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OR Nursing Law Professional liability insurance coverage for perioperative nurses
erioperative nurses no longer operate under the direct control of the surgeon. The “captain of the ship” doctrine, which held the surgeon responsible for everything that happened in the operating room, has basically fallen by the wayside. Perioperative nurses act in concert with the surgeon, but they also make independent nursing assessments and interventions that do not require a physician’s order or permission. This autonomy means increased liability for the nurse, which is separate from that of the surgeon and anesthesiologist. No matter how careful a nurse may be, errors and mistakes may occur. When an unintentional wrong causes harm to a patient, the nurse contributing to the harm can be held liable. Professional liability insurance provides payment for the cost of defending a claim for damages and for any settlement or jury award of damages. Even if a claim has no merit, it must be thoroughly investigated so that a proper defense may be mounted. The nurse must cover these expenses if he or she does not have professional liability insurance.
urses often ask whether their employers’ institutional policy offers sufficient coverage or whether they should have their own individual policy. There are pitfalls to relying on an institution’s general professional liability policy. A nurse who relies solely on the institution’s policy may find that he or she is either
uninsured or underinsured. Either situation can lead to financial disaster. State laws vary, but a judgment against a nurse may be satisfied out of his or her personal assets. Liens could be placed on the nurse’s personal property, or the nurse’s wages or future inheritances may be taken. An employer’s policy covers actions that the nurse employee performs within the scope of employment. Scope of employment refers to duties performed within the policies and procedures of the institution, within the nurse’s job description, and within the employment setting. In some cases, an employer’s insurance company may deny coverage on the grounds that an action was performed outside the scope of employment. For example, an off-duty nurse who is visiting an on-duty friend may pitch in if an emergency occurs. The off-duty nurse would be acting outside the scope of employment. If the off-duty nurse subsequently causes an injury, the employer’s insurance company could refuse to supply the means necessary for a defense. Another example of acting outside the scope of employment is providing emergency care (eg, assisting traffic accident victims). While Good Samaritan statutes provide legal immunity to persons who assist in medical emergencies, the immunity is not absolute. If it is not truly an emergency (ie, the person is able to wait for emergency treatment), the statute may not apply. Furthermore, most Good Samaritan statutes only afford protection from liability when the nurse’s action is not grossly negligent
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Nurses should be assured that their specialized roles are the same ones contemplated when the liability policy was obtained.
or malicious. For example, ignoring a wound that is bleeding profusely would be grossly negligent, and Good Samaritan statutes would not protect such behavior. Other activities outside the usual scope of employment include volunteer work for camps or other community services and advice ii nurse may give to friends and neighbors. I n other words, unless a nurse can leave his or her nursing instincts at the place of employment. he or she needs the added protection of personal liability insurance. Another danger of relying on an emplojei‘s insurance policy is the possibility that the w r vices nurses perform were not contemplated when the policy was issued. Nursing h a s become very specialized, and there are many expanded roles for nurses. In the perioperative area, nurses now act as first assistants to \urgeons. In the postanesthesia care unit, phq‘9iciil assessments are more complex, and nurses may be expected to independently initiate the appropriate interventions based on those assessmeri ts and obtain a physician’s approval later. The employer’s professional liability policy is usually very general to cover every typc of nursing that takes place in that institution. If‘ the policy promises to cover “all professional wrvices,” it is imperative that the insurer and [he nurses agree on what constitutes those protev sional services. Nurses should be assured that their specialized roles are the same ones coiltemplated by the institution when the liability policy was obtained.
Types of Coverage
here are two general types of professional liability coverage, and nurses must inve\tigate which coverage is best suited t o their needs. Claims-made policy. One type of insuranc,e
policy covers claims reported while the policy is in force. This is called a “claims-made” polic j . It provides protection for professional services rendered either during the policy period o r before the policy period. The term cluim refers to lawsuits, allegations by a patient or attorney, notice received from a dissatisfied patient, or awareness by the insured of a potential injury to a patient from personal negligence. Any incident that results in an injury to a patient should be reported to the insurer as soon as possible so an investigation may begin. Failure to report the injury (ie, to make a claim) during the policy period may allow the insurer to deny coverage if a lawsuit is filed in the future. The other pitfall of claims-made insurance policies is that once the nurse discontinues the policy. his or her coverage ends. For example, il’ a lawsuit is brought today because a child was injured by a nurse 10 years ago, the nurse’s policy would cover the claim only if he or she s t i l l maintains that policy today. To protect the nurse in a situation such as this. insurance companies offer a “reporting cndorsement” or “tail coverage,” which pres e n es the coverage offered under the previous claims-made policy. These may be expensive; hou,ever, this supplemental policy is necessary if a nurse has ever had a claims-made policy and subsequently discontinued it. Occurrence policy. The other type of professional liability insurance coverage is called an occurrence policy. This type of policy provides protection for all acts or omissions that occur during the policy period no matter when a suit is brought. Coverage is extended to any claims that may result, even if they are not reported until after the termination of the policy period. I n other words, if the nurse involved in the child’s injury was covered by this insurance at the time of the injury, he or she would be cov527
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Personal liability insurance policies can be customized to fit nurses’ specific needs.
ered 10 years later, even if he or she did not maintain the policy. No matter what type of coverage a nurse has, he or she is responsible for notifying the insurer of any acts that could possibly result in a lawsuit. A professional liability insurance policq is a contract with the insurance company. The company promises to defend the nurse against any claims of negligent acts in return for an annual fee. In return, the nurse promises to pay the fee and uphold the terms and conditions of the policy. These mutual rights and duties are the basis of the contract. If one party fails to fulfill a part of the bargain, the other party is relieved of obligation also. Therefore, if a nurse’s policy states that he or she has a duty to report all incidents that may have caused a patient injurq and if the nurse fails to do so, the insurance company may deny coverage.
rofessional liability insurance is similar. io automobile insurance in relation to limit\ of coverage. Automobile insurance typically has t w o limits (eg, $100,000/$300,000). This means that for each; individual accident. the policy will pay up to $100,000. This $lOO.OOO limit for each accident applies no matter how many people are hurt in the accident. The $300,000 aggregate amount is the total limit of the insurer’s liability for all settlements and judgments rendered against the insured during the coverage period of the policy ( e g . 12 months). The expense of defending a claim I S not limited by or included in these policy l i n its. A person is underinsured when a successt’ul claim results in a settlement or an award that i s over the policy limit. If a nurse’s professional liability policy has $100,000/$300,00Olimits
and if that nurse is subject to a claim in which the jury awards the injured party $200,000, the nurse is personally liable for the $100,000 that is above the policy limit. The greater the possibility for causing severe and permanent injury, the higher the professional liability coverage limit should be. Because patients in the perioperative area usually are unable to care for themselves, their potential for injury at the hands of the institution’s employees is quite high. Therefore, liability policy limits should be high enough to adequately compensate an injured party. These limits also should be reassessed periodically and raised when necessary. Insurance policies also have other limits called exclusions. These clauses may exclude (ie. not cover) intentionally harmful acts, criminal acts, allegations of libel or slander, and a variety of other situations. Insurance companies are businesses, and the bottom line is profit. They can refuse to pay a claim or defend someone if the terms of the policy do not clearly mandate that they must. Therefore, whether nurses are covered under their employers’ policies or their own, they should take the time to read their policies and understand them.
ne of the greatest benefits of personal liability insurance is that the policy can be individualized to fit the nurse’s specific needs. Another advantage is that the nurse’s attorney I S devoted to the nurse’s interests alone. An attorney appointed under a hospital’s policy sees the hospital as the client. While the nurse’s interests usually are the same as the hospital’s, there could be a conflict of interest. Nurses also should be aware that they have the right to request another attorney if they are
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not satisfied with the attorney handling their case. That request should be written and should succinctly and objectively state the reasons for the dissatisfaction. Nurses also are free to hire independent attorneys to give an opinion on how a case is being handled. Perioperative nurses are wonderful patient advocates, but they must be their own advocates in these situations. It used to be said that if you do not have insurance, you will not be sued. People believed that having insurance policies invited more lawsuits and large judgments. In reality, lawsuits are filed without prior knowledge of the type or amount of the defendant’s insurance coverage. In addition, most states prohibit attorneys from telling juries whether insurance is involved, because they fear the information will prejudice the juries’ deliberations.
erioperative nurses should become familiar with their employer’s professional liability insurance policy. It is possible for nurses to be included in their employer’s policy and yet be uninsured for actions outside the scope of employment. It also is possible to be underinsured for the type of nursing they practice and the risk involved in their particular specialty areas. Nurses can obtain individual professional liability insurance through many professional and state nursing associations and insurance companies. The policy premiums are tax-deductible business expenses, and the peace of mind is priceless. JEANNEKEMMY,RN, JD OMAHA The previous information is intended for general information only. Specific situations should be reviewed by legal counsel. If you have questions on OR nursing law that you would like answered, please send them to OR Nursing Law, CIO AORN Journal, 10170 E Mississippi Ave, Denver, CO 80231.
Substance Abuse in Anesthesiology Surveyed The Center of Survey Research at the University of Virginia, Charlottesville,planned a multi-year project to examine the incidence and causes of substance abuse among anesthesiology professionals. The American Society of Anesthesiologists (ASA) supported the first year of the study. Only confirmed cases of substance abuse in the past five years are recorded in the study, which is designed to create a retrospective data base first and then continue gathering information, according to an article in the April 1992 issue of the ASA Newsletter. The goal of the study is to determine whether identifying features and predictors of outcome in chemically dependent anesthesiologists can be uncovered. The study also attempts to evaluate methods to decrease the incidence of the problem. Results from the study include 135 total confirmed first-time abuses among residents and fellows from 142 residency programs in the United States since January 1986. In the past five years, 11 cases of fist-time abuse were confirmed among attending physicians, the majority of whom were assistant professors. There were 12 drug-related deaths among residents on the job during the five-year reporting period. The majority (58.2%) of individuals involved identified fentanyl as the primary drug of choice; 7.6%identified sufentanil as the primary drug of choice. Other drugs identified include alcohol, cocaine, meperidine, benzodiazepines, and nitrous oxide and other inhalation agents. Study results show that approximately one-third of the cases involved abuse of multiple drugs, with alcohol being the most frequently used second drug.