Chapter 3: Malpractice Issues
A commonly asked question is whether an APN should feel comfortable with the malpractice policy carried by her or his employer versus have one’s own policy. While it is generally a good idea to seek an attorney’s opinion on such an issue, the problem is that attorneys don't always agree (that's why we have to have courts of law in the first place). And in this case, attorneys who don't have a thorough understanding aboutthe wide variation of how APNs practice areREALLY likely to disagree. While I must reiterate that I am not an attorney, I will share my observations over the years.
There are RN attorneys who are adamant that RNs and APNs should always carry their own malpractice insurance, even if they are assured that they are covered under an employer’s policy. The premise is that an employer may not support the RN or APN in the manner that would be hoped. For traditional RN practice in a hospital setting, this advice may have merit, because very often there is a disconnect between the RN who is a hospital employee versus attending physicians who may be self-employed. Typically, the physician writes an order and the RN is expected to follow that order. Therefore, there certainly can be an argument over who is at “fault,” the physician, the RN, or both.
However, in my experience as an expert witness for cases involving APNs who work in a private practice or primary care setting, the logic of having one’s own malpractice insurance is not that clear. If an APN and the physician are both members of the same practice/employer, the practice’s attorney is the APN’s attorney, and should theoretically protect theinterests ofall providers in the practice. There should be no advantage to the employer to leaving one provider (i.e., an APN) “out to dry” as all of the providers are part of the samebusiness, and an employer is responsible for knowing the quality of service that all employees are providing. If the APN is sued for actions s/he performed as an employee (and performedwithout malice) s/he should be covered by the employer’s policy. A physician or nurse may be whittled out as the one that is specifically culpable, but they should still be covered. That said, it makes perfect sense for every APN to explore the details of the malpractice coverage that an employer carries to see if the amounts of coverage seem sufficient. It never hurts to personally read the fine print or, better yet, get a malpractice attorney to read it. Furthermore, there are practices that insist that an APN carry his/her own malpractice insurance.
Again, whether an APN needs to have one’s own malpractice insurance when s/he is clearly covered by an institution is controversial. I know that insurance companies who provide liability coverage for institutions find it odd that an employee would choose to have his/her own separate policy. It is very common for lawsuits to name one or more APN, one or more physician, as well as the entire practice as a defendant. Therefore if the APN with her/his own insurance were named in a suit, there would be an issue of how the two insurance companies would work together (if, indeed, they would be willing to cooperate).
One of the problems is that in many outpatient practices patients aren’t cared for by just one physician or just one APN. It is very common for the patient to be “shared” by physicians and APNs; the patient may see any number of physicians on certain occasions and any number of APNs on other occasions. Furthermore, situations that generate a malpractice suit often are not the result of a single visit, but may encompass a series of visits, diagnostic tests, and telephone calls. Another common scenario is that the APN will consult with the physician regarding the patient’s assessment and treatment, so it may not be clear who’s at “fault.” Is it the APN who actually saw the patient or the physician who gave the APN advice? I must reiterate that the information that I’ve provided is not legal advice, just some observations of mine over the years.
Bear in mind that the malpractice insurance for one job does not carry over into another job. Having different employers/pay sourcesrequires separate coverage for each. Furthermore, an APN who volunteers at “free clinics” or performs some other type of community service in the role of a health care professional may choose to carry his/her own insurance. Below is a link for the Good Samaritan Act of Illinois which describes an exemption from civil liability for services performed without compensation.
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2076&ChapAct=745%26nbsp%3BILCS%26nbsp%3B49%2F&ChapterID=58&ChapterName=CIVIL+IMMUNITIES&ActName=Good+Samaritan+Act.
While the language in the Good Samaritan Act does provide some comfort to clinicians providing services within free clinics, I would still point out that such acts don’t prevent lawsuits per se. There is always a possibility that some patient will find a lawyer who will try to find a loophole in various laws and still find a way to file a suit. It may end up being a “nuisance suit,” and the clinician may come away relatively unscathed, but s/he may still have to invest some time, energy, and money to make that suit go away. Indeed, that’s the best advantage to having good malpractice insurance: making sure that legal molehills don’t become mountains.
A question often asked is regarding a physician’s liability when collaborating with an APN. The Illinois MedicalPractice act says that a doctor's collaborating with an APN does not in itself mean that the physician is responsible for the APN's actions (60/54.5. Physician delegation of authority), but when people sue they usually cast a wide net.Two situations that I reviewed come to mind. One case involved a patient with several positive Pap tests; thus, not only was the practice sued (naming several physicians and an APN), so was the pathology practice that read the different Pap tests, as well as the hospital with the laboratory where the pathologists worked. Another case involved a family’s belief that a particular medication prescribed by an APN led to the patient’s death; in that case, the suit named two APNs in a practice, one collaborating physician, the pharmacy that filled the patient’s prescription, and the manufacturer of the medication. These cases remained active for several years, although they never went to trial. Therefore, while the end result was positive for APNs and physicians, there was a great deal of energy and angst expended in the intervening years.
One point that should be clarified in any malpractice policy is whether there is coverage for things other than malpractice suits, such as a complaint filed with IDFPR. In the past, such complaints often result in an unannounced visit by an investigator to the APN’s practice, although I have heard that that there has been a change in that practice over the years. In any case, depending on the nature of the complaint, as well as the experience and attitude of the investigator, a complicated and distressing situation can ensue. If an employer’s malpractice policy doesn’t mention providing attorney services for these situations, then having one’s own policy that does provide such coverage is very prudent. (It should also be noted that should an investigator show up on the door of any practice, the investigator should be greeted with the utmost courtesy.)
As I am not an attorney, certainly consulting an appropriately-prepared attorney is generally a wise course of action when dealing with malpractice issues. As there are not that many attorneys familiar with APN practice, it is quite likely that the APN will be educating an attorney as much as the attorney will be educating the APN. Furthermore, it cannot be assumed that an attorney who is also an RN will be any more familiar with APN practice than those attorneys who are not RNs.