Chapter 23 Legal Accountability and Responsibilities Fundamentals of Nursing: Standards & Practices, 2E

 Copyright 2002 by Delmar, a division of Thomson Learning 23-2 Legal Foundations of Nursing  The word law is derived from an Anglo-Saxon term meaning that which is laid down.  Public law deals with an individual’s relationship to the state.  Civil law deals with relations between individuals.

 Copyright 2002 by Delmar, a division of Thomson Learning 23-3 Sources of Law  Public Law Statutory law - laws enacted by legislative bodies Administrative law - governmental administrative agencies who are entrusted with enforcing statutory laws Criminal law - acts or offenses against the welfare or safety of the public

 Copyright 2002 by Delmar, a division of Thomson Learning 23-4  Civil Law Contract law - the enforcement of agreements among private individuals Tort law - the enforcement of duties and rights among individuals independent of contractual agreements: malpractice, negligence, assault, battery, false imprisonment, invasion of privacy, defamation, fraud

 Copyright 2002 by Delmar, a division of Thomson Learning 23-5 Legal Liability in Nursing  When a nurse fails to meet the legal expectations of care, the client can initiate action if harm or injury is incurred by the client.  Liability is an obligation one has incurred or might incur through any act or failure to act.

 Copyright 2002 by Delmar, a division of Thomson Learning 23-6 Negligence and Malpractice  Malpractice refers to the behavior of a professional person’s wrongful conduct, improper discharge of professional duties, or failure to meet the standards of acceptable care, which results in harm to another person.

 Copyright 2002 by Delmar, a division of Thomson Learning 23-7  Negligence (breach of duty) is the failure of an individual to provide care that a reasonable person would ordinarily use in a similar circumstance. When a nurse commits a negligent act that results in injury, it is known as malpractice.

 Copyright 2002 by Delmar, a division of Thomson Learning 23-8 Assault and Battery  Assault is a stated intent to touch a person in an offensive, insulting, or physically intimidating manner.  Battery is the touching of another person without the person’s consent.

 Copyright 2002 by Delmar, a division of Thomson Learning 23-9  Because assault and battery deal with acts of touching, the client’s cultural values, beliefs, and practices must be respected by the nurse.  Informed consent is essential to avoid assault and battery.

 Copyright 2002 by Delmar, a division of Thomson Learning  Informed consent A consent is a voluntary act by which a person agrees to allow someone else to do something. Informed consent means that the client understands the reason for the proposed intervention and its benefits and risks, and agrees to the treatment by signing a consent form.

 Copyright 2002 by Delmar, a division of Thomson Learning Consent forms must be signed for all invasive (accessing body tissues, organs, or cavities through some type of instrumentation) procedures. The health care provider can not coerce the client to sign the consent. Parental or guardian consent should be obtained before treatment of a minor.

 Copyright 2002 by Delmar, a division of Thomson Learning The physician cannot delegate the responsibility for obtaining informed consent. The nurse could be held liable on a battery claim if the nurse knows the client has not given informed consent.

 Copyright 2002 by Delmar, a division of Thomson Learning The nurse may witness a client’s signing of a consent form or may be responsible for making sure the signed form is in the chart. When the nurse discovers circumstances that render a signed consent form invalid, the nurse should notify the physician.

 Copyright 2002 by Delmar, a division of Thomson Learning False Imprisonment  False imprisonment occurs when clients are made to believe they cannot leave a place.  False imprisonment includes use of restraints (physical or chemical) and seclusion.

 Copyright 2002 by Delmar, a division of Thomson Learning Restraints are legal only if they are necessary to protect the client or others from harm. If a competent client refuses to follow orders and the nurse uses restraints, the nurse can be charged with false imprisonment and/or assault and battery.

 Copyright 2002 by Delmar, a division of Thomson Learning In an emergency situation when a client becomes violent and is in danger of harming him- or herself, the nurse may apply restraints and then immediately obtain an order from the physician.

 Copyright 2002 by Delmar, a division of Thomson Learning The law mandates that the use of restraints or seclusion must have a physician order. The nurse is legally accountable for the client in restraints or seclusion.

 Copyright 2002 by Delmar, a division of Thomson Learning Invasion of Privacy and Confidentiality  State laws respect the privilege doctrine guaranteeing that no one will reveal confidential information without the client’s permission.  The client’s permission is needed before disclosing any information regarding the client, going through the client’s personal belongings, performing procedures, and photographing the client.

 Copyright 2002 by Delmar, a division of Thomson Learning Defamation  Defamation occurs when information is communicated to a third party that causes damage to someone else’s reputation, either in writing (libel) or verbally (slander).

 Copyright 2002 by Delmar, a division of Thomson Learning Fraud  Fraud results from a deliberate deception intended to produce unlawful gain.  Examples of fraud include obtaining and using false credentials, falsifying medical records, and illegal billing practices.  The Federal False Claims Act protects an employee who experiences any type of retaliation for reporting fraudulent practices.

 Copyright 2002 by Delmar, a division of Thomson Learning Safety  There are several areas regarding client safety in which nurses are at legal risk Failure to monitor client status Medication errors Falls Use of restraints Use of medical equipment

 Copyright 2002 by Delmar, a division of Thomson Learning Understaffing  Understaffing refers to failure of a facility to provide a sufficient number of professional staff to meet client needs.  Reassignment (floating): Floating is an acceptable, legal practice. Legally, nurses cannot refuse to float. Nurses who are required to float should receive orientation before reassignment.

 Copyright 2002 by Delmar, a division of Thomson Learning Executing Prescribed Orders  In accordance with nurse practice acts, nurses are obligated to follow the orders of a licensed physician or other designated health care provider unless the orders would result in client harm.  The nurse has a legal responsibility to the client to ensure that the order is clear and appropriate to the client’s treatment.

 Copyright 2002 by Delmar, a division of Thomson Learning The Impaired Nurse  An impaired nurse is habitually intemperate or is addicted to the use of alcohol or habit-forming drugs.  If a nurse suspects a co-worker is abusing chemicals, the nurse has a duty to report the individual to nursing administration who, in turn, notifies the board of nursing.

 Copyright 2002 by Delmar, a division of Thomson Learning Legal Responsibilities and Roles of Professional Nurses  Provider of service  Expert witness  Forensic specialist  Reporting responsibilities

 Copyright 2002 by Delmar, a division of Thomson Learning Legal Responsibilities of Students  Nursing students must act as reasonably prudent persons, equivalent with education and experience, when performing nursing duties.  When employed as caregivers, nursing students must perform only those tasks that they are competent to perform, as stated in their job description.

 Copyright 2002 by Delmar, a division of Thomson Learning Legal Safeguards for Nursing Practice  Institutional policies  Professional liability insurance  Risk management programs  Incident reports  Client education  Advance directives

 Copyright 2002 by Delmar, a division of Thomson Learning Legislation Affecting Nursing  Abortion  The Americans with Disabilities Act  Good Samaritan acts  National Practitioner Data Bank  Occupational Safety and Health Act

 Copyright 2002 by Delmar, a division of Thomson Learning  Do not resuscitate orders  Euthanasia  Wills  Pronouncement of death  Care of the deceased  Organ donation  Autopsies