Legal Implications
Nursing Students
You are liable if your actions cause harm to patients, as is your instructor, hospital, and college/university. You are expected to perform as a professional when rendering care. You must separate your student nurse role from your work as a certified nursing assistant (CNA). You must use only skills and perform only tasks for which you have been instructed and checked off to perform. You must not perform tasks you would do when working as a nursing assistant.
Abortion Issues
1973 Roe v. Wade U.S. Supreme Court ruled that there is a fundamental right to privacy, which includes a woman's right to have an abortion. 1989 Webster v. Reproductive Health Services Some states require viability tests if the fetus is more than 28 weeks' gestational age. The issue of abortion can cause consternation for many nurses. The court ruled that during the first trimester, a woman could end her pregnancy without state regulation because the risk of natural mortality from abortion is less than with normal childbirth. During the second trimester, the state has an interest in protecting maternal health, and the state enforces regulations regarding the person performing the abortion and the abortion facility. By the third trimester, when the fetus becomes viable, the state's interest is to protect the fetus; thus, the state prohibits abortion except when necessary to save the mother.
Malpractice Insurance
A contract between the nurse and the insurance company Provides a defense when a nurse is in a lawsuit involving negligence or malpractice insurance Nurses covered by institution's insurance while working It is important to know that the hospital policy does not cover a nurse when neighbors or friends seek a nurse to volunteer. Nursing faculty should inform students regarding the university's/college's policy on malpractice insurance.
Risk Management
A system of ensuring appropriate nursing care that attempts to identify potential hazards and eliminate them before harm occurs Steps involved: Identify possible risks. Analyze risks. Act to reduce risks. Evaluate steps taken. Risk management requires good documentation. The nurse's documentation is oftentimes the evidence of care a patient received and serves as proof that the nurse acted reasonably and safely.
Statutory Guidelines for Legal Consent for Medical Treatment
Adults A. Any competent individual 18 years of age or older for himself or herself B. Any parent for his or her unemancipated minor C. Any guardian for his or her ward D. Any adult for the treatment of his or her minor brother or sister (if an emergency, and parents are not present) E. Any grandparent for a minor grandchild (if an emergency, and parents are not present) A signed consent form is required for all routine treatment, hazardous procedures such as surgery, some treatment programs such as chemotherapy, and research involving patients. Informed consent is a person's agreement to allow something to happen such as surgery or an invasive diagnostic procedure, based on full disclosure of risks, benefits, alternatives, and consequences of refusal.
Consent
Consent form >Must be signed Informed consent >Agreement to allow care based on full disclosure of risks, benefits, alternatives, and consequences of refusal >The nurse's signature as a witness to the consent means that the patient voluntarily gave consent, the patient's signature is authentic, and the patient appears to be competent to give consent A patient's signed consent form is necessary for admission to a health care agency, invasive procedures such as intravenous central line insertion, surgery, some treatment programs such as chemotherapy, and participation in research studies. Nurses need to know the law in their states and be familiar with the policies and procedures of their employing agency regarding consent. Informed consent creates a legal duty for the health care provider to disclose material facts in terms the patient is able to understand to make an informed choice. Informed consent is part of the health care provider-patient relationship. It must be obtained and witnessed when the patient is not under the influence of medication such as opioids. It is not the nurse's responsibility get informed consent. Key elements of responsibility for the health care provider include the following: The patient receives an explanation of the procedure or treatment. The patient receives the names and qualifications of people performing and assisting in the procedure. The patient receives a description of the serious harm, including death, that may occur as a result of the procedure and anticipated pain and/or discomfort. The patient receives an explanation of alternative therapies to the proposed procedure/treatment and the risks of doing nothing. The patient knows that he or she has the right to refuse the procedure/treatment without discontinuing other supportive care. The patient knows that he or she may refuse the procedure/treatment even after the procedure has begun. If patients deny understanding or you suspect that they do not understand, notify the health care provider or nursing supervisor. Health care providers must inform a patient refusing surgery or other medical treatment about any harmful consequences of refusal. Parents are usually the legal guardians of pediatric patients; therefore they typically are the people who sign consent forms for treatment. Patients with mental illnesses must also give consent. They retain the right to refuse treatment until a court has determined legally that they are incompetent to decide for themselves. [Review Box 23-4, Statutory Guidelines for Legal Consent for Medical Treatment, with students.]
Common Negligent Acts
Failure to assess and/or monitor, including making a nursing diagnosis >Failure to monitor in timely fashion >Failure to use proper equipment to monitor the patient >Failure to document the monitoring >Failure to notify the health care provider of problems >Failure to follow orders Failure to follow the six rights of medication administration An institution has a duty to maintain nursing records. Statutes and accreditation regulations establish these duties. Nursing notes contain substantial evidence needed to understand the care received by a patient. If records are lost or incomplete, it is presumed that the care was negligent and therefore was the cause of the patient's injuries. [Ask the students to list each act in a positive fashion and to state what should be done instead of the negligent act, for example, "Monitor in a timely fashion."]
Common Negligent Acts (cont'd)
Failure to convey discharge instructions Failure to ensure patient safety, especially for patients who have a history of falling, are heavily sedated, have disequilibrium problems, are frail, are mentally impaired, get up in the night, and are uncooperative Failure to follow policies and procedures Failure to properly delegate and supervise The best way for nurses to avoid malpractice is to follow standards of care, give competent health care, and communicate with other health care providers. It is also vitally important that you communicate with the patient, explain tests and treatments, document that you provided specific explanations to him or her, and listen to his or her concerns about treatments. [Ask the students to list each act in a positive fashion and to state what should be done instead of the negligent act, for example, "Follow policies and procedures."]
Statutory Guidelines for Legal Consent for Medical Treatment (cont'd)
Minors A. For his or her child and any child in his or her legal custody B. For himself or herself in the following situations: 1. Lawfully married or a parent (emancipated) 2. Pregnancy (excluding abortions) 3. Venereal disease 4. Drug or substance abuse If a patient is deaf or illiterate or speaks a foreign language, an official interpreter must be present to explain the terms of consent. Think back to the case study, how do the statutory guidelines for legal consent for medical treatment affect the nurse's decisions? [See Box 23-3 on text p. 303 Statutory Guidelines for Legal Consent for Medical Treatment.]
Statutory Guidelines for Legal Consent for Medical Treatment (cont'd) 2
Minors (cont'd) C. Unemancipated minors may not consent to abortion without one of the following: 1. Consent of one parent 2. Self-consent granted by court order 3. Consent specifically given by a court Those who consent to medical treatment are governed by state law but generally include the above.
Legal Implications in Nursing Practice
Nurses need to understand the law to protect themselves from liability and to protect their patients. Nurses need not fear the law, but rather should view it as the foundation for understanding what society expects from professional nurses. Safe nursing practice includes an understanding of the legal boundaries within which nurses practice. As health care evolves, the legal implications for health care evolve as well. An understanding of the implications of the law supports critical thinking on the nurse's part.
Risk Management (cont'd)
One tool used in risk management is the incident report or occurrence report. Occurrence reporting >Serves as a database for further investigation >Alerts risk management to a potential claim situation. Occurrence reporting provides a database for further investigation in an attempt to determine deviations from standards of care and corrective measures needed to prevent recurrence, as well as to alert risk management of a potential claim situation.
Civil and Common Law Issues in Nursing Practice (cont'd)
Quasi-intentional >Invasion of privacy >Malice >Slander >Libel Unintentional >Negligence >Malpractice Quasi-intentional torts are acts whereby intent is lacking, but volitional action and direct causations occur. The tort of invasion of privacy protects patients' rights to be free from unwanted intrusion into their affairs. Defamation of character comes under the categories of malice, slander, and libel. Malice means that the person publishing the information knows it is false and publishes it anyway, or publishes it with reckless disregard for the truth. Slander occurs when one makes a false statement. Libel is written defamation of character. Unintentional torts consist of negligence and malpractice. Negligence is conduct that falls below the standard of care. Malpractice is one type of negligence and is often referred to as professional negligence. When nursing care falls below the standard of care, nursing malpractice results. Box 23-2 (on text p. 302) lists common negligent acts.
Abandonment and Assignment Issues
Short staffing Legal problems occur if inadequate number of nurses will provide care. Floating Based on census load and patient acuities Physician's orders Nurses follow orders unless they believe an order is given in error or is harmful. In 2004. California became the first state to adopt legislation mandating a fixed nurse-to-patient ratio. Floating can cause legal problems for nurses, especially if they are not qualified or trained to work with a specific patient cohort. When nurses float, they need to ask for an orientation to the unit. Physicians are responsible for directing medical care. Nurses need to assess all orders. If orders are erroneous or harmful, nurses need to seek further clarification from the physician if necessary. Physicians are responsible for writing all orders. Nurses are responsible for transcribing orders correctly. If a verbal order is written, it must be signed by the physician within 24 hours. One of The Joint Commission's National Patient Safety Goals directs nurses to verify the complete order or test result by having the person receiving the information record and read back the complete order or test result. [See Box 23-4 on text p. 304 Evidence-Based Practice: Consequences of Working Overtime.]
Legal Limits of Nursing
Sources of law: Statutory law (Nurse Practice Act) Criminal law (felonies or misdemeanors) Civil law Regulatory law (administrative law) Common law (judicial decisions) As a professional nurse you need to understand the legal limits of nursing and the professional standards of care that affect nursing practice. Statutory laws include the Nurse Practice Act found in all states. The Nurse Practice Act describes and defines the legal boundaries of nursing practice in each state. The Nurse Practice Act of each state defines the scope of nursing practice and expanded nursing roles, sets education requirements for nurses, and distinguishes between nursing and medical practice. Criminal laws are meant to prevent harm to society and to provide punishment for crimes. These are categorized as felonies or misdemeanors. A felony is a serious offense that results in significant harm to another person or society in general. Felony crimes carry penalties of monetary restitution, imprisonment for greater than 1 year, or death. Examples of Nurse Practice Act violations that may carry criminal penalties include misuse of a controlled substance or practicing without a license. A misdemeanor is a crime that, although injurious, does not inflict serious harm. For example, parking in a no-parking zone is a misdemeanor violation of traffic laws. A misdemeanor usually has a penalty of a monetary fine, forfeiture, or brief imprisonment. Civil laws protect the rights of individuals and provide for fair and equitable treatment when civil wrongs or violations occur. The consequences of civil law violations are damages in the form of fines or specific performance of good works such as public service. Nursing negligence or malpractice is an example of a civil law violation. Regulatory law, also known as administrative law, defines your duty to report incompetent or unethical nursing conduct to the Board of Nursing. Common law results from judicial decisions concerning individual cases. Most of these revolve around negligence and malpractice.
State Statutory Issues in Nursing Practice (Cont.)
The Uniform Determination of Death Act of 1980 states that health care providers can use the cardiopulmonary definition or the whole brain definition to determine death. The cardiopulmonary standard requires irreversible cessation of circulatory and respiratory functions. The whole-brain standard requires irreversible cessation of all function of the entire brain, including the brainstem. These two definitions facilitate the recovery of organs for transplantation. An autopsy or postmortem examination may be requested by the patient or patient's family. When the patient's death is not subject to a medical examiner review, consent must be obtained. The priority for giving consent is (1) the patient, in writing before death; (2) durable power of attorney; (3) surviving spouse; and (4) surviving child, parent, or sibling in the order named. The Oregon Death With Dignity Act (1994) was the first statute that permitted physician-assisted suicide. The statute stipulates that competent-yet-terminal patients could make an oral or written request for medication to end their life in a human and dignified manner. Terminal disease is defined as an incurable and irreversible disease that has been medically confirmed and that will, within reasonable medical judgment, produce death within 6 months. The ANA has held that nurses' participation in assisted suicide violates the code of ethics for nurses. The American Association of Colleges of Nursing (AACN) supports the International Council of Nurses' mandate to ensure an individual's peaceful end of life.
Legal Limits of Nursing (Cont.)
Standards of care Legal guidelines for defining nursing practice and identifying the minimum acceptable nursing care Best known comes from the American Nurses Association (ANA) Set by state and federal laws that govern where nurses work Joint Commission requires policies and procedures (P&Ps). Standards reflect the knowledge and skill ordinarily possessed and used by nurses actively practicing in the profession. The American Nurses Association (ANA) (2010) develops standards for nursing practice, policy statements, and similar resolutions. These standards outline the scope, function, and role of the nurse in practice. In a malpractice lawsuit, a nurse's actual conduct is compared to nursing standards of care to determine whether the nurse acted as any reasonably prudent nurse would act under the same or similar circumstances. Nurse Practice Acts define the scope of nursing practice, distinguishing between nursing and medical practice and establishing education and licensure requirements for nurses. The Joint Commission (TJC) (2014) requires accredited hospitals to have written nursing policies and procedures. These internal standards of care are specific to the agency and need to be accessible on all nursing units. In a lawsuit for malpractice or negligence, a nursing expert may testify to the jury about the standards of nursing care as applied to the facts of the case. Nurse experts base their opinions on existing standards of practice established by Nurse Practice Acts, federal and state hospital licensing laws, TJC standards, professional organizations, institutional policies and procedures, job descriptions, and current nursing evidence-based literature. [Review Box 23-1, Anatomy of a Lawsuit, with students.]
Federal Statutory Issues in Nursing Practice
The 1990 Americans With Disabilities Act (ADA) is a very broad civil rights statute. It protects the rights of disabled people. Included in this statute are people who have HIV and AIDS. The Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) is also known as the "patient dumping act." Hospitals are mandated to treat and stabilize patients before transferring or discharging them. The Mental Health Parity Act of 1996 forbids health care plans from placing lifetime or annual limits on mental health coverage that are less generous than those placed on medical or surgical benefits. The Uniform Anatomical Gift Act states that an individual who is at least 18 years old has the right to make an organ donation. Donors need to make their wishes known in writing. Many states allow adults to sign the back of their driver's license indicating their intent for organ donation. The National Organ Transplant Act of 1984 prohibits the purchase or sale of organs. The United Network for Organ Sharing (UNOS) has a contract with the federal government and sets policies and guidelines for the procurement of organs.
Federal Statutory Issues in Nursing Practice (cont'd)
The Patient Self-Determination Act of 1991 (PSDA) requires health care institutions to provide written information to patients concerning their rights under state law to make decisions, including the right to refuse treatment, and to formulate advance directives. Two types of advance directives are available: living wills and durable power of attorney for health care. Living wills are written documents that direct treatment in accordance with a patient's wishes in the event of a terminal illness or condition. A durable power of attorney for health care (DPAHC) is a legal document that designates a person or persons of one's choosing to make health care decisions when patients can no longer make decisions on their own behalf. A DNR or no CPR wish fits into this category. When advance directives exist, they need to be written into the patient care record/chart. Nurses must follow the patient's wishes and leave their own personal thoughts/emotions behind. HIPAA, or the Health Insurance Portability and Accountability Act of 1996, provides rights to patients and protects employees. It protects individuals from losing their health insurance when changing jobs by providing portability. The privacy section of HIPAA has established rules for patients' rights to consent to use and to disclose protected health information, to inspect and copy one's own medical records, and to amend mistaken or incomplete information. Privacy and confidentiality are important factors of the privacy section. The Federal Nursing Home Reform Act (1987) gave residents in certified nursing homes the right to be free of unnecessary and inappropriate restraints. Also The Joint Commission and Centers for Medicare and Medicaid Services (2004) regulate the use of restraints. Inappropriate use of restraints violates both state and federal regulations. Use constitutes abuse.
State Statutory Issues in Nursing Practice
The State Board of Nursing licenses all registered nurses in the state where they practice. The requirements for licensure vary among states, but most states have minimum educational requirements. You will be preparing to take the NCLEX-RN®. Nurses act as Good Samaritans when providing care at the scene of an accident. All states have Good Samaritan Acts. Provisions may vary among states; however, these laws limit liability and offer legal immunity for nurses who help at the scene of an accident. At least two states, Minnesota and Vermont, require nurses to stop and help in an emergency. It is important for you to understand public health laws. Under the health code, state legislatures enact statutes that describe the reporting laws for communicable diseases, specify necessary school immunizations, and mandate other measures that promote health and reduce health risks in communities. The Centers for Disease Control and Prevention (CDC) and the Occupational Safety Health Administration (OSHA) provide guidelines on a national level for safe and healthy communities and work environments.
Civil and Common Law Issues in Nursing Practice
Torts Intentional >Assault >Battery >False imprisonment A tort is a civil wrong made against a person or property. Intentional torts are willful acts that violate another's rights. These include assault, battery, and false imprisonment. An assault may be actual, or it may result from a threatened action, such as giving a person an injection or threatening to restrain a patient who has refused a procedure. Battery is intentional touching without consent. False imprisonment is a tort, an example of which is restraining a patient without justification.
