4/8/2014. Nurse Liability Update. 1. Describe nursing liability claims and costs for malpractice lawsuits.

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2 2 Presentation Objectives Nurse Liability Update 1.

1 Nurse Liability Update Jennifer Flynn Manager, Healthcare Risk Management Nurses Service Organization (NSO) April 8, 2014 Disclosure Statement All potential or actual conflicts of interest have been resolved prior to this webinar. 2 2 Presentation Objectives Nurse Liability Update 1. Describe nursing liability claims and costs for malpractice lawsuits. 2. Discuss factors that may contribute to nursing malpractice lawsuits and ways to manage liability risks in nursing practice

2 Key Terms Indemnity monies paid on behalf on a NSO/CNA insured nurse in the settlement or judgment of a claim. Defendant the party against whom a claim or charge is brought in a court. Plaintiff the party who brings suit in a court. Malpractice - is a type of negligence; it is often called "professional negligence". It occurs when a licensed professional (like a nurse) fails to provide services as per the standards set by the governing body ("standard of care"), subsequently causing harm to the plaintiff. Negligence - is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. In tort law, negligence applies to harm caused by carelessness, not intentional harm. 4 4 Poll Question #1 Have you or do you know a colleague who has been a defendant in a malpractice lawsuit? Yes No (Note: All Poll Answers are Anonymous) 5 5 Poll Question #2 Have you been a witness (expert or otherwise) for the defense or plaintiff in a malpractice lawsuit? Yes No (Note: All Poll Answers are Anonymous) 6 6 2

3 Understanding Nurse Liability : A Three-part Approach Part 1 Nurse Closed Claims Study Nurse Professional Liability Exposures: CNA Healthcare Closed Claims Analysis January 1, 2006 December 31, 2010 Quantitative Analysis Part 2 Nurse License Protection Paid Claims Analysis of paid claims related to allegations made against a nurse s license. Quantitative Analysis May or may not be related to patient care Part 3 Nurse Work Profile Survey Highlights from Nurses Service Organization s 2011 Nurse Work Profile Survey Qualitative Analysis CNA/NSO Nurse Customers (with / without claims) 7 7 Claims Study What we Considered Inclusion criteria (applied to initial pool of 3,222 closed claims) Claim was against a registered nurse (RN), licensed practical nurse (LPN) or licensed vocational nurse (LVN) Claim closed between January 1, 2006 and December 31, 2010 Claim was not for deposition assistance only Claim was not for license protection or defense only (addressed separately) Claim indemnity payment was $10,000 Total paid expenses for closed claims with indemnity payment of $0.00 are shown separately A separate analysis of expenses claims that closed within the time period but that had $0.00 paid indemnity was performed to determine the financial impact of expenses with no paid indemnity. 516 closed claims in the study 8 Survey Distribution Methodology Purpose: to examine the relationship between professional liability exposure and a variety of demographic and workplace factors. 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 Initial Sample Size Claims Non-claims 1,617 7,475 those who had never experienced a claim. Survey sent via U.S. mail and Interpretation of Results 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. Our general guideline is to use a 95% confidence level as the basis for estimating statistical error and the significance of differences between two or more statistical results. Undeliverable Usable Sample Size 1,446 6,873 Number of Respondents Response Rate 20% 12% 9 3

4 Claims Study Severity by Nurse Licensure Type (Closed Claims with Paid Indemnity of $10,000) Licensure Type Percenta ge of Closed Claims Registered Nurse 91.9% Licensed Practical/Vocati onal Nurse 8.1% Total Paid Indemnit y Average Paid Indemnit y Average Paid Expense Average Total Incurred $79,839,3 87 $168,438 $43,051 $211,489 $3,494,96 5 $83,213 $43,570 $126,78 4 LPN/LVN closed claims had lower total paid indemnity and lower average total incurred but similar average paid $83,334,3 expenses. $204,59 Overall 100.0% 52 $161,501 $43, Claims Study Distribution of Closed Claims with Paid Indemnity of $10, % 50.0% 56.2% 40.0% 30.0% 20.0% 24.8% 10.0% 11.2% 2.1% 2.1% 3.5% 0.0% $10,000 to $99,999 $100,000 to $249,999 $250,000 to $499,999 $500,000 to $749,999 $750,000 to $999,999 $1,000,000 and above 11 Demographics Licensure Type, Gender, Age and Work Location Claims (%) Non-Claims (%) Nurse Type RN LPN/LVN Gender Female Male Age 30 years or younger years or older Location Suburban Urban Rural

Demographics Level of Education Claims (%) Non-Claims (%) Education Diploma Program 18.0 12.9 Associate s Degree 31.

.6 Doctorate Degree 1.4 1.3 13 Q: At the time of the incident, how many years had you practiced nursing?

5 Demographics Level of Education Claims (%) Non-Claims (%) Education Diploma Program Associate s Degree Bachelor s Degree Master s Degree Doctorate Degree Q: At the time of the incident, how many years had you practiced nursing? 14 Poll Question #3 Do you think the number of years that a nurse has been practicing in his/her role make a difference in terms of lawsuit risk? Yes No (Note: All Poll Answers are Anonymous)

6 Q: At the time of the incident, how many years had you worked in this particular position? 16 Q: During your first two years of working as a nurse, did you have a mentor or preceptor? 17 Q: Who was the mentor or preceptor? 18 6

Claims Study Severity by Nurse Specialty (Closed Claims with Paid Indemnity of $10,000) Nurse Specialty Percentage of Closed Claims Total Paid Indemnity Average Paid Indemnity Obstetrics 10.

7 Claims Study Severity by Nurse Specialty (Closed Claims with Paid Indemnity of $10,000) Nurse Specialty Percentage of Closed Claims Total Paid Indemnity Average Paid Indemnity Obstetrics 10.3% $20,264,713 $382,353 Neurology/Neurosurgery 0.6% $1,137,000 $379,000 Plastic/Reconstructive Surgery 0.8% $1,297,500 $324,375 Pediatric/Adolescent 2.7% $3,486,250 $249,018 Behavioral Health 1.7% $1,367,500 $151,944 Correctional Health 3.1% $2,315,208 $144,701 Adult Medical/Surgical 40.1% $29,801,615 $143,969 Emergency/Urgent Care 9.7% $7,091,584 $141,832 Public/Community Health/Hospice 8.9% $6,368,790 $138,452 Gerontology in Aging Services Facility 18.0% $9,327,317 $100,294 Aesthetic/Cosmetic 3.7% $821,875 $43,257 *Other 0.4% $55,000 $27,500 Overall 100.0% $83,334,352 $161, * Other specialties included a certified insulin pump trainer and a county-employed administrative nurse who reviewed state Department of Health nursing home recommendations. Q: At the time of the incident, were you certified in the specialty area in which you were practicing? 20 Claims Study Severity by Allegation Category (Closed Claims with Paid Indemnity of $10,000) Allegation Category Related To Percentage of Closed Claims Total Paid Indemnity Average Paid Indemnity Scope of Practice 1.7% $2,664,100 $296,011 Assessment 12.6% $14,867,925 $228,737 Monitoring 6.8% $7,814,875 $223,282 Treatment/Care 58.5% $47,370,806 $156,857 Medication Administration 14.7% $8,593,330 $113,070 Patients Rights/Patient Abuse/Professional Conduct 5.4% $1,992,066 $71,145 Documentation 0.2% $31,250 $31,250 Overall 100.0% $83,334,352 $161,

8 Claim Scenario 22 Case Summary A 67-year-old male underwent a right total knee replacement. Following the procedure, he was treated in the post-anesthesia care unit where an epidural catheter was inserted for post operative pain management. Following one episode of hypotension which was treated with ephedrine by the anesthesiologist, the patient was discharged to an inpatient medicalsurgical care nursing unit with the epidural in place. Although the nurse customarily worked on the post-acute critical care unit, she had been re-assigned to the medical-surgical nursing care unit. The nurse stated that she understood her assignment to this unit was to provide oversight of the patient care on the entire floor for that shift. The nurse understood that the direct care of this patient was assigned to a licensed practical nurse (LPN). 23 Case Summary Approximately three hours after arriving on the unit, the patient was unable to tolerate ordered respiratory therapy due to nausea and vomited shortly thereafter. According to the nurse, approximately ten minutes after the episode of vomiting, the LPN found the patient cyanotic and unresponsive and immediately called a code. The patient was intubated and transferred to ICU. 24 8

9 Case Summary This account of events was disputed by the LPN and two other staff members on the unit. The LPN stated that it was the nurse who found the patient to be unresponsive and it was the nurse who called the code. The eventual diagnosis was anoxic encephalopathy due to the time that elapsed before CPR was initiated. The patient was transferred to hospice care where he subsequently expired. Ordered vital signs were not documented. 25 Was the Nurse Negligent? Do you think this nurse was negligent? Do you think any other practitioners were negligent? Do you think indemnity and/or expense payment was made on behalf of the nurse? If yes, how much? 26 What Really Happened Experts determined that the defendant had breached the nursing standard of care in the following areas including: Failure to formally clarify her work assignment Failure to properly assess the patient upon his admission to the medical-surgical care nursing unit Failure to properly supervise the LPN s care of an unstable patient Failure to follow MD post operative care orders Failure to notify the MD of changes in the patient s condition Failure to initiate CPR immediately upon finding the patient to be unresponsive 27 9

What Really Happened Given the deviations from the standard of care and the testimony from other staff members regarding the defendant s care, the decision was made to settle the case on behalf of

10 What Really Happened Given the deviations from the standard of care and the testimony from other staff members regarding the defendant s care, the decision was made to settle the case on behalf of the defendant. 28 How Much was Paid on Behalf of the Nurse? Indemnity payment between $200,000 and $300,000 Expense payment between $10,000 and $15,000 Amounts paid on behalf of the multiple co-defendants named in the case are not available. 29 Risk Control Recommendations Each staff member is responsible for ensuring clarity regarding their direct care patient assignments, as well as for any assigned supervisory or monitoring duties. Clearly document assignments at the start of the shift and include and communicate any modifications to the assignment during the shift. When staff typically assigned to other areas is floated to the unit, this protocol must be scrupulously implemented. Thoroughly assess patients upon admission to the unit and notify the physician if any patient is deemed unstable or if care and monitoring are required beyond that which is provided on the medical-surgical care nursing unit. Provide the physician with the patient s specific clinical signs and symptoms

11 Risk Control Recommendations Timely and completely carry out physician/practitioner orders. Perform and document all ordered monitoring and treatment, and notify the charge nurse and physician of any orders that could not be carried out due to patient condition or refusal of care. Timely notify the attending physician/practitioner of any significant changes in the patient s condition. 31 Claims Study Top 15 Injuries (Closed Claims with Paid Indemnity of $10,000) Percentage of Closed Total Paid Average Paid Injury Claims Indemnity Indemnity *Other Maternal Obstetrics-related Injury 0.8% $2,046,500 $511,625 Maternal Death 1.4% $3,525,000 $503,571 Fetal/Infant Birth-related Brain Injury 5.8% $13,796,646 $459,888 Paralysis 1.6% $3,163,750 $395,469 Brain Injury Other than Birth-related Brain Injury 5.2% $10,673,750 $395,324 Genetic Defect (OB-related) 0.6% $950,000 $316,667 Cardiopulmonary Arrest 1.0% $1,352,500 $270,500 CVA/Stroke 1.0% $1,250,000 $250,000 Dehydration/Malnutrition 0.2% $175,000 $175,000 Neurological Deficit/Damage 1.7% $1,529,642 $169,960 Eye/Ear Injury or Sensory Loss 0.6% $465,833 $155,278 Erb s Brachial Plexus Palsy 0.2% $147,500 $147,500 Amputation 1.9% $1,440,000 $144,000 Death (Other than Maternal or Fetal Death) 45.0% $31,108,096 $134,087 Compartment Syndrome 0.4% $225,000 $112, * Other maternal obstetrics-related injury included permanent brain damage, permanent seizure disorder and complications arising from a retained IV catheter tip and a retained surgical sponge. Claims Study Top 10 Causes of Death (Closed Claims with Paid Indemnity of $10,000) Identified Cause of Death *Cardiac Injury (Excluding Heart Attack or Myocardial Infarction) Loss of Organ or Organ Function Embolism Bleeding/Hemorrhage Brain Injury Other than Birth-related Brain Injury Suicide Cardiopulmonary Arrest Heart Attack/Myocardial Infarction Pressure Ulcer Infection/Abscess/Sepsis 33 11

Poll Question #4 Of those identified causes of death, which one do you think paid the highest total indemnity? a. Cardiac Injury (Excluding Heart Attack or Myocardial Infarction) b. Embolism c.

12 Poll Question #4 Of those identified causes of death, which one do you think paid the highest total indemnity? a. Cardiac Injury (Excluding Heart Attack or Myocardial Infarction) b. Embolism c. Infection/Abscess/Sepsis d. Brain Injury Other than Birth-related Brain Injury e. Cardiopulmonary Arrest (Note: All Poll Answers are Anonymous) Claims Study Top 10 Causes of Death (Closed Claims with Paid Indemnity of $10,000) Identified Cause of Death Percentage of Closed Claims Total Paid Indemnity Average Paid Indemnity *Cardiac Injury (Excluding Heart Attack or Myocardial Infarction) 0.4% $725,000 $725,000 Loss of Organ or Organ Function 0.4% $300,000 $300,000 Embolism 2.4% $1,365,715 $227,619 Bleeding/Hemorrhage 12.4% $6,543,450 $211,079 Brain Injury Other than Birth-related Brain Injury 0.8% $401,316 $200,658 Suicide 1.6% $685,000 $171,250 Cardiopulmonary Arrest 44.0% $17,434,648 $158,497 Heart Attack/Myocardial Infarction 3.2% $1,265,950 $158,244 Pressure Ulcer 2.0% $534,500 $106,900 Infection/Abscess/Sepsis 16.4% $4,299,525 $104, Q: At the time of the incident, did your employer have a policy regarding disclosure of errors? 36 12

In other words, do you feel comfortable asking for help?

13 Q: Describe your level of interaction with your manager/supervisor when you experience a problem at work. In other words, do you feel comfortable asking for help? 37 Q: At the time of the incident, did your facility use (indicate type of medical records):

Claims Study Risk Control Recommendations Review annually, know and comply with your state scope of practice requirements, nurse practice act, and facility policies, procedures and protocols.

14 Claims Study Risk Control Recommendations Review annually, know and comply with your state scope of practice requirements, nurse practice act, and facility policies, procedures and protocols. Follow documentation standards established by nurse professional organizations and comply with your employer s standards. Develop, maintain and practice professional written and spoken communication skills. Emphasize ongoing patient assessment and monitoring. Maintain clinical competencies aligned with the relevant patient population and healthcare specialty. Invoke the chain of command when necessary to focus attention on the patient s status and/or any change in condition. 40 Nurse Self-assessment Checklist Part I: Understanding Nurse Liability also includes: Nurse Self-assessment Checklist and Claim Tips 41 Claim Scenario 42 14

15 Case Summary An adult male patient, well known to the ED staff, was brought to the ED by police. The patient was intoxicated, agitated and aggressive and could not be fully evaluated clinically. The patient was deemed a danger to himself or others and an order was given for application of four point physical restraints to ensure his safety. The nurse requested application of the restraints by hospital security staff in accordance with hospital policy and protocol. 43 Case Summary Hospital policy and protocol required the security officer to perform a search for contraband prior to the application of the patient s physical restraints. The nurse assigned the restrained patient to a quiet, single room with a less stimulating environment where he could sleep until he was calm enough to undergo a thorough admission assessment. The nurse performed patient monitoring and assessment checks every 15 minutes as ordered. 44 Case Summary The nurse missed one patient check in order to care for a critically ill patient. The nurse documented her 15 minute monitoring and assessment findings including the fact that one check was missed. Shortly after the nurse performed one of her 15 minute checks where she found the patient to be resting comfortably in four point restraints, the plaintiff attempted to burn off his restraints with a cigarette lighter

16 Case Summary The patient suffered severe burns over 25 percent of his body including both hands, causing him to lose his fingers on one hand. The patient s injuries required multiple surgeries and he was permanently disabled. The source of the cigarette lighter remains undetermined. 46 Was the Nurse Deemed Negligent? Do you think this nurse was negligent? Do you think any other practitioners were negligent? Do you think indemnity and/or expense payment was made on behalf of the nurse? If yes, how much? 47 Poll Question #5 Are you familiar with the NAON Scope and Standards of Orthopaedic Nursing Practice? Yes No (Note: All Poll Answers are Anonymous)

17 Was the Nurse Deemed Negligent? The nurse was NOT deemed to have been negligent. Experts determined that the nurse had acted within her scope of practice, within the standard of care and in compliance with regulations, hospital policy and protocol. Documentation supported the nurse s frequent checks of the patient and the reason for the one missed check. The fact that the nurse did document the one missed check provided additional credibility to her overall documentation. The decision was made to take the case to trial. 49 Was the Nurse Deemed Negligent? The case against the nurse was successfully defended at trial. The plaintiff appealed the defense verdict based on two narrow legal issues resulting in a second trial. The second trial also resulted in the successful defense of the nurse and all co-defendants. The claim took 12 years and two trials to fully resolve but the defendant s proper patient care and complete documentation of events made an aggressive defense possible and ultimately successful. 50 How Much was Paid on Behalf of the Nurse? Indemnity payment - $0.00 Expense payment in excess of $500,000 While it might have been less costly to settle this claim, the nurse s proper care and complete and credible documentation made the defense both possible and successful. (Amounts paid in the defense of the multiple co-defendants are not available.) 51 17

Risk Control Recommendations Utilize patient physical restraint when clinically indicated to protect a patient from injury to themselves or others and document the clinical findings that resulted in

18 Risk Control Recommendations Utilize patient physical restraint when clinically indicated to protect a patient from injury to themselves or others and document the clinical findings that resulted in the application of the restraint. Apply and monitor physical patient restraint in compliance with state regulations, standards of practice and facility policy and protocol. Conduct contraband search in compliance with facility policy. 52 Risk Control Recommendations Maintain restrained patients in a controlled environment to facilitate quiet, calm surroundings for the patient and to prevent contact with non-staff who may introduce contraband or unsafe items to the patient. Perform frequent monitoring and clinical assessment of restrained patients or those who are otherwise deemed unstable and/or at risk for injury to themselves or others in accordance with the patient s condition, patient care orders, state regulations and facility policies and protocol Risk Control Recommendations Document all patient monitoring, assessment and clinical findings. Document any variation in patient monitoring and assessment protocol and include the assessment findings upon resumption of the monitoring and clinical assessment protocol

19 Questions? Thank you! 55 Disclaimer The purpose of this presentation is to provide general information, rather than advice or opinion. It is accurate to the best of the speakers knowledge as of the date of the presentation. Accordingly, this presentation should not be viewed as a substitute for the guidance and recommendations of a retained professional and legal counsel. In addition, Aon, Affinity Insurance Services, Inc. (AIS), Nurses Service Organization (NSO) or Healthcare Providers Service Organization (HPSO) do not endorse any coverage, systems, processes or protocols addressed herein unless they are produced or created by AON, AIS, NSO, or HPSO, nor do they assume any liability for how this information is applied in practice or for the accuracy of this information. Any references to non-aon, AIS, NSO, HPSO websites are provided solely for convenience, and AON, AIS, NSO and HPSO disclaims any responsibility with respect to such websites. To the extent this presentation contains any descriptions of CNA products, please note that all products and services may not be available in all states and may be subject to change without notice. Actual terms, coverage, amounts, conditions and exclusions are governed and controlled by the terms and conditions of the relevant insurance policies. The CNA Professional Liability insurance policy for Nurses and Allied Healthcare Providers is underwritten by American Casualty Company of Reading, Pennsylvania, a CNA Company. CNA is a registered trademark of CNA Financial Corporation. CNA Financial Corporation, NSO and HPSO are registered trade names of Affinity Insurance Services, Inc., a unit of Aon Corporation. Copyright 2014, by Affinity Insurance Services, Inc. All rights reserved. 56 References CNA HealthPro and Nurses Service Organization. (2011a). Risk Control Self-Assessment Checklist for Nurses. Retrieved from Risk-Control-Checklist.pdf&folder=pdfs/db&isLiveStr=Y CNA HealthPro and Nurses Service Organization. (2011b). Understanding Nurse Liability, : A Three-part Approach. Retrieved from Study.pdf?fileName=RN-2010-CNA-Claims- Study.pdf&folder=pdfs/db&isLiveStr=Y Nurses Service Organization. (2011). NSO 2011 Qualitative Nurse Work Profile Survey. Retrieved from 11_Nurse_Work_Survey.pdf&folder=pdfs/db&isLiveStr=Y 57 19

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