The ability to research malpractice claims against nurse practitioners can be an exercise in frustration. Of the 6,208 malpractice payments reported to the National Practitioner Data Bank (NPDB) as of 2006, only 9.6% involved NPs. Just under 70% (69.8%) of these were attributed to diagnosis or treatment.1
The relationship between the number of NP malpractice claims and variables such as practice setting, length of licensure, level of autonomy, educational level and demographics can inform risk management strategies.
Our review sought to answer several questions: Do female NPs incur more malpractice claims than male NPs? What is the nature and strength of this relationship? Is increased autonomy associated with a greater likelihood of being sued for malpractice than practice setting? In other words, which characteristic or combination of characteristics is most predictive of being sued for malpractice? What is the "profile" of the negligent NP?
Our research determined that only two claims analyses have attempted to study these relationships. The analyses were conducted by two liability insurance companies, and they encompassed the years 1994 to 2008.2,3
Most research about malpractice involves physicians, midwives and anesthesiologists or anesthetists,4-7 and it seeks to identify risk management strategies to limit malpractice.8-10 No quantitative analysis of the strength and direction of association between NP malpractice claims and the variables of gender, age, practice setting, autonomy level and education has been performed. This article synthesizes data from the only two studies of claims against NPs and identifies limitations and barriers to research involving malpractice claims against NPs.
We searched the CINAHL, PubMed and LegalTrac databases using combinations of the following search terms: "nurse practitioner," "malpractice," "damages," "legal," "failure to diagnose," and "wrongful death." We included only peer-reviewed studies conducted between 2000 and 2010 and written in English. We focused on studies about the relationship between the number of malpractice claims against NPs and the NPs' educational attainment, length of licensure, gender, age, practice setting and level of autonomy. We omitted from the final review all duplicate studies and articles focused only on risk management strategy identification and implementation.
Of the 220 articles identified using this search strategy, 126 were ruled out based on article title. We reviewed the abstracts of the remaining 94 articles for possible inclusion. Only two contained information about malpractice claims and at least one of the variables we sought to review. One reported the results of a claims analysis by CNA, a large national provider of professional liability insurance. The other reported the results of an analysis conducted by CNA with Nurses Service Organization (NSO), another liability insurer.
A malpractice claim may be defined as a financial demand resulting from injury incurred through healthcare services.11 CNA defines it as a legal action or proceeding "alleging professional liability resulting in allegation(s) of patient harm or injury."2
Practice Setting or Specialty
The CAN/NSO claims analysis covered claims filed between 1998 and 2008;3 the claims analysis conducted by CNA alone covered 1994 to 2004.2
The CNA/NSO findings show that medical offices were the site of the highest proportion of malpractice claims against NPs (42.4%), followed closely by non-hospital-based clinics (17.8%). This finding is consistent with the CNA claims analysis.
The CNA/NSO study included the nursing home setting, which represented the third highest percentage of claims (12.2%). Although the highest number of claims in both studies occurred in medical offices, the most expensive claims stemmed from actions in the inpatient or hospital setting. One possible explanation for the higher number of claims resulting from office-based care is that more NPs are employed in ambulatory settings than in hospitals.
In the analysis conducted by CNA/NSO,3 54.9% of claims involved adult or gerontologic NPs. NPs in family practice (28.3%) were the subject of 84.3% of all claims against NPs.3 In the CNA2 analysis, family practice NPs accounted for the greatest proportion of claims (41.1%), followed by those classified as "adult/gerontology" specialists (33.7%). (Although the analysis listed these roles together, they are separate NP certifications.)
In the CNA/NSO3 study, NPs who faced claims (9%) were more likely than NPs who did not face claims (4%) to practice in a state that required physician supervision. Of the NPs sued, 11% said they had no physician oversight. Nine percent of NPs sued were under direct supervision at the time of the claim-generating incident. NPs named in lawsuits were twice as likely as those who did not face claims to report no prescriptive authority.3
Florida, California, New York, Massachusetts, Pennsylvania, Arizona and Mississippi each recorded more than 20 claims filed against NPs between 1994 and 2004.2 Of these seven states, Arizona is the only one that does not require physician involvement in diagnosis and management, including the prescription of medications. These differences could be due to a more volatile litigation climate or high tort limits.
Only the CNA/NSO3 claims analysis correlated educational preparation and frequency of malpractice claims. NPs with and without claims reported nearly the same number of clinical hours in their NP programs (average 636). The percentage of respondents with the most claims were master's-prepared (84.7%); the second highest claims rate was among NPs with doctoral degrees (9.4%). These findings likely reflect that the majority of practicing NPs are educated at the master's level. It will be interesting to note any change in frequency after the doctorate of nurse practice becomes more common.
Length of Licensure
The CNA/NSO3 study asked about number of years in RN practice before becoming certified as an NP and years of experience as an NP. Of the NPs with claims, 82% reported practicing 10 years or less as a registered nurse prior to earning NP certification. Among NPs who reported no claims, 63% practiced as an RN for 10 years or less prior to becoming NPs. Half of NPs who were sued had practiced less than 5 years as a registered nurse prior to obtaining their NP certification, compared to 36% who did not face claims. Of the NPs who were sued, 17% had practiced less than 2 years before earning NP certification. In terms of years of experience as an NP, nurse practitioners who were sued averaged 7.1 years of NP practice versus 9.7 years for those who were not sued during the study period.
The CNA/NSO3 claims study did not distinguish between clinical nurse specialists and NPs with regard to gender and malpractice. In the CNA study, men accounted for 14% of NPs with claims. The percentage of men in the NP profession is low, around 8%.
With regard to age, the greatest percentage of respondents with claims (57.9%) were between the ages of 50 and 64; the 30-to-49 age group came in second (36.2%).3
Any conclusions drawn from the claims studies are based only on cases involving NPs insured by CNA or NSO. These claims analyses reflect closed claims, defined as claims that have been resolved through judgment, settlement or verdict with or without payment of damages. This information can be difficult to obtain. Insurance companies are reluctant to release information about their insured professionals, and settlement information is often unavailable to the public.12,13
As a tool for analyzing trends in malpractice, this strategy is limited. Closed claims do not necessarily reflect the frequency of malpractice. Some people who are injured do not file a claim, and some who are not injured sue.7 Another point to consider is that many NPs are insured through their employers and do not purchase personal liability coverage from a third-party insurer.
Another possibility is that NPs may initially be named in a malpractice claim but dropped as part of a settlement agreement between their employer's insurance company and the claimant, resulting in the NP's malpractice being statistically "shielded."12 Finally, some NPs are simply practicing "naked" without malpractice insurance. Taken together, these factors make the acquisition of accurate data about NP malpractice claims difficult.
Barriers to Research
The invisibility described in the previous section represents a significant barrier to malpractice research. Another barrier is the lack of a national information repository for researchers about settlements and verdicts. Some malpractice claims never go to trial. As a result, they are not represented in jury verdict reports. Settlement information is usually unavailable to the public. In fact, some jurisdictions do not even record this information.12
In addition to the NPDB effectively erecting a "corporate shield" around claims information, a researcher may only use the public data file, which reports only the number of malpractice claims by state during a certain period. Information about gender, age, practice setting, etc. is unavailable. Moreover, Chandra et al.12 found inconsistencies when comparing NPDB data with jury verdict reports.
In an effort to address these barriers and the limitations of previous studies, I sought malpractice information from the boards of nursing of six states (Massachusetts, Oklahoma, Virginia, New Hampshire, Oregon and New Mexico). I started with email requests, then followed up with telephone calls if I didn't receive a response after 2 weeks. Three of these states require direct supervision by a physician (Massachusetts, Oklahoma and Virginia) and three have independent practice (New Hampshire, New Mexico and Oregon).
Another barrier to research became clear through the feedback obtained from the various boards of nursing. A researcher may "request a query" for specific information, such as age, gender, practice setting or educational preparation with regard to a malpractice claim. However, this information gathering must be performed by the board of nursing rather than the researcher who makes the request. Representatives from two state boards told me that this information gathering can be cost prohibitive ("payment by the hour at research assistant rates"), and they could not estimate the amount of time that would be necessary to obtain the information. As a result of the cost involved with data collection, I am seeking institutional review board approval as a precursor to the acquisition of funding to address this important subject.
In light of the limitations of available malpractice claims studies and barriers to research, definitive conclusions about the frequency of malpractice claims against NPs and the identified variables should not be drawn. Further research is needed before recommendations can be made.
Michael Defilippo is a family nurse practitioner student at the University of St. Francis in Albuquerque. Jose R. Flores is a family nurse practitioner who is the director of the FNP program at the University of St. Francis.
1. U.S. Department of Health and Human Services. National practitioner data bank annual report. http://www.npdb-hipdb.hrsa.gov. Accessed Aug. 19, 2011.
2. CNA. Nurse practitioner claims study. https://www.cna.com/vcm_content/CNA/internet/Static%20File%20for%20Download/Risk%20Control/Medical%20Services/NursePractitionerClaimsStudy.pdf. Accessed Aug. 19, 2011..
3. CNA & NSO. Understanding nurse practitioner liability: CNA Healthpro nurse practitioner claims analysis 1998-2008. Risk management strategies and highlights of the 2009 NSO survey. http://www.nso.com/pdfs/db/Nurse_Practitioner_Claim_Study_02-12-10.pdf?fileName=Nurse_Practitioner_Claim_Study_02-12-10.pdf&folder=pdfs/db&isLiveStr=Y. Accessed Aug. 19, 2011.
4. Angelini DJ, Greenwald L. Closed claims analysis of 65 medical malpractice cases involving nurse midwives. J Midwifery Womens Health. 2005;50(6):454-460.
5. Kachalia A, et al. Missed and delayed diagnoses in the emergency department: a study of closed malpractice claims from 4 liability insurers. Ann Emerg Med. 2007;49(2):196-205.
6. Kendall-Raynor P. Know your limits or face increased threat of compensation claims. Nurs Stand. 2007;21(19):14.
7. MacRae MG. Closed claims studies in anesthesia: a literature review and implications for practice. AANA J. 2007;75(4):267-275.
8. Burroughs R, et al. Trends in nurse practitioner professional liability: an analysis of claims with risk management recommendations. J Nurs Law. 2007;11(1):53-60.
9. Nestor MS. The use of mid-level providers in dermatology: a liability risk? Semin Cutan Med Surg. 2005;24(7):148-151.
10. Pearson LJ. Prevent the unthinkable. Nurse Pract. 2003;28(7 Pt 1):7.
11. Jordan LM, et al. Data driven practice improvement: the AANA foundation annual closed malpractice claims study. AANA J. 2001;69(4):301-311.
12. Chandra A, et al. The growth of physician medical malpractice payments: evidence from the national practitioner data bank. Health Affairs. 2005;Jan-June;Suppl Web Exclusives:W5-240-W5-249.
13. Klein CA. Surveying the malpractice terrain. Nurse Pract. 2002;27(11):62-64.