Malpractice lawsuits and professional liability insurance
When a hospital or other health-care employer is sued by a patient or family for alleged negligence, individual nurses will often be named in the lawsuit, together with the employer and physicians. The hospital has an obligation to carry malpractice insurance covering its employees who may be sued for negligent care.
In addition, ONA has purchased a Professional Liability Insurance Policy from Trisura Guaranteed Insurance Company (“the Trisura Policy”) for ONA members. It offers secondary coverage for ONA members in certain circumstances.
The Trisura Policy is an excess insurance policy, designed to provide coverage in addition to the coverage that is carried by health-care employers where ONA is the bargaining agent.
How does excess coverage work?
If a patient or family’s lawsuit is successful, the compensation awarded will be covered by your employer’s insurance policy. If the amount of the award exceeds the limit of your employer’s policy, the Trisura Policy may cover the excess amount.
Who is eligible for coverage?
All registered nurses, registered practical nurses, graduate nurses and other health-care professionals whom ONA is certified to represent are automatic participants in the insurance plan
What is covered?
The Trisura Policy ensures against liability that arises when ONA members are providing (or intending to provide or failing to provide) health-care services including public health services and teaching and instruction in their profession.
Eligibility is limited to claims arising from incidents that occurred at a workplace for which ONA is the bargaining agent and where the employer maintains insurance for a minimum of $5,000,000. under which the member is covered.
Are there exclusions to coverage?
Punitive and Exemplary Damages are not covered by the Trisura Policy. These are damages awarded to an injured party that go beyond what is necessary to compensate for losses; Punitive and Exemplary Damages are intended to punish the wrongdoer. They are rarely awarded in malpractice lawsuits.
Damages relating to illness or injury caused in the commission of a criminal act, such as sexual assault, are also not covered.
How much coverage does the Trisura Policy provide?
The Trisura Policy provides excess coverage in the amount of $1,500,000 per loss resulting from malpractice, with a total annual limit of $6,000,000 per member, subject to aggregate Policy limits.
Frequently Asked Questions
What should I do if I am asked to meet with my employer’s lawyers regarding a lawsuit or potential lawsuit?
A hospital or agency has an obligation to, with certain exceptions, defend its employees who may be sued for negligent care. As an employee, you have a corresponding obligation to cooperate in your employer’s defense. Because employers are liable for the practice of their employees, they will defend allegations about your practice to the best of their ability.
If you are asked to assist your employer in the defense of a malpractice lawsuit, you should co-operate fully. You may be asked to attend a meeting with risk management, insurance investigators or your employer’s lawyers. Union representation at these meetings is not usually required and may be objected to because having a third person present may waive the privilege that otherwise permits the information disclosed in these meetings to be kept confidential.
If you have any questions about whether to attend a meeting with your employer’s lawyers, please contact LEAP Intake.
What should I do if I am named in a Statement of Claim?
If you are named in a Statement of Claim you should contact LEAP Intake to inform them. You should also cooperate with the employer’s lawyers, as described in the above paragraph. Your primary liability coverage will come from your employer’s policy. You may also be eligible for excess coverage under the Trisura Policy. If you have questions or concerns regarding your participation in a malpractice lawsuit, please contact LEAP Intake.
What are my professional obligations regarding liability protection?
All health-care professionals covered under the Regulated Health Professions Act are required to have professional liability protection. Individual regulatory colleges set the amount required for each profession.
The College of Nurses of Ontario (“CNO”) has established the required coverage for Registered Nurses and Registered Practical Nurses at $1 million per claim, with a $2 million annual maximum, and for Nurse Practitioners at $5 million per claim, with a $5 million annual maximum. Please note that CNO requires this coverage for every nurse with a Certificate of Registration, even if you are not currently working. You do not need this coverage if you are a member of the Non-Practicing Class.
The coverage required by your College may come from a number of different sources including employers, professional associations or unions, or privately purchased policies.
What if I am volunteering or working at a non-ONA job?
The secondary coverage offered by the Trisura Policy does not attach to the individual member outside of their ONA employment setting. That means, if an ONA member is working, or even volunteering, in another setting, they need additional malpractice coverage.
Members who volunteer or work in a non-ONA setting will need to check that their employer offers the amount of malpractice coverage required by their College. If the employer does not offer coverage or has inadequate coverage, the member needs to procure their own insurance, either through a private insurance plan or, perhaps, through an organization such as the Registered Nurses Association of Ontario (“RNAO”).
Will my employer’s coverage meet my professional obligations?
In most cases your employer’s policy will meet your professional obligations. However, we recommend that you confirm details regarding your employer’s coverage with your employer.
Are there exceptions under which an employer might deny coverage in a malpractice lawsuit?
Most malpractice insurance policies will include exemptions for Punitive and Exemplary Damages, and for damages relating to illness or injury caused in the commission of a criminal act.
Some employers have denied their obligation to provide coverage to members alleged to have breached confidentiality of personal health information. However, in at least one case that we are aware of, the court upheld a member’s challenge and confirmed the employer’s obligation to provide coverage.
For any further questions, please contact LEAP Intake at LEAPIntake@ona.org.
