Ch. 23 Fundamentals- Legal Implications Nursing

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

was passed with HIPPA in response to technology and social media. expands principles under HIPPA, especially security breach of personal health info (PHI) Nurses must ensure that patient PHI isn't inadvertently conveyed on social media and that protected data are not disclosed other than as permitted by patients. Civil or criminal sanctions may be brought against both nurse and organization if they violate HIPPA or HITECH act. Report violations of patient confidentiality to your supervisor. Application to Nursing Practice (Using Social Media) Understand risks and benefits Maintain professional boundaries Present professional image Maintain privacy and confidentiality Understand implications of identifying yourself as a nurse Know your state laws governing use of SM

Statutory Guidelines for Legal Consent for Medical Treatment

Adults: a. competent individual 18 and older for themselves b. parent for unemancipated minor c. guardian d. adult for minor brother or sister(emergency and parents not present) e. grandparent of minor grandchild (emergency) Minors: A. Ordinarily, minors may not consent without a parent. Emancipated minors may. Emancipated minors: 1. Emancipated by court order 2. Married, widowed, or divorced 3. Active in military B. Unemancipated Special Medial Conditions 1. Pregnancy and related conditions - Differs state to state 2. Minor parent present for child 3. STI info and treatment 4. Substance abuse treatment 5. Outpatient/ temporary sheltered mental health treatment. C. Issue of emancipation minors does not relieve the HCPs duty to attempt to obtain meaningful consent. Informed consent- patient's agreement to have a medical procedure after receiving full disclosure of risks, benefits, alternatives, and consequences for refusal. Must provide info in terms pt understands to make informed choice. Failure to obtain consent in situations other than emergencies will result in claim of battery. Key elements of consent: 1. Patient receives explanation of procedure. 2. Pt receives names and qualifications of ppl performing and assisting. 3. Recieves description of serious harm, including death, that may occur and anticipated pain and discomfort. 4. Receives explanation of alternative therapies to proposed procedure / treatment and risks of doing nothing. 5. Patient know they have right to refuse without discontinuing supportive care. 6. Patient knows they can refuse even after procedure or treatment has begun. Nurses witness consent; they do not obtain consent for procedures performed by others. Nurse's signature as witness means: patient appeared voluntarily give consent, capable to give consent, signed in nurses presence. If you suspect patient doesn't understand or voluntarly give consent, notify HCP and nursing supervisor. IF necessary to assure consent , contact medical director. If platient refuses treatment, ensure documentation of rejection is witness, signed, and written. Nursing students cannot be responsible to witness consent forms due to legal nature of document. Occasionally a parent refuses treatment for child; court may intervene - doctrine of parens patriae. If patient is unconscious - must obtain consent from person legally authorized on patient's behalf. In emergency, and impossible to obtain from pt or authorized person, a HCP may perform life saving procedures without liability for failure to obtain consent. In such cases, law assumes pat would wish to be treated. Mental illness patients or substance abuse disorders, must also give consent.; They have right to refuse until court determines legally incompetent.

Professional Improvement

As a professional nurse, important to remain aware of current issues in HC. Become involved in professional orgs. and committees that define standards of care. If current laws, rules and regulations, or policies are not EB, advocate to ensure that the scope of nursing practice is defined accurately. Be willing to represent nursing and the patients perspective in community. Voice of nursing powerful and effective when organizing focus is on protection and welfare of public entrusted to nurse's care.

1) Patient Protection and Affordable Care Act (PPACA)2010 Later became ACA

Characterized by 4 themes embedded in nursing: 1. consumer rights and protections 2. affordable HC coverage 3. increased access to care 4. quality of care that meets the needs of patients Challeges include: mandatory enrollment and pre-existing condition eligibility A New Patient's Bill of Rights (created by ACA) prohibits patients from being denied coverage due to preexisting conditions, limits on amount of care on condition, or accidental mistake in paperwork when patient got sick. No more lifetime limits ACA intended to reduce overall medical costs by: 1. providing tax credits 2. increasing insurance company accountability for premiums and rate increases 3. increasing number of choices available to patients to select insurers that best meet their needs. ACA increased access to HC. Patients now receive preventative services (cancer screenings, BP) without copays or deductibles. Imporved Medicare coverage for vulnerable populations by improving access to care and prescriptions, decreasing cost of meds, extending life of Medicare Trust Fund until 2024, addressing fraud and abuse in billing . Reduced number of uninsured. Reasons people remain uninsured: high cost of insurance not having access to employer coverage ineligibility for financial assistance Those who remain uninsured: families with at least one working member low income adults under 65 nonHispanic blacks and people above poverty- highest number ACA has and continues to change. CMS proposed change - allow people choice to join Qualified Health Plans (QHP) that do not cover pregnancy termination svcs and to provide greater flexibility in choices for QHP. Important for nurses to have factual knowledge about changes to assist patients with decisions on HC. Help patients make decisions that are clinically sound and based on their preferences, values, and beliefs

5)Americans with Disabilities Act (ADA) 1990 amen. 2008

Civil rights statute that protects. the rights of people with physical or mental disabilities. Prohibits discrimination and ensure equal opportunities in: employment state and local govt svcs public accommodations commercial facilites transportation Employers must provide reasonable accommodations to employees or applicants who are qualified to hold a job. This enables person to perform essential functions of the job. person with diablility makes the choice to tell others of disability. Exception: HC worker with HIV HC workers cannot discriminate against patients with HIV

Darling vs. Charleston Community Hospital

Corporate Negligence. Nurses failed to help patient with insufficient circulation. Leg was amputated. Fist case for nursing negligence. When a member of the medical staff fails to meet established standards of patient care. Almost every state uses this Illinois Supreme Ct as legal precedent.

Good Samaritan Law

Encourage HCP to assist in emergencies. Limit liability and offer legal immunity if a nurse helps at scene of accident. You are immune if complications develop due to actions as long as you did not act with gross negligence or a procedure exceeding your scope of practice or have no training. Only perform what is needed and within your level of knowledge and experience. Once you help, you must stay with patient until safely transferred to someone who can provide care (EMT or ER). If you leave, you may be liable for patient abandonment and responsible for any injury suffered after you left.

Federal Statutes Impacting Nursing Practice

Federal state regulations affect nursing practice. Typically linked to certification contracts for Medicare and Medicaid reimbursement. Often expanded when states pass laws that increase the application of federal statute to others in the state. HIPPA, HITA, ADA federal statutes that affect nursing practice. Patient Self-Determination Act is federal statute that requires HC institutions to provide information to patients regarding rights to make informed decisions , including right to an advanced directive. This can include DNR.

2)Informed Consent and Health Care Acts

Health care Acts within each state describe and define the minimum standard of care that will be provided within a geographic region. These acts and regulations are interrelated with other laws governing nursing - including expectations regarding consent. A patients signed consent form is necessary for admission to a HC agency, invasive procedures (Iv line insertion), surgery, treatment programs (chemo), and participation in research studies. State laws designate who is legally able to give consent. Nurses need to know the state law and be familiar with P&P for employing agency regarding consent. Special considerations for deaf, illiterate, speaks foreign language. Family member cannot interpret health info- make every effort to help pat make informed choice.

Professional License Defense (part of nurse practice act)

It is expensive when nurse does not have insurance to cover cost of keeping license to practice. On avg. $12,000 or more is required to respond to complaint. In most instances, the employer's malpractice insurance will not include cost to defend nurse license. Professional License Defense Insurance is a contract between nurse and insurance co. Company refers nurse to an attorney who will defend nurse when interacting with state board. Insurance co will cover costs of representing nurse when responding to allegations the board is investigating. Malpractice Insurance is a contract between insurance co and nurse or employer. It is intended to cover costs when a pt sues employer or nurse. Provides for defense of employer and nurse in lawsuit. Insurance co pays costs, attorney fee, settlement, and other related fees. Does not cover costs when complaint is filed with state board- 2 different actions, separate laws apply. Therefore, it is recommended that a nurse carry both professional license defense and malpractice insurance. HC agencies have insurance to provide financial assistance when it is alleged a pat was permanently harmed; As an employee or agent of agency, actions of nurse will be examined. Remember: lawyer is representing the agency not the nurse. Insurance provided by agency covers nurses only while they are working within scope of employment.

The Uniform Determination of Death Act

Many legal issues surround event of death , including basic definition of actual point of legally dead. Def varies by state. 2 Standard def for determination of death: 1. Cardiopulmonary standard requires irreversible cessation of circulatory and respiratory functions. 2. Whole brain standard requires irreversible functions of entire brain, including brainstem. Most states have statutes like proposed language in Uniform Determination of Death Act: It states that HP can use either determination to determine death. Be aware of legal definitions in your state for documentation when patient is in your care. Nurses have specific legal obligation to treat deceased person's remains with dignity. Wrongful handling causes emotional harm to family.

Nursing Workforce Issues

Nursing Students Liable if actions exceed scope of practice and cause harm to patients. Required to know what can cannot do, regardless of intent. If student harms a patient as a direct result of a lack of action, the student, hospital, university share liability. Nursing schools should provide clear definitions of preceptor and faculty responsibility. Students should only perform tasks delegated and included in Job title description when employed in HC settings. If staff nurse assigns a student to work without regard for ability to safely conduct tasks, nurse is also liable. A student employed as an aide, must refuse to perform tasks not prepared to do safely.- tell supervisor Patient safety is essential- Actions must meet standards of practice required. YOu may have learned a skill, does not mean you can safely perform- Err on side of caution Staff and Nurse to patient ratios Adequate staffing is required to assure safety and satisfaction with care. Legal issues occur when not enough nurses or working excess overtime. Spires v Hospital Corp of America (2006)- poor patient care resulting in death due to insufficient RN staffing Many states require safe staffing nursing committee in acute settings determine safe staffing based on needs of patients admitted in facilities. Employers sometimes inappropriately ask committees to make budgetary recommendations. California- fixed ratio mandated by law ANA. and other professional nursing organizations have supported federal legislation titled Safe Staffing for Nurse and Patient Safety Act of 2018. Hospitals receiving Medicare reimbursement will be required to have staffing committees, 55% of which will be direct- care nurses. Committees will develop and implement staffing plans for each unit. Patients will receive better care and it is anticipated that a decrease will occur in adverse events, nurse turnover, and hospital readmissions Under this act, nurses become integral part of ensuring patients receive care from nurses qualified to meet needs in safe environment. Nursing Assignments Floating sometimes used because not enough nurses to care for number of patients and acuity of needs at that time. Inform supervisor if you do not hav the education or exp necessary. Should request and receive an orientation on that unit. Supervisors are responsible if give staff Nurse an assignment they cannot handle safely. Patient Abandonment Nrse refuses to provide care after establishing patient-nurse relationship. Before establishing relationship, nurse may refuse if: 1. Nurse lacks knowledge or skill to provide comp cre 2. care exceeds Nurse Practic Act is expeceted 3. health of nurse or unborn child is threatened by type of assignment. 4. Orientation not completed and safety is at risk 5. nurse Clearly states and documents a conscientious objection on basis of moral, ethical, or religous grounds. 6. nurse's clinical judgement is impaired, as result of fatigue , resulting in safety risk to patient when refusing, give immediate supervisor specific reasons and determine whether other alternatives or reassignment is availbal Document you personal notes with specifics of incident to whom you reported it, and actions taken to ensure patient was safe and you did not abandon. Nurse Delegation Defined in Nurse Practice Act regulations vary state to state Rn observes, educates, and verifies that a non-nurse can do a specific task that is usually completed by nurse. Several requirements ensure pat safety Rn retains resp to supervise care and periodically assess whether delegation is appropriate. Delegation to NA may include medication administration and blood glucose monitoring.

Nurse Experts

Nursing expert testifies to standards of nursing care as applied to facts of a case. Has education and exp related to alleged complaint. Expert nurse must determine no conflict of error before accepting a case. Expert will review all evidence before giving an opinion; including relevant laws and regulations, P&P, pat records, other expert reports, and depositions. Base their opinions on standards on nursing practice established in Nurs Practice Act and state licensing laws, TJC standards, professional orgs, institutional P&P, job descriptions, and current EB lit. Ignorance of law or standards of care is not a defense of malpractice. Nurses are required to know valid, reliable, and credible evidence that is applicable to their practice and settings. Offer opinions on whether others have met standard; do not make legal decisions.

Legal Implications and Issues Assoc with Nursing Practice

Patients or family who experience poor outcomes believe care by nurse failed to fall within scope of nursing practice or failed to meet standards. They may file torts, alleging nurses knew or should have known their behavior was less than what is reasonably prudent.

Anatomy of a Lawsuit

Petition: Elements of the claim. Plaintiff outlines what nurse did wrong. and because of that negligence, how they were injured. Answer: Nurse admits or denies each allegation. Plaintiff must establish anything nurse does not admit. Discovery: Process of discovering all the facts the case, involves interrogatories, full access to medical records in question, and depositions. Patient and staff are asked question by counsel for defense.Under oath and recorded. a. Interrogatories- written questions requiring answers under oath. Typically opposing counsel will request a list of witnesses, insurance experts, which HCP patient saw before and after event. b. Requests for productions- opposing parties request relevant documents, pictures, or related materials such as medical records for treatment before and after. c. Depositons- Questons are posed to opposing parties, witnesses, and experts to obtain relevant information. Experts establish elements of case and applicable standard of care. Medical Records: Defendant obtains all plaintiff's records for treatment before and after.Anything written, including emails and texts, social media, open to examination by both parties. Witnesses' deposition- Questions to witnesses under oath Parties' dep- plaintiff and defendants are deposed Other witnesses- Factual witnesses, both neutral and biased deposed for their version. May include family and other medical personnel. Experts- Plaintiff selects experts to establish essential legal elements of case. Defendant selects experts to establish appropriateness of care.Nursing experts are asked to testify to reasonableness or inappropriate actions of HC staff once patient's condition changed.The expert is asked to compare nursing staff to standard care. Trial- Usually 3 years after filing of petition. Most are settled before trial. Agency must maintain records according to specific statutes and accreditation regulations.Nursing notes contain substantial evidence needed to understand care. If records are lost, incomplete, or altered, it is presumed care was negligent and cause of patient's injuries. Incomplete or illegible records make HCP less credible. Determine changes documented by prior nursing staff and document timely responses. Document patient decision making. EHRs can be retrieved in existing form any day- it is apparent it has been altered.

Public Health Laws

Public health laws affect individuals, populations, and communities. Protect populations, advocate for rights of people, regulate HC and HC financing, and ensure professional accountability for care provided. May be either federal or state statutes that are intended to improve the health of people. State legislatures enact statutes under health codes, which describe the requirements of reporting communicable diseases, school immunizations, and other conditions intended to promote health and reduce risks in communities. CDC and OSHA (Occupational Health and Safety Act) provide guidelines on a national level for safe and healthy communities and work environments. Nurses have a duty to provide care to protect public health. This includes reporting suspected abuse/ neglect of a child, older adult, or victim of domestic abuse; reporting communicable disease; ensuring required immunizations; reporting health-related issues to protect public health. In most states, nurses are mandatory reporters.The standard proof to report is that nurse has reasonable suspicion; must place safety of patient above that of caregiver when making decision to report.. Failure to report will be liable for civil or criminal legal action. State Board now require mandatory continuing ed on abuse for license renewal or before obtaining new license.

Risk Management and Performance / Quality Improvement

Risk management and PI and QI programs help reduce nurse's legal risk for malpractice and negligence because they help identify potential hazards and eliminate them before harm occurs. Processes are similar but PI emphasizes human performance while QI focus is work processes. These processes promote "just culture" envt that encourages honest disclosure and systemwide resolution to prevent occurrence or reoccurrence of circumstances surrounding concern. Risk mangagemt involves several components, including identifying possible risks, analyzing them, acting to reduce risks, evaluating steps taken to reduce them. All 3 are essential and require documentation of info to facilitate resolution. Nurses are risk managers. For ex. surgeons rely on operating room nurses to compare consent form with indicated and prepped surgical site for accuracy. TJC's universal protocol helps prevent errors due to patients undergoing wrong surgery or performed on wrong site. protocol requires timeout before performing surgery- Nurses resp to implement whenever invasive surgery is to be performed. 3 principles of protocol: 1. preoperative verification that relevant documents and studies are available before start and consistent with patient's expectations 2. marking the site with indelible ink to mark left and right distinction, multiple structures (fingers), and levels of spine 3. time out just before starting for final verification of correct patient, procedure site, and any implants Patient safety and improved care are the goals of QI, PI, and risk management. Professional groupd- IOM focus on patient safety as major goal. Never events- preventable errors, which include falls, UTIs from improper Cath, pressure injuries. Fed gov and ins co have developed policies to withhold reimbursement for never ev. All HC settings conduct monthly monitoring to prevent incidence of never events. Staff is expected to maintain standards to prevent. Tool of risk management is occurence report or incidence report- reporting provides a database to determine deviations from standards of care, identify corrective measures, and alert risk management to potential claim. ex of occurrence: patient or visitor fall or injury, failure to follow HCP orders, family complaint, error in tech or procedure, malfunctioning device. The report is confidential and separate from the medical record. But, is discoverable by court order. Risk managers work with nurses to provide safe care and prevent reoccurrence of circumstances when patient is potential or actually harmed.

Introduction

Safe EB and competent nursing requires nurses to know laws, policies, that define their practice. Laws, standards, and policies help frame HC system. Includes: state Nurse Practice Acts Scope and Standards of Nursing Code of Ethics Nursing Society expects safe HC delivery. Nurses seen as the most ethical and trusted profession Patient care is becoming more complex and practice innovations and new technologies are emerging- principles of negligence and malpractice liability broadens.

Scope and Standards of Nursing

Scope of Nursing Practice- defines nursing and reflects the values of the nursing profession. Standards of Nursing Care- reflect the knowledge and skill ordinarily possessed and used by nurses. Standards of nursing care are derived from: health care laws best practice guidelines professional organization white papers evidence based nursing knowledge citizen advocacy groups The ANA and specialty nursing organizations develop standards of nursing practice, the nursing code of ethics, and policy statements. For ex, the scope of nursing and the 17 standards of practice that describe what nurses do is published by ANA. Nursing is defined and the responsibilities and expectations are clearly explained. Can be used in legal actions taken against nurses. P&P within HC agencies are based on S&S of nursing practice. They must reflect current best practice and the evidence that supports the processes they describe. TJC requires written nursing P&P be accessible on all nursing units. Agency P&P must conform to state and federal laws and community standards. It is important to know the S&S as well as HC agency's P&P because failure to comply can result in litigation for nurse.

9)Omnibus Budget Reconciliation Act (OBRA) 1987

Significantly altered how health care is provided to older adults. Focus: patient rights, QOL, QOC, and physical envt in which patients live. One change focused on use of physical and chemical restraints used alter behavior. Use of restraints has been assoc with serious complications and death. CMS, ANA, TJC set standards to reduce use of restorations in HC setting. All patients have constitutional right to be free from seclusion and physical or chemical restraints, except on rare occasions, to ensure safety fo staff, patient, or emergency. Must be last resort. Critical to know who can legally order restraints, assessments required, and length of time restraints can be used. Required to continually monitor restrained or secluded patients; HCP trained in CMS restraint requirements is required to assesss pat face to face within 1 hr of applying. Restraints can be used: 1. only to ensure physical safety of patients 2. when less restrictive interventions are unsuccessful 3. only on written order of HCP Litigation from improper use may include allegations of unlawful imprisonment and harm assoc with injury due to restraint.

Standard of Proof

Standard of proof is typically what a reasonably prudent nurse would do in similar circumstances in the geographic area in which alleged breach occurred. Standard of proof in malpractice case is the degree to which the evidence must show that a duty of care was violated. Malpractice- result of nursing care falling below a standard of care. Four criteria needed to establish nursing malpractice: 1. Nurse had a duty of care (ex Nursing Practice Act) 2. The duty was breached (ex nursing regulations) 3. Physical harm occurred ( ex testimony and records) 4. In the particular state, damages or monetary compensation are allowed. During malpractice suit, nurse's conduct is compared with nursing Standards of Care (Scope and Standards of Care ANA) to determine if nurse acted as any prudent nurse would. Following your agency's P&P ensures your care is similar to what other prudent nurse colleagues would provide under similar circumstances.

State Statutes Impacting Nurses

State law regulates how HC will be delivered and regulates licenses HC agencies and HCP providing care to citizens. When harm occurs to patients, malpractice suits are filed primarily under state law, actions are taken against facilities to no longer operate, and charges are made against nurse's license when it is determined they contributed to harm.

Beginning and End of Life Nursing Issues

Termination of Pregnancy 1973- Roe v Wade- US Supreme Court ruled fundamental right to privacy which includes woman's decision to terminate pregnancy. During first trimester, woman can end pregnancy without state regulations because risk form natural mortality from abortion is less than with normal childbirth. During 2nd trimester- state has interest in protecting maternal health, and enforces regulations regarding person terminating pregnancy and agency. By third, when fetus is viable, prohibits termination except necessary to save mother. 1989- Webster v Reproductive Health Svs- court substantially narrowed R v W. Some states require viability tests before abortion. Some require parental consent or judicial consent that minor is mature enough. "heartbeat" laws- no termination after heartbeat Death with Dignity or Physician Assisted Suicide Oregon Death with Dignity Act 1994 was first statute to legislatively define "death with dignity". Statute stated that competent individual with a terminal disease could make an oral written request for medication to end life in humane and dignified way. Terminal disease- incurable, irreversible disease tha has been confirmed and will, with reasonable med judgement produce death within 6 months. The ANA believes nurses participation violates code of ethics. AACN (College of nurses) has historically supported the Inter Council of Nurses mandate to ensure and individuals peaceful end of life. These 2 positions are not considered contradictory- require nurses to approach end of life care with openness to listening to patient expressions of fear and to attempt to control pain during last months.

Torts

civil wrongful acts or omissions made against a person or property. Classified as intentional, quasi-intentional, or unintentional. Intentional tort- deliberate act against person or property. May result in both civil and criminal. Assault is an intentional threat toward another person that places person in reasonable fear of harmful, imminent, or unwelcome contact. No actual contact is required for assault to occur. For ex: nurse threatens to restrain patient after they refused consent or patient threatens nurse. Battery is intentional offensive touching without consent of lawful justification. It can cause injury or merely be offensive to dignity. Ex. giving injection without consent. Battery also is if HCP goes beyond scope of consent. ex. Pat consents for tonsillectomy, but gets appendectomy. Key component is patient's consent False imprisonment is when patient is restrained without legal reason. Quasi- Intentional Torts Acts in which a person may not intend to harm but does. Invades another privacy or defames their character. Quasi are alleged when person should have known that harm would occur. Invasion of privacy is usually release of HC information to unauthorized person: press, employer, family, online. HIPPA and HITECH Act privacy standards have raised awareness. Info in medical rec should only be shared to providers to provide treatment. Includes electronic comm- email, text, etc. All comm becomes part of HC record and confidential. Anyone insisting on recieving info without consent should immediately be referred to supervisor. Defamation of character- publication of false statements that damage another's reputation Slander- one speaks falsely of another. Ex. Nurse tells people erroneously pt has STD and disclosure affects pt.s business. Libel- written defamation of character ex. charting false defamatory entries in record Unintentional torts when a person is harmed and the person inflicting knew or should have that the actions were less than accepted scope and standard of practice. Negligence - conduct that falls below the generally accepted standard of care of reasonably prudent person. ex. hanging wrong IV solution Result in disciplinary action of State Board and lawsuit for negligence. Most lawsuits allege negligence. Malpractice is a type of negligence. Person being held liable for malpractice must be a professional. Certain criteria are necessary: 1. Nurse (def) owed a duty to patient (plaintiff) 2. Nurse did not carry out/ breached that duty 3. Pt was injured due to breach 4. Damages or remedies are allowed to make person whole in eyes of court. Most malpractice and professional licensure claims occur in hospital setting. Common causes against nurse: failure to follow standard of care (not implementing pressure injury of fall protocol)., failure to communicate important information to another provider, failure to document appropriately, failure to assess and monitor, inappropriate delegation of nursing tasks. Essential to never override safeguards for medication administration. Can include failure to check patient's identity before administering blood and giving it to wrong pt Giving medication med rec documented allergy In general, courts define nursing malpractice as failure to use degree of skill or learning ordinarily used under same or similar circumstances by members of nursing profession. Another risk is use of electronic devices: assess patients to determine accuracy and document when calibration occurs. Best way to avoid malpractice - follow EBP standards of care, deliver care competently, and communicate with HCPs. Develop caring rapport with patients and throughly document assessments, interventions, and evaluation of care. Act on spirit of inquiry to provide best care in conduction with patient preferences and values. Know and follow P&P. Be sensitive to pat risks- press inj, falls, med errors Communicate with patients; Explain EVERYTHING Document EVERYTHING Listen to patients concerns You are responsible to report any significant change in patient's condition in a timely manner to HCP and document changes. Ensure that you conduct your own assessment. Quasi-Intentional Tort

Types of law that govern nursing practice

constitutional law- derived from federal and state constitutions. refers to rights granted to citizens in US constitution and and state constitutions. ex. constitutional right to refuse treatment statutory laws-derived from statutes passed by US Congress and state legislatures. Either civil or criminal law. Civil laws- Passed by Congress and state legislatures to protects rights of individuals and provide for fair and equitable treatment when civil wrong or violations occur. (Nurse Practice Act) Criminal law- Passed by Congress and state legislatures to protect society and provide punishment for crimes, which are defined by municipal, state, and federal legislation. Typically defined by misdemeanor or felony. Criminal mistreatment is classified- misdemeanor or felony- based on severity of harm to vulnerable patient. Nurse Practice Acts- civil state laws that define nursing and the standards that must be met within individual states. Contains scope of practice, educational requirements, NCLEX info. Distinguishes nursing from other HC professions. administrative law-AKA regulatory law- more clearly defines expectations of civil and criminal law. Describes the process to report incompetent or unethical nursing conduct to State Board of Nursing or Nursing Commission. Failure to report violates statutory law. Nurses can appeal these violations to State Board or Commission. In comparison- With criminal mistreatment- statutes have regulations to determine intent fo person who commits the crime. Degree of offense distinguishes intent. Nurses accused of violating regulatory laws knew or should have known actions would result in harm common law- originates from decisions that were made in the absence of the law. Judicial decisions made in courts when individual legal cases are decided. Implied laws case law- describes decisions made in legal cases that were resolved in courts.

8)Uniform Anatomical Gift Act (UAGA)1987

developed by National Conf of Commissioners and approved by American Bar Assoc. Provides foundation for the national organ donation system. Patient autonomy, individual autonomy, and public trust remain ethical principles with organ donation. Individual at least 18 years of age can donate. Consent In writing or on back of DL. In most states, the law requires at time of death, a qualified HCP ask family members to consider. (National Organ Transplant Act) Asked in order: 1. Spouse 2. Adult children 3. Parent 4. Sibling 5. grandparent 6. Guardian HCP who certifies death cannot be involved in removal. National Organ Transplant Act: Prohibit sale Provides civil and criminal immunity to hospital and HCP who perform in accordance with act. Protect donor's estate from liability for injury or damage that results form gift. UNOS- United Network for Organ Sharing has contract with federal govt and sets policies and guidelines for procurement of organs. Elgibility: Patient with most urgent need within 150 mile radius, then 250, up to 500.

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

prohibits transfer of patient from private to public hospitals without appropriate screening and stabilization. Protects patients coming for emergency care. Prevents "patient dumping" Exceptions: if a patient requests transfer or discharge in writing after receiving info about the risks of transfer or in a physician or NP certify benefits outweigh risks.

3) Health Insurance Portability Act (HIPPA) 1996

provides rights to patients and protects employees Includes standards regarding accountability in HC settings. Establishes patient's right to privacy of HC information and records. HIPPA establishes patient's right to consent to the use and disclose of protected health information, to inspect and copy one's record, amend mistaken or incomplete info. Limits who can access record. Establishes basis for privacy(right to keep info from being disclosed) and confidentiality(protects info once disclosed in HC settings) concerns. Nurses: avoid discussing patients in hallway provide reasonable levels of privacy when communicating with patients hospital boards no longer contain info about med condition HC info privacy is protected by standards set by the CMS. (Center of Medicare and Medicaid) for hospitals who participate in Medicare/Medicad. Standards require: Patients given notice of rights to decisions on HC grievances regarding care mgmt, personal freedom and safety, confidentiality, access to records, freedom from chemical and physical restraints not necessary.

7)Patient Self-Determination Act (PSDA) 1991

requires HC institutions to provide written information to patients concerning their rights to make decisions about their care, including right to refuse treatment and formulate advanced directive. A patient's record must indicate they have signed and provide a copy of AD. Advanced Directive- document developed by patient to instruct others of tasks before, during, and after death. At min.- include statement of wishes in event of respiratory or cardiac arrest and a coy of durable power of attorney for health care (DPAHC). Instructions should be signed by physician. Document should be treated as an order.-may direct whether to provide CPR or just comfort. Most statements have a designated person who can make decisions if pt is incapacitated. But patient makes any decisions if able- at home, ER, inpatient. Decisional capacity- patient's ability to make choices about care. HCP, in conjunction with info from nurses and family can make determination of decisional capacity. The assessment that triggers the beginning of the DPAHC should be reflected in record. If disagreement regarding capacity, a competency hearing is conducted in court. As with all involuntary commitment hearings, the court is asked to deny a US citizen the constitutional right to make decisions, which takes away all rights and privileges provided a citizen. A guardian is the appointed and the only person who can make decisions . Under the Patient Self Determination Act and state specific statutes, advance directives that include DPAHC and orders whether to provide resuscitation MUST BE CLEAR and in compliance with law. Nursing care is individualized based on patient's instructions and state where patient resides at time directive is implemented. DPAHC's ability to make decisions expires at patient's death. Living wills will also include info about patient's preferences regarding end-of-life care. Can include Physician orders on sustaining life (enteral feeding) and CPR. Documents are based on values of informed consent, patient autonomy, truth telling, and control over dying process. Many resources available to help write LW: Five wishes- helps patients write directives when responding to 5 questions. five wishes.org Questions: identify a DPAHC, type of medical treatment wanted and not wanted, comfort measures, how they want to be treated by those around them, what they want those who love them to know. Providing this info and assisting patients in recording wishes is rewarding for patient, empowering to loved ones, and humbling to nurses. Sometimes family has a hard time accepting decisions patients make. The ethical doctrine of autonomy, has been upheld in court, ensures patient the right to refuse treatment. In cases involving a patient's right to refuse or withdraw medical treatment, the courts balance the patient's interest with interest of state to protect life, preserving medical ethics, preventing suicide, and protecting innocent 3rd parties. Children are considered innocent 3rd parties; states will not force ADULTS to undergo medical treatment they refuse for religious reasons, but will grant order allowing hospitals to treat children of parents who want to deny consent to treat for religious reasons. Base on the legal doctrine "parens patriae" in which state or govt makes decisions on behalf of those who are unable to make decisions for themselves. Nurses frequently encounter DNR "no code" orders. Allows competent adults to authorize. Documentation that the health care provider has consulted with patients and family is required before writing DNR in medical reco rd. Patients have right to change minds; HCP should periodically review to assure order reflects current wishes. DNR does not mean not care: must provide patient care and meet needs even if not CPR. HCP are required to make every effort to revive patients without DNR order. Some states offer DNR Comfort Care Order and Comfort Care Arrest Protocols. Protocols list specific actions HCP will take when providing CPR. CPR is an emergency treatment provided without patient consent. HCP provide CPR when needed unless DNR in chart. Statutes assume patient's want CPR unless DNR order in record. Legally, adults can consent to DNR verbally or in writing after receiving appt info by HCP. Know the DNR protocols in your state.

6)Mental Health Parity and Addiction Equity Act (MHPAEA) 2008

requires health insurance companies to provide coverage for mental health and substance abuse disorder (SUD) treatment. The ACA extended these requirements to small group and individual health insurance plans. Insurers may not discriminate or deny coverage to patients with mental illness or SUD because of preexisting conditions. The Metal Health and Substance Abuse Parity Task Force facilitates coordination of svcs among federal agencies and assures consumers receive care and treatment. Improves awareness of benefits that parity for mental health and SUD provides. Help stakeholders (insurers, regulators, consumers) understand what equality means. Provides resources to ensure coverage is consistent with intent of MHPAEA. Admission to mental health or SUD unit can occur voluntarily or involuntarily Involuntarily only when in danger to themselves or others.- Determination made by MHP in ER. The assessing physician, court-appointed guardian, or family member can ask judge to require longer stay for protection from harm. This is viewed as taking away patient's constitutional right by law. Under constitutional law, citizens hav right to move from place to place. To remove this right- case must be made that not doing so will result in significant or deadly harm. When patients attempt suicide in HC setting, it is typically alleged that nurse failed to provide apppropriate care, supervise patient adequately, and adhere to existing P&P. Always consider the scope and standards as well as specific statue and regulations associated with care. Also must know employers P&P for caring for patients at risk for harm. Provide EB nursing and ensure documentation reflects the care you provide.

1) Nurse Practice Act

state laws intended to protect citizens, make nurses accountable, and ensure care is consistent with best practice within scope and standards of care. State Board of Nursing- sometimes called "Nursing Commission" is part of Practice Act. Members of state boards' responsibilities are written in the statute and in regulations. State boards educate the public and nurses as the profession changes. SB regulate and disseminate information related to nursing practice. License all RNs in the state; Requirements vary, but all states use NCLEX for testing. License to practice is a privilege, not a right; Licensure permits you to offer skill to public, and provides legal protections to public. eNL- enhanced nurse license- enables nurse to practice in multiple states under one license. Allows for Telehealth across states. Facilitates care when nurses cross state lines to help with emergencies. Most states are practicing in eNLC process. State Board of Nursing investigates, suspends, and revokes licenses in nurses violate Practice Act. If have an eNLC license, other states can investigate and take action in their jurisdiction for violations made in other states. Penalties can differ. Important to obtain professional liability insurance. Penalties agst license can affect right to work SB must provide notice and follow due process before revoking or suspending license. Notice: actions to inform nurse of charge and investigation Due process: nurse is informed of allegations and process Hearings do not occur in court; usually a panel of professionals conduct hearing. Most states provide administrative and judicial review of cases after nurse exhausts all appeals. Actions and decisions by SB are published and accessible by HC agencies and public. When admistrative and appeals are exhausted, nurse can take case to court for review in respective state.