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Professional Liability Claim Severity on the Rise for Nurses

Posted on: March 7th, 2016 by admin No Comments

A recent report published by the Nurses Service Organization (NSO)—an insurer of nursing professional liability and a division of CNA—finds that the severity of medical liability claims against nurses is on the rise.

The report, titled Nurse Professional Liability Exposures: 2015 Claim Report, analyzed 549 reported adverse incidents and claims involving a registered nurse, licensed practical nurse or licensed vocational nurse that closed between Jan 1, 2010, and Dec. 31, 2014, with an indemnity payment of $10,000 or greater. When possible, the authors compare the 2015 dataset with the NSO’s last report, which detailed adverse incidents and claims between Jan. 1, 2006, and Dec. 31, 2010, which was published in 2011, in order to see how the average paid indemnity amounts associated with various claim characteristics are changing over time and better identify patterns in nurse claim activity as well as litigation.

Of the 549 claims analyzed in the Nurse Professional Liability Exposures: 2015 Claim Report, 88.5 percent involved a registered nurse and 11.5 percent involved a licensed practical nurse or licensed vocational nurse. The total indemnity paid on the claims was $90,357,533.

The average paid indemnity for the 2015 dataset was $164,586, up almost 2 percent when compared to the average paid indemnity of $161,501 in the 2011 report.

For both the 2015 and 2011 datasets, the highest percentage of closed claims had a paid indemnity between $10,000 and $99,999—58.8 percent in the 2015 report and 56.2 percent in the 2011 report.

According to the 2015 report, the nurse specialties that experienced the highest severity are neurology ($538,500 average paid indemnity) and obstetrics ($397,064 average paid indemnity). The locations with the highest distribution of closed claims, accounting for 58.5 percent of all closed claims, were hospital-inpatient medical, aging services, patient’s home and hospital-inpatient surgical-service related. These findings were consistent with those from the 2011 claim report.

Of note is that the percentage of closed claims involving medication administration has declined by approximately half since the 2011 report, but the claim severity has almost doubled in the last five years.

“The decrease in claim frequency with regard to medication administration correlates with advancements in error-reduction technologies, such as bar-coding of medications and computerized order entry,” explained Jennifer Flynn, NSO manager of Healthcare Risk Management, during a Feb. 25 webinar that examined data from the Nurse Professional Liability Exposures: 2015 Claim Report. “While those technologies helped reduce the number of claims, they have increased the severity of paid claims because the offending nurse had to override those technologies in order to cause the adverse outcome. There is simply no way to defend a nurse who works around existing safeguards.”

The report’s closed claims with an indemnity of at least $1 million most frequently involved treatment and care, such as failure to comply with facility policies or operate within the nurse’s appropriate scope of practice.


Reprinted courtesy of Medical Liability Monitor, March 2016 Vol 41, No 3.


RRGs Report Financially Stable Results Through Third Quarter 2015

Posted on: February 22nd, 2016 by admin No Comments

By Douglas A. Powell

Click here to view this article.


Five Key Focus Areas for Healthcare RRGs

Posted on: February 22nd, 2016 by admin No Comments

By Michelle Foster Earle

Click here to view this article.


MyNORCAL App Now Available to NORCAL Policyholders

Posted on: October 2nd, 2015 by admin No Comments

NORCAL’s new mobile app lets NORCAL policyholders access CME activities on the go and earn CME credits anytime, anywhere.*

Policyholders may even be eligible to receive a risk management discount on their insurance premium by participating in NORCAL Mutual CME activities. This free app is now available in the Apple App Store and Google Play.

The MyNORCAL app has all the award-winning Claims Rx articles available in MyAccount, and automatically syncs policyholder activity across their devices.

With the MyNORCAL app policyholders can:

• Read current and back issues of Claims Rx
• Take short quizzes to earn CME credits
• Review completed CME activities
• Print or email CME certificates or transcripts

In the coming weeks, NORCAL will be mailing a letter and promotional flier to policyholders who are eligible for the risk management discount but who have not yet completed their CME to get the discount. They are also sending an email to all policyholders announcing the availability of the app.

*Requires a NORCAL Mutual MyAccount login. Policyholders can contact NORCAL Mutual Customer Service at 844.4NORCAL to create an account.


An Introduction to Cornerstone

Posted on: June 1st, 2015 by admin No Comments

Interviews with President Chris Zuccarini, Vice President of Operations Regina Wintz, and Vice President Scott Palde.


MCARE Refunds

Posted on: April 10th, 2015 by admin No Comments

Current Status of the Mcare Refund program

The claimed refund process is underway. All physicians are being refunded a percentage of their 2009, 2010, 2011, 2012 and 2014 (not 2013) assessments. The first refund letter notices will be sent in the fall of 2015 and the first refund checks will be sent out in early 2016.

Claims may be made by persons or entities that paid an assessment on behalf of a physician or other health care provider and seek to have Mcare pay the refund to them instead of the individual health care provider. An excel spreadsheet is needed to make a claim. Individual physicians do not need to make a “claim” or to ask for an excel spreadsheet to be paid the refund for their own coverage.

Our office will be reaching out to all of our PA insureds with instructions for claiming your MCARE refunds. Please visit www.mcarerefund.org for additional details or give us a call at (800)508-1355 with any questions.


2015 MCARE

Posted on: October 22nd, 2014 by admin No Comments

On October 16, the Corbett Administration announced it had reached a settlement with the Hospital Association of PA and the PA Medical Society regarding a 2009 dispute on the transfer of money from the Mcare Fund to the General Fund.  The $200 million settlement includes a $139 million refund to providers and a $61 million reduction in the 2015 Mcare assessment.

We will be in touch with our PA insureds once more information is available on how MCARE will be managing the refunds.


8 Malpractice Dangers in Your EHR : Copying and Pasting Text: Tempting, but Dangerous

Posted on: September 2nd, 2014 by admin No Comments

Neil Chesanow

EHRs Are Full of Legal Risks

Many physicians are so concerned about being sued for malpractice that they routinely order unnecessary tests and procedures to practice defensive medicine. And yet, when it comes to legal risks in using their electronic health records (EHRs), their concern is often nonexistent, experts assert.

Many doctors use their EHRs in nonstandard ways, without considering how this may affect them in a liability suit. Or they gloss over other aspects of using an EHR.

“Every aspect of EHR selection, implementation, and use may be examined in the course of medical malpractice discovery to uncover the source of the incident, or undermine the records that are being presented in defense of the malpractice claim,” warns Ronald B. Sterling, CPA, MBA, an EHR expert in Silver Spring, Maryland, and author of Keys to EMR Success.

“Anything could be a malpractice issue,” Sterling says, “from the product itself, to the way it was set up, to how you’ve been using it.”

Are your EHR practices setting you up for a rude awakening should a patient sue you for malpractice? Let’s take a look.

Who’s to Blame if Your EHR Doesn’t Work Properly?

Sometimes EHRs don’t function properly owing to design flaws or bugs. For example, data you enter into the opening screen may fail to populate the fields of other screens correctly, or authorized software upgrades may alter the presentation of historical data that you’ve entered, Sterling says.

If problems related to bugs in a faulty product figure into a malpractice suit, who is ultimately responsible for the EHR’s performance?

To understand who is liable for an EHR’s bugs and flaws, Sterling likes to use the analogy of purchasing a hammer to build a house. You can ask the salesperson for advice on how to use the hammer, he says, but if the house then comes out lopsided, whose fault is that?

“The Health Insurance Portability and Accountability Act (HIPAA) specifically states that the healthcare provider is the covered entity responsible for maintaining the integrity of the patient’s medical record — not the EHR vendor, not the consultant, not the systems integrator,” he says.

“A doctor can be held liable because most vendors’ contracts essentially say, ‘We do not practice medicine; it is up to the physician to make sure this EHR is being used correctly.’ Practices must understand what they’re using and verify that the system is appropriately set up to document the care they provide.”

If you find bugs or flaws, contact the vendor and insist that the glitches be fixed, Sterling advises. Vendors may be more responsive than many doctors assume. And document each attempt to get the vendor to fix buggy software, so that you have a record of trying to remedy the situation.

Look at it from the perspective of a plaintiff attorney. If you didn’t know about the flaw, why not? Didn’t you sign a contact saying that you understood how the EHR worked? If you did know about the flaw and made no attempt to get it fixed, then, it could be argued, you knowingly jeopardized your patients.

Copying and Pasting Text: Tempting, but Dangerous

Many doctors complain that an EHR slows them down. To regain some of that lost time, they may use shortcuts, such as cutting and pasting lengthy patient histories from one electronic chart to another. How might this affect a malpractice case against you?

Sharona Hoffman, JD, Professor of Law & Bioethics at Case Western Reserve University School of Law in Cleveland, Ohio, and an expert on the potential pitfalls of EHR use in liability suits, says that copying and pasting information from one electronic record to another is among the worst things you can do, clinically as well as legally. “It seems to be happening at a fever pitch today,” she laments.

“You should see the five-page garbage I get from other MDs’ EHRs when I request patient records,” one doctor told Medscape. “They are nothing but electronic copy-and-paste junk and add nothing to patient care.”One problem is that incorrect or outdated patient information may be copied from one record to another, which can undermine a malpractice defense. Another is that copied and pasted information can make patient histories so lengthy that it can be difficult for the doctor, or other clinicians, to quickly locate relevant facts.

In addition, large blocks of text repeatedly copied in the EHR are easily revealed by a plaintiff attorney in the discovery phase of a malpractice suit. It suggests that you were not really engaged in patient care and may cast doubt on anything else you may say in your defense, Hoffman points out.

“Case law establishes that physicians can be held liable for harm that could have been averted had they more carefully studied their patients’ medical records,” Hoffman wrote in the Berkeley Technology Law Journal. For example, Short v. United States involved a patient whose doctor failed to diagnose his prostate cancer in time for it to be cured. The court held that under Vermont law, the physician violated the standard of care by failing to review the patient’s past visit notes, which would have elucidated the nature of his problem.”

For all the problems it can cause, cutting and pasting just isn’t worth it, Hoffman contends. Many experts urge doctors to disable the feature.

Passwords Can Be a Problem in Court

Many physicians feel that the security requirements recommended to protect patient records are too onerous. Password sharing is a case in point. Especially in a small practice, where staffers are like family, forcing everyone to use a separate password, and changing passwords at regular intervals, may seem like overkill. Is it a good idea for everyone to use the same password?

The answer is no. Steven Waldren, MD, senior strategist at the American Academy of Family Physicians, recently told Medscape that rather than being under the radar, small physician practices are among the most vulnerable to hackers and identity thieves.

Employees may be unwitting accomplices by using a password-protected EHR computer to download videos or music during lunch or after hours, creating an open door for hackers — “a rich new environment for cyber criminals to exploit,” according to the FBI. You can learn who is doing this if each staffer has a separate password. If everyone uses the same password, lots of luck.

“Disclosure of psychiatric or sexual histories or other sensitive information … leads to profound embarrassment, ruined careers, or loss of professional and personal opportunities,” Sharona Hoffman writes. “These, in turn, can generate litigation against those responsible for security breaches.”

Last April, Medscape reported that physicians can expect criminals to increasingly target their EHRs for patient information that they can sell on the black market for $50 per chart. Identity thieves can use patient data to obtain free medical care, including prescription drugs, or open new credit accounts. They also can use pilfered information about a physician to file bogus insurance claims.

HIPAA mandates that you notify affected patients following the discovery of a breach of unsecured protected health information. “If the covered entity has insufficient or out-of-date contact information for 10 or more individuals, the covered entity must provide substitute individual notice by either posting the notice on the home page of its Website for at least 90 days or by providing the notice in major print or broadcast media where the affected individuals likely reside,” the law says. If the breach affects more than 500 residents, you must send a press release to appropriate media outlets serving the protected area.

Keep in mind that every entry, correction, or emendation to patient information is recorded in the EHR, as well as the time and date it was made and who made it. If a password registered to you is used by several staffers, it may make it seem as though you changed patient records in ways that you didn’t authorize or even know about — until a plaintiff attorney raises the issue in discovery.

Ignore Clinical Decision Support at Your Peril

Clinical decision support (CDS) — which includes drug/drug and drug-allergy alerts — is an EHR’s most annoying feature, as many doctors see it. They bridle at a computer telling them how to practice medicine, and the unending stream of alerts, many unnecessary, can be irritating.

As a result, many doctors click through CDS recommendations and alerts with barely a glance, override them, set higher thresholds that trigger alerts to reduce their number, or don’t install the CDS module for their EHRs in the first place.

An EHR records how much time you spend reading alerts. If it’s virtually nil, and something happens to a patient as a result, you may have a problem in court, Sterling says.

Even if you’re a hospital employee and the hospital turns off some drug alerts, a plaintiff attorney may show that one of those alerts might have prevented injury to a client and, in discovery, may ask why such a valuable tool isn’t being used, Sharona Hoffman says. You may think, “Not my problem.” But think again. Both the hospital and an individual physician may be jointly sued.

Pitfalls of Using an EHR in Nonstandard Ways

Many EHRs are touted as being highly customizable, and many doctors purchase an EHR with the idea of tinkering and tweaking to get it just right for their practices. And most EHRs can indeed be customized — if you know what you’re doing. If you don’t, and you get sued, it could harm you in court.

“‘Customization’ means different things, depending on the product you’re using,” says Sterling, the EHR consultant. “Some products actually allow me to go in and change the nature of the product so it isn’t doing what it was supposed to do as advertised, and/or I use the product in a nonstandard way, so it doesn’t do what it’s supposed to be doing. If you’re not using it in a way that maintains patient information in a reliable way, you could run into a problem.”

Say you bypass the way the EHR is designed to have information entered, he offers by way of example. “Instead of checking off a box that says the patient is allergic to penicillin, I put that into a note,” he says. “The system’s not going to be smart enough to figure out the note to know that the patient’s allergic to penicillin. If the patient has a serious emergent problem, and he needs to see me in three months so I can check on the status of the problem, if I type that into the note, it’s not something the system will track. It’s not something the system will manage, and therefore it’s not information that’s going to be used.”

“If something bad happened, and I were being investigated for a claim of medical professional liability, plaintiff attorneys are going to look at it and say, ‘Were you using the system as it was intended?'” Sterling elaborates. “If I say, ‘I don’t fill out this form that came with the system; I have my own form,’ the lawyers will say, ‘Oh, really? Well, did you know that your form isn’t used by the system to figure out whether you do CDS rules, which can trigger care items? The patient should have had this, or the patient should have had that.'”

“If you don’t check the right boxes to trigger those events, they’re not going to happen,” Sterling continues. “Therefore, the system’s not going to inform you that you need to check on this patient’s A1c level because he’s diabetic or check on that patient’s glaucoma because she has an eye pressure problem. If used in a nonstandard way, the system isn’t smart enough to figure how to trigger these alerts, and therefore you may not have been staying on top of patient care.”

“The problem is not doing the customization,” he adds. “The problem is doing the customization so that it works. Everyone sits there and says, ‘Oh, it’s so easy to do.’ But sometimes it’s not so easy.”

Are EHRs Changing the Standard of Care?

A key malpractice issue is whether EHR use, particularly in conjunction with meeting meaningful use criteria issued by the Centers for Medicare & Medicaid Services (CMS), is changing the standard of care.

“In the meaningful use measures, we have an obligation to check the drug/drug and drug-allergy interaction issues of a patient,” Sterling observes. “If we don’t check those interactions, or if we use the system in such a way that the interactions are not properly checked, or we don’t do anything with those interactions — well, we now have close to 500,000 physicians in the United States who are doing drug/drug and drug-allergy interaction checking. So the question is: If we have 500,000 physicians in the United States doing this because of meaningful use, did that become a de facto standard of care?”

“We’re really talking about two different issues here,” Sterling reflects. “One is recognizing the change in standard of care that’s being driven by the use of EHRs, and second is using the EHRs in a way that is going to be helpful to meet that standard of care.

“If I use my EHR in a way to meet that standard of care, I’m going to be fine. But if I don’t use it in a way to meet that standard of care, then I’m going to open myself up to all kinds of problems — and in many cases, these are going to be systemic problems,” he says.

Whether the minority of doctors who still use paper charts will encounter standard-of-care issues if they get sued remains an open question. However, it is quite possible, experts believe, that a doctor’s failure to use an EHR, or his failure to document by hand his review of the same information found in an EHR’s CDS alerts and guidelines, could be grounds for a charge of substandard care.

Legal Consequences of Input Errors

Primary care physicians are chronically pressed for time. Studies show that entering information into an EHR takes longer than it did with paper charts. As a result, many doctors feel compelled to enter data into the EHR as speedily as possible, often with the patient in the room. That’s how costly mistakes are made.

Sloppy documentation takes many forms. When transferring paper records to the EHR, there may not be a place in the EHR form for every notation in a paper chart. If some information fails to be transferred, a plaintiff attorney may ask, “Did the doctor have the full picture of the patient’s condition?” Sterling says. In discovery, if the paper record is still available, it may be compared with the history now in the EHR. If some information was omitted, it casts doubt on how well you could have cared for the patients without playing with a full deck.

Some doctors don’t sign their notes, Sterling says, or they check boxes indicating the services performed without providing supporting documentation. As a result, a plaintiff attorney may ask, “Did you actually provide the services in the note to the patient?”

One doctor inadvertently distributed clinical notes that included inappropriate findings, such as test results that had nothing to do with the patient’s condition, Sterling recalls. When the note was challenged in discovery, it cast doubt on the accuracy of the entire patient record.

“Greater access to existing diagnostic data and economic pressures to avoid duplicating tests could lead to errors from inappropriate reliance on outdated or inadequate prior testing,” Hoffman writes. “Mistakes may also result from data entry errors,” she adds. “Clinicians may be faulted for ignoring critical prompts and alerts from decision support features.”

Hoffman also points out that the use of autofill technology may exacerbate the problem of EHR inaccuracies by completing template fields when the doctor types in a letter or two. This may speed things along, but the information may be incorrect, and doctors, in their haste, may not check.

Hoffman cites a study of 60 patient records with 1891 notes from the Department of Veterans Affairs’ EHR, generally regarded as one of the best. It found that 84% of the notes contained at least one documentation error, and there were an average of 7.8 documentation mistakes per patient. “If such notes are not carefully edited,” she writes, “old symptoms, vital signs, or test results can appear to be current, and such mistakes can create new threats to patient safety and liability exposure for clinicians.”

Legally risky input errors need not be inadvertent — just nonstandard. The journal Health Data Management reports that a family practice in Colorado found that its EHR was randomly deleting such words as “not” when the records were printed and shared with other physicians. As it turned out, the clinician entering the note was an old-fashioned typist who put two spaces rather than one after a period — once a standard practice. The extra space deleted the first word in the next sentence.

Making matters worse, the vendor knew about the problem and kept mum. Had this come out in discovery, it isn’t clear who would be at fault: the vendor, the clinician, or both, experts say. But legally murky situations such as this may prompt malpractice insurers to settle a case rather than risk a bad verdict in court.

Turning Patients Into Litigants

Many doctors complain that reviewing and entering information into the EHR means that patients don’t get much eye contact during their visits. This depersonalization can have legal consequences.

“Physicians who have fewer minutes to speak with and examine patients may provide lower-quality care,” Sharona Hoffman writes. “In addition, patients may resent the doctor’s focus on the computer and apparent inattention to them and be more apt to sue if they are dissatisfied with their health outcomes.”

“This concern is not theoretical,” she adds. “Multiple studies have shown that patients most often decide to sue when they are displeased with the quality of the physician/patient relationship and feel they cannot communicate well with their doctors.”

Similarly, communicating with some patients by secure email — a core objective of meaningful use stage 2 requirements — can backfire. Even though patients tell surveyors that they like doctors who do secure email, if you don’t respond in a timely fashion — particularly if it’s an emergency — or if the tone of your email is curt and unfriendly, or too friendly and informal, it can leave patients miffed.

“There are concerns with every single EHR feature, with every single capacity, and you need to think through them all and implement responsible stewardship,” Hoffman advises. “So if you’re going to communicate with patients by email, don’t communicate in the same way you would with your best friend, with incomplete sentences and not a lot of thought put into it. Everything requires careful thought.”

8 Malpractice Dangers in Your EHR. Medscape. Aug 26, 2014.


Coverys Expands its Regulatory Liability and Information Security and Privacy Coverage to Facilities and Offers Additional Limits

Posted on: January 9th, 2014 by admin No Comments

Coverys is pleased to announce the expansion of its Coverys Protection Plus® Regulatory Liability and Information Security and Privacy Coverage to facilities.  Coverys Protection Plus now provides facilities with the protection they need in the event of a regulatory issue or data security breach – risks that can lead to extensive, reputation-damaging claims. Coverys Protection Plus is Coverys’ way of offering extra coverage above and beyond its traditional policies. Facilities now receive this coverage without extra charge for basic limits and also have the option of purchasing additional limits with flexible deductibles. Further, individual, corporation and group policies also have the option of purchasing additional limits with flexible deductibles.

Coverys Protection Plus’ Regulatory Liability and Information Security and Privacy Coverage includes services such as experienced attorneys and comprehensive support throughout the process of a claim. By including this coverage in policies, Coverys hopes to help policyholders and facilities focus on providing the best care possible to patients by alleviating some of the burden and stress of such risks, and claims that may result.

Read the full press release here.


In Pennsylvania, New Legislation Allows Doctors to Apologize

Posted on: November 13th, 2013 by admin No Comments

Thanks in large part to physician advocacy, on Oct. 25, 2013, Gov. Tom Corbett signed into law legislation preventing most physician apologies from being used against them in a medical liability lawsuit.

The Pennsylvania Medical Society (PAMED) thanks the supporters who sent more than 1,300 messages to the state legislature in support of this legislation over the course of the two-year campaign.

This legislation (now Act 79, formerly Senate Bill 379) will protect most physician apologies except for admissions of negligence, which would remain admissible. It removes a barrier to open communication between physicians and patients after a poor outcome, which is essential to maintaining the physician-patient relationship.

It does not take any legal right away from injured patients or impair their ability to file a personal injury action against a health care provider should they choose to do so. It also does not limit the amount that a patient can recover in such an action.

Thank Pennsylvania’s legislators for unanimously voting yes on this bill.

In particular, PAMED appreciates the work of the bill’s prime sponsor, Sen. Pat Vance, and the sponsor of the House version, Rep. Keith Gillespie. Smoothing the way in both chambers were the majority leaders, Rep. Mike Turzai and Sen. Dominic Pileggi. PAMED also thanks Gov. Tom Corbett for including this as part of his Healthy PA plan announced earlier this fall and his quick action in signing the bill.

“As physicians, it is part of our job—part of our moral and ethical responsibility—to respond to patients and families when there are less than favorable outcomes,” said C. Richard Schott, MD, president of PAMED, in a statement.

“Medicine is not an exact science, and outcomes may be unpredictable. Benevolent gestures are always appropriate and physicians should not have to fear giving them,” said Dr. Schott. “With SB 379 passing, doctors will feel more comfortable doing so, knowing that an apology is inadmissible unless their expression admits fault.”

“Patients and their families just want a health care provider to speak with about what occurred and this allows that conversation, but does not preclude a lawsuit from being filed,” said Sen. Vance.

“We are working toward commonsense legal reforms aimed at bringing fairness, balance, and stability to Pennsylvania’s civil justice system and benevolent gesture is a part of it,” said Rep. Turzai.

SB 379 unanimously passed the state Senate on June 25, 2013, and the state House on Oct. 22, 2013.

Senate Bill 379


News from Coverys Risk Management

Posted on: October 29th, 2013 by admin No Comments

Earlier this year, Coverys introduced a new comprehensive risk management program for policyholders including:

New Coverys Risk Management Video

We are pleased to provide a new video highlighting the program’s features.  The video briefly outlines the program’s products and services and the importance and relevance of risk management in today’s healthcare market.  You can access the video here.

Risk Management Brochure

A risk management brochure highlighting the new program is also available on Coverys’s Agent and Policyholder Online Services websites.  Copies may be ordered through the Agent Policyholder Online Services website or from your Account Executive.

New Policyholder Website and Credentials Mailer

Coverys has updated the Policyholder Online Services website with the new program resources and encourages policyholders to register for website credentials to access the site.  All policyholders should have received a mailer or email in September explaining the registration process and how to obtain website credentials to the site.
If you have any questions about the changes discussed in this alert, please do not hesitate to contact your Account Manager.


Welcome to our new site!

Posted on: June 18th, 2013 by admin No Comments

We are extremely pleased to launch Cornerstone’s brand new website and provide an improved web experience for our new and existing clients. Please check back often for the latest in carrier updates, medical malpractice news, and other important information from our agency.

Please take a moment to explore the new site and let us know if you have any suggestions on how we can improve to best suit your professional liability needs – your feedback is greatly appreciated!

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