Nursing Today: Transitions and Trends - Chapter 20
A law that provides civil immunity to professionals who stop and render care in an emergency. Care cannot be rendered in a grossly negligent manner
Good Samaritan Law
Many states now alternate monitoring programs that allow nurses to meet specific behavioral criteria, such as blood or urine testing, ordered evaluations, and attendance at rehabilitation programs, either while disciplinary action is being taken or instead of bringing formal proceedings.
Actions states can take in the case of substance abuse issues
Laws made by administrative agencies (State Board of Nursing).
Administrative law
- A way for patients to direct the course of their care and treatment in the future. - A living will is used to allow a competent adult to direct what he or she wishes in regard to health care upon becoming incompetent. - "Durable" or "medical" power of attorney allows the competent adult to appoint a specific person to authorize care if he or she becomes incompetent. - Nurses should follow the advance directive unless there is a court order to do otherwise. - When a patient does not have an advance directive and is incompetent, there are state laws that give guidance regarding who can act as a "surrogate decision maker" (minor children, unconscious adults).
Advanced directives
Refers to the wrong act of causing someone to reasonably fear imminent harm.
Assault
Assumes that the plaintiff has been properly educated on the risks.
Assumption of risk
Refers to the actual wrong act of physically harming someone.
Battery
Yes, nurses can access the system to provide nursing license verification for a fee.
Can I access Nursys?
Composed of the decisions rendered in court cases by appeal courts. AKA common law created by interpretation of another law (tort law most common)
Case law
A voluntary requirement
Certification
Torts
Civil (not criminal) wrongs committed by one person against another person or property
Deals with relationships among private individuals. and includes contract law and tort law.
Civil Law (Personal)
Laws of our rights, privileges, and responsibilities inferred from the U.S. Constitution, (Bill of Rights-freedom of speech, religion, right to privacy); states may not pass laws that conflict with these.
Constitutional law
Places part of the negligence resposibility on the plaintiff. There are things that the patient can do to contibute such as noncompliance. Compliance can be lowered or leiminated.
Contributory negligence
- Theft and misappropriation of property - Nursing practice violations (scope of practice violations that result in death of a patient; murder or negligent homicide) - Violations of the Food and Drugs Act (illegal drug activity, misappropriation or improper use)
Criminal Actions
Deals with actions against the safety and welfare of the public. Refers to the body of law that deals with relationships between individuals and the government and government agencies.
Criminal Law (Public)
Laws involving prosecution and punishment for conduct deemed to be a crime.
Criminal law
A civil wrong in which an individual's reputation in the community, including the professional community, has been damaged
Defamation
The person who is being accused of wrongdoing
Defendant
- Statute of limitations - Assumption of risk - Contributory negligence
Defense for Malpractice
Out-of-court oral testimony given under oath for the purpose of enabling attorneys to ask and have answered questions related to a case
Deposition
A program for treatment and rehabilitation of substance abusers
Diversion program
Implied if you are employed by and render services at a health care institution such as a hospital, nursing home, home health agency, school, or physician's office.
Do you have a professional duty?
The nurse must have (or should have had) a relationship with the client that involves providing care and following an acceptable standard of care and also has a general duty of care, even if not specifically assigned to a client, and the client needs help.
Do you have a professional duty?
- Document the facts - Document what you see and do - Your job is to render nursing services, not to judge or give your opinion - Leave the determination of fault to the courts - Your actions and truthful documentation will be your best defense!!!
Documentation
A person who has specific knowledge, skills, and experience regarding a specific area and whose testimony will be allowed in court to prove the standard of care
Expert witness
A patient is held involuntarily in a hospital, nursing home, other health facility or institution, or even in an ambulance.
False imprisonment
A link must exist between the nurse's act and the injury.
Foreseeability
Proving/applying causation is not an easy task for lawyers - good documentation of observations will make such proof impossible.
Foreseeability
The plaintiff must prove that the nurse's action actually caused the injury and that the injury was a foreseeable consequence of the nurse's action.
Foreseeability
- Nurse Practice Act - Expert witness - Established policies and procedures - Accreditation and facility licensing standards - Textbooks and journals - Professional standards for organizations - Professional standards of care applied to the particular case
How is the standard of care determined?
- Guidelines for Defensive Charting - Be at your best when administering medications - Provide a safe environment - Prevent patient falls - Adequately handle equipment failures - Adequately assess, monitor, and obtain assistance - Adequately communicate - Accurately report incidences and occurrences
How to avoid malpractice claims
- Can be used as evidence in a lawsuit - Only the person directly involved should objectively complete the incident report - This form should never be used for punitive reasons against employees - You should not mention you have filled out an incident report in the patient record, but factual information about what happened should be documented in the medical record - Document facts and not speculation
Incident Reports
- Lots of misinformation about what these policies will do or cover-important to find out exactly what your individual policy covers. - Cost is based on the area of nursing and the state of practice. - These policies are usually secondary to institutional policies. - Professional journals and professional organizations are a good place to start.
Individual Malpractice Insurance Coverage
- Most institutions carry very large insurance policies for their nurses. - Some misinformation about your interests vs. the institution's. - Criminal acts are not insurable under laws in most states and are not covered by any policy. - Important to find out exactly what your institutional policy covers.
Institutional Malpractice Insurance Coverage
Acts done deliberately
Intentional Torts
A process of discovering the facts regarding a case through a set of written questions exchanged through the attorneys representing the parties involved in the case
Interrogatory
The court's authority to accept and decide cases
Jurisdiction
A mandatory requirement to perform professional activities with specialized knowledge or skill
Licensure
Improper performance of professional duties
Malpractice
Failure to act as an ordinary prudent person when such failure results in harm to another
Negligence
- Describe how to obtain licensure and enter practice within that state - Describe how and when to renew your license - Define the educational requirements for entry into practice - Provide definitions and scope of practice for each level of nursing practice - Describe the process by which individual members of the board of nursing are selected and the categories of membership - Identify situations that are grounds for discipline or circumstances in which a nursing license can be revoked or suspended - Identify the process for disciplinary actions, including diversionary techniques - Outline the appeal steps if the nurse feels the disciplinary actions taken by the board of nursing are not fair or valid
Nurse Practice Act
Nongovernmental electric information system warehousing nurse licensing information
Nursys
- Evaluation of nursing care by nurses - Evaluation of what nurses are doing for patients - Policy and procedure development - Staff preparation, competency, and skill documentation - Continuing education and certification - Employee evaluations - Ongoing monitoring, such as infection control and risk management
Peer Review Process
The person who files the lawsuit and is seeking damages
Plaintiff
- Always ask yourself "Do I have the patient's consent to share this information?" or "Is it necessary to the health care services for this patient?" IF THE ANSWER IS NO, then DO NOT communicate the information!!! - HIPAA went into effect in 1996 and specific privacy regulations became effective in 2003 and include an elaborate system for ensuring privacy for individually identifiable health information - Observe confidentiality when talking about patients at home or at work and share this information only with those who need to know the information to give proper care - Invasion of privacy can occur such as photographing a procedure and showing it without the patient's consent, going through a patient's belongings without consent, or talking about a patient's private life publicly
Privacy and confidentiality
The level of care or skill that is customarily rendered by a competent health care worker of similar education and experience in providing services to an individual in the community or state in which the person is practicing
Reasonable Care
- Process that becomes involved when incidents or untoward events occur that may pose a financial risk or risk of lawsuit - Looks at how to prevent a reoccurrence by changing systems that have broken down - Work very closely with insurance companies that cover institutions and their employees
Risk Management
- Approaching angry patients with an apology and an offer to help instead of running away from patients who have experienced an unexpected outcome. - Sharing uncertainties and a realistic viewpoint during informed consent. - Refusing to participate in hospital gossip, to joust in the medical record, or to judge others on the medical team will contribute to an atmosphere of teamwork and compassion, rather than one of competition, blame, and retaliation.
Risk Management Strategies for Nurses
Defined by state legislations, so there is great variation from state to state in the scope of practice statements. Some states allow a much broader range of activities, where other states' scope of practice is very restrictive.
Scope of practice
A set of guidelines based on various types of evidence as to what is reasonable and prudent behavior for a health care professional
Standard of Care
Laws that set time limits for when a case may be filed which differ from state to state
Statutes of limitations
Laws enacted by legislative bodies and are the documented rules for living in your state (state laws). Rules for our relationships with one another and can be viewed as the ethics of our society written down. Section on definitions is one of the most important parts.
Statutory Laws
Laws about the ethics of our relationships (The Nurse Practice Act).
Statutory law
One of the most common reasons for state board action against nurses involves the taking of hospital medications for personal use.
Substance abuse issues
Problem, detection and help
The Imparied Nurse
1 in 4 malpractice cases are decided on the basis of the medical record Usually the first piece of evidence asked for by an attorney Defense will "put on a play" of the events that occurred "If it was documented, it was done." Be careful of forms that are not filled out EHR can promote more accurate and safe record keeping (eliminates illegible handwriting) EHR can present new problems as we cannot place blame on a computer glitch or the fact that we were not familiar with the software, safeguarding patient information presents new challenges, and just checking boxes can get us into trouble sometimes
The importance of the medical record.
- Periodically check to make sure that you are in good standing at the Board of Nursing. - Be sure that your State Board of Nursing knows whenever you change your address, whether you move across the street or across the nation. - Know the Nurse Practice Act in your state. - Practice nursing according to the scope and standards in your state. - Meet all renewal requirements on time. - Always respond to correspondence from you State Board of Nursing. - Know the self-reporting laws and self-report when required.
What are ways to protect your license?
If you do find yourself in trouble with drugs or alcohol, it is far better to voluntarily report this to your state board of nursing and seek immediate treatment.
Ther best course of action in a substance abuse issue?
The high stress and easy access to drugs in nursing makes nurses and their colleagues NEVER immune from substance misuse, abuse, or addiction.
What causes substance abuse issues in nursing?
Civil wrongs committed by one person against another person or property
Torts
Inadvertent, unreasonable act that causes harm to someone - an "incident" or "accident"
Unitntentional Tort
Breach of duty means that there is a standard of care that is expected in the specific situation but that the nurses did not observe.
Was there a breeach of professional duty?
General damages are those given for intangibles such as pain and suffering, disfigurement, and interference with ordinary enjoyment of life.
What are damages or injuries?
Can be viewed as the sum of money a court or jury awards as compensation for a tort action.
What are damages?
- Assault and battery - False imprisonment - Defamation (libel and slander) - Invasion of Privacy and breaches of privilege and confidentiality
What are intentional torts?
Self, co-worker
What are modes of detecting an imparied nurse?
Punitive damages are those damages that seek to punish those whose conduct goes beyond normal malpractice (changing a medical record, lies being told to patients, or intentional misconduct while under the influence of drugs and alcohol)
What are punitive damages?
Voluntarily problem reporting Enroll in state board monitoring program ADA Protected
What are some avenues of help for an imparied nurse?
- Failure to document - Documentation guidelines - Medication errors - Provide a safe environment - Patient falls - Equipment Failure - Failure to adequately assess, monitor, and obtain assistance - Failure to communicate adequately - Failure to report an incident
What are some common categories of negligence?
Can be the patient's out-of-pocket expenses such as medical care, lost wages, and rehabilitation costs.
What are special damages?
Voluntarily Given Capacity to Comprehend Informed - educated appropriately
What are the 3 major elements of informed consent?
- You must have a duty - a nurse/patient relationship. - You must have breached that duty. - Must be a foreseeable cause of the injury. - Damages or injury must have occurred.
What are the basic elements of neglegence?
The American Nurses Association (ANA) recently estimated that 6% to 8% of nurses abuse drugs or alcohol at a level sufficient to impair their professional judgment.
What are the statistics of substance abuse in nursing?
- Healthcare Integrity and Protection Data Bank (HIPDB) - The National Practitioner Data Bank (NPDB)
What are two federal data banks of information about health care providers in the U.S.?
Implied if you are employed by and render services at a health care institution such as a hospital, nursing home, home health agency, school, or physician's office. The nurse must have (or should have had) a relationship with the client that involves providing care and following an acceptable standard of care and also has a general duty of care, even if not specifically assigned to a client, and the client needs help.
What determines if you have a professional duty?
Information related to adverse actions taken against a health care professional's license are required by federal law to be reported to these data banks .
What information is stored in the federal databanks?
A nongovernmental electronic information system that collects and warehouses nurse licensing information and disciplinary action . Nurses can access the system to provide nursing license verification for a fee.
What is Nursys?
A nurse whose ability to perform the functions of a nurse is diminished by chemical dependency on drugs, alcoholism, or mental illness.
What is an imparied nurse?
Misconduct or practice that is below the standard expected of an ordinary, reasonable, and prudent person. Can be anyone, not just nurses.
What is malpractice?
Negligence that occurred while the person was performing as a professional. Applies to MD's, dentists, lawyers, and nurses - anyone with a license.
What is negligence?
The range of permissible activity as defined by law; defines what nurses can and, sometimes more importantly, what nurses cannot do.
What is scope of practice?
Describes a pattern that encompasses substance misuse to dependency or addiction with alcohol, legal prescription drugs, or illegal drugs. It is a progressive and sometimes fatal disease, but it can be treated.
What is substance use in nursing?
Nurse Practice Act in your state
What organization determines a nurses scope of practice?
- The nature of the proposed care, treatment, services, medications, interventions, or procedures. - The potential benefits, risks, or side effects, including problems related to recuperation. - The likelihood of achieving care, treatment, and service goals. - Reasonable alternatives and their respective risks and benefits including the alternative of refusing all interventions.
What should be included in informed consent?
- The client's physical and mental condition upon admit, discharge. or after any incident, such as a fall. - Any actions of a client that demonstrate noncompliance with medical directives. - When a client complains and does not complain. - Be very careful when documenting what a client states as opposed to what you think may have happened. Clients states, "" - The client's own admissions. - Discharge instructions and patient's understanding very clearly. - Document allergies.
What should we document?
Individual "on the inside" who reports incorrect or illegal activities to an agency with authority to monitor or control those activities
Whistleblower
Law that protects a whistleblower from retaliation. Usually involves specific criteria about how the whistle was blown
Whistleblower statute
Access limited to hospitals, health plans, and government agencies, general public does not have access
Who can access the federal databanks?
Nurses and anyone regardless of their age, gender, or economic circumstances .
Who can substance use disorder affect?