But My Employer Has Insurance

Malpractice Insurance Misconception #2: "I don't need insurance because my employer covers me under their insurance

Although most hospitals cover nurses under the facility’s insurance, the insurance will only cover the nurse while the nurse is working at the facility. If the nurse has quit the hospital may choose not to cover the costs of the nurse's defense. If the nurse was terminated, the hospital is more inclined not to pay for the nurse's defense, especially if the lawsuit is due to the nurse's negligence. The insurance policy may not cover incidents that are caused by the nurse exceeding the nurse’s scope of practice (for example administering medication without a physician's order).

When the employer is a physician, a clinic, etc., nurses may or may not be insured under the employer's liability policy. It is important to know how much coverage is provided to the nurse.

If there is a lawsuit, there will most likely be a complaint filed with the Board of Nurses and most employer insurance will not cover the costs of defending the nurse before the Nursing Board. Another problem with using the facility’s insurance is that the loyalty is to the facility first and then to the nurse.

There have also been a few lawsuits filed against the negligent nurse by the hospital that was subjected to a lawsuit: If the hospital loses a lawsuit, the hospital may then sue the nurse to recover the damages. So in a case such as this the hospital is not going to pay for the nurse’s defense against its own suit.

Conclusion: All nurses should have their own malpractice insurance policies

Taking Responsibility

I love those new Liberty Mutual commercials, not because I am looking for insurance, but for the message they send. The commercials are full of instances where one person looks out or takes responsibility and someone else sees them do this and in a "pay it forward" turn, that person then also does something responsible. For example, a woman stops a pizza delivery guy from walking in front of a truck/car and this is seen by a guy on a motorcycle who then sets up some cones around a road hazard to protect others and on and on.

This idea of "everyone is responsible" also applies to health care. When it comes to safety and advocating for patients, there are no "it is not my job" or "that's not my patient." In crew resource management (used in the aviation industry), safety is everyone's responsibility. If a health care worker sees a potential hazard, that worker steps in to take responsibility and correct the problem or they go up the chain of command to have the problem corrected. Supporting safety measures benefit everyone.

Anything you say can be used against you

Actually, anything you say or write can be used against you. Keep this in mind when dealing with patients, employers, adverse parties and the Board. What may seem like a simple phone call may be tape recorded and used against you later. Most people, including businesses and the Board, have caller ID, so those anonymous calls are not so anonymous. A letter or note or email to a "friend" may haunt you later. Some of the most damaging information used against a nurse came from "friends."

Online chat rooms, myspace accounts, forums, etc. are other places where you must be careful. For example, I have seen posts by nurses who were bragging about substance abuse or venting about inappropriate care of patients online. I have figured out who certain nurses are by reading their posts and if I can figure it out, the Board or opposing attorneys may also be able to determine identities. I have heard the Board chastise a nurse for inappropriate and inaccurate comments made online.

Who Is In Trouble Now?

You just received your Nursing Board newsletter, now it is time to quickly flip to the back and see who got in trouble. I know you do it, but please take a minute to realize how those nurses came to be in the newsletter. Most nurses just made a mistake. It is hard to practice nursing today without violating some aspect of the Nursing Practice Act or rules and regulations. Sometimes the nurse was overworked, maybe it was due to politics at the workplace, maybe the nurse did not know the correct law, maybe the nurse was relying on a physician order or an administrator's directive. There are some nurses that have issues that affect their competency or their ability to safely practice nursing, but the majority just made a mistake or overextended themselves.

As you look at those names, say a little prayer that it is not your name there because if you take the time, you will see all the little mistakes you made that were also violations of law, rules or regulations. So, do not shun your co-workers if their names are in the newsletter. Nursing is hard enough without nurses not being able to rely upon one another.

Malpractice Insurance Will Get You Sued

Lots of nurses will not get malpractice insurance because they have been told that having malpractice insurance will get a nurse sued. WRONG!!!

Plaintiffs (the people suing) will not know initially whether a nurse has malpractice insurance or not unless the nurse voluntarily informs the potential plaintiff that the nurse has malpractice insurance. The decision on whom to name in a lawsuit is not based on whether potential defendants (the nurse being sued) have malpractice insurance or not. Whether a nurse has insurance is not even found out until after the lawsuit has been filed and the parties are in the discovery phase of the lawsuit.

Note however that having malpractice insurance might keep a nurse in a lawsuit. Some attorneys will keep a defendant in a lawsuit if the defendant has insurance to pay for potential settlements or judgments. In the past, not having insurance benefited nurses because attorneys would drop nurses out of a lawsuit because the nurses did not have "deep" pockets and did not typically have malpractice insurance. So, if there was not much money available the nurse was dismissed. Now, many attorneys will not dismiss any defendants from a lawsuit if there is potential to get any amount of money from them (plus nurses are being paid much better now).

So, malpractice insurance will not get a nurse sued. Nurses should purchase their own malpractice insurance policy with a license defense rider.

Protect Yourself Now

I just spoke to another nurse who is trying to find the money to defend herself against an investigation by the Board. It is extremely risky and dangerous to represent yourself before the Board, so it is crucial that all nurses obtain legal representation. You need an attorney whether you are guilty or not and the Board does not think you are guilty just because you have an attorney. (More in a future post about why nurses should not represent themselves)

What can a nurse do today to plan for a potential investigation by the Board? Purchase malpractice insurance!!!! Be sure the policy contains licensure protection or a rider to cover any actions before the Nursing Board. By buying malpractice insurance with licensure protection, a nurse not only obtains legal representation for a lawsuit but also for legal representation before the Board of Nursing. But, a nurse cannot buy insurance for an incident that has already occurred. The insurance must be in place before an occurrence.

It costs money to defend yourself against a lawsuit or an action by the Nursing Board. Even if you are innocent, you will still have to defend yourself. The costs include legal fees, consultant fees, expenses, expert fees and more. It is cheaper and provides peace of mind regarding your finances to have malpractice insurance.

Watch for future posts explaining the misconceptions of malpractice insurance and how to find insurance.

DWI

Do not take even one drink and drive because it is too costly: not only could you kill or harm yourself and others, but if you are arrested, you start down a course that can have extreme adverse results. DWIs/DUIs are expensive. A recent article in the Austin American-Statesman listed the various costs associated with a DWI. When I added up the high ranges for these costs it came to approximately $50,000 and that did not include recurrent costs such as drug screens. Then you are faced with the criminal repercussions. In addition, if you are licensed by a regulatory board, you will most likely be investigated for possible intemperate use.

For example, a nurse accused of intemperate use must prove his or her sobriety (the DWI or positive urine screen is used by the Board as evidence of the substance abuse). It takes a lot of time and money and produces quite a bit of stress to prove one's sobriety.

It is so much easier and cheaper to just pay for a taxi or have a true designated driver. Also, these decisions must be made prior to engaging in drinking because once a person drinks, their decision-making can be impaired and they will think that they are fine to drive. I represent many health care providers that are accused of substance abuse/addiction and they will agree - Not even one drink if you are going to drive!

Nurses Must Join Together to Become Powerful

Should nurses join nursing associations? YES!, YES!, YES! There is a lot going on in the nursing field, new advancements, changes in laws, changes in the Board of Nurses' rules and regulations, etc. It is very difficult for an individual to keep abreast of what is changing, much less to take the time to advocate for positions supporting nurses. Just try to find all the bills affecting nurses during a Legislative Session and then what if one of them adversely affects nursing practice, would an individual have the time to comment on the proposed legislation or to attend the various meetings? New rules and regulations proposed by the Board of Nurses are even more difficult to track and rarely do individuals submit comments on proposed rules. As an example, a recent rule proposed by the Board of Nurses adversely affected nurses but only two individuals (I was one) and the Texas Nurse Association commented. The Board went ahead with adopting the proposed rule. With more support from Texas nurses, the rule could have been either withdrawn or changed to more favorable language.

Nurses typically do not join state, national or specialty associations. This is the reason why nurses are politically weak. Physicians and Hospitals join their associations and that is why those associations carry so much weight with politicians. Money and votes matter to our Legislators. If all nurses joined nursing associations, we would far outnumber the physician and hospital associations combined. The combined membership fees would provide the associations with the monetary power they need. Instead of gaining support for bills from physician groups and hospital associations, the Legislature would know that they need to listen to the nursing associations first.

I hear complaints that the nursing associations do not support bedside nurses, that they focuses on nursing educators and nursing administrators. Any association is a reflection of its members. Nursing educators and administrators know the value of joining associations and so the associations naturally reflect the goals of those members. If bedside nurses want to change this, they must join the associations and then seek to change the goals. The association will follow the desires of its members.

If nurses want to be powerful, they must join nursing associations that are active in the legislative arenas that are of interest to them. So, if a nurse cares about making changes in Texas State Politics and with the Texas Board of Nurses, the nurse should look to state nursing associations. Nurses need to stop being doormats and start standing up as a profession.

When an error becomes a crime

Nurses should pay attention to a recent 2006 court case out of Wisconsin. In State of Wisconsin v. Julie Thao, Ms. Thao a nurse with 13 years of experience and an exceptional nursing practice history was charged with one count of neglect of a patient causing great bodily harm (which is a felony that can result in a significant fine and imprisonment). After plea bargaining, Ms. Thao was placed on 3 years criminal probation. Ms. Thao was also sanctioned by the Wisconsin Nursing Board. She received a suspension of her nursing license for 9 months, then she was placed on 2 years of restrictions (she could not work more than 12 hours per 24 hours or more than 60 hours per 7 days; she has to obtain 54 hours of CEUs in one year; she has to give 3 presentations to the nursing community and she has to pay a $2500 fine).

So what did Ms. Thao do that resulted in such actions? In July 2006, Ms. Thao worked 2 consecutive 8 hour shifts and then worked another 8 hour shift the next day on L&D unit. Midway through that shift, she pulled an epidural medication mini-bag (bupivacine & fentanyl) in anticipation of an epidural order for her 16 year old patient who was in labor. The mini bag was labeled with a bright pink label. She sat the mini-bag down at the bedside. She was supposed to hang a PCN piggyback, but instead she grabbed the epidural and administered it IV. The patient died (the baby was born by C-section).

Unfortunately, this is not the first time a health care provider has been charged with a crime as a result of their negligence. There have been other providers charged criminally such as a nurse for inserting a Foley catheter without an order (trying to obtain a urine specimen, the nurse botched the insertion resulting in the patient requiring a supra pubic catheter) or the provider who transported a patient in a wheelchair without putting the foot rests down causing the patient to pitch forward and suffer injuries from a fall. This is a disturbing trend that state nursing associations are trying to discourage.

Nurses need to be aware of ALL of the possible ramifications from nursing errors and take appropriate defensive action when an error occurs.