N204, Fall 2018 - Legal Aspects to Nursing Practice

Four Elements of Malpractice

- Duty - Breach of Duty - Causation - Damages

Sources of Law

- Statutory Law (is either Civil Law and Criminal Law) - Regulatory Law (aka Administrative Law) - Common Law

Uniform Anatomical Gift Act

- An individual who is at least 18 yrs old has the right to make an organ donation - Donors need to make the gift in writing with their signature - In most states there is a law requiring that at the time of death a qualified health care provider ask a patient's family members to consider organ or tissue donation - Individuals are approached in the following order: (1) spouse, (2) adult son or daughter, (3) parent, (4) adult brother or sister, (5) grandparent, and (6) guardian - The National Organ Transplant Act (1984)

Assault

- An intentional threat toward another person that places the person in reasonable fear of harmful, imminent, or unwelcome contact - No actual contact is required

Battery

- Any intentional offensive touching without consent or lawful justification - The contact can be harmful to the patient and cause an injury, or it merely can be offensive to the patient's personal dignity - Also results if the health care provider performs a procedure that goes beyond the scope of the patient's consent

Role of Nursing Boards

- As mandated by the NPA, the board must ensure that a licensed nurse continues to practice within the standard of care, behaves professionally and ethically, and obeys all relevant state laws - The disciplinary action is on the license of the nurse, and that license may be suspended or revoked by the board. - Boards can only limit or deny a nursing license.

Floating

- Based on census load and patient acuities - Nurses who float must inform the supervisor of any lack of experience in caring for the type of patients on the nursing unit - They should request and receive an orientation to the unit

Patient Protection and Affordable Care Act (PPACA) (2010)

- Characterized by 4 themes embedded in nursing practice: 1. Consumer rights and protection 2. Affordable health care coverage 3. Increased access to care (including: patients may remain on their parent's health insurance until they are 26 years old) 4. Stronger Medicare to improve care for those most vulnerable in our society

Legal Termination of a Contract

- Completely performed: Terms met - Both parties agree to a change or annul. - Becomes impossible (e.g., through the death of a party or the destruction of the subject matter) - Breach: One party fails to meet the terms of the agreement; other party can sue in civil court for any damages

Health Care Providers' Orders

- Nurses follow health care providers' orders unless they believe that the orders are in error, violate agency policy, or are harmful to the patient - If the health care provider confirms an order and you still believe that it is inappropriate, use the agency chain of command to inform your direct supervisor - Make sure that all the health care provider orders are in writing, dated and timed appropriately, and transcribed correctly

Malpractice Insurance

- A contract between the nurse and the insurance company - Insurance pays for costs, attorney's fees and settlement, and other related fees generated in the representation of the nurse - Provides a defense when a nurse is in a lawsuit involving negligence or malpractice - Nurses covered by institution's insurance while working; only covers nurses while they are working within the scope of their employment; remember that the lawyer is representing your employer and not you - Without individual insurance coverage, the nurse will be required to personally pay all costs and attorney fees incurred by them in the defense against these claims - Nurses are also investigated by the State Board of Nursing or Nursing Commission to determine whether the alleged breach in care is a violation of civil regulations associated with their nursing license

Misdemeanor

- A crime that causes injury, but does not inflict serious harm - Example: parking in a "no parking" zone - Consequences for violations: fines, forfeiture (the loss or giving up of something in response to a crime), brief imprisonment, etc.

Duty

- A legal obligation toward the patient - A nurse's signature in the patient's medical record may be enough to prove that the nurse had a duty to the patient - For purposes of establishing the element of duty in a malpractice case against a nurse, the question is, "Did the nurse have a legal obligation toward this patient?"

Refusing Nursing Assignments

- A nurse may refuse an assignment when: (1) the nurse lacks the knowledge or skill to provide competent care; (2) care exceeding the Nurse Practice Act is expected; (3) health of the nurse or her unborn child is directly threatened by the type of assignment; (4) orientation to the unit has not been completed and safety is at risk; (5) the nurse clearly states and documents a conscientious objection on the basis of moral, ethical, or religious grounds; or (6) the nurse's clinical judgment is impaired as a result of fatigue, resulting in a safety risk for the patient - When refusing an assignment, it is important to give your immediate supervisor specific reasons for the refusal and determine if other alternatives, such as reassignment, are available

Consent

- A patient's signed consent form is necessary for admission to a health care agency, invasive procedures such as intravenous central line insertion, surgery, some treatment programs such as chemotherapy, and participation in research studies - Parents are usually the legal guardians of pediatric patients; therefore they typically are the people who sign consent forms for treatment - Patients with mental illnesses must also give consent; they retain the right to refuse treatment until a court has determined legally that they are incompetent to decide for themselves

Contract Law

- A promissory agreement between or among two or more parties that creates a legal relationship - Express contract: Written or verbal - Implied contracts

Felony

- A serious offense that results in significant harm to another person or society in general - Consequences for violations: monetary restitution, imprisonment for >1yr, death, etc. - Example of The Nurse Practice Act's violations that often carry a criminal penalty: misusing controlled substances, practicing without a license, etc.

Quasi-Intentional Torts

- Acts in which intent is lacking, but violations action and direct causation occur - These include invasion of privacy and defamation of character

"Do Not Resuscitate" (DNR) or "No Code" DNR orders

Documentation that the health care provider has consulted with the patient and/or family is required before attaching this type of order to the patient's medical record

Causation

- Addresses two issues: (1) whether the nurse's action or inaction caused the patient's injury and whether the patient's injury was foreseeable and (2) whether the nurse could have reasonably anticipated that his or her conduct might lead to patient harm - To determine whether the nurse's actions or inaction caused the injury to the patient, lawyers frequently use the "but for" test, which asks, "But for the acts or inaction of the nurse, would the injury to the patient still have occurred?"

Americans with Disabilities Act (1990, amended 2008)

- A civil rights statute that protects the rights of people with physical (including medical, such as Diabetes, HIV etc.) or mental disabilities - Prohibits discrimination and ensures equal opportunities for people with disabilities in: (1) employment, (2) state and local government services, (3) public accommodations, (4) commercial facilities, and (5) transportation

Tort

- A civil wrong made against a person or property - They are classified as intentional, quasi-intentional, or unintentional

Autopsy

- An autopsy or postmortem examination may be requested by the patient or patient's family - When the patient's death is not subject to a medical examiner review, consent must be obtained - The priority for giving consent is (1) the patient, in writing before death; (2) durable power of attorney; (3) surviving spouse; and (4) surviving child, parent, or sibling in the order named

Breach of Duty

- Considers whether the nurse's conduct violated the duty to the patient - To determine whether a breach of duty occurred, the plaintiff must show that the nurse's conduct did not comply with reasonable standards of care rendered by an average, like-specialty provider under similar circumstances - A number of methods are used to determine whether the nurse's care was reasonable (expert witness testimony, nursing texts, professional journals, standards developed by professional organizations, institutional procedures and protocols, and equipment guidelines developed by manufacturers, etc.) - Use of careful documentation techniques, such as those specified in the documentation guidelines, will help the nurse to establish that the care delivered was reasonable

Statutory Law

- Created by legislative bodies, such as Congress - Is either Civil Law and Criminal Law - Example: The Nurse Practice Acts

Informed Consent

- Creates a legal duty for the health care provider to disclose material facts in terms the patient is able to understand to make an informed choice - A part of the health care provider-patient relationship - It must be obtained and witnessed when the patient is not under the influence of medication such as opioids - It is not the nurse's responsibility to obtain

Advance Directives

- Documents include: living wills, health care proxies, and durable powers of attorney for health care - Based on values of: informed consent, patient autonomy over end-of-life decisions, truth telling, and control over the dying process - The Patient Self-Determination Act (PSDA) (1991)

Administrative Procedure Act

- Each state has one - A professional license is protected property by the U.S. Constitution - A license cannot be limited or taken away without due process: requires both the right to be heard and notice - A nurse has the right to appeal any decision made by the board

The Nurse Practice Act

- Example of a Statutory Law - Describes and defines the legal boundaries of nursing practice in each state, including: (1) defines the scope of nursing practice and expanded nursing roles, (2) sets education requirements, and (3) distinguishes between nursing and medical practice

Damages

- For a patient to recover damages from a nurse in a malpractice suit, he or she must have sustained some type of damage (i.e., injury, harm) - Example: if the nurse gave the patient the wrong medication but the patient did not experience any adverse effects, the damage element would be missing, and the malpractice suit would be unsuccessful

Unintentional Torts

- Includes negligence and malpractice

Short Staffing

- Legal problems occur if an inadequate number of nurses will provide care - The Community Health Accreditation Program (CHAP) and other state and federal standards require agencies to have guidelines for determining the number (staffing ratios) of nurses required to give care to a specific number of patients - The ANA (in conjunction with professional nursing organizations) has supported federal legislation titled the Registered Nurse Safe Staffing Act, which requires Medicare-certified facilities to establish staffing committees comprised of 55% direct-care nurses

State Statutory Issues in Nursing Practice

- Licensure - Good Samaritan Laws - Public Health Laws - The Uniform Determination of Death Act (1980) - Autopsy - Death with Dignity or Physician Assisted Suicide

Good Samaritan Laws

- Nurses act as Good Samaritans when providing care at the scene of an accident - All states have Good Samaritan Acts - Provisions may vary among states; however, these laws limit liability and offer legal immunity for nurses who help at the scene of an accident - At least two states, Minnesota and Vermont, require nurses to stop and help in an emergency - If you perform a procedure exceeding your scope of practice and for which you have no training, you are liable for injury that may result from that act - If you leave the patient without properly transferring or handing them off to a capable person, you may be liable for patient abandonment and responsible for any injury suffered after you leave him or her

Disaster Nursing

- Nurses who respond to disaster are typically volunteer nurses, working either through a recognized nonprofit organization such as the American Red Cross or through a government agency - As long as the volunteer nurse acts in good faith and within his or her scope of practice, he or she is protected from tort actions - Special provisions in most nurse practice acts permit practice across state borders for emergencies. - The Good Samaritan Acts, which were designed to encourage individuals to volunteer to help in emergencies, also protect volunteer nurses - In addition, special tort laws protect nurses who may be working as disaster volunteers under the coordination of a state or federal government agency in the same way employees of that agency are protected

False Imprisonment

- Occurs with unjustified restraint of a person without a legal reason - This occurs when nurses restrain a patient in a confined area to keep the person from freedom - Requires that the patient be aware of the confinement

Malpractice

- One type of negligence and often referred to as professional negligence - Certain criteria are necessary to establish nursing malpractice: 1. The nurse (defendant) owed a duty of care to the patient (plaintiff). 2. The nurse did not carry out or breached that duty. 3. The patient was injured and the nurse's failure to carry out the duty caused the injury. - The best way for nurses to avoid malpractice is to: 1. Follow standards of care 2. Give competent health care 3. Communicate with other health care providers - Nurses are accountable for timely reporting of any significant changes in the patient's condition to the health care provider and documenting these changes in the medical record - If records are lost or incomplete, there is a presumption that the care was negligent and therefore the cause of the patient's injuries

The United Network for Organ Sharing (UNOS)

- Organization associated with the federal government - Sets the policies and guidelines for the procurement of organs - Maintains a waiting list for organs based on (1) greatest need and (2) geographical area

TJC's Universal Protocol Principles

- Preoperative verification that relevant documents and studies are available before the start of the procedure and that these documents are consistent with the patient's expectations - Marking the operative site with indelible ink to mark left and right distinction, multiple structures (e.g., fingers), and levels of the spine - A time-out just before starting the procedure for final verification of the correct patient, procedure, site, and any implants

Criminal Law

- Protect society as a whole and provide punishments for crimes, which are defined by municipal, state, and federal legislation - Can be either a (1) misdemeanor or a (2) felony

Civil Law

- Protect the rights of individuals and provide for fair and equitable treatment when civil wrongs or violations occur - Consequences for violations: fines, public service, etc.

Emergency Medical Treatment and Active Labor Act (EMTALA) (1986)

- Provides that, when a patient presents to the ED or the hospital, an appropriate medical screening occurs within the capacity of the hospital - If an emergency condition exists, the patient must be stabilized prior to transfer or discharge (unless requested by the patient in writing)

Regulatory Law (aka Administrative Law)

- Reflects the decisions made by administrative bodies, such as State Board of Nursing, when rules and regulations are passed - Example: the requirement to report incompetent or unethical nursing conduct to the State Board of Nursing

Abandonment and Assignment Issues

- Refusing Nursing Assignments - Short Staffing - Floating - Health Care Providers' Orders

Disciplinary and Administrative Procedures of Nursing Boards

- Regulatory Power: authorizes the board to develop rules and regulations for nursing licensure, nursing education, and nursing practice - Adjudicatory Power: authorizes the board to investigate, hear, and decide the outcomes of complaints that involve violations of the NPA and of the rules and regulations promulgated by the board

Mental Health Parity Act (MHPA) as Enacted Under PPACA (1996)

- Requires insurance companies to offer the same level of coverage for mental health that they provide for medical and surgical care - Coverage for specific services, including mental health, behavioral health, and substance use services. - Insurers may not discriminate or deny coverage to patients with mental illness because of preexisting conditions. - Currently, admission of a patient to a mental health unit can occur involuntarily or on a voluntary basis. - If the patient's history and medical records indicate suicidal tendencies, the patient must be kept under supervision.

Common Law

- Results from the judicial decisions made by Courts when individual legal cases are decided - Examples: informed consent, a patient's right to refuse treatment, negligence, and malpractice

Termination of Pregnancy or Abortion Issues

- Roe v. Wade (1973): U.S. Supreme Court ruled that there is a fundamental right to privacy, which includes a woman's right to have an abortion; first trimester: a woman could end her pregnancy without state regulation because the risk of natural mortality from abortion is less than with normal childbirth; second trimester: the state has an interest in protecting maternal health, and the state enforces regulations regarding the person performing the abortion and the abortion facility; third trimester: when the fetus becomes viable, the state's interest is to protect the fetus; thus, the state prohibits abortion except when necessary to save the mother. - Webster v. Reproductive Health Services (1989): some states require viability tests if the fetus is more than 28 weeks' gestational age (narrowing Roe v. Wade)

Slander

Occurs when one speaks falsely about another

Restraints

- The Centers for Medicare and Medicaid Services (CMS), American Nurses Association (ANA), and The Joint Commission (TJC) have set standards for reducing the use of all types of restraints in health care settings - Restraints can be used (1) only to ensure the physical safety of the patient or other patients, (2) when less restrictive interventions are not successful, and (3) only on the written order of a health care provider - The regulations also describe documentation of restraint use and follow-up assessments - Litigation from improper restraint use is a common nursing legal issue - Liability for improper or unlawful use of restraints lies with the nurse and the health care agency

Death with Dignity or Physician Assisted Suicide

- The Oregon Death With Dignity Act (1994) was the first statute that permitted physician-assisted suicide. The statute stipulates that competent-yet-terminal patients could make an oral or written request for medication to end their life in a human and dignified manner. Terminal disease is defined as an incurable and irreversible disease that has been medically confirmed and that will, within reasonable medical judgment, produce death within 6 months. - The ANA has held that nurses' participation in assisted suicide violates the code of ethics for nurses. - The American Association of Colleges of Nursing (AACN) supports the International Council of Nurses' mandate to ensure an individual's peaceful end of life.

Licensure

- The State Board of Nursing licenses all registered nurses in the state where they practice - The requirements for licensure vary among states, but most states have minimum educational requirements - All nurses must take and pass the NCLEX-RN® licensing exam - The State Board of Nursing suspends or revokes a license if a nurse's conduct violates provisions in the licensing statute on the basis of administrative law rules that implement and enforce the statute

Standards of Care

- The legal requirements for nursing practice that describe minimum acceptable nursing care - Reflects the knowledge and skills ordinarily possessed and used by nurses actively practicing in the profession - Described in every state's Nurse Practice Act - Developed by the ANA and include: (1) scope, (2) function, and (3) role - The Joint Commission (TJC) requires accredited hospitals to have written nursing policies and procedures (aka internal standards)

Defamation of Character

- The publication of false statements that result in damage to a person's reputation - Includes slander and libel

Risk Management and Quality Assurance

- The rationale for risk-management and quality improvement programs is the development of an organizational system of ensuring appropriate, quality health care by identifying potential hazards and eliminating them before harm occurs - TJC requires the use of quality improvement and risk-management procedures - Both quality improvement and risk management require thorough documentation - Steps involved: 1. Identify possible risks 2. Analyze risks 3. Act to reduce risks 4. Evaluate steps taken - Incident and Occurrence reporting provides a database for further investigation in an attempt to determine deviations from standards of care and to identify corrective measures needed to prevent recurrence and to alert risk management to a potential claim situation - A nurse's documentation is often the evidence of care received by a patient and establishes support that the nurse acted reasonably and safely - One area of potential risk is associated with the use of electronic monitoring devices; continual assessment of a patient is necessary to help document the accuracy of electronic monitoring - Nurses on the units are risk managers - TJC's Universal Protocol Principles - Never events - Become involved in professional organizations and committees that define the standards of care for nursing practice - The voice of nursing is powerful and effective when the organizing focus is the protection and welfare of the public entrusted to nurses' care

Invasion of Privacy

- The release of a patient's medical information to an unauthorized person such as a member of the press, the patient's employer, the patient's family, or online - The information that is in a patient's medical record is a confidential communication that may be shared with health care providers for the purpose of medical treatment only - Never disclose the patient's confidential medical information without their consent - A patient must authorize the release of information

Health Information Technology for Economic and Clinical Health Act (HITECH) (2009)

- This act expands the principles extended under the HIPAA, especially when a security breach of personal health information (PHI) occurs - Under this act nurses must ensure that patient PHI is not inadvertently conveyed on social media and in particular that protected data are not disclosed other than as permitted by the patient

The Uniform Determination of Death Act (1980)

- This act states that health care providers can use the cardiopulmonary definition or the whole brain definition to determine death - The cardiopulmonary standard requires irreversible cessation of circulatory and respiratory functions - The whole-brain standard requires irreversible cessation of all function of the entire brain, including the brainstem - These two definitions facilitate the recovery of organs for transplantation

Health Insurance Portability and Accountability Act (HIPAA) (1996)

- This law provides rights to patients and protects employees - It protects individual employees from losing their health insurance when changing jobs by providing portability - It also creates patient right (1) to consent to the use and disclosure of their protected health information, (2) to inspect and copy one's medical record, and (3) to amend mistaken or incomplete information - It limits who is able to access a patient's record - Provides confidentiality of a patient's medical information

Public Health Laws

- Under the health code, state legislatures enact statutes that describe the reporting laws for communicable diseases, specify necessary school immunizations, and mandate other measures that promote health and reduce health risks in communities. - The Centers for Disease Control and Prevention (CDC) and the Occupational Safety Health Administration (OSHA) provide guidelines on a national level for safe and healthy communities and work environments - Public health laws protect populations, advocate for the rights of people, regulate health care and health care financing, and ensure professional accountability for care provided - Any health care professional who does not report suspected child abuse or neglect may be liable for civil or criminal legal action.

Intentional Torts

- Willful acts that violate another's rights - These include assault, battery, and false imprisonment

Nursing Students

- You are liable if your actions cause harm to patients, as is your instructor, hospital, and college/university - You are expected to perform as a professional when rendering care - You must separate your student nurse role from your work as a certified nursing assistant (CNA) (if you work as a CNA)

Health Care Proxy or Durable Power of Attorney for Health Care (DPAHC)

A type of legal written document that designates a person or people of one's choosing to make health care decisions, on the basis of the patient's wishes, when the patient is no longer able to make decisions on their own behalf

Living Wills

A type of legal written document that directs treatment in accordance with a patient's wishes in the event of a terminal illness or condition

PPACA Bill of Rights

Prohibited patients from being denied health care coverage because of (1) prior existing conditions, (2) limits on the amount of care for those conditions, and/or (3) accidental errors in paperwork specifying when a patient got sick

Cardiopulmonary resuscitation (CPR)

An emergency treatment provided WITHOUT patient consent, unless there is a DNR order in the patient's chart

Never Events

Are preventable errors, which may include falls, urinary tract infections from improper use of catheters, and pressure ulcers.

You are about to administer an oral medication and you question the dosage. You should: A. administer the medication. B. notify the physician. C. withhold the medication. D. document that the dosage appears incorrect.

B. notify the physician. Rationale: If you find one to be erroneous or harmful, further clarification from the health care provider is necessary. If the health care provider confirms an order and you still believe that it is inappropriate, use the agency chain of command to inform your direct supervisor.

A student nurse employed as a nursing assistant may perform care: A. as learned in school. B. expected of a nurse at that level. C. identified in the hospital's job description. D. requiring technical rather than professional skills.

C. identified in the hospital's job description. Rationale: Student nurses should never perform a task that is not in the job description of the facility with which they work.

Negligence

Conduct that falls below the generally accepted standard of care of a reasonably prudent person

The National Organ Transplant Act (1984)

Prohibits the purchase or sale of organs, provides civil and criminal immunity to the hospital and health care provider who perform in accordance with the act, and protects the donor's estate from liability

The physician opts to not reveal the diagnosis of terminal illness to a mentally ill patient. The decision is based on: A. Emergency exception. B. Implied consent by admission to the facility. C. Inability to fully understand the diagnosis. D. Knowledge of terminal illness may lead to suicide.

D. Knowledge of terminal illness may lead to suicide.

The patient refuses to have another peripheral vascular site after two successive unsuccessful attempts. What is an appropriate nursing action? A. Ask another nurse to try. B. Discuss the refusal. C. Notify the physician. D. Stop any attempts.

D. Stop any attempts.

A nurse is caring for a patient who states, "I just want to die." For the nurse to comply with this request, the nurse should discuss: A. living wills. B. assisted suicide. C. passive euthanasia. D. advance directives.

D. advance directives. Rationale: Advance directives are written documents that outlay the patient's wishes, should he or she become incapacitated.

An Enforceable Contract

Includes: - For performance of legal goods or services. A nurse cannot contract to practice medicine - The parties must have legal capability to make the contract. For example, they must all have the mental ability to understand their actions and must be old enough to make a legal agreement - All parties at the time of the contract must agree to do something, and they must agree on what that something is - There must be "consideration" (i.e., some kind of trade in which each party gets something from the contract)

The Patient Self-Determination Act (PSDA) (1991)

Requires health care institutions to provide written information to patients concerning their rights under state law to make decisions, including the right to refuse treatment and formulate advance directives

The Fair Labor Standards Act (FLSA)

Sets standards for overtime pay, minimum wage, family and medical leave, child labor, and workers' compensation

Employment at Will

The employee has the right to terminate employment for any reason "at will," and the employer has the parallel right to terminate the employee at any time for any reason, also "at will."

Libel

The written defamation of character