Leadership Week 2

Being sued for malpractie

"Just following physician orders" is NOT a defense for malpractice -Nurses have an independent responsibility to take appropriate steps to safeguard patients

Purpose of Law and Legislation

*Protect the patient and the nurse *Laws & Legislation: define the scope of acceptable practice and protect individual rights *Awareness of rights & duties => protect ourselves against liability or loss of professional licensure

Malpractice Insurance Dilemma

-Expanded roles -Higher chance of getting sued if they have malpractice insurance (more financial resources ---> higher chance to get sued)

8 key areas of patient's bill of rights

-Info for patients -Choice of providers and plans -Access to emergency services -Taking part in treatment decisions -Respect and nondiscrimination -Confidentially (privacy) of Heath information -Complaints and appeals -Consumer responsibilities

Common Causes of License Suspension/Revocation

-Malpractice (Professional Negligence) -Practicing w/o license -Fraud/Allow others to use it -Felony conviction r/t RN duties/function -Criminal abortions -Not reporting substandard medical/nursing care -Under influence of drugs/alcohol while providing patient care -Narcotics w/o order -Falsely holding oneself out to the public or to any HCP as a "nurse practitioner"

21st century: increased legal liability

-More authority and independence in decision making -Increase legal accountability -Performing more actions that used to be in the realm of medical practice -Making more money -Carry malpractice insurance

Patient Medical Records

-Patient owns the information but the record belongs to the facility that made it and is storing it -Patients must have reasonable access to the record

Reducing the risk of malpractice claims

-Practice within scope of practice -Observe policies and procedures -Use EBP -Patients rights and welfare first -Awareness of laws and legal doctrines -Practice within the area of individual competence and upgrade technical skills consistently

Responsibilities of Nurse-Manager

-Reporting dangerous understaffing -Checking staff credentials and qualifications -Carrying out appropriate discipline

5 Components for professional negligence to occur

-Standard of care is in place -Failure to need the standard of care (Breach of duty) -Foreseeability of harm must exist (ignorance is not an excuse) -Provable correlation between care and harm -Actual patient injury must occur

Legal Doctrines Guiding Courts in Decision Making

-Stare Decisis (Let the decision stand) -Res Judicata (a thing or matter settled by judgment): no further appeals -Respondent superior: the master is responsible for the acts of his servants

Incident reports

-Unusual or unexpected incidents -Confidential -Cannot be subpoenaed by clients or used as evidence in their lawsuits -Do not leave incident report in the patient's record

Informed consent may be given by

1) Competent adult 2) Legal guardian or power of attorney 3) Emancipated or married minor 4) Mature minor 5) Parent of minor child 6) Court order

Two types of negligence

1) Ordinary 2) Professional (malpractice)

Guidelines for Informed Consent (Person giving consent)

1) Procedure to be performed 2) The risks involved 3) Expected or desired outcomes 4) Expected complications or side effects that may occur as a result of treatment

What document permits a registered nurse to offer special skills and knowledge to the public in a particular jurisdiction when such practice would otherwise be unlawful? A) A state nursing license B) Institutional licensure C) ANA certificate D) ANA practice standards

Ans: A Feedback: In general, a license is a legal document that permits a person to offer special skills and knowledge to the public in a particular jurisdiction when such practice would otherwise be unlawful. A state nursing license allows for the practice of nursing in a specific state. Some professionals have advocated shifting the burden of licensure, and thus accountability, from individual practitioners to an institution or agency. Proponents for this move believe that institutional licensure would provide more effective use of personnel and greater flexibility. The ANA is not capable of permitting a person to practice nursing.

The nurse witnesses a patient sign an operative permit form. Legally, what does the nurse's signature imply? A) Observed the client sign the consent form B) Is certain the client understands the proposed procedure C) Believe the client is capable of understanding the proposed procedure D) Assumes the client has had an adequate evaluation to agree to the procedure

Ans: A Feedback: Informed consent is obtained by a physician; therefore, a nurse is not legally responsible for informed consent but is confirming that the client signed the consent form. The other options are the responsibilities of the professional performing the procedure.

What is one way to promote open communication between patients and practitioners? A) Involving health-care consumers as active members of the health-care team B) Promoting the creation of cultures of patient safety in health-care organizations C) Establishing a federal leadership locus for advocacy of patient safety and healthcare quality D) Building an evidence-based information and technology system that impacts patient safety and pursue proposals to offset implementation costs

Ans: A Feedback: One way to promote open communication between patients and practitioners is involving health-care consumers as active members of the health-care team. Pursing patient safety initiatives prevent medical injury by promoting the creation of cultures of patient safety in health-care organizations; establishing a federal leadership locus for advocacy of patient safety and health-care quality; and building an evidence-based information and technology system that impacts patient safety and pursue proposals to offset implementation costs.

A state Nurse Practice Act is an example of which source of law? A) Statutes B) Constitution C) Administrative D) Judicial

Ans: A Feedback: Statutes are the only laws made by official enactment by the legislative body.

How is the question of whether a nurse acted with reasonable care generally proven? A) The expert testimony of nursing witnesses B) The defendant's explanation of what the nurse did C) The trial judge, after checking the outcome of prior similar court cases D) The testimony of expert medical witnesses

Ans: A Feedback: The testimony of other nurses in the same specialty as the defendant may be used to prove breach of duty. The other options are not considered qualified to testify to this matter.

What is an example of an unintentional tort? A) Professional negligence B) Assault C) Battery D) False imprisonment

Ans: A Feedback: While professional negligence is considered to be an unintentional tort, assault, battery, false imprisonment, invasion of privacy, defamation, and slander are intentional torts.

Which statement is true regarding criminal law cases? Select all that apply. A) Incarceration is a likely consequence of being found guilty of a criminal offense B) Intentionally giving an overdose of a potent narcotic is a criminal offense C) A guilty verdict requires evidence beyond a reasonable doubt D) Most malpractice cases are tried in criminal court

Ans: A, B, C Feedback: In criminal cases, the individual faces charges generally filed by the state or federal attorney general for crimes committed against an individual or society. In criminal cases, the individual is always presumed to be innocent unless the state can prove his or her guilt beyond a reasonable doubt. Incarceration and even death are possible consequences for being found guilty in criminal matters. Nurses found guilty of intentionally administering fatal doses of drugs to patients would be charged in a criminal court. Most malpractice cases are tried in civil court.

Which action demonstrates appropriate management regarding legal issues? Select all that apply. A) Remains current on all institutional policies and procedures B) Delegates with consideration to appropriate scopes of practice C) Requires physical proof of appropriate professional licensure each year D) Provides yearly in-services on the operation of newly acquired equipment

Ans: A, B, C Feedback: Sound management functions regarding legal issues include understanding and adhering to institutional policies and procedures delegating to subordinates wisely, looking at the manager's scope of practice and that of the individuals he or she supervises, and monitoring subordinates to ensure they have a valid, current, and appropriate license to practice nursing. In-services should be held frequently especially when related to issues that affect care delivery. The reliance on peers for advice in such matters is not prudent; the institution's legal advisor is much better prepared for this task.

A lawsuit pertaining to professional negligence must include duty, breach of duty, injury, and a causal relationship between breach of duty and injury. What else must be included? Which element is necessary to prove professional negligence? Select all that apply. A) Breach of duty B) Presence of injury C) Ability to foresee harm D) Causal relationship

Ans: A, B, C, D Feedback: A lawsuit pertaining to professional negligence must include duty, breach of duty, injury, a causal relationship between breach of duty and injury, and the ability to foresee harm. Intent to cause injury is not a requirement.

Which situations is a nurse-manager illegally responsible for reporting? Select all that apply. A) Suspected incidents of elder abuse B) Examples of substandard medical care C) Client-reported incidents of child abuse D) Confirmed case of a communicable disease

Ans: A, B, C, D Feedback: In addition, the manager, like all professional nurses, is responsible for reporting improper or substandard medical care, child and elder abuse, and communicable diseases, as specified by the Centers for Disease Control and Prevention. Disagreements are not mandated reportable situations.

Professional organizations generally espouse standards of care that have what relationship to those required by law? Select all that apply. A) Higher than those required by law B) The same as those required by law C) Are established after those required by law D) Are established prior to those required by law

Ans: A, D Feedback: Professional organizations generally espouse standards of care that are higher than those required by law. These voluntary controls often are forerunners of legal controls. The standards are written by health-care professionals while laws are written by legislatures.

What is the responsibility of a charge nurse who discovers that a medication error was made on the previous shift? A) Share that information with the charge nurse on the previous shift B) Document the incident as per hospital policy C) Write a memo to the nurse who made the error requesting incident report be written D) Write a note in the client's chart that an incident report will be completed

Ans: B Feedback: It is the responsibility as manager to immediately document the error according to hospital policy. Since policies concerning such situations vary, it is vital to know and follow established policies. It is not generally appropriate to make such a note on the client's chart.

Which behavior will best minimize a nurse's risk for a malpractice claim? A) Always carry a personal liability insurance policy B) Always function with the state's nursing practice act C) Ask for assistance when engaged in complicated procedures D) Devote time to establishing an effective nurseñpatient relationship

Ans: B Feedback: Nurses can reduce the risk of malpractice claims by practicing within the scope of the Nurse Practice Act. Nurses should purchase their own liability insurance and understand the limits of their policies. Although this will not prevent a malpractice suit, it should help to protect a nurse from financial ruin should there be a malpractice claim. While the other options present reasonable advice, they will not necessarily help in the avoidance of a malpractice claim.

Which statement best describes the impact that the concept of respondeat superior has on the issue of nursing liability? A) It allows for joint liability among physicians, nurses, and health-care organizations B) It supports the sharing of blame among all involved sources of health-care services C) It encourages legal intervention when health care is thought to be substandard D) It implies that the institution is responsible for the acts of its employees

Ans: B Feedback: Nurses must remember that the purpose of respondeat superior is not to shift the burden of blame from the employee to the organization but rather to share the blame, increasing the possibility of larger financial compensation to the injured party. While the other options may be true statements, the correct option describes the more nurse-related implication of the concept.

What defines the legal boundaries of nursing at the state level? A) The state's Attorney General B) The Nurse Practice Act C) The ANA standards of practice D) The ANA Code for Nurses

Ans: B Feedback: The 51 Nurse Practice Acts representing the 50 states and the District of Columbia are examples of statutes. These Nurse Practice Acts define and limit the practice of nursing, stating what constitutes authorized practice as well as what exceeds the scope of authority. Although Nurse Practice Acts may vary among states, all must be consistent with provisions or statutes established at the federal level. The other options lack the comprehensiveness and focus of a state's Nurse Practice Act.

What is the best reason that nurse-managers have an ongoing responsibility to be aware of legislation affecting nursing practice? A) This will prevent them from getting sued B) Laws are fluid and subject to change C) It will protect the agency from a lawsuit D) It will ensure that correct procedure is carried out

Ans: B Feedback: When using doctrines as a guide for nursing practice, the nurse must remember that all laws are fluid and subject to change. Laws are not static. It is the responsibility of each manager to keep abreast of legislation and laws affecting both nursing practice and management practice. While the other options are correct, they do not describe the most encompassing reason that nurse-managers need to keep aware of current legislature affecting nursing practice.

A verdict of suspension or loss of licensure represents what type of law? A) Criminal B) Civil C) Administrative D) Judicial

Ans: C Feedback: A verdict of suspension or loss of licensure represents administrative law. This type of law is not based on any of the other options.

A doctor orders a medical procedure that the staff nurse has reason to believe will harm the patient. Which statement accurately states the legal consequences of carrying out, or refusing to carry out, the procedure? A) The staff nurse cannot be held legally liable for any harm to the patient if the procedure is carried out with due care B) The nurse may lose his or her license by refusing to carry out the procedure C) The nurse can be held legally liable for any harm if the procedure is carried out without question D) The nurse can be held accountable for practicing medicine without a license

Ans: C Feedback: All nurses have personal liability, which means that every person is liable for his or her own conduct. None of the remaining options describes that liability or its outcomes accurately.

Malpractice or professional negligence is the failure of a person with professional training to act in a reasonable and prudent manner. How many components must be present for an individual to be found guilty of malpractice? A) Three B) Four C) Five D) Six

Ans: C Feedback: Five components must be present for a professional to be held liable for malpractice: duty to use care, failure to meet standard of care, foreseeability of harm, direct relationship between failure to meet the standard of care and injury can be proved, and injury.

What element must be included in the process of securing informed consent? A) A timeline of when the treatment is expected to occur B) Written information on what the post procedure outcomes will be C) Information regarding the risks involved in the proposed procedure D) An explanation of the nature of all associated treatment provided by the nurse

Ans: C Feedback: Informed consent can be given only after the patient has received a complete explanation of the surgery, procedure, or treatment and indicates that he or she understands the risks and benefits related to it. Timeline and nursing responsibilities are not components that are included. Outcomes are identified as expected or desired; no guarantees are given.

Which characteristics are required of a reasonable and prudent nurse? A) Years of clinically focused nursing experience B) Specialized nursing skills C) Average nursing judgment and skills D) Earned advanced nursing degree

Ans: C Feedback: Reasonable and prudent generally means the average judgment, foresight, intelligence, and skill that would be expected of a person with similar training and experience. The other options describe qualifications not required of a reasonable and prudent nurse.

What component of professional negligence is represented when a nurse fails to look up an unfamiliar medication before administering it? A) Duty to use due care B) Failure to meet standard of care C) Foreseeability of harm D) A direct relationship between failure to meet the standard of care (breach) and injury can be proved

Ans: C Feedback: The nurse must have reasonable access to information about whether the possibility of harm exists not fulfilling this responsibility may result in a foreseeable harm to the client. None of the remaining options are relevant to this criterion.

Which statement is true regarding the implications of a Good Samaritan law for a registered nurse? Select all that apply. A) A nurse has a legal responsibility to provide emergency services B) Such laws are universally worded so as to minimize state-to-state differences C) In order for protection to apply, the nursing care cannot be considered negligent D) A nurse who provided out-of-scope care is not protected by the Good Samaritan law

Ans: C, D Feedback: Nurses are not required to stop and provide emergency services as a matter of law, although most health-care workers feel ethically compelled to stop if they believe they can help. Good Samaritan laws suggest that health-care providers are typically protected from potential liability if they volunteer their nursing skills away from the workplace (generally limited to emergencies), provided that actions taken are not grossly negligent and if the health-care worker does not exceed his or her training or scope of practice in performing the emergency services. However, not being paid for your services alone will not provide Good Samaritan law protection. Good Samaritan laws apply only if the health-care worker does not exceed his or her training or scope of practice in performing the emergency services. Protection under Good Samaritan laws varies tremendously from state to state. In some states, the law grants immunity to RNs but does not protect LVNs or LPNs. Other states offer protection to anyone who offers assistance, even if they do not have a health-care background. Nurses should be familiar with the Good Samaritan laws in their state.

What component of professional negligence is represented when a patient experiences a seizure resulting from a medication error? A) Duty to use due care B) Failure to meet standard of care C) Foreseeability of harm D) A causal relationship

Ans: D Feedback: A direct causal relationship between failure to meet the standard of care (breach) and injury can be proved when a patient is harmed because proper care is not given. None of the remaining options are relevant to this criterion.

How is the legal expansion of nursing roles accomplished? A) The expansion of job descriptions in an agency B) Written contracts between the nurse and the client C) A written agreement between the nurse and the physician D) Revision of the Nurse Practice Act

Ans: D Feedback: RN scope of practice is always determined by the Nurse Practice Act and any expansion of roles must occur through legislated changes in that statute. None of the remaining options are sufficient to expand nursing roles legally.

Intentional torts

Assault and battery False imprisonment Invasion of privacy Defamation of character -Slander (spoken) -Libel (written)

Civil

Based on preponderance of the evidence Monetary damages

Criminal

Beyond a reasonable doubt Incarceration, probation, and fines

Administrative

Clear and convincing standard Suspension of loss of licensure

Court decisions (tort law)

Court mode law and the courts interpret the statute and set precedents Trial court and appellate court Most malpractice law

Three types of Law and courts

Criminal Civil Administrative

Malpractice Insurance Dilemma

Expanded roles => need malpractice insurance Malpractice insurance => higher risk of getting sued

Malpractice

Failure of a person with PROFESSIONAL training to act in a reasonable and prudent manner (professional negligence)

Good Samaritan Law

HCP volunteering out of workplace= protected from potential liability IF actions aren't grossly negligent and if health care worker does not exceed his or her training/scope of practice

Patient Self Determination Act

Health care orgs that receive Medicare or Medicaid are required to provide education for staff/patients on: -Treatment -EOL issues

The Constitution

Highest law in the US. Gives authority to other sources (statutes, administrative agencies, court decisions)

Statutes

Laws passed by the state or federal legislators. Must be signed by president or governor

Elements of Malpractice

Negligence Malpractice

Negligence

Omission to do something that a reasonable person would do- or as doing something that a reasonable and prudent person would not do

HIPAA

Patient's right to confidentiality Areas of implementation - Administrative Simplification Plan -Privacy rules

Administrative Agencies

Rules established by appointed agencies of the executive branch of the gov't

Sources of Law

The constitution Statutes Administrative Agencies Court Decisions (Tort Law)