1. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Legal and Legislative Issues

2. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins The primary purpose of law and legislation is to protect the patient and the nurse.

3. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Types of Law Criminal law Civil law Administrative law

4. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Two Types of Negligence Ordinary negligence Professional negligence (also called malpractice)

5. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Nurses Are at Increased Legal Liability in the 21 st Century Owing to: More authority and independence in decision making. Increased legal accountability for decision making. Doing more things that used to be in the realm of medical practice. Making more money. More of them carrying malpractice insurance.

6. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Nurses need malpractice insurance because of their expanded roles, but they also incur a greater likelihood of being sued if they have malpractice insurance, since injured parties will always seek damages from as many individuals with financial resources as possible. Need for Malpractice Insurance

7. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Standard of Care A minimal level of expertise that may be delivered to a patient The conduct of a reasonably prudent nurse in similar circumstances

8. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Malpractice The failure of a person with professional training to act in a reasonable and prudent manner—also called professional negligence.

9. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Five Components Necessary for Professional Negligence to Occur A standard of care is in place. (Nurse-patient relationship) There is a failure to meet the standard of care. Foreseeability of harm must exist. There must be a provable correlation between care and harm. Actual patient injury must occur.

10. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Being ignorant is not a justifiable excuse, but not having all the information in a situation may impede one’s ability to foresee harm. Professional Negligence

11. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Under Ordinary Circumstances: The question of whether a nurse acted with reasonable and prudent care is determined by the testimony of expert nursing witnesses.

12. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Being Sued for Malpractice “Just following physician orders” is NOT a defense for malpractice. Nurses have an independent responsibility to take appropriate steps to safeguard patients.

13. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Civil Cases (Typically Including Malpractice) One individual sues another monetarily to compensate for a perceived loss. Burden of proof required to be found guilty is a preponderance of the evidence.

14. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Legal Terms Stare decisis Liability Tort Respondeat superior Res ipsa loquitur Vicarious liability Product liability

15. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Stare Decisis Means “to let the decision stand” (to use precedents).

16. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Respondeat Superior Means “the master is responsible for the acts of his servants.”

17. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Res Ipsa Loquitur Means “the thing speaks for itself.” Harm is obviously the result of negligence.

18. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Intentional Torts Assault and battery False imprisonment Invasion of privacy Defamation of character

19. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins The use of physical restraints has led to claims of false imprisonment. False Imprisonment

20. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Frequent Causes of Claims Against Nurses Inadequate charting. Inadequate communication with physician or supervisors about changes in patient conditions. Leaving potentially harmful items within patient reach. Unattended patient falls. Inaccurate counting of operative instruments and sponges. Misidentifying patients for medications, surgeries, tests.

21. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins The Board of Registered Nursing Protects Citizens by: RN licensing Monitoring of RN educational standards RN continuing education Disciplining RNs

22. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins RN Licensure Boundaries for practice are defined in the Nurse Practice Act of each state. Remember that nursing licensure is a privilege and not a right. Since the first mandatory Nurse Practice Act passed in New York in 1938, nursing has been legislated, directed, and controlled to some extent.

23. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Nurse Practice Act The Nurse Practice Act is a legal instrument that defines what the functions of nursing shall be and sets standards for licensure. It grants a nurse the authority to carry out those functions. Each state has its own Nurse Practice Act, but all must be consistent with provisions or statutes established at the federal level.

24. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins NYS Nurse Practice Act The practice of the profession of nursing as a registered professional nurse is defined as diagnosing and treating human responses to actual or potential health problems through such services as casefinding, health teaching, health counseling, and provision of care supportive to or restorative of life and well- being, and executing medical regimens prescribed by a licensed physician, dentist or other licensed health care provider legally authorized under this title and in accordance with the commissioner's regulations. A nursing regimen shall be consistent with and shall not vary any existing medical regimen. NYS Education Law Article 139, Nursing

25. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Types of Consent Informed consent Implied consent Express consent

26. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Informed Consent Obtained only after the patient receives full disclosure of all pertinent information regarding the surgery or procedure and only if the patient understands the potential benefits and risks associated with doing so.

27. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Implied Consent Situations in which the patient presents needing care, usually an emergency situation and is unable to consent. The physician describes the circumstances in the medical record, indicates the patient is unable to sign and certifies that it is an emergency and the procedure must be done to protect the health of the patient. It usually requires that a second physician make an independent concurring judgment and documents that in the record.

28. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Express Consent Nurses seek expressed consent form the patient when witnessing a patient sign a standard consent form. The role of the nurse is to ensure that the patient t has received informed consent and if, not, seek remedy.

29. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Medical Records Although the patient owns the information in the medical record, the actual record belongs to the facility that originally made the record and is storing it.

30. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins The Patient Self-Determination Act (PSDA) (1991) Requires health care organizations that receive federal funding to provide education for staff and patients on issues concerning treatment and end-of-life issues.

31. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Health Insurance Portability and Accountability Act (HIPAA) of 1996 Protects the privacy of health information and improves the portability and continuity of health insurance coverage.

32. Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Good Samaritan Immunity Generally, a nurse is not liable for injury that occurs as a result of emergency treatment, provided that: Care is provided at the scene of the emergency. The care is not grossly negligent.