The Affordable Care Act and the Nurse Practitioner’s Liability
The two most common questions posed by our Nurse Practitioners are the following:
- Should I maintain my own separate limit or share a limit with the physician for whom I am working
- Do I purchase a claims made or occurrence policy.
Sharing Limits historically with the physician
In our experience, looking back over many years of insuring physicians who hire and supervise, work hand in hand with our Nurse Practitioners, the answer to that first question has been overwhelmingly SHARE limit with the supervising physician.
Experience in claims supports that the allocated settlements are not so large against the nurse practitioner, the liability ‘flows up to the highest credentialed, supervising physician. This is the ‘Captain of the Ship’ Doctrine based on old Maritime Law. The moment the discovery gets to the point of the protocol in the office establishing decisions and responsibility, the judge and juror’s begin to hold the physician’s accountable.
And, the dynamic of holding the physician accountable alone, dismissing the Nurse Practitioner are changing. There are many more Nurse Practitioners entering the healthcare field.
The trend will bring about a change on physicians, their office protocol, the amount of time and effort and research into effective supervision in all specialties.
The Affordable Care Act and the Nurse Practitioner’s Liability
Because of the gradual introduction of as many as 30 Million Americans into the healthcare marketplace, the ancillary care providers will play a significantly higher profile role in the provision of primary and specialty services.
Whereas, this transaction between physician’s office and patient has been primarily between the physician and the patient, now the encounter will increasingly fall to the Nurse Practitioner.
There are over 150,000 Nurse Practitioners nationwide, according to the AA NP this is a steady increase of about 20 % in the last 10 years. Nurse Practitioners still must have a physician corroboration, or direct supervisorial relationship in many states, and, this trend is moving toward more independent care.
The profession is gradually taking on the role of primary care practitioner. These allied health professionals earn an average of almost $90,000 a year. The question of why a Midlevel practitioner is sued is brought up often.
Supervision, communication and protocol
One of the biggest causes of these law suits is inadequate supervision or just no clear protocol (resulting in a Nurse Practitioner writing scrips, making decisions, establishing treatment plans without adequate contact with the physician collaborator. Midlevel providers and their employers are typically sued when the PA or NP practices beyond the scope of their training.
The Doctors’ Company Patient Safety Director Robin Diamond, says that doctors need to remember to delegate with the awareness that the liability remains with the physician.
There are terrible stories of mis diagnosis, or under treating with adverse outcomes, resulting in a midlevel error costing the physician a large settlement.
Communication between NP and MD is paramount
Robin Diamond has written about this feeling of a mid-level provider, in the context of the busy practice. There are many factors which can result in the Nurse Practitioner causing a negligent situation, or to practice beyond the usual scope of training and education.
Why isn’t there more communication?
These are areas of focus for The Doctors’ Company in the coming years!
The Doctors’ Company insures and assists Nurse Practitioners
The Doctors’ Company Patient Safety specialty articles highlight articles so that the nurse practitioners insured by TDC can learn, discuss, implement changes to prevent bad outcomes.
There was a case where a patient presented to the ED with a fracture that was misdiagnosed by the PA. "The patient never saw the physician, and he didn't even know the patient was in the hospital," this case in Tennessee produced this Supreme Court Decision: "…. a supervising physician can be held vicariously liable for the negligence of his or her PA even if the physician never saw or treated the patient. This means that the doctor may automatically be held liable if the PA is found to have been negligent."
Occurrence or Claims Made:
The question of claims made vs. Occurrence is somewhat related to these stories because it is likely that the malpractice policies carried by Nurse Practitioners are going to be long term and independent. More and more opportunities for employment are presenting themselves to NP’s, independence, economy, innovation, there are a lot of dynamics supporting the long term growth of this niche within healthcare.
Purchasing a claims made policy is both less expensive in the short term and in the long term. I would recommend, for those Nurse Practitioners planning to work for five years or longer, as independents or business owners, carry your own claims made, separate policy.