Nurse practitioners (NPs) have a great deal of responsibility regarding patient care, and as the healthcare landscape evolves, so do the daily risks NPs face. Despite compassionate work and service to the community, one lawsuit can affect your professional reputation. Nurse practitioner malpractice data can be used to inform and address areas of clinical improvement as well as help to improve the quality of care and patient safety.
Nurses Service Organization (NSO) and CNA have published the new edition of the Nurse Practitioner Professional Liability Exposure Claim Report analyzing 232 closed professional liability claims against NPs, student NPs, and NPs covered through a CNA-insured healthcare business over five years (2017-2021). By equipping NPs with data, resources, and case study examples, our goal is to help them recognize their exposures, reduce their risks, and improve patient outcomes.
Nurse Practitioner Professional Liability Exposure Claim Report, Fifth Edition
Here are the key takeaways.
NP Professional Liability 5-Year Closed Claim Analysis Patterns and Trends
Malpractice claim costs are on the rise.
The average total incurred amount of a nurse practitioner malpractice claim has increased to $332,137 – a jump of more than 10.5% since 2017. In addition, there has been a continued shift towards larger claim settlements. For example, claims resolved for greater than $500,000 represented 21.5% of all claims in the 2022 dataset, compared to 13% in the 2012 dataset.
The most common allegation against NPs is related to diagnosis.
Diagnosis-related allegations represented 37.1% of all allegations against nurse practitioners and continue to be the leading allegation through 2012, 2017, and 2022 datasets. Contributing factors for these diagnosis-related claims included the failure of an NP to order a diagnostic/lab test to establish a diagnosis, failure to obtain a complete history and physical of the patient, and failure to refer a patient to higher level care.
Cancer and infection are the two most common diagnosis-related injuries, representing more than half of the claims. In many diagnosis-related closed claims, a lack of sound documentation supporting the decision-making process of the treating NP or other staff members under the NP’s supervision hindered the case’s legal defense.
Common missing or incomplete documentation noted in the dataset included:
Lack of a complete patient and family history.
Incomplete physical assessment.
Failure to list current medications and/or complaints.
Failure to document patient noncompliance with appointments, ordered diagnostic tests and/or prescribed medications.
Absence of notification of diagnostic test results and recommendations for further treatment or testing.
Nurse Practitioner’s Failure and Outcome
An example of an NP’s failure to order diagnostic/laboratory testing includes:
A 51-year-old diabetic male patient presented to the NP’s office following an emergency department (ED) visit due to a wound on his right foot that appeared to be infected. The NP photographed the wound, documented that it was 0.5 cm in diameter, and confirmed that the patient was still taking the antibiotics as prescribed to him by the ED provider.
Although he was instructed to return in a week for a recheck, he presented two weeks later. The NP documented the wound as 2 cm in diameter with granulation tissue and purulent drainage, and the forefoot was reddened, warm, and swollen. The NP opined that he might need to perform a procedure to evacuate the infected area, but for unknown reasons, the procedure was not performed. Instead, the patient was given a prescription for a different antibiotic, and his wound was cleaned and redressed. One week later, the patient returned, reporting vomiting and feeling weak. His eyes were jaundiced, and his right toe and right leg were more swollen than the prior week. The NP ordered Ceftriaxone 1 gram intramuscularly in the office and then every 24 hours for the next three days via home health. Also ordered were daily dressing changes to the affected foot, vital signs, and bi-weekly (twice-a-week) blood work for the next two weeks.
When home health arrived for the initial visit at the patient’s home, he appeared diaphoretic and pale. His vital signs were indicative of sepsis (high fever, elevated heart, respiratory rate, and low blood pressure). The patient was transferred to the ED and diagnosed with sepsis. He eventually underwent a below-the-knee amputation of his right leg.
Defense experts could not defend the claim, as they indicated that the patient should have been sent to the ED during his last visit with the NP or referred to an infectious specialist or wound care provider after his second visit. The NP testified he had encouraged the patient to go to the ED for treatment on the second and third visits but that the patient refused. There was no documentation in the patient’s healthcare information record to corroborate this testimony. The claim was resolved with a total incurred of greater than $950,000.
Nurse Practitioners: Analysis of License Protection Paid Claims
State Board of Nursing (SBON) investigations are serious matters and a significant investment of time and effort by the NP until they are resolved. Therefore, legal representation in these matters is highly recommended. A complaint against an NP’s license to an SBON differs from a professional liability claim in that it may or may not involve allegations of patient care and treatment provided by an NP. The disciplinary matters in this section represent the cost of providing legal representation to an NP in defending such actions rather than indemnity or settlement payments to a plaintiff.
The cost to defend license matters is increasing. For example, the average cost of defending complaints against nurse practitioners to an SBON is $7,155, a 19.5% increase compared to the 2017 report and a 61.1% increase compared to the 2012 report.
Key findings in the 2022 dataset related to licensing board complaints are:
Professional conduct, medication prescribing, and scope of practice complaints account for more than half of all license protection closed matters (58.4%).
License board complaints related to the professional conduct category were largely driven by matters categorized as professional misconduct defined by the state, such as unprofessional conduct with patients or coworkers, termination from employment due to unspecified performance issues, and professional boundary issues with patients.
Approximately 43% of license board protection matters led to some board action against an NP’s license. Common SBON actions included probation (12%), public reprimand (11.2%), consent order or stipulation (6.4%), and a fine (3.6%). The more severe SBON decisions – such as the surrender of license (2%), revocation (2.4%), and suspension (2.8%) – are less common but can effectively end an NP’s career.
Risk Control Recommendations for Nurse Practitioners
The following risk control recommendations can serve as a starting point for nurse practitioners seeking to evaluate and enhance their patient safety and risk management practices:
Practice within the requirements of your state nurse practice act, in compliance with organizational policies and procedures, and within the national standard of care.
Maintain basic clinical and specialty competencies by proactively obtaining the professional information, education, and training needed to remain current regarding nursing techniques, clinical practice, medications, biologics, and equipment.
Document your patient care assessments, observations, communications, and actions in an objective, timely, accurate, complete, and appropriate manner.
Consider these questions when pursuing a specific diagnosis:
Are factors present that do not align with the diagnosis?
Are there symptoms inconsistent with the current diagnosis?
Are the symptoms indicative of another diagnosis?
Are there elements that can’t be explained?
Is there a condition with similar symptoms to consider?
In Summary
This analysis of NP professional liability and license protection closed claims reveals that, while there have been advances in clinical practice and patient safety, many claims continue to develop due to a failure to diagnose, treat, or take precautions regarding medication safety. Further, communication missteps, inadequate documentation, and unprofessional conduct made matters challenging to defend.
It is anticipated that the data, analysis, and risk control recommendations shared in the report will inspire nurse practitioners nationwide to examine their practices and focus their risk control efforts on the areas of statistically demonstrated error and loss.
The Nurse Practitioner Professional Liability Exposure Claim Report: 5th Edition is the fifth claim report published by CNA and NSO addressing nurse practitioner liability since 2005 and represents NSO and CNA’s ongoing commitment to educating the nursing community. The general analysis includes 232 anonymized closed claims involving a nurse practitioner, nurse practitioner receiving coverage through a CNA-insured healthcare business, or nurse practitioner student that resulted in paid indemnity greater than or equal to $10,000.
This information is provided for general informational purposes and does not provide individual guidance. This information is not a substitute for any workplace practices and is not establishing a standard of care.
A paper or electronic patient health care information record serves two major purposes: communicating information both within and outside the practice and creating written history in the event of later questions or challenges. Complete, accurate, and legible health care information records document all phases of medical treatment, including the care plan, laboratory and diagnostic testing, procedures performed, and medication provided.
The new Nurse Practitioner Claim Report: 4th Edition from CNA and Nurses Service Organization (NSO) analyzed 287 closed professional liability claims against nurse practitioners (claims that resulted in an indemnity payment of $10,000 or greater) over a 5-year period. The report’s analysis revealed that the majority of claims against NPs resulted from an alleged failure involving core competencies, and demonstrates that nurse practitioners are responsible for reviewing, following up on, and documenting the results of appropriate tests and consultations in a timely manner.
The following general principles of documentation can help the practice maintain a consistent, professional patient health care information record:
Ensure that hard-copy notes are legible and written and signed in ink, and also that they include the date and time of entry.
Avoid subjective comments about the patient or other health care providers.
Correct errors clearly by drawing a single line through the entry to be changed.
Sign and date the correction, as well as the notation giving the reason for the change.
Do not erase or obliterate notes in any way. Erasing or using correction fluid or black markers on notes may suggest an attempt to purposefully conceal an error in patient care.
Document actions and patient discussions as soon as possible after the event. If it is necessary to make a late entry, the entry should include the date and time, along with the statement, “late entry for ______” (i.e., the date the entry should have been made).
When dictating notes, include all vital information, such as date of dictation and transcription. Sign transcriptions and write the date of approval or review.
Never alter a record or write a late entry after a claim has been filed, as this may seriously compromise legal defense.
Develop a list of approved abbreviations for documentation purposes. Review and revise the list as necessary and at least annually. In addition, maintain a list of error-prone abbreviations that should never be used, such as this one from the Institute for Safe Medication Practices.
If using a form, complete every field. Do not leave any lines blank.
Furthermore, to help nurse practitioners avoid this segment of risk, nurses should ensure their practice has a written policy governing documentation issues, and all staff members are trained in proper documentation practices. The policy should address, among other issues: health care information record contents, patient confidentiality, release and retention of patient health care information records, and general documentation guidelines.
And while rare events may be difficult to prevent, nurse practitioners can glean lessons from the experiences of their colleagues to help evaluate and enhance their own patient safety and risk management practices.
Disclaimer: This article is provided for general informational purposes only and is not intended to provide individualized business, risk management or legal advice. It is not intended to be a substitute for any professional standards, guidelines or workplace policies related to the subject matter.
This risk management information was provided by Nurses Service Organization (NSO), the nation’s largest provider of nurses’ professional liability insurance coverage for over 550,000 nurses since 1976. Reproduction without permission of the publisher is prohibited. For questions, send an e-mail to [email protected] or call 1-800-247-1500. www.nso.com.
Insights from the new Nurse Practitioner Claim Report: 4th Edition from CNA and Nurses Service Organization (NSO) show that the majority of claims against nurse practitioners developed from a failure involving core competencies, such as diagnosis, medication prescribing, or treatment and care management. Allegations related to failure to diagnose and improper prescribing/managing of controlled drugs occurred most frequently.
What the report also found was that in many claims, the nurse practitioner met the standard of care, but the patient was nonetheless dissatisfied, often due to a lack of communication or understanding. The informed consent discussion represents the first step in managing patient expectations, thus reducing the possibility of a misunderstanding and mitigating the risk of a consequent lawsuit.
Additionally, documenting the informed consent process provides the best defense in the event a patient alleges that the proposed treatment, other options, or the potential for injury were not adequately explained to them. Refer to state statutes for guidance on the informed consent process, as there is considerable variance among states. This is especially true when it comes to caring for minors or cognitively impaired patients, and emergency situations.
The informed consent process involves two main components:
Discussion, providing the patient with sufficient information about and time to consider:
The nature of the proposed treatment, including rationale, anticipated benefits and prognosis.
Alternatives to the proposed treatment, including specialty referral options or no treatment at all. This should also include an explanation of why, according to one’s professional judgment, the recommended treatment is preferable to alternatives.
Foreseeable risks, including potential complications of the proposed treatment and risks of refusing it.
Documentation of the discussion and the outcome of the discussion in the healthcare information record, which often includes the use of a written informed consent form in addition to the verbal component.
The informed refusal process is similar to, but goes beyond, the process for informed consent. Refusal of care increases the potential liability exposure for the nurse practitioner, but nurse practitioners can help minimize their liability exposure by being aware of their consequent responsibilities and documenting the informed refusal process.
Nurse practitioners who continue caring for a patient after they decline treatment recommendations must be aware of their responsibility to:
Continue to examine and diagnose the patient for the duration of the practitioner-patient relationship and as long as the patient continues to refuse treatment.
Continue to inform the patient about the condition and its associated risks, while the practitioner-patient relationship is in place, the condition exists, and the patient continues to refuse treatment.
Continue to inform the patient how their refusal of treatment may affect treatment of other conditions or problems, when discussing these conditions.
After discussing the potential consequences of refusal with the patient, nurse practitioners should complete a comprehensive progress note and document the refusal using a written form, which should be incorporated into the patient health care information record. Progress notes should document:
The individuals present during the discussion.
The treatment discussed.
The risks of not following treatment recommendations, listing the specific risks mentioned.
The brochures and other educational resources provided.
The questions asked and answers given by both parties.
The patient’s refusal of the recommended care.
The patient’s reasons for refusal.
The fact that the patient continues to refuse the recommended treatment.
As the data proves, it is imperative for nurse practitioners to protect their patients and their practice by documenting all phases of medical treatment, discussing (and documenting) the nature of all proposed treatments with patients as well as educating them about the need for follow-up, and signs and symptoms that should prompt a follow-up call.
In addition, today’s nurse practitioners must continuously evaluate and enhance their patient safety and risk management practices by remaining current regarding their clinical practice, medications, biologics, and equipment utilized for the diagnosis and treatment of acute and chronic illnesses and conditions related to one’s specialty and obtain regular continuing education.
Disclaimer: This article is provided for general informational purposes only and is not intended to provide individualized business, risk management or legal advice. It is not intended to be a substitute for any professional standards, guidelines or workplace policies related to the subject matter.
This risk management information was provided by Nurses Service Organization (NSO), the nation’s largest provider of nurses’ professional liability insurance coverage for over 550,000 nurses since 1976. Reproduction without permission of the publisher is prohibited. For questions, send an e-mail to [email protected] or call 1-800-247-1500. www.nso.com.
Prescribing is not a responsibility to be taken lightly. Prescribing a drug to any person – even as a “one-time favor” for a coworker, relative, friend, or neighbor – establishes a patient-practitioner relationship. Prescribe the right drug, for the right patient, in the right dose, by the right route, at the right times, for the right duration, and for the right indications.
As health care delivery has continued to evolve, many Americans are using nurse practitioners for much of their health care needs, making NPs a critical component of the modern system. This growth in demand and responsibility has also increased and evolved the many risks NPs face in their work environments.
The Nurse Practitioner Claim Report: 4th Edition from CNA and Nurses Service Organization (NSO) took a deeper look at those risks by analyzing 287 closed professional liability claims against nurse practitioners (claims that resulted in an indemnity payment of $10,000 or greater) over a 5-year period.
Five allegation categories accounted for 95% of all the closed claims in the analysis: diagnosis, medication prescribing, treatment and care management, assessment, and scope of practice. A detailed view of the allegations related to medication prescribing/management show that within this category, the top three allegations involved improper prescribing or management of controlled drugs (27.7%), improper management of medication (24.7%), and wrong dose (15.4%).
The following strategies can help nurses reduce the likelihood of drug-related errors:
Review current allergy information.
Learn about medication allergies, side effects and interactions, including how to screen patients for potential allergic or other adverse reactions, recognize an allergic response, and treat serious reactions.
Review previous medication orders alongside new orders and care plans, and resolve any discrepancies each time a patient moves from one care setting to another.
Use developed standard order sets to minimize incorrect or incomplete prescribing, standardize patient care, and clarify medication orders.
Emphasize the importance of keeping follow-up appointments, especially when the patient is discharged on warfarin or direct oral anticoagulation therapy and there is a transition of care process.
Nationwide, the Centers for Disease Control and Prevention (CDC) reports that overdose deaths related to prescription opioids were five times higher in 2016 than 1999. Nurses can play an important role in reducing these deaths, as well as addiction problems, through their assessments and monitoring of patients.
When prescribing opioid drugs:
All patients suffering pain should be given a thorough physical and have a history taken, including an assessment of psychosocial factors and family history. Reevaluate the level of pain and the efficacy of the treatment plan at every visit.
Conduct an opioid risk assessment and depression scale test before prescribing opioids and perform periodic screening thereafter.
Use an appropriate opioid dose based on patient age and opioid tolerance.
These claims and recommendations demonstrate the importance of the responsibility for properly evaluating each patient prior to prescribing, following up, and documenting the results of appropriate tests and consultations in a timely manner. While rare events may be difficult to prevent, nurse practitioners can glean lessens from the experiences of their colleagues to help enhance their own clinical, patient safety, and risk management practices.
Disclaimer: This article is provided for general informational purposes only and is not intended to provide individualized business, risk management or legal advice. It is not intended to be a substitute for any professional standards, guidelines or workplace policies related to the subject matter.
This risk management information was provided by Nurses Service Organization (NSO), the nation’s largest provider of nurses’ professional liability insurance coverage for over 550,000 nurses since 1976. Reproduction without permission of the publisher is prohibited. For questions, send an e-mail to [email protected] or call 1-800-247-1500. www.nso.com.
According to the American Association of Nurse Practitioners, there are more than 234,000 nurse practitioners (NPs) licensed in the U.S. today. As health care delivery has continued to evolve, many Americans are using NPs for much of their health care needs, making nurse practitioners a critical component of the modern system. This growth in demand and responsibility has also increased and evolved the many risks NPs face in their work environments. The new Nurse Practitioner Claim Report: 4th Edition from CNA and Nurses Service Organization (NSO) took a deeper look at those risks by analyzing 287 closed professional liability claims against nurse practitioners (claims that resulted in an indemnity payment of $10,000 or greater) over a 5-year period. Study results found the average total incurred payment per claim was $240,471, and indicated that while the number of nurse practitioner claims have been relatively stable over the past five years (2012-2016), the average indemnity payment has increased at least 2% annually since 2012.
Current Liability Patterns and Trends
Nurse Practitioner Claim Report insights show that the majority of claims against NPs developed from a failure involving core competencies, such as diagnosis, medication prescribing, or treatment and care management. Allegations related to failure to diagnose and improper prescribing/managing of controlled drugs were found most frequently.
These claims demonstrate that nurse practitioners are responsible for reviewing, following up on, and documenting the results of appropriate tests and consultations in a timely manner, as well as properly evaluating each patient prior to prescribing medications.
Other findings from the report revealed:
The three specialties with the highest average paid indemnities were neonatal, women’s health (obstetrics), and emergency medicine.
The highest percentage of closed claims occurred in the adult medical/primary care, family practice, behavioral health, and gerontology specialties.
The health care delivery settings that experienced the greatest number of claims were physician office practices, nurse practitioner office practices, and aging service facility, skilled nursing.
Both the frequency and severity of nurse practitioner office practice setting closed claims have increased significantly. In 2012, this setting accounted for 7.0% of the closed claims, with an average paid indemnity of $45,750. In 2017, this setting accounts for 16.4% of the closed claims, with an average paid indemnity of $158,611- three times greater than in the 2012 report.
Five allegation categories accounted for 95.0% of all the closed claims in the analysis: diagnosis, medication prescribing, treatment and care management, assessment, and scope of practice. Diagnosis-related claims had the highest percentage of closed claims, accounting for 32.8% of all closed claims and with an average paid indemnity of $283,263 per claim.
Current License Protection Patterns and Trends
Different from a professional liability claim, an action taken against a nurse practitioner’s license to practice may or may not involve allegations related to patient care and treatment provided by the nurse practitioner. The Nurse Practitioner Claim Report also evaluated this particular risk area, analyzing 404 reported license protection claims affecting CNA/NSO-insured NPs.
Of the closed claims, 240 resulted in a license defense cost in which legal counsel defended nurse practitioners against allegations that could potentially have led to license revocation. The allegation classes with the highest percentage of license protection defense paid claims were medication prescribing/management (27.1%), scope of practice (22.1%), treatment and care management (13.3%), and professional conduct (8.8%). The average payment – comprising legal expenses, associated travel costs, and wage loss reimbursable under the policy – was $5,987. License defense paid claims involved both medical and non-medical regulatory board complaints against nurse practitioners.
Risk Control Recommendations
While rare events may be difficult to prevent, nurse practitioners can glean lessens from the experiences of their colleagues to help enhance their own clinical practices. The following selection of basic risk control recommendations can serve as a starting point for nurse practitioners seeking to evaluate and enhance their patient safety and risk management practices.
Remain current regarding clinical practice, medications, biologics, and equipment utilized for the diagnosis and treatment of acute and chronic illnesses and conditions related to one’s specialty and obtain regular continuing education.
Document all phases of medical treatment, including the care plan, laboratory and diagnostic testing, procedures performed, and medication provided in a timely and objective manner. The substance of all electronic communication related to patient care, including diagnostic test-related communications – whether by telephone, text, email, or instant messaging – should be documented in the patient health care record.
The informed consent discussion represents the first step in managing patient expectations. Discuss (and document) the nature of proposed treatment, alternatives to the treatment, and foreseeable risks and benefits of the treatment options.
Also engage in an informed consent discussion with patients when prescribing medications. Educate the patient about the need for follow-up, and signs and symptoms that should prompt a call to the doctor or a trip to the emergency department.
A self-assessment checklist also is available in the full report to inspire nurse practitioners nationwide to examine their practices carefully.
In Summary
This analysis reveals that, while there have certainly been advances in clinical practice and patient safety, many claims continue to develop. It demonstrates that nurse practitioners are expected to diligently screen, test for, monitor, and/or treat diseases known to have high morbidity and mortality rates and are responsible for obtaining appropriate tests, consultations, and referrals to meet the patient’s medical needs. The report findings also reinforce the responsibility that nurse practitioners must prescribe the right drug, for the right patient, in the right dose, by the right route, at the right times, for the right duration and for the right indications.
Armed with this insight, nurse practitioners can apply key risk control recommendations and resources to focus their efforts on areas of statistically demonstrated error and loss.
Disclaimer: This article is provided for general informational purposes only and is not intended to provide individualized business, risk management, or legal advice. It is not intended to be a substitute for any professional standards, guidelines, or workplace policies related to the subject matter.
This risk management information was provided by Nurses Service Organization (NSO), the nation’s largest provider of nurses’ professional liability insurance coverage for over 550,000 nurses since 1976. Reproduction without permission of the publisher is prohibited. For questions, send an e-mail to [email protected] or call 1-800-247-1500. www.nso.com.
