Nursing Law and Liability Mary Evan & Tonia Aiken Chapter 9

For many nurses, the mere mention of the word lawsuit provokes a high level of anxiety. Many nurses feel that even a minor error in client care will lead to huge settlements against them and loss of their nursing license.

Laws are rules to help protect people and to keep society functioning. The ultimate goal of all laws is to promote peaceful and productive interactions between and among the people of that society.

The Nurse’s Involvement Nurses can become involved with the criminal system in several ways. The most common one is through failure to renew nursing licenses. Illegal diversion of drugs, particularly narcotics, from the hospital which may lead to imprisonment (السجن).

Recent cases involving intentional or unintentional deaths of clients and assisted suicide cases have also led to criminal action against nurses

DIVISIONS OF LAW Two types of law: Criminal Law: is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self 2. Civil Law: that protects the legal rights and enforces the legal duties of private persons (or groups of persons)

Nurses are more likely to become involved in civil laws than in criminal violations. Civil laws generally deal with the violation of one individual’s rights by another individual..

Types of Civil low Tort Law (المسؤولية التقصيرية) Is defined as a wrongful act committed against a person or his or her property independent of a contract. A person who commits (يلزم) a tort is called the tort-feasor and is liable for damages to those who are affected by the person’s actions.

Torts involves several different types of actions including: a direct violation of a person’s legal rights a violation of a standard of care that causes injury to a person. Torts are classified as: A. unintentional, B. intentional, or quasi-intentional.

Unintentional Torts 1- Negligence Negligence is the primary form of unintentional tort. Negligence is generally defined as the omission(الإغفال) of an act that a reasonable and prudent person would perform in a similar situation

Nonfeasance is a type of negligence that occurs when a person fails to perform a legally required duty.

Unintentional Torts 2- Malpractice Malpractice is a type of negligence for which professionals can be sued (دعوى قضائية ضد) (professional negligence). Because of their professional status, nurses are held to a higher standard of conduct than the ordinary layperson.

Four elements are required for a person to make a claim of negligence: 1. A duty was owed (المستحقة) to the client (professional relationship). 2. The professional violated the duty and failed to conform to the standard of care (breach of duty) (خرق)

3. The failure to act by the professional was the proximate cause of the resulting injuries (causality). 4. Actual injuries resulted from the breach of duty. If any of these elements are missing from the case, the client will probably not be able to win the lawsuit

Professional Misconduct Malpractice is more serious than mere negligence because it indicates professional misconduct or unreasonable lack of skill in perform professional duties. Malpractice suggests the existence of a professional standard of care and a deviation from that standard of care

A professional expert witness is often asked to testify in a malpractice case to help establish the standard of care to which the professional should be held accountable.

Some actions by nurses can produce malpractice: Leaving foreign objects inside a client during Surgery •Failing to follow a hospital standard or protocol • Not using equipment in accordance with the manufacturer’s recommendations •Failing to listen to and respond to client’s complaints

Failing to listen to and respond to client’s complaints Not properly documenting phone conversations and orders from physicians • Failing to question physician orders when indicated(e.g., too large medication dosages, inappropriate diets, etc.) • Failing to clarify poorly written or illegible physician order

Failing to assess and observe a client as directed • Failing to obtain a proper informed consent • Failing to report a change in a client’s condition, such as vital signs, circulatory status, and level of consciousness Failing to report another health-care provider’s incompetency or negligence

• Failing to take actions to provide for a client’s safety, such as not cleaning up a liquid spill on the floor that causes a client to fall • Failing to provide a client with sufficient and appropriate education before discharge

If the Nurse Is Liable If a nurse is found guilty of malpractice, several types of action may be taken. The nurse may be required to provide monetary compensation to the client for general damages that were a direct result of the injury, including pain, suffering, disability.

The nurse is often required to pay for special damages that resulted from the injury, such as all involved medical expenses, out-of pocket expenses, and wages lost by the client while he or she was in the hospital.

Optional damages, including those for emotional distress, mental suffering, and counseling expenses that were an outgrowth of the initial injury, may be added to the total Settlement (التسوية)

Intentional tort Intentional torts: willful (العمد) acts that violate another person’s rights or property—usually physical acts; may result in a crime Assault(الاعتداء ) : is the unjustifiable attempt to touch another person or the threat of doing so Battery: is actual harmful or unwarranted contact with another person without his or her consent. Battery is the most common intentional tort seen in the practice of nursing.

For a nurse to commit assaultالاعتداء and battery, there must be an absence of consent on the part of the client. A common example of an assault and battery occurs when a nurse physically restrains a client against the client’s will and administers an injection against the client’s wishes.

Intentional tort False Imprisonment: making a person stay in a place against his or her wishes; can be verbal, physical, or chemical False imprisonment occurs when a competent client is confined or restrained with intent to prevent him or her from leaving the hospital.

Intentional infliction of emotional distress: the use of extreme or outrageous conduct that causes severe emotional distress in the patient or family

Client Abandonment (التخلي عن): Because of the ongoing nursing shortage, abandonment of clients has become an important legal and ethical issue for health-care providers. Abandonment occurs when there is a unilateral severance of the professional relationship with the client without adequate notice and while the requirement for care still exists

A quasi-intentional tort A quasi-intentional tort is a mixture of unintentional and intentional torts. It is defined as a voluntary act that directly causes injury or distress without intent to injure or to cause distress. Quasi-intentional torts usually involve situations of communication and often violate a person’s reputation, personal privacy, or civil rights

A quasi-intentional tort Defamation of character (تشويه صورة) : the sharing of information that unintentionally harms a person’s reputation Slander: (القذف) oral defamation of character that is intentional and malicious Libel: (قانون التشهير)written defamation of character that is intentional and malicious

A quasi-intentional tort Invasion of privacy: is a violation of a person’s right to protection against unreasonable and unwarranted interference with one’s personal life. To prove that invasion of privacy has occurred, the client must show that: (1) The nurse intruded on the client’s seclusion (عزلة) and privacy (2) The intrusion is objectionable to a reasonable and prudent person

(3) The act committed intrudes on private or published facts or pictures of a private nature (4) Public disclosure of private information was made.

Breach of Confidentiality A breach of confidentiality: results when a client’s trust and confidence are violated by public revelation of confidential or privileged communications without the client’s consent.

Privileged communication ensures that the professional who obtains any information from the client cannot be forced to reveal that information Privileged communication is protected by law and exists in certain well-defined professional relationships, for example physician–client, psychiatrist–client, priest–penitent, and lawyer– client

a special type of privacy that exists in certain professional relationships where its violation would destroy trust and confidence in the professional Physician–patient Lawyer–client

COMMON ISSUES IN HEALTH-CARE LITIGATION Informed Consent: is both a legal and an ethical issue. it is the voluntary permission by a client or by the client’s designated proxy to carry out a procedure on the client. The client receives sufficient information on: Treatment proposed • Material risk involved (potential complications) Acceptable alternative treatments • Outcome hoped for • Consequences of not having treatment

Exceptions to Informed Consent There are two exceptions to informed consent: 1. Emergency situations when the client is unconscious, incompetent, or otherwise unable to give consent. 2. Situations where the health-care provider feels that it may be medically contraindicated to disclose the risk and hazards because it may result in illness, severe emotional distress, psychological damage, or failure on the part of the client to receive life saving treatment.

The advance directives The advance directives are meant to encourage people to discuss and document their wishes concerning the type of treatment and care that they want (i.e., life-sustaining treatment) in advance, so that it will ease the burden on their families and providers when it comes time to make such a decision.

The advance directives There are two types of advance directives: 1- The living will: is a document stating what health care a client will accept or refuse after the client is no longer competent or able to make that decision 2- The medical durable power of attorney designates another person to make health- care decisions for a person if the client becomes incompetent or unable to make such decisions

The Nurse’s Role in Advance Directives 1- Establish trust and rapport with a client and the client’s family so the nurse can assist them in making decisions that are in the client’s best interests 2- Teach about advance directives and document all critical decisions, discussions with the client and client’s family about such decisions 3- Prevent discrimination against clients and their families based on their decisions regarding their advance directives

The Nurse’s Role in Advance Directives 4- Determine whether or not clients have been coerced into making advance directive decisions against their will Involved in ethics committees at hospitals or nursing specialty groups to better help clients make decisions about advance directives.

Do-Not-Resuscitate Orders Protection for the Nurse Although a do-not-resuscitate (DNR) instruction may be included in an advance directive, DNR orders are legally separate from advance directives. For the health-care professional to be legally protected, there should be a written order for a “no code” or a DNR order in the client’s chart.

Do-Not-Resuscitate Orders Each hospital should have a policy and procedure that outlines what is required with regard to a client’s condition for a DNR order. The DNR order should be reviewed, evaluated, and reordered. Nurses must also know whether there is any law that regulates who should authorize a DNR order for an incompetent client who is no longer able to make this decision.

Do-Not-Resuscitate Orders Hospitals often have policies and procedures describing what must be done and which clients fit the requirements for a DNR order. The American Nurses Association (ANA) has published a position statement on nursing care and DNR decisions.