Ch 23 Flashcards
Constitutional Law
-derived from federal and state constitutions.
-For example, in the United States a constitutional right afforded to every citizen is the right to refuse treatment
-As a nurse, you must understand the rights of your patients to refuse treatment even when you may not agree with their decisions.
Statutory law
-derived from statutes passed by the U.S. Congress and state legislatures. These laws are either civil or criminal.
Civil laws
-protect the rights of individuals and provide for fair and equitable treatment when civil wrongs or violations occur.
Nurse practice acts
-civil state laws that define nursing and the standards nurses must meet within individual states.
-Your state’s nurse prac- tice act defines a nurse’s scope of practice, the educational requirements you must have to be a nurse, and how to obtain licensure as a nurse in your state.
-Nurse practice acts also distin- guish nursing from other health professions (e.g., medicine, therapists, and alternative medicine providers).
Criminal laws
-protect society and provide punishment for crimes, which are defined by municipal, state, and federal legislation
-Criminal mistreatment of adults who are vulnerable is an example of criminal statutory law.
-Criminal mistreatment is classified as either a misdemeanor or a felony offense depending on the severity of harm done to a patient who is vulnerable.
Administrative law
Or
Regulatory law
-more clearly defines expectations of civil and criminal laws.
-For example, a nurse practice act, as a civil statutory law, states that you have a duty to care for your patients.
-Regulations typically state that duty means you will observe, assess, diagnose, plan, intervene, and evaluate patient care. Providing current, evidence-based care is essential to meeting nursing statutory duty and regulations.
-Regulatory law also describes the process to report incompetent or unethical nursing conduct to the State Board of Nursing or Nursing Commission.
-A nurse who does not report unethical or incompetent conduct violates regulatory law. Nurses can appeal violations to the State Board of Nursing or the Nursing Commission.
Common law
-originates from decisions that were made in the absence of law.
-For example, the right to privacy is implied in the U.S. Constitution. Thus patient confidentiality originated as common law.
Case law
-describes decisions made in legal cases that were resolved in courts. After a case is presented to a judge or jury, there is a report of the issue, facts, findings, and subsequent decision that was made to resolve the issue.
scope of nursing practice
-defines nursing and reflects the values of the nursing profession.
Standards of nursing care
reflect the knowledge and skill ordinarily possessed and used by nurses to perform within the scope of practice
durable power of attorney for health care (DPAHC)
- Instructions regarding care before or during cardiac or respiratory arrest should be signed by either a physician or a nurse practitioner. -Unless otherwise specified by state law, the document should be treated as an order; it may direct whether to provide lifesaving measures such as cardiopulmonary resuscitation (CPR) or to provide comfort care only.
REFLECT NOW
You are caring for a patient who is terminally ill and has a “do not resuscitate” order, but the medical record does not have an entry regarding the physician’s discussion with the patient prior to writing the order. How would you respond if the patient has a cardiac arrest? How would your response differ if the patient were 8 versus 80 years old?
Restraints can be used when:
(1) only to ensure the physical safety of the patient or other patients, (2) when less restrictive interventions are unsuccessful, and (3) only on the written order of a health care provider
Nurse Practice Acts
Professional licensure defense
-expensive when nurses do not have insurance that covers the costs of keeping their licenses to practice
- Nurses often presume that either their personal or their employer’s malpractice insurance will include costs of defending and retaining their nursing license. In most instances this is not true.
-Pro- fessional licensure defense insurance is a contract between a nurse and an insurance company. When a complaint is made to a state board of nursing, an action is initiated that could result in a restriction, suspension, or revocation of the nurse’s license to practice.
-When a nurse specifically has professional licensure defense insurance, the nurse notifies the company.
Informed consent
- a patient’s agreement to have a medical procedure after receiving full disclosure of risks, benefits, alternatives, and consequences of refusal
-Key elements of informed consent include the following:
- The patient receives an explanation of the procedure or treatment.
- The patient receives the names and qualifications of people performing and assisting in the procedure.
- The patient receives a description of the serious harm, including death, that may occur as a result of the procedure and anticipated pain and/or discomfort.
- The patient receives an explanation of alternative therapies to the proposed procedure or treatment and the risks of doing nothing.
- The patient knows of the right to refuse the procedure or treatment
without discontinuing other supportive care. - The patient knows of the right to refuse the procedure or treatment even after the procedure has begun.
neglect
-a pattern of conduct by a person with a duty of care to provide services that maintain the physical and/or mental health of a child or vulnerable adult
-may also be a one-time act that is a clear and present danger to another’s health, welfare, or safety.
-Neglect does not usually require that a nurse inten- tionally acts to harm a patient; rather, the nurse knew or should have known that neglect would occur under the circumstances.
Patient Abandonment
-occurs when a nurse refuses to provide care for a patient after having established a patient-nurse relationship.
- Before having established that relationship, a nurse may refuse an assignment when (1) the nurse lacks the knowledge or skill to provide competent care; (2) care exceeding the nurse practice act is expected; (3) health of the nurse or the nurse’s unborn child is directly threatened by the type of assignment; (4) orientation to the unit has not been completed and safety is at risk; (5) the nurse clearly states and documents a conscien- tious objection on the basis of moral, ethical, or religious grounds; or (6) the nurse’s clinical judgment is impaired as a result of fatigue, resulting in a safety risk for the patient
nurse delegation
- nurse delegation means that an RN educates, observes, and verifies that a nonregistered nurse (e.g., LPN, nurse assistant, or assistive personnel) can do a specific task that is usu- ally completed by an RN
- The RN retains responsibility to communicate clearly and supervise care received by a patient and to periodically reassess whether nurse delegation continues to be appropriate
- Delegated tasks may include hygiene care, ambulation assistance, vital signs, or blood glucose monitoring. RNs can usually delegate administration of medications to LPNs.
Consider your role as a nursing student as it is defined in your state’s Nurse Practice Act. What are you required to do when working in a hospital? In your state, is it different if you are working in a skilled nursing facility or nursing home? What about if you are in a retirement center? What can you do in one place that you cannot do in another?
Torts
-civil wrongful acts or omissions of care made against a person or property.
-They are classified as intentional, quasi-intentional, or unintentional.
Intentional torts
-deliberate acts against a person or property that may result in both civil and criminal actions.
-Assault is an intentional threat toward another person that places the person in reasonable fear of harmful, imminent, or unwelcome contact.
-No actual contact is required for an assault to occur. For ex- ample, if a nurse threatens to give a patient an injection or to restrain a patient while having an x-ray taken when the patient has refused consent, the nurse’s action is considered an assault. Likewise, assault occurs when a patient threatens a nurse.
Battery
- any intentional offensive touching without consent or lawful justification
-The contact can be harmful to the patient and cause an injury, or it merely can be offensive to the patient’s personal dignity. In the example of a nurse threatening to give a patient an injection with- out the patient’s consent, if the nurse gives the injection, it is battery.
Quasi-intentional torts
-acts in which a person may not intend to cause harm to another but does.
-Typically, the person invades another’s privacy or in some way defames another’s character. Quasi-intentional torts are alleged when a person should have known that harm to another person could occur.
Defamation of character
-the publication of false statements that result in damage to a person’s reputation.
Slander
-occurs when one speaks falsely about another.
-For example, if a nurse tells people erroneously that a patient has gonorrhea and the disclosure affects the patient’s business, the nurse is liable for slander.
Libel
-the written defamation of character (e.g., charting false defamatory entries in a medical record)
Unintentional torts
-arise when a person is harmed and the person inflicting the harm knew, or should have known, that these actions were less than the accepted scope and standard of practice.
Negligence
- conduct that falls below the generally accepted stan- dard of care of a reasonably prudent person
-Anyone, including people not in the medical field, can be liable for negligence.
-Nurses are negligent when they had a duty of care that is breached and their patient is physically harmed.
Malpractice
- a type of negligence.
- A person being held liable for malpractice must be a professional.
- Certain criteria are necessary to establish nursing malpractice: (1) the nurse (defendant) owed a duty of care to the patient (plaintiff), (2) the nurse did not carry out or breached that duty, (3) the patient was injured as a result of the breach in duty, and (4) damages or remedies are allowed under state law to “make the person whole” in the eyes of the court.
BOX 23.3 Anatomy of a Lawsuit
standard of proof
- typically what a reasonably prudent nurse would do under similar circumstances in the geographical area in which the alleged breach occurred.
Malpractice insurance
-a contract between an insurance company and a nurse or employer.
-It is intended to cover costs incurred when a patient sues the employer and/or the nurse.
-Malpractice insurance provides for a defense of the nurse and the employer in a lawsuit.
BOX 23.4 Proof of Negligence
Risk management
-involves several components, including identifying possible risks, analyzing them, acting to reduce the risks, and evaluating the steps taken to reduce them
occurrence report or inci- dent report
- Occurrence reporting provides a database to determine deviations from standards of care, to identify corrective measures needed to prevent recurrence, and to alert risk management to a potential claim.
-Examples of an occurrence include patient or visitor falls or injury; failure to follow health care provider orders; a significant complaint by patient, family, health care provider, or other hospital department; an error in technique or procedure; and a malfunctioning device or product.
Building Competency in Quality Improvement You are a member of your unit’s task force focusing on quality improvement and reduction in never events. The chairperson explains to the task force that qual- ity improvement relates to data collection, evaluation, and improvement in patient outcomes. One of the nurses asks, “How can we reduce the number of occurrence reports being filed on the unit related to patient falls?” How would you respond? Building Competency in Quality Improvement You are a member of your unit’s task force focusing on quality improvement and reduction in never events. The chairperson explains to the task force that quality improvement relates to data collection, evaluation, and improvement in patient outcomes. One of the nurses asks, “How can we reduce the number of occurrence reports being filed on the unit related to patient falls?” How would you respond?
Summary
• Constitutional law gives patients the right to refuse treatment, and your state’s Nurse Practice Act, a statutory law, defines the scope of nursing practice and the standards you must meet within that state to ensure safe, evidence-based, and competent nursing practice.
• The scope and standards of nursing practice, created by various professional organizations and health care agencies, define nursing and reflect the responsibilities, knowledge, and skills ordinarily expected from nurses.
• Federal statutes are typically linked to Medicare and Medicaid reimbursement, are intended to enhance patient safety, and greatly influence nursing practice. For example, the Patient Self-Determination Act (PSDA) requires health care institutions to provide information to patients regarding their rights to make informed decisions about their care, including the right to create an advance directive.
• State health care acts outline which individuals may provide informed consent for a patient to have invasive procedures or to participate in a research study.
• Different states have different laws that affect care at the beginning and end of life that do not always align with nursing standards. For example, although some states have laws that allow assisted suicide, the American Nurses Association (ANA) believes that helping patients end their lives is against the nursing code of ethics.
• A variety of guidelines affect nursing practice in the workplace and address issues such as patient-to-nurse ratios, nursing assignments, delegation, and the supervision of nursing students in clinical agencies.
• Worsening pressure injuries, failure to contact the health care pro-vider as conditions change, and medication errors often trigger complaints of negligence or malpractice against nurses.
• When a nurse’s performance is questioned, the standard of proof in nursing is typically what a reasonably prudent nurse would do under similar circumstances in the geographical area in which the
alleged breach occurred.
• Risk-management, performance improvement (PI), and quality
improvement (QI) activities enhance patient safety and reduce a nurse’s legal risk by identifying potential safety issues, implementing actions to prevent patient harm, and evaluating the effects of these actions on patient outcomes.
• It is important to know your Nurse Practice Act, to implement and follow agency policies and procedures, to delegate care appropriately, and to follow staffing and delegation guidelines to reduce your legal risk when practicing nursing.
You are working in an outpatient clinic where you meet a 34-year-old married mother of two small children who is seeing the doctor for numbness and tingling in her right leg. Over the next 6 months, she has critically high glucose levels, she does not take her medication, and the provider is significantly concerned. She continues to have numbness and tingling that migrate from her left hip, leg, and foot. The physician orders scans of her leg and lower spine. Each scan is negative. She con- tinues to have pain and numbness and tingling in her neck, back, and legs. During her most recent visit, the provider ordered a scan of her thoracic spine and right knee. One week later, the patient e-mails the provider that although the knee scan was completed, no one has contacted her about the other scan. The nurse checks the record and responds, “My bad. I missed it. I’ll order it now.” The next day the patient unexpectedly appears at the clinic, where you observe her stag- gering at the desk and slurring her speech, asking to see you. You and the receptionist place her immediately into a wheelchair. After being assessed, she is admitted to the hospital, where she is diagnosed with slow bleeding into the spinal column. The patient has irreparable dam- age to the spine and will be quadriplegic for the remainder of her life.
• What standards of practice apply in this scenario? Does this situation
establish negligence? Specifically, what are the duty, the breach in
duty, the permanent harm, and damages in this case?
• What is the standard of proof that would be applied to this situation to determine whether the nurse is liable for the harm incurred by
this patient? Make a case for either side.
• Using your clinical judgment to guide you (see Chapter 15), iden-
tify which environmental and individual factors led to the poor patient outcome. Which assessment findings were missed or not reported? What actions could have been taken by the nurse or other health care providers that may have prevented this situation from happening?
A nurse is planning care for a patient going to surgery. Who is responsible for informing the patient about the surgery along with possible risks, complications, and benefits?
1. Family member
2. Surgeon
3. Nurse
4. Nurse manager
2
A woman has severe life-threatening injuries, is unresponsive, and is hemorrhaging following a car accident. The health care provider ordered 2 units of packed red blood cells to treat the woman’s anemia. The woman’s husband refuses to allow the nurse to give his wife the blood for religious reasons. What is the nurse’s responsibility?
1. Obtain a court order to give the blood.
2. Convince the husband to allow the nurse to give the blood.
3. Call security and have the husband removed from the hospital. 4. Gather more information about the wife’s preferences and determine whether the husband has her power of attorney for
health care.
4
A nurse sends a text message to the oncoming nurse that states,
“Mr. Kodro in room 3348-1 refused to take his sertraline hydro-chloride as ordered this morning because he said he was feeling better.” What should the oncoming nurse do? (Select all that apply.)
1. Add this information to the board hanging at the patient’s bedside.
2. Tell the nurse who sent the text that the text is a HIPAA violation.
3. Inform the nursing supervisor.
4. Forward the text to the charge nurse.
5. Thank the nurse for sending the information.
2.,3
Which of the following actions, if performed by an RN, could result
in both criminal and administrative law sanctions against the nurse? (Select all that apply.)
1. Reviewing the EHR of a family member who is a patient in the
same hospital on a different unit
2. Refusing to provide health care information to an older adult’s
child
3. Reporting suspected abuse and neglect of children
4. Applying physical restraints without a written order
5. Completing an occurrence report on the unit
1.,4.,
A nurse received a bedside report at the change of shift with the night-shift nurse and the patient. The nursing student assigned to the patient asks to review the patient’s medical record. The nurse lists patients’ medical diagnoses on the message boards in the patients’ rooms. Later in the day the nurse discusses the plan of care for a patient who is dying with the patient’s family. Which of these actions describes a violation of HIPAA?
1. Discussing patient conditions at the bedside at the change of shift
2. Allowing the nursing student to review the assigned patient’s chart before providing care during the clinical experience
3. Posting medical information about the patient on a message board in the patient’s room
4. Releasing patient information regarding terminal illness to family when the patient has given permission for information to be shared
3
A patient is in skeletal traction and has a plaster cast due to a fractured femur. The patient experiences decreased sensation and a cold feeling in the toes of the affected leg. The nurse observes that the patient’s toes have become pale and cold but forgets to document and report this to the health care provider because one of the nurse’s other patients experienced cardiac arrest at the same time. Two days later the patient in skeletal traction has an elevated temperature, and he is prepared for surgery to amputate the leg below the knee. Which of the following statements regarding a breach of duty apply to this situation? (Select all that apply.)
1. Failure to document a change in assessment data
2. Failure to provide discharge instructions
3. Failure to provide patient education about cast care
4. Failure to use proper medical equipment ordered for patient
monitoring
5. Failure to notify a health care provider about a change in the
patient’s condition
1.,5.,
A man who is homeless enters the emergency department seeking
health care. The health care provider indicates that the patient needs to be transferred to the city hospital for care before assessing the patient. This action is most likely a violation of which of the following laws?
1. Health Insurance Portability and Accountability Act (HIPAA)
2. Americans With Disabilities Act (ADA)
3. Patient Self-Determination Act (PSDA)
4. Emergency Medical Treatment and Active Labor Act (EMTALA)
4
A home health nurse notices significant bruising on a 2-year-old patient’s head, arms, abdomen, and legs. The patient’s mother describes the patient’s frequent falls. What is the best nursing action for the home health nurse to take?
1. Document her findings and treat the patient.
2. Instruct the mother on safe handling of a 2-year-old child.
3. Contact a child abuse hotline.
4. Discuss this story with a colleague.
3
Which of the following statements indicate that the new nursing graduate understands ways to remain involved professionally? (Select all that apply.)
1. “I am thinking about joining the health committee at my church.”
2. “I need to read newspapers, watch news broadcasts, and search
the Internet for information related to health.”
3. “I will join nursing committees at the hospital after I have completed orientation and better understand the issues affecting nursing.”
4. “Nurses do not have very much voice in legislation in Washington, DC, because of the nursing shortage.”
5. “I will go back to school as soon as I finish orientation.”
1.,2.,3.,
You are working on a patient care unit and observe several other nurses who are not following the agency’s policy when preparing and administering medications. When you ask them to explain why they are doing this, they state the new medication administration technology installed on the unit takes too much time to use, so they are using workarounds to get their patient medica- tions administered on time. Which is the best action to take first?
1. Discuss the situation with the nursing manager.
2. Call a colleague who works at another institution to talk about
the problem.
3. Look for a position on a different nursing unit.
4. Say nothing and begin your work.
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