Driven by the need for increased access to care and the demand for more healthcare providers, recent legislative changes now allow nurse practitioners (NPs) in certain jurisdictions to perform a broader range of services, including diagnosing and treating patients independently. While these changes enhance the role of NPs and allow them to practice to the full extent of their training, they also introduce legal and ethical challenges that NPs must navigate to mitigate liability risks.
Expanded Scope of Practice
The expansion of NP scope of practice varies by state and reflects a growing recognition of NPs as vital components of the healthcare team. According to the American Association of Nurse Practitioners (AANP), laws and regulations granting NPs full practice authority enable NPs to practice to the full extent of their education, training, and certification without physician oversight. This means NPs can evaluate patients, diagnose, order, and interpret diagnostic tests, and initiate and manage treatments (including prescribing medications) under the licensing authority of the State Board of Nursing. Since 2023, 27 states and the District of Columbia have granted NPs full practice authority (AANP, 2023). However, as NPs gain full practice authority, they face heightened responsibilities and a range of professional liability concerns that warrant careful consideration.
Professional Liability Trends and Implications
Professional liability trends are evolving as NPs take on greater responsibility for patient care. Courts increasingly recognize NPs as independent providers, which affects how liability is assigned in medical malpractice cases. Where NPs have reduced or restricted practice authority to provide patient care, liability is often shared with supervising physicians (Candello, 2023). However, this is shifting as NPs are increasingly operating independently, which can leave NPs as the primary provider responsible for their patient’s outcomes. For example, according to the NSO and CNA Nurse Practitioner Claim Report: 5th Edition, which analyzed professional liability claims data, the average total incurred of NP professional liability claims in the 2022 report dataset was $332,137, which was more than a 10.5% increase compared to the average total incurred in the 2017 dataset ($300,506). The report also found that the distribution of malpractice claims against NPs involving diagnosis-related allegations rose from 32.8% of claims in 2017 to 37.1% in 2022. In the same time frame, the distribution of claims involving treatment and care management allegations also increased from 22.3% to 35.3% (CNA & NSO, 2022). Understanding this legal landscape is crucial for NPs to effectively adjust their patient safety and risk control practices to navigate potential pitfalls.
Risk Control Considerations
1. Clinical Competence. One of the primary concerns for NPs is maintaining clinical competence across an expanded range of services. As they take on greater responsibilities, NPs must have the necessary training, skills, and knowledge to provide safe and effective care. Failure to do so could lead to malpractice claims if a patient experiences harm due to perceived negligence. Continuous education and training are vital as the standards of care evolve alongside advancements in medical knowledge and technology.
2. Informed Consent. Informed consent is a cornerstone of ethical medical practice, and NPs must ensure that they obtain consent appropriately before performing procedures or prescribing treatments. If a patient suffers adverse outcomes and lacks documented informed consent, NPs could face liability claims for failing to provide adequate information. Therefore, establishing clear communication and maintaining thorough documentation is essential. With greater authority and responsibility over patient care and outcomes, NPs must be vigilant in communicating the risks, benefits, and alternatives to care and ensuring patient understanding. NPs should document an assessment of their patient’s ability to comprehend and repeat information provided using a “teach-back” approach to test accurate recall. Where the NP does not provide direct patient education, they must confirm that the information provided was appropriate and documented in the patient’s healthcare information record.
3. Scope of Practice Limitations. Despite the increased autonomy, NPs must remain cognizant of the specific limitations of their practice as defined by state practice and licensure laws. Engaging in practices beyond the authorized scope can lead to disciplinary actions by State Boards of Nursing and malpractice lawsuits (CNA & NSO, 2022). NPs should be well-versed in the regulations governing their practice area in each state where they are licensed, as oversight can vary widely between states. Misinterpretation or ignorance of these regulations are not a valid defense and could leave NPs exposed to liability (National Council of State Boards of Nursing, 2023).
4. Documentation. Robust documentation practices are essential in protecting against liability. Clear and thorough records can serve as vital evidence in defending against malpractice claims. Inadequate documentation not only compromises patient care but also increases liability risks, as it can hinder the defense of an NP during a malpractice lawsuit. Complete, accurate, and up-to-date healthcare records constitute an essential risk management measure; therefore, NPs should maintain proper documentation practices and follow their employer’s or practice’s policies and procedures governing appropriate and complete records documentation. NPs should also work with their employers to identify barriers to improving their documentation practices and potential interventions that can help minimize those barriers, such as redesigning workflows to reduce redundancies and the clerical burden of documentation.
5. Malpractice Insurance. As NPs expand their practices, the importance of appropriate malpractice insurance coverage cannot be overstated. NPs should seek coverage that specifically addresses the full scope of their practice, including if they will be responsible for diagnosing patients, prescribing medications, and/or offering cosmetic treatments or procedures. Policies vary, and inadequate coverage could leave NPs vulnerable to lawsuits or State Board of Nursing matters. Consulting with an insurance professional to ensure comprehensive coverage is crucial (Brous, 2017).
Conclusion
The expansion of NP practice authority presents both opportunities and challenges. While NPs are increasingly recognized for their contributions to healthcare, they must remain vigilant regarding professional liability concerns. By prioritizing clinical competence, obtaining informed consent, adhering to scope limitations, securing appropriate malpractice insurance, and maintaining thorough documentation, NPs can help mitigate potential risks. As NPs navigate this evolving landscape, a commitment to ethical practice and continuous learning will be essential in providing high-quality care and protecting against liability.
References
American Association of Nurse Practitioners. (2023). State Practice Environment. Retrieved from https://www.aanp.org/advocacy/state/state-practice-environment
CNA & NSO. (2022). Nurse Practitioner Professional Liability Exposure Claim Report: 5th Edition. Retrieved from https://www.nso.com/Learning/Artifacts/Claim-Reports/Nurse-Practitioner-Claim-Report-5th-Edition
Brous, E. (2017). Professional liability insurance: What all nurses should know. Journal of Radiology Nursing, 36(4), 236-237. https://doi.org/10.1016/j.jradnu.2017.10.006
Candello. (2023). A Sea Change in U.S. Care Delivery: An Analysis of Advanced Practice Provider and Physician Malpractice Risk. Retrieved from https://www.candello.com/Insights/Candello-Reports/Sea-Change-in-US-Health-Care
National Council of State Boards of Nursing. (2023). Full practice authority for nurse practitioners: A summary. Retrieved from https://www.ncsbn.org/full-practice-authority.htm
Disclaimer: The information offered within this article reflects general principles only and does not constitute legal advice by the 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. Please note that Internet hyperlinks cited herein are active as of the date of publication but may be subject to change or discontinuation.
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 [email protected] or call 1-800-247-1500. www.nso.com.
- 5 Risk Control Considerations as Nurse Practitioners Scope of Practice Expands - November 12, 2024