1. Copyright © 2006 Elsevier, Inc. All rights reserved Chapter 20 Legal Issues

2. Copyright © 2006 Elsevier, Inc. All rights reserved Practical Advice “Mother rule”—would you feel comfortable telling your mother about what you are doing or propose to do? Fraud or defamation Doing something outside your scope of practice or something unsafe for the patient and that could cause injury; these actions are involved in malpractice Invasion of privacy and breach of confidentiality are claims involving gossip or talking about patients unnecessarily

3. Copyright © 2006 Elsevier, Inc. All rights reserved Where Does “The Law” Come From? Statutory law— most common type of law affecting nurses  Nurse Practice Acts are examples of state statutory laws Constitutional law— refers to rights, privileges, and responsibilities from U.S. Constitution, including Bill of Rights

4. Copyright © 2006 Elsevier, Inc. All rights reserved Where Does “The Law” Come From? (cont’d) Administrative law —rules and regulations passed by boards of nursing Common law —decisions made by judges in court cases Case law —composed of decisions rendered in court cases by appeals courts

5. Copyright © 2006 Elsevier, Inc. All rights reserved Court Actions Based on Legal Principles Criminal actions—occur when you have done something considered harmful to society as a whole Civil actions—concern private interests and rights between individuals involved in cases  Sometimes an event can have both criminal and civil consequences

6. Copyright © 2006 Elsevier, Inc. All rights reserved Legal Control Over Nursing Practice The Nurse Practice Act—statute governing nurses in your state The Board of Nursing—agency designated to apply laws to individuals

7. Copyright © 2006 Elsevier, Inc. All rights reserved What Are The Legal Aspects of Licensure? Receiving license to practice nursing is a privilege, not a right License is granted by state after candidate has successfully met all requirements Each state’s Practice Act may be different from any other state’s Act

8. Copyright © 2006 Elsevier, Inc. All rights reserved The Nurse Practice Act Describes how to obtain licensure and enter practice within that state Describes how and when to renew your license Defines the educational requirements for entry into practice Provides definitions and scope of practice for each level of nursing practice Describes the process by which individual members of the Board of Nursing are selected and the categories of membership

9. Copyright © 2006 Elsevier, Inc. All rights reserved The Nurse Practice Act (cont’d) Identifies situations that are grounds for discipline or circumstances in which a nursing license can be revoked or suspended Identifies the process for disciplinary actions, including diversionary techniques Outlines the appeal steps if the nurse feels the disciplinary actions taken by the Board of Nursing are not fair or valid

10. Copyright © 2006 Elsevier, Inc. All rights reserved What About the Impaired Nurse? Impaired nurses are unable to function effectively because of some type of substance abuse  Heightened awareness  Significant impact on rendering safe, effective patient care  High stress and easy access to drugs seem to contribute to this common problem  Many states have taken a rehabilitative approach to this problem

11. Copyright © 2006 Elsevier, Inc. All rights reserved Who Knows About the Disciplinary Actions Against Nurses? NURSYS—Comprehensive electronic information system including collection and warehousing of nurse licensing information and disciplinary actions Nurses can also access system to provide nursing license verification for fee of $30 National Practitioner Data Bank, was part of a federal law under Medicare called The Health Care Quality Improvement Act

12. Copyright © 2006 Elsevier, Inc. All rights reserved Torts Civil actions—plaintiff files lawsuit for compensation for damages suffered from perceived wrong Unintentional torts  Incidents or accidents Intentional torts  Deliberate acts

13. Copyright © 2006 Elsevier, Inc. All rights reserved 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 From 1990 to 2003, reports made against 16,339 nurses and nursing- related practitioners

14. Copyright © 2006 Elsevier, Inc. All rights reserved What Are the Basic Elements of Malpractice? You must have a duty (in other words, there must be a professional nurse-patient relationship) You must have breached that duty (in other words, you must have fallen below the standard of care for a nurse) Your breach of duty must have been a foreseeable cause of the patient’s injury Damages or injury must have occurred

15. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Elements Do you have a professional duty?  Nurse/patient relationship—a professional duty to a patient?  Good Samaritan statutes Give immunity from malpractice to those attempting to give assistance at scene of accident What is the professional duty owed?  Act as a reasonable nurse would under same or similar circumstances

16. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Elements (cont’d) What about the Nurse Practice Act?  Acts describe what nurses may do—fairly general  What’s prohibited—more specific What is an expert witness?  Common way to establish duty owed  Testifies what a reasonable nurse would do in similar circumstances

17. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Elements (cont’d) What are established policies and procedures?  Crucial pieces of evidence for establishing standard of care  Resources for questions regarding certain procedures What about accreditation and facility licensing standards?  Evidence of standard of care for nurses working in accredited facilities

18. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Elements (cont’d) Was there a breach of professional duty?  Standard of care not met must be proved  Must demonstrate you did not act as a reasonable and prudent nurse under the circumstances

19. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Elements (cont’d) Did the breach of duty cause the injury?  Causation must be proven  Good documentation makes proof impossible

20. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Elements (cont’d) Well-documented observations include  Patient’s physical/mental condition upon admission and discharge  After incident (i.e., fall), note patient’s physical and mental condition  Patient’s noncompliance with medical directives  Any patient complaints or noncomplaints  Note exactly what patient says  Note patient’s own admissions  Clear discharge instructions  Allergies or lack of any allergies

21. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Elements (cont’d) Applying “causation”  Document facts  Document what you see and do  Role is to render nursing services, not to judge  Leave the determination of fault to courts  Actions and truthful documentation will be best defense

22. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Elements (cont’d) Did the patient suffer damages or injury?  Must be proved that breach of duty caused injury to patient  Damages—sum of money  General damages—given for intangibles such as pain/suffering, disfigurement, interference with ordinary enjoyment of life, loss of consortium  Special damages—out-of-pocket expenses  Punitive damages—to punish those whose conduct goes beyond normal malpractice

23. Copyright © 2006 Elsevier, Inc. All rights reserved Who Might Have Liability (Responsibility) in a Claim? Personal liability  Each individual accountable for own actions  You are held to professional standard of care 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

24. Copyright © 2006 Elsevier, Inc. All rights reserved Who Might Have Liability (Responsibility) in a Claim? (cont’d) Supervisory liability  Task properly assigned to competent worker  Adequate supervision provided  Nurse provided appropriate follow-up and evaluation of delegated task Institutional liability  Respondeat superior  Carry insurance  Policies or lack of common claim in court

25. Copyright © 2006 Elsevier, Inc. All rights reserved Who Might Have Liability (Responsibility) in a Claim? (cont’d) Student liability  Responsible for own actions  Held to standard of RN for performed tasks  Don’t accept assignments beyond preparation  Communicate frequently with instructors

26. Copyright © 2006 Elsevier, Inc. All rights reserved 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 claim defensible or indefensible  Good documentation—best defensive action  Document extensively, accurately, and very factually

27. Copyright © 2006 Elsevier, Inc. All rights reserved How Can I Avoid a Malpractice Claim? Medication errors  Violation of classic five rights  Miscalculations, drug interactions, drug allergies  Listen to patients or family members regarding new medications, recheck anything amiss  Take time to administer correctly (will ultimately save time)

28. Copyright © 2006 Elsevier, Inc. All rights reserved How Can I Avoid a Malpractice Claim? (cont’d) Provide a safe environment  Know how equipment works  Remove hazards such as chemicals  Make environment free of hazards such as poorly placed furniture or equipment  Document any incident correctly

29. Copyright © 2006 Elsevier, Inc. All rights reserved How Can I Avoid a Malpractice Claim? (cont’d) Patient falls  Primary risk second to med errors  Source of both physical and psychological injury to elderly patients  First duty to patient Notify physician to assess and treat Make sure patient is protected from another fall Notify family Document what occurred

30. Copyright © 2006 Elsevier, Inc. All rights reserved How Can I Avoid a Malpractice Claim? (cont’d) Equipment failure  Know standard of care connected with equipment  Use as directed  Properly maintained?  Working properly?  Removed from service if necessary

31. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Claim? (cont’d) Failure to adequately assess, monitor, and obtain assistance  Do not delegate assessment and evaluation of patient care and progress  Be aware of any changes in progress  Document changes and events

32. Copyright © 2006 Elsevier, Inc. All rights reserved How Can I Avoid a Malpractice Claim? (cont’d) Failure to adequately adequately communicate  Communicate changes in patient’s condition  Document this communication (not to be done defensively)

33. Copyright © 2006 Elsevier, Inc. All rights reserved How Can I Avoid a Malpractice Claim? (cont’d) Failure to report  Must report certain incidences or occurrences Unprofessional behavior of health care professional Evidence of child/adult/elderly abuse/neglect Certain communicable diseases Certain deaths under suspicious circumstances Certain types of injuries possibly caused by violence Evidence of Medicare fraud Emergency Medical Treatment and Labor Act violations

34. Copyright © 2006 Elsevier, Inc. All rights reserved Intentional Torts Closely related to criminal acts  Assault and battery  False imprisonment  Defamation Libel Slander

35. Copyright © 2006 Elsevier, Inc. All rights reserved Intentional Torts (cont’d) Don’t communicate patient information without the patient’s consent Confidentiality  Keep info about patients to themselves, share only with other health care workers Invasion of privacy  Photographing procedures  Going through patient’s belongings  Talking about patient’s private life publicly

36. Copyright © 2006 Elsevier, Inc. All rights reserved Miscellaneous Intentional Torts Intentional infliction of emotional distress Sexual harassment and discrimination

37. Copyright © 2006 Elsevier, Inc. All rights reserved Defense for Intentional Torts Informed consent—patient informed of:  Nature of proposed care, treatment, services, medications, interventions, or procedures  Potential benefits, risks, or side effects  Likelihood of achieving care, treatment, and service goals  Reasonable alternatives and their risks and benefits and alternative of refusing all interventions

38. Copyright © 2006 Elsevier, Inc. All rights reserved What Criminal Acts Pose a Risk to the Nurse? Theft and misappropriation of property Nursing practice violations Violations of the Food and Drugs Act

39. Copyright © 2006 Elsevier, Inc. All rights reserved How Do I Protect Myself and My Patient from All These Risks? Quality assurance, continuous quality management, or continuous quality improvement Peer review Look for better ways to give care  Evaluate what nurses are doing  Develop policies and procedures  Prepare staff—competent?—skill documentation  Continuing education and certification  Employee evaluations  Ongoing monitoring

40. Copyright © 2006 Elsevier, Inc. All rights reserved How Do I Protect Myself and My Patient from All These Risks? (cont’d) Risk management  Process to review untoward events posing financial risk/lawsuit to institution  Evaluate how to prevent reoccurrence by changing systems  Tool—incident report Do NOT include: conclusions, opinions, defensiveness, and judgments, or blame of others

41. Copyright © 2006 Elsevier, Inc. All rights reserved How Do I Protect Myself and My Patient from All These Risks? (cont’d) Risk management (simple actions by nurses)  Apologize and offer to help  Sharing uncertainties and bringing down patient’s expectations during informed consent process  Not participating in gossip or judging others

42. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Insurance What about individual malpractice insurance?  Not very expensive  Not used much What is institutional coverage?  Most carry large policies covering acts or omissions by employed nurses  Most individual policies are secondary to this

43. Copyright © 2006 Elsevier, Inc. All rights reserved Malpractice Insurance (cont’d) What should I ask about institutional coverage?  Name of carrier, limits of policy, and rating of insurance company  Covered for all acts occurring/acts not covered  Cover if you need to appear before State Board of Nursing  Independent practitioners must know how covered by employers  Limited coverage if working in physician’s office  If self-employed, need to purchase coverage

44. Copyright © 2006 Elsevier, Inc. All rights reserved What Happens When I Go to Court? 95% of personal injury lawsuits are either dismissed or settled out of court Discovery process  Interrogatories—written questions  Deposition—recorded oral questioning

45. Copyright © 2006 Elsevier, Inc. All rights reserved What Happens When I Go to Court? At deposition  Look/act like professional, be prepared  Be clear, accurate, and very concise  Give NO opinions, stick to facts  Speak slowly, use well-modulated tone  Ask for questions to be repeated if don’t understand or don’t remember  Correct any misstatements  Don’t become angry or give emotional responses  Avoid “always,” “never,” “maybe,” “I think,” or “possibly”  Do not answer more than is asked