Carolyn Buppert, NP, JD

Disclosures

January 12, 2007

Question

I am getting ready to retire from private practice. How long should I continue to carry malpractice insurance in case a former patient decides to sue me?

Response From Expert

 

Carolyn Buppert, NP, JD 
Attorney, Private Practice, Annapolis, Maryland

 

 

The safest plan is to carry an occurrence policy until the date you stop practicing, and then truly stop practicing. An occurrence policy covers any incidents that occurred during the time when the policy was active, even if the lawsuit is filed years after the policy has lapsed. By contrast, if you have a claims-made policy, you will need to keep the policy active (pay the premiums) until the statute of limitations has run out or purchase a tail policy, which extends the coverage of a claims-made policy.

Statute of limitations is a legal term for the period of time from the date an injury occurs (or when the injury is discovered, or should have been discovered) until the final date that a medical malpractice lawsuit can be filed. If a suit is filed after the statute of limitations has expired, the defendant may move to have the case dismissed for being untimely. The statute of limitations varies from state to state. The time period may be 1, 2, 3, 4, or 5 years -- whatever is specified by state law -- from the date of the injury or from the date when the injury was discovered or should have been discovered.

Because a patient may discover an injury from medical malpractice long after the date when the incident took place, the statute of limitations for medical malpractice could run to decades. For example, if infantile glaucoma is not picked up in infancy, the child's visual impairment may not be recognized and documented until an age when the child's eyesight can be tested, which could be age 6 or 7 years. So, if the statute of limitations under state law is 3 years after the injury was discovered or should have been discovered, the clinician who missed the infantile glaucoma could be sued 10 years after he or she first examined the infant.

Some states have special provisions when the patient is a minor or incapacitated, or for situations in which instruments or other items were left inside a patient during surgery.

For a listing of state statutes of limitations, see "Time Limits for Bringing a Case: The 'Statute of Limitations.'"

So, the answer to your question depends on where you practice, what age group you serve, the type of medicine or nursing you practice, whether you perform surgery, and whether your patients are or may become incapacitated. It is not safe to try to predict the year at which you are free from risk, but to cover your bases with insurance. After you retire, be careful not to get into a situation in which you provide medical or nursing care or advice, unless you have an active malpractice insurance policy, preferably of the occurrence type.

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