Key Concepts, Chapter 7, Legal Dimensions of Nursing Practice

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

accreditation:

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

litigation:

process of lawsuit

law:

rule of conduct established and enforced by the government of a society

An unexpected occurrence involving death or a serious physical injury (e.g., wrong side surgery) is called a ___________ event.

sentinel

Nurse Practice Acts are an example of __________ laws.

statutory

whistle-blowing:

term generally used to refer to employees who report their employers' violation of the law to appropriate law enforcement agencies outside the employers' facilities

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

Nurses complete incident reports as dictated by the agency protocol. What is the primary reason nurses fill out an incident report?

to improve quality of care

Each state has a *nurse practice act* that protects the public by broadly *defining the legal scope of nursing practice*. Nurse practice acts list the

violations that can result in disciplinary actions against a nurse and also serve to exclude untrained or unlicensed people from practicing nursing.

A client being discharged from the hospital asks the nurse, "When I go visit my family out of state, should I take my living will with me, or do I need a new one for that state?" Which is the most appropriate response by the nurse?

"Take it with you. It is recognized universally in the United States."

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

The nurse is providing care to a client who had orthopedic surgery. The nurse has medicated the client for pain. However, the client reports that the pain is unrelieved. The nurse takes no further action regarding assessment and intervention for the client's pain. The nurse does not notify the surgeon regarding the client's pain. The nurse's failure to take further action represents which element of liability in this case?

Breach of duty Breach of duty is the failure to assess, intervene, or notify the health care provider regarding the client's condition. It does not meet the expected standard of care. Duty refers to an obligation to use due care and is defined by the standard of care appropriate for the nurse-client relationship. Causation is when the failure to meet the standard of care caused injury. Damages are the harm or injury to the client.

A wrong committed against a person or that person's property may be categorized as a crime or a tort. A _____ is a violation punishable by the *state*; a ____ is subject to action in a *civil court*, with damages usually being settled with money.

crime, tort

6. Evaluate personal areas of potential liability in nursing.

Categories of Malpractice Claims • Failure to follow standards of care • Failure to use equipment in responsible manner • Failure to assess and monitor • Failure to communicate • Failure to document • Failure to act as a patient advocate

Having recently completed a specialty nursing program in neonatal care, a nurse is now preparing to leave the medical unit and begin providing care in the hospital's neonatal intensive care unit (NICU). The nurse has completed which process of credentialing?

Certification The process of certification involves the attainment and validation of specialized nursing knowledge and skills. Certification is often necessary to ensure that the nursing care provided in specialized and high-acuity settings is safe and appropriate. Accreditation is the process by which an educational program, rather than an individual nurse, is identified as meeting standards. The process of licensure involves the determination that a nurse meets minimum requirements to practice but not necessarily that the nurse has the specialized knowledge that is necessary for some care settings.

1. Define "law" and describe four sources of laws.

DEFINITION: Standard or rule of conduct established and enforced by government TYPES OF LAWS: Public, Private, Criminal FOUR SOURCES OF LAW: • Constitutions: serve as guides to legislative bodies • Statutory law: enacted by a legislative body • Administrative law: empowered by executive officers • Common law: judiciary system reconciles controversies, creates body of common law

A nurse is named as a defendant in a malpractice lawsuit. Which action would be recommended for this nurse?

Do not volunteer any information on the witness stand. The nurse on the witness stand should be polite, but not volunteer any information. The nurse should only answer the questions asked.

A client states that the client's recent fall was caused by his scheduled antihypertensive medications being mistakenly administered by two different nurses, an event that is disputed by both of the nurses identified by the client. Which measure should the nurses prioritize when anticipating that legal action may follow?

Document the client's claims and the events surrounding the alleged incident.

A nurse is being sued for malpractice in a court of law. What elements must be established to prove that malpractice or negligence has occurred? Select all that apply.

Duty Breach of duty Causation The elements that must be established to prove that malpractice or negligence have occurred include duty, breach of duty, and causation. Intent to harm would be intentional torts. Fraud is willful and purposeful misrepresentation that could cause, or has caused, loss or harm to a person or property. Punitive damages are monetary compensation awarded in a legal case to the injured party.

T/F - It is the responsibility of the registered nurse to obtain informed consent for a diagnostic or treatment procedure.

FALSE

During the orientation to the hospital, the staff development educator discusses unit and institutional-based policies. What is the source of the practice rules that result in unit and institutional-based policies?

Health care institution The health care institution determines the unit and institutional policies. These policies may vary from institution to institution. Such policies may include clinical procedures, policies specific to the institution, and personnel and employment policies. Unit and institutional-based policies are not derived from federal legislation, state legislation, or the board of nursing.

Which statement about laws governing the distribution of controlled substances is true?

Nurses are responsible for adhering to specific documentation about controlled substances. Nurses have specific responsibilities regarding controlled substances, including specific documentation. Violation of controlled substances laws at the workplace is serious and a criminal act. Substance use is treatable, and the objective is to detect and treat the problem early. It does not matter where the nurse obtains the drugs; the nurse is still liable for personal actions.

A nurse is part of a group named in a malpractice lawsuit. The plaintiff is suing for general damages. Which items would be addressed? Select all that apply.

Pain Suffering Disfigurement Disability For a plaintiff to prevail in a malpractice suit, the plaintiff must have sustained damages. The purpose of the suit is to compensate for these damages. General damages include pain and suffering, disfigurement, and disability. Special damages are for losses and expenses related to the injury, such as medical expenses and lost wages.

Nurse practice acts are examples of which type of laws?

Statutory laws

A student nurse is assisting an older adult client to ambulate following hip replacement surgery when the client falls and reinjures the hip. Who is potentially responsible for the injury to this client?

The student nurse, the nurse instructor, and the hospital

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's Bill of Rights, and Good Samaritan Laws.

root cause analysis:

deep investigation into a sentinel event to determine why the event occurred, and exploring the circumstances that led to it to determine where improvements can be made

As the roles and duties of nurses expand, so does their legal accountability. Nurses who wish to avoid legal conflicts need to

develop trusting *nurse--patient relationships* (satisfied patients rarely sue), practice within the scope of their competence, and identify potential liabilities in their practice and work to prevent them.

credentialing:

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

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.*

While a client admitted to the medical-surgical unit is in the radiology department, a visitor claiming to be the client's cousin arrives on the medical-surgical unit and asks the nurse to provide a brief outline of the client's illness. Which response by the nurse would be most appropriate, both legally and professionally?

"I cannot give you that information due to client confidentiality." Sharing a client's information without the client's consent is an invasion of privacy. The nurse should not give out the information even if the visitor provides proof of a relationship without the client's consent. It is inappropriate to call the client to ask for permission. The nurse claiming to be busy and offering to talk later does not address the issue but only delays it, perhaps leading the visitor to assume that the nurse will disclose information then.

A nurse has been named in a malpractice lawsuit. Prior to taking the nurse's deposition, the attorney explains that the case will be governed by common law. Which question by the nurse is indicated?

"Will this case be precedent setting?" Most law involving malpractice is common law. If a case is the first to set down a rule by its decision, a precedent will be set. Statutory law, such as state nurse practice acts, is enacted by the legislature. The findings of the case are binding in a common law case. The law establishing a board of health is known as administrative law.

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.

The client being admitted to the oncology unit conveys wishes regarding resuscitation in the event of cardiopulmonary arrest. The nurse advises the client that it would be in the client's best interest to obtain which document?

A living will A living will is an advance directive that specifies the type of medical treatment clients do or do not want to receive should they be unable to speak for themselves in a terminal or otherrwise unconscious condition. A will is a legal document detailing how to dispose of one's assets and belongings upon death. Proof of health care power of attorney and a proxy directive are documents identifying another person to legally make health care decisions for the client. In this case the client is stating the client's own decisions in advance of potential incapacitation. A legal document that states a client's health-related wishes — such as a preference for pain management if the client becomes terminally ill — and also allows the client's adult child to direct the client's care, is: an advance directive.

Which is an example of an unintentional tort?

A nurse gives the client a medication, and the client has an adverse reaction to it. An unintentional tort occurs when the nurse does not intend harm, but harm occurs (e.g., the nurse administers a medication and the client has an adverse reaction to it). The other three responses are intentional torts.

An example of certification:

A nurse who demonstrates advanced expertise in a content area of nursing through special testing

Which scenario is an example of certification?

A nurse who demonstrates advanced expertise in a content area of nursing through special testing

Which scenario is an example of certification?

A nurse who demonstrates advanced expertise in a content area of nursing through special testing Certification is a voluntary process whereby a person who has met criteria established by a nongovernmental association is granted special recognition in a specified practice area. Licensure is granted by the state to a graduate of a nursing education program who passes NCLEX-RN. Accreditation is a voluntary process by which a nursing education program is recognized as having met certain standards by the NLN Commission for Nursing Education Accreditation and/or the American Association of Colleges of Nursing. The Joint Commission can also accredit health care agencies.

A client is in a persistent vegetative state. The client has no immediate family and is a ward of the state. Under these circumstances, who will speak on this client's behalf?

A surrogate decision maker

10. Explain the purpose of incident reports.

Information Contained in Incident Reports: • Complete name of person and names of witnesses • Factual account of incident • Date, time, and place of incident • Pertinent characteristics of person involved • Any equipment or resources being used • Any other important variables • Documentation by physician of medical examination of person involved

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

Intentional and Unintentional Torts • Intentional - Assault and battery - Defamation of character • Libel • Slander - Invasion of privacy - False imprisonment - Fraud • Unintentional - Negligence & Malpractice - Liability & Standards of Care

___________ _____ include assault and battery, defamation, invasion of privacy, false imprisonment, and fraud. The _ _ _ _ _ addresses privacy concerns.

Intentional torts, Health Insurance Portability and Accountability Act (HIPAA)

A nurse talks with family members about an AIDS client from the clinic where the nurse works. Which tort has the nurse committed?

Invasion of privacy

11. Describe laws affecting nursing practice.

Laws affecting Nursing Practice - Occupational Safety & Health - National Practitioner Data Bank - Reporting Obligations - Controlled substances - Discrimination & Sexual Harassment - Restraints - Disabilities - Wills

9. Use appropriate legal safeguards in nursing practice.

Legal Safeguards for Nurses • Competent practice - Impaired Nurse • Informed consent or refusal • Contracts • Collective bargaining • Patient education • Executing physician orders • Documentation Legal Safeguards for Nurses (cont.) • Appropriate use of social media • Adequate staffing • Whistle-blowing • Professional liability insurance • Risk management programs • Just Culture: incident, variance, or occurrence reports • Sentinel events and Never events • Patients' rights • Good Samaritan Laws • Student Liability

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

Litigation, plaintiff, defendant, tort

A client has a prescription for amoxicillin 500 mg P.O. every 8 hours. The nurse administers the medication via the intravenous route. Based on the nurse's action, the client develops complications and has an increased length of stay. The client files a lawsuit against the facility and the nurse. Which legal action has the nurse's attorney identified that meets the criteria for the client's lawsuit?

Malpractice The facility and nurse could be charged with malpractice, which is failing to perform (or performing) an act that causes harm to a client. Administering the medication intravenously instead of orally as prescribed has caused harm to a client. Negligence is failing to perform care for a client. When a person threatens to touch a client without consent, it is assault, whereas battery is carrying out the implied threat (assault).

4. Identify grounds for suspending or revoking a license or registration.

Reasons for Suspending or Revoking a License: • Drug or alcohol abuse • Fraud • Deceptive practice • Criminal acts • Previous disciplinary actions • Gross or ordinary negligence • Physical or mental impairments, including age

During the admission assessment of a client with a suspected mandibular fracture, the client discloses to the nurse that the injury results from the client's spouse hitting the client. Which action should the nurse prioritize when responding to this disclosure?

Reporting the abuse to the appropriate authorities Nurses have a legal and ethical obligation to report cases of abuse. It would be inappropriate and likely unethical to require a third party witness to the statement or to withhold action pending assessment results. The nurse's obligation to report abuse legally supersedes the client's right to privacy.

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

Roles of Nurses in Legal Proceedings • Nurse as defendant - Do not discuss the case with those involved in it. - Do not alter patient records. - Cooperate fully with your attorney. - Be courteous on witness stand. - Do not volunteer any information • Nurse as fact witness • Nurse as expert witness

T/F - Law involving medical or nursing malpractice is common law that has evolved from accumulated judiciary decisions.

TRUE

A nurse witnesses a traffic accident and dresses the open wounds sustained by a child. Later, in the hospital, the child develops complications from an infection in the wound. The family holds the nurse responsible for the complications and attempts to file a lawsuit. Which statement is true regarding how the Good Samaritan law applies to this case?

The Good Samaritan law will provide legal immunity to the nurse. The Good Samaritan laws provide legal immunity to passersby who provide emergency first aid to victims of accidents. Therefore, the law is applicable to the nurse in this scenario; moreover, Good Samaritan laws apply to those who do not accept any compensation for services provided. The law is equally applicable to everyone but does not provide absolute exemption from prosecution in cases of negligence. Paramedics, ambulance personnel, physicians, and nurses who stop to provide assistance are still held to a higher standard of care because they have training above and beyond that of average lay people. In cases of gross negligence, health care workers may be charged with a criminal offense.

What governing body has the authority to revoke or suspend a nurse's license?

The State Board of Nurse Examiners

A client is brought to the emergency department in an unconscious state with a head injury. The client requires surgery to remove a blood clot. What would be the appropriate nursing intervention in keeping with the policy of informed consent prior to a surgical procedure?

The nurse ensures that the client's family signs the consent form.

A physician is called to see a client with angina. During the visit the physician advises the nurse to decrease the dosage of atenolol to 12.5 mg. However, because the physician is late for another visit, the physician requests that the nurse write down the order for the physician. What should be the appropriate nursing action in this situation?

The nurse should ask the physician to come back and write the order.

A client newly diagnosed with congestive heart failure has a prescription for digoxin. The nurse counts the heart rate before administration of the medication and obtains a heart rate of 51 beats per minute. Which action by the nurse demonstrates adherence to the standards of nursing care?

The nurse withholds the medication and notifies the health care practitioner. Nurses are responsible for following the standards of care for their particular work area. A reasonably prudent nurse would withhold the medication and notify the health care practitioner. All other options put the client's safety at risk and would not be done by a reasonably prudent nurse.

A nurse enters the client's room and finds the client lying on the floor experiencing a seizure. After stabilizing the client, the nurse informs the physician. The physician advises the nurse to prepare an incident report. What is the purpose of an incident report?

To evaluate the quality of care provided and assess the potential risks for injury to the client

incident report:

a report of any event that is not consistent with the routine operation of the health care facility that results in or has the potential to result in harm to a patient, employee, or visitor

battery:

assault that is carried out

Three processes are used for credentialing in nursing. The first is _______, the process by which an educational program is evaluated and recognized as having met certain standards. The second is _______, 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 _______, the process by which a person who has met certain criteria established by a nongovernmental association is granted recognition in a specified practice area.

accreditation, licensure, certification

malpractice:

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

A legal document that states a client's health-related wishes — such as a preference for pain management if the client becomes terminally ill — and also allows the client's adult child to direct the client's care, is:

an advance directive

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

While riding in the elevator, a nurse discusses the HIV-positive status of a client with other colleagues. The nurse's action reflects:

invasion of privacy. The nurse's action reflects an invasion of the client's privacy. Disclosing confidential information to an unaauthroized third party subjects the nurse to liability for invasion of privacy, even if the information is true. Defamation of character includes false communication that results in injury to a person's reputation. Negligence is an act of omission or commission. Prevention of movement or unjustified retention of a person without consent may be false imprisonment.

statutory law:

law enacted by a legislative body

As a student nurse, you are responsible for your own acts of _______ if these result in patient injury. Moreover, you are held to the same *standard of care* that would be used to evaluate the actions of a registered nurse.

negligence

Discharging an infant to the wrong person or performing surgery on the wrong patient are examples of _________ events, extremely rare medical errors.

never

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

There are many laws in place that govern the practice of nursing to *protect both nurses and patients* from harm. Such laws involve:

occupational safety and health, reporting obligations, controlled substances, discrimination and sexual harassment, patient privacy, use of restraints, nondiscrimination of people with disabilities, and other issues.

crime:

offense against people or property; the act is considered to be against the government, 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

certification:

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

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

2. Describe the professional and legal regulation of nursing practice.

• Nurse Practice Acts • Standards • Credentialing -Accreditation -Licensure -Certification