Legal Flashcards
Laws that regulate relations of individuals with the government or institutions
Public Law
Rights established by the US constitution.
- i.e. the right to privacy
Constitutional Law
Written laws by federal/state legislature.
- i.e. NPA, HIPAA
Statutory Law
Laws created by governmental agencies that have authority to establish regulations to protect the public.
- i.e. OSHA, SBON laws
Administrative Law
System of laws concerned with the punishment of those who commit crimes.
Criminal Law
Behavior defined by congress or state as deserving of punishment.
- Conviction required evidence defendant is guilty beyond shadow of doubt.
Crime
Serious crimes that result in prison > 1yr
- Can lose voting rights, gun rights, nursing license
Felony Crime
Less serious crimes resulting in fines or jail < 1yr
- Can impact ability to obtain/maintain nursing license
- (i.e. battery, possession, petty theft, disorderly, OWI)
Misdemeanor Crime
Focuses on the rights, responsibility, and legal relationships between private citizens
- AKA civil law
- typically involves compensation to injured party
- requires only certainty of guilt >50%
Private law
Act of commission or omission that gives rise to injury or harm to another and amounts to civil wrong for which courts impose liability.
Tort
Wrongs that the defendant knew (or should have) would be caused by their actions.
Intentional Tort
When defendant’s actions/inactions were unreasonably unsafe.
Unintentional Tort
What is Assault & Battery? Is this considered an intentional or unintentional tort?
Assault is intentional apprehension of harm or offensive contact.
Battery is intentional causation of harmful/offensive contact without consent.
INTENTIONAL!!
- physical harm does not need to occur
- nurses must obtain consent for hands on care
What is False Imprisonment? Is this considered an intentional or unintentional tort?
The act of restraining another person or causing someone to be in a contained, confined, or bounded area.
INTENTIONAL!!
- Nurses must follow agency policy strictly
What can be considered false imprisonment?
Use of physical restraints, chemical restraints, or verbal threats to keep patient in inpatient environment.
What is a Breach of Privacy/Confidentiality? Is this considered an intentional or unintentional tort?
Violation of a patient’s PHI. Patient has a right to be kept private under HIPAA.
INTENTIONAL
- Violation may r/i fines from $100-$1.5million, criminal penalties if for malicious or personal gain
- ONLY share info with HC members actively caring for them
Individually identifiable health information including demogrpahic data that relates to patient’s past, present, or future physical or mental health condition, the provision of their healthcare, and past/present/future payment for HC.
Protected Health Information (PHI)
What are the 2 main sections of HIPAA?
The Privacy Rule: use and disclosure of pt health information.
The Security Rule: sets national standards for protecting the confidentiality, integrity, and availability of electronic PHI.
What is Fraud? Is this considered an intentional or unintentional tort?
When one is deceived for personal gain.
INTENTIONAL!
- financial exploitation, documenting interventions not performed, altering documentation to cover errors, etc.
- can result in criminal and civil charges leading to suspension and revocation of license
What is Slander & Libel? Is this considered an intentional or unintentional tort?
Defamation of character includes making negative, malicious, and false remarks about another to damage their reputation either spoken (slander) or written (libel).
INTENTIONAL!!
- communicate and document facts regarding patient care without defamation
What is Negligence? Is this considered an intentional or unintentional tort?
The failure to exercise the ordinary care a reasonable person would do in a similar circumstance.
UNINTENTIONAL!!
- acts of omission or commission
- risk of injury/damage or actual injury/damage
What is Malpractice? Is this considered an intentional or unintentional tort?
Professional misconduct or unreasonable lack of skill resulting in negligence performed by a professional with a license.
UNINTENTIONAL!!
- Some negligent actions almost always seen as malpractice because only the professional would be performing the action
- result of omission or commission
What are common reasons for malpractice?
Failure to follow standards of care, failure to use equipment responsibly, failure to document, communicate, and assess/monitor.
Any injury to a patient due to a healthcare professional failing to perform their duties according to acceptable practices or standards, improper/unethical conduct, or unreasonable lack of skill by a professional.
Healthcare / Medical Malpractice
What are the 6 elements of Malpractice?
Duty
Breach of Duty
Forseeability
Causation
Injury/Harm
Damage
Malpractice Elements: Duty
Nurse accepts responsibility for patient and establishes nurse-patient relationship.
- typically during handoff report
- existence of duty = valid employment
- nature of duty = standards of care are minimum requirements
- volunteer services outside of work
Protects against negligence claims to those who aid to medical emergencies outside of clinical environments.
- WI provides immunity for civil liability for acts/omissions
Good Samaritan Law
Malpractice Elements: Breach of Duty
Failing to comply with the duty of reasonable care.
Must provide:
- RN deviated from acceptable standards
- How a reasonably prudent nurse would act
- Must claim RN deviated from how a prudent nurse would
- Relation to omission or commission
- EXPERT WITNESS REQUIRED
What is an Expert Witness?
Nurse expert must have relevant experience, skill, and knowledge.
- Reviews materials (NPA, guidelines, etcs)
- Deemed qualified based on state requirements
How can one prevent a Breach of Duty?
- Adhering to policies & procedures & NPA standards
- Avoid workarounds
- Document accurate assessments & event sequence
- Maintain competence
- Use properly trained interpreters and document their names
- Maintain professional boundaries (avoid personal relationships)
Malpractice Elements: Foreseeability
Certain events may reasonably be expected to cause specific results ~ nurse must have prior knowledge/info that failure to meet a standard may result in harm.
- What is foreseeable at the occurrence, not when brought to court
- Comes before CAUSE
Malpractice Elements: Causation
The nurse’s actions/lack of actions directly caused the patient’s harm ~ damages were caused by the breach.
-Direct cause-effect
- Requires testimony FROM A PHYSICIAN because it requires medical dx
- MUST be proven by a preponderance of the evidence
- Testimony must = medical certainty (most difficult to prove)
How can a nurse prevent causation?
- Follow the chain of command when concerned about unclear/unsafe orders
- Document who is notified and time
- Document observations to justify decisions
- Variance charting (out of WDL) doesn’t provide sufficient evidence
- Adhere to agency P&P ~ failure to do so = foreseeable harm
Malpractice Element: Injury/Harm
Patient must incur some physical, economic, or emotional harm
- Pain & suffering compensation allowed when accompanied by physical injury
Physical Injury/Harm includes:
Loss of function
Disfigurement
Physical/mental impairment
Exacerbation of Condition
Need for additional care
Death
Economic Injury/Harm includes:
Loss of wages
Additional medical expenses
Rehabilitation
Durable medical expenses
Need to change one’s home
Loss of earning capacity
Need to hire people to do things they no longer can do
Loss of financial support
Emotional Injury/Harm includes:
Psychological damage
emotional distress
Mental Suffering
Malpractice Elements: Damages
Must show proof that breach of duty caused the actual harm/injury resulting in damages
- future or immediate costs
- determining the amount may require expert witness testimony
Actual damages that can be quantified and restore plaintiff to position before the injury
- Compensatory damages calculated to replace what was lost
Economic Damages
Subjective damages that are more difficult to quantify
- i.e. emotional distress, pain/suffering, reputation damages, loss of parental guidance or companionship
Noneconomic Damages
Awards unrelated to injury but intended to punish the defendant or deter similar conduct
- Difficult in professional malpractice because they must be related to outrageous conduct (gross negligence, recklessness, willful action, fraud)
Punitive Damages
Allowing other parties to be held liable for certain causes of negligence.
Vicarious Liability
What makes employers accountable and held liable for their employee’s negligence, and why?
The Doctrine of Respondeat Superior
The employee wouldn’t be in a position unless hired and injured would suffer a double wrong if employee was unable to pay damages
The Doctrine of Respondeat Superior does NOT protect nurses from liability. Why?
The patient has the right to sue both employer AND the nurse.
The institution has the right to countersue RN for damages.
Results from a civil lawsuit to compensate patients allegedly injured or damaged due to professional negligence related to one’s clinical practice & professional responsibility.
Professional Liability
This administrative governing body for each state is responsible for suspending/revoking nursing licenses.
- the civil justice system is NOT responsible
SBON
What is the WI SBON responsible for?
Governing practice according to NPA.
Licensure, education, legislation, and discipline.
- Nurse license is a contract between the RN and the state to follow NPA; deviation = breach of contract, r/i limitations or revocation of license
Board licensing complaint directly related to RN’s clinical responsibilities or nonclinical behaviors (substance abuse, unprofessional behavior, etc.)
Allegation
- anyone can file them, and can be filed anonymously
What is the process of investigating an allegation?
- Investigators use various methods to determine facts, compile pertinent facts r/t event, and circumstances surrounding complaint
- Recommended that nurses consult an attorney before responding to SBON within their deadline (whatever is shared will be provided to prosecution & SBON)
- After investigation, RN should have lawyer present at proceedings
- Formal hearing if enough evidence & discipline proposed (similar to civil trial )
- All or some SBON present
- Outcome is ruling by administrative law judge & SBON
Disciplinary Actions: Reprimand
Public warning for violation
Disciplinary Actions: Limitation
Conditions/requirement imposed upon license, scope, or both
Disciplinary Actions: Suspension
License is completely/absolutely withdrawn & withheld for a period of time.
(includes all rights, privileges, and authority in profession)
Disciplinary Action: Revocation
License completely & absolutely terminated and all rights, privileges, and authority revoked
Nondisciplinary Action: Administrative Warning
Issues if violation is minor or first occurrence and warning will protect the public
- Issuance is public, reason for it is not!
Nondisciplinary Action: Remedial Education Order
Issued when reason to believe that the deficiency can be corrected with education while protecting the public
What are some frequent allegations related to professional conduct?
- Drug diversion/substance abuse
- Professional misconduct
- Reciprocal actions
- Med wastage errors
What are some frequent allegations related to scope of practice?
- Failure to maintain minimum standard
- Provision of services beyond scope
What are some frequent allegations related to documentation?
Over half in 2020 were related to fraudulent or falsified patient care or billing records.
Maintaining timely/accurate doc is a professional responsibility
State laws specific to nursing practice, including the NPA, that aims to protect the public from unsafe nurses by ensuring minimum levels of performance.
WI CHAPTER 441
What is the purpose of WI CHP. 441?
- Protecting the public
- Enforcing NPA
- Establish/enforce licensure
- Oversee & ensure safe practices
- Develop standards, policies, administration rules & regulations
Laws enacted by the state and enforced by the SBON; define functions of each nursing category/title allowed to be used.
Nurse Practice Act
What is the NPA responsible for?
Setting qualifications for license, scope of practice, standards of practice, behaviors of misconduct, actions that will happen if laws not followed, disciplinary actions & definitions, penalties and license revocation.
Licensure only ensures entry-level competence. What does entry-level competence include?
- Development - education including HS diploma/GED and diploma from an accredited school of nursing.
- Assessment - passes NCLEX RN exam
- Conduct - background check (no misdemeanor r/t nursing, no felonies), functional abilities
What are nurses responsible for self-reporting?
Criminal convictions within 48h of judgment. Failure to report to SBON results in the board determining if r/t nursing practice.
Must self-report chemical dependencies.
Holding a license in your compact state but practicing in another compact state.
COMPACT license
- must follow YOUR STATE NPA
- WI has compact with 25 other states
What are physician responsibilities with informed consent?
Providing information and obtaining the consent.
What are RN responsibilities with informed consent?
Provide/obtain written/verbal consent for nursing cares.
Verify presence of valid, signed IC before procedure.
Request provider to return for clarification if patient doesn’t have a full, solid understanding.
Elements of Informed Consent: Disclosure
Patient is fully informed on procedure, including:
- Risks & benefits
- Alternatives
- No guarantees to resolve problem
- Name of who’s performing
- Statement patient may withdraw consent at anytime
Elements of Informed Consent: Comprehension
Patient able to repeat IN OWN WORDS what they are consenting to. All questions are answered and information is given in terms they can understand.
Elements of Informed Consent: Competence/Capacity
Functional determination if patient is/is not capeable of making medical decisions in given situation.
- Outside of RN scope to formally assess
- Typically 2 providers determined if incapacitated
- POA takes over or legal system appoints guardian
- Legal capacity = adults 18+ able to understand
When will acceptions possibly be made for legal capacity when providing informed consent?
Emancipated minors, minor seeking treatment for substance abuse or communicable disease, pregnant minors
Elements of Informed Consent: Voluntariness
Not coerced by fraud, deceit, or duress but signed voluntarily.
- Patient may refuse (informed refusal) but must clearly understand consequences and HCP is protected if they refuse
Written directions recognized under state law relating to the provision of healthcare when the patient becomes incapacitated.
Advanced Directives
Federal law that requires HCO to offer written info that advises them to make decisions concerning their medical care including the right to accept or refuse treatment and right to formulate their own advanced directives.
Patient Self-Determination Act
What are some considerations pertaining to advanced directives?
- Absence may result in court asserting unqualified interest in preserving life over constitutionally protected interests of individual
- AD vary by state; many place restrictions on who can serve as witness, follow state-specific documents to ensure legally bound
- Do not require an attorney to complete
- Should review/update q10-15y
Who CAN NOT witness an advanced directive?
- Relative by blood, marriage, or adoption
- Someone directly financially responsible for your healthcare
- Persons who are entitled to claim your estate
- ANY healthcare professional (or an employee of) providing care for you at the time the document is signed
Form of advanced directive; patient identified treatments they will accept and refuse if they become incapacitated.
- Goes into effect WHEN patient meets specific medical criteria according to 2 providers (close to death or persistent vegetative state)
- Often life-sustaining measures (CPR, vent, intubation, tube feeding)
Living Will
Form of advanced directive; identified person chosen to speak on patient’s behalf if patient becomes incapacitated.
- Wide range of healthcare wishes
- Typically i.d. an additional person if POA is unable/unwilling
- Based on will, conversations, or beliefs pt would want
- NOT a financial, just HC
Durable Power of Attorney for Healthcare
When does a DPOAHC become “activated”?
When two providers determine the patient is incapacitated/in a persistent vegetative state.
When an MD determines that harm will occur if treatment is not initiated before consent is obtained.
- Temporarily obtained by telephone from parent/guardian or other patient
- Requires TWO MD signatures
- Document verbal consent & details explained to parent/guardian
- Must obtain written consent within TEN DAYS
Emergency Doctrine
Set of medical orders for life-sustaining treatment & states what kind of treatments the patient wants.
- Signed by doctor and patient
- Identifies specific treatments they want to receive and avoid
- For patients with SERIOUS, LIFE-LIMITING or TERMINAL illness
- More options than a DNR
- Does NOT replace advanced directives
Physician Orders for Life-Sustaining Treatment (POLST)
When can restraints be applied without an order?
In emergencies where treat to safety is imminent. Not considered false imprisonment when preventing pt to leave who is on emergency hold.
ORDER MUST BE OBTAINED IMMEDIATELY AFTER
Clearly document patient behavior and timing
What should a restraint order and documentation include?
The order should include the type of restraint used, indication for use, site of application, duration, and when the order expires (24h MAX).
Documentation should include all alternatives attempted, reason, timing, initial placement, education, circulation checks, ROM, and removal per policy.
Nurses must carry out ALL MD orders unless:
A reasonable person would anticipate it could cause harm.
- Must question orders contrary to standard practice (failure to do some may r/i liability)
- Refuse orders if RN thinks it would put pt in danger
- Document EVERYTHING and report to chain of command
Internal document of HCO used for quality improvement that is completed if the standard of practice breached or unusual incident occurs.
Incident Reports
What are some important considerations related to incident reports?
- Goal is to prevent recurrence (not to discipline)
- NOT discoverable in litigation
- Complete ASAP
- Objective data ONLY (factual observations, only what you SAW/assessed, put in quotes what you heard, do NOT speculate about who caused it/what occurred)
- DO NOT REFER TO IR IN CHARTING (do not record report was completed)
- RISK MANAGEMENT document NOT part of patient record
What are the responsibilities of Risk Management?
- Identify and correct problems contributing to issues in patient care or employee injury
- Identify underlying issues with just culture mindset
- Review incident reports and investigate sentinel events
- Focus on correcting faulty equipment, employee training, staffing, patient complaints
- Focus is on QI and protecting HCO from financial liability
How do accreditation agencies assess HCOs staffing?
Accreditation standards MANDATE hospitals to provide adequate staffing with qualified personnel.
- # of staff and legal status
- Courts determining if understaffing existed on individual basis
- SOME states mandate fixed ratios
- RN Safe Staffing Act requires reporting of staffing info
What should managers and nurses consider when floating to other units?
Managers should consider staff expertise, pt care delivery systems, and patient care requirements. Floating to uncertainty = liable NM.
Should be comparable to own unit.
Float if required BUT be clear about what you’re trained for and offer help but don’t take on full assignment/accountability if you’re not ready/qualified.
Why should RNs consider getting their own malpractice insurance? What is the downside of RNs having MP insurance?
Employer provided insurance primarily protects the HCO & may not protect RNs in instances like failure to follow P/P or operating outside scope.
- HCO can countersue to recoup financial damages
- Personal RN insurance provides direction of attorney and often covers lost ages. It’s recommended by ANA.
Drawback is that it may ENTICE being sued as it can be seen as another avenue to compensation for the plaintiff.
Maintaining your competence is the BEST way to prevent legal complications in nursing. How can this be done?
- Respecting legal boundaries & follow NPA
- Follow agency P/P
- Own personal strengths/weakness (seek opp. for growth)
- Evaluate proposed assignments (floating)
- Keep current in nursing knowledge/skill
- Respect patient rights & develop rapport
- Appropriately execute MD orders
- Assess/monitor patients per policy or as condition warrants
- Develop/maintain good interpersonal communication skills
