EXECUTIVE SUMMARY

In today’s litigious society, case managers should have their own malpractice insurance to protect their assets, experts say.

  • Attorneys cast a wide net and often include anyone who has interacted with the patient in malpractice lawsuits.
  • When CMS’ new discharge planning guidelines go into effect, case managers will be vulnerable to lawsuits if discharges are unsuccessful.
  • The hospital’s legal counsel will not necessarily represent the case manager’s best interests, which is why case managers need their own malpractice coverage.

You may not think of yourself as having a lot of valuable assets that you could lose if someone sued you, but in today’s litigious society, case managers should consider purchasing their own malpractice insurance, advises Elizabeth Hogue, Esq., a Washington, DC-based attorney specializing in healthcare.

Nurses and social workers don’t typically think of themselves as having a lot to lose if they are sued but they do have assets that should be protected, Hogue points out. “These assets often include wages from employment, a home, automobiles, savings, stocks and bonds, and other investments. The only way to help ensure protection of these assets is to purchase and maintain an insurance policy,” she says.

Malpractice insurance is not so expensive that it’s prohibitive, and the potential benefits, including peace of mind, far outweigh the costs. Many professional organizations partner with insurance providers and offer discounts to members, she says.

When attorneys file a malpractice lawsuit, they cast a wide net and often include anyone who has interacted with the patient, Hogue says.

“Attorneys are trained to include everyone who sees the patient in any malpractice lawsuit they file. Their point of view is that they won’t know who is responsible for the injuries of damages the patient received until they sort it out later during discovery. For the sake of risk management, they can’t afford to overlook someone, and that means that if they were involved with the patient, case managers are going to be included in any claim against a healthcare provider,” she says.

CMS’ proposed changes to the Conditions of Participation for discharge planning makes case managers more vulnerable than ever and increases the likelihood that case managers may be sued for an unsuccessful discharge, she says.

“There is no doubt in my mind that case managers may be included in lawsuits if the plan of care they develop doesn’t meet the patient’s needs, is incomplete, or if the patient is referred to a provider that cannot provide appropriate care,” she says.

Hospitals have malpractice insurance that covers staff members, but in the case of a lawsuit, case managers need an advocate of their own, Hogue says.

“There may be instances when the best interests of the hospital and the best interests of the case manager will deviate. Then, for sure, case managers need their own representation,” she says.

When a lawsuit is filed the hospital’s insurer will assign legal counsel to defend the claim, but that attorney will clearly represent the hospital and not the individual case manager, Hogue points out.

“In fact, if legal counsel determines that the actions the case manager took are outside his or her scope of employment, the insurance company may decide that there is no coverage for the claims filed against the case manager,” she adds.

In other instances, multiple claims may be filed against the hospital and the hospital staff, including case management. “These multiple claims may exceed the limits of liability of the hospital’s insurance policies. In that case, the only coverage case managers will have is the coverage they purchase for themselves,” she says.

If a case manager has personal malpractice insurance and someone files a claim, the insurer will assign legal counsel who owes allegiance only to the case manager, Hogue says. “You will have legal counsel who is solidly in your corner who can, if necessary, counter arguments made by your employer’s insurer that your employer’s policy should not cover you,” she says.

Some employers, especially large institutions and organizations, may not want their employees to have their own malpractice insurance because of concerns that it may be time-consuming for everyone if multiple attorneys are involved in the case, she says.

Hogue debunks the idea that people who have malpractice insurance are more likely to be sued. She points out that patients and their families have no way of getting information about whether someone has individual malpractice insurance before they file a lawsuit, she adds.

“Even after lawsuits are filed, rules governing discovery may prohibit attorneys from getting any information about whether the defendants have malpractice insurance and, if so, the amount of coverage,” she says.