Friday, November 8, 2019

Do You Need Malpractice Insurance?

YES, YES, YES!!!  Nursing Defense Attorneys advise nurses who interact with patients to carry their own malpractice insurance.

The biggest worry is not getting sued in civil court, but rather an investigation by the Board of Nursing.  Malpractice insurance typically covers professional license defense and this is a HUGE reason to pay a little money every year to a nursing malpractice insurance company to ensure that if a complaint is filed against you there is money to hire an experienced defense attorney.

Nurses continue to refuse insurance due to various myths:

1. I am a good nurse and won't get sued/reported to the BON:  Good nurses are reported every single day to the BON or named in a lawsuit.  Good nurses make mistakes and are reported or sued; being good at your job is not an absolute defense.  Good nurses can be the victim of mistaken identity or identity theft.  What about the nurse who had her information stolen and it was used to write fictitious prescriptions.  The board ignored the nurse's denial, samples of her handwriting, and letters from her employer and pharmacist stating the prescriptions were not hers.  The nurse had to pay legal fees, expenses and a private investigator fee out of pocket before the BON would believe she did not write the prescriptions and dismiss the case.  Bad things can happen to Good nurses.  Good nurses get their own malpractice defense policy.

2. My employer has insurance so I do not need my own policy:  I have never seen an employer's insurance used to provide legal defense for a complaint to the BON.  In addition, since most complaints originate from the employer, why would the employer also provide the financial means to defend against their complaint?  If you use your employer's malpractice insurance company the company/attorney's concern is the employer first.  This means any advice given to the nurse must first be a benefit to or not harm the employer.  If a nurse wants a non-biased defense, the nurse needs his/her own malpractice defense policy.

3. Having your own insurance will get you sued:  Plaintiffs find out a nurse has insurance two ways-first the nurse tells them (do not tell anyone you have insurance when an incident/error occurs) OR AFTER the lawsuit is filed interrogatories are filed asking if the nurse has insurance (so the insurance did not cause the lawsuit; they had already decided to sue you before they knew you had insurance).  Get your own malpractice defense policy because doing so will NOT cause you to be sued.


4. It is too expensive:  Not really.  A nurse told me that she obtained a policy and paid premiums for 10 years and the total amount was still less that what hiring an attorney out of pocket would cost her.  There is also a huge peace of mind aspect when you know you have the  money to take your case to the hearing stage and fight the allegations/complaint against you.  Many of the disciplinary actions occur because the nurse was forced to accept what the BON offered in settlement because the nurse could not afford to fight the BON (hearings before an Administrative Law Judge can cost anywhere from $10,000 to $30,000 or more depending on the length, number of witnesses and experts, and the complexity of the case; civil cases cost even more).

I received a sad phone call from a nurse who received notice she was named in a lawsuit.  I told her to contact the hospital immediately to see if they would cover her legal defense because they were probably also named in the lawsuit.  The nurse got very upset because the hospital had declared bankruptcy and was closed.  This meant the hospital was no longer in business and she was the only one named in the lawsuit meaning she was responsible out of pocket for her defense, expenses, and ultimately if she lost the case, she would be responsible for the cost of the judgment!!!   Very expensive and it could have been avoided if she had her own malpractice defense policy.

5. I was told in nursing school/at a CNE seminar/by a co-worker/etc. that I should not get insurance because.... Whatever the reason and no matter who is telling you, they are wrong.  The people who defend nurses are in agreement that nurses need to carry their own policy for malpractice/professional license defense.

How to find a policy:  Search for nursing malpractice insurance and talk to the various providers.  Make sure the policy:
* covers professional licensure defense
*allows you to pick your OWN attorney [Some insurance companies have a list of attorneys you must choose from and these attorneys may not have experience with the BON or not enough experience]
*has a cap per incident of at least/a minimum of $25,000 [this usually provides enough money for a BON investigation and a normal hearing; there are some policies that have a cap of $5,000-$10,000 per incident and that is not enough to cover the investigation and possible hearing]


Criminal Conviction? Make sure you are getting up to date information

I continue to hear from nurses (who have spoken with other attorneys in regards to criminal convictions) that are told they are going to receive disciplinary action or that they will have to obtain some type of evaluation; in many cases this is not true because the guidelines changed.  The Texas BON revised  their criminal guidelines in 2018 and some attorneys apparently have not kept up with the new regulations and policies.  What the Texas BON used to do in response to convictions before 2/2018 has changed and you need to be sure you are receiving current information.  Before agreeing to anything, be sure to speak to several attorneys that have experience with the BON (check Google or AVVO.com for information on attorneys and their experience).

Sunday, June 8, 2014

This is from my firm's website, www.nursingattorney.com:

Nurses always ask what can they do to improve  the regulation of their practice by the Texas Board of Nursing.  There are questions of how to make the process more fair, especially for those nurses who have never had a violation before and have a wonderful history of nursing practice.  Now, nurses can make a difference and ensure that two proposed rules pass; two proposed rules which will benefit nurses in Texas.

All nurses should read the recently proposed changes for the BON's  rules sections §213.32, Corrective Action Proceedings and Schedule of Administrative Fines and §213.35, Knowledge, Skills, Training, Assessment and Research (KSTAR) Pilot Program(22 Texas Administrative Code §213)  These rules will help nurses with minor practice violations resulting in disciplinary actions at the level of Remedial Education (§213.32) and at the level of Warning with Stipulations and Remedial Education (§213.35).  The levels include with and without a fine.

The Corrective Action Proceeding is non-reportable to the databanks and is not considered a disciplinary action.  Previously this option was restricted previously to administrative documentation type cases such as failing to inform the Board of a minor past criminal conviction or a failure to monitor the renewals of nurses under your supervision.  Expanding this option to practice issues will help the type of cases in the past where a nurse has a stellar nursing practice history but has made an error of some type; having these nurses put under disciplinary orders was one of the biggest problems facing the Board in my opinion.

Allowing deficiencies in nursing practice to be corrected by the KSTAR program is a great step in the regulation of nurses.  The  typical Board Order may not have addressed specific issues a nurse had and instead lumped all violations of a certain level into the same remedial courses.  The program will not be cheap for the nurse, but if the success is anything like that of other professions who have utilized a KSTAR like program, the program will be successful in preventing recurring Board Orders for additional violations.  This program will be reportable and will be a disciplinary action.

Each program has specific requirements and restrictions, but these two proposed rules are something nurses should support.  In order to help ensure passage of these rules, read the rules and if you are in support, send a letter to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.texas.gov, or faxed to (512) 305-8101.  An additional copy of the comments on the proposal or any request for a public hearing must be simultaneously submitted to Melinda Hester, RN, Lead Nursing Consultant for Practice, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to melinda.hester@bon.texas.gov, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.

A public hearing is where the public is allowed to voice their opinions regarding the rule in person before the Board; a hearing is not required for comments to be considered if submitted in writing, to the two staff members above as directed and submitted no later than 5:00 p.m. on June 23, 2014  for §213.32, the Corrective Action Proceeding proposed rule and no later than 5:00 p.m. on July 7, 2014 for  §213.35, the KSTAR proposed rule.

Wednesday, April 23, 2014

New design for Texas BON website

The Texas BON has a new website and I really like it.  They have made it more comprehensive and have information and documents present that were not easily available are now there for easy use.  A lot of work went in to the re-design of the site and it shows.  Good Job!