Legal Issues in Health Care Chapter 18 Legal Issues in Health Care

State Boards of Nursing State boards of nursing in each state define those actions and duties of a nurse that are allowable by the profession guided by the state’s practice act and common law. Nurse Practice Acts set educational standards, examination requirements, and licensing requirements and regulate the nursing profession in each particular state. State boards of nursing exist to foster public protection, to ensure consumer protection from fraud and abuse, and to respond to changes in the health care practice environment.

NCSBN The National Council of State Boards of Nursing (NCSBN) serves as a central clearinghouse, ensuring that individual state actions are enforced in all states in which an individual nurse may hold licensure.

Multistate Licensure (Compact States) With the advent of multistate licensures, nurses licensed in one state may legally practice in another state without obtaining additional licensure. The state in which you practice is the state under whose regulations you are accountable.

Compact States Not all states have multistate licenses, so again it is imperative that you know about the practice requirements of your state.

Compact States (Cont’d) Each nurse has a state of legal residency, which he or she already declares each year to the Internal Revenue Service. This is the primary state in which the nurse resides; typically where the nurse pays federal taxes, lives most of the year, and has a driver's license. The nurse maintains an active nursing license in that state. If the state is part of the Multistate Compact, the nurse is issued an active Compact license by that state and may not have a license in another Compact state. The active license will be labeled “Multistate” or “Compact” to make identification of Compact status user-friendly, until all states join the Compact.

Compact State Nurses Who Want to Practice in a Non-Compact State Those nurses must apply for and receive a license before practicing in any state that has not joined the Compact.

Disciplinary Action by the State Board of Nursing Disciplinary actions by the state board of nursing will occur if a complaint about a nurse’s action triggers an investigation. Potential situations that may trigger an investigation include: Impaired nursing practice Negligence Incompetence Abuse Fraud Practicing beyond the scope of the license

Corporate Liability The duty to hire, supervise, and maintain qualified, competent, and adequate staff The duty to provide, inspect, repair, and maintain reasonably adequate equipment The duty to maintain safety in the physical environment

Malpractice “any misconduct or lack of skill in carrying out professional responsibilities” (Sullivan & Decker, 2001, p. 75)

Nursing Negligence Malpractice Nursing negligence malpractice occurs when the nurse’s actions do not meet the standard of care, when the nurse’s actions are unreasonable, or when the nurse fails to act and causes harm

Harm Harm related to nursing clinical practice commonly arises from: negligent acts and omissions (unintentional torts) intentional acts (intentional torts) such as invasion of privacy, assault and battery, or false imprisonment

Reasons That Nurses Should Have Malpractice Insurance In the event of litigation, the facility, not the nurse, makes any decisions about settlement or defense, so the nurse’s best interests may not be represented. If the court determines that the nurse acted outside the scope of employment, he or she is unprotected. If the nurse does, in fact, practice outside the facility’s job description (professional committees, outside speaking, educational work), the facility coverage does not apply. Facilities have the right to seek reimbursement from the nurse for claims paid as a result of negligence.

Reasons That Nurses Should Have Malpractice Insurance (Cont’d) Personal assets may in some cases be attached to satisfy a judgment, or wages may be garnished. Health care facility insurance is frequently a claims-made policy. This type of policy will cover the nurse only while he or she is employed by the facility, not years later when the claim is in court. The cost of insurance is relatively small in relation to the peace of mind the insurance provides. From Rowland, H., & Rowland, B. (1997). Nursing administration handbook, 4th ed., (p. 192) Gaithersburg, MD: An Aspen Publication, Aspen Publishers, Inc.).

Torts Denial of person’s legal rights Failure to comply with public duty Failure to perform private duty that harms another person A tort can be unintentional, such as malpractice or neglect, or intentional, such as assault and battery or invasion of privacy

For malpractice to exist, the following elements must be present: A duty exists: This is automatic when a patient is in a health care facility A breach of duty occurs: The nurse did something that should not have been done or did not do something that should have been done Causation: The nurse’s action directly led to a patient injury Injury: Harm comes to the patient Damages: Compensate the patient for injury

Negligence The failure of an individual not to perform an act (omission) or to perform an act (commission) that a “reasonable, prudent person would or would not perform in a similar set of circumstances” (Sullivan and Decker, 2001, p. 75) Negligence is also defined as the failure to exercise the proper degree of care required by the circumstance.

Common negligence allegations in nursing include: Medication errors Patient falls Use of restraints Equipment injuries Failure to take appropriate nursing action Failure to follow hospital procedure Failure to supervise treatment

Charting F-L-A-T Factual Legible Accurate Timely

Standard of Care – Pain Management

Standard of Care – Pain Management (Cont’d)

Incident Reports The purpose of an incident report is to provide a factual account of an incident or adverse event. The incident reporting system provides the risk manager an opportunity to investigate all serious situations. Aggregated data from incident reports are used by management to improve health care processes.

HIPAA The Health Insurance Portability and Accountability Act (HIPAA) was enacted in 1996 to give people control over their personal information. It also made organizations that create or receive personal information accountable for protecting it. Information disclosed by patients is confidential and should be available only to authorized personnel.

Informed Consent Information and knowledge Competence Voluntariness

Patient restraints must meet the following requirements: Physician’s order for specific duration and circumstances for use PRN orders not permitted Continuous assessment and reassessment of patient as per hospital policy Informed consent for use must be given (if patient unable, proxy consent necessary)

Patient Self-Determination Act Patients who are unable to verbalize consent or refusal can do so with the following documents: Advance medical directive Durable power of attorney Health care proxy Living will

Advance Medical Directive Advance medical directives are written instructions expressing an individual’s health care wishes in the event of incapacitation.

Durable Power of Attorney These are legal instructions enabling an individual to act on another’s behalf In health care, it is often part of an advance medical directive

Health Care Proxy Documents delegate the authority to make health care decisions to another when the patient has become incapacitated.

Living Will This is a document in which an individual expresses in advance his or her wishes regarding the application of life-sustaining treatments if he or she becomes unable to do so.

Good Samaritan Laws While nurses are legally covered for professional actions within the workplace, there are often concerns about professional actions in times of emergency outside of the health care institution. Good Samaritan laws have been enacted to encourage professionals to render help in an emergency or accident situation.