Chapter 7 Legal Dimensions of Nursing Practice

fraud

willful and purposeful misrepresentation that could cause, or has caused, loss or harm to people or property

tort

wrong committed by a person against another person or that person;s property

credentialing

general term that refers to ways in which professional competence is maintained

certification

process by which a person who has met certain criteria established by a nongovernmental association is granted recognition

accreditation

process by which an educational program is evaluated and then recognized as having met certain predetermined standards of education

litigation

process of lawsuit

felony

(1) crime punishable by imprisonment in a state or federal penitentiary for more than 1 year; (2) crime of greater offense than a misdemeanor

Define "law" and describe four sources of laws.

A law is a standard or rule of conduct established and enforced by the government that is intended chiefly to protect the rights of the public. Law may be public, private, civil, or criminal. Four sources of laws exist at both the federal and state level: constitutional law, statutory law, administrative law, and common law. Constitutional law gives authority and state the principles and provisions for establishing specific laws. Statutory law are kept in line with both federal and state constitution like Nurse Practice Acts. Administrative law make administrative rules and regulations that act as laws and are enforceable. Common law interprets legislation at the local, state, and nation levels applied to specific instances and makes decisions concerning law enforcement

Describe the legal procedure that occurs when a plaintiff files a complaint against a nurse for negligence.

A lawsuit is a legal action in a court. Litigation is the process of bringing and trying a lawsuit. The person or government bringing suit against another is called the plaintiff. The one being accused of a crime or tort (defined later) is called the defendant. The defendant is presumed innocent until proved guilty of a crime or tort.

Use appropriate legal safeguards in nursing practice.

A variety of safeguards are in place in the health care system, both to protect nurses from exposure to legal risks while performing the duties of their role and to ensure that the practice environment is geared toward enhancing patient and personal safety. These safeguards include competent practice, informed consent or refusal, contracts, collective bargaining, patient education, safe execution of physician orders, safe delegation, legally prudent documentation, adequate staffing, whistle-blowing, professional liability insurance, risk management programs, incident reports, sentinel events, never events, the Patient Bill of Rights, and Good Samaritan Laws.

Differentiate between intentional torts (assault and battery, defamation, invasion of privacy, false imprisonment, fraud) and unintentional torts (negligence).

A wrong committed against a person or that person's property may be categorized as a crime or a tort. A crime is a violation punishable by the state; a tort is subject to action in a civil court, with damages usually being settled with money. Intentional torts include assault and battery, defamation, invasion of privacy, false imprisonment, and fraud. The Health Insurance Portability and Accountability Act (HIPAA) addresses privacy concerns. As a student in a health care setting, you should discuss privacy guidelines with your instructor and nurse mentors. Negligence and malpractice are unintentional torts. Liability involves four elements that must be established to prove that malpractice or negligence has occurred: duty, breach of duty, causation, and damages. The nurse may be involved in legal proceedings as a defendant, a fact witness, or an expert witness.

Explain the purpose of incident reports.

An incident report, also called a variance or occurrence report, is used by health care agencies to document the occurrence of anything out of the ordinary that results in, or has the potential to result in, harm to a patient, employee, or visitor (Fig. 7-3). These reports are used for quality improvement and should not be used for disciplinary action against staff members. They are a means of identifying risks. More harm than good results from ignoring mistakes. Incident reports improve the management and treatment of patients by identifying high-risk patterns and initiating in-service programs to prevent future problems. These forms also make all the facts about an incident available to the agency in case of litigation. Increasingly, agencies use paperless computer-based reporting systems that are secure, timely, efficient, and effective. These may also offer online help and formal education and serve as a valuable tool for data analysis.

Describe the roles of the nurse as defendant, fact witness, and expert witness.

As a defendant, a nurse: Does not discuss the case with anyone at your agency (with the exception of the risk manager), with the plaintiff, with the plaintiff's lawyer, with anyone testifying for the plaintiff, or with reporters. Does not alter the patient's records. Tampering with a chart is the worst mistake you can make—you may well ruin your defense. Cooperates fully with your attorney. Do not hide any information from the attorney. Make sure you are fully prepared before you go on the witness stand Is courteous on the witness stand. Do not volunteer any information. As a Fact Witness, a nurse: Give truthful testimonies States "I do not remember that." if in doubt Best defense is accurate documentation As an Expert Witness, a nurse: explain to the judge and jury what happened based on the patient's record and to offer an opinion about whether the nursing care met acceptable standards.

Identify grounds for suspending or revoking a license or registration.

Fraud, criminal acts, gross or ordinary negligence, physical or mental impairments, drugs and alcohol

Describe laws affecting nursing practice.

OSHA (Occupational Safety and Health Act of 1970) is used to reduce work-related injuries and illnesses, which also hold health care agencies and nurses responsible. Health Care Quality Improvement Act of 1986 encourages identification and discipline of health care practitioners who engage in unprofessional conduct and to restrict their ability to move from state to state without a disclosure of their previous performance Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on race, color, religion, sex, or national origin, and provides that pregnant women receive the same protection as other employees and applicants. HIPAA (Health Insurance Portability and Accountability Act) The Nursing Home Reform Act of 1987 states that long-term care facility residents have the right to be free from physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat medical symptoms. The 1990 Americans With Disabilities Act (ADA), amended in 2008, provides a broad definition of "disability" to cover any person who has a physical or mental impairment that substantially limits one or more major life activities or who has a record of such impairment. Also includes: reporting obligations, use of controlled substances and drug abuse laws, wills, and more related to dying and death covered in another chapter

Evaluate personal areas of potential liability in nursing.

On Table 7-3 potential liability for nurses include: Incomplete database obtained (occurs frequently when patient is too ill at admission to respond to questions) Significant omissions or errors in recorded database Failure to note in the patient's plan of care (and to execute) the need for more frequent nursing assessments Failure to recognize and to report significant changes in the patient's condition Failure to identify priority nursing diagnosis critical to the patient's care Nursing diagnosis incorrectly developed and "labels" the patient negatively No indication in nursing care plan that nurses were aware of and sensitive to the patient's healthcare priorities Patient's record contains no documentation of attempts to teach appropriate self-care measures to patient and family Nursing interventions deviate from usual standard of care (understaffing, indifference on part of nurse, inexperience of nurse, faulty or scarce equipment or resources). No evidence in plan of care and nursing notes that nurses evaluated whether the patient achieved target goals Patient discharged before key goals are met and without follow-up instruction

Describe the professional and legal regulation of nursing practice.

Table 7-1 on who makes nursing practice rules mostly the National Council of State Boards of Nursing (NCSBN) and your State Board of Nursing.

Identify the purpose of credentialing, using as examples accreditation, licensure or registration, and certification.

Three processes are used for credentialing in nursing. The first is accreditation, the process by which an educational program is evaluated and recognized as having met certain standards. The second is licensure, the process by which a state determines that a candidate meets certain minimum requirements to practice in the profession and grants a license to do so. The third is certification,the process by which a person who has met certain criteria established by a nongovernmental association is granted recognition in a specified practice area.

battery

assault that is carried out

malpractice

act of negligence as applied to a professional person such as a physician, nurse, or dentist

whistle-blowing

an employee that reports an employer's misconduct

defamation of character

an intentional tort in which one party makes derogatory remarks about another that diminishes the other party's reputation; slander is oral defamation of character; libel is written defamation of character

sentinel event

an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof

misdemeanor

crime of lesser offense than a felony and punishable by fines, imprisonment (usually for less than 1 year), or both

statutory law

law enacted by a legislative body

common law

law resulting from court decisions that is then followed when other cases involving similar circumstances and facts arise; common law is as binding as civil law

liability

legal responsibility for one's acts (and failure to act); includes responsibility for financial restitution of harms resulting from negligent acts

expert witness

nurse who explains to the judge and jury what happened based on the patient's record and who offers an opinion as to whether the nursing care met acceptable standards of practice

fact witness

nurse who has knowledge of the actual incident prompting a legal case; bases testimony on firsthand knowledge of the incident, not on assumptions

crime

offense against people or property; the act is considered to be against the govenment, referred to in a lawsuit as "the people," and the accused is prosecuted by the state

negligence

performing an act that a reasonably prudent person under similar circumstances would not do, or failing to perform an act that a reasonably prudent person under similar circumstances would do

plaintiff

person or government bringing a lawsuit against another

defendant

the one being accused of a crime or tort

assault

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

licensure

to be given a license to practice nursing in a state or province after successfully meeting requirements