Chapter 23: Legal Implications in Nursing Practice Flashcards
Legal guidelines nurses follow come from
Statutory Law
Regulatory Law
Common Law
Statutory Law
Created by State legislatures and the U.S. Congress
Example of State Statute
Nursing Practice Acts
Example of Federal Statute
Americans with Disabilities Act (ADA)
Read Darling v Charleston Community Memorial hospital
p. 298
Nursing Practice Acts
Describes and defines the legal boundaries of nursing practice within each state.
Defines Scope of Practice, Expanded nursing roles, Sets education requirements, and distinguishes between nursing and medical practice.
All nurses are responsible for knowing the
provisions of the Nurse Practice Act in the state of which they work and the rules and regulations enacted by the State Board of Nursing and other regulatory administrative bodies.
The Joint Commission requires all accredited hospitals to have
written policy and procedures detailing internal standards of care (which must conform to state and federal laws and community standards).
They need to be accessible on all nursing units.
Regulatory Law
(administrative law) Decisions made by administrative bodies such as State Boards of Nursing.
(i.e mandatory reporting of incompetent or unethical nursing conduct to the State Board of Nursing)
Common Law
Made of judicial decisions in courts of law when individual legal cases are decided.
Examples of Common Law: Informed consent, a patients right to refuse treatment.
Statutory Law is either
civil or criminal
Civil Law
protect the rights of individuals within our society and provide for fair and equitable treatment.
Example of a civil law violation for nurses is malpractice or negligence.
Penalty for civil law violations are in the form of
monetary damages or public service.
Criminal Law
protects society as a whole and provides punishment for crimes defined by municipal, state, and federal legislation.
Two classifications of crimes
misdemeanor and felony
Misdemeanor
Less serious and has a penalty of a fine or imprisonment for less than 1 year. Causes injury but not serious harm.
Felony
Serious in nature that has a penalty of imprisonment for longer than 1 year or even death.
Inflicts serious harm.
Examples of criminal conduct in nursing
misuse of a controlled substance
Nursing Standards are described in
In federal and state laws regulating hospitals and health care institutions
The Nurse Practice Act of every state
By professional and specialty nursing organizations
By the policies and procedures established in each health care facility
In a malpractice lawsuit
a nurse’s actual conduct is compared to nursing standards of care to determine whether the nurse acted as any reasonable prudent nurse would act under the same or similar circumstances
Proof of Negligence
- The nurse owed a duty to the patient
- The nurse did not carry out the duty (or performed it poorly)-Breach of Duty
- The patient was injured
- The patient’s injury resulted in measureable compensable damages:
Medical bills, lost wages
Pain and suffering
Perinatal damages
Wrongful death damages - The patient’s injury was caused by the nurse’s failure to carry out that duty.
Patient Protection and Affordable Care Act is characterized four themes in nursing practice:
- consumer rights and protections
- affordable health care coverage
- increased access to care
- stronger medicare to improve care of vulnerable populations
Affordable Care Act
Prohibits patients from being denied health care coverage due to prior existing conditions.
Anyone under 26 years of age may continue coverage under their parent’s plan.
Intended Benefits of the Affordable Care Act
- Provide tax credits
- Increase insurance company accountability for premiums and rate increases
- Increase the number of choices patients have to select an insurer.
- Increase access to health care.
- Ability to receive preventative services (for ex. screening for cancer, blood pressure, and diabetes) without having to pay copays or deductibles)
Americans with Disabilities Act
Promotes the rights of people with physical or mental disabilities.
Americans with Disabilities Act ensures
equal opportunities in: employment, state and government services; public accommodations, commercial facilities and transportation.
The Americans with Disabilities Act is the most extensive law regarding
treatment of health care workers and patients affected with the HIV/AIDS virus: protects privacy, and health care workers cannot discriminate against HIV patients.
Emergency Medical Treatment and Active Labor Act
safeguards patients against being transferred from private to public hospitals without appropriate screening and stabilization
Emergency Medical Treatment and Active Labor Act hospitals must
perform a medical screening and if an emergency condition exists the hospital must stabilize the patient before transfer (unless patient requests transfer or if a health care provider certifies that the benefits of transfer outweigh the risks)
Mental Health Parity Act
forbids insurance companies from placing lifetime or annual limits on mental health coverage that are less generous than those placed on medical or surgical coverage.
Admission to a mental health unit may be
voluntary or involuntary.
Involuntary detention must be
filed with the court with in 96 hours.
If the patient is deemed a harm to self and others, may be detained for up to 21 more days -> must be kept under supervision.
Documentation of precautions against suicide is essential.
The Patient Self-Determination Act
requires health care institutions to provide written information to patients concerning their rights to make decisions including the right to refuse and formulate advance directives (Autonomy)
The medical record needs to be documented whether or not
the patient has an advanced directive
To enforce an advanced directive or durable power of attorney, the patient must be
legally incompetent or lack capacity to make sound decisions.
A judge makes the determination of legal competency.
LIP and family make determination of decisional capacity.
Advanced Directives include
living wills, health care proxies, and durable powers of attorney for health care
Living will
written documents that direct patient wishes for treatment in the event of terminal illness or condition
Health Care Proxy or Durable Power of Attorney
Legal documents designating a person to make healthcare decisions when incapacitation of the patient occurs.
The ethical doctrine of autonomy ensures the patient the right to refuse medical treatment.
Decisions are weighted by the
the patient’s interest with the interest of the state in protecting life, preserving medical ethics, preventing suicide, and protecting innocent third parties (children).
Do Not Resuscitate or “No Code”
documentation must include that a health care provider has consulted with the patient and/or family
IF the patient does not have a DNR order,
providers must make every effort to revive the patient
CPR
is emergency treatment provided without patient consent in the absence of a DNR order
Uniform Anatomical Gift Act
Persons at least 18 years of age have the right to make anatomical donation.
Must be in writing with signature.
Laws mandate that at the time of admission to a hospital,
a qualified health care provider must determine if he/she is an organ or tissue donor
The National Organ Transplant Act of 1984
prohibits the purchase or sale of organs
protects the donor’s estate from liability from injury or damage that result from the use of the gift
Patients in End Stage Renal Disease are eligible for
Medicare coverage for kidney transplant
Health Insurance Portability and Accountability Act
provides rights to patients and protects employees.
protects individuals from losing health insurance when changing jobs by providing portability, provided they have had 12 months of continuous group health insurance coverage.
Health Insurance Portability and Accountability Act create patient rights to:
consent to the use and disclosure of their protected health information
to inspect and copy one’s medical record
to amend mistakes or incomplete information
Privacy
the right to keep personal information from being disclosed
Confidentiality
protection of private information that has been disclosed in healthcare settings
Health Information Technology Act
passed in conjunction with HIPPA to address new technology/social media and security breaches of PHI occurs.
Health Information Technology Act ensures
No patient information will enter social media
Protected data is not disclosed other than is permitted by the patient.
Nurses in violation of state and federal regulations for restraints may be charged with
abuse, battery or false imprisonment
According to TJC, restraints may be used
To ensure the safety of the patient or other patients
When less restrictive interventions are not successful
Only with the written order of a health care provider
Licensure
provides legal guidelines for protection of the public and permits people to offer special skills to the public.
All states use
NCLEX
Good Samaritan Laws
enacted by all states to encourage health care workers to assist in emergencies.
Good Samaritan Act of 1997
Must act within acceptable standards.
Immune from liability if acting without gross negligence.
Must act within your scope of training and level of expertise.
Once committed to caring for a patient must remain with patient until transfer of care to responsible party.
Leaving a patient before hand-off may be considered
abandonment
Public Health Laws include
Reporting suspected abuse and neglect (child, elder, domestic)
Reporting communicable diseases
Ensuring required immunizations
Reporting other health-related issues to protect public health
The purpose of Public Health Laws include
Protection of public health
Advocating for the rights of people
Regulating health care and health care financing
Ensuring professional accountability for care provided.
Two standards for determination of death
- Cardiopulmonary Standard
2. The Whole-Brain Standard
The Cardiopulmonary Standard
requires irreversible cessation of circulatory and respiratory functions
The Whole-Brain Standard
requires irreversible cessation of all functions of the entire brain including the brainstem
The reason for development of the two standards of determination of death is to
facilitate recovery of organs for transplantation
Autopsy may be requested by
the patient or patient’s family per institutional policy or by law.
Death under suspicious circumstances or death within 24 hours of admission to a health care facility may require
a postmortem examination without family consent.
When death is not subject to a medical examiner review, consent must be obtained.
The priority for giving consent:
The patient in writing before death
Durable power of attorney
Surviving spouse
Surviving child, parent or sibling
Oregon Death with Dignity Act 1994
first statute permitting physician or health care provider-assisted suicide
must be a competent individual with a terminal disease
Terminal disease
“incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within 6 months”.
In regards to physician assisted suicide, the American Nurses Association (ANA) holds the position that
participation in assisted suicide violates the code of ethics of nurses.
In regards to physician assisted suicide, the American Association of Colleges of nursing supports
the mandate to ensure an individual a peaceful end of life.
Tort
a civil wrong against a person or property
Intentional torts
willful acts that violate another’s rights (assault battery, false imprisonment)
Quasi-Intentional torts
Acts in which intent is lacking but purposeful action and direct causation occur (invasion of privacy, defamation of character)
Unintentional tort
person caused an accident unintentionally but usually because of carelessness.
includes negligence and malpractice.
Assault
An intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact. No physical contact is necessary.
Battery
A criminal offense involving unlawful (unwanted) physical contact
False Imprisonment
restraint of a person in a bounded area without justification or consent
Invasion of Privacy
Free from unwanted intrusion into his/her private affairs.
The release of a patient’s medical information to an unauthorized person.
A patient must authorize the release of information and designate who the health care information may be released to.
Degamation of Character
The publication of false statements (written, broadcast or otherwise) that result in damage to a person’s reputation
Slander
the verbal assault on someone’s character
Libel
The written defamation of character (charting false entries in the medical record)
Negligence
Conduct that falls below the acceptable standard of care. Conduct in which an ordinarily careful and prudent person would use under the same or similar circumstances. (hanging an IV medication on the wrong patient).
Malpractice
“Professional Negligence”. When nursing care falls below a standard of care, nursing malpractice results.
Necessary criteria to establish nursing malpractice:
The nurse owed a duty to the patient
The nurse did not carry out that duty
The patient was injured
The injury was a direct result of the nurses failure to carry out the duty
Consent is required for
for all routine treatment, hazardous procedures (surgery), treatment programs such as chemotherapy, and research.
Permits are signed when?
before the commencement of procedures
If a patient is deaf, illiterate, or speaks a foreign language,
official interpreters must be utilized to explain the terms of consent.
Family members are not official interpreters and may not be used
Informed Consent
The patients agreement to allow a procedure including full disclosure of the risks, benefits, alternatives, and consequences of refusal.
Informed consent is the duty of the
LIP
Elements of an Informed Consent
- The patient receives a brief, complete explanation of the procedure or treatment
- The patient receives the names and qualifications of the persons performing and assisting in the procedure
- The patient receives a description of the serious harm, including death, that may occur as result of the procedure
- The patient receives information on the anticipated pain and/or discomfort
- The patient receives an explanation of alternative therapies and risk of doing nothing
- The patient knows he/she has the right to refuse
- The patient may refuse even after the procedure has begun
The nurse’s signature witnessing consent means
The patient voluntarily gave consent
The signature is authentic
The patient appears to be competent to give consent
Nursing students cannot and should not be responsible for or asked to
witness consent forms
In an emergency when the patient is incapacitated and there is no one to give consent a health care provider may
perform a procedure to benefit the patient or to save a life without liability.
Roe v Wade 1973
The U.S. Supreme court ruled that there is a fundamental right to privacy which includes a woman’s decision to have an abortion
Roe v Wade 1973 court ruled that
- During the first trimester a woman could end her pregnancy without state regulation
- During the second trimester the state has an interest in protecting the maternal health and enforces regulations regarding the person performing the abortion and the facility.
- During the third trimester when the fetus becomes viable, the state’s interest is to protect the fetus, thus an abortion is allowed only to save the mother.
Malpractice insurance
Contract between a nurse and an insurance company.
Provides both malpractice and professional defense coverage for individual nurses (there is also student nurse insurance) when they are involve in a lawsuit
Hospital coverage of nurses generally only covers if the nurse is
working within their scope of practice/employment
In cases of malpractice, the state board of nursing will
conduct their own investigation separate from the malpractice case of the hospital
It is important to note that any insurance coverage by your health care agency of employment generally
protects the agency and not the nurse!
Ways to Avoid Malpractice
Follow standards of care
Give competent health care
Communicate with other health care providers
Establish good rapport with your patients
Document assessments and interventions
Evaluate fully (Follow the Nursing Process)
Know the current nursing literature for your expertise
Follow the policies and procedures of the institution where you work
Be sensitive to common sources of patient injury such as falls and medication errors.
Explain tests and treatments to your patient.
Assignment Issues
State and Federal standards require institutions to have guidelines for determining staffing ratios (# of nurses to # of patients).
Short Staffing
If nurses are asked to care for too many patients or they feel their assignment is unsafe due to patient acuity, attention should be brought to the nursing supervisor.
Protesting short staffing
does not relieve nurses of responsibility if a patient suffers an injury due to inattention, however it shows the nurses were attempting to act reasonably.
Abandonment
Do not walk out when staffing is inadequate. You may be charged with abandonment.
Floating
Nurses may be asked to “float” to another nursing unit other than where they normally practice due to census or need.
Nurses who float needs to
notify the supervisor of any lack of experience in the designated unit
be oriented to the general workings of the new unit
Risk Management
The organizations system of ensuring appropriate nursing care by identifying potential hazards and eliminating them before harm occurs.
Risk Management includes
Identifying possible risks
Analyzing the risks
Acting to reduce the risks
Evaluation the steps taken
Occurrence (Incident) Report
Tool to examine and evaluate untoward occurrences or “near misses”.
Falls, medication errors and patient complaints
Never record in the patient’s chart
that you filled out an incident report.
When a lawsuit is filed, very often the nurses’ notes are
the first thing an attorney reviews.
