ICU nurses run risk of being sued for malpractice
Attorney advises some to get insurance
Critical care nurses are being advised that they may become the targets of a new generation of malpractice lawsuits filed against health care providers by disgruntled patients or family members. Plaintiffs are beginning to go beyond suing physicians and hospitals for mishaps sustained during their patient care experience.
As a result, critical care nurses should consider obtaining malpractice liability insurance to protect them from potential lawsuits, according to a former nurse, who is now a health care attorney.
Nurses today are more likely than ever to be named as defendants in a malpractice case, says Ruthe Catolico Ashley, RN, JD, a health care attorney in Sacramento, CA. Critical care nurses are especially vulnerable due to the high morbidity and acuity levels of patients under their care, Ashley says.
While 90% of medical malpractice cases generally don’t get to trial; of those that do, few are dismissed, says Ashley. The percentage of cases that are ultimately litigated is high enough to raise concerns for nurses that they face considerable risk, she adds.
As nurses achieve more authority and clinical decision-making responsibility, the public’s perception is that they also should be held accountable for clinical outcomes and unforeseen occurrences, Ashley notes.
Nurses are vulnerable outside the workplace
"Nurses are directly in the line of fire," says Ashley, who spoke to an audience of critical care nurses last month at the American Association of Critical Care Nurses National Teaching Institute annual meeting in New Orleans.
Ashley says she can’t point to any one landmark case that illustrates the growing exposure by nurses to malpractice suits. But she indicates that the number of cases in which nurses’ names appear as defendants shows a growing trend.
Nurses are particularly vulnerable to so-called "scope of employment" suits, she indicates. These are malpractice claims filed against nurses when they render medical care to people in need while off duty.
According to Ashley, "it is imperative that nurses are aware that when they respond to ethical and professional responsibilities beyond the scope of employment, they also assume the legal duty with all the ramifications of liability that accompany it."1
In 1997, nearly half (40%) of medical malpractice awards involved monetary damages exceeding $1 million. Plaintiffs won 35% of cases filed for misdiagnosis. Forty percent were won for surgical negligence. Cases involving the patient’s death comprised 23% of the total number of plaintiff verdicts.
The average malpractice award involving a patient exceeded $2.1 million. The figures come from Jury Verdict Research, a Horsham, PA, firm that tracks civil lawsuits. (The chart below shows additional annual figures.)
The number of malpractice suits filed against all health care providers is undergoing a change, according to Carol Golin, publisher of a Glenview, IL, periodical Medical Liability Monitor. Malpractice premiums are declining over all due to large-scale mergers in the malpractice insurance industry.
Ashley recommends that some nurses consider obtaining malpractice coverage if they believe they run the risk of being sued due to the nature of their job. A hospital or physician’s insurance coverage isn’t likely to protect a nurse. In most cases, a potential conflict of interest discourages a hospital from extending its coverage to the nursing staff, Ashley notes.
Hospitals aren’t likely to want to be viewed as culpable for a nurse’s alleged mistake or wrongdoing, Ashley explains. A nurse should not expect to receive protection from his or her employer.
In fact, the American Nurses Association (ANA) has long maintained that nurses cover themselves against potential medical liability. Even if a hospital or physician settles in a case, other aspects of the case may still hold a nurse responsible, says Winifred Carson, JD, the ANA’s legal counsel in Washington, DC.
Reference
1. Ashley RC. Avoiding malpractice — beyond the scope of employment. Jou Nurs Law 1997; 4:45-49.
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