Legal & Legislative Issues

Assault

The conduct of one person makes another person fearful and apprehensive ex: threatening to place a nasogastric tube in a client who is refusing to eat

Malpractice

The failure of a person with professional training to act in a reasonable and prudent manner — also called professional negligence ex: a nurse administers a large dose of medication due to a calculation error. The client has a cardiac arrest and dies.

Negligence

The omission to do something that a reasonable person, guided by the considerations that ordinarily regulate human affairs, would do — or as doing something that a reasonable and prudent person would not do Practice or misconduct that does not meet expected standards of care and places the client at risk for injury (ex: a nurse fails to implement safety measures for a client who has been identified as at risk for falls)

Being sued for malpractice

"Just following physician orders" is not a defense for malpractice - If a provider prescribes an unnecessary treatment for a client and there is potential for harm to the client, the nurse can be held legally liable for any harm if the procedure is carried out without questioning it Nurses have an independent responsibility to take appropriate steps to safeguard patients

False imprisonment

A competent person not at risk for injury to self or others is confined or restrained against their will ex: using restraints on a competent client to prevent their leaving the health care facility

5 components necessary for professional negligence to occur

A standard of care is in place (minimal level of expertise delivered to a patient) There is a failure to meet the standard of care (breach of duty) Foreseeability of harm must exist (ignorance is not an excuse) There must be a provable correlation between care and harm Actual patient injury must occur ATI p. 43 box 3.2

Intentional torts

Assault Battery False imprisonment

A nurse is charged with administering a fatal dose of morphine to a patient on hospice. In which type of court would this nurse be charged? A. Civil B. Criminal C. Administrative D. None of the above

B. Criminal Rationale: Nurses found guilty of intentionally administering fatal doses of drugs to patients would be charged in a criminal court. In civil cases, one individual sues another for money to compensate for a perceived loss. In administrative cases, an individual is sued by a state or federal governmental agency assigned the responsibility of implementing governmental programs.

Civil law

Burden of proof required for guilty verdict: based on a preponderance of the evidence Likely consequences of a guilty verdict: monetary damages Civil laws protect the individual rights of people. One type of civil law that relates to the provision of nursing care is tort law. Torts can be classified as unintentional, quasi-intentional, or intentional.

Criminal law

Burden of proof required for guilty verdict: beyond a reasonable doubt Likely consequences of a guilty verdict: incarceration, probation, and fines Criminal law is a subsection of public law and relates to the relationship of an individual with the government Violations of criminal law can be categorized as either a felony (a serious crime i.e. homicide) or misdemeanor (a less serious crime i.e. petty theft) A nurse who falsifies a record to cover up a serious mistake can be found guilty of breaking a criminal law

Administrative law

Burden of proof required for guilty verdict: clear and convincing standard Likely consequences of a guilty verdict: suspension or loss of licensure

Slander

Defamation with the spoken word ex: a nurse tells a coworker that she believes a client has been unfaithful to the spouse

Libel

Defamation with the written word or photographs ex: a nurse documents in a client's health record that a provider is incompetent

Defamation

False communication or communication with careless disregard for the truth with the intent to injure an individual's reputation

Battery

Intentional and wrongful physical contact with a person that involves an injury or offensive contact ex: restraining a client and administering an injection against their wishes

Invasion of privacy

Intrusion into a client's private affairs or a breach of confidentiality ex: a nurse releases the medical diagnosis of a client to a member of the press

Quasi-intentional torts

Invasion of privacy Defamation of character - Slander (spoken) - Libel (written)

Informed consent

Many nurses erroneously believe that they have obtained informed consent when they witness a patient's signature on a consent form for surgery or procedure. Informed consent can be given only after the patient has received a complete explanation of the surgery, procedure, or treatment AND indicates that he or she understands the risks and benefits related to it. The nurse is not responsible for explaining the procedure to be performed, the physician is. The nurse serves as a patient advocate by determining their level of understanding and seeing that the appropriate person answers their questions.

Patient medical records

Patient owns the information, but the record belongs to the facility that made it and is storing it Patients must have reasonable access to the record Collaboration between health-care providers and patients, and documentation thereof, is a good indication of well-provided clinical care Nurses have a legal responsibility for accurately recording appropriate information in the client's medical record. The alteration of medical records can result in license suspension or revocation. **Also remember, if it is not documented in the health-care record... it did not happen. Nurses should be aware of the procedure for obtaining medical records for patients at the facilities where they work.

Reducing the risk of malpractice claims

Practice within the scope of the nurse practice act Observe agency policies and procedures Model practice after established standards by using evidence-based practice Always put patient's rights and welfare first Be aware of relevant law and legal doctrines Practice within the area of individual competence and upgrade technical skills consistently Professional nurses should first adhere to the Nurse Practice Act (each state has its own nurse practice act) when providing care to clients. These national standards provide a measurement of safe care. ATI p. 42-43 standards of care (practice)

Common causes of professional nursing license suspension or revocation

Professional negligence Practicing medicine or nursing without a license Obtaining a nursing license by fraud or allowing others to use your license Felony conviction for any offense substantially related to the function or duties of an RN Participating professionally in criminal abortions Not reporting substandard medical or nursing care Providing patient care while under the influence of drugs or alcohol Giving narcotic drugs without an order Falsely holding oneself out to the public or to any health-care practitioner as a "nurse practitioner"

Incident Reports (Adverse Event Forms)

Records of unusual or unexpected incidents that occur in the course of a client's treatment Generally considered confidential communications and cannot be subpoenaed by clients or used as evidence in their lawsuits in most states A copy of an incident report should NOT be left in the chart, and no entry should be made in the patient's record about the existence of an incident report. These reports are confidential within the organization and can be filled out on actual events or near miss events (a patient was nearly harmed). These reports are protected from being used in a lawsuit because they are not kept as a part of the client's medical record. They are used to document the issue(s), but can also be used to learn from to prevent the same things from occurring again in the future.

Responsibilities of the nurse-manager

Reporting dangerous understaffing Checking staff credentials and qualifications of subordinates Carrying out appropriate discipline when policies and procedures are not carried out Standards of care as depicted in policies and procedures may pose a liability for the nurse if such policies and procedures are not followed. Managers have a responsibility to see that written protocols, policies, and procedures are followed in order to reduce liability. In addition, the manager, like all professional nurses, is responsible for reporting improper or substandard medical care, child and elder abuse, and communicable diseases, as specified by the CDC.

Patient Self-Determination Act (PSDA)

Required healthcare organizations that received federal funding (Medicare and Medicaid) to provide education for staff and patients on issues concerning treatment and end-of-life issues Includes the use of advance directives (ADs), written instructions regarding desired end-of-life care Also likely includes durable power of attorney for health care (health-care proxy)

Good Samaritan Laws

Suggest that health-care providers are typically protected from potential liability if they volunteer their nursing skills away from the workplace (generally limited to emergencies), provided that actions taken are not grossly negligent and if the health-care worker does not exceed his or her training or scope of practice in performing the emergency services ATI p. 41 Good Samaritan laws, which vary from state to state, protect nurses who provide emergency assistance outside of the employment location. The nurse must provide a standard of care that is reasonable and prudent.

Guidelines for informed consent

The person(s) giving consent must fully comprehend: 1. The procedure to be performed 2. The risks involved 3. Expected or desired outcomes 4. Expected complications or side effects that may occur as a result of treatment 5. Alternative treatments that are available Consent may be given by: 1. A competent adult 2. A legal guardian or individual holding durable power of attorney 3. An emancipated or married minor 4. Mature minor (varies by state) 5. Parent of a minor child 6. Court order ATI p. 36-37

Purpose of law and legislation

The primary purpose is to protect the patient and the nurse Laws and legislation define the scope of acceptable practice and protect individual rights Nurses who are aware of their rights and duties in legal matters are better able to protect themselves against liability or loss of professional licensure

Advanced directives

The purpose of advance directives is to communicate a client's wishes regarding end-of-life care should the client become unable to do so Nursing role in advanced directives: - Providing written information regarding advance directives - Documenting the client's advance directives status - Ensuring that advance directives are current and reflective of the client's current decisions - Recognizing that the client's choice takes priority when there is a conflict between the client and family, or between the client and the provider - Informing all members of the health care team of the client's advance directives

Nurses are at increased legal liability in the 21st century owing to the following:

They have more authority and independence in decision making They have increased legal accountability for decision making They are performing more actions that used to be in the realm of medical practice Increase in use of assistive personnel within the healthcare team Remember: RN's are liable for every action delegated to non licensed persons. The more an RN delegates to NAP's, the more the RN's liability increases.

T/F: negligence and malpractice are both unintentional torts.

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