Nurse practitioners are at the forefront of a paradigm shift occurring in today s healthcare industry.

Transcription

1 Nurse practitioners are at the forefront of a paradigm shift occurring in today s healthcare industry. Understanding Nurse Practitioner Liability: CNA HealthPro Nurse Practitioner Claims Analysis , Risk Management Strategies and Highlights of the 2009 NSO Survey

2 Contents Introduction CNA HealthPro Nurse Practitioner Claims Analysis Executive Summary Legal and Regulatory Environment Claims Analysis Database and Methodology Ultimate Severity of Claims by Accident Year Analysis of Claims by Claim Category Analysis of Claims by Clinical Specialty Analysis of Claims by Location Analysis of Claims by Injury Analysis of Claims by Disability Analysis of Claims by Allegation Analysis of Allegations Related to Diagnosis Analysis of Allegations Related to Treatment Analysis of Allegations Related to Medication Analysis of Injuries Resulting in Death Analysis of Closed Claims with the Highest Indemnity Payments Risk Management Recommendations Insurance Scope of Practice Health Information Records Documentation Diagnosis and Treatment Medication Management Conclusion Highlights from the NSO 2009 Nurse Practitioner Survey Introduction Survey Methodology Summary of Findings NSO Survey Excerpts Demographics Nurse Practitioner Education/Preparation Clinical Specialty Clinical Hours Required in Nurse Practitioner Programs Years as a Registered Nurse Prior to Becoming a Nurse Practitioner State Regulations Governing Practice Years of Experience as a Nurse Practitioner Significance of a Mentor Practicing Outside of Certification Years Working in Specified Position at Time of Incident Prescriptive Authority Daily Patient Workload Overtime Electronic Medical Records

3 4 Introduction CNA HealthPro and the Nurses Service Organization (NSO) currently insure approximately 25,000 nurse practitioners nationwide. As major providers of professional liability insurance for nurse practitioners, CNA HealthPro and NSO are dedicated to assisting our clients in mitigating risk. We express our commitment through collaboration, consultation and educational efforts aimed at raising client awareness of medical malpractice issues. Five years ago, CNA HealthPro collaborated with NSO to publish the Nurse Practitioner Claims Study This update analyzes reported events from CNA-insured nurse practitioners that occurred between 1998 and It examines the litigation environment, analyzes professional liability risks associated with nurse practitioners and offers current risk management recommendations related to key findings. To enhance the discussion, NSO surveyed nurse practitioners insured through the NSO program regarding the relationship between liability and a variety of professional factors, such as level of supervision and prescribing authority. Highlights of the NSO survey results are provided, beginning on page 29. The full NSO survey can be accessed at Please note that the CNA HealthPro claims review and the NSO survey exclude claims associated with registered nurses, certified registered nurse anesthetists and certified nurse midwives. Nurse practitioner, as defined here, includes clinical nurse specialists, except where clinical nurse specialists are cited separately.

4 5 CNA HealthPro Nurse Practitioner Claims Analysis Executive Summary This publication presents CNA HealthPro nurse practitioner claims data for events that occurred between January 1, 1998 and December 31, The following study findings are of special import for nurse practitioners: - Ultimate average indemnity and expense payments have increased over the past 10 years. (Figures 1a and 1b) - Adult/geriatric, family and pediatric/neonatal medicine specialties continue to have the most claims. (Figure 3a) - The pediatric/neonatal specialty has the highest average severity. (Figure 3b) - The medical care office is the location with the highest number of claims. (Figure 4a) - Wrongful death is the most frequently alleged injury. (Figure 5a) - Fetal/infant birth-related brain injury has the highest average severity; however, this average is based on a small number of closed claims. (Figure 5b) - Diagnosis-related allegations account for 39 percent of open and closed claims. (Figure 7a) - Scope of practice-related allegations are relatively rare, but they have the highest average severity. (Figure 7b) - Failure to order/obtain appropriate consultation/referral has the highest severity among treatment-related allegations. (Figure 9b) - More than 80 percent of medication errors are prescription-related. (Figure 10a) - The injury that most frequently results in death is infection/ abscess/sepsis. (Figure 11a) - Although relatively rare, complication from surgery, treatment, procedure or medication has the highest severity among the injuries that resulted in death. (Figure 11b) - Cardiac condition is associated with 22.1 percent of the closed claims that resulted in death and incurred an indemnity payment. The average paid indemnity for these closed claims was $250,756. (Figure 11b) - Four closed claims that settled at the policy limit (i.e., $1 million) resulted from allegations of failure to diagnose or failure to properly assess. (Figure 12b) C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

5 6 Legal and Regulatory Environment Nurse practitioners are at the forefront of a paradigm shift occurring in today s healthcare industry. Ten years ago, nurse practitioners did not assume a prominent role in patient care. However, as policymakers address the goal of making healthcare accessible in all of our communities, they increasingly focus upon the nurse practitioner. Today, physician groups, hospitals, aging services organizations and other healthcare providers call upon the services of nurse practitioners to maximize quality while maintaining affordability in patient care. As nurse practitioners assume a larger role in the healthcare industry, related legal and regulatory issues also intensify. As a result, nurse practitioners now occupy a central role in malpractice litigation. A threshold issue in such litigation often is the express regulatory authority of a nurse practitioner to render certain types of patient care. With respect to scope of practice, however, states differ dramatically in the professional activities that nurse practitioners may perform. Some state statutory schemes expressly designate those practices in which a nurse practitioner may engage. Others define the scope of practice through regulatory boards, which also may serve as disciplinary bodies authorized to investigate alleged transgressions. A few states delegate, to varying degrees, the task of defining the scope of nurse practitioner practice to the discretion of the supervising physician. The roles and responsibilities of nurse practitioners are further defined by policies, procedures and/or protocols promulgated by their employers. Many policies or standing orders may operate to define the discretionary authority, activities and scope of a nurse practitioner s practice pursuant to statutory and/or regulatory grants of authority. At the present time, delineating the appropriate scope of practice may present more challenging issues for nurse practitioners than for other healthcare professionals. Moreover, the desire to free nurse practitioners to work more independently may create tension with the need to comply with this complex and evolving framework of regulations and practice rules. Therefore, administrators, nurse practitioners, other healthcare professionals and legal counsel must remain abreast of state-specific scope of practice guidelines. From a claims perspective, nurse practitioner liability issues are not always limited to single defendants. Physicians, healthcare practice groups and other healthcare organizations often become involved directly as co-defendants in nurse practitioner malpractice litigation. These professionals or institutions may bear liability for granting nurse practitioners too much authority, or for failing to appropriately supervise their practice. Thus, they should be conversant with the issues surrounding the professional activities of nurse practitioners. Nurse practitioners will continue to play a critical role in the healthcare industry. As the legal and regulatory framework of advanced nursing practice changes, mitigating the risk of professional liability claims for nurse practitioners and defending claims of negligence when they occur will remain a challenge. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

6 7 Claims Analysis Database and Methodology This study presents and analyzes professional liability claims brought against CNA-insured nurse practitioners for events that occurred between January 1, 1998 and December 31, During this period, 1,799 claims were reported. Of these, 1,092 claims were excluded from the study, leaving 707 open and closed claims. Claims were excluded for one or more of the following reasons: - The reported incident closed with no indemnity or expense payment. - Deposition assistance was the only service provided. - Legal assistance for protection of the nurse practitioner s license was the only service provided. - The claim was a drug-related class action lawsuit. * - The claim did not involve professional liability. Throughout this section of the document, frequency refers to the number of open and closed claims with the specified attribute, such as a particular allegation, location or specialty. Indemnity payments are monies paid for the settlement or judgment of a claim by CNA. Expenses are monies paid by CNA for the investigation, management and/or defense of a claim. Severity refers to the average paid indemnity for closed claims that included indemnity payments. When drawing conclusions from the data, the following inherent limitations should be noted: - The database includes only CNA-insured nurse practitioners, which may not represent the entire population of nurse practitioners. - Indemnity and expense payments include only monies paid by CNA on behalf of its insured nurse practitioners. Other possible sources of payment related to a claim such as employer-based coverage are not included in the data. - Coverage for indemnity payments is generally limited by the policy to $1 million, whereas judgments against a defendant may be higher. 1 * Nurse practitioners continue to be named in drug-related class action lawsuits. During the study period, more than 20 such actions were initiated, with associated expenses exceeding $300,000. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

7 8 Ultimate Severity of Claims by Accident Year This section is based on data extracted from our actuarial review and provides best estimates of claim severity over time. Ultimate claim counts and severity are projected using actuarial methods based on historical development patterns. Optimally, ultimate values should not change over time. However, as no model can predict claim settlement with precision, ultimate values may increase or decrease at each evaluation. Figure 1a shows that the average indemnity payment has increased over the past 10 years. It was approximately $168,600 in 1999 and is projected to be $189,300 in Despite some volatility, the average appears to be increasing at a rate of 2.3 percent per year. As shown in Figure 1b, the average expense payment has also increased over the past 10 years. It was approximately $28,500 in 1998 and is projected to be $42,900 in The average appears to be increasing at a rate of 2.9 percent per year. 1a Ultimate Average Indemnity by Accident Year* (with Trend Line) $250,000 $200,000 $150,000 $100,000 $50,000 * Accident year is the year the event occurred b Ultimate Average Expense by Accident Year* (with Trend Line) $50,000 $40,000 $30,000 $20,000 $10,000 * Accident year is the year the event occurred C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

8 9 Analysis of Claims by Claim Category Claim category refers to whether the claim is open or closed, an important distinction when determining patterns and trends related to claim frequency and severity. Figure 2 includes the percentages of open and closed claims, the indemnity and/or expense payments, and the amount of case reserves for open claims before the exclusion criteria were applied. A total of $89.7 million has been paid or reserved for the 1,799 open and closed claims. More than $7.5 million has been paid for investigation and management of claims closed with no indemnity payment, and more than $5 million has been paid for investigation and management of open claims. (An indemnity payment may be incurred for open claims because a partial indemnity or a component of the indemnity, such as medical costs, has been paid prior to closure. Alternatively, the full indemnity has been paid, but administrative activities to close the claim have not been completed.) 2 Claims by Claim Category Total Paid Indemnity, Claim Category Reported Claims* Total Paid Indemnity Total Paid Expense Total Case Reserve Expense and Reserves Closed with expense only 35.4% $0 $7,567,044 $0 $7,567,044 Closed with indemnity payment 13.6% $39,067,185 $12,415,994 $0 $51,483,178 Closed without payment 34.6% $0 $0 $0 $0 Open 16.5% $667,003 $5,052,576 $24,919,323 $30,638,902 Total 100.1% $39,734,188 $25,035,614 $24,919,323 $89,689,124 * Total equals due to rounding. A total of $89.7 million has been paid or reserved for open and closed claims, including more than $7.5 million paid in expenses for claims closed with no indemnity payment. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

9 10 Analysis of Claims by Clinical Specialty As indicated in Figure 3a, nurse practitioners specializing in adult/geriatric, family and pediatric/neonatal medicine account for 84.3 percent of CNA open and closed claims. This finding is consistent with the previous study. Pediatric/neonatal closed claims have the highest average paid indemnity. This level of severity may reflect the need for complex and prolonged medical services following injury to a child or infant. While obstetrics/gynecology closed claims are typically associated with the highest severity, that is not the case for nurse practitioners included in this study. In general, nurse practitioners work with patients in prenatal and postpartum care settings, rather than in labor and delivery. This may explain why closed claims for nurse practitioners in obstetrics/gynecology have a lower average paid indemnity than pediatric/neonatal claims. Student 1.0% Psychiatric 5.2% Obstetrics/ gynecology 9.5% Adult/geriatric 52.2% Family medicine and Pediatric/neonatal 32.1% 3a Distribution by Clinical Specialty (Open and Closed Claims) Clinical Specialty Reported Claims Policies Adult/geriatric 52.2% 27.1% Family medicine and Pediatric/neonatal* 32.1% 39.8% Obstetrics/gynecology 9.5% 2.9% Psychiatric 5.2% 8.6% Student 1.0% 21.6% Total 100.0% 100.0% * Policy information is not available individually for these two specialties. 3b Severity by Clinical Specialty (Closed Claims with Indemnity Payment) Clinical Specialty Closed Claims with Indemnity Payment Average Paid Indemnity Pediatric/neonatal 4.7% $318,150 Obstetrics/gynecology 7.0% $193,900 Family medicine 28.2% $169,227 Psychiatric 4.7% $168,392 Adult/geriatric 54.9% $146,586 Student* 0.5% $60,000 * Severity is based on three or fewer closed claims. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

10 11 Analysis of Claims by Location The most frequent location where adverse events occured was the medical care office, followed by non-hospital-based clinics. These findings are consistent with the previous study. The third most frequent location for a claim was nursing homes, a category that has been added to the current study and will be closely monitored. Although adverse events that occurred at freestanding urgent care centers and within inpatient hospital services have the highest severity, the four claims with a $1 million indemnity payment are associated with adverse events that occurred either in an emergency department, non-hospital-based clinic or medical care office. The severity for some locations differed considerably between the previous and current studies. It appears that this is due to a weak statistical relationship between location and severity. All other locations 6.5% 4a Distribution by Location (Open and Closed Claims)* Location Open and Closed Claims Medical care office 42.4% Clinic - non-hospital-based 17.8% Nursing home 12.2% Prison health 8.2% Hospital - inpatient services 7.2% Emergency department 5.7% * Figure 4a excludes locations with less than 5 percent of open and closed claims. Emergency department 5.7% Hospital - inpatient services 7.2% Medical care office 42.4% Prison health 8.2% Clinic - non-hospital-based 17.8% Nursing home 12.2% 4b Severity by Location (Closed Claims with Indemnity Payment) Location Closed Claims with Indemnity Payment Average Paid Indemnity Freestanding urgent care* 0.9% $370,000 Hospital - inpatient services 6.1% $228,219 Clinic - non-hospital-based 26.3% $191,546 Medical care office 38.5% $182,263 Emergency department 5.2% $138,028 Hospital - outpatient services 1.9% $120,823 Patient's home 2.3% $119,894 Other* 0.9% $112,500 Nursing home 14.1% $89,510 Prison health 3.8% $30,969 * Severity is based on three or fewer closed claims. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

11 12 Analysis of Claims by Injury When a claim involved multiple alleged injuries, the primary or most serious injury was identified as the dominant injury. The most frequent injury is death, which occurred in 40.5 percent of open and closed claims. Cancer claims are a distant second at 6.8 percent. The three most expensive injuries among closed claims are fetal/infant brain injury related to birth, brain injury not related to birth and paralysis. Paralysis and brain injury were also among the most expensive injuries in the previous study. Wrongful death claims resulted in an average paid indemnity of $189,956, an increase from $176,550 in the prior study. Many types of injuries occurred infrequently. These are included in the pie chart as All other injuries. All other injuries 38.6% Wrongful death 40.5% 5a Distribution by Injury (Open and Closed Claims)* Injury Open and Closed Claims Wrongful death 40.5% Cancer 6.8% Infection/abscess/sepsis 5.5% Loss of organ or organ function 4.8% Emotional distress/ psychological harm 3.8% Cancer 6.8% Infection/abscess/sepsis 5.5% Emotional distress/psychological harm 3.8% Fracture 3.1% Neurological deficit/injury 3.0% Loss of organ or organ function 4.8% Pain and suffering 2.4% Allergic reaction/anaphylaxis 2.0% * Figure 5a excludes injuries that account for less than 2 percent of open and closed claims. The three most expensive injuries among closed claims are fetal/infant brain injury related to birth, brain injury not related to birth and paralysis. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

12 13 5b Severity by Injury (Closed Claims with Indemnity Payment)* Injury Closed Claims with Indemnity Payment Average Paid Indemnity Fetal/infant birth-related brain injury** 0.5% $850,000 Brain injury other than birth-related 2.8% $611,111 Paralysis** 1.4% $350,000 Cancer 7.5% $212,688 Loss of organ or organ function 5.2% $194,318 Wrongful death 40.4% $189,956 Cardiac condition 1.9% $168,550 Dislocation** 1.4% $161,667 Neurological deficit/injury 5.2% $139,607 Cerebral vascular accident/stroke** 1.4% $118,333 Scar(s)/scarring 2.3% $117,500 Pain and suffering 1.9% $117,250 Allergic reaction/anaphylaxis 3.8% $82,294 Seizure** 0.5% $80,500 Infection/abscess/sepsis 5.2% $79,324 Eye injury/vision loss** 1.4% $78,333 Emotional distress/psychological harm 2.8% $75,792 Laceration/tear 3.3% $60,071 Appendicitis 1.9% $55,938 Amputation** 0.9% $50,000 * Figure 5b excludes closed claims with average paid indemnity of less than $50,000. ** Severity is based on three or fewer closed claims. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

13 14 Analysis of Claims by Disability The categories of disability in Figures 6a and 6b describe the extent of harm caused by the alleged injury. While over 40 percent of the claims involved a patient death, permanent total disability has the highest severity. The significant severity of claims related to permanent total and permanent partial disability reflects ongoing costs to support the needs of disabled claimants. No disability 4.5% Temporary total disability 1.0% Permanent total disability 4.8% Outcome not available 6.1% Death 40.5% Permanent partial disability 25.7% Temporary partial disability 17.4% 6a Distribution by Disability (Open and Closed Claims) Injury Outcome Open and Closed Claims Death 40.5% Permanent partial disability 25.7% Temporary partial disability 17.4% Outcome not available 6.1% Permanent total disability 4.8% No disability 4.5% Temporary total disability 1.0% Total 100.0% 6b Severity by Disability (Closed Claims with Indemnity Payment) Injury Outcome Closed Claims with Indemnity Payment Average Paid Indemnity Permanent total disability 5.2% $335,864 Death 40.4% $189,956 Permanent partial disability 31.9% $180,596 Temporary partial disability 20.2% $64,922 Temporary total disability* 1.4% $8,250 No disability* 0.9% $5,250 * Severity is based on three or fewer closed claims. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

14 15 Analysis of Claims by Allegation The predominant allegations for open and closed claims are related to diagnosis, treatment and medication. The data reflect minimal change since the previous study. Allegations that the nurse practitioner provided services outside the designated scope of practice (based on regulation or protocol) are infrequent, but have the highest severity among the closed claims. All other allegations 4.6% 7a Distribution by Allegation (Open and Closed Claims) Allegation Category Open and Closed Claims Diagnosis 39.0% Treatment 28.3% Medication 17.7% Patient assessment 6.4% Monitoring 4.0% Practitioner conduct 1.4% Scope of practice 1.1% Patient's rights 0.7% Other 0.7% Documentation 0.4% Equipment 0.3% Total 100.0% Monitoring 4.0% Diagnosis 39.0% Patient assessment 6.4% Treatment 28.3% Medication 17.7% 7b Severity by Allegation (Closed Claims with Indemnity Payment) Allegation Category Closed Claims with Indemnity Payment Average Paid Indemnity Scope of practice* 0.9% $450,000 Patient assessment 6.1% $269,154 Diagnosis 46.0% $186,168 Documentation* 0.9% $162,500 Medication 18.3% $147,554 Monitoring 2.3% $114,400 Treatment 23.9% $111,971 Equipment* 0.5% $60,000 Practitioner conduct* 0.9% $36,250 * Severity is based on three or fewer closed claims. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

15 16 Analysis of Allegations Related to Diagnosis The most frequent and severe diagnosis-related allegation was failure to correctly diagnose, accounting for more than 71.4 percent of these claims. Significant variation in the services that nurse practitioners provide may account for the severity and range of diagnostic claims. This variation is related to state-specific regulations and organization-specific protocols. Failure to obtain tests 13.0% Delay in establishing diagnosis 15.6% Failure to correctly diagnose 71.4% 8a Distribution of Allegations Related to Diagnosis (Open and Closed Claims) Allegations: Diagnosis Open and Closed Claims Failure to correctly diagnose 71.4% Delay in establishing diagnosis 15.6% Failure to obtain tests 13.0% Total 100.0% 8b Severity of Allegations Related to Diagnosis (Closed Claims with Indemnity Payment) Allegations: Diagnosis Closed Claims with Indemnity Payment Average Paid Indemnity Failure to correctly diagnose 65.3% $213,199 Failure to obtain tests 20.4% $170,088 Delay in establishing diagnosis 14.3% $85,571 C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

16 17 Analysis of Allegations Related to Treatment The second most frequent category of allegation for open and closed claims relates to treatment. Within treatment-related allegations, failure to order or obtain appropriate consultation/referral has the highest severity, with an average paid indemnity of $305,142. This amount is more than twice the average paid indemnity associated with the next highest category, improper management of a medical patient or medical complication. The severity may indicate that there was a perception that the nurse practitioner was practicing outside the intended scope of practice. All other treatment allegations 15.0% 9a Distribution of Allegations Related to Treatment (Open and Closed Claims) Allegations: Treatment Open and Closed Claims Delay in treatment 8.0% Failure to properly treat 26.5% Failure to properly treat established or identified diagnosis/illness 26.5% Improper technique or negligent performance of treatment, resulting in injury Improper management of medical patient or medical complication 19.5% 13.0% Substandard treatment 8.5% Failure to consult 9.5% Improper technique/negligent performance 19.5% Failure to order or obtain appropriate consultation/referral 9.5% Improper management 13.0% Failure to treat symptoms/illness/ disease in accordance with established standards/protocols/pathways 8.5% Delay in treatment/care 8.0% Improper management of pregnancy, labor and delivery, or obstetrical complication 4.0% Treatment - other 3.0% Failure to order/perform necessary treatment 3.0% Improper management of behavioral health/mental health patient or behavioral health complication 2.5% Delay in ordering or implementing indicated/appropriate treatment 2.5% Total 100.0% C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

17 18 9b Severity of Allegations Related to Treatment (Closed Claims with Indemnity Payment) Allegations: Treatment Failure to order or obtain appropriate consultation/referral Improper management of medical patient or medical complication Failure to properly treat established or identified diagnosis/illness Failure to order/perform necessary treatment* Closed Claims with Indemnity Payment Average Paid Indemnity 15.7% $305, % $130, % $102, % $93,000 Delay in treatment/care* 5.9% $91,667 Improper management of behavioral health/mental health patient or behavioral health complication* Failure to treat symptoms/illness/ disease in accordance with established standards/protocols/pathways* Improper technique or negligent performance of treatment, resulting in injury 2.0% $50, % $39, % $31,617 * Severity is based on three or fewer claims. Failure to order or obtain appropriate consultation/referral has the highest severity of the treatment-related allegations, with an average paid indemnity of $305,142. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

18 19 Analysis of Allegations Related to Medication More than 80 percent of medication errors are prescription-related. Notably, one-third involve prescribing the wrong medication. Administration - missed dose 5.6% All other medication errors 15.2% 10a Distribution of Allegations Related to Medication (Open and Closed Claims) Allegations: Medication Open and Closed Claims Administration - wrong dose 5.6% Prescription - wrong medication 33.6% Prescription - wrong medication 33.6% Prescription - wrong dose 16.0% Prescription - failure to properly discontinue medication Prescription - incompatible/contraindicated/ interactive medications 14.4% 9.6% Prescription - incompatible/ contraindicated/ interactive medications 9.6% Prescription - wrong dose 16.0% Administration - wrong dose 5.6% Administration - missed dose 5.6% Prescription - failure to properly discontinue medication 14.4% Prescription - wrong route 3.2% Prescription - missed dose* 3.2% Administration - wrong medication 3.2% Administration - wrong route 2.4% Prescription - wrong patient 1.6% Administration - incompatible/ contraindicated/interactive medications 0.8% Administration - failure to properly discontinue medication 0.8% Total 100.0% * Refers to situations where a failure to renew a prescription resulted in one or more missed doses. 10b Severity of Allegations Related to Medication (Closed Claims with Indemnity Payment) Allegations: Medication Closed Claims with Indemnity Payment Average Paid Indemnity Prescription - failure to properly discontinue medication 12.8% $276,000 Administration - wrong dose* 5.1% $275,000 Prescription - wrong medication 35.9% $174,561 Prescription - wrong patient* 2.6% $150,000 Administration - wrong route* 2.6% $150,000 Prescription - wrong dose 23.1% $84,085 Administration - missed dose* 5.1% $81,250 Prescription - wrong route* 5.1% $46,250 Prescription - incompatible/contraindicated/ interactive medications* 7.7% $23,000 * Severity is based on three or fewer claims. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

19 20 Analysis of Injuries Resulting in Death As indicated in Figure 5a, wrongful death occurred in 40.5 percent of open and closed claims. Almost half of these claims are related to infection, cardiac condition or cancer. Of these most frequent injuries, cardiac condition and cancer also have high severity, as seen in Figure 11b. All other injuries 19.6% Maternal obstetrical-related injury 3.5% Loss of organ or organ function 3.5% Infection/abscess/sepsis 23.1% 11a Distribution of Injuries Resulting in Death (Open and Closed Claims)* Injury Related to Death Open and Closed Claims Complication from surgery, treatment, procedure, medication 3.8% Embolism 3.8% Pneumonia/respiratory infection 4.2% Cancer 11.2% Cardiac condition 15.0% Infection/abscess/sepsis 23.1% Cardiac condition 15.0% Cancer 11.2% Bleeding/hemorrhage 7.0% Emotional distress/psychological harm 5.2% Pneumonia/respiratory infection 4.2% Embolism 3.8% Emotional distress/ psychological harm 5.2% Bleeding/hemorrhage 7.0% Complication from surgery, treatment, procedure, medication 3.8% Loss of organ or organ function 3.5% Maternal obstetrical-related injury 3.5% Fracture 2.4% Aneurysm 2.1% Cerebral vascular accident/stroke 2.1% Other 2.1% * Figure 11a excludes injuries related to less than 2 percent of the claims. Almost half of the injuries that resulted in death are related to infection, cardiac condition or cancer. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

20 21 11b Severity of Injuries Resulting in Death (Closed Claims with Indemnity Payment)* Injury Related to Death Complication from surgery, treatment, procedure, medication** Closed Claims with Indemnity Payment Average Paid Indemnity 3.5% $483,333 Appendicitis** 1.2% $482,500 Homicide** 1.2% $400,000 Cancer 10.5% $288,810 Cardiac condition 22.1% $250,756 Seizure** 1.2% $250,000 Emotional distress/psychological harm** 2.3% $192,500 Infection/abscess/sepsis 17.4% $162,893 Maternal obstetrical-related injury** 2.3% $162,500 Bleeding/hemorrhage 7.0% $147,500 Brain injury other than birth-related** 2.3% $143,500 Loss of organ or organ function 4.7% $142,500 Allergic reaction/anaphylaxis** 2.3% $140,000 Unspecified injury** 1.2% $112,500 Pneumonia/respiratory infection** 3.5% $91,000 Embolism 7.0% $84,861 Cerebral vascular accident/stroke** 1.2% $77,500 Other** 1.2% $60,000 Fracture** 2.3% $52,500 * Figure 11b excludes injuries with average paid indemnity of less than $50,000. ** Severity is based on three or fewer claims. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

21 22 Analysis of Closed Claims with the Highest Indemnity Payments The average indemnity payment by CNA on behalf of its nurse practitioner insureds is approximately $165,000. However, 25 percent of these indemnity payments exceed $250,000. CNA typically issues nurse practitioner professional liability policies with limits of liability for indemnity payments of $1 million per occurrence. Expenses are covered in addition to the indemnity limit. The structure of the policies thus affects the average indemnity payment for claims in the highest severity category. Figure 12b displays closed claims with indemnity payments equal to or greater than $500,000. Six of the claims are related to diagnosis and four are related to medication errors. Of the four claims with the $1 million indemnity payment, three are related to diagnosis and one to patient assessment. While these high-severity claims are distributed fairly evenly across specialties, they occurred most frequently in an outpatient setting. 12a Analysis by Severity (Closed Claims with Indemnity Payment) Indemnity Payment Closed Claims with Indemnity Payment* Average Paid Indemnity Average Paid Expense Less than $250, % $64,078 $45,815 $250,000 - $500, % $352,430 $72,985 Greater than $500, % $747,000 $78,412 Total/Average 99.9% $164,968 $53,085 * Total equals 99.9 percent due to rounding. The average indemnity payment by CNA on behalf of its nurse practitioner insureds is approximately $165,000. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

22 23 Closed Claims with Indemnity Payment of $500,000 or Greater 12b Allegation Injury Paid Indemnity Specialty Location Failure to diagnose and treat lung cancer Wrongful death $1,000,000 Family medicine Clinic Failure to diagnose endometrial cancer Cancer $1,000,000 Obstetrics/ gynecology Medical care office Failure to diagnose cardiac disease, leading to myocardial infarction and death Wrongful death $1,000,000 Adult/ geriatric Clinic Failure to properly assess intracranial bleeding in infant, leading to severe developmental and cognitive delays Brain injury $1,000,000 Pediatric/ neonatal Emergency department Incorrectly prescribed weight-loss medication, resulting in cerebral hemorrhage Brain injury $855,000 Adult/ geriatric Clinic Failure to properly assess patient during prenatal care, resulting in child born with cerebral palsy Birth-related brain injury $850,000 Pediatric/ neonatal Medical care office Failure to properly discontinue prescription of medication, resulting in permanent disability Brain injury $775,000 Adult/ geriatric Hospital - inpatient services Failure to diagnose bacterial endocarditis after several office visits with recurrent complaints Paralysis $750,000 Adult/ geriatric Clinic Incorrect diagnosis of bursitis, resulting in myocardial infarction and death Wrongful death $650,000 Family medicine Freestanding urgent care Failure to assess medical history, resulting in failure to diagnose Fournier's disease Loss of organ $625,000 Family medicine Clinic Failure to seek appropriate consultation following several office visits with recurrent complaints of neurological deficits Neurological deficit/injury $600,000 Family medicine Medical care office Failure to obtain consultation following change in condition, resulting in vegetative state Failure to discontinue medication, resulting in burns over 50 percent of the body Brain injury $550,000 Scar(s)/ scarring Pediatric/ neonatal $550,000 Psychiatric Hospital inpatient services Clinic non-hospitalbased Acted outside scope of practice by ordering angiogram without physician consultation, resulting in death Wrongful death $500,000 Adult/ geriatric Hospital inpatient services Incorrectly prescribed dose of medication, resulting in infant death Wrongful death $500,000 Pediatric/ neonatal Medical care office C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

23 24 Risk Management Recommendations The following risk management recommendations, which reflect the preceding claims analysis, are presented as a useful resource for nurse practitioners. The list is not intended to be exhaustive. For additional strategies, see the risk management offerings available at Insurance Ensure that collaborating and supervising professionals, nurse partners, and employing or contracting facilities maintain appropriate professional liability insurance limits, as required by practice setting, state law and/or regulations. Scope of Practice Annually review state nurse practice acts and other pertinent state and/or federal regulations defining the scope of practice for nurse practitioners. Revise collaborative practice agreements and other documents accordingly. Health Information Records - Ensure that patient health information records are in compliance with established standards of documentation. - Retain patient health information records in accordance with relevant state and federal law. In addition, consult the state-specific recommendations promulgated by nurse practitioner professional associations. - Perform periodic audits of patient health information records to identify departures from documentation standards and to determine opportunities for improvement. - Sequester the patient health information record if there is an incident of concern. Patient health information released for legal reasons also should be sequestered or maintained with limited access to avoid real or alleged tampering or inappropriate late entries. - Designate an individual within the practice who will manage legal demands such as a request for patient health information, a subpoena, or a summons and complaint. Documentation A complete health information record is the best legal defense. The following information and communications should be documented: - discussions with the patient and/or responsible party regarding diagnostic test results (both normal and abnormal), as well as recommendations for continued treatment and patient response to results - informed consent or informed refusal of recommended treatment and preceding discussions - patient telephone encounters, including after-hours calls, with the name of the person contacted, advice provided and actions taken reflected in the written summary - dated and signed receipt of test results, procedures, referrals and consultations, along with a description of subsequent actions taken - referrals for consultation or testing - reviews and revisions of patient problem and medication lists during every visit and with every change in diagnosis C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

24 25 - prescription refills authorized via telephone, including the name of the pharmacy and pharmacist, and read-back of the prescription - missed appointments, including all efforts to follow up with the patient - educational materials or references provided to the patient - use of an interpreter and related contact information, recognizing that the use of family members, especially children, is discouraged Diagnosis and Treatment - Diligently screen for, monitor and/or treat diseases known to have high morbidity and mortality, such as diabetes, heart disease and cancer. - Utilize available clinical practice guidelines or protocols when establishing a diagnosis and providing treatment, documenting the justification for deviations from guidelines or protocols. - Seek timely consultation and advice regarding patients with recurring complaints and/or signs and symptoms that do not respond to the prescribed treatment. - Document the decision-making process that led to the diagnosis and treatment plan. - Notify patients when screening is due and follow up if patients do not respond, documenting all communications. Medication Management - Include the purpose of the medication as part of the prescription to mitigate the risk of drug error. - Avoid error-prone abbreviations and never abbreviate medication indications, name, dose, frequency or route. - Limit telephone refills to one and require a patient evaluation in the office before providing additional refills. - Identify look-alike and sound-alike drugs used in the practice and place adequate warnings on packaging. - Avoid storing similar-looking drugs near one another to prevent possible confusion. - Remove drugs with similar-sounding names from the practice formulary, if possible. - Comply with established standards for educating patients and families about prescriptions, including the purpose of the medication, potential side effects and indications for calling the nurse practitioner. - Maintain current drug reference materials and other resources that provide information on medications, including potential interactions. - Consult with physicians, pharmacists or evidence-based resources as needed, to mitigate the risk of prescribing the wrong medication or dosage, and to avoid drug interactions or contraindications. C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

25 26 Conclusion The findings of this claims analysis confirm that nurse practitioners continue to be vulnerable to professional liability claims. Despite tort reform measures and innovative legal defense strategies, nurse practitioner claim severity remains high, with average indemnity and expense payments trending upward since the publication of the previous study. We hope that readers find this information useful, and that it inspires them to examine their practices and develop effective strategies to protect themselves against the risks inherent in providing healthcare services. For more information about liability issues, see the wide variety of CNA HealthPro risk control publications available at C N A H e a lt h P r o N u r s e P r a c t i t i o n e r C l a i m s A n a ly s i s

26 27 What is the relationship between nurse practitioner liability claims and - level of professional independence? - prescriptive authority? - educational setting? - experience with mentors?

27 29 Highlights from the NSO 2009 Nurse Practitioner Survey Introduction In 2005, CNA and NSO released the Nurse Practitioner Claim Study, The study analyzed 10 years of claims brought against nurse practitioners (NPs) in the CNA HealthPro-NSO program. The study of the nurse practitioner profession was the first of its kind, and it raised awareness regarding the type and number of professional liability claims brought against nurse practitioners, as well as strategies to mitigate risk. The 2005 study answered many questions, but it also generated others. NSO was repeatedly asked about the relationship between claims experience and such variables as - independent versus collaborative versus supervised practice - level of prescriptive authority - traditional educational environments (i.e., brick and mortar institutions) versus on-line degree programs - mentored versus non-mentored practice NSO engaged Kretschman Research & Consulting to survey nurse practitioners on these and associated issues. The survey participants included nurse practitioners who have participated in the NSO insurance program, comprising those who have and who have not experienced claims. Key survey findings are excerpted in the following pages. Because the charts are labeled as they appear in the full survey, chart numbering is not always sequential. The NSO survey is available at Highlights from the NSO 2009 Nurse Practitioner Sur vey

28 30 Survey Methodology Kretschman Research & Consulting created the questionnaire, conducted the interviews, analyzed the results and presented the findings to NSO. The survey compared the demographics, educational preparation, clinical experience and practice conditions of nurse practitioners who have and have not been the subject of a claim. The survey was conducted during the months of June and July For the purposes of this survey, the definition of nurse practitioner includes clinical nurse specialists, except where clinical nurse specialists are cited separately. Please note that registered nurses, certified registered nurse anesthetists and certified nurse midwives were not included. All nurse practitioners actively insured by NSO were eligible to participate in the survey. Of the approximately 25,000 nurse practitioners invited to participate, 1,380 were identified as having had a professional liability claim filed with NSO/CNA in the past five years. In addition to actively insured nurse practitioners, the sample included nurse practitioners with an incident in the same timeframe who have since not renewed their CNA/NSO policies. The findings are based upon self-reported information and thus may be skewed due to respondents perceptions and recollections of the requested information. The chart below delineates the response rates for the survey: Description Total Total responses 3,354 Disqualified because of duplication or incompleteness 317 Non-claim responses 2,750 Claim responses 287 Total claim and non-claim responses 3,037 Usable response rate 12.8% Highlights from the NSO 2009 Nurse Practitioner Sur vey

29 31 Summary of Findings - Traditional on-site versus on-line educational environment: Regardless of claim status, a university or college on-site program was the predominant educational resource for obtaining nurse practitioner designation. (Q2) - State regulations governing practices: Nurse practitioners with claims were more likely than nurse practitioners without claims to respond that their state regulations require direct physician supervision. (Q8) - Mentored versus non-mentored during the first two years of advanced practice: Working with a mentor did not decrease the likelihood of having a claim. (Q14) - Level of prescriptive authority: Nurse practitioners with claims have less prescriptive authority than those without claims. (Q20) Other findings include the following: - Nurse practitioners with claims and nurse practitioners without claims recalled that nearly the same number of clinical hours were required in their nurse practitioner program. (Q6) - Approximately 82 percent of the nurse practitioners with claims had practiced 10 years or less, compared with 63 percent of the nurse practitioners in the non-claim group. (Q13) - At the time of the incident, over half of the nurse practitioners had been working in the specified position less than four years, while more than two-thirds had been working in this position six years or less. (Q19) - Nurse practitioners as a whole typically see an average of 16 patients per day while nurse practitioners with claims report having seen more than 18 patients per day at the time of the incident. (Q22) - Most nurse practitioners with claims reported using handwritten medical records at the time of the incident. (Q27) Highlights from the NSO 2009 Nurse Practitioner Sur vey

30 32 NSO Survey Excerpts Demographics Nursing Professional Type Respondents with Claims (Base = 287) Respondents with No Claims (Base = 2,750) Total Percent (Base = 3,037) Nurse Practitioner 90.6% 95.0% 94.6% Clinical Nurse Specialist 8.0% 4.9% 5.2% Other 1.4% 0.1% 0.2% Total 100% 100% 100% Gender Respondents with Claims (Base = 235) Respondents with No Claims (Base = 2,742) Total Percent (Base = 2,977) Male 14.5% 6.6% 7.2% Female 85.5% 93.4% 92.8% Total 100% 100% 100% * Due to rounding, totals are slightly over or under 100 percent. Age* Respondents with Claims (Base = 235) Respondents with No Claims (Base = 2,742) Total Percent (Base = 2,977) % 4.3% 3.9% % 43.4% 42.8% % 49.3% 49.9% 65 or over 6.0% 3.1% 3.3% Total 100.1% 100.1% 99.9% Highest Education Level Completed* Respondents with Claims (Base = 235) Respondents with No Claims (Base = 2,742) Total Percent (Base = 2,977) Associate s Degree (AA/AS/AND) 2.1% 1.3% 1.3% Bachelor s Degree (BA/BS/BSN) 3.8% 2.7% 2.8% Master s Degree (MA/MS/MSN) 84.7% 90.4% 90.0% Doctoral Degree (PhD/DNS/DNP/JD) 9.4% 5.5% 5.8% * Due to rounding, some totals are slightly under 100 percent. Total 100% 99.9% 99.9% Location of Practice Respondents with Claims (Base = 233) Respondents with No Claims (Base = 2,728) Total Percent (Base = 2,961) Rural 30.0% 21.6% 22.2% Suburban 43.8% 40.9% 41.2% Urban 26.2% 37.5% 36.6% Total 100% 100% 100% Highlights from the NSO 2009 Nurse Practitioner Sur vey