Ch 4 Legal Aspects of Nursing

False Imprisonment

Unjustifiable detention of a person without legal warrant

Your SBN is responsible for

enforcing the nurse practice act in your state.

Malpractice

greatest legal concern for nursing practice Negligence is the central issue

ELEMENTS OF INFORMED CONSENT TO BE LEGALLY VALID

completeness: quality of information provided. Competency: capability of a particular patient to understand the information given and make a choice. Voluntariness: freedom the patient has to accept or reject alternatives.

common law

decisional, meaning that judges rulings become law

What are 2 programs used for the approval of basic nursing education programs?

ACEN CCNE

Euthanasia

Act of painlessly putting to death people suffering

Contract

Agreement between 2 or more competent persons

Informed Consent

Agreement by a client to accept a course of treatment after being provided complete information

Informed Consent

All patients or their guardians must grant informed consent before treatment, except for life-threatening emergencies.

Mutual Recognition Model

Allows for multi state licensure

Nurse Practice Act is developed by

American Nurses Association (ANA) and the National Council of State Boards of Nursing (NCSBN

PATIENT SELF-DETERMINATION ACT

Applies to acute care and long-term care facilities that receive Medicare and Medicaid funds Advance directives are Written instructions that describe the individual's preferences in regard to medical intervention should the individual become incapacitated Provide written information to all adult patients about their rights under state law. Ensure institutional compliance with state laws on advance directives Provide for education of staff and the community on advance directives Document in the medical record whether the patient has an advance directive

ASSAULT AND BATTERY

Assault is a threat or an attempt to make bodily contact with another person without the person's consent. Assault precedes battery Battery is the assault carried out, the impermissible , unprivileged touching of one person by another. Actual harm may or may not occur as a result of assault and battery.

Assault

Attempt to touch or harm

LICENSING POWERS

Because nursing is a regulated practice, nurses must hold a valid license to practice. This ensures to safeguard the public. It has also power to discipline a licensee which include sanctions such as temporary license suspension or revocation

Private (Civil) Law

Body of law that deals with the relationship amend private individuals

Public Law

Body of laws that deals with the relationship between individuals and the government

Tort

Civil wrong committed against a person or property

Felony

Crime serious in nature, punishable by prison

What are the kinds of legal actions?

1. Civil 2. Criminal 3. Litigation

How to report a crime, tort, or unsafe practice?

1. Clear description 2. Factual 3. Credible 4. Obtain support from credible source 5. Report at lowest hierarchy 6. Sign name to letter 7. See problem through

What is the nurses role in consent?

1. Client gave consent voluntarily 2. Signature is authentic 3. Client appears competent to make decision

What are the sources of law?

1. Constitutional 2. Legislation 3. Common Law

What are the exceptions to consent?

1. Minors 2. Unconscious or injured 3. Mentally ill

What are the legal responsibilities of students?

1. Not considered employees of agency 2. Aware of state boards 3. Assigned to experience within capabilities 4. Only perform tasks related to duties

What are the Functions of the law in nursing?

1. Provides framework for establishing which nursing actions are legal 2. Differentiate nurses responsibilities from other professions 3. Helps establish boundaries of independent nursing action 4. Assists in maintaining a standard of nursing practice by making accountable under law

What are they type of laws?

1. Public 2. Criminal 3. Private 4. Contract 5. Tort

MOBILITY OF NURSES: LICENSURE BY ENDORSEMENT

NCLEX is a national examination; therefore states recognize the licensure awarded in other states. Endorsement means that RN may practice in different states without having to take another licensing examination.

Crime

Committed in violation or public or criminal law and punishable by fine or imprisonment

There are three major types of American laws:

Common law Statutory law: Has particular importance for nurses Administrative law

Defamation

Communication that is false made with disregard to the truth

National Council of State Boards of Nursing (NCSBN) Model Nurse Practice Act and Model Nursing Administration Rules (2011)

Comprehensive documents to guide states in developing and revising their nurse practice acts

3 conditions of informed consent

Consent must be given voluntarily Consent must be given by an individual with the capacity and competence to understand. The patient must be given enough information to be the ultimate decision maker

Implied Contract

Contract that one has not been explicitly agreed to by parties but that the law considers to exist

SUPERVISION OF UNLICENSED ASSISTIVE PERSONNEL

Creating greater risks to patients and increasing the liability of nurses, who supervise their work

Do Not Resuscitate

DNR, Clients who are in a stage of terminal irreversible illness

Criminal Law

Deals with actions against the safety and welfare of the public

Criminal Actions

Deals with disputes between individuals and society

Civil Actions

Deals with relationships between individuals and society

Delegation

Defined as giving someone authority to act for another

Tort Law

Defines and enforces duties and rights among private individuals that are not based on contractual agreements

Accomplishes four objectives

Defines practice of professional nursing Sets educational and other requirements for licensure Determines legal titles and abbreviations Provides for disciplinary action

PRESCRIPTIVE AUTHORITY

Depends on the state recognition. Some states require physician collaboration, supervision, or a written protocol.

HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996

Designed to reinforce the protection of patient information as it is transmitted electronically. Patients are able to see and obtain copies of their medical records, generally within 30 days of their request and to request corrections if they detect errors. Providers must give patients written notice describing the provider's information practices and explaining patients' rights. Limitations are placed on the length of time records can be retrieved, what information can be shared, where it can be shared

American Nurses Association's (ANA) Model Practice Act (1996)

Developed to guide revisions in states' nurse practice acts

Invasion of Privacy

Direct wrong of a personal nature

SBNs have the power to discipline a licensee.

Discipline is to protect the public from dangerous practice. The most frequent reason for discipline is practicing while impaired.

Health Care Proxy

Durable power of attorney for medical decisions for a client

PRACTICE IN A SAFE SETTING

Employs an appropriate number and skill mix of personnel to care adequately for the number of patients at all levels of acuity. Has policies, procedures, and personnel practices that promote quality improvement Keeps equipment in good working order Provides comprehensive orientation to new employees, supervises all levels of employees, and provides opportunities for employees to learn new procedures consistent with the level of health care services provided by the agency.

PROFESSIONAL LIABILITY INSURANCE

Essential for nurses to protect their assets and income in case they are required to pay monetary compensation to an injured patient.

NCSBN

Established in 1978 to develop the examination Each state participates in licensing process through the NCSBN. Each state is responsible for licensing through the state board of nursing.

Autopsy

Examination of body after death

LISCENSURE EXAMINATION

NCLEX-RN is administered by computerized adaptive testing . It is upgraded periodically, tests critical thinking and nursing competence in all phases of the nursing process.

FOUR ELEMENTS OF MALPRACTICE

The professional has assumed the duty of care for the patient's care The professional breached the duty of care by failing to meet the standard of care The failure of the professional to meet the standard of care was the proximate cause of the injury The injury is proved.

Three functions mirror federal and state governments

Executive: administers nurse practice act Legislative: adopts necessary rules to implement act Judicial: authority to discipline a licensee or deny licensure

Gross Negligence

Extreme lack of knowledge of a person that puts another at harm for risk

Six Major Causes of Negligence

Failure to follow standards of care Failure to use equipment in a responsible manner Failure to communicate Failure to document Failure to assess and monitor Failure to act as a patient advocate

What are the categories of negligence?

Failure to... 1. Follow standards of care 2. Use equipment in responsible manner 3. To communicate 4. Document 5. Assess and monitor 6. Act as client advocate

Collective Bargaining

Formalized decision making process between representative of management and representative of labor

INFORMED CONSENT

Full knowing authorization by the patient for care, treatment, and procedures, and must include information about risk, benefits, side effects, cost, and alternatives.

DELEGATION

Giving someone authority to act for another RN retain accountability for acts delegated to another person.

executive authority of state boards of nursing...

Have power to clarify provisions of nurse practice act; Cannot enlarge the law

Who has the power to license RNs?

The state board of nursing

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is the first federal privacy standard to protect patients' medical records

It protects medical records and individually identifiable health information communicated on paper, electronically, or verbally.

Confidentiality is both a legal and ethical concern.

It protects private information about a patient during provision of medical services.

Common Law

Law evolving from court decisions

Statutory Laws

Laws enacted by any legislative body

Litigation

Lawyers who participate in lawsuits

Advanced Health Care Directives

Legal and lay documents that allows a person to specify aspects of care they wish to receive should they become unable to make decisions

Inquest

Legal inquiry into the cause or manner of a death

License

Legal permit that government agency grants to individuals to engage in the practice of a profession

Misdemeanor

Less serious offense

Respondeat Superior

Let the master answer

Interstate Compact

Mechanism used to create mutual recognition among states

Negligence

Misconduct or practice that is below the standard expected of an ordinary reasonable person

Law

The sum total of rules and regulations by which a society is governed

MALPRACTICE

Negligence is the central issue in malpractice. It is the failure to act as a reasonably prudent person who have acted in the same circumstances. Malpractice is negligence applied to the acts of a professional. It does not have to be intentional. It may be by commission or omission. Commission means doing something that should not have been done Omission means failing to do things that should have been done. A patient who brings a claim of malpractice against a nurse (or other professional) is known as the plaintiff and the nurse becomes the defendant. "Was the prevailing standard of care met?" The nursing standard of care is what the reasonably prudent nurse, under similar circumstances, would have done. Standard of care reflects a basic minimum level of prudent care based on the ethical principle of nonmaleficence.

Implied Consent

Nonverbal behavior indicated agreement

Requirements of a Malpractice Action

Nurse (defendant) practices with specialized knowledge and skills. Through this practice, the nurse caused patient's (plaintiff's) injury.

The statute that defines and controls nursing is called

Nurse Practice Act

All four elements of a cause of action for negligence must be proved.

Nurse has assumed the duty of care. Nurse breached the duty by failing standard of care. This failure was the proximate cause of the injury. The injury is proven.

FOUR DOCUMENTS THE NURSES SHOULD OWN

Nurse practice act of the state Nursing's social policy statement: an expression of the social contract between society and professional nursing. Nursing: scope and standard of practice: focuses on defining and delimiting clinical practice and its safe implementation ANA's Code of Ethics for Nurses with Interpretative statements: describes the nine ethical provisions that cover all aspects of nursing practice.

Impaired Nurse

Nurses inability to perform essential job functions because of chemical dependence or mental illness

Responsibility

Obligation associated with a right

BASIC TYPES OF PROFESSIONAL LIABILITY INSURANCE POLICIES

Occurrence policies: cover injuries that occur during the period covered by the policy, whether or not the policy is still in effect at the time the suit is brought. Claims-made policies: cover injuries only if the injury occurs within the policy period and the claims is reported to in the insurance company during the policy period or during the "tail" (uninterrupted extension)

Slander

Oral defamation

Expressed Consent

Oral or written agreement

Strike

Organized work stoppage

STANDARD OF CARE

The most important protective strategy for the nurse is to be a knowledgeable and safe practitioner and to meet the standard of care with all patients. Meeting SOC involves technically competent keeping up-to-date with health care innovations, being aware of peer expectations, and participating as an equal on the health care team.

Res ipsa loquitur

The thing speaks for itself

What is the primary purpose of licensure for nurses?

To protect the health, safety, and welfare of the public

Medical Examiner

Physician, advanced education in pathology or forensic medicine

Preventing Legal Problems in Nursing Practice

Practice in a safe setting. Communicate with other health professionals, patients, and families. Meet the standard of care. Carry and understand professional liability insurance. Promote positive interpersonal relationships.

GUIDELINES FOR PREVENTING LEGAL PROBLEMS IN NURSING PRACTICE

Practice safely in a safe setting Communicate with other health professional, patients, and family members. Document fully, carefully and in a timely manner. Delegate wisely (5 rights of delegation) Meet or exceed the standard of care by staying on top of new developments and skills Carry professional liability insurance Promote positive interpersonal relationship and a non defensive manner while practicing caring, compassionate, holistic nursing care.

What is the most common reason nurses are disciplined by state boards of nursing?

Practicing while impaired

Right

Privilege or fundamental power to which an individual is entitled to

Delegation

Process for a nurse to direct another person to perform nursing tasks

Credentialing

Process of determining and maintaining competence in nursing practice

Malpractice

Professional negligence occurs when a person is performing a profession

CONFIDENTIALITY

Protection of private information gathered about a patient during the provision of health care services.

Nurse Practice Act

Protects the public by legally defining and describing the scope of nursing practice

Permissive law

Protects use of the title but does not prohibit practice if people do not use the title

Coroner

Public official appointed to inquire into cause of death

SBNs ...

Publish rules and regulations that expand law Revise to keep up with new health care developments

Liability

Quality or state of being legally responsible for ones obligation and actions and for making financial restitution for wrongful acts

Contractual Obligations

Refers to nurses duty of care or to render care established by expressed or implied contract

Contractual relationship

Relationships between employer and employee

Mandated Reporters

Required by law to report suspected abuse, neglect, or exploitation

Mandatory law

Requires licensure

FIVE RIGHTS TO ENSURE SAFE DELEGATION

Right task Right circumstances Right person Right direction/communication Right supervision/evaluation

SBNs set and enforce minimum criteria for nursing education programs.

Schools of nursing must have state approval to operate.

Manslaughter

Second degree murder

RISK MANAGEMENT

Seeks to identify and eliminate potential safety hazards, thereby reducing patient and staff injuries. Common areas of risk include patient safety, improper performance of a treatment, failure to respond to a patient, medication errors, failure to follow agency procedure, improper technique, and failure to supervise treatment

Standard of Care

Skill and learning commonly possessed by members of a profession

Expert Witness

Special training, experience, skill in a relevant area and is allowed by the court to offer an opinion in the area of expertise

Living Will

Specific instructions about medical treatments the client chooses or refuse if unable to make decisions

Was the prevailing standard of care met?

Standard of care reflects basic minimum level of prudent care.

Patient Self-Determination Act (1991)

Supports ethical principle of autonomy Uses advance directives

National Council Licensure Examination for Registered Nurses (NCLEX-RN)

Tests critical thinking and nursing competence

TWO REQUIREMENTS OF A MALPRACTICE ACTION

The defendant has specialized knowledge and skills Through the practice of that specialized knowledge, the defendant causes the plaintiff's injury.

Nurse practice act in your state

Usually this is the most important law affecting nursing practice within state bounds.

Certification

Voluntary practice of validating that an individual nurse has met minimum standards of competence

Battery

Willful touching of a person that can cause harm

DOCUMENTATION

Written form of communication to keep patient records No documentation, no care take place Reimbursement, research and quality assurance audit

Libel

Written or pictures of defamation

Assault

a threat or attempt to make bodily contact with another without that person's consent

Nurse Licensure Compact (NLC)

allows RNs to have one license yet practice in other compact member states. NLC does not require application for licensure by endorsement. NLC has been adopted by 24 states, with 6 more states having pending legislation as of early 2011.

Battery

assault carried out

criminal law

involves public concerns regarding an individuals unlawful behavior that threatens society

The nurse practice act

is the statute that defines nursing practice.

U.S. Constitution

provides balance of powers to establish legal relationships between persons and the government

civil law

recognizes and enforces the rights of individuals in disputes over legal rights or duties of individuals in relation to one another

HIPAA

requires that all health care providers and their assistants ensure patients' privacy/confidentiality.

administrative law

result when the legislative branch of a governmental agencies to create laws that met the intent of a statue

statutory law

statues that established through formal legislative processes