Chapter 7- Review

State-approved, or accredited, educational programs in nursing include

practical or vocational, associate degree, diploma, baccalaureate, and graduate programs in nursing

Most law involving malpractice

common law based on the principle of stare decisis, or "let the decision stand."

The nurse responsible for a potential or actual harmful incident or who witnesses an injury is the one who completes the

incident form

plaintiff

person bringing the lawsuit

Who makes nursing practice rules?

-federal legislation- Medicare and Medicaid provisions related to reimbursement for nursing services -state legislation- Scope of practice for RNs, LPNs, advanced practice nurses • Nursing educational requirements • Composition and disciplinary authority of board of nursing -board of nursing- • Delegation • Medication administration • Unprofessional conduct • Licensing -health care institution- • Clinical procedures, such as wound dressing changes • Policies specific to the institution, specialty, or practice setting • Personnel and employment policies

When a patient believes he or she has been injured because of the negligence of a nurse or other health care professional and pursues legal action, one of three outcomes usually occurs:

All parties work toward a fair settlement. The case is presented to a malpractice arbitration panel (in the United States). The case is brought to trial court.

The LeapFrog group gives public recognition to hospitals if they agree to the following when a never event occurs within their facility:

Apologize to the patient and family Waive all costs related to the event and follow-up care Report the event to an external facility Conduct a root cause analysis of how and why the event occurred

When taking provider orders follow these guidelines

Be familiar with the parties designated in your state's nurse practice act who can legally write orders for the nurse to execute. (For example, in many states, a physician assistant cannot legally write orders for the nurse.) Be familiar with your institution's or facility's policy regarding provider orders. Attempt to get all provider orders in writing. Verbal orders (VOs) and telephone orders (TOs) should be countersigned within 24 hours. Take the following steps to prevent errors caused by TOs:Limit TOs to true emergency situations when there is no alternative.Designate which nurses may take TOs (e.g., those who have more education and experience).Repeat the TO back to the provider for confirmation.Document the order, its time and date, the situation necessitating the order, the provider prescribing and reconfirming the order as it is read back, and your name. Indicate if the order is a VO or TO.When possible, have two nurses listen to a questionable TO, with both nurses countersigning the order. See Chapter 19 for additional guidelines on executing verbal, telephone, and fax orders. The Joint Commission (2016b) now permits licensed independent health care providers to send orders via text messaging "as long as a secure text messaging platform is used and the required components of an order are included." To read more about The Joint Commission's position on sending orders by text message, visit www.jointcommission.org/assets/1/6/Update_Texting_Orders.pdf. Question any health care provider order that is:AmbiguousContraindicated by normal practice (e.g., an abnormally high dose of medication)Contraindicated by the patient's present condition (e.g., as a patient's present condition improves, the patient may no longer need aggressive forms of treatment)

Indications That a Nurse May Have a Substance Abuse Disorder (SUD)

Behavioral Changes Changes or shifts in job performance Absences from the unit for extended periods Frequent trips to the bathroom Arriving late or leaving early Making an excessive number of mistakes, including medication errors Behavioral changes may have physical manifestations: Subtle changes in appearance that may escalate over time Increasing isolation from colleagues Inappropriate verbal or emotional responses Diminished alertness, confusion, or memory lapses Narcotics Discrepancies Incorrect narcotic counts Large amounts of narcotic wastage Numerous corrections of medication records Frequent reports of ineffective pain relief from patients Offers to medicate coworkers' patients for pain Altered verbal or phone medication orders Variations in controlled substance discrepancies among shifts or days of the week

Legal safeguards of competent practice

Developing and maintaining interpersonal communication skills Respecting legal boundaries of practice Following institutional procedures and policies "Owning" personal strengths and weaknesses; seeking means of growth, education, and supervised experience to ensure continued competence for new and evolving responsibilities Evaluating proposed assignments; refusing to accept responsibilities for which you are unprepared Keeping current in nursing knowledge and skills Respecting patient rights and developing rapport with patients Working within the facility to develop and support management policies Keeping careful documentation

Checklist to Ensure Informed Consent

Disclosure Comprehension Competence Voluntariness

Recommendations for the nurse defendant include the following:

Do not discuss the case with anyone at your facility (with the exception of the risk manager), with the plaintiff, with the plaintiff's lawyer, with anyone testifying for the plaintiff, or with reporters. Do not alter the patient's records. Tampering with a chart is the worst mistake you can make; you may well ruin your defense. Cooperate 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. Be courteous on the witness stand. Do not volunteer any information.

Remember that the medical record is the best, and sometimes the only, available evidence if you have to defend your actions so you should

Document all clinical observations and critical diagnostics. Document conversations with other providers regarding patient issues. Document which specific health care provider was notified of which specific concerns at what specific time. Document that the chain of command has been engaged when necessary. Make sure that the medical record reflects that you pursued your concerns to resolution.

State Board of Nursing may revoke or suspend a nurses license for various reasons such as

Drug or alcohol abuse is currently the most frequent reason. Other reasons for revocation or suspension of a license or registration include fraud, deceptive practices, criminal acts, previous disciplinary action by other state boards, gross or ordinary negligence, and physical or mental impairments, including those resulting from aging.

. Reising (2012) identifies the following common categories of malpractice claims:

Failure to follow standards of care. EXAMPLE: You fail to follow the standards for administering insulin or other injectable medications. Failure to use equipment in a responsible manner. EXAMPLE: You attempt to use a bariatric patient lift for the first time without getting help, and the patient falls. Failure to assess and monitor. EXAMPLE: You fail to follow your hospital's standards for postoperative assessments after receiving a patient from the operating room, and response to a ruptured suture line is delayed. Failure to communicate. EXAMPLE: You fail to communicate your concerns about an older adult patient being discharged home; she lives alone. The patient is soon rehospitalized because no provisions were made to secure the nursing care she needed after discharge. Failure to document. EXAMPLE: You believe a patient is in danger of arresting, but your repeated calls to a health care provider to see the patient are ignored, so you work up the chain of command. Before any health care provider sees the patient, he arrests and, despite a code, dies. You document the arrest, code, and death; however, you failed to document all the steps you took to get the patient the medical attention he needed. Sixteen months later, the family sues, and you try to remember what action you took that evening—most of which was never recorded. Failure to act as a patient advocate or to follow the chain of command. EXAMPLE: You are in the operating room and watch a surgeon break the sterile field twice. No one else seems to notice. You are intimidated by this surgeon and fail to bring this to anyone's attention. You learn that the patient developed a serious infection postoperatively.

According to the theory of just culture, three types of behaviors contribute to errors:

Human error, which occurs unintentionally and without malicious intent At-risk behavior, which encompasses acts designed to cut corners and save time despite the known but seemingly justified behavior Reckless behavior, which consists of acts that disregard all safety measures

Issues that affect competent practice

Nurse fatigue, the impaired nurse, informed consent or refusal,

Laws affecting nursing practice

Occupational Safety and Health National Practitioner Data Bank Reporting obligations Controlled substances Discrimination and sexual harassment Health Insurance Portability and Accountability Act (HIPAA) Restraints People with disabilities Legal issues related to death and dying (wills, advance directives)

Reasons the ANA (1990) lists for purchasing a personal professional liability insurance policy are as follows:

Protection of the nurse's best interests. If the nurse is named as a defendant in a malpractice action along with the facility, a conflict of interest could arise between the nurse and the facility. Nurses have no assurance that their best interest will be represented unless they have their own coverage, which provides their own attorney. Limitations of employer's coverage. Most health care facilities carry "claims-made" insurance, which means that if the nurse is no longer working there or the facility closes, the nurse is not covered when a claim is filed. Care or advice given outside of work. An employer's policy covers the nurse only within the confines of the work setting.

Tocco and Blum (2013, p. 17) describe actions every nurse can take to promote a just culture:

Report errors, near misses, and other events to your manager and colleagues. Encourage colleagues to report their own events. Discuss with colleagues what can be done to prevent future events. Partner with your manager in communicating your unit's experiences to the nursing practice council or quality council. This promotes learning from these events, which translates to safer care. Help colleagues "connect the dots" by linking changes in practice to learning from events.

Elements of a comprehensive risk management program include the following:

Safety program. The aim is to provide a safe environment in which the basic safety needs of patients, employees, and visitors are met. Product safety program. The aim is to ensure safe and adequate equipment; this involves ongoing equipment evaluation and maintenance. Quality assurance program. The aim is to provide quality health care to patients; this involves ongoing evaluation of all systems used in the care of patients.

HIPAA ensures that the patients have the following rights

To see and copy their health record To update their health record To request correction of any mistakes To get a list of the disclosures a health care institution has made independent of disclosures made for the purposes of treatment, payment, and health care operations To request a restriction on certain uses or disclosures To choose how to receive health information

Areas of Potential Liability for Nurses

Standard I: Assessment- 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 care plan (and to execute) the need for more frequent nursing assessments • Failure to recognize and to report significant changes in the patient's condition Standard II: Diagnosis The registered nurse analyzes the assessment data to determine actual or potential diagnoses, problems, and issues. • Failure to identify priority nursing diagnosis critical to the patient's care • Nursing diagnosis incorrectly developed and "labels" the patient negatively Standards III and IV: Outcome Identification and Planning The registered nurse identifies expected outcomes for a plan individualized to the health care consumer or the situation and develops a plan that prescribes strategies to attain expected, measurable outcomes. • No indication in nursing care plan that nurses were aware of and sensitive to the patient's health care priorities Standard V: Implementation The registered nurse implements the identified plan. • 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) Standard VI: Evaluation The registered nurse evaluates progress toward attainment of goals and outcomes. • No evidence in care plan and nursing notes that nurses evaluated whether the patient achieved target goals • Patient discharged before key goals are met and without follow-up instruction

The steps involved in malpractice litigation are as follows

The basis for the claim is determined to be appropriate and timely; all elements of liability are present (duty, breach of duty, causation, and serious damages). All parties named as defendants (nurses, health care providers, health care facility), as well as insurance companies and attorneys, work toward a fair settlement. The case is presented to a malpractice arbitration panel. The panel's decision is either accepted or rejected, in which case a complaint is filed in trial court. The defendants contest allegations (argue that there is no basis for alleging deviation from the appropriate standard of care or for proving causation and damages). Pretrial discovery activities occur: review of medical records and depositions of plaintiff, defendants, and witnesses. Trial takes place; both sides present their evidence and arguments. Decision or verdict is reached by the judge or jury. If the verdict is not accepted by both sides, it may be appealed to an appellate court.

nurses may be asked occasionally to witness a testator's signing of his or her will and should be familiar with the following guidelines:

The witness should feel sure that the testator is of sound mind—that is, that the testator knows what he or she is doing and is free of the influence of drugs that could distort thinking. The witness should feel sure that the testator is acting voluntarily and is not being coerced in any way concerning the terms of his or her will. Witnesses should watch the testator sign the will, and they should sign in the presence of each other. State law indicates how many witnesses must acknowledge the testator's signature on a will; two or three witnesses are most commonly required. Witnesses to the signature on a will do not need to read it, but they should be sure that the document being signed is a will and not some other type of document. In most states, a person who is a beneficiary in a will is disqualified from being a witness to the testator's signature.

Certain acts by nurses could constitute invasion of privacy such as

Unnecessary exposure of patients while moving them through a corridor or while caring for them in rooms they share with others Talking with patients in rooms that are not soundproof Discussing patient information with people not entitled to the information (e.g., with the patient's employer or the press, or even the patient's family if not authorized to do so) Pressing the patient for information not necessary for care planning Interacting with the patient's family in ways not authorized by the patient Using tape recorders, dictating machines, computers, and the like without taking precautions to ensure the patient's confidentiality (see Chapter 19 and Box 7-2) Preparing written or oral class assignments about patients without concealing their identity Carrying out research without taking proper precautions to ensure the anonymity of patients

Following are examples of situations that could violate standards if care is not taken, because of the potential threat to worker safety:

Use of electrical equipment Use of isolation techniques for patients with infectious diseases and the management of contaminated equipment and supplies Use of radiation, such as infrared or ultraviolet radiation, sound or radio waves, and laser beams Use of chemicals, such as those that are toxic or flammable

Legal standards are developed by

a legislature and are implemented by authority granted by the state to determine minimum standards for the education of nurses, to set requirements for licensure or registration, and to decide when a nurse's license may be suspended or revoked

Legal standards, on the other hand, are developed by

a legislature and are implemented by authority granted by the state to determine minimum standards for the education of nurses, to set requirements for licensure or registration, and to decide when a nurse's license may be suspended or revoked (state nurse practice act)

Credentialing

accreditation, licensure, certification

informed and voluntary consent is needed for

admission, for each specialized diagnostic or treatment procedure, and for any experimental treatments or procedures.

Duty refers to

an obligation to use due care (what a reasonably prudent nurse would do) and is defined by the standard of care appropriate for the nurse-patient relationship.

Some of the intentional torts for which nurses may be held liable include

assault and battery, defamation of character, invasion of privacy, false imprisonment, and fraud

restraints must not be used for

coercion, punishment, discipline, or staff convenience

Legal safeguards for the nurse

competent practice, contracts, collective bargaining, Patient education, executing provider orders, delegating nursing care, documentation, appropriate use of social media, adequate staffing, whistle blowing, professional liability insurance, risk management programs, just culture, incident, variance, or recurrence reports, sentinel events, never events, Patients' rights, Good Samaritan Laws, Student liability

Four sources of laws exist at both the federal and state level

constitutions, statutory law, administrative law, and common law.

an individual policy provides benefits not usually covered in employer policies, such as

coverage for assault, first aid expenses, violations of the HIPAA, libel or slander, depositions, property damage, and license protection benefits.

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

Elements of informed consent include

disclosure, comprehension, competence, and voluntariness

Liability involves four elements that must be established to prove that malpractice or negligence has occurred:

duty, breach of duty, causation, and damages

Crucial to a nurse's successful defense are

early legal counsel, character and expert witnesses, and thorough preparation for all proceedings

Unjustified retention or prevention of the movement of another person without proper consent can constitute

false imprisonment

Fact witnesses must base their testimony on only

firsthand knowledge of the incident and not on assumptions.

Misrepresentation of a product is a common

fraudulent act

To maintain a license in good standing a nurse must meet other requirements determined by the state or territory, these often include

good moral character, continuing clinical competence or continuing education, the absence of a criminal record, English proficiency, and compliance with specific provisions of the state's nursing laws.

A person committing an intentional tort is considered to have

knowledge of the permitted legal limits of his or her words or acts.

Voluntary standards are not

mandatory but are used as guidelines for peer review.

Nurses may be reported to the National Practitioner Data Bank for

medical malpractice payments, adverse licensure actions, or adverse professional actions.

Competent practice remains the nurse's

most important and best legal safeguard

NCSBN

national council State Boards of Nursing - develops the NCLEX and regulate uniformity of nursing practice

Unintentional torts are referred to as

negligence

A license may not be revoked without due process, this includes

notice of an investigation, a fair and impartial hearing, and a proper decision based on substantial evidence

the central values underlying informed consent include

promoting the patient's well-being and respecting the patient's self-determination

the ultimate goal of all laws and professional regulations involved with nursing practice is

public safety

For a contract to be legally enforceable, it must involve

real consent of the parties, a valid consideration, a lawful purpose, competent parties, and the format required by law.

Private law, also called civil law,

regulates relationships between the people. Ex-laws relating to contracts; ownership of property; and the practice of nursing, medicine, pharmacy, and dentistry.

Collective bargaining is a legal process in which

representatives of organized employees negotiate with employers about such matters as wages, hours, and conditions.

Causation, the most difficult element of liability to prove,

shows that the failure to meet the standard of care (breach) actually caused the injury.

certification validates

specialty knowledge, experience, and clinical judgment

Slander is

spoken defamation of character

Criminal law, a type of public law, concerns

state and federal criminal statutes, which define criminal actions such as murder, manslaughter, criminal negligence, theft, and illegal possession of drugs.

A legislative body enacts

statutory law. Statutory laws must be in keeping with both the federal constitution and the state constitution

Examples of voluntary standards include

the American Nurses Association (ANA) standards of practice (see Chapter 1), professional standards for the accreditation of education programs and service organizations, and standards for the certification of individual nurses in general and specialty areas of practice.

Damages are

the actual harm or injury resulting to the patient

Impediments in the way of informed consent include

the effects of anxiety, pain, medication, depression, language barriers, and temporary or permanent states of disorientation and confusion

Documentation in the patient record, however, should not include

the fact that an incident report was filed

Breach of duty is

the failure to meet standard care

Federal and state constitutions indicate how

the federal and state governments are created, and they give authority and state the principles and provisions for establishing specific laws.

Public law is law in which

the government is involved directly. It regulates relationships between people and the government

When in doubt about disclosing confidential information, consult

the nursing supervisor, ethics committee, or public relations department of the institution.

Obtaining informed consent is the responsibility of

the person who will perform the diagnostic or treatment procedure or the research study.

Appropriate response to a sentinel event includes

thorough and credible root cause analysis, implementation of improvements to reduce risk, and monitoring of the effectiveness of those improvements

The two levels of courts in the United States are

trial courts- the first-level court, hears all the evidence in a case and makes decisions based on facts, usually through a jury. appellate courts- hears only cases questioning a point of law decided by the trial court.

libel is

written defamation

the most important law affecting your nursing practice

your state's nurse practice act (protects the public by broadly defining the legal scope of nursing practice.)