Drs. Bondi, Rusher, and Schuman’s article, “You’ve been served! What to do if you get sued for malpractice” in the March 2019 issue of Contemporary Pediatrics provides insightful information for pediatricians and all providers who receive a summons that a malpractice lawsuit has been filed.
The authors identify the common reasons for malpractice claims as well as malpractice prevention strategies such as good communication with parents on a regular basis and detailed documentation. They discuss what to do if the pediatrician must provide a deposition and appropriate behaviors during courtroom testimony. This is important information for all providers and I recommend not only reading the article, but considering current practice strategies and those that can be implemented with the goal of preventing malpractice claims.
PNP litigation by the numbers
Do Pediatric Nurse Practitioners (PNPs) experience the same malpractice claim problems as pediatricians? From 2007 to 2013, there were 4 main reasons for malpractice claims against adult medical, primary care, and family NPs, which included failure to diagnosis (43%), improper care and treatment (29%), failure to refer to emergency department, and improper prescribing (16.5%).1 The average payment for all NPs was $221,852, however, the average payment for claims against PNPs was 2 times greater at $525,000. The average payment for PNPs’ malpractice is slightly higher than the average payment for physicians: $525,000 to $440,379.
What to do if “served”?
The information provided by Drs. Bondi, Rusher, and Schuman regarding what to do if you are served, directly applies to NPs. It is critical to know who you can and cannot speak with about the case, to meet and work directly with the attorney who may be assigned by your malpractice insurance company, and to prepare for a deposition and a possible trial case with the attorney.
During a deposition, NPs should only answer the exact question that is asked by the plaintiff’s attorney. As NPs, we often provide detailed information to parents while caring for their children, and in particular, we provide detailed anticipatory guidance, so we ‘talk a lot!’ Avoid this behavior while responding to deposition questions and while testifying in the courtroom: Be honest and succinct. Remember that you are often speaking to non-medically trained individuals, so your sentences, phrases, and any medical terms must be understandable by these individuals.
The expert witness
In medical malpractice cases, expert witnesses may be hired by both the plaintiff and defense lawyers. Expert witnesses must qualify as experts through their knowledge of the medical case, skills, experience, and training or education.2 The expert witness cannot have any personal knowledge of the case, eg, cannot personally know any of the providers, nurses, patient, family members, the practice, or be affiliated with the institution at which the problem occurred. The expert witness is expected to review all aspects of the case and draw conclusions based on the facts of the case. The expert witness provides an opinion of the case based on those facts and is considered an authority figure for the deposition and for the court case.
While anyone can be “served” individually or be named as part of a group lawsuit, there are specific practice policies that you can implement as prevention strategies.
1). Complete, detailed documentation is a critical prevention strategy. Do not allow productivity demands including pressures to see more patients in a shorter time frame, influence the way you practice. Practice to your comfort level, and be certain to allocate time to document and review your records on a daily basis.
2). Be knowledgeable about evidence-based guidelines and implement the recommendations for practice in your day-to-day patient encounters.
3). Do not hesitate to refer to a specialist; call a professional or interprofessional colleague for consultation; or refer immediately to an emergency department when the child’s presentation warrants a referral.
4). Be honest with the parents, children, and adolescents about who you are, your education and training, what you can do to care for them, and when you need to make a consult. Be a terrific communicator. The authors report that communication is key to prevention.
1. Medical Malpractice Lawyers. (2019). Nurse Practitioner Malpractice Statistics - Medical Malpractice Lawyers. Available at: https://www.medicalmalpracticelawyers.com/blog/nurse-practitioner-malpractice/ [Accessed 22 Mar. 2019].
2. Phillips E, Stark SW. Stepping up to be an expert witness. Nurse Pract. 2013;38(10):8-11.
3. Woodward, J.A. Taking the stand as an expert witness. Nurse Practitioner World News. 2009;14(11-12): 9-16.