Legal and Ethical standards Flashcards
What is the reason for legal requirements
- assure health, safety, welfare of public;
- protect integrity of profession
legal regulations are grounded in
each state’s nurse practice act
who inforces rules and regulations
board of nursing
Using ethical principles and virtues to maintain individual and institutional integrity will promote
patient/client well-being and will be consistent and compatible with the ethical and legal needs of the workplace setting
Obligation to practice in a legally safe manner
- each nurse is legally and professionally responsive for his or her actions;
- develop a personal risk management plan
Nurses should develop a personal risk management plan by
- understanding parameters of safe and effective practice;
- understanding healthcare team roles to practice within scope of practice;
- being clear and consistent verbal and written communication skills;
- maintaining/updating nursing skills and competencies;
- consider professional insurance
Legal standards
primary or individual accountability within a reasonable person standard;
- nurses are responsible and accountable for their actions;
Negligence
- failure to exercise the degree of care that a person of ordinary prudence would exercise under the same circumstances;
A claim of negligence requires that there be
a duty owed by one person to another, that the duty be breached, and that the breach causes an injury
Traditional standard of nursing care is defined by
degree of skill, care, and diligence exercised by nurses commensurate with the individual’s level
Care standards vary based on
- state nursing practice acts and regulations;
- institutional policies and procedures;
- codes of professional and ethical conduct;
- professional associations;
- case law
what defines the legal reasonable person standard
- job title
- job description;
- policies;
- procedures;
- professional codes of conduct;
- professional standards of nursing practice;
- ethics;
- occasional unwritten customary practice
Malpractice is covered under what law
tort law
Malpractice is
a dereliction from professional services resulting in injury, loss, or damages to the recipient of the services
malpractice relies on
the judgment that the professional has failed to perform according to the minimum reasonable standards of the preofession
What is tort
the injury or wrongful act for which a civil action is brought
Malpractice laws
- vary by state;
- controlled by statute, regulations, and case law
Negligence
the doing or not doing of an act, pursuant to a duty, that a reasonable person in the same or similar circumstances would do r not do and the acting or failing to act is the proximate cause of the injury to another person or to her property;
Malpractice
a negligent act, or failure to act, committed in teh course of professional performance;
General standards of conduct
- actions of reasonable professional in similar circumstances;
- ## primary/individual accountability for action;
General standards of conduct is defined by
- job description, including policies, procedures, professional codes of conduct and ethics, and unwritten customary practice
plaintiff
- individual and/or spouse, child, or estate, alleging a medical malpractice/negligence or wrongful death claim
Defendant
medical professional and/or hospital, medical group, orgnaization
Elements of a malpractice claim
- duty;
- breach of duty;
- proximate cause;
- damages;
duty requires
proven provider-patient relationship
what is breach of duty
the nurse had a duty to patient but care fell below the acceptable standard;
- standards set per diagnostic profile can be written or unwritten;
proximate cause
failure to provide care within the standard must be the proximate cause of the injury
example of proximate cause
administering a drug in error but without injury does not meet criteria for malpractice claim
damages requires
proof of harm
Caveat to duty
- can be established in workplace or informal setting;
How is duty different from good samaritan laws
- nurses may offer duty in emergency circumstances without liability;
- if a nurse causes additional harm, he or she may not have immunity
Brune vs. Belinkoff
- standard asked whether the physician, if a general practitioner, had exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession.
What is permissable when considering standards
- considering medical resources/education when applying standard
What is the authority for professional practice
- state law;
- federal agencies;
- private companies;
- professional societies;
When considering standards what can be looked at
- speciality;
- specific standards {internal policy/procedures};
- state/national standards {i.e code of nursing conduct, speciality statement/positions;
how is breach determined
did the defendant, by his or her conduct, violate the duty of care;
who has to prove a breach
it is the plaintiff’s burden to prove;
- usually by preponderance of evidence
- “50% plus a feather”
What evidence may a plaintiff present to prove breach
- medical records;
- policies and procedures;
- written standards;
- testimony of expert witnesses;
actual causation and harm the plaintiff
must have suffered personal injury, not simple economic harm
Actual causation and harm examines
- the probability that the defendant’s act caused by harm;
- whether the exact same harm would have occurred without the act;
- was the act a substantial factor in the harm
Actual causation and harm: must consider
who the actors were and who had responsibilities;
Proximate cause must involve
- an injury that occurred within the risk of what happened;
- the person who suffered within that risk;
- is there any cause other than the alleged one
When proving a medical malpractice claim the plaintiff must
introduce proof of the existence of the four elements necessary for malpractice claim
proving a medical malpractice claim must include
proof of NP standard of care crucial to establishing the required elements of duty, breach, and proximate cause;
medical malpractice cases require
expert testimony on duty, breach, and causal relationship
presumption of negligence
violation of a statute
Res ipsa loquitur
everyone involved is considered responsible until cause is defined
When may a legal expert not be required
in jurisdictions where nursing negligence is not recognized as professional negligence
What should you do if you are served with a lawsuit
- call professional insurer;
- notify institution/workplace;
- do not contact plaintiff
Building a defense
- duty existed/owed;
- actions reasonable/unreasonable;
- assumption of risk;
- contributory negligence;
- comparative negligence;
- statute of limitations;
- immunities relating to status
comparative negligence
- if one event is comparable to another in causing harm, respnsibility does not rest with one individual
how lawsuits begin and proceed
- service;
- answer;
- discovery;
- deposition;
- negotiation;
- settlement;
Service
defendant receives document informing them of suit
answer
most jurisdictions require a response within 120 days;
discovery
insurer/attorney begin document search {both sides};
Deposition
reps for plaintiff and defendant meet and ask questions
Massachusetts medical malpractice Tribunal
- case filed with tribunal;
- three-member panel recommends whether to proceed;
- plaintiffs can proceed without recommendation but must pay bond;
- cases should proceed when there is real, evidentiary basis;
- reform weeds out cases without merit
most cases end with
negotiation and settlement;
- trials are rare;
- trials awards can be large
Common liability issues
- relationship with patient {failure to communicate/recognize pt;
- failure to monitor/assess;
- missed diagnosis;
- failure to refer in timely manner;
- medication errors;
- documentation: fact-based, opinions should have clinical basis;
- confusing legal/ethical standards;
Factors that increase risk
- deviation from the standard of care (be proficient and up to date);
- failure to show concern/consideration;
- failure to assess, diagnose, and refer
- failure to communicate;
- failure to follow chain of command;
- failure to follow policies/procedures;
- failure to understand/master equipment use;
- failure to document appropriately/accurately;
- failure to obtain informed consent;
- competency issues
Superintendent of belchertown state school vs Saikewicz
Saikewicz: mentally retarded young man unable to understand his cancer treatment;
- could guardian say no to treatment on his behalf;
- court said yes
Rogers vs. Commissioner of the Dept. of mental health
- substituted judgment by a court appointed guardian
Albets vs. Devine
physician-patient confidentiality (built on later through HIPAA regulations)
What records all malpractice claims
National Practitioner Data Bank
