Ch 7. Legal dimensions of Nursing Practice

Certification

process by which a person who has met certain criteria established by a governmental association is granted recognition in a specified practice area. Certification validates specialty knowledge, experience, and clinical judgment.

Credentialing

refers to ways professional competence is ensured and maintained

Private law/ Civil law

regulates relationships among people. includes laws relating to contracts; ownership of property; and the practice of nursing, medicine, pharmacy, and dentistry.

law

standard or rule of conduct established and enforced by the government that is intended chiefly to protect the rights of the public.

torts

subject to action in a civil court with damages usually being settled with money. Torts may be intentional or unintentional acts of wrong doing.

Malpractice

term generally used to describe negligence by professional personnel.

trial courts

the first level court, hears all the evidence in a case and makes a decision based on facts, usually by a jury

plaintiff

the person or government who claims to have incurred losses as a result of an action

defendant

the person who is accused of a crime or a tort that caused the losses for the plaintiff

litigation

the process of bringing and trying a lawsuit

Assault

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

HIPPA ensures the patients have the right to:

to see and copy their health record. to update their health record. to request corrections of mistakes. to get a list of disclosures. to request a restriction on certain uses and disclosures. to chose how to receive health information.

The two levels of courts in the United States

trial courts and appellate courts

sentinel event

unexpected occurrence involving death or serious physical psychological injury, or the risk thereof. such events are called sentinel because they signal the need for immediate investigation and response. Examples include wrong sided surgery, suicide, operative and post operative complications.

Fraud

willful or purposeful misrepresentation that could cause or has caused loss or harm to a person or property.

Newly hired nurses in a busy suburban hospital are required to read the state Nurse Practice Acts as part of their training. Which topics are covered by this act? Select all that apply.

-Violations that may result in disciplinary actions. -Scope of practice

Common law

A body of law known as common law has evolved from judiciary decisions. Common law is court-made law. Most law involving malpractice is common law. Common law is based on the principle of "let the decision stand" (stare decisis). After a decisions has been made in a court of law, the principle in that decision becomes the rule to follow in other similar cases. The first case that sets down the rule by decision is called precedent. Examples of common law are informed consent and the right to refuse treatment.

Examples of Voluntary Standards

American Nurses Association (ANA) standards of practice, professional standards for the accreditation of educational programs and service organizations, and standards for the certification of individual nurses in general and specialty areas of practice

Two types of standards

Voluntary standards and legal standards

lawsuit

civil action brought in a court of law

whistle blowing

is a warning from a present or past member of an organization to the public concerning a serious wrongdoing or danger created or masked by the organization.

Nurse's best legal safe guard

is always competent practice

Battery

is an assault that is carried out and includes willful, angry, and violent or negligent touching of another person's body or clothes or anything attached to or held by that other person.

Defamation of character

is an intentional tort in which one party makes derogatory remarks about another that diminish the other party's reputation. Defamation of character is grounds for an award of civil damages. Damages are awarded to the plaintiff based on the amount of harm done to the plaintiff.

felony

is punishable by imprisonment in a state or federal penitentiary for more than 1 year.

Slander

is spoken defamation of character

Licensure

process by which a state determines that a candidate meets certain minimum requirements to practice within the profession and grants them a license to do so. A license is a legal document that permits a person to offer to the public skills and knowledge in a particular jurisdiction, where such practice without a license would be unlawful. Licensure measures entry level competence.

Liability

involves four elements that must be established to prove malpractice or negligence has occurred : duty, breach of duty, causation, and damages.

A state attorney decides to charge a nurse with man slaughter for allegedly administering a lethal medication. This is an example of what type of law?

Criminal Law

Health care institutions nurse practice rules

Clinical procedures, such as wound dressing changes. policies specific to the institution, specialty, or practice setting. Personnel and employment policies.

Statutory law

A legislative body enacts statutory law. Statutory laws must be in keeping with both federal and state constitutions. Nurse practice acts are an example of statutory laws.

intentional torts

A person committing an intentional tort is considered to have knowledge of the permitted legal limits of his or her words or acts. Violating these limits is grounds for prosecution. Intentional torts for which nurses may be held liable include assault and battery, defamation of character, invasion of privacy, false imprisonment, and fraud.

Crimes and torts

A wrong committed against a person or their property may be categorized as a crime or a tort or sometimes both. A wrong tries as a crime is considered a more serious offense with more legal implications than a tort.

Administrative law

Executive officers ( the president of the U.S. , state governors, or city mayors) administer agencies that are responsible for law enforcement. These agencies have the power to make administrative rules and regulations, in conformity with enacted laws, that act as laws and are enforceable. Boards of nursing are administrative agencies at the state level, the rules and regulation that they adopt are administrative laws. An example of a municipal administrative agency is the city board of health.

Constitutions

Federal and state constitutions indicate how the federal and state governments are created, and they give authority and state the principles and provisions for establishing specific laws. They serve as guides for legislative bodies.

Sources of who makes nursing practice rules

Federal legislation, State legislation, Board of Nursing, Health Care Institutions.

Nurse practice acts

Most important law affecting your nursing practice. Each state has a nurse practice act that broadly defines the legal scope of nursing practice. Obtain a copy from your state board of nursing (BON). Nurse practice acts list the violations that can result in disciplinary actions against a nurse and also intend to prevent unlicensed or untrained people from practicing nursing.

Examples of legal standards

Nurse practice acts and rules and regulations of nursing

State legislation nurse practice rules

Scope of practice for RN's, LPN's, advanced practice nurses. Nursing educational requirements. Composition and disciplinary authority of Board of Nursing.

Invasion of privacy

The U.S. supreme court has interpreted the right against invasion of privacy as a constitutional right. The fourth amendment gives citizens the right of privacy and to be left alone. All information about patients is considered private or confidential, whether written on paper, saved on a computer, or spoken aloud.

Unintentional torts

Unintentional torts are referred to as negligence. The nurse may not intend to cause harm but harm results nevertheless. Negligence is defined as performing an act that a reasonably prudent person under similar circumstances would not do or conversely failing to perform an act that a reasonably prudent person under similar circumstances would do. As the definition implies, an act of negligence may be an act of omission or commission.

False imprisonment

Unjustified retention or prevention of the movement of another person without proper consent can constitute false imprisonment.

Crime

Violation punishable by the state, criminal acts are considered to be against the public. Criminal law is in most cases statutory law. Crimes are classified as misdemeanors or felonies.

Expert witness

a nurse may be called by either attorney to testify as an expert witness to explain to the judge and jury what happened based on the patients record and to offer an opinion about whether the nursing care met acceptable standards.

Criminal law

a type of public law, concerns state and federal criminal statues, which define criminal actions such as murder, manslaughter, criminal negligence, theft, and illegal possession of drugs. Criminal law is concerned with actions that are harmful to society as a whole. A prosecutor or district attorney brings charges against a person, persons, or corporate entity believed to have committed a crime.

the impaired nurse

about 1 in 10 or 10 to 15 percent of all nurses are impaired or are in recovery from drug and alcohol addiction.

Three processes are used for credentialing in nursing

accreditation, licensure, certification

Four sources of law exist at both the state and federal level:

constitutions, statutory law, administrative law, and common law.

Board of Nursing nurse practice rules

delegation, medication administration, unprofessional conduct, licensing

good samaritan laws

designed to protect health practitioners when they give aid to people in emergency situations

Voluntary standards

developed and implemented by the nursing profession itself, are not mandatory but used as guidelines for peer review. Professional nursing organizations continuously reassess the functions, standards, and qualifications of it's members. These organizations are guided by their own assessment of society's need for nursing and by the public's expectation s of nursing.

Legal standards

developed by legislature and are implemented by authority granted by the state to determine minimum standards for the education of nurses, to set requirements for licensure and registration, and to decide when a nurse's license may be suspended or revoked.

Fact witness

either the defense or the prosecuting attorney may call a nurse who has knowledge of the actual incident prompting the legal case to testify as a fact witness. Fact witnesses, who are placed under oath, must base their testimony on only first hand knowledge of the incident and not on assumption.

never events

extremely rare medical errors that should never happen to a patient. Examples include surgery performed on the wrong body part or on the wrong patient, leaving a foreign object inside a patient after surgery, or discharging an infant to the wrong person.

appellate courts

hears only cases questioning a point of law decided by the trial court. No witnesses testify in appellate court and the decisions made by the judge are published and become common law.

Libel

is written defamation of character

Public law

law in which the government is involved indirectly. It regulates relationships between people and the government. For example, describing the powers of the government.

Collective bargaining

legal process in which representatives of organized employees negotiate with employers about such matters as wages, hours, or conditions. Arbitration, strikes and threats of strikes may be used to enhance the terms of employment and to enforce contracts.

misdemeanor

less serious crime, commonly punishable with a fine, imprisonment for less than 1 year, or both, or with parole.

Federal legislation nurse practice rules

medicare and medicaid provisions related to reimbursement for nursing services

Accreditation

process by which an educational program is evaluated and recognized as having met certain standards. State accreditation is a legal requirement for a school to exist. One function of these laws is to make sure that schools preparing practitioners maintain minimum standards of education. State-approved or accredited educational nursing programs include LPN or LVN, associate degree, diploma, baccalaureate, and graduate programs in nursing.