Nurses: You Must Insure Your Legal Protection
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
I have news for you: You need professional liability insurance! But you only need the kind that includes professional liability insurance coverage, and in the amount of $25,000 or more.
Are you a traveling nurse? Are you a nurse who works for a hospital or nursing home? Are you a nurse who works in a doctor’s office? Are you the nurse who is going to tell me: “I think I have insurance coverage through my employer?”–WRONG! Not professional license complaint defense insurance. You need to personally purchase your nursing professional liability insurance containing professional license defense coverage. If you have yet to purchase this, you don’t have this.
The Insurance Coverage You Really Need.
Though many nurses pursue a career in nursing hoping that they will never face a complaint or disciplinary charges, any event not within a nurse’s control can lead to an investigation or administrative action. Nurses need to ensure they are covered with appropriate insurance if this ever occurs. In our opinion, based on decades of representing nurses, the primary reason that a nurse should purchase a professional liability insurance policy is to obtain coverage for the legal defense against complaints of licensing and disciplinary action commenced against a nurse.
License defense coverage pays the legal fees and costs associated with defending a nurse when an investigation is initiated that may result in action against her nursing license or disciplinary action against the nurse. Coverage is usually available when the nurse receives written notice that an investigation by a state agency has been initiated. It will also cover formal complaints against the nurse, informal hearings before the Board of Nursing, and formal administrative hearings before an administrative law judge. Such investigations, complaints, and administrative action may be opened based on events, including patient complaints, hotline calls, Code 15 reports, nursing home, and home health agency surveys, abuse investigations by the Department of Children and Families (DCF), newspaper articles, copies of lawsuits, and many other sources. It is far more likely that a nurse will be involved in one of these types of actions than being sued for nursing negligence.
You Want Insurance that Meets These Criteria.
Good professional liability policies, which provide coverage for licensure defense, will usually also compensate the nurse for her out-of-pocket expenses (travel, postage, etc.) that she incurs, as well as lost wages because of working time missed for hearings, depositions, etc. However, the maximum coverage available under such policies for licensure defense is usually limited to approximately $25,000. This amount will usually be sufficient to provide for most of the legal fees and costs involved in the defense of such a case.
Crucial to Check and Make Sure That Claims For Insurance Coverage Do Not Have to Be Linked to Malpractice Complaints.
Many professional liability insurance companies try to get off the hook on covering nurses on complaints against the nurse’s license, relying on provisions of the insurance policy that state that any coverage must be based on a claim of nursing malpractice. AVOID THESE INSURERS AT ALL COSTS. Most complaints against nurses’ licenses do not involve a claim made for nursing malpractice. To be sure, ask your insurer in writing ahead of time and get the answer in writing. By the way, you never have this problem with Nurses Service Organization (NSO) Insurance or CPH & Associates Insurance.
Who Files the Most Complaints Against Nurse’s Licenses? Employers.
It has been our experience that most complaints against nurses’ licenses are made by their former employer and/or former recruiting company. Think about it, is your employer going to pay for insurance that covers you and provides you a defense in the event that the employer files a complaint against your license. The answer is “NO” regardless of what you think.
You are on your own. Buy your own insurance. It is very cheap and it will be there when you need it.
Even if the nurse is still employed (unlikely in the vast majority of cases) many employers will not provide legal representation if the matter involves licensing or disciplinary action against the nurse. This could force the nurse to fund all the fees and costs associated with her defense. However, some larger corporations with sound risk management programs will provide the nurses with legal representation, but this is a rare exception.
For Traveling Nurses and Agency Nurses, Your Own Personal Insurance is a Must.
Suppose you are an agency nurse, a home health agency nurse, a nursing home nurse, an independent duty nurse, or a large hospital chain does not employ you. In that case, you should consider nursing liability insurance mandatory. Complaints of negligence against nurses working in these positions are far more likely. This may be because of the high turnover of nurses in some healthcare facilities (such as nursing homes), or because the nurse is no longer employed at the facility when the investigation begins (for example, in the case of an agency nurse). Additionally, agency nurses may only work in a facility for a short period, making them less familiar with the facility’s policies and procedures and not a part of the permanent team of nurses who may have established relationships and are more likely to cover for each other.
As previously mentioned, several different proceedings may be covered by the licensure defense coverage provided in professional liability insurance. Defense of accusations of HIPAA privacy breaches is the most used one, followed closely by deposition representation.
The Cost of Professional Liability Coverage is Minimal.
Nurses can purchase liability coverage rather inexpensively. For example, an excellent insurance policy providing coverage for nurses is available through the Nurses Service Organization (NSO) Insurance for less than $100 per year. CPH & Associates Insurance is also inexpensive and competitive. Professional liability coverage provided by this type of insurance represents a bargain at these rates.
Focusing on Protecting the Nurse’s Individual Interests.
Perhaps most importantly, the nurse should have an attorney focusing only on her interests in defending her against any negligence or licensing complaint. A nurse with her own professional liability insurance coverage will be able to hire a separate, independent attorney, and often, the insurer will allow her to pick her attorney.
Important Considerations When Purchasing Liability Insurance Protection.
First and foremost is to be sure that a claim for defense of your professional license is covered by your insurance even when there is no separate claim or complaint for damages for malpractice or negligence. Ask your broker or insurer to give you written acknowledgment of this, if your policy is unclear.
A close second is the amount of coverage for license defense that the insurer provides. $25,000 is the absolute minimum and may not be enough. Look for $35,000 or $50,000 coverage or buy two different policies from two different companies.
Third is how broad the coverage is and whether it also covers other types of administrative complaints and proceedings that might be brought against you such as discrimination complaints, HIPAA breach of privacy complaints, certification board complaints, and other similar proceedings.
Some professional liability insurers have a “broad form” of coverage which may provide legal defense for the nurse in almost any type of administrative action. This might include, for example, the defense of a discrimination complaint filed against the nurse with the Florida Commission on Human Relations (FCHR) or the U.S. Equal Employment Opportunity Commission and for Medicare and Medicaid complaints.
Other companies limit coverage to only actions that may result in disciplinary action against the nurse’s license. The nurse should always attempt to get the broadest coverage available for disciplinary defense and licensure defense coverage.
Additionally, the nurse should inquire whether she will be allowed to select her own attorney. Many insurance companies contract certain law firms to provide legal services on their cases for a reduced fee. The insurance company may require you to use one of its own hired attorneys or even one of its in-house attorneys, which it employs directly.
Given the limited number of attorneys with experience handling nursing law issues and malpractice cases, the nurse should attempt to obtain coverage through a company that allows her to choose her attorney.
In Our Opinion, License Defense Coverage Is the Most Important Reason to Purchase Insurance.
The most important reason to purchase professional liability insurance is the licensure defense coverage. A nurse does not want to risk losing her nursing license because she was unsuccessful at defending an investigation complaint against her license or did not have the resources to do so. Since there are far more complaints filed each year against nurses’ licenses than there are nursing malpractice lawsuits filed, it is far more likely that a working nurse will need legal defense of a licensure complaint investigation.
Contact Health Law Attorneys Experienced in Representing Nurses.
The Health Law Firm’s attorneys routinely represent nurses and nurse practitioners in Department of Health (DOH) investigations, in appearances before the Board of Nursing (BON) in licensing matters, in formal and informal administrative hearings, and in many other legal matters. We represent nurses across the U.S., and throughout Florida.
To contact The Health Law Firm please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000 Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030.
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 George F. Indest III. All rights reserved.
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law