As Malpractice Claims Against Home-Based Care Nurses Rise, Providers Must Focus on Risk Management

When it comes to malpractice claims, home-based care nurses are often more susceptible compared to their counterparts in other nursing specialties.

That’s a fact that has held true for a while, too. Home-based care nurses — including home health, hospice and palliative care professionals — have seen a steady rise in professional liability claims since 2011.

Overall, home-based care accounted for more than 20% of total closed claims against nurses in 2020. This is a sharp increase from 12.4% in 2015 and from 8.9% nine years ago, according to a recent nurse professional liability exposure claim report from CNA Healthcare Underwriting and the Nurses Service Organization (NSO).

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In comparison, professional liability for nurses in other areas of aging services — independent living, assisted living, memory care and skilled nursing — only accounted for 11.2% of claims in 2020, according to the report.

There are several factors that contribute to why there are more malpractice claims in home-based care than any other nursing specialty, Georgia Reiner, a risk specialist for NSO, told Home Health Care News.

For one, there’s an increasing acuity in patients who receive care in the home. That’s a trend that has only accelerated in 2020 due to the COVID-19 virus and a general rise in hospital-at-home models.

“There are more older adults in this country — as the boomer generation ages and more of those patients wish to age in place — in their homes,” Reiner said. “You also have health care organizations being incentivized to discharge their patients from hospitals and nursing homes as soon as possible.”

Matt Wolfe, a partner at law firm Parker Poe, echoed those sentiments, noting that the increase in liability claims is likely linked to the health care system’s ongoing shift toward home. In addition to hospital-at-home programs, that shift includes SNF-at-home models, in-home cancer care initiatives and more.

“I think it’s a reflection of the fact that more and more services are being provided in home- and community-based settings, which, I think, is a good thing for patients and for our health care system, writ large,” Wolfe told HHCN.

Another factor contributing to the spike in liability claims: nurses working in the home often lack the institutional support of their counterparts in hospitals, skilled nursing facilities (SNFs) and other health care organizations.

“This may mean that there are fewer providers who are also available, who can help catch key opportunities to prevent adverse patient events,” Reiner said. “And then there’s also less technology available in the home to help catch key opportunities to prevent adverse events for patients. There are also fewer providers who can share liability when things do go wrong for patients.”

Reiner also pointed out that the majority of care that takes place in the home setting is delivered by unlicensed assistive personnel and CNAs. This, in turn, places more responsibility on home-based nurses, such as RNs, LPNs and LVNs, for patient’s overall care.

Risk management

The findings from the CNA Healthcare Underwriting and NSO report are an indication that home care agencies should focus even more on what they can do to manage risk.

“Risk management is as important to an agency’s mission as anything else it does,” Wolfe said. “That includes human resources, customer service and clinical practices. You really need to make sure that you are addressing issues or preventing bad events from happening in the first place.”

There are a number of things that providers can do to manage risk, according to Wolfe.

For example, sound hiring practices can ensure agencies are hiring the most qualified job applicants. Robust training programs can additionally make sure in-home nurses have all the education and tools they need to succeed.

Similarly, maintaining regular oversight practices can also help uncover bad habits or minor hiccups among in-home care staff — which can then be promptly corrected.

Additionally, providers should work closely with their malpractice carriers, Wolfe stressed.

“There’s a lot that can be done between an adverse event happening and a claim being filed,” he said. “I think redoubling efforts on that accord is really important. I would strongly encourage agencies to work with their malpractice carriers to figure out the best ways to address those issues and, really, to try to resolve disputes before they even rise to the level of filing a claim.”

On their end, nurses can take a number of steps to help lower the chances of malpractice claims.

“I think that nurses individually can make sure that they’re practicing within their scope,” Wolfe said. “They can make sure they’re staying in communication with the supervising physician or the physician that is signing the plan of care.”

Nurses can also make a concerted effort to routinely communicate with their office and administrative staff. If they do have concerns on the job, nurses should “speak up immediately,” documenting concerns while double checking that any interventions are appropriate.

Reiner also emphasized the importance of patient assessments and documentation for nurses.

“Beyond screening at the commencement of services, reassessments should also occur at least every six months, or any time that a patient’s condition or needs change,” she said. “All of these assessments and reassessments need to be documented, including any other individuals who may have participated in the process beyond the nurse themselves. Any changes in the patient’s condition should also elicit a revision to the patient’s service plan.”

Nurses should also keep a close eye on the duties they delegate to unlicensed assistive personnel or caregivers. This ensures they don’t provide any clinical care that goes beyond their training or the regulatory limits, according to Reiner.

Ultimately, it’s important to recognize that malpractice claims are a part of being in the health care sector.

“You can’t do anything to eliminate the risk, but there’s a lot of things that you can do to reduce these risks so that, whether you’re a nurse, agency director, or an owner, you can sleep well at night,” Wolfe said.

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