Chapter 5 Legal and Legislative Issues

Patient Self-Determination Act (PSDA) Required health-care 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 health care (health-care proxy)

Good Samaritan Laws

Suggest that health-care providers are typically protected from potential liability if they volunteer their nursing skills away from the workplace (generally limited to emergencies), provided that actions taken are not grossly negligent and if the health-care worker does not exceed his or her training or scope of practice in performing the emergency services

Sources of Law table 5.1 (111) The Constitution

The highest law in the U.S., interpreted by the U.S. Supreme Court, give authority to other three sources of the law Little direct involvement in the area of malpractice.

Wisconsin Department of Safety and Professional Services

https://online.drl.wi.gov/orders/searchorders.aspx

Elements of Malpractice Malpractice:

the failure of a person with professional training to act in a reasonable and prudent manner—also called professional negligence

Elements of Malpractice Negligence:

the omission to do something that a reasonable person, guided by the considerations that ordinarily regulate human affairs, would do—or as doing something that a reasonable and prudent person would not do

Types of Laws and Courts

Criminal: beyond a reasonable doubt = incarceration, probation, and fines Civil: based on a preponderance of the evidence= monetary damages Administrative: clear and convincing standard= suspension or loss of licensure

Common Causes of Professional Nursing License Suspension or Revocation Professional negligence Practicing medicine or nursing without a license Obtaining a nursing license by fraud or allowing others to use your license

Felony conviction for any offense substantially related to the function or duties of an RN Participating professionally in criminal abortions Not reporting substandard medical or nursing care Providing patient care while under the influence of drugs or alcohol

Reducing the Risk of Malpractice Claims Practice within the scope of the nurse practice act. Observe agency policies and procedures.

Model practice after established standards by using evidence-based practice. Always put patient's rights and welfare first. Be aware of relevant law and legal doctrines. Practice within the area of individual competence and upgrade technical skills consistently.

Two Types of Negligence

Ordinary negligence Professional negligence (also called malpractice)

Patient Medical Records Patient owns the information, but the record belongs to the facility that made it and is storing it.

Patients must have reasonable access to the record. Collaboration between health-care providers and patients, and documentation thereof, is a good indication of well-provided clinical care.

Incident Reports (Adverse Event Forms) Records of unusual or unexpected incidents that occur in the course of a client's treatment

Generally considered confidential communications and cannot be subpoenaed by clients or used as evidence in their lawsuits in most states A copy of an incident report should not be left in the chart, and no entry should be made in the patient's record about the existence of an incident report.

Common Causes of Professional Nursing License Suspension or Revocation—(cont.)

Giving narcotic drugs without an order Falsely holding oneself out to the public or to any health-care practitioner as a "nurse practitioner"

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 because injured parties will always seek damages from as many individuals with financial resources as possible.

Sources of Law table 5.1 (111) Administrative agencies

The rules and regulations established b the appointed agencies of the executive branch of the government (governor or president). National Labor Relations Board and Health and Safety Boards can affect nursing practice.

Sources of Law table 5.1 (111) Court decisions

also called tort law, this court mode law and the courts interpret the statutes and set precedents, in the U.S. there are two levels of court: trial court and appellate court. Most malpractice law are addressed by the courts.

Being Sued for Malpractice

"Just following physician orders" is not a defense for malpractice. Nurses have an independent responsibility to take appropriate steps to safeguard patients.

Guidelines for Informed Consent—(cont.)

3. An emancipated or married minor 4. Mature minor (varies by state) 5. Parent of a minor child 6. Court order

Guidelines for Informed Consent The person(s) giving consent must fully comprehend: 1. The procedure to be performed 2. The risks involved 3. Expected or desired outcomes

4. Expected complications or side effects that may occur as a result of treatment 5. Alternative treatments that are available Consent may be given by: 1. A competent adult 2. A legal guardian or individual holding durable power of attorney

Sources of Law table 5.1 (111) Statutes

Also called statutory law or legislative law, laws that are passed by the state or federal legislators and that must be signed by the presidents or governor. Since the malpractice in 1970, many statutes affect malpractice.

Intentional Torts

Assault and battery False imprisonment Invasion of privacy Defamation of character - Slander (spoken) - Libel (written)

Purpose of Law and Legislation The 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 of 1996

Provides patient right to confidentiality Essentially represents two areas for implementation Administrative simplification plan Privacy rules

Responsibilities of the Nurse-Manager

Reporting dangerous understaffing Checking staff credentials and qualifications Carrying out appropriate discipline

Legal Doctrines Guiding Courts in Decision Making Stare decisis - let the decision stand: uses precedents as a decision-making guide Res judicata -a matter settled by judgment: applies only when a competent court has decided a legal dispute and when no further appeals are possible

Respondeat superior - the master is responsible for the acts of his servants: an employer should be held legally liable for the conduct of employees whose actions he or she has a right to direct or control

Five Components Necessary for Professional Negligence to Occur A standard of care is in place (minimal level of expertise delivered to a patient).

There is a failure to meet the standard of care (breach of duty). Foreseeability of harm must exist (ignorance is not an excuse). There must be a provable correlation between care and harm. Actual patient injury must occur.

Nurses Are at Increased Legal Liability in the 21st Century Owing to the Following

They have more authority and independence in decision making. They have increased legal accountability for decision making. They are performing more actions that used to be in the realm of medical practice. They are making more money. More nurses are carrying malpractice insurance.