Foundations of Nursing: Ch. 2 Legal and Ethics

Criteria to Provide Consent

must be at least 18 years of age, minors under 18 years may consent for treatment with criteria of marriage, court-approved emancipation, living apart from parents or guardians for at least 60 days and independent of parental support, service in the armed forces

Discovery

next step in the process. Allows both sides of the case to review documents and interview witnesses.

Nurse's role in a nurse patient relationship

nurse accepts the role of advocate for the patient

Nurse Patient Relationship

occurs when the nurse accepts a patient care assignment. Nurse has the duty to provide professional care

Breach

of duty. Failure to perform the duty in a reasonable, prudent manner

Advocate

one who defends or pleads a cause or issue on behalf of another. Nurse advocate has a legal and ethical obligation to safeguard the patient's interests

Nurses Association (ANA) and Canadian Nurses Association (CNA)

organizations that regularly evaluate existing standards and revise them as needed

Defendant

person alleged to be liable, states the facts involved in the case, defines the legal issues the case raised, and outlines the damages. Served with summons which constitutes the necessary legal notice, and the defendant usually hires an attorney to represent him or her in the lawsuit. Defendant must provide a response to the charges, guilt or denial of allegations listed in the complaint

Invasion of privacy

person's right to be left alone and remain anonymous if he or she chooses. Privacy related concerns may include the physical exposure or disclosure of patient information to others

Harm

physical injury, especially that which is deliberately inflicted

What might include as a Document and Things in Health Care related cases

policies and procedures, standards of care, medical records, assignment sheets, personnel files, equipment maintenance records, birth certificates, marriage certificates, medical bills

What is the best way to avoid being charged with malpractice

practice within rules and regulations, the standards of care, and employing agency's policies and procedures.

What areas does nursing liability fall into

practice, monitoring, and communication

Laws

prescribe proper behavior in society. They sanction acceptable behavior and prohibit unacceptable behavior

Types of Discovery Tools

Witnesses, Interrogatory, Request for Production of Documents and Things, Admission Facts

How are health care providers guided

by laws, rules, regulations, and ethical principles

Darling vs. Charleston Community Memorial Hospital

case when 18-year-old man fractured his leg and had a cast applied in the hospital. Admitted, and patient noticed and notified the nurse of the edematous and discolored of leg. Over the next few days, the leg got worse and had to amputate. Court held the nurses were liable and physician failed to adhere to the standards of care

Civil Law

cases are between individuals. Charges involved are brought by an individual or agency. Determines the accountability of innocence

Damages

compensation that the plaintiff is seeking

Legal System

complex set of rules and regulation that has developed in response to the needs of society

Characteristics of Criminal Law

conduct at issue is offensive to society in general, conduct at issue is detrimental to society as a whole, the law involves public offenses (robbery, murder, assault), the laws purpose is to punish for the crime and deter and prevent further crimes

Characteristics of Civil Law

conduct at issue violates a person's rights, conduct at issue is detriment to the individual, law involves an offense that is against an individual, the laws purpose is to make the aggrieved person who again, to restore the person to where he or she was

Summons

court order that notifies the defendant of legal action

Categories of law

criminal law and civil law

Know Your Rights

developed brochure by the Joint Commission, which are statements on the rights and responsibilities of patients

Competency

Legal presumption that a person who has reached the age of majority can make decisions for herself or himself unless proved otherwise

Standards of Care

-Give directions to the practicing nurse and defines what can or cannot be done to patients. -Define acts whose performance is required, permitted, or prohibited. -Derive from federal and state laws, rules, and regulations and codes that govern other professional agencies such as the ANA and CNA. -Define the obligations of the nurse, including those activities that are obligation and those that are prohibited. Failure to follow can cause legal liability.

What is the cause of increase in litigation against nurses by patients

-increased responsibilities -technological advances require more knowledge and competence -staffing shortages and budgetary constraints -High levels of patient acuity -emphasis on early discharge results in more comprehensive referrals and improved discharging teaching -Insurance expert's responsibility may rest with the large payout to litigants

Process for filing a claim

1. Begins when an individual believes that a breach of duty has taken place and resulted in pain, suffering, or injury 2. Discovery 3. Verdict

Process of Criminal Trial

1. Peoples attorney and the defendant's attorney present their cases 2. Judge or jury deliberate decide the guilt or innocence of the defendant 3. If the judge or jury's verdict is not guilty, the defendant is free to go. If the verdict is guilty, the judge passes a sentence based on the severity of the crime, the defendants past criminal record, and applicable laws

What are the patient's responsibility to the health care institution

1. Providing accurate information about themselves 2. Giving information regarding their known conditions 3. Participating in decision making regarding treatment and care

What are institutions obligated to do

1. Right to have care without prejudice 2. Right to be treated with respect and dignity 3. Right to confidentiality 4. Right to personal safety 5. Right to complete information about one's own condition and treatment

Tort

A type of civil law that involves wrongs against a person or property. Include negligence, assault, battery, defamation, fraud, false imprisonment, and invasion of privacy

Key Elements of Malpractice

Duty, Breach, Harm, Proximate Cause

Common Breaches of the Standard of Care (COMMUNICATION)

Failure to document in a timely and proper fashion, notify physician of laboratory values in a timely and proper fashion, report, report child or elder abuse, notify physician of change in status, properly give discharge instructions, document need for restraints in a timely and proper fashion, etc.

Common Breaches of the Standard of Care (MONITORING)

Failure to properly monitor, recognize and report s/sx of patients deteriorating condition, properly use monitoring equipment, protect against injuries from monitoring equipment, detect or prevent decubitus ulcers, etc.

Common Breaches of the Standard of Care (PRACTICE)

Failure to use proper judgement, properly assess, properly administer medication, protect patients from burns, properly maintain the airway, restock crash cart, honor advance directives, provide safe environment, properly administer injections, prevent abuse, neglect, or injury by other patients, etc.

Harm

Injury to a person or the person's property that gives rise to a basis for legal action against the person who caused the damage. Does not have to be physical injury

Slander

Malicious or untrue spoken words about another person that are brought to the attention of others

Legal Issues

Statutory and common law both play important roles in defining the rights and responsibilities of the patient and the nursing professionals. Patient has the right to expect the nurse to act in the patient's best interest by providing care that meets and is consistent with the established legal standards and principles

Verdict

a decision made based on the facts of the case, the evidence and testimony presented, the credibility of the witnesses, and the laws that pertain to the issue

Why is it important to have a positive nurse patient relationship

a leading factor in whether a patient seeks legal action. A failure to provide care to the expected level of expertise gives rise to legal liability.

Libel

a malicious or untrue writing about another person that is brought to the attention of others

What does the Informed Consent include

benefits of the treatment, the risks involved, any alternative treatments, and consequences of refusing the treatment or procedure. Procedure has to be in nontechnical terms in language that the patient understands

Legal Aspects of Nursing

acting outside the established standard of care has the potential to result in injury to the patient and give rise to legal liability and the potential loss or sanction of the nursing license

Civil Battery

also called technical battery, unlawful touching of a person, an intent to harm is not necessary. Example: doing a procedure without the patient's consent

Assault

an intentional threat to cause bodily harm to another; does not have to include actually bodily contact

How does the judge determine what punishment you should get

based on the severity of the crime, the defendants past criminal record, and applicable laws

Accountability

being responsible for one's own actions. Concept that gives rise to a legal duty, and liability in nursing

Examples of negligence acts

medication errors, falls, use of restraints, equipment injuries, COC's

Patient's Rights

developed by the American Hospital Association (AHA). Encourages health care institutions to adapt the template bill of rights to their particular environments. Involves considering the cultural, religious, linguistic, and educational backgrounds of the population the institution serves. Goal to promote the public's understanding of their rights and responsibilities as consumers of health care

Potential Sanctions Against a Nursing License

dismissed charge, investigation agreement, letter of reprimand, formal or informal, probation with stipulations, mandated diversion program for drug-related or alcohol-related charges or mental condition, suspension with stipulations, revocation of license

Confidentiality

duty to protect information about a patient regardless of how the information is kept. Failure to maintain patient confidentiality risks legal liability and both civil and criminal filings may result. Both physical and technological resources

Ethical Doctrine of Autonomy

ensures the patient the right to refuse medical treatment

When can a defendant appeal

error in the process in which the conviction was obtained or by the court during the proceedings

Health Insurance Portability and Accountability Act (HIPAA)

established the duty of the health care provider to protect the confidentiality of all health information. Health care providers who maintain and transmit health care information must provide reasonable and appropriate administrative, technical, and physical safeguards on patient's health information

Ethical Principles

evolve out of society and culture and impose higher duty. Serve as a support for all members of the health care system and help protect the rights of all members of society

How are Civil Law and Criminal Law established

federal state and local governments develop statutory law, common law or case law (evolves in response to specific legal questions that come before the court and usually follows precedent

What to do when talking about resident information

for computerized files, make sure to log out every time. Written notes and chart forms must be stored in restricted area. Conversations discussing patients and their person information should be held in private conference rooms. Discussions away from the patient care areas like elevator or cafeteria are problematic and should be avoided

Workplace Violence

form of abuse in a health care setting. Includes verbal abuse, emotional abuse, sexual harassment, physical assault, and threatening behavior. Providing adequate supervision, employing security personnel, monitoring work areas, and facilitate reporting of incidents are ways to decrease the incidence in workplace violence

Request for Production of Documents and Things

formal request be the agents filing the charges for all items that are deemed to be related to the case at hand.

Informed Consent

full disclosure of the facts the patient needs to make an intelligent informed decision before any invasive treatment or procedure is performed. Patient has the right to accept or reject the proposed care but only after understanding fully what is being proposed

Durable Power of Attorney

health care proxy who will speak for the patients and make decisions regarding the patient's care and wishes

Civil Litigation

involves the legal exchange between individuals as opposed to legal concerns that involve a criminal matter, which can involve the state or federal government bringing charges

How is the nursing practice of LPN/LVN guided by

legal principles, establishes laws, moral standards, and ethical principles

Liable

legally responsible

Witnesses

may be the defendant or individuals who have facts about the case. Under oath. Statements are recorded. Transcript becomes a part of the evidence

Litigation

process of taking legal action

Deposition

process when witnesses are required to undergo questioning by the attorneys

Nursing Ethics

propose the duties and obligations of nurses to their patients, other health care professionals, the profession itself, and society

How to avoid a lawsuit

provide compassionate, competent care. Nurse patient relationship based on trust. Open and honest communication. Follow standards of care and the policies and procedures of the facility and adhering to the scope of practice for the LPN/LVN. Proper documentation in the medical records.

Duty

refers the established relationship between the patient and nurse

Malpractice

refers to professional negligence. Nursing responsibilities include both actions taken and those omitted. Concept must contain four key elements

Negligence

refers to the absence of due care. Refers to failure to act in a manner demonstrating the care and knowledge any prudent individual would

Ethics

refers to values that influence a person's behavior and the individual's feeling and beliefs about what is right or wrong. Involve moral values and principles that affect personal and professional conduct.

Omnibus Budget Reconciliation Act of 1990

regulates any institution that receives federal funding

Who do you report abuse to

report to a supervisor or directly to the police, according to agency policy. Health care providers are mandated reporters

Child Abuse Prevention Treatment Act of 1973

reporting a child abuse is mandatory

Appeal

request to review of the decision. Occurs when either party in the case has a disagreement with the outcome of the lawsuit. At this point, a. higher court will review the decision

Admission Facts

requests the party to admit or deny certain statements to streamline the factual presentation of the care

Patient Self Determination Act

requires health care institutions to provide written information to patients concerning the patient's rights under state law to make decisions, including the right to refuse treatment and advance directives

Patient Self Determination Act

requires that institutions maintain written policies and procedures regarding advance directives, the right to accept or refuse treatment, and right to participate fully in health care-related decisions

Advance Directives

signed and witnessed documents that provide specific instructions for health care treatment in the event that a person is unable to make these decisions personally at the time they are needed. Living wills and durable powers of attorney

Trends in medical records that affect confidentiality

smaller health care organizations are merging to form large corporations to save resources, while continuing to provide services. Also, computer-based health care records are becoming common

Defamation

spoken or written statements made maliciously and intentionally that may injure the subject's reputation

Most common areas of litigation against nurses

standards of care, use of equipment, documentation and patient advocacy

Nurse Practice Acts

state laws that govern the scope and practice of nursing. Set an obligatory minimum standard in any given situation.

Statutory Law

term used to define written laws, usually enacted by a legislative body. Vary from regulatory or administrative laws that are passed by executive agencies, and common law

Proximate Cause

the breach of duty was the proximate cause of the harm; the occurrence of harm depended directly on the occurent of the breach

What happens when the person is not competent to sign the consent to treat

the spouse or another legally identified individual

Medical Records

they are not public records. Patient records that must be kept secure. Any breach in the confidentiality of information can lead to legal liability. Can be used in lawsuits. All entries in the medical record must be permanent, accurate, complete, and legible

Criminal Law

those that involve the needs of the public. Charged by agents that represent either the federal or the state government. Guilt vs. Innocent. Penalty may involve fines, incarceration, or combination of the two

Euthanasia

to end a person's life by a painless means, as long as the patient and their family agree

When can a minor consent for care

treatment for sexually transmitted infections, drug and alcohol abuse, sexual assault, and family planning

Battery

unlawful touching of another person without informed consent

Complaint

when plaintiff finds litigation in the case has a legal basis, and files it in the appropriate court

Criminal Trial

whether the defendant is answerable for a crime against the People (criminal law concerns crimes against society rather than individuals)

Living Will

written document that directs treatment in accordance with a patient's wishes in the event of a terminal illness or condition. Often difficult to interpret and are not clinically specific in unforeseen circumstances. Must have two witnesses to sign document

Interrogatory

written question that one party sends to the other party, to which an answer is legally acquired

Abandonment of Care

wrongful termination of providing patient care