Ch 7 Legal Aspects/Professionalism

Crucial to a nurse successful defense are

early legal counsel character and expert witness' thorough preparation for all proceedings

Americans with Disablilites Act

entities cannot discriminate against people with disabilities requires that those entities must "reasonably accomodate" people protected by the Act

Question any physician order that is

•Ambiguous •Contraindicated by normal practice (e.g., an abnormally high dose of medication) •Contraindicated by the patient's present condition (e.g., as a patient's present condition improves, the patient may no longer need aggressive forms of treatment)

sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" occurring in the following circumstances

•Submission to sexual advances is implicitly or explicitly considered a condition of employment .•Submission to sexual advances is used as a basis for employment decisions. •Sexual harassment interferes with job performance even if it only creates an intimidating, offensive, or hostile atmosphere.

Nurses are occasionally asked to witness a testator's signing of his or her will and should be familiar with the following guidelines...

•The witness should feel sure that the testator is of soundmind •The witness should feel sure that the testator is acting voluntarily and is not being coerced •Witnesses should watch the testator sign the will, and they should sign in the presence of each other. •Witnesses to the signature on a will do not need to read it, but they should be sure that the document being signed is a will and not some other type of document. •a person who is a beneficiary in a will is disqualified from being a witness to the testator's signature

Nurse Practice Acts

examples of statutory laws; list the violations that can result in disciplinary actions of a nurse; intend to prevent untrained or unlicensed people from practicing as nurses

Disclosure ensures that the patient/surrogate has been informed of

(1) nature of the procedure, (2) risks (nature of the risk, magnitude, probability that the risk will materialize) and benefits, (3) alternatives (including the option of nontreatment), and (4) fact that no outcomes can be guaranteed

As a defendant, the nurse should

-NOT discuss the case with anyone except their attorney -NOT alter patient records -cooperate fully with their attorney -NOT hide info from their attorney -be courteous on the stand -NOT volunteer information

A fact witness nurse should

-base testimony ONLY on first hand knowledge of the incident and not assumptions -simply answer "I don't remember that" when they are in doubt

The incident report should contain

-complete name of the person(s) involved -complete names of all witnesses -complete factual account of the incident -date, time, and place of the incident -pertinent characteristics of the person or people involved -any equipment or resources used -any other variable deemed important -physician completes one section of the incident form with documentation of the medical examination of the patient, employee, or visitor with an actual or potential injury

A comprehensive nursing note for each problem found with a patient should be documented. These should include

-currrent nature of the problem -how you intervened -patient response -future priorities -continuity of care until the problem is resolved

4 elements that must be established to prove liability in malpractice or negligence

-duty -breach of duty -causation -damages

Examples of malpractice

-failure to follow standards of care -failure to use equipment responsibly -failure to assess and monitor -failure to communicate -failure to document -failure to act as patient advocate -failure to follow chain of command

An expert witness should

-have solid educational background and strong clinical experience comparable with that of the defendant -should understand legal aspects of nursing and malpractice liability -should understand the state's Nurse Practice Act and the standard of nursing where the incident occurred

Patient Care Partnerships provides a patient the rights to

-high quality hospital care -a clean, safe environment -involvement in their care -protection of their privacy -help preparing for transition from the hospital -help with billing and filing insurance claims

Documentation

-is a crucial legal safeguard for the nurse. -must be factual, accurate, complete and entered in a timely fashion -must contain the nursing plan of care

In regards to orders, the nurse should

-know who is authorized to write orders -attempt to get all orders in writing -know that verbal orders must be countersigned within 24 hours -know that he/she is legally responsible to carry out all physician orders who is in charge of the patient UNLESS a reasonable person would anticipate the order to lead to injury

Steps to prevent telephone order errors

-limit to true emergent situation when there is no other alternative -designate which nurses can take telephone orders -repeat phone order back to the physician for confirmation -document the order, time, date, situation, prescribing physician, reconfirmation, nurses name, VO (verbal) or TO (telephone) -have two nurses listen to questionable order and sign confirmation

Delegation is necessary. As a nurse, you

-may delegate elements of care, but not the nursing process itself. -you remain accountable for any actions you delegate

Nurses are often the first members of society to detect abuse. Abuse includes...

-physical, verbal, sexual, or emotional attack -neglect -abandonment

Reasons the ANA (1990) lists for purchasing a personal professional liability insurance policy

-protection of the nurses best interest -limitations of employers coverage -care or advice given outside of work

Incident or variance report

-report used by health care agencies to document the occurrence of anything out of the ordinary that results in, or has the potential to result in, harm to a patient, employee, or visitor -used for quality improvement - should not be used for disciplinary action against staff members -improve the management and treatment of patients by identifying high-risk patterns -initiating in-service programs to prevent future problems -make all the facts about an incident available to the agency in case of litigation

a student nurse is

-responsible for your own acts, including any negligence that may result in patient injury. -you are held to the same standard of care as a registered nurse. -Your legal responsibilities include careful preparation for each new clinical experience and a duty to notify your clinical instructor if you feel in any way unprepared to carry out a nursing procedure. -You are also responsible for being familiar with agency policies and procedures.

Elements of a comprehensive risk management program

-safety program -product safety program -quality assurance program

What should be documented about educating patients of their care plans?

-the teaching plan as part of the nursing care plan -all efforts made to educate about health care management -the patients response to the education -patient refusal to discuss the health care plan or referral to another person -any reason education was stopped

Certification

-validates specialty knowledge, experience and clinical judgement -a means to demonstrate advanced proficiency -commitment to ensuring competency

Examples of voluntary standards

ANA Standards of Practice; professional standards for accreditation of education programs and service organizations; standards of certification of individual nurses in general and specialty areas of practice

What are the nurses best legal safeguards?

Accurate documentation competent practice

Checklist to ensure informed consent

Disclosure Comprehension Competence Voluntariness

If a patient in an understaffed area of a facility, claims negligence and sues; can the nurse who knows the area was understaffed be named in the suit and be held responsible for any resulting injury?

Yes, a nurse in an understaffed agency will be held to a professional standard of judgment for accepting responsibility for work and for delegating nursing responsibilities to others.

Newly hired nurses in a busy suburban hospital are required to read the state Nurse Practice Act as part of their training. Which topics are covered by this act? Select all that apply. a.Violations that may result in disciplinary action b.Clinical procedures c.Medication administration d.Scope of practice e.Delegation policies f.Medicare reimbursement

a, d. Each state has a Nurse Practice Act that protects the public by broadly defining the legal scope of nursing practice. Practicing beyond those limits makes nurses vulnerable to charges of violating the state Nurse Practice Act. Nurse Practice Acts also list the violations that can result in disciplinary actions against nurses. Clinical procedures are covered by the health care institutions themselves. Medication administration and delegation are topics covered by the board of nursing. Laws governing Medicare reimbursement are enacted through Federal legislation.

3 processes used for credentialing in nursing

accreditation licensure certification

Patients Bill of Rights/Patient Care Partnership

addresses the expectations, rights, and responsibilities of the patient while receiving care in the hospital, and ranges from "high-quality hospital care" to "helping prepare you and your family for when you leave the hospital.

Nurse Licensure Compact

allows nurse to have licensure in the state of residency and practice in other states

Near Miss

an error that would have happened except for someones alertness and ability to identify and prevent the error

Intentional Torts are defined as

assault and battery defamation of character (slander/libel) invasion of privacy false imprisonment fraud

A newly hired graduate nurse meets with the nurse educator to discuss obtaining a client's informed consent for procedures. Which statements, made by the graduate, would indicate to the educator that further discussion is needed? Select all that apply A. "My signature as a witness indicates the consent is signed and I saw the client sign it." B. "In the event of an emergency that threatens a client's life or health, consent is not needed." C. "When I sign the consent form as a witness, I am saying that the person knows all the risks and benefits of the procedure." D. "I must make sure I give the client all necessary information about the procedure before I have the client sign the consent form." E. "When a client is having surgery, it is my responsibility to get the consent."

b, c, d

A nurse is at the nursing desk telling a coworker that her patient in room 632 has been refusing care. She tells the coworker that after multiple warning that she would do so, she finally "tied his arms" in order to give him a bath and that it is no wonder that his family doesn't visit because he is a "total curmudgeon". This nurse is most guilty of which torts? Select all that apply A. Fraud B. Assault C. Battery D. Slander E. False imprisonment

b, c, d, e

A nurse answers a patient's call light and finds the patient on the floor by the bathroom door. After calling for assistance and examining the patient for injury, the nurse helps the patient back to bed and then fills out an incident report. Which statements accurately describe aspects of this procedure? Select all that apply. a.An incident report is used as disciplinary action against staff members. b.An incident report is used as a means of identifying risks. c.An incident report is used for quality control. d.The facility manager completes the incident report. e.An incident report makes facts available in case litigation occurs. f.Filing of an incident report should be documented in the patient record

b, c, e. Incident reports are used for quality improvement and should not be used for disciplinary action against staff members. They are a means of identifying risks and are filled out by the nurse responsible for the injured party. An incident report makes facts available in case litigation occurs and in some states, incident reports may be used in court as evidence. A physician completes the incident form with documentation of the medical examination of the patient, employee, or visitor with an actual or potential injury. Documentation in the patient record should not include the fact that an incident report was filed.

A nursing student asks the charge nurse about legal liability when performing clinical practice. Which statement regarding liability is true? a.Students are not responsible for their acts of negligence resulting in patient injury. b.Student nurses are held to the same standard of care that would be used to evaluate the actions of a registered nurse. c.Hospitals are exempt from liability for student negligence if the student nurse is properly supervised by an instructor. d.Most nursing programs carry group professional liability making student personal professional liability insurance unnecessary.

b. Student nurses are held to the same standard of care that would be used to evaluate the actions of a registered nurse. Student nurses are responsible for their own acts of negligence if these result in patient injury. A hospital may also be held liable for the negligence of a student nurse enrolled in a hospital-controlled program because the student is considered an employee of the hospital. Nursing instructors may share responsibility for damages in the event of patient injury if an assignment called for clinical skills beyond a student's competency or the instructor failed to provide reasonable and prudent clinical supervision. Most nursing programs require students to carry personal professional liability insurance.

Beyond completion of an education program and passing the NCLEX, to maintain a license in good standing, one must also...

be of good moral character perform continuing education and competency have no criminal record be proficient in English comply with specific provisions of state nursing laws

You, the nurse, believe a patient needs medical attention but the responsible physicians are not responding to calls for assistance. How would you document this? Select all that apply. A. "Anyone could see we were losing this patient rapidly" B. "Once again, Dr. Jones was unavailable when her patient needed her." C. The time the physician was called, the time of response or lack of response, and the subsequent nursing response (e.g., nursing supervisor notified). D. Document that you are carefully assessing the patient, recognizing significant cues, and reporting them appropriately. E. Document that you have had this problem with this particular physician several times, especially on weekends.

c, d

Who is responsible for completing the initial incident report? A. the charge nurse B. the patient C. the nurse responsible for or who witnessed the incident D. the physician in charge of the patient E. the witnesses

c. the nurse responsible for or who witnessed the incident

Examples of issues covered by Healthcare institutions

clinical procedures; policies specific to the institution, practice or specialty setting; personnel and employment policies

gross negligence

complete and total disregard for another's life both a tort AND a crime

Criminal law

concerned with actions that are harmful to society as a whole

4 sources of laws at both federal and state levels

constitution statutory law administrative law common law

Comprehension ensures that the patient/surrogate can

correctly repeat in his or her own words that for which the patient/surrogate is giving consent

A state attorney decides to charge a nurse with manslaughter for allegedly administering a lethal medication. This is an example of what type of law? a.Public law b.Private law c.Civil law d.Criminal law

d. Criminal law concerns state and federal criminal statutes, which define criminal actions such as murder, manslaughter, criminal negligence, theft, and illegal possession of drugs. Public law regulates relationships between people and the government. Private or civil law includes laws relating to contracts, ownership of property, and the practice of nursing, medicine, pharmacy, and dentistry.

A nurse administers the wrong medication to a patient and the patient is harmed. The physician who ordered the medication did not read the documentation that the patient was allergic to the drug. Which statement is true regarding liability for the administration of the wrong medication? a.The nurse is not responsible, because the nurse was merely following the doctor's orders. b.Only the nurse is responsible, because the nurse actually administered the medication. c.Only the physician is responsible, because the physician actually ordered the drug. d.Both the nurse and the physician are responsible for their respective actions

d. Nurses are legally responsible for carrying out the orders of the physician in charge of a patient unless an order would lead a reasonable person to anticipate injury if it were carried out. If the nurse should have anticipated injury and did not, both the prescribing physician and the administering nurse are responsible for the harms to which they contributed

Examples of issues covered by board of nursing

delegation; medication administration; unprofessional conduct; licensing

Voluntary standards

developed and implemented by the nursing profession itself; are not mandatory but are used as guidelines for peer review

Example of Common law

law involving malpractice

Tort

may be intentional or unintentional wrong committed against a person that is usually settled with money

Examples of issues covered by Federal Legislation

medicaid and medicare provisions related to reimbursement doe nursing services

unintentional torts are

negligence and malpractice

unintentional tort

negligence that results in unintentional harm EX a nurse fails to initiate proper precautions to prevent harm

Once earned, a license cannot be revoked without due process. This includes:

notice of investigation a fair an impartial hearing proper decision based on substantial evidence

Intentional tort

person has knowledge of the legal limits of his words or actions and violates those limits EX. policy states an RN can restrain an incompetent person for their safety but the RN restrains a competent person to forcefully administer medications

Examples of Administrative law

rules and regulations adopted by Boards of Nursing which are administrative agencies at the state level

examples of issues covered by State Legislation

scope of practice; nursing education requirements; composition and disciplinary authority of board of nursing

Nurses responsibility for controlled substances

storing them in special locked compartments adhering to specific documentation responsibilities

Public safety

the ultimate goal of all laws and regulations involved with nursing practice

Never event

these include errors such as surgery performed on the wrong body part or on the wrong patient, leaving a foreign object inside a patient after surgery, or discharging an infant to the wrong person

Competence ensures that the patient/surrogate

understands the information needed to make this decision, is able to reason in accord with a relatively consistent set of values, and can communicate a preference. The surrogate also knows the patient's wishes to the extent that this is possible, and is free from undue emotional stress and conflict of interests.

Voluntariness ensures that the patient/surrogate is

voluntarily consenting or refusing. Care has been taken to avoid manipulative and coercive influences.