Malpractice claims against nurse practitioners are resulting in higher payouts. Improper prescribing or managing of controlled drugs is a main driver, along with neonatal care.

• Diagnosis claims have a higher-than-average indemnity.

• Behavioral health claims have risen sharply in five years.

• The data suggest a need to focus more on core competencies.

Payouts from malpractice claims against nurse practitioners (NPs) continue to rise, and much of the increase can be tied to the prescribing and management of painkillers, according to new data from insurance companies.

An analysis by Nurses Service Organization (NSO), a nursing liability insurer based in Ft. Washington, PA, and CNA Healthcare, an insurer based in Chicago, found a 13% increase in medication-related allegations against NPs due in part to improper prescribing/managing of controlled drugs, such as opioids and other painkillers.

The average paid indemnity of liability claims against NPs whose specialty is neonatal was $630,411, making it the specialty with the highest average paid indemnity.

One-third of NP license defense claims resulted in some level of discipline, ranging from fines to probation. Thirty-six percent of claims against an NP originated from a physician office practice. (The full report is available online at: http://bit.ly/2Al3dW0.)

One of the key findings of this analysis was that the average paid indemnity for closed claims with an indemnity payment of $10,000 or greater increased to $240,471 per claim, say the report’s authors Jennifer Flynn, CPHRM, risk manager with NSO, and Lynn Pierce, BSN, RN, CPHRM, risk control director with CNA Healthcare. In the 2009 and 2012 CNA/NSO nurse practitioner claim analyses, which used the same criteria, the average paid indemnity is $186,282 and $221,852, respectively. This indicates an average annual paid indemnity growth rate of 6% between the 2009 and 2012 claim reports and a 2% annual growth rate between the 2012 and 2017 report periods, they note.

An analysis of allegation categories revealed that diagnosis-related claims occurred most frequently, accounting for 32.8% of all closed claims, and with a higher-than-average paid indemnity of $283,263 per claim.

“Some of the more troubling trends that we noticed involved behavioral health and medication prescribing. Behavioral health accounts for 15.3% of the closed claims in the current report, compared with 6.5% in the 2012 report,” Flynn says. “This included some high-severity claims involving improper prescribing of medications and failure to address a behavioral health condition in a timely manner.”

The effects of the ongoing opioid crisis are manifesting in both malpractice lawsuits and license complaints filed against nurse practitioners, researchers found. Related to malpractice claims, frequency of allegations related to medication prescribing increased from 16.5% of closed claims in their 2012 analysis to 29.45% of claims in the 2017 analysis. Even more telling, they say, is the fact that claims related to a reported injury of addiction grew almost tenfold between 2012 and 2017, from 1% to 9.5% of all closed claims.

“We also saw the frequency of medication-related complaints filed with state boards of nursing. The frequency of these claims increased from 20.3% of closed claims in our 2012 analysis to 27.1% of closed claims in our 2017 analysis,” Pierce says. “The majority of these complaints involved overprescribing of controlled substances as well as failure to explain potential drug side effects.”

The report offers nurse practitioners, nursing leaders, and organizations greater insight into malpractice claims as well as licensing board actions brought against their colleagues and facilities, Flynn says. The closed claims analysis reveals that while there have been advances in clinical practice and patient safety, many claims continue to develop due to failure to diagnose or a delay in making a correct diagnosis, medication prescribing errors, and failure to provide proper treatment and care, she says.

“As the frequency and severity of claims facing nurse practitioners increases, risk managers will continue to play a critical role in helping to protect both nurse practitioners and patients from potential adverse outcomes,” Flynn says. “Our hope is that nurse practitioners, risk managers, and organizations alike can review our recommendations and patient safety tools to understand their risks and areas of loss likely to impact their practice, and to help reduce their liability exposure while improving patient safety.”

The findings demonstrate the need for a deliberative and focused effort addressing core competencies, collaboration, and communication among and between health professions, Pierce says. The data show that most claims develop from a failure involving core competencies such as diagnosis, medication prescribing, or treatment and care management.

“This suggests that a greater emphasis should be placed on reinforcing core competencies at every stage, from education all the way to daily documentation practices,” Pierce says.

Diagnosis-related claims had the highest percentage of closed claims, with the specific allegation “failure to diagnose” representing 20.7% of all closed claims, Pierce notes. Within this subcategory, the analysis revealed the following three causes that accounted for more than half of failure to diagnose closed claims:

• failure to timely/properly establish and/or order appropriate treatment;

• failure to order appropriate tests to establish a diagnosis;

• delay in obtaining/addressing diagnostic test results or failure to do so.

“In order to reduce risk, increase patient satisfaction, and improve quality in this critical area, practices should draft a written practice policy that clarifies practitioner and staff responsibilities in regard to clinical tests, including ordering tests, reviewing results, and notifying patients of findings,” Pierce says.

Another example comes from medication prescribing, the category of allegations with the second-highest frequency of claims. The increased frequency of medication-related allegations is due in part to the allegation of improper prescribing/managing of controlled drugs, including Schedule II and Schedule III opioids such as methadone, oxycodone, fentanyl, and hydrocodone, Pierce says. Many times, the patient had a history of drug or alcohol abuse and was currently using or abusing Schedule IV controlled substances.

“Especially considering the high level of public concern regarding opioid overuse and abuse, it is more important than ever that nurse practitioners prescribe with care, document the rationale behind prescription decisions, monitor patients taking multiple medications, and cooperate with other healthcare providers in managing and tracking drug regimens,” Pierce says.

Flynn and Pierce recommend that all nursing leaders and organizations review their policies, procedures, and compliance programs on at least an annual basis and revise them as needed. Risk managers and nurse leaders also should establish a process for regular review and delineation of clinical privileges, they say.

Ensure nurse practitioners are provided with appropriate clinical support, in compliance with collaborative, supervisory, or employment agreements and confirm that everyone understands each party’s role under the agreement. Communicate openly and swiftly about any questions or concerns that may arise, they advise.

Risk managers also should review job descriptions against the state’s practice act to help reduce the likelihood of scope of practice-related allegations. Understand the current state scope of practice for nurse practitioners and support them within their scope of practice, they say.

Ensure nurse practitioner competency through ongoing peer review and professional performance evaluation, Flynn and Pierce suggest. Evaluations should focus on the nurse practitioner’s clinical performance, documentation practices, and overall assessment and management of patients.


• Jennifer Flynn, CPHRM, Risk Manager, Nurses Service Organization, Ft. Washington, PA. Email: jennifer.flynn@aon.com.

• Lynn Pierce, BSN, RN, CPHRM, Risk Control Director, CNA Healthcare, Chicago. Email: stephanie.pierce@cna.com.