Consent to Settle: CRNAs Have Rights

A little-known clause in a malpractice insurance policy can have a significant impact on a CRNA’s professional reputation and ability to practice. This clause, known as the consent-to-settle provision, determines whether you have a voice in how a malpractice claim against you is resolved.

Understanding your rights regarding settlement decisions is critical. The time to review this provision is before a claim arises—not after you are named in a lawsuit. Whether coverage is purchased individually or provided by an employer, CRNAs should understand how their policy addresses consent to settle.

Why Insurers Often Prefer Settlement

According to national data, the majority of malpractice claims are settled before trial. Trials tend to result in higher payouts and increased defense costs, creating a strong financial incentive for insurers to resolve claims quickly.

Even when there is little or no evidence of negligence, insurers may determine that settlement is more cost-effective than continuing a defense. While this may make business sense for the insurer, it can have lasting consequences for the CRNA.

The Impact of Settlement on Your Professional Record

Any malpractice settlement, regardless of the amount, must be reported to the National Practitioner Data Bank (NPDB). Hospitals, credentialing bodies, licensing boards, and future employers may have access to this information, which can affect credentialing, employment, and future insurability.

Types of Consent-to-Settle Provisions

Malpractice policies typically include one of three consent-to-settle structures:

•  No Consent to Settle: The insurer has complete authority to settle claims without your input.
•  Consent to Settle with a Hammer Clause: Your consent is required, but refusal to settle can cap the insurer’s liability, potentially leaving you responsible for additional damages and defense costs.
•  Pure Consent to Settle: The insurer must obtain your written consent before settling, with no penalties for refusal.

Pure consent to settle offers the strongest protection for CRNAs by preserving your control over settlement decisions and safeguarding your professional reputation.

Employer-Provided Coverage Considerations

When malpractice coverage is provided by an employer or facility, settlement decisions are typically made by the employer, not the CRNA. Even if a consent-to-settle provision exists, it generally applies to the employer’s interests rather than the individual medical professional. 

Supplemental Coverage and Independent Representation

CRNAs who value having an attorney dedicated to protecting their interests may consider supplemental malpractice coverage. AANA Insurance Services offers occurrence-based policies with pure consent-to-settle provisions and independent legal representation.

Having your own attorney can help monitor settlement decisions, provide guidance regarding NPDB reporting, and assist with any inquiries from a state board of nursing.