Malpractice in Geriatrics: Are We Surviving?

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• Barbara Resnick, PhD, CRNP, FAAN, FAANP

As nurses providing care for older adults we are all too acutely aware of the risk of malpractice. Bad things can happen to wonderful older adults, and bad things can happen to the most well-intentioned providers. Most of us practice ever vigilant of the doomed malpractice monster stepping out from behind a shower curtain. What do we fear? The one day we forget to ask that important question about allergies, to double-check on a medication order that just didn’t make sense, or to document an event that occurred and everything we did in response to it. We fear the one day our defenses slide and the malpractice monster gets us. So how can we cope with this fear? How can we prevent a claim being made against us or protect ourselves if it becomes a reality? What can we do to prevent nurses from leaving the bedside or the field of nursing in response to this fear?

My response—GET COVERED! Despite the fact that the cost of professional liability insurance has increased for many of us, not getting covered just isn’t worth the risk. Increased costs are due to an increased number of filed lawsuits, increased costs of jury awards, and a reduced supply of available coverage as insurers exit the medical malpractice business because of the difficulty of making a profit and rapidly rising medical care costs. The increased cost of coverage should not, however, deter us from playing it safe.

Bruce Dmytrow, vice president of CNA Insurance Companies reported on a recent Nurse Practitioner Claims Study at the 2006 American College of Nurse Practitioners Policy Summit on risk management. CNA reviewed 10 years of claims to look for trends and provide risk management recommendations. CNA wrote more than 22,000 nurse practitioner policies from 1993 to 2004, and of these there were 841 claims made, and 288 of these resulted in an indemnity payment. The average payment made was in the $130,000 to $170,000 range. A total of 318 claims did not result in an indemnity payment but had an associated legal cost.¹ Claims made against nurse practitioners most commonly occur in relation to failure to diagnoses and implementation of inappropriate treatment interventions.¹ CNA has also completed a review of the claims and risks associated with care provided in nursing homes and assisted living settings and in specific areas of care relevant to geriatrics, such as use of feeding assistants, wound care, and nutritional care.² These reviews are extremely valuable in helping us to recognize high-risk areas, and they also provide useful suggestions for preventing potential risky situations. The CNA Web site (www.cna.com) also has useful resources related to assessment, prevention of elopement, and other types of care activities.

So yes, you say malpractice coverage is important, but my employer takes care of that. Many health care facilities do, in fact, provide liability coverage for their employees. But you may not be covered in all instances. It is possible that the coverage provided by your provider is an occurrence policy. (The occurrence form only covers incidents that happen during the policy period without regard to when the claims are reported.) You also may not have sufficient limits of coverage from your employer, your defense costs in the situation in which a claim is made against you may not be covered, and you certainly will not be covered by your employer if you engage in clinical activities in any other environment. Finally, you should recognize and remember that the insurer has first allegiance to your employer, the one who has the contract with the insurer and is paying the bills. Consequently, you will not be able to bring to light issues such as understaffing in the facility, lack of adequate training, and other issues that may be relevant to the case.

If you have your own coverage, however, you have the option of getting a claims-made form, which covers you for any suits or incidents reported in the coverage year. With claims-made coverage, once the policy has been terminated, coverage no longer exists. If coverage is desired for claims reported after the policy has been terminated, you have the option to purchase an extended reporting endorsement (known as a “tail”). Nursing malpractice suits can take years to evolve and years to settle. It is therefore prudent, if not essential, to have your own policy that you can be certain will cover you even if you no longer work at the institution where the event occurred.

Having malpractice coverage to protect you is an important first step toward personal protection. As with all health care, however, prevention is the best policy. Practicing with an overall preventive philosophy and implementing simply preventive techniques is critical. A preventive philosophy of care involves listening to all concerns of the patient and family, as well as engaging them in the decision-making process related to their care, covering all bases of care, and having the patient and family take some responsibility for health behaviors and outcomes. Table 1 provides additional examples of preventive options to use.

Table 1. Preventive Malpractice Techniques

One of the greatest risks of something bad happening to a patient is exposing that person to a greater number of health care situations. THINK before you intervene. Typically, the process is this: the patient sees providers → tests and procedures are conducted → more tests and more procedures and more risks related to interventions result. Replace this with a process that builds mutual trust and respect so that health care options are openly discussed and the provider and the patient come up with an agreed-on course of action. Sometimes, for example, a tincture of time is truly the best medicine. Alternatively, an aggressive workup in which the patient may be referred to multiple specialists to determine a diagnosis is needed.

Developing a risk-management style of practice involves “4 Cs”: compassion, communication, competence, and charting. Compassion is useful because happier patients are less likely to sue. Communication with the patient and other health care providers can avoid conflicting assessments. Maintaining competence through the use of flow sheets, protocols, and other clinically relevant tools can reduce the chance that important care-related factors get overlooked. At the same time, do not be afraid to refer your patient to a physician colleague or specialist if you are not clear that a diagnosis has been established or if the patient is not responding to treatment. Finally, protect yourself through charting and documentation. Charting should be descriptive, objective, and respectful. Chart as though your patient or his or her family will read your note.

No discussion of malpractice can be had without addressing the whole area of documentation. Effective documentation may stop erroneous charges from being made or immediately exculpate the wrongly accused. Unfortunately, health care providers typically approach documentation with the goal of communicating effectively with themselves, and they may assume, for example, that certain things were done or observed and omit this information from the note. Thorough and thoughtful documentation, however, can provide paper-and-ink or screen-and-byte inoculation against miscommunication and misunderstanding. While the commonly used SOAP (Subjective, Objective, Assessment, and Plan) outline serves as a template for information gathering, it lacks flexibility and does not encourage a more proactive approach to patient care and malpractice risk reduction. The S-O-O-O-A-AP (Subjective, Objective, Opinion, Options, Advice, Agreed Plan)³ format (Table 2) provides a more comprehensive perspective and encourages the use of 2-way communication, patient/family/proxy participation, and informed consent collection and also records the patient/family/proxy’s responsibility for following through with the agreed-on plan of care.

Table 2. Description of the SOOOAAP Format

Can we survive the malpractice issues of today? To err is human as we all painfully know, and we will all err sometime in someway. We must protect ourselves with personal malpractice coverage and by using a proactive approach to potential litigation that includes the 4 Cs previously—compassion, communication, competence, and charting. This does not need to mean more care (i.e., more tests or interventions) but simply means more talk! Let’s work together to make this a win-win situation and prevent the loss of good providers for fear of litigation. Feel free to share with us at Geriatric Nursing your personal experiences or tricks of the trade related to proactive, preventive activities related to malpractice claims, or ways to respond (and survive) if a claim does occur.

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References 

1. Nurse Practitioner Claims Study. Available at www.cna.com/downloads/risk_control/Client_Use_Bulletins/Medical/ComparisonofClaimsData.pdf. Cited April 2006.
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2. CNA HealthPro. Available at www.cna.com. Cited April 2006.
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3. Teichman PG . Documentation tips for reducing malpractice risk . 2000; Available at www.aafp.org/fpm. Cited April 2006.
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