Carolyn Buppert, NP, JD

Disclosures

April 01, 2004

Question

What happens when an advanced practice nurse (APN) is sued? How and where is the event recorded? What impact may it have on their practice and insurance rates if found liable, or not liable?

Response from the Expert

Carolyn Buppert, CRNP, JD
Nurse practitioner and attorney who specializes in the legal issues affecting medical practices and nurse practitioners. She is the author of 5 books. Ms. Buppert counsels clients, and lectures extensively on reimbursement issues, how to avoid malpractice, and contract negotiation. She is also president of Better Life Health Care Systems, which contracts with businesses and educational institutions for nurse practitioner services. Through that company she serves as Director of Student Health at St. John's College in Annapolis, Maryland. Her Web site is www.buppert.com

 

 

An APN will know that he or she has been sued when served with a copy of the complaint. The complaint is the plaintiff's summary of what the defendant did wrong and the legal basis for the lawsuit. The complaint names the plaintiffs, the defendants, and the court in which the complaint has been filed. Complaint papers can be delivered by certified mail, but often delivery is through a process-server, who tracks the defendant down at the office, at home, or on the street and hands the defendant the complaint papers. The defendant then has a set period of time to respond, usually 30 days. If the defendant does not respond, a judge may find in favor of the plaintiff, by reason of default. If the defendant responds on time, the case will move to the second stage.

Some states -- and some clinicians' contracts with their patients -- require a malpractice lawsuit to go through a pretrial arbitration or other review process to determine whether the case has merit and should move on to trial.

Before trial, both sides may gather facts about the case through 2 methods -- interrogatories and depositions. Interrogatories are written questions posed by 1 party, which the other party must answer, in writing. Depositions are face-to-face meetings between the individual to be deposed -- the plaintiff, the defendant, or witnesses -- and the attorneys for both parties. The attorneys ask questions of the party being deposed. A transcriptionist or videographer documents the sessions. The party being deposed swears to answer the questions truthfully, or face charges of perjury.

Both parties may hire and depose expert witnesses who provide opinions about the standard of care relevant to the case. At any point prior to trial, or even during trial, the parties may settle the case; ie, come to some mutually agreeable arrangement and drop the case.

If the case does not settle by the trial date, both parties present their facts, their witnesses, and the relevant law to a judge or jury. The judge or jury makes a decision about whether or not the defendant is liable. For a malpractice case to be successful, the plaintiff must prove that the defendant had a duty to provide care to the plaintiff, that the defendant did not meet the standard of care of a reasonably prudent clinician of similar education and training, that the plaintiff suffered an injury, and that the injury was caused by the defendant's failure to follow the standard of care.

If the defendant is found liable, the judge or jury decides on an amount of money, which the defendant must pay the plaintiff. If the defendant is insured, the insurance company pays according to the policy limits. The nurse practitioner (NP) pays anything over the policy limits, or, if the NP is not insured, the NP must pay the plaintiff the amount set by the court.

Each entity that makes a medical malpractice payment for the benefit of a physician, dentist, or other healthcare practitioner in settlement of, or in satisfaction in whole or in part of, a written claim or judgment against that practitioner must report certain payment information to the National Practitioner Data Bank (NPDB). The NPDB was established by Congress to improve the quality of healthcare by restricting the ability of incompetent physicians, dentists, and other healthcare practitioners to move from State to State without disclosure or discovery of previous medical malpractice payments.

If an NP is reported to the NPDB, the NPDB then reports the NP to the appropriate state Board of Nursing. The Board may investigate the NP and initiate disciplinary action if the Board believes there was gross negligence on the part of the NP.

An insurer may drop an NP from coverage after paying off a claim. An insurer may refuse to insure an NP who has been sued. On their applications, insurers ask whether an NP has been sued and whether an NP has had a complaint filed against him or her through the Board or other disciplinary body. If the NP has been sued or had a complaint filed, the NP must explain those circumstances. The company may decide to insure the NP, may increase the premium on the basis of the NP's history, or may decline to insure the NP.

Third-party payers, employers, and the Board of Nursing may also ask an NP whether he or she has a malpractice history when an NP applies for credentialing, employment, or renewal of license.

An NP who is sued but who is found not liable will not have a record with the NPDB and may or may not be asked to describe the circumstances to third-party payers, the Board of Nursing, or employers.

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