How Not to Get Sued for Malpractice
Nurses worry about malpractice lawsuits all the time. But I can say with great assurance that you will never get sued. How do I know? Because, for example, I know that you will not get hit by lightning this afternoon. That doesn’t mean that some people won’t get sued, and that somewhere on earth, someone will not get hit by lightning. But not you. And not on either of them.
Nurses almost never get sued. Now, you would never know that from the grim ads for malpractice insurance. But it is a fact that even the ads tell you. Open your latest copy of AJN or Nursing or whatever journal you happen to have sitting around. Or do an internet search for malpractice insurance. How much do they say they are charging for malpractice insurance? If you are like 99% of all nurses, your coverage will be under $100 a year.
Insurance companies operate on what is called the law of large numbers. For instance, life insurance. If I take a random group of 37 year old women, an insurance company knows that a certain number of those women will die in the following year. They don’t know which ones will die. Nor do they know how they will die. But they know that a certain number will die during that year. And on that basis, they set the premiums for the life insurance for 37 year old women.
Likewise malpractice insurance. They know that -- statistically speaking -- you are not going to get sued this year. Or any year, for that matter. So, despite the fear tactics of the ads, begin with the realization that you are not going to get sued. Not now. Not ever.
In reality, a complaint against you at your state board of nursing is a much bigger risk. And the hints I’m giving here will help inoculate you against that possibility, too. All of these work. They will make you popular with patients, and loved by your co-workers. So read on.
Hint # 1: Be a nice person. If you want to make it “be a nice nurse,” that will work, too. But, be nice. Be pleasant to be around. Be agreeable. Be friendly. I’m not suggesting you be a doormat. Nor am I suggesting that you not stand up for yourself. But think of it this way: do you think a patient or family is going to sue you if you are a pleasant, kind person? Maybe. But they are far more likely to sue you if you are a jerk. Unpleasant. Obnoxious. Rude. So be nice.
Hint # 2: Be honest. Don’t make promises you can’t keep. And when you make a mistake, admit it. Promptly. The reason for this is that when we lie, we send off signals that something’s not right. And most people can spot that a mile away. See hint # 1: if you are honest and forthcoming with patients and family, they are more inclined to like you, and far less inclined to sue. A surgeon (true story) was operating and by some horrible accident, cut the aorta. The patient -- in what was a relatively uncomplicated surgery -- died rather quickly. The whole thing was over in minutes, and the surgeon just knew he was dead, too. At least in a professional sense. He went to a phone, called his attorney, and asked what he should do. “What do you look like now?,” the attorney asked him. He described himself: still in scrubs, and covered with blood. “Then go out there exactly as you are, and tell the family what happened. Go now. Admit that you made an awful mistake.” And he did just that. Was the family horrified? Of course. Did the surgeon make a mistake? You bet. And did they sue? No. Now they might have been the types who would not have sued anyway. But they certainly had grounds to sue. And sometimes simple honesty will defuse someone who wants to sue.
Hint # 3: Be open. Closely related to hint # 2. Make it a point of being available and easy to reach, both in a physical sense, and in a psychological sense. If something doesn’t make sense, say so. If you don’t understand something, tell the patient. And if -- by some amazing chance -- you don’t have all the answers, tell the patient that, and say that you will find someone who does have the answers. And do it. (See hint # 2).
Hint # 4: Be accessible. Don’t hide from your patients. Don’t avoid them. Again, I’m not suggesting that you be there for them 24 hours a day. But when you are there, be there. And if you have other patients to care for, invoke hint # 2: tell your patient honestly that you have other patients at the moment, but you will be back with them in 30 minutes. Or whatever.
I could suggest that you keep up to date professionally, and not do things that you are not competent to do. But you knew that already, didn’t you? And besides, those are both included in hint # 2. Be honest with yourself. Know what you can do, and do it. Know what you can’t do, and don’t do it. At the same time, don’t be paralyzed by fear. If you know how to do something, and are qualified to do it, don’t be afraid to do it. Fear is an amazing thing. It will keep you from doing all kinds of wonderful things. So feel the fear. And do what you know you need to do anyway.
Hint # 5 is a controversial one, and I will get hate mail over it, but here goes: Cancel your malpractice insurance. Or don’t take it out in the first place. Or just let it expire when it comes up for renewal. Because malpractice insurance makes you an easy target.
Let’s say, for example, that you have done all of the above. Nice, honest, open, and accessible. And let’s say you work for a hospital, and you’re called to float one day to another unit. There’s a patient in bad shape, on every 15 minute vitals, and she’s not your patient, but her nurse takes a break, and you assess the patient as a favor. And your name goes on the chart. An hour later, the patient codes and dies. Something goes wrong. Terribly wrong. The family sues. If their attorney is worth his salt, he will go over the patient records in great and careful detail. Often, the attorney will put down every name that occurs in the chart, on the assumption that all might have had something to do with the death.
You get called in for a deposition. Even if you had nothing to do with the problem. And you volunteer that, well, you have nothing to worry about, you have malpractice insurance. Suddenly, you notice that they have a great deal more interest in you.
Why? Because you have suddenly acquired big pockets. An insurance company is there with a potential for lots of money. Lots.
Now that is not quite as important for the person suing (the plaintiff) as it is for the lawyer. Because in most malpractice suits, the plaintiff puts up no money up front. Instead, the lawyer opts to take a percentage -- usually something like 30% -- of the money won in the lawsuit.
This serves several good purposes. The lawyer has a good reason to avoid frivolous lawsuits because she could very possibly make nothing at all (if the jury or judge finds that the nurse was not negligent), despite weeks or months of work. A plaintiff can also sue without having to put up money up front.
It also means that lawyers tend not to go after people who have very little money. And let’s imagine that you are like most people. You drive a several-years-old car. You own a house, but the banks owns a great deal more of it than you do. You have several credit cards with large balances. You live from paycheck to paycheck. In other words, you don’t have a lot of cash around. And let’s imagine that you did something really wrong, and get sued. Suppose the jury found for the plaintiff, and ordered you to pay them $500,000. Where are you going to get the money? If you’re like most people, you’re going to declare bankruptcy. Relatively easy, relatively fast, and you no longer owe $500,000. And the lawyer gets no money, or very little. Neither does the plaintiff. End of story.
Unless you have malpractice insurance. In which case, your insurance company will cut a check to the lawyer for $500,000, and the person suing will get about $350,000, more or less.
And how would you have avoided the time, hassle, and embarrassment of a malpractice trial? (If you live in a small city -- say, less than 250,000 people -- imagine how the local newspapers and TV stations will cover such a case. You will very likely be lumped in the public mind with nurses who poison their patients. Imagine yourself on the local news every day. Will you continue working at the same place? Probably not. Will you eventually move? Very likely). Easy. Don’t have malpractice insurance. Known in the industry as “going naked,” I have practiced this vice for years, because no lawyer is going to sue me. I am not worth it to them.
If you work for a facility or practice that requires you to have malpractice, fine. Then it’s a cost of doing business. If you are required as part of a contract to have malpractice insurance, then have it. Or if you are very wealthy, or have a high-profile family which would invite lawsuits, or if you have business assets in your own name, then OK. But I do not recommend that your average nurse have any malpractice insurance. Malpractice insurance is not worth it. Not because it costs too much, but because it is just too inviting to lawyers.
The one time it might be worth it is if the malpractice insurance also covered claims against you to your state or commonwealth board of nursing. In other words, if a claim is made against you there, the insurance company will defend you. But since I’m not particularly afraid of that, either. I choose to have no malpractice insurance. It’s a decision you have to make. But malpractice insurance is not the solution it is touted as being.
Nurses almost never get sued. Now, you would never know that from the grim ads for malpractice insurance. But it is a fact that even the ads tell you. Open your latest copy of AJN or Nursing or whatever journal you happen to have sitting around. Or do an internet search for malpractice insurance. How much do they say they are charging for malpractice insurance? If you are like 99% of all nurses, your coverage will be under $100 a year.
Insurance companies operate on what is called the law of large numbers. For instance, life insurance. If I take a random group of 37 year old women, an insurance company knows that a certain number of those women will die in the following year. They don’t know which ones will die. Nor do they know how they will die. But they know that a certain number will die during that year. And on that basis, they set the premiums for the life insurance for 37 year old women.
Likewise malpractice insurance. They know that -- statistically speaking -- you are not going to get sued this year. Or any year, for that matter. So, despite the fear tactics of the ads, begin with the realization that you are not going to get sued. Not now. Not ever.
In reality, a complaint against you at your state board of nursing is a much bigger risk. And the hints I’m giving here will help inoculate you against that possibility, too. All of these work. They will make you popular with patients, and loved by your co-workers. So read on.
Hint # 1: Be a nice person. If you want to make it “be a nice nurse,” that will work, too. But, be nice. Be pleasant to be around. Be agreeable. Be friendly. I’m not suggesting you be a doormat. Nor am I suggesting that you not stand up for yourself. But think of it this way: do you think a patient or family is going to sue you if you are a pleasant, kind person? Maybe. But they are far more likely to sue you if you are a jerk. Unpleasant. Obnoxious. Rude. So be nice.
Hint # 2: Be honest. Don’t make promises you can’t keep. And when you make a mistake, admit it. Promptly. The reason for this is that when we lie, we send off signals that something’s not right. And most people can spot that a mile away. See hint # 1: if you are honest and forthcoming with patients and family, they are more inclined to like you, and far less inclined to sue. A surgeon (true story) was operating and by some horrible accident, cut the aorta. The patient -- in what was a relatively uncomplicated surgery -- died rather quickly. The whole thing was over in minutes, and the surgeon just knew he was dead, too. At least in a professional sense. He went to a phone, called his attorney, and asked what he should do. “What do you look like now?,” the attorney asked him. He described himself: still in scrubs, and covered with blood. “Then go out there exactly as you are, and tell the family what happened. Go now. Admit that you made an awful mistake.” And he did just that. Was the family horrified? Of course. Did the surgeon make a mistake? You bet. And did they sue? No. Now they might have been the types who would not have sued anyway. But they certainly had grounds to sue. And sometimes simple honesty will defuse someone who wants to sue.
Hint # 3: Be open. Closely related to hint # 2. Make it a point of being available and easy to reach, both in a physical sense, and in a psychological sense. If something doesn’t make sense, say so. If you don’t understand something, tell the patient. And if -- by some amazing chance -- you don’t have all the answers, tell the patient that, and say that you will find someone who does have the answers. And do it. (See hint # 2).
Hint # 4: Be accessible. Don’t hide from your patients. Don’t avoid them. Again, I’m not suggesting that you be there for them 24 hours a day. But when you are there, be there. And if you have other patients to care for, invoke hint # 2: tell your patient honestly that you have other patients at the moment, but you will be back with them in 30 minutes. Or whatever.
I could suggest that you keep up to date professionally, and not do things that you are not competent to do. But you knew that already, didn’t you? And besides, those are both included in hint # 2. Be honest with yourself. Know what you can do, and do it. Know what you can’t do, and don’t do it. At the same time, don’t be paralyzed by fear. If you know how to do something, and are qualified to do it, don’t be afraid to do it. Fear is an amazing thing. It will keep you from doing all kinds of wonderful things. So feel the fear. And do what you know you need to do anyway.
Hint # 5 is a controversial one, and I will get hate mail over it, but here goes: Cancel your malpractice insurance. Or don’t take it out in the first place. Or just let it expire when it comes up for renewal. Because malpractice insurance makes you an easy target.
Let’s say, for example, that you have done all of the above. Nice, honest, open, and accessible. And let’s say you work for a hospital, and you’re called to float one day to another unit. There’s a patient in bad shape, on every 15 minute vitals, and she’s not your patient, but her nurse takes a break, and you assess the patient as a favor. And your name goes on the chart. An hour later, the patient codes and dies. Something goes wrong. Terribly wrong. The family sues. If their attorney is worth his salt, he will go over the patient records in great and careful detail. Often, the attorney will put down every name that occurs in the chart, on the assumption that all might have had something to do with the death.
You get called in for a deposition. Even if you had nothing to do with the problem. And you volunteer that, well, you have nothing to worry about, you have malpractice insurance. Suddenly, you notice that they have a great deal more interest in you.
Why? Because you have suddenly acquired big pockets. An insurance company is there with a potential for lots of money. Lots.
Now that is not quite as important for the person suing (the plaintiff) as it is for the lawyer. Because in most malpractice suits, the plaintiff puts up no money up front. Instead, the lawyer opts to take a percentage -- usually something like 30% -- of the money won in the lawsuit.
This serves several good purposes. The lawyer has a good reason to avoid frivolous lawsuits because she could very possibly make nothing at all (if the jury or judge finds that the nurse was not negligent), despite weeks or months of work. A plaintiff can also sue without having to put up money up front.
It also means that lawyers tend not to go after people who have very little money. And let’s imagine that you are like most people. You drive a several-years-old car. You own a house, but the banks owns a great deal more of it than you do. You have several credit cards with large balances. You live from paycheck to paycheck. In other words, you don’t have a lot of cash around. And let’s imagine that you did something really wrong, and get sued. Suppose the jury found for the plaintiff, and ordered you to pay them $500,000. Where are you going to get the money? If you’re like most people, you’re going to declare bankruptcy. Relatively easy, relatively fast, and you no longer owe $500,000. And the lawyer gets no money, or very little. Neither does the plaintiff. End of story.
Unless you have malpractice insurance. In which case, your insurance company will cut a check to the lawyer for $500,000, and the person suing will get about $350,000, more or less.
And how would you have avoided the time, hassle, and embarrassment of a malpractice trial? (If you live in a small city -- say, less than 250,000 people -- imagine how the local newspapers and TV stations will cover such a case. You will very likely be lumped in the public mind with nurses who poison their patients. Imagine yourself on the local news every day. Will you continue working at the same place? Probably not. Will you eventually move? Very likely). Easy. Don’t have malpractice insurance. Known in the industry as “going naked,” I have practiced this vice for years, because no lawyer is going to sue me. I am not worth it to them.
If you work for a facility or practice that requires you to have malpractice, fine. Then it’s a cost of doing business. If you are required as part of a contract to have malpractice insurance, then have it. Or if you are very wealthy, or have a high-profile family which would invite lawsuits, or if you have business assets in your own name, then OK. But I do not recommend that your average nurse have any malpractice insurance. Malpractice insurance is not worth it. Not because it costs too much, but because it is just too inviting to lawyers.
The one time it might be worth it is if the malpractice insurance also covered claims against you to your state or commonwealth board of nursing. In other words, if a claim is made against you there, the insurance company will defend you. But since I’m not particularly afraid of that, either. I choose to have no malpractice insurance. It’s a decision you have to make. But malpractice insurance is not the solution it is touted as being.
