- Email: [email protected]
Feeling the Heat
24-26_YJNP319_Miller_CP
12/22/06
8:05 AM
Page 24
Continuing Education
Feeling the Heat Nurse Practitioners and Malpractice Liability Kenneth P. Miller
ABSTRACT As nurse practitioners (NPs) assume more autonomy and take on more responsibility, they increase their legal liability. NPs are now being held accountable to their scope of practice.The resulting dilemma is that as scope of practice and autonomy increase so, too, does susceptibility to malpractice exposure.The primary causes for indemnity payments are identified. By knowing the cause, NPs can work toward a solution that will enhance patient outcomes while simultaneously decreasing malpractice liability. Keywords: Indemnity payments, liability, malpractice, prescriptive authority, primary care providers, scope of practice
As the numbers of nurse practitioners (NPs) in the United States continue to flourish, so, too, does the number of malpractice claims. In our litigious society there is little room for error in the health care arena. Despite the complexity of the disease processes, consumers demand perfection, and, when that unrealistic goal is not met, then malpractice suits abound.The purpose of this paper is to identify issues that have contributed to the malpractice crisis in this country and to offer some suggestions to help stem the ever increasing tide of malpractice litigation. The Nursing Services Organization (NSO), one of the leading insurers of nurse practitioners, has identified 3 main reasons why litigation is on the upswing, specifically (1) increased collaboration and autonomy and less direct supervision, (2) increased prescriptive authority, and (3) recognition of NPs by insurance companies as primary care providers.1 Each of these seemingly posi24
The Journal for Nurse Practitioners - JNP
tive accomplishments has resulted in increased malpractice exposure for NPs. SCOPE OF PRACTICE In 2005 the 18th Annual Legislative Update noted that “18 states successfully passed laws or drafted regulations removing practice barriers for NP practice….”2 Thus, as greater autonomy is conferred by legislative action, it paves the road for greater malpractice liability. In reviewing oversight of the diagnostic and treatment activities of NPs in each state, it was noted that as of January 2006 there were 23 states that had no requirement for physician involvement, 4 states that required physician involvement but without written documentation, and 24 states that required both physician involvement and written documentation.3 This trend toward greater autonomy will only increase because of societal needs for more primary health care providers and the increase in the numbers of uninsured and underinsured perJanuary 2007
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12/22/06
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Page 25
sons in this country.The US Census Bureau report of 2005 states that 46.6 million US citizens are without health care coverage.4 To meet the health care needs of these persons, primary care providers other than physicians are going to be needed.Another factor contributing to this phenomenon is the declining specialty choice by physicians for family practice and the increasing numbers of NPs who are choosing family practice. In 2005 CNA Insurance Companies published a Nurse Practitioners Claims Study for claims from 1994 through 2004. It reported that 81.6% (n = 523) of the claim allegations against NPs fell into the categories of diagnosis, treatment, and medication occurrences (Table 1).Additionally, 86% (n = 107) of the closed claims with indemnity payments fell within these categories.5 These identical categories, representing 82% (n = 368) of payment reports, are supported by a 14-year study by the National Practitioner Data Bank (NPDB)6 (Table 2). In short, these two studies have identified the root causes of most malpractice claims. PRESCRIPTIVE AUTHORITY A second factor that has contributed to the malpractice claims against NPs lies in the expansion of prescriptive authority.Although inherently a positive phenomenon for NPs, the responsibility that goes with such authority again opens one to greater liability. In 2006, 49 states and the District of Columbia had some form of prescriptive authority. Each state has specific criteria for granting this privilege. Twelve states had no requirement for physician involvement, and 38 states wanted a documented contract between the NP and a physician.3 The lone hold out was Georgia, which in the Spring of 2006 passed legislation giving NPs prescriptive authority.The implementation of this latter legislation has since been delayed by continuing amendments to define how that authority will be exercised. Medication errors accounted for 15.9% (n = 107) of the CNA study and 13.3% (n = 368) of the NPDB study (Tables 1 and 2). Hence, an average of 14.6% of indemnity payments during the years of the studies was paid for medication errors. RECOGNITION OF NPS BY INSURANCE CARRIERS The final reason for malpractice claims against NPs is because insurers are finally recognizing NPs as legitimate primary care providers. Concomitantly with this recognition comes the legal accountability for their actions. No longer can NPs look to the physician as the proverbial “captain of the ship.”As NP autonomy and scope of practice have www.npjournal.org
Table 1 Frequency of Claims by Allegation Category Category
Claims, n
Claims, %
Diagnosis
234
44.7
Treatment
133
25.4
Medication
60
11.5
Other
96
18.4
Total
523
99.9
Data adapted from CNA. Nurse Practitioner Claims Study. Chicago, Ill: CNA Insurance Companies: 2005. p. 12-13.
Table 2. Number of Nurse Practitioner Malpractice Payment Reports by Reason Malpractice Reason Anesthesia related Diagnosis related
Indemnities Paid, n 6 165
Equipment or product related
2
Intravenous or blood product related
2
Medication related
49
Monitoring related
15
Obstetric related
23
Surgery related
7
Treatment related
88
Miscellaneous
11
Total
368
Adapted from Health Resources and Services Administration. National Practitioner Data Bank 2004 annual report. Rockville, Md: US Department of Health and Human Services: 2005. p. 65.
increased, the captain and the ship have sailed into the sunset. NPs are now being held accountable for their own actions in terms of not only their professional standards of care but also for the responsibilities that they have incurred by virtue of their national certification status.The NP status of primary care provider is likely to grow exponentially in the future as schools of nursing educate more family practice NPs and schools of medicine decrease the numbers of family practice physicians they are educating. New modes of health care delivery (eg, convenient care clinics based in retail outlets) will also place demands on the numbers of NPs needed to staff these clinics.As a result NP programs will be expected to increase the numbers of practitioners they are educating for the future workforce. Pugno et al7 reported in 2005 that family medicine positions offered and filled in 2005 by US senior medical school The Journal for Nurse Practitioners - JNP
25
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12/22/06
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Page 26
graduates were woefully short.They had 2782 positions but only 1132 applicants. However, they were able to make up a good portion of this physician deficit by filling the positions with foreign medical, Canadian medical, and US citizens who studied abroad. But even with this they still failed to fill 490 family practice positions.7 Data from the 2006 Resident Matching Program showed a decline in the number of family medicine residencies offered by 2% (n = 55) and an identical number of positions filled (n = 1132) as were filled in 2005 by US senior medical graduates.8 However, the number of NPs who graduated in 2005 was 6484.9 Of this number 53% (n = 3436) graduated as family nurse practitioners (FNPs).When compared with their US medical colleagues 3 times as many FNPs are entering the primary care workforce. If this trend continues, then in 5 to 7 years NPs will de facto become the “gatekeepers” for primary care.Again, this expansion of responsibility and influence does not come without a price.That price is seen in their vulnerability to malpractice suits. So what is the answer to this seemingly endless vulnerability? POSSIBLE SOLUTIONS NPs are creative and caring providers. Having identified the causes of some of our malpractice targeting, we can now look to possible solutions to this dilemma. Much work has already been done for us by the studies that have been published, but more work needs to be done.As providers we need to constantly evaluate our care and see whether we are using the best practices and the data from the most recent studies to care for our patients.As independent health care providers we need to always be aware of our limitations and never be afraid to seek consultation with our health care colleagues. Knowledge is expanding faster than any of us can absorb it.We cannot be expected to know everything, but we can be expected to know where and when to seek consultation. The data provided by CNA and the NPDB should provide educators with some areas on which to seek improvement.5,6 If greater than 80% of the malpractice suits are related to medication, treatment, and diagnosis, then perhaps we need to review our curricula and see whether they provide the in-depth content needed for graduates when they enter the workforce. Critical thinking, differential diagnoses, and understanding the various classes of drugs should be areas that receive special attention in our academic programs. As NPs take on more autonomy in their roles, we need to go back to some of the basic risk management 26
The Journal for Nurse Practitioners - JNP
recommendations that we learned in our educational programs. Charting is tantamount to all we do.We must document each and every action whether it was a physical examination, a phone consult, a prescription refill, follow-up on laboratory tests, or any other task that we do on behalf of our patients. If it is not documented, it was not done. Communicate with your patients.Attorneys will tell you that the most frequent reason that patients file suit is because they felt that nobody would listen to them. If you make a mistake, acknowledge it and apologize to the patient. If a patient wants to know the side effects of a certain drug and you do not know, acknowledge that and tell the patient you will find the information and get back with him or her.Then do it! Finally, know your scope of practice and never exceed those state regulations. If you do, you could end up in the “hot seat” of malpractice litigation.
References 1. NSO. NSO Risk Advisor. NSO. 2005;13:1-2,7. 2. Phillips SJ. (2006). 18th Annual Legislative Update. Nurse Pract. 2006;31(1):7. 3. Pearson LJ. The Pearson Report. Am J Nurse Pract. 2006;10(1):25. 4. DeNavas-Walt C, Proctor BD, Lee CH. Current Populations Reports, P60-231, income poverty and health insurance coverage in the United States: 2005. Washington, DC: US Government Printing Office: 2006. p. 20. 5. CNA. Nurse Practitioner Claims Study. Chicago, Ill: CNA Insurance Companies: 2005. p. 12-13. 6. Health Resources and Services Administration. National Practitioner Data Bank 2004 annual report. Rockville, Md: US Department of Health and Human Services: 2005. p. 65. 7. Pugno PA, Schmittling GT, Fetter GT, Kahn NB. Results of the 2005 National Resident Matching Program. Fam Med. 2005;37(8):555-564. 8. American Academy of Family Physicians. 2006 National Resident Matching Program. Available at: www.aafp.org/match/graph01.html. 9. Berlin LE, Wilsey SJ, Bednash GD. 2005-2006 Enrollment and graduations in baccalaureate and graduate programs in nursing. Washington, DC: American Association of Colleges of Nursing: 2006.
Kenneth P. Miller, Ph.D., RN, CFNP, FAAN, is vice dean and professor at the University of New Mexico, Health Sciences Center, College of Nursing in Albuquerque, NM. He has no financial relationships with business or industry to disclose. He can be reached at [email protected]. 1555-4155/07/$ see front matter © 2007 American College of Nurse Practitioners doi:10.1016/j.nurpra.2007.11.003
January 2007
12/22/06
8:05 AM
Page 24
Continuing Education
Feeling the Heat Nurse Practitioners and Malpractice Liability Kenneth P. Miller
ABSTRACT As nurse practitioners (NPs) assume more autonomy and take on more responsibility, they increase their legal liability. NPs are now being held accountable to their scope of practice.The resulting dilemma is that as scope of practice and autonomy increase so, too, does susceptibility to malpractice exposure.The primary causes for indemnity payments are identified. By knowing the cause, NPs can work toward a solution that will enhance patient outcomes while simultaneously decreasing malpractice liability. Keywords: Indemnity payments, liability, malpractice, prescriptive authority, primary care providers, scope of practice
As the numbers of nurse practitioners (NPs) in the United States continue to flourish, so, too, does the number of malpractice claims. In our litigious society there is little room for error in the health care arena. Despite the complexity of the disease processes, consumers demand perfection, and, when that unrealistic goal is not met, then malpractice suits abound.The purpose of this paper is to identify issues that have contributed to the malpractice crisis in this country and to offer some suggestions to help stem the ever increasing tide of malpractice litigation. The Nursing Services Organization (NSO), one of the leading insurers of nurse practitioners, has identified 3 main reasons why litigation is on the upswing, specifically (1) increased collaboration and autonomy and less direct supervision, (2) increased prescriptive authority, and (3) recognition of NPs by insurance companies as primary care providers.1 Each of these seemingly posi24
The Journal for Nurse Practitioners - JNP
tive accomplishments has resulted in increased malpractice exposure for NPs. SCOPE OF PRACTICE In 2005 the 18th Annual Legislative Update noted that “18 states successfully passed laws or drafted regulations removing practice barriers for NP practice….”2 Thus, as greater autonomy is conferred by legislative action, it paves the road for greater malpractice liability. In reviewing oversight of the diagnostic and treatment activities of NPs in each state, it was noted that as of January 2006 there were 23 states that had no requirement for physician involvement, 4 states that required physician involvement but without written documentation, and 24 states that required both physician involvement and written documentation.3 This trend toward greater autonomy will only increase because of societal needs for more primary health care providers and the increase in the numbers of uninsured and underinsured perJanuary 2007
24-26_YJNP319_Miller_CP
12/22/06
8:05 AM
Page 25
sons in this country.The US Census Bureau report of 2005 states that 46.6 million US citizens are without health care coverage.4 To meet the health care needs of these persons, primary care providers other than physicians are going to be needed.Another factor contributing to this phenomenon is the declining specialty choice by physicians for family practice and the increasing numbers of NPs who are choosing family practice. In 2005 CNA Insurance Companies published a Nurse Practitioners Claims Study for claims from 1994 through 2004. It reported that 81.6% (n = 523) of the claim allegations against NPs fell into the categories of diagnosis, treatment, and medication occurrences (Table 1).Additionally, 86% (n = 107) of the closed claims with indemnity payments fell within these categories.5 These identical categories, representing 82% (n = 368) of payment reports, are supported by a 14-year study by the National Practitioner Data Bank (NPDB)6 (Table 2). In short, these two studies have identified the root causes of most malpractice claims. PRESCRIPTIVE AUTHORITY A second factor that has contributed to the malpractice claims against NPs lies in the expansion of prescriptive authority.Although inherently a positive phenomenon for NPs, the responsibility that goes with such authority again opens one to greater liability. In 2006, 49 states and the District of Columbia had some form of prescriptive authority. Each state has specific criteria for granting this privilege. Twelve states had no requirement for physician involvement, and 38 states wanted a documented contract between the NP and a physician.3 The lone hold out was Georgia, which in the Spring of 2006 passed legislation giving NPs prescriptive authority.The implementation of this latter legislation has since been delayed by continuing amendments to define how that authority will be exercised. Medication errors accounted for 15.9% (n = 107) of the CNA study and 13.3% (n = 368) of the NPDB study (Tables 1 and 2). Hence, an average of 14.6% of indemnity payments during the years of the studies was paid for medication errors. RECOGNITION OF NPS BY INSURANCE CARRIERS The final reason for malpractice claims against NPs is because insurers are finally recognizing NPs as legitimate primary care providers. Concomitantly with this recognition comes the legal accountability for their actions. No longer can NPs look to the physician as the proverbial “captain of the ship.”As NP autonomy and scope of practice have www.npjournal.org
Table 1 Frequency of Claims by Allegation Category Category
Claims, n
Claims, %
Diagnosis
234
44.7
Treatment
133
25.4
Medication
60
11.5
Other
96
18.4
Total
523
99.9
Data adapted from CNA. Nurse Practitioner Claims Study. Chicago, Ill: CNA Insurance Companies: 2005. p. 12-13.
Table 2. Number of Nurse Practitioner Malpractice Payment Reports by Reason Malpractice Reason Anesthesia related Diagnosis related
Indemnities Paid, n 6 165
Equipment or product related
2
Intravenous or blood product related
2
Medication related
49
Monitoring related
15
Obstetric related
23
Surgery related
7
Treatment related
88
Miscellaneous
11
Total
368
Adapted from Health Resources and Services Administration. National Practitioner Data Bank 2004 annual report. Rockville, Md: US Department of Health and Human Services: 2005. p. 65.
increased, the captain and the ship have sailed into the sunset. NPs are now being held accountable for their own actions in terms of not only their professional standards of care but also for the responsibilities that they have incurred by virtue of their national certification status.The NP status of primary care provider is likely to grow exponentially in the future as schools of nursing educate more family practice NPs and schools of medicine decrease the numbers of family practice physicians they are educating. New modes of health care delivery (eg, convenient care clinics based in retail outlets) will also place demands on the numbers of NPs needed to staff these clinics.As a result NP programs will be expected to increase the numbers of practitioners they are educating for the future workforce. Pugno et al7 reported in 2005 that family medicine positions offered and filled in 2005 by US senior medical school The Journal for Nurse Practitioners - JNP
25
24-26_YJNP319_Miller_CP
12/22/06
8:05 AM
Page 26
graduates were woefully short.They had 2782 positions but only 1132 applicants. However, they were able to make up a good portion of this physician deficit by filling the positions with foreign medical, Canadian medical, and US citizens who studied abroad. But even with this they still failed to fill 490 family practice positions.7 Data from the 2006 Resident Matching Program showed a decline in the number of family medicine residencies offered by 2% (n = 55) and an identical number of positions filled (n = 1132) as were filled in 2005 by US senior medical graduates.8 However, the number of NPs who graduated in 2005 was 6484.9 Of this number 53% (n = 3436) graduated as family nurse practitioners (FNPs).When compared with their US medical colleagues 3 times as many FNPs are entering the primary care workforce. If this trend continues, then in 5 to 7 years NPs will de facto become the “gatekeepers” for primary care.Again, this expansion of responsibility and influence does not come without a price.That price is seen in their vulnerability to malpractice suits. So what is the answer to this seemingly endless vulnerability? POSSIBLE SOLUTIONS NPs are creative and caring providers. Having identified the causes of some of our malpractice targeting, we can now look to possible solutions to this dilemma. Much work has already been done for us by the studies that have been published, but more work needs to be done.As providers we need to constantly evaluate our care and see whether we are using the best practices and the data from the most recent studies to care for our patients.As independent health care providers we need to always be aware of our limitations and never be afraid to seek consultation with our health care colleagues. Knowledge is expanding faster than any of us can absorb it.We cannot be expected to know everything, but we can be expected to know where and when to seek consultation. The data provided by CNA and the NPDB should provide educators with some areas on which to seek improvement.5,6 If greater than 80% of the malpractice suits are related to medication, treatment, and diagnosis, then perhaps we need to review our curricula and see whether they provide the in-depth content needed for graduates when they enter the workforce. Critical thinking, differential diagnoses, and understanding the various classes of drugs should be areas that receive special attention in our academic programs. As NPs take on more autonomy in their roles, we need to go back to some of the basic risk management 26
The Journal for Nurse Practitioners - JNP
recommendations that we learned in our educational programs. Charting is tantamount to all we do.We must document each and every action whether it was a physical examination, a phone consult, a prescription refill, follow-up on laboratory tests, or any other task that we do on behalf of our patients. If it is not documented, it was not done. Communicate with your patients.Attorneys will tell you that the most frequent reason that patients file suit is because they felt that nobody would listen to them. If you make a mistake, acknowledge it and apologize to the patient. If a patient wants to know the side effects of a certain drug and you do not know, acknowledge that and tell the patient you will find the information and get back with him or her.Then do it! Finally, know your scope of practice and never exceed those state regulations. If you do, you could end up in the “hot seat” of malpractice litigation.
References 1. NSO. NSO Risk Advisor. NSO. 2005;13:1-2,7. 2. Phillips SJ. (2006). 18th Annual Legislative Update. Nurse Pract. 2006;31(1):7. 3. Pearson LJ. The Pearson Report. Am J Nurse Pract. 2006;10(1):25. 4. DeNavas-Walt C, Proctor BD, Lee CH. Current Populations Reports, P60-231, income poverty and health insurance coverage in the United States: 2005. Washington, DC: US Government Printing Office: 2006. p. 20. 5. CNA. Nurse Practitioner Claims Study. Chicago, Ill: CNA Insurance Companies: 2005. p. 12-13. 6. Health Resources and Services Administration. National Practitioner Data Bank 2004 annual report. Rockville, Md: US Department of Health and Human Services: 2005. p. 65. 7. Pugno PA, Schmittling GT, Fetter GT, Kahn NB. Results of the 2005 National Resident Matching Program. Fam Med. 2005;37(8):555-564. 8. American Academy of Family Physicians. 2006 National Resident Matching Program. Available at: www.aafp.org/match/graph01.html. 9. Berlin LE, Wilsey SJ, Bednash GD. 2005-2006 Enrollment and graduations in baccalaureate and graduate programs in nursing. Washington, DC: American Association of Colleges of Nursing: 2006.
Kenneth P. Miller, Ph.D., RN, CFNP, FAAN, is vice dean and professor at the University of New Mexico, Health Sciences Center, College of Nursing in Albuquerque, NM. He has no financial relationships with business or industry to disclose. He can be reached at [email protected]. 1555-4155/07/$ see front matter © 2007 American College of Nurse Practitioners doi:10.1016/j.nurpra.2007.11.003
January 2007