Ch. 5 Legal and Legislative Issues

Generally, a nurse is not liable for injury that occurs as a result of emergency treatment when care is provided at the scene of the emergency which is not grossly negligent.

Good Samaritan Immunity

Protects the privacy of health information and improves the portability and continuity of health insurance coverage.

Health Insurance Portability and Accountability Act (HIPAA) 1996

The physician states in the progress notes of the medical record that the patient is unable to sign but that treatment is immediately needed and is in the patient's best interest. Usually this type of implied consent must be validated by another physician.

Implied consent

Minimal level of expertise that may be delivered to a patient - Conduct of a reasonably prudent nurse in similar circumstances - Regionally based Set by Professional Organizations (ANA)

Standards of Care

To let the decision stand (use precedents)

Stare decisis

Civil Cases typically including malpractice- one individual sues another monetarily to compensate for a perceived loss- burden of proof required to be found guilty is a _____ _____ ___ ____

preponderance of the evidence

The primary purpose of law and legislation is to...

protect the patient and the nurse.

Individual faces charges filed by the state or federal attorney general for crimes committed against an individual or society

Criminal Law

By witnessing pts sign a standard consent form Role of nurse is to be sure that pt received informed consent and to seek remedy if he or she has not

Express consent

The failure of a person with professional training to act in a reasonable and prudent manner—also called professional negligence

Malpractice - being ignorant not justifiable excuse

Legal instrument that defines what the functions of nursing shall be and sets standards for licensure. - Grants a nurse the authority to carry out those functions. - Each state differs

Nurse Practice Act

The omission to do something that a reasonable person would do.

Ordinary negligence

Requires health care organizations that receive federal funding to provide education for staff and patients on issues concerning treatment and end-of-life issues-living wills.

Patient Self-Determination Act (PSDA) 1991

The failure of a person with professional training to act in a reasonable and prudent manner. - physicians and even nurses because we have more authority, autonomy, and accountability, etc. for our own practice. Many nurses now carry our own malpractice insurance. - *plaintiff: injured party Defendent: profession who is alleged to have caused injury.

Professional Negligence

Frequent legal claims against nurses

- Inadequate charting. - Inadequate communication with physician or supervisors about changes in patient conditions. - Leaving potentially harmful items within patient reach. - Unattended patient falls. - Inaccurate counting of operative instruments and sponges. - Misidentifying patients for medications, surgeries, tests.

The Board of Registered Nursing Protects Citizens by:

- RN licensing - Monitoring RN educational standards - RN continuing education - Disciplining RNs

One individual sues another monetarily to compensate for a perceived loss. - The burden of proof required to be found guilty in a civil case is described as a preponderance of the evidence or the judge or jury must believe that it was more likely than not the accused individual was responsible for the injuries of the complaintant.

Civil Law

Type of Law:

1. Criminal Law 2. Civil Law 3. Administrative Law

Need for malpractice insurance?

1. Expanded roles 2. Greater likelihood of being sued if they have malpractice insurance 3. Injured parties will always seek damages from as many individuals with financial resources as possible

2 Types Negligence

1. Ordinary negligence 2. Professional negligence (malpractice)

5 Components Necessary for Professional Negligence to Occur

1. Standard of care is in place 2. Failure to meet standard of care 3. Foreseeability of harm must exist 4. Provable correlation between care and harm 5. Actual pt injury must occur

An individual is sued by a state or federal governmental agency assigned the responsibility of implementing governmental programs. ex. State Boards of nursing. If an individual violets Nurse Practice Act the board of nursing may seek to revoke licensure or institute some form of disciple. Burden of proof varies state to state.

Administrative Law

Obtained only after pt receives full disclosure of all pertinent information regarding the surgery or procedure and only if the patient understands the potential benefits and risks associated with doing so

Informed Consent * Nurses not allowed to obtain this- can only witness a MD signature*

Types of Consent

Informed consent Implied consent Express content

Assault and battery- threatening or touching without permission - False imprisonment (physical restraints) - Invasion of privacy - Defamation of character

Intentional Tort

The thing speaks for itself-harm is obviously the result of negligence - Assumes a person's injury was caused by the negligent action of another due to the information

Resipsa Loquitur

Master is responsible for the servants - The employee should be held liable for the conduct of employees whose actions she or he has a right to direct or control. - Difficult to interpret because many exceptions exist. Most important exception is related to the state in which the nurses practices. Doctrine of charitable immunity applies in some states who says that a caharitable hospital cannot be sued by a person who has been injured as a result of a hospital employee's negligence. Liability limited to the employee.

Respondeat Superior

legal wrongs committed against a person or property, independent of a contract, that render the person who commits them liable for damages in civil action.

Tort

Employers are held liable for the nurse's act (respondeat superior is a form of this)

Vicarious liability

Reasonable and prudent care in malpractice suit determined by the testimony of the ____ ____ _____

expert nursing witnesses

Sued for malpractice- can't say "just following MD orders"- nurses have an ______ responsibility to take appropriate steps to safeguard pts

independent