Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Nursing Malpractice Insurance

NURSING PROFESSIONALS CANNOT AFFORD TO NOT
CARRY NURSING MALPRACTICE INSURANCE

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Nurses: Please Protect Yourself With Professional Liability Insurance.

I am writing to strongly encourage you to purchase nursing professional liability insurance that covers you for complaints and investigations initiated against you and your nursing license.

I am not affiliated with any insurance company. I am not receiving any commission, fee or reimbursement for writing this article. My concern lies in the many, many nurses who contact our firm with Emergency Suspension Orders, Notices of Investigation, Administrative Complaints and Final Orders from the Department of Health, Board of Nursing, who do not have the funds to hire an attorney to defend themselves.

Your Employer Will Likely NOT Provide Legal Defense.

Many nurses mistakenly believe that their employer insures them for these types of events or that their employer will provide a legal defense. In the vast majority of cases, this is false. Often it is the employer that files the complaint against the nurse that causes the investigation. If you are told your employer will cover you in such circumstances, ask for a letter in writing and signed by the employer stating that the employer will pay for your defense in any Department of Health investigation or subsequent administrative proceedings that arise out of your employment. It is unlikely that you will get it.

You Need an Experienced Health Law Attorney to Defend You and Your License.

You need an experienced attorney to represent you in any sort of Department of Health complaint investigation from the very beginning. The administrative law process is complex, especially when there is an Emergency Suspension Order or Administrative Complaint. It is easy for a nonlawyer to be confused and to waive important legal rights that result in discipline on your license, requirements that cannot be met or the revocation of the nursing license.

For example, many nurses believe that if they elect an informal hearing, they will be allowed to go before the Board of Nursing and argue the facts of their case to their peers. This is not true. If you elect an informal hearing, you are admitting that all material facts stated against you in the Administrative Complaint are true (in effect you are pleading guilty). You will only be allowed to argue about what discipline should be taken against you since you have admitted to the offense(s). You have waived your right to a “formal hearing” where you are allowed to testify and introduce evidence to show you did not commit the offenses.

If you receive an Emergency Suspension Order and you believe you can successfully appeal it, you might be surprised. Any such appeal is a formal legal appeal to a Florida District Court of Appeal (DCA). This is a very formal procedure that only examines legal errors made by the Department of Health, Board of Nursing, in taking the action it took. Furthermore, everything stated in the ESO is assumed to be true for the purpose of the appeal. You are not allowed to dispute the facts stated in the ESO.

An appeal requires formal legal research and analysis, the preparation of legal briefs that comply with strict appellate rules of procedure. Most nurses do not have a clue how to do this. Even among attorneys, the practice of filing and arguing appeals is considered to be a legal specialty because of its complexity.

Additionally, there are other actions that an experienced health attorney may take, if you have an ESO or Final Order, that may be far more effective and expeditious to obtain relief for you than appealing it.

Regardless, if you do not have the money (usually $10,000 or more) or insurance coverage to retain the services of an experienced attorney to represent you, you may have little hope of successfully defending yourself from untrue or unjust complaints, from preventing an undesirable result, or from obtaining relief from an ESO or Final Order.

What Does Your Professional Liability Insurance Include? Can you Choose Your Own Attorney?

If you have professional liability insurance, make sure it includes legal defense coverage for professional licensing defense and other administrative proceedings in an amount of coverage of at least $25,000.00. If it does not, you should be able to purchase a “rider” or additional coverage from that insurer for a small additional premium. Also, attempt to obtain “broad form coverage” that will also pay for your legal defense costs for other types of regulatory and administrative proceedings such as: a) an internal hospital/facility peer review proceeding; b) a Medicare or Medicaid audit or investigation; c) a Medicare medical quality assurance investigation or review; d) an EEOC discrimination or harassment complaint or investigation; e) an alleged HIPAA privacy violation; f) a hospital clinical privileges action (if you have privileges); g) action to exclude you from the Medicare or Medicaid Program; or h) action to suspend or revoke your DEA registration (if you have one). There are some insurance companies that sell professional license defense and defense costs and expenses for other types of administrative proceedings as a stand-alone insurance policy.

At the very least, however, you should have the basic coverage to defend you in a complaint against your nursing license.

You should also check with the insurance company before you purchase a policy to determine if the insurer will allow you to choose your own attorney in a licensure defense action. Some insurers may require you to use the attorneys with whom they contract, removing your ability to make this decision.

Professional License Defense Coverage for Nurses.

Insurance companies that we are aware provide professional license defense coverage for nurses, include the following:

  Nurses Service Organization (NSO) Insurance
  Proliability Insurance Co. (endorsed by the ANA)
  NurseGuard Insurance from Granite State Insurance Company
  Healthcare Providers Service Organization (HPSO) Insurance
  CPH Insurance
  MAG Mutual
  The Chicago Insurance Company

Nursing malpractice insurance that contains professional licensure defense coverage is inexpensive and can be easily and quickly obtained online. The premium payments for this type of insurance for an R.N. or L.P.N. is usually less than $250 per year. Monthly payment plans are usually available.

We highly recommend that every nursing professional purchase it, even if you work for a hospital, the state or federal government, or in an administrative position.

Other Resources

Butler, T.: “Nurse’s Professional Liability Insurance,” LoveToKnow.com, at:
http://insurance.lovetoknow.com/Nurse%27s_Professional_Liability_Insurance

Chapman, D.: “Professional Liability Insurance For Nurses – Important Facts,” (GoArticles.com, Jan. 30, 2012) at:
http://goarticles.com/article/Professional-Liability-Insurance-For-Nurses-Important-Facts/6021710/

“Frequently Asked Questions about NP Liability Insurance” at:
http://www.acnpweb.org/i4a/pages/Index.cfm?pageID=3468

MacKay, T.: “Worried About a Malpractice Lawsuit? The Board of Nurses Should Worry You More,” at: http://www.healthlicensedefense.com/WorriedAboutaMalpracticeLawsuit.html

Wood, D.: “Do Nurses Need Their Own Professional Liability Insurance?” (AMN Healthcare, Inc., 2011), at:
http://www.travelnursing.com/news-and-features/print-article/do-nurses-need-their-own-professional-liability-insurance/32984

(revised 5/4/2012)

Disclaimer: This article is for information purposes only and does not constitute legal advice.

© Copyright 2012 by George F. Indest III, Board Certified by The Florida Bar in Health Law, The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, Florida 32714. Phone: (407) 331-6620. All rights reserved.

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 Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Tag words: Florida Board of Nursing, Department of Health (DOH) Investigation, investigator, nurses, nurse practitioners, certified registered nurse anesthetists (CRNA), disciplinary action, legal defense, nursing license, attorney, administrative complaint, administrative charges, nursing insurance, malpractice insurance