NR226-Legal Implications in Nursing Practice-Chapter 23

A nurse may refuse an assignment when

(1) the nurse lacks the knowledge or skill to provide competent care; (2) care exceeding the Nurse Practice Act is expected; (3) health of the nurse or her unborn child is directly threatened by the type of assignment; (4) orientation to the unit has not been completed and safety is at risk; (5) the nurse clearly states and documents a conscientious objection on the basis of moral, ethical, or religious grounds; or (6) the nurse's clinical judgment is impaired as a result of fatigue, resulting in a safety risk for the patient.

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 Nurses covered by institution's insurance while working The insurance company pays for costs, attorney's fees and settlement, and other related fees generated in the representation of the nurse.

Risk Management and Quality Assurance

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 The rationale for risk-management and quality improvement programs is the development of an organizational system of ensuring appropriate, quality health care by identifying potential hazards and eliminating them before harm occurs.

A nurse is caring for a patient who states, "I just want to die." For the nurse to comply with this request, the nurse should discuss:

Advance directives Rationale: Advance directives are written documents that outlay the patient's wishes, should he or she become incapacitated

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 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. 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.

Regulatory law

Also known as administrative law, defines your duty to report incompetent or unethical nursing conduct to the Board of Nursing.

Uniform Anatomical Gift Act

An individual who is at least 18 years of age has the right to make an organ donation. Donors need to make the gift in writing with their signature. In many states, adults sign the back of their driver's license, indicating consent to organ donation. In most states there is a law requiring that at the time of death a qualified health care provider ask a patient's family members to consider organ or tissue donation. Individuals are approached in the following order: (1) spouse, (2) adult son or daughter, (3) parent, (4) adult brother or sister, (5) grandparent, and (6) guardian. The National Organ Transplant Act (1984) prohibits the purchase or sale of organs, provides civil and criminal immunity to the hospital and health care provider who perform in accordance with the act, and protects the donor's estate from liability.

Never events

Are preventable errors, which may include falls, urinary tract infections from improper use of catheters, and pressure ulcers.

Intentional torts

Are willful acts that violate another's rights. These include assault, battery, and false imprisonment.

Legal Limits of Nursing

As a professional nurse you need to understand the legal limits of nursing and the professional standards of care that affect nursing practice. Standards reflect the knowledge and skill ordinarily possessed and used by nurses actively practicing in the profession.

A disability

As defined by the statute and the U.S. Supreme Court, is a mental or physical condition that substantially limits a major life activity, including seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and/or working.

Floating

Based on census load and patient acuities

Common Sources of Negligence

Be aware of the common negligent acts that have resulted in lawsuits against hospitals and nurses. • Failure to assess and/or monitor, including making a nursing diagnosis • Failure to observe, assess, correctly diagnose or treat in a timely manner • Failure to use, calibrate, or replace equipment required to safely care for the patient • Failure to document care and evaluation of care provided to the patient in a timely manner • Failure to notify the health care provider of significant changes in a patient's status

Professional involvement

Become involved in professional organizations and committees that define the standards of care for nursing practice. The voice of nursing is powerful and effective when the organizing focus is the protection and welfare of the public entrusted to nurses' care.

Patient Protection and Affordable Care Act (PPACA)

Consumer rights and protections Affordable health care coverage Increased access to care Stronger Medicare to improve care for those most vulnerable in our society Created a new Patient's Bill of Rights that prohibited patients from being denied health care coverage because of prior existing conditions, limits on the amount of care for those conditions, and/or an accidental mistake in paperwork when a patient got sick.

Nurse Practice Acts

Define the scope of nursing practice, distinguishing between nursing and medical practice and establishing education and licensure requirements for nurses.

Petition:

Elements of the claim. The plaintiff outlines what the defendant nurse did wrong and, as a result of that alleged negligence, how the plaintiff was injured.

The Patient Self-Determination Act (PSDA)

Enacted in 1991 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 formulate advance directives. Be familiar with the policies of your institution that comply. Likewise check the state laws to see if a state honors an advance directive that originates in another state.

Health Information Technology Act (HITECH)

Expands the principles extended under the HIPAA, especially when a security breach of personal health information (PHI) occurs. Under this Act nurses must ensure that patient PHI is not inadvertently conveyed on social media and in particular that protected data are not disclosed other than as permitted by the patient.

Other witnesses:

Factual witnesses, both neutral and biased, are deposed to obtain information about their version of the case. They may include family members on the plaintiff's side and other medical personnel (e.g., nurses) on the defendant's side.

Consent

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.

Federal Statutory Issues in Nursing Practice

In addition to federal statutes, the ethical doctrine of autonomy ensures the patient the right to refuse medical treatment. In addition to patient refusals of treatment, the nurse frequently encounters a "do not resuscitate" (DNR) or "no code" DNR order. Documentation that the health care provider has consulted with the patient and/or family is required before attaching a DNR order to the patient's medical record.

Statutory law

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.

Patient Protection and Affordable Care Act (PPACA)

Intended to reduce overall care costs to the consumer by: -Providing tax credits. -Increasing insurance company accountability for premiums and rate increases. -Increasing the choices from which patients can choose the right insurer to meet their needs. In addition was developed to increase access to health care. Patients now receive recommended preventive services, such as screenings for cancer, blood pressure, and diabetes, without having to pay copays or deductibles. Anyone younger than 26 years of age may now continue to receive coverage under his or her parents' insurance plan. Improves Medicare coverage for vulnerable populations by improving access to care and prescriptions, decreasing costs of medications, extending the life of the Medicare Trust Fund until 2024, and addressing fraud and abuse in billing practices.

Quasi-intentional torts

Invasion of privacy Defamation of character -Slander -Libel

A tort

Is a civil wrong made against a person or property. They are classified as intentional, quasi-intentional, or unintentional.

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. Usually has a penalty of a monetary fine, forfeiture, or brief imprisonment.

A felony

Is a serious offense that results in significant harm to another person or society in general. 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.

Assault

Is an intentional threat toward another person that places the person in reasonable fear of harmful, imminent, or unwelcome contact. No actual contact is required for an assault to occur.

Battery

Is any intentional offensive touching without consent or lawful justification. The contact can be harmful to the patient and cause an injury, or it merely can be offensive to the patient's personal dignity. Also results if the health care provider performs a procedure that goes beyond the scope of the patient's consent.

Negligence

Is conduct that falls below the generally accepted standard of care of a reasonably prudent person.

Invasion of privacy

Is the release of a patient's medical information to an unauthorized person such as a member of the press, the patient's employer, the patient's family, or online. The information that is in a patient's medical record is a confidential communication that may be shared with health care providers for the purpose of medical treatment only. Do not disclose the patient's confidential medical information without his or her consent. A patient must authorize the release of information.

Public Health Laws

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. Protect populations, advocate for the rights of people, regulate health care and health care financing, and ensure professional accountability for care provided. Any health care professional who does not report suspected child abuse or neglect may be liable for civil or criminal legal action.

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).

Short staffing

Legal problems occur if an inadequate number of nurses will provide care.

State Statutory Issues in Nursing Practice

Licensure Good Samaritan Laws Public Health Laws The Uniform Determination of Death Act Autopsy Death with Dignity or Physician-Assisted Suicide

Advance directives

Living wills Health care proxies or durable power of attorney for health care

Consent form

Must be signed 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.

Unintentional torts

Negligence Malpractice

Good Samaritan Laws

Nurses act as Good Samaritans when providing care at the scene of an accident. All states have this Act. -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. If you perform a procedure exceeding your scope of practice and for which you have no training, you are liable for injury that may result from that act. If you leave the patient without properly transferring or handing him or her off to a capable person, you may be liable for patient abandonment and responsible for any injury suffered after you leave him or her.

Malpractice Insurance

Nurses employed by health care agencies generally are covered by insurance provided by the agency; however, it is important to remember that the lawyer is representing your employer and not you. The insurance provided by the employing agency only covers nurses while they are working within the scope of their employment. Nurses are also investigated by the State Board of Nursing or Nursing Commission to determine whether the alleged breach in care is a violation of civil regulations associated with their nursing license. Without individual insurance coverage, the nurse will be required to personally pay all costs and attorney fees incurred by him or her in the defense against these claims.

Health care providers' orders

Nurses follow orders unless they believe an order is given in error or is harmful.

The tort of false imprisonment

Occurs with unjustified restraint of a person without a legal reason. This occurs when nurses restrain a patient in a confined area to keep the person from freedom. False imprisonment requires that the patient be aware of the confinement.

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.

TJC's Universal Protocol principles:

Preoperative verification that relevant documents and studies are available before the start of the procedure and that these documents are consistent with the patient's expectations. Marking the operative site with indelible ink to mark left and right distinction, multiple structures (e.g., fingers), and levels of the spine. A time-out just before starting the procedure for final verification of the correct patient, procedure, site, and any implants.

Civil Law

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.

Americans with Disabilities Act (ADA)

Protects rights of people with physical or mental disabilities Protects health care workers in the workplace with disabilities such as human immunodeficiency virus (HIV) infection. Likewise, health care workers cannot discriminate against HIV-positive patients. Prohibits discrimination and ensures equal opportunities for people with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation.

Depositions:

Questions are posed to opposing parties, witnesses, and experts under oath to obtain all relevant, nonprivileged information about the case. Experts establish the elements of the case and the applicable standard of care.

Witnesses' deposition:

Questions are posed to the witnesses under oath to obtain all relevant, nonprivileged information about the case.

Risk management

Requires complete documentation. A nurse's documentation is often the evidence of care received by a patient and establishes support that the nurse acted reasonably and safely. One area of potential risk is associated with the use of electronic monitoring devices. Continual assessment of a patient is necessary to help document the accuracy of electronic monitoring. Nurses on the units are risk managers.

Common law

Results from judicial decisions concerning individual cases. Most of these revolve around negligence and malpractice.

Legal Implications in Nursing Practice

Safe and competent nursing practice requires clinical reasoning and an understanding of the legal framework of health care, the specific state's Nurse Practice Act, and the scope and standards of nursing care. As patient care pr actice innovations and new health care technologies emerge, the principles of negligence and malpractice liability are being applied to challenging new situations. Nurses should practice nursing armed with the skills that are the outcomes of informed critical thinking.

1989 Webster v. Reproductive Health Services

Some states require viability tests if the fetus is more than 28 weeks' gestational age.

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.

Sources of law:

Statutory law (Nurse Practice Act) -Criminal law (felonies or misdemeanors) -Civil law Regulatory law (administrative law) Common law (judicial decisions)

Mental Health Parity Act as Enacted Under PPACA

Strengthens mental health services Requires parity (the state or condition of being equal) in provision of 10 specific services, including mental health, behavioral health, and substance use services. -Insurers may not discriminate or deny coverage to patients with mental illness because of preexisting conditions. -Patients may remain on their parent's health insurance until they are 26 years old. -Currently, admission of a patient to a mental health unit can occur involuntarily or on a voluntary basis. -If the patient's history and medical records indicate suicidal tendencies, the patient must be kept under supervision.

Risk Management and Quality Assurance

TJC requires the use of quality improvement and risk-management procedures. Both quality improvement and risk management require thorough documentation. 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 Documentation TJC's Universal Protocols Professional involvement

Restraints

The Centers for Medicare and Medicaid Services (CMS), American Nurses Association (ANA), and The Joint Commission (TJC) have set standards for reducing the use of all types of restraints in health care settings. Can be used: (1) only to ensure the physical safety of the patient or other patients, (2) when less restrictive interventions are not successful (3) only on the written order of a health care provider. The regulations also describe documentation of restraint use and follow-up assessments.

Death with Dignity or Physician-Assisted Suicide

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.

Licensure

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®. The State Board of Nursing suspends or revokes a license if a nurse's conduct violates provisions in the licensing statute on the basis of administrative law rules that implement and enforce the statute.

Medical records:

The defendant obtains all of the plaintiff's relevant medical records for treatment before and after the event. Everything written by the nurses and the health care provider in the medical record is open to examination by both the plaintiff and the defendants.

Certain criteria are necessary to establish nursing malpractice:

The nurse (defendant) owed a duty of care to the patient (plaintiff). The nurse did not carry out or breached that duty. The patient was injured and the nurse's failure to carry out the duty caused the injury. 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. You are accountable for timely reporting of any significant changes in the patient's condition to the health care provider and documenting these changes in the medical record. If records are lost or incomplete, there is a presumption that the care was negligent and therefore the cause of the patient's injuries.

Answer:

The nurse admits or denies each allegation in the petition. The plaintiff must prove anything that the nurse does not admit.

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.

Parties' depositions:

The plaintiff and defendants (health care provider, nurse, and hospital personnel) are almost always deposed.

Experts:

The plaintiff selects experts to establish the essential legal elements of the case against the defendant. The defendant selects experts to establish the appropriateness of the nursing case. Nursing experts are asked to testify to the reasonableness or inappropriate actions of the health care staff once the patient's condition began to change. The expert is asked to compare the actions of the nursing staff to the standard of care.

Discovery:

The process of discovering all the facts of the case involves using interrogatories, full access to the medical records in question, and the depositions. The patient and the health care staff are asked questions by counsel for the defense. They answer under oath, and their testimony is recorded and kept for reference.

Trial:

The trial usually occurs at least 1 to 3 years after the filing of the petition.

Health Insurance Portability and Accountability Act (HIPAA)

This law provides rights to patients and protects employees. It protects individual employees from losing their health insurance when changing jobs by providing portability. It also creates patient right to consent to the use and disclosure of their protected health information, to inspect and copy one's medical record, and to amend mistaken or incomplete information. It limits who is able to access a patient's record. Provides confidentiality of a patient's medical information.

Civil and Common Law Issues in Nursing Practice

Torts Intentional -Assault -Battery -False imprisonment

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 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.

Federal Statutory Issues in Nursing Practice

Uniform Anatomical Gift Act Health Insurance Portability and Accountability Act (HIPAA) Health Information Technology Act (HITECH) Restraints

Emergency Medical Treatment and Active Labor Act

When a patient presents to an emergency department, they must be treated Provides that if an emergency condition exists, staff must evaluate the patient and may not discharge or transfer him or her until the patient's condition stabilizes.

Abandonment and Assignment Issues

When refusing an assignment, it is important to give your immediate supervisor specific reasons for the refusal and determine if other alternatives, such as reassignment, are available. The Community Health Accreditation Program (CHAP) and other state and federal standards require agencies to have guidelines for determining the number (staffing ratios) of nurses required to give care to a specific number of patients. The ANA in conjunction with professional nursing organizations has supported federal legislation titled the Registered Nurse Safe Staffing Act, which requires Medicare-certified facilities to establish staffing committees comprised of 55% direct-care nurses. Nurses who float must inform the supervisor of any lack of experience in caring for the type of patients on the nursing unit. They should request and receive an orientation to the unit. Nurses follow health care providers' orders unless they believe that the orders are in error, violate agency policy, or are harmful to the patient. If the health care provider confirms an order and you still believe that it is inappropriate, use the agency chain of command to inform your direct supervisor. Make sure that all the health care provider orders are in writing, dated and timed appropriately, and transcribed correctly.

Interrogatories:

Written questions requiring answers under oath. Typically opposing counsel requests a list of possible witnesses, insurance experts, and which health care providers the plaintiff saw before and after the event.

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). When students work as nursing assistants or nurse's aides when not attending classes, they should not perform tasks that do not appear in a job description for a nurse's aide or assistant. If someone requests that a student employed in the agency as a nurse's aide perform tasks that he or she is not prepared to complete safely, the student employee needs to bring this information to the supervisor's attention so the task can be assigned to an appropriate health care professional.

In a malpractice lawsuit or negligence

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. 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.

Criminal laws

are meant to prevent harm to society and to provide punishment for crimes. These are categorized as felonies or misdemeanors.

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.

A student nurse employed as a nursing assistant may perform care:

identified in the hospital's job description Rationale: Student nurses should never perform a task that is not in the job description of the facility with which they work.

A health care proxy or durable power of attorney for health care (DPAHC)

is a legal document that designates a person or people of one's choosing to make health care decisions when the patient is no longer able to make decisions on his or her own behalf. This agent makes health care treatment decisions on the basis of the patient's wishes.

Cardiopulmonary resuscitation (CPR)

is an emergency treatment provided without patient consent. Health care providers perform CPR on an appropriate patient unless there is a DNR order in the patient's chart.

Malpractice

is one type of negligence and often referred to as professional negligence.

Defamation of character

is the publication of false statements that result in damage to a person's reputation.

Libel

is the written defamation of character.

You are about to administer an oral medication and you question the dosage. You should:

notify the physician Rationale: If you find one to be erroneous or harmful, further clarification from the health care provider is necessary. If the health care provider confirms an order and you still believe that it is inappropriate, use the agency chain of command to inform your direct supervisor.

Slander

occurs when one speaks falsely about another.

Occurrence reporting

provides a database for further investigation in an attempt to determine deviations from standards of care and to identify corrective measures needed to prevent recurrence and to alert risk management to a potential claim situation.

Living wills

represent written documents that direct treatment in accordance with a patient's wishes in the event of a terminal illness or condition.

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.

For living wills or durable powers of attorney for health care to be enforced

the patient must be declared legally incompetent or lack the capacity to make decisions regarding his or her own health care treatment.

Common Sources of Negligence

• Failure to respond to or correctly implement new and existing orders • Failure to follow the six rights of medication administration • Failure to convey discharge instructions to the patient, his or her family, or providers who are assuming responsibility for the patient • Failure to ensure patient safety, especially patients who have a history of falling, are sedated or confused, are frail, are mentally impaired, get up in the night, or are uncooperative • Failure to follow policies and procedures • Failure to properly delegate and supervise

Proof of Negligence

• The nurse owed a duty of care to the patient. • The nurse did not carry out the duty or breached it (failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the profession). • The patient was physically injured. • The patient's injury resulted in compensable damages that can be qualified as medical bills, lost wages, and pain and suffering. • The patient's injury was caused by the nurse's failure to carry out that duty.