Leadership: Legal Issues
Beneficence
- actions one takes should promote good, basic obligation to assist others o Example: encouraging employees to seek more challenging clinical experiences or take on additional responsibilities, such as position of assistant manager
Paternalism
- allows one person to make partial decisions for another and is frequently deemed to be a negative or undesirable principle Example: assist person make decisions when they don't have sufficient data or expertise. Nurse managers employ this positively by assisting employees in deciding major career moves and plans, helping staff member more fully understand all aspects of a possible career change, or by helping staff understand why such as potential change could impact their future growth opportunities.
Civil Rights Acts, 1964, 1991; what was the focus of the 1991 legislation?
- further broadened the issue of sexual harassment in the workplace. Sections of the new legislation define sexual harassment, its elements, and the employer's responsibilities regarding harassment in the workplace, especially prevention and corrective action
Respect for others
- highest principle. Acknowledges the right of individuals to make decisions and live by these decisions
Fidelity
- keeping one's promises or commitment Example: promised certain shift to work, returning to patient in certain stated time, promised promotion
Non-maleficence
- one should do no harm o Example: performance evaluation should emphasize employee's good qualities and give positive direction for growth o Destroying pt's self-esteem would be considered doing harm`
Autonomy
- personal freedom and self-determination, right to choose what will happen to oneself as well as the accountability for making individual choices o Example: informed consent o Respect for one's decisions even if you don't agree
Veracity
- telling the truth and demands that truth be told completely o Example: give all facts of situation truthfully, assist employee making right decision, such as when encouraging staff member to accept promotion & discussing both the challenges and benefits of position
Justice
- treating all persons equally and fairly Example: when decide which staff members to promote. Staff member's overall performance and skills should be considered rather than who may have seniority of popular vote
OSHA includes:
Isolation procedures, standard precautions (bodily fluids) Placarding areas containing ionizing radiation, proper grounding of electrical equipment, protective storage of flammable and combustible liquids, and gloving when handling body fluids If no federal standard has been established, state status prevails Care must be taken to ensure necessary gloves and equipment are available on each unit Guidelines addressing violence in the workplace Failed to address safe patient handling at the federal level Texas Safe Patient Handling Law - SB1525 ANA promotes that legislation would require hospitals and other health facilities to develop programs to prevent work-related musculoskeletal disorders and eliminate manual patient lifting Ergonomics legislation - ensuring healthy and safe working conditions
Invoking Safe Harbor: BON Rule 217.20
May accept assignment May refuse assignment Unprofessional or criminal conduct Beyond scope of practice Requires collaboration Invoking Safe Harbor should be last step after all negotiations have failed Process of peer review (BON not involved) Provides protection from employer retaliation and potential action against your nursing license for nurses who have been asked to engage in conduct which the nurse in good faith believes would violate the nurse's duty to a patient. Does not provide protection from civil/criminal liability Invoke before accepting assignment Must be in writing
Nurse manager role
Monitor treatment of whistleblower - protection and fairness Ensure performance evaluation performed and filed appropriately Take measures to correct complaint or refer to management
Whistleblower laws
No employer can discharge, threaten or discriminate against an employee because the employee reported a violation of a law, rule, or regulation of state or federal law. Texas NPA Whistleblower Protections for Nurses, Rule 217.20 -
Wrongful Discharge
Procedure for termination not followed Malicious or unfair terminations An employer may not discharge an employee if it would violate the state's policy doctrine or a state or federal statute - ex. Discharging an employee for serving on a jury
Provides recourse if retaliation occurs
The nurse has the right to file a complaint with the state agency regulating the entity involved in the retaliation. The nurse has the right to file a civil lawsuit for damages if: There was a report to the employer and/or state agency of professional regulation. The report stated alleged violation of a state or federal law, rule, or regulation. Nurse gave written notification to employer and reasonable time to correct problem before reporting.
Ethical Decision-making Framework
Who should make the choice Possible options or courses of action Available options Consequences, both good and bad, of all possible options Rules, obligations, and values that should direct choices Desired goals or outcomes
BON defines Unprofessional Conduct to include:
accepting the assignment of nursing functions or a prescribed health function when the acceptance of the assignment could be reasonably expected to result in unsafe or ineffective client care.
With respect to an individual, disability is defined as:
physical or mental impairment that substantially limits one or more of the major life activities, a record of such impairment, or regarded as having such impairment
BON requires:
requires each nurse to maintain a safe environment for clients and others. holds each nurse accountable to accept only assignments that are within the nurse's ability. requires supervisory nurses to make assignments that take into consideration client safety and that are commensurate with the educational preparation, experience, knowledge, and physical and emotional ability of the persons to whom the assignments are made.
Protects the nurse from employer retaliation
- If the registered nurse believes in good faith that the actions of a regulated entity (registered nurse, licensed practitioner, health care facility or other licensed provider) could harm or produce risk of harm to a patient or other person, and reports those concerns to the employer or regulatory authorities, the nurse cannot be retaliated against.
Who can change the Rules?
- Legislation
Who can change the NPA?
- Legislative, every 2 years, meets in Austin, TX
Texas Nurses Association
- advocate nurses, protect nurses
Vicarious or substituted liability
- agency and manager responsible includes Respondeat superior and indemnification
Health Care and Education Reconciliation Act (2010
- amended Patient Protection & Affordable Care Act to clarify budget resolutions
ANA & TNA
- are to protect nurse. They go to legislative body for nursing
NPA
- define three categories: LPNs and LVNs, RNs, and advanced practice nurses
NPA
- defines and governs scope of practice, establish to protect public; changed by legislature every 2 years, in Austin, TX
BON does what?
- ensure enforcement of the act and to protect the public/consumer
Employment Laws
- ensure safety or rights of specific groups of people (Table 5-2, p.85 - Federal Labor Legislation)
Genetic information Nondiscrimination Act of 2008 (GINA)
- first federal law offering protection from genetic discrimination by health insurers and employers
NCSBN
- for NCLEX
o Respondeat superior
- let the master answer - makes employers responsible for negligence of employees ¥ Rationale is that if employee would not have been hired, the he/she would not have been in position to cause wrongdoing ¥ Pts injured because of substandard care have right to sue both institution and the nurse
Patient Protection and Accountability Act (2010)
- provides for the phased introduction of a comprehensive system of mandated health insurance forms
o Indemnification
- repay for loss ¥ Countersue the nurse for damages paid to an injured patient ¥ Applicable when employer is held liable based solely on the actions of the staff member's negligence and employer pays monetary damages because of employee's negligence
BON Rule 217.11 - Standards of Nursing Practice
- these rules supersede any other personnel or Dr. orders
Assignment
- transfer of all - authority, responsibility and accountability ♣ What happens between professional staff members ♣ Nurse manager assigns patient care responsibilities to other professional nurses working in the same unit of the institution or community healthcare setting ♣ If it can be shown that the nurse manager assigned/delegated tasks appropriately and had no reason to believe the nurse was not competent enough to perform task, the nurse manager has minimal or no liability. The reverse is also true ♣ Nurse manager must be aware of staff members' knowledge, skills, and competencies
Delegation
- transfer of authority and responsibility, BUT NOT accountability ♣ Ex: RN who delegates patient's personal care tasks to certified nursing aide who work in long term care facility ♣ In delegating these tasks, the RN retains ultimate accountability and responsibility for ensuring the delegated tasks are completed in safe and competent manner ♣ Delegation can also occur from RN to RN such as when one nurse takes a lunch break ♣ Delegation is both a process and condition ♣ It is process of delegating appropriate tasks and activities to others, and it is a condition because there must be mutual understanding by both delegator and delegate
Manager accountable for:
-Agency workers' skills, -Competency when assigning and delegating to the agency nurse -Hospital to educate and orient -Must supervise and orientate (P&P, resources, documentation, assign mentor/preceptor) -Same screening procedures as with a new employee & regular staff -Background checks
Elements of Malpractice include:
-Duty owed to the patient -Breach of duty owed -Foreseeability -Causation -Injury -Damages
Responsibility of employer
-Make reasonable accommodations to employ persons with a disability -Law mandates that those with disabilities not be disqualified merely because of easily accommodated disability -The act also provides for essential job functions that the individual must be able to perform to be qualified for employment positions -Many lawsuits since its enactment
Liability for the nurse manager
-Must ensure sufficient numbers of competent staff to meet patient needs -Notify administration when understaffing endangers patient welfare
Requirements for Family and Medical Leave act
-Must have worked 1250 hours during previous 12 months -May take up to 12 weeks off -Must use available vacation, personal, sick leave Must give 30 days' notice except for emergencies
¥ Ensure employees meet or exceed standards of care
-Performance evaluation -Chart audits
Types of liability
-Personal -Vicarious or substituted liability -Corporate liability
Questioning Medical Reasonableness of a Physician's Order
-Separate form -Does not involve peer review -May carry out order or refuse order
Qualified privilege
-on "a need to know" basis o communications made in good faith between persons or entities with a need to know o note that previous employee must have listed nurse manager or institution as reference before the privilege arises
Reasons for leave
-personal medical reasons, -birth, adoption, -care of spouse, child or parent with health problems; -provides job security but does not guarantee same job back -Also provides leave, up to 26 weeks, to care for an ill family member of the Armed Force and leave for a qualifying urgent need arising from a family member being on active duty
¥ BON Six Step Decision Making Model (see Bb document)
1. Is the activity consistent with the Nurse Practice Act, Board Rules, and Board Position Statements and/or Guidelines? 2. Is the activity appropriately authorized by valid order/protocol and in accordance with established policies and procedures? 3. Is the act supported by either research reported in nursing and health-related literature or in scope of practice statements by national nursing organizations? 4. Do you possess the required knowledge and have you demonstrated the competency required to carry out this activity safely? 5. Would a reasonable and prudent nurse perform this activity in this setting? 6. Are you prepared to assume accountability for the provision of safe care and the outcome of the care rendered?
Whistleblower laws provide 2 protections
1. Protects the nurse from employer retaliation 2. Provides recourse if retaliation occurs
Terms of ethics include
Autonomy, Beneficence, Non-maleficence, Veracity, Justice, Paternalism, Fidelity, and Respect for others
Protective reporting laws
NPA and Texas Nurses Association
BON Rule 217.11 (A)
Requires nurses to know and conform to NPA, board rules and regulations as well as all federal, state, or local laws, rules or regulations that affect the nurse's current area of nursing practice.
BON what is housed here?
Rules and regulations
BON where?
Within the state
For liability to incur against the nurse manager, it must be shown that
a resultant patient injury was directly caused by staffing issues and not by the incompetent or inappropriate actions of an individual staff member
Personal liability
accountable for own practice actions or omissions -Even if others can be shown to be liable for a patient injury, each individual retains personal accountability for his/her actions
BON rules supersede
any facility policy or PCP orders. The NPA and rules have the force of law for nurses
Once the nurse manager can show he/she acted how, the manage will not be held liable
appropriately, used sound judgement given circumstances, and alerted his/her supervisors about situation, then the institution
Ethics
are internal to an individual The ultimate good of an individual; rather than society as a whole Ethical principles; Box 5-4 p. 92
Examples of malpractice
drawing blood for blood gas analysis via direct arterial puncture or initiating blood transfusions
The NPA and BON Rules are
equally enforceable. You are required to comply with both!
The ADA act specifically excludes the following from the definition of disability:
homosexuality and bisexuality, sexual behavioral disorders, gambling addiction, kleptomania, pyromania, and current use of illegal drugs
Apparent agency:
hospital is accountable for the actions of his agent, i.e. hospital accountable for actions of contracted nurse ¥ The nurse manager must consider temporary worker's skills, competency, and knowledge when delegating tasks and supervising worker's actions. If manager suspects the temporary worker is incompetent, he/she must convey this to agency
¥ Orient, educate, evaluate
o Council practices with personnel problems o Nurse mangers are responsible for daily evaluation of whether nurses are performing safe and competent care o Key to meeting this requirement is reasonableness o Nurse managers should ensure they respond to all allegations by pt or staff of incompetent/questionable nursing care - they should investigate, recommend options for correcting situation, and follow up o Ex: nursing facility had experienced multiple problems with pts falling off Hoyer lift transfers because some staff members were unaware of how to properly secure pts in the sling before transfer. A patient fell and suffered femur fracture and facility was sued for failure to properly train staff.
Comply with reporting laws, state and federal employment laws, NPA, BON Rules and Regulations
o Nurse manager has responsibility to report incompetent, illegal, and unethical behaviors to BON
¥ Review standards, policy/procedures periodically, update when indicated, and enforce!
o Nurse practice councils o Review standards of care for updates
¥ Warn potential employers
o of staff incompetence or impairment, violence, harassment, theft, abuse o These issues are "zero tolerance" behaviors o Failure to warn is potential liability issue o State board of nursing should also know when there is cause to dismiss employee for incompetency or impairment unless the employee voluntarily enters a peer-assistance program Qualified privilege
¥ Assign, delegate, supervise appropriately
o use internal processes o use chain of command o use available resources
o The manager should ensure
patient safety and quality rather than rely on exact nurse-patient ratios
BON - Board of Nursing =
protect public
Purpose of the ADA is to
provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to provide clear, strong, consistent, enforceable standards addressing discrimination in the workplace
Managers have legal duty to notify COO when
staffing endangers pt welfare
To prevent nurse manager's liability, they must show
sufficient numbers of competent staff were available
Managers need to alert who of staffing concerns
upper level hospital administration
Family and Medical Leave Act of 1993, 2008
written to balance the demands of work with demands of family; allows unpaid leave for men or women
Equal Employment Opportunity Laws
¥ - enacted to prohibit discrimination based on gender, age, race, religion, handicap, pregnancy, national origin o enforced by Equal Employment Opportunity Commission (EEOC) and by state laws -> Civil Rights Acts, 1964, 1991; what was the focus of the 1991 legislation?
Corporate liability
¥ - newer trend in law whereby the institution is held responsible/accountable to ensure quality/safe healthcare delivery for consumers o Corporate liability issues include negligent hiring and firing issues, failure to maintain safety in physical environment, lack of qualified, competent, and adequate staff o Ex: hospital held liable for negligent credentialing of Nurse Practitioner
ANA Code of Ethics (2015)
¥ - serves as a guide for self-regulation within professional practice.
Occupational Safety and Health Administration Act of 1970 (OSHA)
¥ - to ensure healthful and safe working conditions in the workplace
NPA Scope of Practice
¥ An important question for you to ask: Can I safely care for this patient? To determine the answer refer to: Texas Board of Nursing website - https://www.bon.texas.gov/
Nursing Practice Act (NPA)
¥ Defines the scope of acceptable practice
NPA Where?
¥ Meet in Austin, TX, every 2 years
NPA purpose
¥ Purpose is to protect the public
Americans with Disabilities Act of 1990 (ADA)
¥ protects disabled persons regarding application, hiring, compensation, advancement and other matters; does not mandate that disabled person be hired before fully qualified non-disabled person
Manager accountable for
• Using agency personnel
Damages
• additional hospitalization time; future medical and nursing care needs and costs • Injured party must be able to prove the damages • Pt must shoe financial harm before the courts will allow a finding of liability against the defendant nurse/hospital
Negligence
• conduct lacking in care; carelessness; deviation from care that a reasonable person would deliver (typically from non-professionals)
Breach of duty owed
• failure to communicate change in patient status to the primary healthcare provider • once the standard of care is established, the breach or falling below the standard of care is relatively easy to show
Foreseeability
• failure to ensure minimum standards are met • Involves concept that certain events may reasonably be expected to cause specific results • The nurse must have prior knowledge or information that failure to meet a standard of care may result in harm • Ex: medication errors, patient falls, failure to enact physician orders • EX: resident known to be at high risk for falls was left unattended standing next to his walker. When he attempted to move forward, he lost balance and sustained injury to 12th thoracic vertebra
Common causes of malpractice or negligence among nurses include
• failure to follow standards of care, communicate appropriately, access and monitor patients, and act as patient advocate • These can also include nonintentional actions - individual who caused harm never meant to hurt patient
Duty owed to the patient
• failure to monitor a patient's response to treatment • Involve the standard of care - minimum requirements for acceptable practice or the minimum requirements for how one conducts self • Nurse managers are directly responsible for ensuring that standards of care, as written in hospital policy are current and all nursing staff follow these standards
Causation
• failure to provide adequate patient education • The nurse's actions or lack of actions directly caused the patient's harm • There must be direct relationship between failure to meet standard of care and pt's injury • Ex: pt who sustained incident in which two fingers were severed while using saw. Pt permanently lost fingers when nursing staff failed to follow order for an immediate orthopedist consultation
Injury
• fractured hip and head concussion after patient fall • Must be physical, not merely psychological or transient • Some physical harm must be incurred by pt before malpractice will be found against HCP • These are extremely limited and usually involve specific relationships, such as parent-child relationship. Pain and suffering are allowed when they accompany actual physical injuries
Use what first! Blowing the whistle should be the last step. For TNA Guidelines to Follow
• internal resources
Malpractice
•- referred to as professional negligence; failure to act in a reasonable and prudent manner. o failure of person with professional education skills to act in a reasonable and prudent manner
Determination of qualified people is done case by case and person must show:
∙ He/she has physical impairment ∙ Impairment must substantially limit one or more major life activities ∙ Qualified individual must be able to perform the essential function of the employment position sought in which the individual is currently employed
Professional codes of ethics generally serve the following purposes:
∙ Inform the public of the minimum standards acceptable for conduct by members of the discipline and assist the public in understanding a discipline's professional responsibilities ∙ Outline the major ethical considerations of the profession ∙ Provide to its member's guidelines for professional practice ∙ Serve as a guide for the discipline's self-regulation
Supervision
♣ Active process of directing, guiding, and influencing the outcome of an individual's performance of an activity ♣ Nurse manager retains personal liability for reasonable exercise of assignment, delegation, supervision ♣ Failure to assign, delegate, and supervise within acceptable standards may constitute malpractice
Nurse manager must first do what he/she can to alleviate staffing issues:
♣ Approving overtime for adequate coverage ♣ Reassigning personnel among those areas he/she supervises ♣ Restricting new admissions to the area
Corporate failures
♣ Lack of competent staff ♣ Failure to supervise and monitor ♣ Outdated policies and procedures ♣ Failure to maintain safety ♣ Negligent hiring and firing ♣ Negligent credentialing ♣ Ineffective quality/risk management processes
¥ Staffing issues: Issues that arise under staffing:
♣ Maintaining adequate numbers of staff members in a time of advancing patient acuity and limited resources ♣ Floating staff from one unit to another ♣ Using temporary or "agency" staff to augment the healthcare facility's current staffing
Strategies for floating staff
♣ Match home unit and float unit - pediatrics to mother - baby unit ♣ Float where fewer skills are needed - CCU to step down unit ♣ Cross train to cover several areas
Maintaining adequate numbers
♣ Use of safe-staffing standards vs mandated nurse-patient ratios ♣ Safe staffing standards ♣ Experience and acuity ♣ Competent staff ♣ Contact administration for unsafe staffing issues ♣ Courts look at professional judgment and degree of expertise, not staffing ratios ♣ Liability for the nurse manager
