INTRO: NURSING LAW

First Nursing Practice Act

(1903) -North Carolina -did not define nursing -people could practice nursing, but couldn't us the title "RN"

New York passed first mandatory NPA

(1938) -required applicants to pass a licensure exam -had to pass exam to use RN

Regulatory/Administrative Law

(REALLY AFFECTS US) rules and regulations passed by State Boards or Nursing (ex: requirement to report incompetent or unethical nursing conduct to BON) -ensures that all nurses have their RN and is managed by all 50 states

the Joint Commission

(TJC) Mission: to continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value

Texas Board of Nursing Membership

-6 members from nursing practice (2 RN's who are not APN's, 1 APN from practice or education, 3 LVN's) -3 members from nursing education (Baccalaureate education, associate degree education, LVN education) -4 members who are consumers (public)

what happens when I go to court?

-95% of personal injury lawsuits are either dismissed or settled out of court -discovery process (interrogatories and deposition)

what evidence can help me in a lawsuit?

-MEDICAL RECORD -1 of 4 cases decided on basis of what's in the medical record -integrity, accuracy, and completeness makes defensible or indefensible -good documentation: best defensive action -document extensively, accurately, and very factually

physician and other independent practitioner liability

-NOT ultimately responsible for everything that happens to patient -nurses follow orders, but not. those unsafe for patients or out of scope of practice

Nurse Practice Act

-acts describe what nurses may do-fairly general -what's prohibited-more specific

DNR

-all 50 states have enacted advance directive legislation -Texas Advanced Directives Act: known as Texas Futile Care Law

what does a nurse need to do when having consent signed?

-authenticity -voluntariness -capacity

institutional liability

-carry insurance -policies or lack of common claim in court

CMS will not reimburse if these occur during hospitalization

-certain surgical-site infections -objects mistakenly left inside surgical

torts

-civil actions: plaintiff files lawsuit for compensation for damages suffered from perceived wrong -intentional torts: deliberate acts -unintentional torts: incidents or accidents

what is an expert witness

-common way to establish duty owed -testifies what a reasonable nurse would do in similar circumstances

informed consent

-communication process between provider and patient of explaining procedures and treatments -risks, benefits, alternatives must be disclosed -results in patient agreeing to procedures or treatments -allows patient opportunity to ask and have answered questions about procedure, follow-up, complications, etc. -I am not required to inform the patient about certain procedures i just witness the signature -communication must be in a language that patient can understand -provider must be certain that patient understands what has been said and that patient is willing to accept the risks of the procedure

Major Provisions of the NPA

-definition of nursing -established the BON and sets administrative functions and process -requirements for licensure and renewal of licensure -whistleblower protection for nurses

possible disciplinary actions of BON

-denial of application for a license -issue a written warning -administer a public reprimand -limitation on the license that might limit practice or specific activities or stipulate periodic BON review -suspension of the license -assessment of a fine -require counseling, continuing education, practice be under supervision of another RN, or public service

what is a "nursing incident-based peer review"

-evaluate the nursing services of a nurse -evaluate the qualifications of a nurse -evaluate the quality of patient care by a nurse -evaluate complaints concerning a nurse or nursing care -conclude a recommendation regarding a complaint

what is the minimum due process for nurses

-exclude from the committee, including attendance at the peer review hearing, any persons with administrative authority for personnel decisions directly relating to the nurse -required is a description of the events(s) to be evaluated of the incident, circumstances and conduct, specific date(s), time(s), location(s), and individual(s) involved

categories of negligence

-failure to follow standards of care -failure to use equipment in responsible manner -failure to communicate -failure to document -failure to assess and monitor -failure to act as a patient advocate -failure to rescue (monitor status change)

Health Insurance Portability and Accountability Act-HIPAA

-federal legislation: 1996 -national standards for electronic health care transactions -national identifiers for providers, health plans and employers -security and privacy of health data

standards of practice

-guide professional behavior of nurses -used as standard in issues related to practice and malpractice -nurses must know and conform to: (NPA, Rules and Regulations, Federal, state, local laws affecting their area of practice)

Advance Directive-2 signature and at Least One Witness Can't Be Someone Who:

-is related to you by blood or marriage -has a claim on your estate -has been designated by you to make a health treatment decision on your behalf -your attending physician -is employed by your attending physician -is an employee of a health care facility in which you reside, if the employee is involved in providing direct patient care to you -advance directive is in effect until it is revoked

Advance Directive

-legal document that allows person to make decision about end-of-life care -direct physician about preferences at end-of-life (all treatments be discontinued, all treatments be continued)

Role of Legislature and BON

-legislature passes changes to NPA -BON interprets the NPA and develops rules and regulations to implement the NPA

nursing malpractice

-most common unintentional tort action brought against nurses is a malpractice claim -important for nurses to know basic elements that must be proved before malpractice can occur

absolute bars to licensure

-murder -kidnapping -sexual assault -aiding in suicide -robbery

the process of safe harbor

-nurse's request for safe harbor must be made in writing before the assignment is accepted by the nurse -if you don't have time immediately to fill out the form you can submit a quick request for safe harbor

what are basic elements of malpractice?

-nurses must have a duty (in other words, there must be a professional nurse-patient relationship) -nurse must have breached that duty (in other words, you must have fallen below the standard of care for a nurse) -nurse breach of duty must have been a foreseeable cause of the patient's injury -damages or an injury must have occurred

Mission of the Board of Nursing

-protect and promote the welfare of the people of Texas -ensures that licensed nurses are competent to practice safely -BON is to protect the welfare of the public -BON has authority over all nurses licensed in the state

whistleblower protections

-protections: refusal to engage in conduct relating to patient care that would violate NPA or Board, making a lawful report of unsafe practitioners/unsafe patient care practices or conditions

supervisory liability

-task properly assigned to competent worker -adequate supervision provided -nurse provided appropriate follow-up and evaluation of delegated task

OSHA Mission

-to prevent work-related injuries, illness, and deaths -since 1971, occupational deaths have been cut by 62% and injuries have declined by 42%

in the 1970s...

all states had passes mandated licensure of nursing

types of intentional torts

assault, battery, false imprisonment, invasion of privacy, defamation, libel, slander

assault

attempt or threat to touch someone unjustifiably

invasion of privacy

breach of confidentiality (HIPAA)

An incident-based peer review committee's decision....

cannot be overruled, changed, or dismissed -a nurse has the right to be accompanied by a nurse peer or an attorney

defamation

communication that is false, or made with careless disregard for the truth and results in injury to the person's reputation (intentional)

civil law

concern private interests and rights between individuals involved in cases -sometimes an event can have both criminal and civil consequences

Common Law

decisions made by judges in court cases (ex: patients rights to refuse treatment; negligence and malpractice) -cannot make anyone do what they don't want to do

libel

defamation by print, writing, pictures

slander

defamation by the spoken word

Nursing Practice Act is generally amended...

every two years during regular session of TX legislature (i.e. 2017, 2019) -we have nurses who lobby for good practice, not having overtime, not allowing nurses to be. overworked, etc.

the two kinds of peer review are

incident-based and safe harbor

negligence

misconduct or practice that is below the standard expected of an ordinary, reasonable, and prudent person

statutory law

most common type of law affecting nurses -Nurse Practice Acts are examples of state statutory laws (define the scope of nursing practice and expanded nursing roles) -is either criminal or civil

types of unintentional torts

negligence and malpractice

criminal law

occur when you have done something considered harmful to society as a whole (can be a misdemeanor or felony offense)

malpractice

professional negligence

safe harbor

protects a nurse from employer retaliation and licensure sanction when a nurse makes a good faith request for peer review -good faith: taking action supported by a reasonable factual or legal basis

constitutional law

refers to rights, privileges, and responsibilities from U.S. constitution, including the Bill Of Rights

capacity

the patient understood the explanation of the procedure, risks and alternatives, read the consent form, understood consent form, and agreed to the proposed treatment

voluntariness

the patient was not forced to sign

authenticity

the signature belongs to the patient

false imprisonment

unjustifiable detention of a person without legal warrant to confine the person (4 side rails up)

battery

willful touching a person that may or may not cause harm (wrong surgery or procedure)

first nursing school

John Sealy Hospital School of Nursing-Galveston, TX in 1890