Legal Issues in Nursing Please read attached power point presentation and create a Word document, follow APA guidelines and answer the following questions.
Legal Issues in Nursing Please read attached power point presentation and create a Word document, follow APA guidelines and answer the following questions. Include at least 2 references and 500 words.
Answer the following questions:
1. What are the different types of law ?
2. Give 3 situations wherein a nurse could be indicted under criminal law.
3. How or in what way a nurse can prove his or her innocence if indicted for malpractice or negligence in carrying out his/ her nursing profession? Chapter 8
Legal Issues in
Nursing and
Health Care
OBJECTIVES
◼
◼
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Differentiate among the (3) major categories of
law on which nursing practice is established and
governed.
Distinguish between intentional & un-intentional
torts in relation to nursing practice.
Outline the essential elements that must be
proven to prove a claim of negligence or
malpractice.
Sources of Law and
Nursing Practice
◼
Statutory Law
Definition
◼ Laws written and enacted by legislative bodies
◼ Violations are criminal offenses and are
punishable by fines or imprisonment.
Sources of Law and
Nursing Practice
◼
Federal statutes related to nursing and health care
Have a major impact on nursing care—mandate a
minimum standard of care in all settings that receive
federal funds (Medicare, Medicaid)
Statutory Law
Emergency Medical Treatment and Active Labor Law
(EMTALA)
◼ Enacted to prohibit the refusal of care for indigent and
uninsured patients seeking medical assistance in
emergency departments
◼ Prohibits the transfer of unstable patients, including
women in active labor, from one facility to another
◼ Applicable to nonemergency facilities such as urgent
care clinics
Americans With Disabilities Act of 1990 (ADA)—prohibits
discrimination against persons with disabilities by
removing barriers that might prevent the same
opportunities available to persons without disabilities
Statutory Law
Patient Self-Determination Act of 1990—requires that federally
funded hospitals (Medicare, Medicaid) inform adult patients in
writing about their right to make treatment choices and that they
ask patients if they have a living will or durable power of
attorney for health care
Health Insurance Portability and Accountability Act of 1996
(Public Law No. 104-191) (HIPAA)—intent of this law is to
ensure confidentiality of the patient’s medical records; the
statute sets guidelines for maintaining the privacy of health data
The Patient Safety and Quality Improvement Act—allows
certain disclosures of patient safety data
Statutory Law
◼
State statutes
Nurse Practice Act and board of nursing rules and regulations
◼ Define the scope and limitations of professional nursing
practice
◼ Vary from state to state, but common elements include the
following:
Definition of the term registered nurse
Description of professional nursing functions
Standards of competent performance
Behaviors that represent misconduct or prohibited
practices
Grounds for disciplinary action
Fines and penalties for violations
◼ Each nurse should own a copy and should understand the
content.
Statutory Law
Violations
of the Nurse Practice Act or rules and
regulations
◼ Licensing boards have the authority to hear and
decide cases against nurses.
◼ Penalties that may be imposed
Issuing a formal reprimand
Establishing a period of probation
Levying fines
Limiting, suspending, or revoking the nurse’s
license
Statutory Law
◼
Nurse/patient ratio and mandatory overtime statutes
California was the first state to enact a law in
January 2004 that mandates the establishment of
minimum nurse/patient ratios in acute care facilities
(e.g., critical care units, step-down and medicalsurgical units, maternity departments).
Research indicates that improved nurse/patient
ratios are associated with lower “failure-to-rescue”
rates and lower inpatient mortality rates.
Statutory Law
◼
Reporting statutes
Child Abuse Prevention and Treatment Act and
reporting statutes
◼ Laws mandating the reporting of specific health
problems and suspected or confirmed abuse
◼ Health professionals must report the following under
penalty of fine or imprisonment for failing to do so:
Infant and child abuse
Dependent elder abuse
Specified communicable diseases
◼ Most laws grant immunity from suit within the
context of the mandatory reporting statute.
Statutory Law
◼
Institutional licensing laws
All facilities that provide health care services must
comply with licensing laws.
Generally contained within the law are the following:
◼ Minimum standards for maintenance of the
physical plant
◼ Basic operational aspects for major
departments—nursing, dietary, clinical labs, and
pharmacy
◼ Essential aspects of patient rights and informed
consent process
◼ Copies of licensing laws can be obtained from the
state health department.
American Nurses Association (ANA)
Standards of Professional Performance
◼
Should be used along with Standards of Quality
Practice to guide nurses
Common Law
◼
Created through cases heard and decided in federal
and state appellate courts—also known as decisional or
judge-made law
Common Law
◼
Nursing case law
Body of written opinions about nursing practice, also
known as nursing case law
Importance cannot be overstated in establishing the
current standard of practice
One important case established “affirmative duty”—
the duty that nurses will exercise independent
judgment to prevent harm to patients.
Nurses should review case law and journals
dedicated to legal issues in nursing practice.
Common law and case law provide courts with
guidelines for deciding future cases.
Civil Law
◼
Negligence and malpractice
Negligence is defined as failure to act in a
reasonable and prudent manner.
Malpractice is a special type of negligence, that is,
the failure of a professional, a person with
specialized education and training, to act in a
reasonable and prudent manner.
Civil Law
◼
Elements essential for proving negligence or malpractice
Nurse owed the patient or client a special duty of care based on
the establishment of a nurse-patient relationship.
Nurse breached his or her duty to the patient or client.
The patient suffered actual harm or damage.
Proximate cause or a causal connection has been established
between the standard of care provided by the nurse and the
patient’s injury.
Civil Law
◼
Most frequent allegations of nursing negligence
Failure to ensure patient safety
Improper treatment or negligent performance of
treatment
Failure to monitor the patient and report significant
findings
Medication errors
Failure to follow the agency’s policies and
procedures
Civil Law
◼
Negligence and the doctrine of res ipsa loquitur
Doctrine that applies when the negligent act clearly
lies within the range of a jury’s common knowledge
and experience to determine the standard of care—
“the thing that speaks for itself”
Expert nurse witness is not required to help establish
the standard of care.
For example, recent studies confirm that
approximately 1000 to 2500 foreign bodies
(instruments, needles, sponges) are inadvertently
left in the patient after surgery.
Civil Law
◼
Gross negligence
Reckless act that reflects a conscious disregard for
the patient’s welfare
Court may award special damages meant to punish
the nurse for the outrageous conduct; these
damages are referred to as punitive damages.
Civil Law
◼
Criminal negligence
Negligent act also constitutes a crime—The act is
deemed so reckless that the action results in serious
injury or death to the patient.
Consequences in addition to criminal charges
◼ Loss of job and livelihood
◼ Suspension or revocation of license
◼ Out-of-pocket fines levied by the nursing board
◼ Significant attorney’s fees
◼ Malpractice insurance may not cover costs in all
cases.
◼ Conservative estimates suggest that as many as
98,000 patients die each year as a result of
negligence and malpractice of health care
providers.
Civil Law
◼
Defenses against claims of negligence
In no case may a nurse use the defense “following
physician’s orders.”
Emergency situations—Nursing care rendered in a
life-threatening emergency may breach the standard
of care required under normal circumstances
Governmental immunity—Individual health care
workers employed in federal or state facilities are
shielded from personal responsibility for damages in
malpractice cases.
Good Samaritan immunity—limits a nurse’s liability
or shields the nurse from malpractice for rendering
emergency assistance outside the employment
setting
Statutes of Limitation
in Malpractice Cases
◼
◼
Establish time limits within which a person may initiate a
lawsuit
Time limits vary depending on state laws and a variety
of case circumstances.
Reasons for
Malpractice Insurance
◼
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All nurses purchase malpractice insurance.
More states recognize nurse malpractice as a legitimate
claim in a civil suit.
Functions for RNs and advanced practice nurses are
expanding.
Increasing floating and cross-training mandates
Nurses have increasing responsibility for supervising
subordinate staff.
Reasons for
Malpractice Insurance
◼
◼
Some employers may fail to initiate an adequate
defense for nurses.
Lack of coverage will not discourage a lawsuit when
there is a legitimate claim.
Liability
◼
◼
◼
Definition
Asserts that every person is responsible for the
wrong or injury done to another as the result of
carelessness
Personal liability
Requires the nurse to assume responsibility for
patient harm or injury that is a result of his or her
negligent acts
Nurse cannot be relieved of liability by another
professional such as a physician or nurse manager.
Damages can be levied against current assets and
future earnings.
Liability
◼
Personal liability with floating and cross-training
Nurses should be cognizant of state statutes and
case law services outside of their usual practice
area.
In no case is a nurse permitted to render services if
the requisite knowledge to act competently is
lacking.
Nurses have a legal duty to refuse specific tasks that
they cannot perform safely and competently but
should consider negotiation and compromise with
the supervisor.
Liability
◼
Personal liability for team leaders and managers
Held to the standard of care of the reasonably
prudent supervisor
Team leaders and managers have been held
negligent for issues surrounding
◼ Triage of staff and equipment
◼ Supervision of subordinates
◼ Delegation of patient care tasks
◼ Reporting of team member performance deficits
Liability
Nurse
managers and administrators may be held
liable for
◼ Inadequate training
◼ Failure to periodically reevaluate staff
competencies
◼ Failure to discipline or terminate unsafe workers
◼ Negligence in developing appropriate policies and
procedures
Liability
RNs functioning in the role of team leader or in any
supervisory capacity should review the following:
◼ Detailed job description, including responsibilities
when asked to supervise in an unfamiliar area or floor
◼ Job descriptions for team members
◼ Formal period of training and mentoring in the role
◼ Validated proof of competencies
◼ Guidelines for personal patient care assignments
◼ Chain of command
Nurse managers and administrators should be aware of
case law regarding incompetent charge nurses and
team leaders.
Liability
◼
◼
Personal liability in delegation and supervision of team
members
Nurses must be absolutely clear about the
lawfulness of patient care assignments.
Determine whether it is reasonable and prudent to
delegate a task on the basis of knowledge of the
worker, patient status, and current work setting
conditions.
Employer liability—vicarious liability
Liability
◼
Defenses against claims of vicarious liability
Charitable immunity
Borrowed servant and “captain of the ship” doctrines
Employer also may be liable for the negligent
conduct of nurses within the scope of their
employment.
Based on the legal principle of respondeat superior
(let the master answer)—adequate numbers of
qualified nursing staff
Liability
◼
Corporate liability
Health care corporation can be held to a specified
standard of care.
Health care facilities have been found corporately
liable for failing to have adequate numbers of
qualified nursing staff.
The Joint Commission has developed standards
related to orientation, training, and education of
agency staff.
Reducing Legal Liability
◼
Risk management systems
Track incidents and accidents in the facility
Assist in the development of policies and procedures
to improve practice
Provide knowledge about federal and state laws,
licensing laws, and health care case law
Reducing Legal Liability
◼
Incident reports
Nurses are legally bound to report critical incidents to the
manager.
Critical incidents that result in patient injury or death may lead
to a malpractice claim.
Know appropriate procedures for completing and filing the
incident report.
Describe events objectively; avoid subjective comments or
personal opinions.
Never note in the medical record that an incident report was
completed or filed.
Never photocopy the incident report.
Physician’s order for an incident report should not be written in
the chart.
Report every unusual occurrence or incident.
Intentional Torts in
Nursing Practice
◼
Definition
Direct violation of a person’s legal rights
Plaintiff does not have to prove that the nurse
breached a special duty or was negligent.
Consequences include fines and punitive damages
but may rise to the level of criminal acts.
Intentional Torts in
Nursing Practice
◼
Assault and battery
Assault is causing a person to fear that he or she will
be touched without consent.
Battery is the unauthorized touching or the actual
harmful or offensive touching of a person and may
rise to the level of a crime.
Nurse should ask the patient’s permission before
initiating any procedure and should document
permission granted.
Intentional Torts in
Nursing Practice
◼
Defamation of character
Libel is defamation caused by written work.
Slander is defamation caused by spoken word.
Nurses are subject to libel for subjective comments
written in the medical record.
Nurses are subject to slander when they repeat
subjective comments about patients in public places.
Intentional Torts in
Nursing Practice
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False imprisonment
Unlawful restraint or detention of another person
against his or her wishes
Nurse has no authority to detain a patient even if
there is likelihood of harm or injury.
Intentional Torts in
Nursing Practice
◼
◼
Invasion of privacy
Person’s private affairs (including health history and
status) are made public without consent.
Nurse has a legal and ethical duty to maintain
patient confidentiality.
Intentional infliction of emotional distress
Nurse’s behavior is so outrageous that it leads to the
patient’s emotional shock.
The Nurse and Criminal Law
◼
Definition
Crime is an offense against society that is defined
through written criminal statutes or codes.
Punishable by fines, imprisonment, or the death
penalty in some states
An increasing number of nurses are being charged
with criminal acts.
The Nurse and Criminal Law
◼
Misdemeanor offenses
Minor criminal offenses
Common offenses nurses are charged with
◼ Illegal practice of medicine
◼ Failing to report child abuse
◼ Falsification of medical records
◼ Assault and battery and physical abuse of
patients
The Nurse and Criminal Law
◼
Felony acts
Major criminal offenses
Common offenses
◼ Drug trafficking
◼ Fraud in billing services for Medicare patients
◼ Theft, rape, murder
The Law and Patient Rights
◼
Advance directives
Statutes grant adults the right to refuse extraordinary
medical treatment when there is no hope of
recovery.
Patient’s wishes are made known through the
execution of a formal document known as the living
will.
Medical and physician directives
◼ Document that lists the desire of the patient in a
particular scenario
◼ If properly executed, provides the physician with
immunity from claims of negligence in the
patient’s death
The Law and Patient Rights
“Do
not resuscitate” orders
◼ Written by the physician on the basis of directives
by the patient
◼ Nurses have an absolute duty to respect the
patient’s desires in DNR orders.
◼ A lawfully executed DRN order must be followed.
Durable power of attorney for health care—document
that authorizes the patient to name the person who
will make the day-to-day and end-of-life decisions
when he or she becomes decisionally incompetent
The Law and Patient Rights
◼
Informed consent
Physician or advanced practice nurse has a duty to
disclose information, so the patient can make
intelligent choices.
Mandated by federal statute and state law
Information that must be disclosed
◼ Nature of the therapy or procedure
◼ Expected benefits and outcomes
◼ Potential risks
The Law and Patient Rights
The
provider cannot delegate the duty to the RN.
If the nurse has reason to believe that the patient
has not given informed consent, the provider should
be immediately notified.
In no case should the nurse attempt to convey
information required for informed consent.
The Law and Patient Rights
◼
The right to refuse treatment
An adult of sound mind has a right to refuse any
treatment that has previously been agreed to.
Nurse must notify the provider if a patient refuses
treatment.
The provider should give the patient information
about the consequences, risks, and benefits of
refusing treatment and should explore available
alternatives.
The Law and Patient Rights
Leaving against medical advice (AMA)
◼ Nurse must act promptly to notify the provider.
◼ Nurse must clearly articulate the danger inherent in leaving.
◼ Value of AMA document will depend a great deal on the
nurse’s charting, which should note that leaving the facility
could result in the following:
Aggravated current condition and complicated future
care
Permanent physical or mental impairment or disability
Complications leading to death
Nurses have been charged with offenses, including assault,
battery, and false imprisonment, when they unlawfully detain
patients.
The Law and Patient Rights
◼
The use of physical restraints
Restraint of any form—chemical or physical—is a kind of
imprisonment.
Goal when clinical restraints are indicated is to use the least
restrictive restraint and only when all other strategies to ensure
patient safety have been exhausted.
Use of physical and chemical restraints and seclusion are
governed by federal and state statutes and accrediting bodies.
Charges of assault and battery and false imprisonment can be
leveled against nurses who use restraints improperly.
The Law and Patient Rights
Nurses
may lawfully apply restraints in an
emergency when, in their independent judgment, no
other strategies are effective in protecting the patient
from harm.
Careful nursing documentation is essential when
restraints are applied.
NCLEX QUESTIONS
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The nurse learns in orientation that an incident report does not “blame”
anyone but concisely documents the events leading up to an occurrence.
Which of the following events would warrant completion of an incident
report? (Select all that apply.)
A. The patient is crying and distraught when he learns of a diagnosis of
cancer.
B. An intravenous antibiotic given preoperatively does not infuse because
of a faulty pump.
C. The nurse is unable to carry out orders written by the specialist because
of illegibility.
D. A client falls while in the shower, although she was told not to get up
alone.
E. The registered nurse is not available to complete the preoperative
checklist.
NCLEX QUESTIONS
◼
All 50 states would require the nurse to report to leg…
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