Chapter 5 : Legal and Legislative Issues

Being Sued for Malpractice

- "Just following physician orders" is not a defense for malpractice - Nurses have an independent responsibility to take appropriate steps to safeguard patients - Personal liability > every person is liable for his or her own conduct

Sources of Law

(slide 4)

Types of Laws and Courts

(slide 7)

Five Components Necessary for Professional Negligence to Occur

- A standard of care is in place (minimal level of expertise delivered to a patient) - There is a failure to meet the standard of care (breach of duty) - Foreseeability of harm must exist (ignorance is not an excuse) - There must be a provable correlation between care and harm - Actual patient injury must occur

Nurse Practice Act

- Boundaries for practice are defined in the Nurse Practice Act of each state - These acts are general in most states to allow for some flexibility in the broad roles and varied situations in which nurses practice > Because this allows for some interpretation, many employers have established guidelines for nursing practice in their own organization - These guidelines regarding scope of practice cannot, however, exceed the requirements of the state Nursing Practice Acts.

Intentional Torts (con't)

- False imprisonment > Inappropriate use of physical restraints - Invasion of privacy - Defamation of character: communicating to a third party false information that injures a person's reputation > Slander (spoken) > Libel (written)

Common Causes of Professional Nursing License Suspension or Revocation #2

- Giving narcotic drugs without an order - Falsely holding oneself out to the public or to any health-care practitioner as a "nurse practitioner"

Elements of Malpractice

- Negligence: the omission to do something that a reasonable person, guided by the considerations that ordinarily regulate human affairs, would do—or as doing something that a reasonable and prudent person would not do - Malpractice: the failure of a person with professional training to act in a reasonable and prudent manner—also called professional negligence

Purpose of Law and Legislation

- Nurse Practice Acts: primary purpose is to protect the patient and the nurse > Statutes - Laws and legislation define the scope of acceptable practice and protect individual rights - Nurses who are aware of their rights and duties in legal matters are better able to protect themselves against liability or loss of professional licensure

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 - Collaboration between health-care providers and patients, and documentation thereof, is a good indication of well-provided clinical care

Reducing the Risk of Malpractice Claims

- Practice within the scope of the nurse practice act - Observe agency policies and procedures - Model practice after established standards by using evidence-based practice - Always put patient's rights and welfare first - Be aware of relevant law and legal doctrines - Practice within the area of individual competence and upgrade technical skills consistently

Common Causes of Professional Nursing License Suspension or Revocation #1

- Professional negligence - Practicing medicine or nursing without a license - Obtaining a nursing license by fraud or allowing others to use your license - Felony conviction for any offense substantially related to the function or duties of an RN - Participating professionally in criminal abortions - Not reporting substandard medical or nursing care - Providing patient care while under the influence of drugs or alcohol

Health Insurance Portability and Accountability Act of 1996

- Provides patient right to confidentiality - Essentially represents two areas for implementation > Administrative simplification plan > Privacy rules

Incident Reports (Adverse Event Forms)

- Records of unusual or unexpected incidents that occur in the course of a client's treatment - Generally considered confidential communications and cannot be subpoenaed by clients or used as evidence in their lawsuits in most states - A copy of an incident report should not be left in the chart, and no entry should be made in the patient's record about the existence of an incident report

Responsibilities of the Nurse-Manager

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

Nurses Are at Increased Legal Liability in the 21st Century Owing to the Following

- They have more authority and independence in decision making - They have increased legal accountability for decision making - They are performing more actions that used to be in the realm of medical practice - They are making more money - More nurses are carrying malpractice insurance

TortsIntentional vs. Unintentional

- Torts: > legal wrongs committed against a person or property, independent of a contract, that render the person who commits them liable for damages in a civil action - Professional negligence is considered to be an unintentional tort - Intentional torts are a direct invasion of someone's legal rights

Practice Question #1: Tell whether the following statement is true or false: Nurse practice acts are examples of statutes. a. True b. False

A. True Rationale: 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, thereby stating what constitutes authorized practice as well as what exceeds the scope of authority

Intentional Torts

Assault - conduct that makes a person fearful and produces a reasonable apprehension of harm Battery - intentional and wrongful physical contact with a person that entails an injury or offensive touching Examples: - handled in a rough manner - complaints of excessive force in restraining patients - performing any treatment without patient's permission or without receiving an informed consent

Practice Question #2: A nurse is charged with administering a fatal dose of morphine to a patient on hospice. In which type of court would this nurse be charged? a. Civil b. Criminal c. Administrative d. None of the above

B. Criminal Rationale: Nurses found guilty of intentionally administering fatal doses of drugs to patients would be charged in a criminal court. In civil cases, one individual sues another for money to compensate for a perceived loss. In administrative cases, an individual is sued by a state or federal governmental agency assigned the responsibility of implementing governmental programs

Practice Question #4: Tell whether the following statement is true or false: Following a physician's order is a valid excuse in a malpractice case. a. True b. False

B. False Rationale: Nurses have a responsibility to safeguard their patients, independent of physician's orders

Practice Question #3: Which of the following accurately describes why nurses are at increased liability for malpractice suits? a. Their realm of responsibility has decreased. b. Fewer nurses have liability insurance. c. Nurses are making more money. d. Nurses currently have less independence in decision making.

C. Nurses are making more money Rationale: Higher salaries have corresponded to increased liability in the nursing profession

Guidelines for Informed Consent #2

Consent may be given by: 1. A competent adult 2. A legal guardian or individual holding durable power of attorney 3. An emancipated or married minor 4. Mature minor (varies by state) 5. Parent of a minor child 6. Court order

Practice Question #5: Which is not an intentional tort? a. False imprisonment b. Defamation of character C. Invasion of privacy D. Negligence

D. Negligence Rationale: An intentional tort requires that the act be committed with the awareness of the perpetrator

Malpractice Insurance Dilemma

Nurses need malpractice insurance because of their expanded roles, but they also incur a greater likelihood of being sued if they have malpractice insurance because injured parties will always seek damages from as many individuals with financial resources as possible

Patient Self-Determination Act (PSDA)

Required health-care organizations that received federal funding (Medicare and Medicaid) to provide education for staff and patients on issues concerning treatment and end-of-life issues - Includes the use of advance directives (ADs), written instructions regarding desired end-of-life care - Also likely includes durable power of attorney for health care (health-care proxy)

Good Samaritan Laws

Suggest that health-care providers are typically protected from potential liability with the following: - volunteer their nursing skills away from the workplace (generally limited to emergencies) - provided that actions taken are not grossly negligent - the health-care worker does not exceed his or her training or scope of practice in performing the emergency services

Guidelines for Informed Consent #1

The person(s) giving consent must fully comprehend: 1. The 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 5. Alternative treatments that are available Given in a language that they understand and can ask questions and always can refuse treatment