Legal Dimensions of Nursing Practice Chapter 7 Legal Dimensions of Nursing Practice

Introduction As the roles and responsibilities of nurses have expanded, so has their legal accountability Nurses are increasingly being brought to court to defend their practice It is critical nurses document their actions Nurses should act in ways to prevent malpractice

Definition of Law Standard or rule of conduct established and enforced by government Designed to protect the rights of the public

Types of Laws Public law—government is directly involved Regulates relationships between individuals and government Private law—civil law Regulates relationships among people Criminal law—concerns state and federal criminal statutes Defines criminal actions (e.g., murder, theft)

Question Tell whether the following statement is true or false. A body of law known as statutory law has evolved from accumulated judiciary decisions. A. True B. False Answer: B. False Rationale: A body of law known as common law has evolved from accumulated judiciary decisions. Most law involving malpractice is common law.

Four Sources of Law Constitutions: federal and state constitutions serve as guides to legislative bodies Statutory law: enacted by a legislative body, Example nurse practice acts Administrative law: empowered by executive officers (president, state governors, city mayors) Common law: judiciary system reconciles controversies, creates body of common law-court made law, the case that first sets down the rule is called a precedent. Most law involving malpractice is common law.

Law Terminology Litigation: process of bringing and trying a lawsuit Plaintiff: person bringing suit Defendant: person being accused of a crime Presumed innocent until proven guilty

Professional and Legal Regulation of Nursing Practice Nurse practice acts-in each state is the most important law affecting your nursing practice, each state has their own nurse practice act Standards-ANA standards of practice Credentialing-ways to ensure professional competence is ensured and maintained Accreditation-NLNAC (National League for Nursing Accrediting Commission) & AACN (American Association of Colleges of Nursing) are agencies that accredit nursing schools Licensure-Passing an approved accredited school and passing the NCEX examination, cannot be revoked without due process Certification-voluntary certification that validates specialty knowledge, experience, and clinical judgement

Question Tell whether the following statement is true or false. The state nurse practice act is the most important law affecting nursing practice. A. True B. False Answer: A. True Rationale: The state nurse practice act is the most important law affecting nursing practice. Each nurse practice act protects the public by broadly defining the legal scope of nursing practice.

Reasons for Suspending or Revoking a License Drug or alcohol abuse Fraud Deceptive practice Criminal acts Previous disciplinary actions Gross or ordinary negligence Physical or mental impairments, including age

Due Cause for Revoking a License Notice of investigation Fair and impartial hearing Proper decision based on substantial evidence

Nurse’s Best Defense of License Investigation Early legal counseling Character and expert witnesses Thorough preparation for all proceedings

Criminal Law Crime: wrong against a person or the person’s property as well as the public, punishable by the state Misdemeanor: punishable by fines or less than 1 year imprisonment Felony: punishable by imprisonment for more than 1 year Tort: a wrong committed by a person against another person or that person’s property; tried in civil court Intentional Unintentional

Intentional and Unintentional Torts Assault (threat or attempt to make bodily contact with another person without their consent) and battery (assault that is carried out may be violent, angry) Defamation of character-one party makes derogatory remarks about another to diminish their reputation Invasion of privacy -HIPAA False imprisonment-unjustified or prevention of the movement of another person without proper consent Fraud-willful and purposeful misrepresentation that could cause loss or harm to a person or property Unintentional Negligence-performing an act a prudent nurse would not do or failing to perform an act a prudent nurse would do Malpractice-negligence by professional personnel

HIPAA-Ensured Patient Rights To see and copy their health record To update their health record To request correction of any mistakes To get a list of the disclosures a health care institution has made independent of disclosures made for the purposes of treatment, payment, and health care operations To request a restriction on certain uses or disclosures To choose how to receive health information HIPAA includes rules that protect the patients confidentiality, protect the patients data Nurses need to remember to discuss patient information in private areas only with those that are a part of the patients health care team, keep notes covered, computer screens off when not in use, never share username and password, close door, pull curtain

Categories of Malpractice Claims Malpractice-negligence by professional personnel Failure to follow standards of care Failure to use equipment in responsible manner Failure to assess and monitor Failure to communicate Failure to document Failure to act as a patient advocate

Question Which is the correct term for this nursing action: A nurse falsely imprisons a patient by an unauthorized use of restraints. A. Crime B. Tort C. Misdemeanor D. Felony Answer: B. Tort Rationale: A tort is a wrong committed by a person against another person or that person’s property. False imprisonment is an intentional tort. A crime is a wrong against a person or that person’s property as well as the public. Crimes can be classified as misdemeanors or felonies.

Four Elements of Liability Duty-obligation of care, standards of care Breach of duty-failure to meet standards of care Causation-most difficult to prove, failure to meet the standard actually caused the injury Damages-actually harm or injury resulting to the patient

Three Outcomes of Malpractice Litigation All parties work toward fair settlement. Case is presented to malpractice arbitration panel. Case is brought to trial court.

Roles of Nurses in Legal Proceedings Nurse as defendant-the nurse should work with an attorney Nurse as fact witness-nurse who has knowledge of the actual incident Nurse as expert witness-to explain what happened based upon the patients record and offer an opinion about whether the nursing care met standards of care

Recommendations for Nurse Defendant Do not discuss the case with those involved in it. Do not alter patient records. Cooperate fully with your attorney. Be courteous on witness stand. Do not volunteer any information.

Legal Safeguards for Nurses Competent practice-is the most important best legal safe guard Informed consent or refusal-every person is granted freedom from bodily contact by another person unless consent is granted, obtaining informed consent and explaining the procedure is responsibility of person performing diagnostic procedure, nurse confirms it was signed and answer questions the patient might still have Contracts-Exchange of promises between two people Collective bargaining-legal process in which representatives of organized employment negotiate with employers about such matters as wages, hours, and conditions Patient education-nurses need to know what specific aspects of patient education are the responsibility of the nurse Executing physician orders-nurses legally responsible to carry out physicians orders Delegating-RNs may delegate but they can not delegate the nursing process, RN remains accountable for delegated task Documentation-If it wasn’t documented it wasn’t done

Legal Safeguards for Nurses (cont.) Adequate staffing Whistle-blowing-warning from a present or past member of organization to the public concerning a wrongdoing or danger masked by organization. Professional liability insurance-nurses should carry their own Risk management programs-quality assurance programs in facilities involved in ongoing evaluation of patient care Incident, variance, or occurrence reports-anything out of ordinary that results in harm Sentinel events-unexpected occurrence involving death or serious injury Never events-errors that should never happen, surgery on wrong body part Patients’ rights-Patients have rights Good Samaritan Laws-protect health practitioners when they give aid to people in ER situations

Safeguards to Competent Practice Respecting legal boundaries of practice Following institutional procedures and policies Owning personal strengths and weaknesses Evaluating proposed assignments Keeping current in nursing knowledge and skills Respecting patient rights and developing rapport with patients Keeping careful documentation Working within agency for management policies

Elements of Informed Consent Disclosure-patient/surrogate informed procedure, risks, alternatives, no outcomes guaranteed Comprehension-patient can repeat in his/her own words information the patient is getting before signing the consent Competence-The patient understands the information needed to make the decision, is able to reason, and can communicate Voluntariness-patient voluntarily consents or refuses

Information Contained in Incident Reports Complete name of person and names of witnesses Factual account of incident Date, time, and place of incident Pertinent characteristics of person involved Any equipment or resources being used Any other important variables Documentation by physician of medical examination of person involved

Question Tell whether the following statement is true or false. In all health care agencies, informed and voluntary consent is needed for admission, for specialized diagnostic procedures or medical–surgical treatment, and for any experimental treatments or procedures. A. True B. False Answer: A. True Rationale: In all health care agencies, informed and voluntary consent is needed for admission, for specialized diagnostic procedures or medical–surgical treatment, and for any experimental treatments or procedures.

Student Liability Students are responsible for own acts Held to same standard of care as RN For no reason should students attempt a clinical procedure if you are unsure of the steps involved Nursing instructors may share responsibility for damages

OSHA Legal Regulations Occupational Safety and Health Administration establish safety standards. They have regulations that promote health and safety precautions. Use of electrical equipment Use of isolation techniques Use of radiation Use of chemicals

Laws Affecting Nursing Practice Occupational Safety and Health (OHSA) National Practitioner Data Bank-identification and discipline of practitioners who engage in unprofessional conduct Reporting obligations-nurses must report child abuse, rape, communicable diseases Controlled substances-nurse responsibility includes keeping them locked and adhering to appropriate documentation Discrimination and sexual harassment-protects employees from discrimination Health Insurance Portability and Accountability Act (HIPAA) Restraints-be familiar with institutional policies People with disabilities-prohibits the discrimination of disability and requires facilities to “reasonable accommodate” Legal issues related to death and dying (wills, advance directives)- wills describes intentions to be carried out in the death of the patient