2021 Winter GAPNA Newsletter Volume 40 Number 4

Liability Considerations as Nurse Practitioners' Scope of Practice Expands

The Future of Nursing 2020-2030: Charting a Path to Achieve Health Equity, released May 2021, calls for eliminating restrictions on the scope of practice of nurse practitioners (NPs). The authors of the report from the National Academies of Sciences, Engineering, and Medicine state that allowing NPs to practice to the full extent of their education and training will improve access to care and health equity.

NPs welcomed the endorsement of their abilities and, hopefully, full practice authority (FPA) in all 50 states and the District of Columbia will soon become a reality. However, as NPs' responsibilities shift closer to that of their physician counterparts, they must be aware of a corresponding higher risk of liability.

Current State

While some states have yet to endorse full scope of practice for NPs, research has proven the effectiveness of the role. NPs provide high-quality care in a variety of locations, from hospitals and skilled nursing facilities to patients' homes to offices and clinics, including retail clinics. In addition, NPs are often the primary providers caring for patients who have low income or are uninsured. 

Fortunately, more states are recognizing NPs' capabilities. As of January 2021, 23 states, the District of Columbia, Guam, and the Northern Mariana Islands allow FPA for NPs, which enables them to prescribe medication, diagnose patients, and provide treatment without physician oversight. In the remaining states, one or more elements of NPs' practice is limited or restricted, requiring physician oversight.

Scope of Practice Allegations

As NP practice authority has expanded, so have lawsuits related to scope of practice. Although still a relatively small percentage of closed professional liability claims, that percentage jumped from 0.5% in 2012 to 4.2% in 2017. According to the CNA and NSO Nurse Practitioner Claim Report: 4th Edition , the average paid indemnity in 2017 was $146,250 for this type of closed claim.

Most NPs understand their legal risks if, for example, they improperly prescribe medication or perform a procedure and a patient sustains an injury. However, they may be surprised to learn they also can be held accountable by a State Board of Nursing (SBON) if, for example, an injury occurs when they fail to advocate for a patient's safety. For instance, failing to report a surgeon who is under the influence of drugs and alcohol could result in SBON action against an NP's license if the patient is injured.

When it comes to complaints filed against NPs with the SBON, CNA and NSO's 2017 report found most allegations against NPs were related to medication management (27.1%), scope of practice (22.1%), and treatment and care management (13.3%). The most frequent type of scope of practice allegation in SBON matters was scope of practice and standards of care violations (60.3% of these matters). Most often, this type of complaint was related to prescribing practices that were outside the scope of practice for NPs. Although most complaints tend to be closed with no action, actions the SBON may take in these matters against NPs include fines, required continuing education, and a letter of concern.

More Risks

The cost of claims against NPs is rising. For example, the CNA and NSO Nurse Practitioner Claim Report found the percentage of closed claims that resolved for between $100,000 and $240,999 increased from 20% in the 2012 report dataset to 27% in the 2017 report dataset. The overall average paid indemnity for closed claims involving NPs was $240,471. In 2015, average indemnity payment for claims against physicians was $365,503, according to data from the American Medical Association (AMA). Similarly, a 2018 report by CRICO Strategies found average indemnity payment for claims against physicians that closed from 2007 to 2016 was approximately $330,000.

The CNA and NSO Nurse Practitioner Claim Report notes the most frequent type of allegation against NPs is related to diagnosis, which composed 32.8% of closed claims, followed by medication management (29.4%), and treatment and care management (22.3%).

As NP practice becomes closer to that of physicians, it can be helpful to understand physician liability, so NPs can anticipate likely areas of liability and see commonalities between the two groups. For example, according to the Medscape Malpractice Report 2019, the most common allegations against physicians were failure to diagnose or a delay in diagnosis (33%), complications from treatment or surgery (29%), poor outcome or disease progressing (26%), and failure to treat or delayed treatment (18%). The report from CRICO Strategies found some of the most common allegations against physicians were related to surgery (28%), medical treatment (24%), which often involved improper management of ongoing care or improper performance of a procedure, and diagnosis (21%), including missed or delayed diagnosis.

Impact of Specialty, Practice Location

The risk of liability NPs face varies by specialty and practice setting. Neonatal, obstetrics, and emergency medicine have the highest average paid indemnities, with many neonatal and obstetrics closed claims falling in the mid-to-high six-figure range, according to the CNA/NSO report. Four specialties account for 80.9% of all claims: adult medical/primary care, family practice, behavioral health, and gerontology. This variation in specialty also occurs with physicians. According to the Medscape Malpractice Report 2019, the top specialties for physician lawsuits are general surgery, urology, otolaryngology, OB/GYN and women's health, and specialized radiology. An AMA report found that in 2016, physicians practicing in general surgery, obstetrics and gynecology, or emergency medicine had the highest number of liability claims.

A MedPro Group report found diagnosis-related allegations, medical treatments and procedures, and medication-related were the most common allegations (and those with the highest paid claims) against physicians practicing in family medicine, while the most common for those in obstetrics were performance of surgery, management of surgical patients, and diagnosis-related.

NPs in a physician office practice, their own office practice, or an aging services facility are most likely to have claims filed. The percentage of claims these NP practice settings are responsible for is increasing. In 2012, NPs working in an NP office practice accounted for 7% of claims, but in 2017 it rose to 16.4%; the average paid indemnity for this setting also increased significantly ($45,750 in 2012 to $158,611 in 2017). An office practice is also the most common practice setting related to SBON licensure complaints against NPs. According to the AMA data from 2016, physicians in solo practice are more likely to have claims. 

Avoiding Litigation

NPs can take several steps to avoid litigation related to scope of practice (see below). These steps will become increasingly important as NPs gain FPA and continue to provide quality care for many types of patients in a wide variety of settings.

Reducing Liability

  • NPs can use several strategies to reduce possible legal action related to scope of practice:
  • Review the state nurse practice act every year. Read the act for each state you are licensed in because differences can exist.
  • Review your job description or contract annually. It should reflect your actual practice.
  • Know the organization's policies and procedures related to scope of practice and review them annually. Key items include documentation and what steps should be taken if you are asked to do something outside of your expertise or scope of practice.
  • Adhere to any required physician collaborative or supervisory agreements. Review and renew these agreements every year.
  • Collaborate with physicians as required by the state practice act and any agreements and regulations.
  • Consult with other providers based on patient needs.
  • Regularly review state prescribing laws and limitations, especially as they relate to minors. Know the types of medications, if any, that you can prescribe. Failing to do so puts your license at risk and leaves you vulnerable to legal action. If you are unsure if something is within your scope, check with the SBON and specialty professional association.

Sources and Resources References

Disclaimer: The information offered within this article reflects general principles only and does not constitute legal advice by Nurses Service Organization (NSO) or establish appropriate or acceptable standards of professional conduct. Readers should consult with an attorney if they have specific concerns. Neither Affinity Insurance Services, Inc. nor NSO assumes any liability for how this information is applied in practice or for the accuracy of this information.

This risk management information was provided by Nurses Service Organization (NSO), the nation's largest provider of nurses' professional liability insurance coverage for over 550,000 nurses since 1976. The individual professional liability insurance policy administered through NSO is underwritten by American Casualty Company of Reading, Pennsylvania, a CNA company. Reproduction without permission of the publisher is prohibited. For questions, send an e-mail to service@nso.com or call 1-800-247-1500. www.nso.com.