-related injury closed claims involved
- a cardiac arrest resulting in anoxic brain damage
- complications from a retained sponge following Caesarean section delivery
- complications from a retained arterial catheter tip
- septic shock resulting in a seizure disorder
- The maternal deaths resulted from complications – including bleeding and hemorrhage – following Caesarean section delivery.
- The fetal/infant birth-related brain injury closed claims involved failure to
- properly monitor the fetus during labor
- recognize signs of fetal distress
- notify the practitioner of fetal distress
- invoke the chain of command to obtain appropriate practitioner intervention and care during labor
- The genetic defect injuries emanated from failure to pursue appropriate professional services. One claim involved a patient, whose nurse did not obtain diagnostic prenatal genetic screening in accordance with facility protocol. The infant was born with severe genetic defects.
- The obstetric medication errors involved a newborn receiving an incorrect medication in the delivery room, an incident that required transfer and observation but resulted in no injury. A second claim alleged maternal cardiac injury from receiving a wrong medication. Experts deemed the mother’s condition to be pre-existing and unrelated to the medication error. Since neither patient suffered an injury as a result of the medication error, the only “injury” suffered in each of these claims was an extension of care and treatment.
- The obstetrics-related closed claim average paid indemnity of $366,524 was more than double the average paid indemnity for all nurse closed claims of $161,501.
- The box on page 25 contains a case scenario of a maternal death obstetrics claim.
CLAIM SCENARIO: OBSTETRICS CHAIN OF COMMAND
A 21-year-old woman delivered a healthy male infant via Caesarean section and was transferred from the recovery room to the obstetrical postpartum unit, where she was placed under the care of an appropriately trained and experienced temporary staffing agency obstetrics nurse. The nurse rapidly identified and reported a rising pulse and dropping blood pressure, the absence of urine output and increasing complaints of abdominal pain. The obstetrician responded and saw the patient briefly, then attended another delivery. The nurse made frequent calls to the obstetrician over the next four hours and received telephone orders that included frequent checks for vaginal bleeding, pain medication, IV fluids and blood transfusion.
Approximately five hours after delivery, the nurse notified the obstetrician that the patient was experiencing difficulty breathing and had a rash on her arm, indicating a possible transfusion reaction. The obstetrician provided telephone orders to stop the transfusion, administer oxygen and obtain an abdominal ultrasound, which revealed blood in the abdomen. The patient arrested, and the obstetrician performed emergency surgery to stop the uterine hemorrhage. The patient survived the surgery but was diagnosed with severe anoxic encephalopathy, coagulopathy, postpartum hemorrhage and cardiopulmonary arrest. She died the following day.
Although the nurse had identified the clinical problems, closely monitored the patient, and reported and documented the signs of hemorrhage and respiratory distress, the nurse was deemed liable for failing to invoke the chain of command to obtain more aggressive practitioner care. The fact that the nurse was on temporary assignment may have affected the nurse’s knowledge of the chain of command process and/or the nurse’s willingness to invoke that process.
ANALYSIS OF SEVERITY BY DISABILITY OUTCOME
- The level of disability with the highest average paid indemnity was permanent total disability. This is to be expected, as permanently disabled individuals require significant medical and social support for the remainder of their lives.
- Closed claims involving patient deaths had the second highest average paid indemnity. The relatively high average paid indemnity for closed claims where the patient died may be associated with compensation to survivors and/or aggravating circumstances, such as nurse failure to follow practitioner orders or abandonment of the patient.
- The claims involving permanent total disability were associated with the following allegation categories:
- 72.7 percent, treatment and care
- 14.3 percent, assessment
- 7.8 percent, monitoring
- 1.3 percent, medication administration
- 3.9 percent, all other categories
ANALYSIS OF DIRECTOR OF NURSING (DON) CLOSED CLAIMS
Of the total nurse closed claims, 8.5 percent involved a director of nursing, mostly in aging services settings.
The average paid indemnity of $103,731 for DON closed claims was significantly less than the overall average paid indemnity for the 516 closed claims analyzed in this report ($161,501).
MANAGEMENT OF DIRECTOR OF NURSING CLAIMS
Some closed claims against directors of nursing (DONs) involved injuries alleged to have occurred as a result of direct patient care services provided by the DON. Those claims were managed as typical professional liability claims.
Additionally, over the past several years, CNA Claim has identified a number of claims where the DON was personally named in a professional liability lawsuit, despite not having provided direct care or services to the patient. These claims were directed toward the DONs’ actions in delivering managerial and/or administrative services, based upon the assumption that the DON was personally responsible for the actions of the members of the nursing care staff and for the care of each patient within the organization. Many of these claims involved DONs working in aging services facilities, often in states where practitioners carry lower professional liability coverage limits or where the healthcare organization employing the DON was underinsured or uninsured. CNA legal counsel has developed aggressive litigation management strategies to defend against such claims.
CLAIMS RELATED TO AGENCY NURSES
- For the purposes of this report, the term “agency nurse” means an RN or LPN/LVN who provided nursing services as an independent contractor or as an employee of a staffing or placement service.
- Agency nurses were involved in 25.4 percent of the closed claims.
- The average paid indemnity was $170,564 for agency nurse closed claims. For purposes of comparison, the average paid indemnity for all non-agency nurse closed claims was $158,417, while the average paid indemnity for all nurse closed claims included in the study was $161,501.
CLAIM SCENARIO: SUCCESSFUL DEFENSE OF AN EMERGENCY DEPARTMENT NURSE
It is CNA Claim policy to pay covered claims fairly and promptly, while aggressively defending unsubstantiated claims. The following claim scenario represents an example of an aggressive defense of a CNA/NSO-insured nurse, which was successful despite patient injuries including pain, suffering, disfigurement and permanent total disability.
The patient, who was well-known to the emergency department staff, arrived at the emergency department intoxicated, agitated and aggressive. His condition limited our insured nurse’s ability to complete an initial assessment. For the patient’s safety, the nurse requested that security staff place him into four-point restraints per hospital protocol. According to hospital policy, the restraint procedure should have included a security check of the patient’s person for contraband.
As another patient was being monitored in the psychiatric observation room, the nurse placed the intoxicated patient in a quiet single room where he could sleep and calm down sufficiently to undergo a more thorough admission assessment. The nurse performed patient monitoring checks every 15 minutes as ordered, missing only one patient check in order to care for a critically ill patient. The exception was clearly documented, including the nurse’s findings at each of the completed patient checks.
Shortly after the nurse performed a 15-minute check, during which the patient was observed to be resting more comfortably in four-point restraints, the patient attempted to burn off his restraints with a cigarette lighter, igniting his bed linens and clothing. In those few minutes, the patient suffered severe burns, causing him to lose his fingers on one hand, scarring his other hand and resulting in burns over 25 percent of his body, which required multiple surgeries and left him permanently disabled.
Experts were retained who determined that the nurse had acted within her scope of practice and in compliance with both the standard of care and hospital policy. Documentation supported the nurse’s frequent checks of the patient and the reasons for the one missed check, which did not occur at the time of the fire. The case against the insured nurse was defended successfully at trial, with the jury determining that the patient was responsible for his own injuries. The verdict was appealed on two narrow issues, leading to a second successful defense of the nurse.
The claim took 12 years to resolve, with total expenses of over $500,000. While it might have been less expensive to settle the claim, the nurse’s proper care of the patient and complete documentation made an aggressive defense possible and ultimately successful.
COMPARISON OF RN AND LPN/LVN CLOSED CLAIMS
The previous charts in the report combine RN and LPN/LVN closed claims data. To help LPNs/LVNs better understand their unique risk exposures, we compared the 43 closed claims where the defendant was an LPN or LVN with the 473 RN closed claims. The top three results for each of the claim characteristics analyzed are presented below:
- LPNs/LVNs were defendants in 8.1 percent of the closed nurse claims. The distribution of CNA/NSO-insured nurses, while fluid, is about 15 percent LPNs/LVNs and 85 percent RNs.
- The average paid indemnity for LPN/LVN closed claims of $83,213 was approximately half the average paid indemnity for RN closed claims of $168,438.
- The specialty with the highest average paid indemnity for LPNs/LVNs was surgery and for RNs was neurology/neurosurgery.
- The top three locations with the highest average paid indemnity differed for LPN/LVN and RN claims.
- The allegation with the highest average paid indemnity differed for LPNs/LVNs and RNs, but for both groups, assessment and monitoring were among the top three allegations.
- The injuries with the highest average paid indemnity differed for LPNs/LVNs and RNs.
- The causes of death with the highest average paid indemnity differed for LPNs/LVNs and RNs.
- Permanent total disability and death had the highest average paid indemnity for both LPNs/LVNs and RNs.
The average paid indemnity for licensed practical nurse/licensed vocational nurse closed claims of $83,213 was approximately half the average paid indemnity for registered nurse closed claims of $168,438.
While rare events may be difficult to prevent, the nurse closed claims data suggest that many errors are both predictable and preventable. Therefore, ongoing attention to developing and enhancing core competencies can increase patient safety while minimizing nurses’ liability exposure. Compliance with critical processes, such as careful documentation and understanding and invoking the chain of command, is essential in every nursing setting, clinical specialty and position. The following basic strategies can serve as a starting point for nurses seeking to assess and enhance their safety practices:
Know and comply with your state scope of practice, nurse practice act, and facility policies, procedures and protocols.
Nurse employers are required to establish position descriptions and policies in compliance with state regulations. If regulatory requirements and organizational scope of practice and/or policies differ, comply with the most stringent of the applicable regulations or policies. If in doubt, contact your state Board of Nursing or specialty professional nursing association for clarification. The following additional strategies can help reduce the likelihood of scope-of-practice allegations:
- If a job description, contract, or set of policies and procedures appears to violate the legal scope of practice, bring this discrepancy to the organization’s attention.
- State clearly that you are unwilling to risk revocation of your license and possible legal action by failing to comply with the state scope of practice/nurse practice act.
- Know the organization’s policies and procedures related to clinical practices, documentation and steps to take if given an assignment beyond your scope of practice or experience.
Follow documentation standards established by professional nursing organizations and comply with your employer’s standards.
The importance of complete, appropriate, timely, legible and accurate documentation cannot be overstated. Whether patient records are in paper or electronic form, the following information, at a minimum, should be included:
- patient’s presenting complaints and ongoing concerns
- results of initial and ongoing patient assessment findings
- changes in the patient’s condition and date/time of practitioner notification
- results of ongoing patient monitoring and date/time of practitioner notification, if applicable
- results of diagnostic procedures and laboratory testing, as well as date/time of practitioner notification
- referral and consultation requests and results, including scheduling efforts and notification to the practitioner of any delays in completing the request or reporting the results
- content of relevant discussions with the patient and members of the healthcare team, as well as patient-authorized discussions with family members and support system
- patient education and discharge instructions, including the patient’s ability to demonstrate self-care and/or correctly repeat instructions
- objective facts related to any patient accident, injury or adverse outcome
The following additional documentation strategies can help enhance defensibility in the event of litigation:
- Comply with organizational policy and protocol related to correction of documentation errors and/or late entries.
- Refrain from documenting subjective opinions or conclusions and from placing blame or making any accusatory or derogatory statements.
- Never alter a clinical record for any reason. When using paper records, do not write over or obliterate an entry, squeeze an entry into existing documentation or remove any document from the record. Remember that electronic records identify electronic deletions and automatically date and time each entry, making an attempt to alter the record apparent.
- Contact the risk manager for assistance with documentation concerns or questions related to possible liability or regulatory compliance.
Develop, maintain and practice professional written and spoken communication skills.
Effective communication – which involves the exchange of accurate, timely, complete and appropriate information – is essential to working with patients, families, administrators, practitioners and other members of the patient care team in an efficient and appropriate manner. The following communication strategies can enhance information flow and help create a more patient-centered and caring atmosphere:
- Always consider what information to share, when to share it, how to share it (e.g., written versus spoken or in-person vs. telephone) and with whom it should be shared.
- Ensure that communication among caregivers, and between caregivers and patients, is professional, respectful and inclusive. As the caregiver with the most access to the patient, the nurse is often the individual who ascertains the patient’s needs and wishes and conveys them to others. Include family members or significant others in discussions only if the patient or designated legal representative has given authorization.
- Determine the patient’s primary language, follow organizational procedures to obtain translation/interpreter services, and ensure that the patient receives information regarding condition and treatment in the primary language.
- Carefully communicate patient assessments and observations to other members of the healthcare team, in order to develop and modify the plan of treatment and care as necessary.
- Utilize sound hand-off methods, as failure to adequately communicate during patient hand-offs is a common contributing factor to delays or errors. It is essential to convey key information related to acute and/or chronic conditions, including allergies and special needs. Ensure that critical information has been shared whenever the patient is transferred to another caregiver or environment.
Emphasize ongoing patient assessment and monitoring.
Thorough, accurate and timely patient assessment and monitoring are core nursing functions. The healthcare team relies upon nurses to communicate in a timely and accurate manner both initial and ongoing findings regarding patient status and response to treatment. As nurse practice acts vary regarding conditions under which LPNs or LVNs may perform patient assessments, it is essential to understand the scope of practice in your state for each license type.
Maintain clinical competencies relevant to the patient population and healthcare specialty.
Nurses have a duty to proactively obtain the professional information, education and training needed to remain current regarding clinical practice, medications, biologics and equipment utilized for treatment of acute and chronic illnesses and conditions related to their specialty. Continuing nursing education programs represent an important mechanism for meeting this responsibility. If such programs are not routinely provided by the employer, contact state and local nurse associations for information about reputable educational and training offerings.
Invoke the chain of command when necessary to focus attention on the patient’s status and/or any change in condition.
Nurses are the patient’s advocate, ensuring that the patient receives appropriate care when needed. Advocacy includes the duty of invoking both the nursing and medical staff chains of command to ensure timely attention to the needs of every patient, and persisting to the point of satisfactory resolution. Nurses must be comfortable with utilizing the medical chain of command whenever a practitioner does not respond to calls for assistance, fails to appreciate the seriousness of a situation or neglects to initiate appropriate intervention. The following strategies can help reduce apprehension regarding chain of command issues:
- Address communication issues between nursing and medical staffs, and identify instances of intimidation, bullying, retaliation or other deterrents to invoking the chain of command.
- Notify leadership of individuals or areas that prevent nursing staff from invoking the chain of command or punish them for doing so.
- If the organization’s current culture does not support invoking the chain of command, explain the risks posed to patients, staff, practitioners and the organization, and initiate discussions regarding the need for a cultural shift.
For additional nurse-oriented risk control tools and information, visit www.cna.com and www.nso.com/nurseclaimreport2011.
Our analysis of nurse professional liability closed claims reveals that nurses continue to be held strictly accountable for acting within their scope of practice according to their license, as well as within the policies and procedures of their place of employment. Many claims develop due to a failure involving core competencies, such as patient assessment, monitoring, treatment and care, practitioner and patient communication, timely and complete documentation, and invocation of the chain of command – all of which are essential to ensure quality patient care in a safe environment. The claims also demonstrate that nurses are expected to serve as the patient’s advocate and are responsible for obtaining alternative practitioner intervention if the initial practitioner does not respond appropriately to the patient’s medical needs.
Another lesson reinforced by the data is the need for timely, ongoing, two-way communication between the nurse and other members of the healthcare team. All communication, either spoken or written, must be fully documented in the patient’s health information record, providing the information needed to make sound clinical decisions. Documentation should clarify the decision-making process and support discharge planning and other activities implemented on behalf of the patient by nurses, practitioners and other professionals. As illustrated in the scenario on page 29, strong documentation is a pillar of risk management, often delineating the difference between successful and unsuccessful legal defense of nurse professional liability claims.
Knowing the risks that confront today’s nurses is the first step in protecting patients and reducing liability exposure. We anticipate that the data, analysis and risk control recommendations contained in this resource will inspire nurses nationwide to examine their practices carefully and focus their risk control efforts on the areas of statistically demonstrated error and loss.
This checklist is also available at www.cna.com and www.nso.com.
Below are some proactive concepts and behaviors to include in your nursing custom and practice, as well as steps to take if you believe you may be involved in a legal matter related to your practice of nursing:
- Practice within the requirements of your state Nurse Practice Act, in compliance with organizational policies and procedures, and within the national standard of care.
- Document your patient care assessments, observations, communications and actions in an objective, timely, accurate, complete, appropriate and legible manner. Never alter a record for any reason or add anything to a record after the fact unless it is necessary for the patient’s care. If it is essential to add information into the record, properly label the delayed entry as a late entry, but never add any documentation to a record for any reason after a claim has been made. If additional information related to the patient’s care emerges after you become aware that legal action is pending, discuss the need for additional documentation with your manager, the organization’s risk manager and legal counsel to determine appropriate actions.
- Immediately contact your personal insurance carrier if
- you become aware of a filed or potential professional liability claim against you
- you receive a subpoena to testify in a deposition or trial
- you have any reason to believe that there may be a potential threat to your license to practice nursing
- If you carry your own professional liability insurance, report such matters to your insurance carrier, even if your employer advises you that it will provide you with an attorney and/or that it will cover you for a professional liability settlement or verdict amount.
- Refrain from discussing the matter with anyone other than your defense attorney or the claim professionals who are managing your claim.
- Promptly return calls from your defense attorney and the claim professionals assigned by your insurance carrier. Contact your attorney or claim professional before responding to calls, e-mail messages or requests for documents from any other party.
- Provide your insurance carrier with as much information as you can when reporting such matters, but at a minimum, include contact information for your organization’s risk manager and the attorney assigned to the litigation by your employer.
- Never testify in a deposition without first consulting your insurance carrier or, if you do not carry individual liability insurance, without first consulting the organization’s risk manager or legal counsel.
- Copy and retain the Summons & Complaint, subpoena and attorney letter(s) for your records.
- Maintain signed and dated copies of any employer contracts.
Nurses Service Organization’s Analysis of Nurse License Protection Paid Claims
(January 1, 2006 – December 31, 2010)
An action taken against a nurse’s license to practice nursing differs from a professional liability claim in that it may or may not involve allegations related to patient care and treatment provided by the nurse. Another difference is that amounts paid in response to license protection claims represent the cost of providing legal representation to the nurse in defending such actions, rather than indemnity or settlement payments to a plaintiff.
During the period of this report (January 1, 2006 through December 31, 2010), there were 1,127 license defense paid claims, in which legal counsel defended nurses against allegations that could potentially have led to revocation of their license. License defense paid claims involved both medical and non-medical regulatory board complaints against nurses.
ANALYSIS OF CLAIMS BY LICENSURE TYPE
The percentage of license defense paid claims was 84.5 percent for RNs and 15.5 percent for LPNs/LVNs, which correlates with the proportion of RNs and LPNs/LVNs in the overall CNA/NSO-insured nurse population.
ANALYSIS OF CLAIMS BY LOCATION
- RNs who experienced a license defense paid claim worked most often in a hospital setting (57.3 percent) followed by aging services facilities and home health services.
- LPNs/LVNs who experienced a license defense paid claim were most likely to have worked in an aging services setting (56.0 percent), followed by hospitals and home health services.
- Other practice locations include schools, prisons, practitioner offices, community health centers and group homes.
ANALYSIS OF CLAIMS BY ALLEGATION CLASS
- The four allegation classes with the highest percentage of license defense paid claims were the same for both RNs and LPNs/LVNs, although the order of prevalence differed.
- For RNs, the most common allegation was professional conduct (23.5 percent); however, this was only the fourth most common allegations among LPNs/LVNs.
- The top allegation for LPNs/LVNs was medication administration errors at 25.4 percent. Medication administration errors ranked third for RNs at 19.7 percent.
Exhibits 4 through 7 provide additional information regarding the most frequent and severe allegation sub-categories. Note that the percentages are calculated based on the total paid claims by licensure type, with 962 closed claims for RNs and 165 closed claims for LPNs/LVNs.
ALLEGATIONS RELATED TO SUB-CATEGORY PROFESSIONAL CONDUCT
- Within the professional conduct category, drug diversion and/or substance abuse was the top allegation for both RNs and LPNs/LVNs.
- Drug diversion or substance abuse allegations included such acts as diverting medication for self or others, neglecting to document proper disposal of narcotics, inaccurate medication counts not reported/detected, and apparent intoxication from alcohol or drugs while on duty.
- Criminal acts involved shoplifting, driving under the influence and other off-duty conduct.
- Nursing professionals must recognize the stress factors that may lead to unprofessional conduct, and should be proactive in seeking support to manage challenging situations or circumstances.
ALLEGATIONS RELATED TO SUB-CATEGORY PATIENTS’ RIGHTS AND PATIENT ABUSE
- Patients’ rights and patient abuse allegations constituted 13.7 percent of total allegations for RNs and 22.4 percent for LPNs/LVNs.
- Physical abuse allegations ranked highest for both RNs at 4.7 percent and 12.1 percent for LPNs/LVNs.
- The ability to manage difficult patient situations is a core nursing competency. Developing communication and relationship skills for a diverse patient population qualifies as an essential risk control tool for nurses, minimizing exposure to allegations of abuse/violation of patients’ rights.
ALLEGATIONS RELATED TO SUB-CATEGORY IMPROPER TREATMENT AND CARE
- Allegations related to improper treatment and care were comparable for RNs and LPNs/LVNs. These allegations included failure to implement established treatment protocol, improper technique/negligently performed treatment, and abandonment of the patient.
- Allegations often reflect miscommunication or lack of communication with a physician or another nurse, or inadequate hand-off of a patient to another practitioner.
- Allegations for failure to implement established treatment protocols are effectively minimized when nurses ensure that they are fully conversant with facility policies and protocols.
- Another key risk control measure is to document any information shared with patients or other members of the care team.
ALLEGATIONS RELATED TO SUB-CATEGORY MEDICATION ADMINISTRATION
- Medication administration issues represented 19.7 percent of RN paid claims and 25.4 percent of LPN/LVN paid claims.
- The specific allegations related to medication administration were similar for both groups but the percentage of errors differed significantly.
ANALYSIS OF NURSE LICENSING BOARD ACTIONS
Explanation of terms:
- Letter of concern – a communication from the Board of Nursing expressing concern that the nurse may have engaged in questionable conduct
- Consent order – a stipulation of a condition or conditions that must be met in order for the nurse to continue to practice
- Stipulation – a condition or limitation on the nurse’s practice
- Censure – a public written reprimand regarding a violation of the Nurse Practice Act, which does not impose any conditions on the nurse’s professional license
- Criminal-Deferred – a pending Board of Nursing action, awaiting the results of a criminal action against the nurse
Any complaint filed against a nursing license can have career-altering consequences, such as suspension, probation, license surrender or license revocation.
When considering board complaint outcomes for paid license defense claims, half the board’s final decisions resulted in no action, while 45.2 of the outcomes involved monitoring the nurse’s practice, requiring further education or issuing a caution. In addition, 4.8 percent of the decisions involved license surrender or revocation, terminating the careers of these nurses.
A nursing board complaint can be filed against a nursing license by a patient, patient’s family member, colleague or employer. By knowing the most common types of allegations filed, nurses can identify their vulnerabilities and take appropriate action to protect their licenses. Effective risk control strategies include
- working to improve communication and interpersonal skills
- knowing and adhering closely to facility policies
- maintaining nursing skills/competencies through continuing education efforts
- ensuring thorough and accurate documentation in patient care records
Highlights from Nurses Service Organization’s 2011 Qualitative Nurse Work Profile Survey
CNA and NSO are committed to providing nurses with useful information to assist them in caring for patients in a safe manner. In 2011, CNA and NSO conducted three separate studies in order to analyze nurse closed professional liability claims (Part I), review nurse license protection closed claims (Part II), and survey nurse insureds about a range of professional and risk issues (Part III).
Part III differs significantly from the closed claims analyses in Parts I and II, as it presents selected highlights from the Nurses Service Organization’s 2011 Qualitative Nurse Work Profile Survey. (The complete results of the survey may be accessed on the NSO Web site at www.nso.com/nurseclaimreport2011.*) It reflects direct feedback from two subsets of our insured nurses – one group of nurses who had a claim filed against them, and a demographically similar group of insured nurses with no claims. Both groups of respondents electively opted to complete the 2011 NSO survey tool. (In this survey, the term respondent refers to those NSO-insured registered nurses, licensed practical nurses and licensed vocational nurses who voluntarily replied to the NSO survey.)
This survey was performed at the request of NSO insureds, the NSO’s Nurses Advisory Board, professional nurse organizations and nurse educators who sought to compile data from nurses about issues that are not addressed by the analysis of closed claims. It should be noted that the findings in Part III are derived only from those nurses who responded to the 2011 NSO nurse survey, and do not reflect all NSO-insured nurses or all nurses in general.
The survey approach enabled us to compare several variables that influence professional liability exposure, including
- the effect of having a mentor/preceptor versus not having a mentor/preceptor
- the relationship between varying levels of continuing education credits and average paid indemnity amounts
- the results of interacting and not interacting with management when an incident occurs
- the consequences of differing nurse workplace policies and procedures regarding the disclosure of mistakes
NSO engaged Wolters Kluwer Health, Lippincott Williams & Wilkins to survey nurses on these and associated issues. The survey participants included registered nurses, licensed practical nurses and licensed vocational nurses who participated in the NSO insurance program between January 1, 2006 and December 31, 2010.
The purpose of this survey was to examine the relationship between professional liability exposure and a variety of demographic and workplace factors. To that end, the responding nurses were divided into two groups: those who had experienced a professional liability claim resulting in loss that had closed between 2006 and 2010, and those who had never experienced a claim.
Two similar survey instruments were distributed to NSO-insured nurses with and without claims. The first sample group consisted of 1,617 nurses who had a claim close between January 1, 2006 and December 31, 2010. The non-claims sample included a randomized sample of current insureds, approximately matching the demographic characteristics of the closed claims group.
The survey was available in both printed and online form. To ensure that nurses did not complete the survey twice, each nurse was sent either a printed or e-mailed invitation. Those receiving the printed version were informed that they could take the survey online, if they preferred, via an Internet link. Each survey was labeled with a unique identifier to prevent the possibility of duplication by any respondent.
Please note that the survey findings are based on self-reported information and thus may be skewed due to the respondents’ personal perceptions and recollections of the requested information. The qualitative NSO survey results are not comparable to the quantitative CNA nurse closed claims data in Part I or the nurse license protection closed claims data in Part II, and are not representative of all NSO-insured nurse paid claims or nurse paid claims in general.
Within this document, results are based on overall responses for respondents both with and without claims. The margin of error at the 95 percent confidence level for the claims portion of the survey was ±5.2 percent. The margin of error for the non-claims portion was ±3.4 percent. In other words, we can be confident 95 percent of the time that percentages in the actual population would not vary by more than this percentage in either direction.
Some figures and narrative findings in Part III include a reference to the average paid indemnity of the respondents’ closed claims. It is important to remember that the average paid indemnity in this section reflects only those indemnity payments made on behalf of NSO-insured RNs and LPNs/LVNs who had a closed claim and who responded to the survey. Therefore, average paid indemnity findings in Part III should not be compared with average paid indemnity findings in Part I.
- The longer respondents worked as nurses, the greater the number of claims. The highest percentage of closed claims involved respondents who had worked more than 21 years as a nurse. In addition, there was a correlation between the average paid indemnity and the number of years in the profession.
- Education contributed to the average paid indemnity amount. Indemnity payments were higher for claims from respondents who had completed a nursing diploma program than for respondents with a bachelor’s or associate’s degree.
- Respondents who did not have a mentor or preceptor during their first two years as a nurse experienced higher average paid indemnities than those who did.
- Continuing education was associated with decreased average paid indemnity. As the number of required credits for such programs increased, the average paid indemnity decreased.
- The existence of an organization/facility policy for disclosing mistakes resulted in a 50 percent decrease in the average paid indemnity. A quarter of respondents stated their facility did not have a policy in place for disclosing mistakes, and a third stated they did not know if such a policy existed.
- Average paid indemnity decreased when electronic medical records were used exclusively.
- Interaction with management was associated with decreased average paid indemnity. Respondents who noted they felt comfortable turning to management for help had a lower average paid indemnity than those who did not.
NURSING LICENSURE
Although the percentage of registered nurse respondents was slightly higher in the claims group, the overall distribution of nursing licensures for respondents with claims and those without claims was similar.
YEARS AS A LICENSED NURSE
The majority (69.2 percent) of respondents with claims had been a licensed nurse for 21 years or more.
The two groups did not differ significantly in terms of gender.
AGE
The data were weighted heavily toward nurses with claims who were 51 years or older (66.9 percent). This group comprised two-thirds of respondents with claims, compared with 41.3 percent of respondents without claims. Respondents under the age of 30 had rarely experienced a claim.
The two groups varied somewhat, but the highest proportion of respondents with claims earned bachelor degrees, followed by those with associate degrees, those from diploma programs, those with master’s degrees and those with doctorate degrees.
LOCATION OF PRACTICE
Respondents who worked in suburban locations had significantly more claims (56.5 percent) than their non-claim counterparts (43.9 percent).
Practice profile findings include both the non-claims and claims percentages for each response and the average paid indemnity. The average paid indemnity reflects only the payments made on behalf of NSO-insured RNs and LPNs/LVNs who had a closed claim and who responded to the survey. Therefore, as noted earlier, average paid indemnity findings in Part III should not be compared to average paid indemnity findings in Part I of this document.
MENTOR OR PRECEPTOR
There was no difference between claims and non-claims respondents in terms of whether they had a mentor or preceptor during their first two years as a nurse. Respondents without a mentor or preceptor had a higher average paid indemnity.
POSITION OF MENTOR OR PRECEPTOR
Most respondents with a mentor/preceptor indicated that their mentor or preceptor was a nurse colleague/staff nurse. Respondents who had a nurse manager/director as a mentor experienced the highest average paid indemnity. Respondents mentored by a nurse practitioner (NP), clinical nurse specialist (CNS) or physician had the lowest average indemnity payments.
NUMBER OF ANNUAL CONTINUING EDUCATION (CE) CREDITS REQUIRED
While each state mandates its own required number of annual CE credits, about 8 percent more respondents with claims (38.2 percent) reported needing 30 to 60 credits annually to retain their nursing licensure, compared with those without claims. Importantly, as the total number of required CE credits increased, the average paid indemnity decreased.
YEARS OF PRACTICE AT TIME OF INCIDENT
The majority of respondents with claims had engaged in nursing practice for 16 or more years at the time of the incident that resulted in a claim.
YEARS IN POSITION AT TIME OF INCIDENT
At the time of the incident, 45.8 percent of respondents had held their position for three to 10 years. Respondents who had been in their position less than one year experienced the lowest average paid indemnity. Average paid indemnity rose for respondents working in their position three to five years and peaked for those who had served in their position 11 to 15 years.
CERTIFICATION IN PRACTICING SPECIALTY
More than half of the respondents who experienced claims did not have certification in their practicing specialty. Those nurses who were certified in their practicing specialty experienced higher average indemnity payments. Generally, nurses who were unclear about their specialty status were in practice for less than a year.
WORKING WITHIN TRAINED ABILITY
Nearly all respondents who had experienced a claim believed they were fully trained in the patient care services they were providing when the incident occurred. Respondents who believed they were fully trained to work within their specialty had the highest average paid indemnity.
PRACTICING OUTSIDE OF SCOPE
Only 3.6 percent of respondents with claims believed they were working outside their scope of practice at the time of the incident, or were not sure. Most respondents – especially those who had experienced a claim – believed they were working within their scope of practice.
AWARENESS OF WORKING OUTSIDE OF SCOPE OF PRACTICE
Nearly two-thirds (63.7 percent) of respondents who experienced claims were not aware they were practicing outside of their scope of practice. These respondents also experienced the highest average paid indemnity. Respondents who were not sure whether they were practicing outside of their scope of practice experienced the lowest average paid indemnity.
AWARENESS OF WORKING OUTSIDE OF FACILITY POLICY
More than 70 percent of respondents who experienced claims were not aware they were working outside of facility policy, and their claims resulted in the highest average paid indemnity. Only 1.6 percent of respondents reported they knew they were working outside of facility policy, and their claims had the lowest average paid indemnity.
POLICY ON DISCLOSURE OF MISTAKES
One-quarter of nurses surveyed who experienced claims responded that their facility had no policy for disclosing mistakes. These respondents had the highest average paid indemnity. More importantly, respondents working in a facility where such a policy was in place had average indemnity payments that were 50 percent lower.
TYPE OF MEDICAL RECORDS
While use of electronic medical records is increasing, the majority of respondents who experienced claims used handwritten records at the time of the incident. One respondent answered that no type of medical record had been created at the time of the incident.
CONTACTING MANAGEMENT FOR HELP
Most respondents indicated they invoked the chain of command to obtain management help when experiencing a problem. This action significantly lowered the average paid indemnity. Those who responded that they were afraid to contact management concerning the incident had the highest average paid indemnity.
The entire NSO 2011 nurse survey may be viewed at www.nso.com/nurseclaimreport2011. For additional information, please contact NSO at 1-800-247-1500.
*Note that the numbering of the figures in Part III is not sequential because they have been excerpted from the full survey results posted on the NSO Web site in a somewhat different order.
In addition to this publication, CNA HealthPro has produced numerous studies and articles that provide useful risk control information on topics relevant to nurses. These publications are available by contacting CNA HealthPro at 1-888-600-4776 or at www.cna.com. Nurses Service Organization (NSO) also maintains a variety of online materials for nurses, including nurse survey results, articles, and useful clinical and risk control resources, as well as information relating to nurse professional liability insurance, at www.nso.com.
The information, examples and suggestions have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situation. Please note that Internet hyperlinks cited herein are active as of the date of publication, but may be subject to change or discontinuation. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. Use of the term “partnership” and/or “partner” should not be construed to represent a legally binding partnership. All products and services may not be available in all states and may be subject to change without notice. CNA is a registered trademark of CNA Financial Corporation. Copyright © 2011 CNA. All rights reserved.
Nurses Service Organization (NSO) is the nation’s largest administrator of professional liability insurance coverage to individual nursing professionals. Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc., an affiliate of Aon Corporation. For more information about NSO, or to inquire about professional liability insurance for nursing professionals, please contact NSO at 1-800-247-1500 or visit NSO online at www.nso.com.
Published 11/2011
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