Malpractice insurance may not be a sure bet for OH nurses
May 1, 1998 7 minutes read
Malpractice insurance may not be a sure bet for OH nurses
Many pros and cons to consider for professional liability insurance
Nurses in all fields face a dilemma when considering professional liability insurance, and occupational health nurses may have a few additional issues to consider. Though it is clear that an OH nurse must have insurance to cover malpractice, you may have to consider a number of factors before deciding to buy a personal policy in addition to the coverage provided by your employer.
On the issue of professional liability insurance for nurses, no one seems to agree on whether you need your own policy. Many experts have conflicting opinions and offer good arguments for and against providing your own coverage. The decision may come down to factors unique to your own employment situation and what issues you feel are more important - or more frightening.
The cost is not that high for your own policy - usually less than $100 a year premium for at least $1 million per event.
Much of the debate centers on whether a nurse's professional liability policy provides additional protection or just encourages a plaintiff's attorney to name the nurse in a malpractice lawsuit. Your employer always is obligated to defend you in a malpractice case when you were acting within the scope of your job description and your state nursing license, as long as you were not committing a crime. But is that enough?
Not necessarily, warns Janet S. Meyer, BSN, JD, a consultant with MMI Risk Management Resources in San Francisco. For one thing, the coverage provided by your employer may not be enough. When you consider the potential judgment against you in a malpractice case, Meyer cautions that you may have more at risk than you think. Judgments against nurses can be satisfied by taking personal assets, including wages, future inheritances, retirement distributions, and property. Even property owned jointly with another person may not be safe.
"This is a main reason that nurses decide to carry insurance," Meyer explains. "If you drive a Sentra and your spouse drives a Lexus, there may be a lot of assets to think about. Most nurses think, 'If I get sued, what are they going to take? My lousy car?' Well, maybe they'll take your lousy car, your spouse's nice car, your house, everything else."
Little guidance for OH nursesFor nurses practicing in occupational health, there is no official guidance on whether you need your own professional liability insurance. The American Association of Occupational Health Nurses (AAOHN) in Atlanta has no official position on the issue, explains Geraldine Williamson, RN, COHN, director of governmental affairs with the AAOHN. The group offers professional liability insurance to occupational health nurses through a vendor, but Williamson says the AAOHN only recommends that nurses have adequate insurance. Whether that comes solely from your employer or is supplemented by a personal policy is an individual decision, she says.
Meyer tells Occupational Health Management that OH nurses have a few issues to consider in addition to the standard arguments for or against professional liability insurance. For instance, there may be more opportunity for an occupational health nurse to unwittingly practice outside the scope of his or her job description. Doing so could mean your employer's liability insurance would not cover you if a lawsuit is filed.
If you are sent to a work site to conduct an ergonomics evaluation but a worker asks you to look at a rash and you comply, for instance, Meyer says that could potentially be construed as practicing beyond your job description. Of course, the issue will not even come up unless your advice about the rash results in a lawsuit, but if it does, the employer may cut you loose and deny liability coverage.
"You have to be true to your job description no matter where you are, and it can be more difficult when you are out somewhere and not within the confines of your clinic where you know what you should and shouldn't do," Meyer says. "If you're sent to a work site to do a task like an ergonomic analysis, don't do anything else while you're there. But because it's so easy to make that mistake, that's an argument for having your own policy."
If you are an occupational health nurse working for a community employer on-site rather than working for an occupational health program, there may be another reason to consider purchasing your own insurance policy. Though the employer still is responsible for your actions, Meyer says there could be more risk because your employer is not in the health care industry.
"I would want my own insurance in that case because my employer is not in health care and does not understand as well as a health care entity what could go wrong," she says. "They're more likely to be surprised, and they may not have the right kind of insurance to defend you properly."
Also, managers at the work site are more likely than other health professionals to suggest you do something beyond your job description or outside your nursing scope of practice, says Annette B. Haag, RN, COHN, past president of AAOHN and a consultant in Simi Valley, CA.
You could be pushed into a lawsuitAs nonclinicians, on-site supervisors have little understanding of why seemingly innocent tasks could get you in trouble. They may cajole you into something that leaves you without your employer's liability coverage in a resulting lawsuit. That hazard applies equally to occupational health nurses employed at the work site or visiting from an occupational health program.
And no matter who your employer is, you should make a point of reading that company's malpractice insurance policy, Haag warns.
"You need to really read the policy and know what coverage it provides you," she says. "It's not enough to just know the employer has a policy. The details in the policy may make a difference as to whether you need your own policy in addition. I'd say that 99% of nurses have never even seen their employer's policy much less read it carefully."
If you ever act as an independent occupational health consultant, you absolutely must have professional liability insurance because there is no employer to protect in that situation, Haag says. She generally advises occupational health nurses to carry their own professional liability insurance policies, regardless of how they are employed.
Frequent job changes or changes in your employer's corporate status also can be an incentive to carry your own insurance. A job change can leave you without coverage for past events if the previous employer had a "claims made" policy - and so can the dissolution of a previous employer. With all the mergers, acquisitions, and closings of occupational health clinics in recent years, that could be real concern for OH nurses.
Haag also notes occupational health nurses may be at increased risk for malpractice when involved in safety consulting.
"It's an area where we might face increased liability over some types of nursing because there is such potential for disaster," she says. "Clients can argue that you forgot to tell them something or gave some bad advice in your safety consulting, and that was a direct cause of someone getting hurt. A lot of safety consulting in your job description can be a good reason to make sure you have excellent liability coverage."
Policy can take care of gapsYour own professional liability insurance also can compensate for shortcomings in your employer's policy. That can be especially important if your employer has a "claims made" policy instead of an "occurrence" policy. A "claims made" policy means the organization and the employees are covered only for claims made within the policy year. For you to be covered by that policy, you must still be an employee when the claim is filed.
Considering how long it takes for some malpractice cases to be filed, it would not be unusual for a nurse to have changed jobs. The fact you were employed when the event occurred offers no help under a "claims made" policy. Your own policy can protect you in those instances.
Meyer also points out that your employer's insurance policy may not provide you the type of protection you would want if named in a malpractice case. In particular, the employer's policy may not provide you with your own attorney. You would be defended by the employer's attorney as part of an overall defense. For more personal attention, your own professional liability insurance policy can provide an attorney who is focused only on your interests.
A colleague of Meyer's argues that there is little benefit in purchasing your own professional liability insurance. Paul A. Craig, RN, JD, also a consultant with MMI Risk Management, says the risk of an employer denying insurance coverage to a nurse is greatly overstated.
Employers concerned about imageEven if there is a technical reason to argue the nurse acted wrongly in a way that would legitimize the denial of coverage, a health care employer would be foolish to do so, he says. Denying insurance coverage would look very bad to other nurses at the facility and in the rest of the community, he says.
It is more likely that carrying your own professional liability insurance would increase your chance of being involved in a lawsuit in which you otherwise might be ignored, Craig warns. Nurses usually are not named in malpractice lawsuits because the plaintiff is more interested in the deep pockets of the nurse's employer, but your own insurance policy may change that. If the plaintiff's attorneys correctly assume that you have few assets beyond personal property, you are likely to be left out of the lawsuit regardless of your actual involvement in the patient's care. But if they find out that there is a million dollar insurance policy in your name, you may find yourself named as a defendant. (See related stories, p. 54 and below.)
So what have these nurses done about carrying their own professional liability insurance? Meyer has carried her own insurance policy off and on over her career, depending on the circumstances of her employment and whether she was confident that she was adequately covered by the employer's policy. Even though she does not provide hands-on patient care, Haag always takes out a maximum coverage policy because she is an independent consultant. Craig has never purchased professional liability insurance in 16 years as a nurse.
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