Legal and Legislative Issues
Liability
(n.) a debt; something disadvantageous
Unintentional Tort
negligence and malpractice
Administrative Simplification Plan
portion of Health Insurance Portability and Accountability Act directed at restructuring the coding of health information to simplify the digital exchange of information among healthcare providers and to improve the efficiency of healthcare delivery
Malpractice
-JCAHO defines it as improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position -the failure of a person with professional training to act in a reasonable and prudent manner -aka professional negligence
Vicarious Liability
-Legal doctrine under which a party can be held liable for the wrongful actions of another party -employers also being held accountable for the nurse's acts
Tort
-act or an omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability -legal wrongs committed against a person or property, independent of a contract, that render the person who commits them liable for damages in a civil action
Court Decisions
-aka tort law -court mode law and the courts interpret the statutes and set precedents -in the US there are two levels of court: trial court and appellate court -most malpractice law are addressed by the courts
Intentional Torts
-assault and battery -false imprisonment -invasion of privacy -defamation of character
The Privacy Rules
-directed at ensuring strong privacy protections for patients without threatening access to care -applies to health plans, healthcare clearinghouses, and healthcare providers -covers all patient records and other individually identifiable health information
Stare Decisis
Let the decision stand; decisions are based on precedents from previous cases
Malpractice Insurance Dilemma
Nurses need malpractice insurance because of their expanded roles, but they also incur a greater likelihood of being sued if they have malpractice insurance, since injured parties will always seek damages from as many individuals with financial resources as possible.
Legal Responsibilities of the Nurse Manager
-reporting dangerous understaffing -checking staff credentials and qualifications -carrying out appropriate discipline
The "4 Ds" of Professional Negligence
-duty: must be able to prove that the provider (physician, APN, RN) has a duty to care for the client; typically this can be established when a client makes an appointment, when the nurse accepts the assignment, etc. -derelict: did a breech in duty directly result in damages to the client -direct cause: the client must prove that they suffered damages as a result of your actions -damages: financial compensation
Malpractice Suits Against Nurses On the Rise
-failure to follow standards of care -failure to communicate -failure to document -failure to assess and monitor -failure to delegate appropriately
Good Samaritan Immunity
-generally, a nurse is not liable for injury that occurs as a result of emergency treatment provided that care is provided at the scene of the emergency and the care is not grossly negligent -healthcare providers are typically protected from potential liability if they volunteer their nursing skills away from the workplace (limited to emergencies), if actions taken are not grossly negligent, and if they do not exceed their training or scope of practice in performing the emergency services
Implied Consent
-in an emergency, patient cannot sign but physician says it was necessary for their best interest
Product Liability
-involves holding a firm and its officers responsible when a product causes injury, death, or damage
Statutes
-laws that govern -laws that are passed by the state or federal legislators and that must be signed by the president or governor -example: 51 nurse practice acts representing the 50 states and the District of Columbia
Nurse Practice Act
-legal instrument that defines what the functions of nursing shall be and sets standards for licensure -grants a nurse the authority to carry out those functions -each state has its own, but all must be consistent with provisions or statutes established at the federal level
Standard of Care
-minimal level of expertise that may be delivered to a patient -the conduct of a reasonably prudent nurse in similar circumstances
Express Consent
-nurse witnessing a patient signing a standard consent form -role of nurse is to be sure that the patient has received informed consent and to seek remedy if they have not
Informed Consent
-obtained only after the patient received full disclosure of all pertinent information regarding the surgery or procedure and only if the patient understands the potential benefits and risks associated with doing so -must have a signed consent form AND the patient must be able to ask questions and clearly understand what is happening
Avoiding Malpractice Claims
-practice within the scope of the Nurse Practice Act -observe agency policies and procedures -model practice after established standards using EBP -always put the patients welfare first -practice within area of individual competence -upgrade skills with continuing education
Purpose of Law and Legislation
-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
Health Insurance Portability and Accountability Act (HIPAA) of 1996
-protects the privacy of health information and improves the portability and continuity of health insurance coverage
Patient Self-Determination Act
-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 healthcare (healthcare proxy)
Administrative Agencies
-rules and regulations established by appointed agencies of the executive branch of the government (governor or president) -given authority to act by the legislative bodies and create rules and regulations that enforce statutory laws -some of these agencies such as the National Labor Relations Board and healthy and safety boards, can affect nursing practice
RN Licensure
-since the first mandatory Nurse Practice Act passed in New York in 1938, nursing has been legislated, directed, and controlled to some extent
5 Component for Malpractice Liability
-standard of care: must have been established to outline the level or degree of quality considered to be adequate by a given profession -breech of duty: shown by calling other nurses who practice in the same specialty area as the defendant to testify as expert witnesses -foreseeability of harm: must have had the knowledge or availability of information that not meeting the standard of care could result in harm -failure to meet the standard of care must have the potential to injure the patient -actual injury to the patient
Constitutions
-system of fundamental laws or principles that govern a nation, society, corporation, or other aggregate of individuals -purpose is the establish the basis of a governing system for the future and the present -highest law in the US -interpreted by the US supreme court -gives authority to other three sources of the law -little direct involvement in the area of malpractice
Negligence
-the joint commission defines it as a failure to use such care as a reasonably prudent and careful person would use under similar circumstances -the omission to do something that a reasonable person, guided by the considerations that ordinarily regulate human affairs, would do -doing something that a reasonable and prudent person would not do
Respondeat Superior
-the master is responsible for the acts of his servants -applies when the employee causes damages or injuries while working on behalf of their employer