Malpractice in Geriatrics:

Are We Surviving?

As nurses providing care for older adults weare all too acutely aware of the risk of mal-practice. Bad things can happen to wonderfulolder adults, and bad things can happen to themost well-intentioned providers. Most of uspractice ever vigilant of the doomed malprac-tice monster stepping out from behind ashower curtain. What do we fear? The one daywe forget to ask that important question aboutallergies, to double-check on a medication or-der that just didn’t make sense, or to documentan event that occurred and everything we didin response to it. We fear the one day ourdefenses slide and the malpractice monstergets us. So how can we cope with this fear?How can we prevent a claim being madeagainst us or protect ourselves if it becomes areality? What can we do to prevent nursesfrom leaving the bedside or the field of nursingin response to this fear?

My response—GET COVERED! Despite thefact that the cost of professional liability insur-ance has increased for many of us, not gettingcovered just isn’t worth the risk. Increasedcosts are due to an increased number of filedlawsuits, increased costs of jury awards, and areduced supply of available coverage as insur-ers exit the medical malpractice business be-cause of the difficulty of making a profit andrapidly rising medical care costs. The in-creased cost of coverage should not, however,deter us from playing it safe.

Bruce Dmytrow, vice president of CNAInsurance Companies reported on a recentNurse Practitioner Claims Study at the 2006American College of Nurse Practitioners Pol-icy Summit on risk management. CNA re-viewed 10 years of claims to look for trendsand provide risk management recommenda-tions. CNA wrote more than 22,000 nursepractitioner policies from 1993 to 2004, andof these there were 841 claims made, and

288 of these resulted in an indemnity pay-

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ment. The average payment made was in the$130,000 to $170,000 range. A total of 318claims did not result in an indemnity pay-ment but had an associated legal cost.1

Claims made against nurse practitionersmost commonly occur in relation to failureto diagnoses and implementation of inappro-priate treatment interventions.1 CNA hasalso completed a review of the claims andrisks associated with care provided in nurs-ing homes and assisted living settings and inspecific areas of care relevant to geriatrics,such as use of feeding assistants, woundcare, and nutritional care.2 These reviewsare extremely valuable in helping us to rec-ognize high-risk areas, and they also provideuseful suggestions for preventing potentialrisky situations. The CNA Web site (www.

cna.com) also has useful resources relatedto assessment, prevention of elopement, andother types of care activities.

So yes, you say malpractice coverage is im-portant, but my employer takes care of that.Many health care facilities do, in fact, provideliability coverage for their employees. But youmay not be covered in all instances. It is pos-sible that the coverage provided by your pro-vider is an occurrence policy. (The occurrenceform only covers incidents that happen duringthe policy period without regard to when theclaims are reported.) You also may not havesufficient limits of coverage from your em-ployer, your defense costs in the situation inwhich a claim is made against you may not becovered, and you certainly will not be coveredby your employer if you engage in clinicalactivities in any other environment. Finally,you should recognize and remember that theinsurer has first allegiance to your employer,the one who has the contract with the insurerand is paying the bills. Consequently, you willnot be able to bring to light issues such as

FAANP

understaffing in the facility, la

me 27, Number 4

Barbara Resnick,PhD, CRNP, FAAN,

ck of adequate

training, and other issues that may be relevant tothe case.

If you have your own coverage, however, youhave the option of getting a claims-made form,which covers you for any suits or incidents re-ported in the coverage year. With claims-madecoverage, once the policy has been terminated,coverage no longer exists. If coverage is desiredfor claims reported after the policy has been ter-minated, you have the option to purchase an ex-tended reporting endorsement (known as a “tail”).Nursing malpractice suits can take years to evolveand years to settle. It is therefore prudent, if notessential, to have your own policy that you can becertain will cover you even if you no longer workat the institution where the event occurred.

Having malpractice coverage to protect you isan important first step toward personal protec-tion. As with all health care, however, preven-tion is the best policy. Practicing with an overallpreventive philosophy and implementing simplypreventive techniques is critical. A preventivephilosophy of care involves listening to all con-cerns of the patient and family, as well as en-gaging them in the decision-making process re-lated to their care, covering all bases of care,and having the patient and family take someresponsibility for health behaviors and out-comes. Table 1 provides additional examples ofpreventive options to use.

One of the greatest risks of something badhappening to a patient is exposing that personto a greater number of health care situations.THINK before you intervene. Typically, the pro-

Table 1.Preventive Malpractice Techniques

Preventio

● Know the Nurse Practice Act● Ensure your practice competencies● Collaborate, consult, refer, and confirm diagno● Manage patient and family expectations by cl● Obtain informed consent for diagnostic tests a

family understanding● Preventive options● Transfer as appropriate● Document patient interaction● Standardize patient health records and proces● Use S-O-O-O-A-AP (Subjective, Objective, Opi● Avoid charting by exception or use of checklis

cess is this: the patient sees providers ¡ tests

Geriatric Nursing, Volu

and procedures are conducted ¡ more testsand more procedures and more risks related tointerventions result. Replace this with a processthat builds mutual trust and respect so thathealth care options are openly discussed andthe provider and the patient come up with anagreed-on course of action. Sometimes, for ex-ample, a tincture of time is truly the best medi-cine. Alternatively, an aggressive workup inwhich the patient may be referred to multiplespecialists to determine a diagnosis is needed.

Developing a risk-management style of practiceinvolves “4 Cs”: compassion, communication,competence, and charting. Compassion is usefulbecause happier patients are less likely to sue.Communication with the patient and other healthcare providers can avoid conflicting assessments.Maintaining competence through the use of flowsheets, protocols, and other clinically relevanttools 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 physi-cian colleague or specialist if you are not clear thata diagnosis has been established or if the patient isnot responding to treatment. Finally, protect your-self through charting and documentation. Chart-ing should be descriptive, objective, and respect-ful. Chart as though your patient or his or herfamily will read your note.

No discussion of malpractice can be had with-out addressing the whole area of documenta-tion. Effective documentation may stop errone-ous charges from being made or immediatelyexculpate the wrongly accused. Unfortunately,

hniques

g what is providedeatments that can cause harm; ensure patient/

release of patient health informationOptions, Advice, Agreed Plan) documentationdocumentation

n Tec

sesarifyinnd tr

s fornion,ts for

health care providers typically approach docu-

me 27, Number 4 199

mentation with the goal of communicating ef-fectively with themselves, and they may assume,for example, that certain things were done orobserved and omit this information from thenote. Thorough and thoughtful documentation,however, can provide paper-and-ink or screen-and-byte inoculation against miscommunicationand misunderstanding. While the commonlyused SOAP (Subjective, Objective, Assessment,and Plan) outline serves as a template for infor-mation gathering, it lacks flexibility and doesnot encourage a more proactive approach topatient care and malpractice risk reduction. TheS-O-O-O-A-AP (Subjective, Objective, Opinion,Options, Advice, Agreed Plan)3 format (Table 2)provides a more comprehensive perspective andencourages the use of 2-way communication,patient/family/proxy participation, and in-formed consent collection and also records thepatient/family/proxy’s responsibility for follow-ing through with the agreed-on plan of care.

Can we survive the malpractice issues of to-day? To err is human as we all painfully know,and we will all err sometime in someway. Wemust protect ourselves with personal malprac-

Table 2.Description of the SOOOAAP Form

SOOOAAP

Subjective Demonstrate your atbuild credibility intcompetency, affect

Objective Statements should alab values or diagnaccuracy of any as

Opinion Avoid absolutism ancomprehensive cardiagnosis and is no

Options Provide evidence thaof treatment optionpossible responsesimplications of treaunderstood.

Advice This section reviewsdelineates the bestusing supportive re

Agreed plan The agreed-on plan oprovider may be repatient/family/prox

tice coverage and by using a proactive approach

Geriatric Nursing, Volu200

to potential litigation that includes the 4 Cspreviously—compassion, communication, com-petence, and charting. This does not need tomean more care (i.e., more tests or interven-tions) but simply means more talk! Let’s worktogether to make this a win-win situation andprevent the loss of good providers for fear oflitigation. Feel free to share with us at Geriatric

Nursing your personal experiences or tricks ofthe trade related to proactive, preventive activ-ities related to malpractice claims, or ways torespond (and survive) if a claim does occur.

References

1. Nurse Practitioner Claims Study. Available atwww.cna.com/downloads/risk_control/Client_Use_

Bulletins/Medical/ComparisonofClaimsData.pdf. CitedApril 2006.

2. CNA HealthPro. Available at www.cna.com. Cited April2006.

3. Teichman PG. Documentation tips for reducingmalpractice risk. 2000. Available at www.aafp.org/fpm.Cited April 2006.

0197-4572/06/$ - see front matter

© 2006 Mosby, Inc. All rights reserved.

escription of Section

n to patients, highlight main areas of concern,record, and accurately document a patient’sattitude.upportive, reproducible observations such astest results. Check and recheck to ensure theent.ide an impressive record of your

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me 27, Number 4