The Affordable Care Act & Rising Professional Liability Claims for Nurses

by Michael Matray, editor of Medical Liability Monitor

The Affordable Care Act of 2010 extended health insurance coverage to roughly 20 million new Americans, driving the uninsured rate to historic lows. The influx of new patients to the healthcare delivery system has necessitated that many physicians make greater use of nurses in order to keep up with patient flow, causing many in the medical professional liability sphere to worry that critical symptoms will be missed or misjudged by less qualified providers. New data seems to support this concern.

A recent report published by the Nurses Service Organization (NSO)—an insurer of nursing professional liability and a division of CNA—finds that the severity of medical liability claims against nurses is on the rise.

The report, titled Nurse Professional Liability Exposures: 2015 Claim Report, analyzed 549 reported adverse incidents and claims involving a registered nurse, licensed practical nurse or licensed vocational nurse that closed between Jan 1, 2010, and Dec. 31, 2014, with an indemnity payment of $10,000 or greater. When possible, the authors compare the 2015 dataset with the NSO’s last report, which detailed adverse incidents and claims between Jan. 1, 2006, and Dec. 31, 2010, which was published in 2011, in order to see how the average paid indemnity amounts associated with various claim characteristics are changing over time and better identify patterns in nurse claim activity as well as litigation.

Of the 549 claims analyzed in the Nurse Professional Liability Exposures: 2015 Claim Report, 88.5 percent involved a registered nurse and 11.5 percent involved a licensed practical nurse or licensed vocational nurse. The total indemnity paid on the claims was $90,357,533.

The average claim cost for the 2015 dataset was $164,586, up almost 2 percent when compared to the average claim cost of $161,501 in the 2011 report. For both the 2015 and 2011 datasets, the highest percentage of closed claims had a paid indemnity between $10,000 and $99,999—58.8 percent in the 2015 report and 56.2 percent in the 2011 report.

According to the 2015 report, the nurse specialties that experienced the highest severity are neurology ($538,500 average paid indemnity) and obstetrics ($397,064 average paid indemnity). The locations with the highest distribution of closed claims, accounting for 58.5 percent of all closed claims, were hospital-inpatient medical, aging services, patient’s home and hospital-inpatient surgical-service related. These findings were consistent with those from the 2011 claim report.

Nurses trained outside of the United States were more likely to have been involved with a medical malpractice claim than those trained in the United States, while the average indemnity of nurses trained in the United States were almost twice as large as those who were foreign-trained.

Eighty-five percent of nurses who have been involved with a malpractice claim have been in practice for at least 16 years; the largest average indemnity payments ($70,171) were attributed to nurses who have practiced between three and five years. While women constitute a large majority of the nursing profession, the likelihood of a malpractice claim is roughly the same for both men and women, although male nurses who experience a claim have a higher average paid indemnity. The report also notes that those physician practices or hospitals that offer nursing staff development opportunities experienced significantly less claims than those that did not.

Of significance is that the percentage of closed claims involving medication administration has declined by approximately half since the 2011 report, but the claim severity has almost doubled in the last five years.

“The decrease in claim frequency with regard to medication administration correlates with advancements in error-reduction technologies, such as bar-coding of medications and computerized order entry,” explained Jennifer Flynn, NSO manager of Healthcare Risk Management, during a Feb. 25 webinar that examined data from the Nurse Professional Liability Exposures: 2015 Claim Report. “While those technologies helped reduce the number of claims, they have increased the severity of paid claims because the offending nurse had to override those technologies in order to cause the adverse outcome. There is simply no way to defend a nurse who works around existing safeguards.”

The report’s closed claims with an indemnity of at least $1 million most frequently involved treatment and care, such as failure to comply with facility policies or operate within the nurse’s appropriate scope of practice.

The Nurse Professional Liability Exposures: 2015 Claim Report prescribes risk-reduction recommendations designed to serve as a starting point for nurses seeking to enhance their risk control practices in patient safety, assessment and monitoring, treatment and care as well as chain of command and scope of practice.

Those interested in reading the Nurse Professional Liability Exposures: 2015 Claim Report can download a copy here.

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