Legal Aspects
DEFINITION OF TERMS
ü Common law: accumulation of law as a result of judicial court decisions.
ü Civil law (private law): law that derives from legislative codes and deals with relations between private parties.
ü Public law: concerns relationships between an individual and the state. The thrust of public law is to attain what are deemed valid public goals, such as reporting child abuse.
ü Criminal law: concerns actions against the safety and welfare of the public, such as robbery. It is part of the public law.
Informed consent: implies that significant benefits and risks of any procedure, as well as alternative methods of treatment, have been explained; person has had time to ask questions and have these answered; person has agreed to the treatment voluntarily and is legally competent to give consent; and communication is in a language known to the client. Reasonably prudent nurse: nurse must react as a reasonably prudent nurse trained in that specialty area would react. For example, if a nurse works with fetal monitors, she must know how to use the monitors, know how to read the strips, and know what actions to take based on the findings.
NURSING LICENSURE
ü Mandatory licensure required in order to practice nursing.
ü Nurse Practice Act: each state has one to protect nurses’ professional capacity, to set educational requirements, to distinguish between nursing and medical practice, to define scope of nursing practice, to legally control nursing through licensing, and to define standards of professional nursing.
ü American Nurses Association: “The practice of nursing means the performance for compensation of professional services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing theory as the basis for assessment, diagnosis, planning, intervention, and evaluation in the promotion and maintenance of health; the case finding and management of illness, injury, or infirmity; the restoration of optimum function; or the achievement of a dignified death.
ü Nursing practice includes but is not limited to: administration, teaching, counseling, supervision, delegation, and evaluation of practice and execution of the medical regimen, including the administration of medications and treatments prescribed by any person authorized by state law to prescribe. Each registered nurse is directly accountable and responsible to the consumer for the quality of nursing care rendered.”
ü Revoking a license: Board of Examiners in each state in the United States and each province in Canada has the power to revoke licenses for just cause, such as incompetence in nursing practice, conviction of crime, drug addiction, obtaining license through fraud, or hiding criminal history.
CRIMES AND TORT
ü Crime: an act committed in violation of societal law and punishable by fine or imprisonment. A crime does not have to be intended (as in giving a client an accidental overdose that proves to be lethal).
ü Felonies: crimes of a serious nature (e.g., murder) punishable by imprisonment of longer than 6 months.
ü Misdemeanors: crimes of a less serious nature (e.g., shoplifting), usually punishable by fines or short prison term or both.
ü Tort: a wrong committed by one individual against another or another’s property.
ü Fraud, negligence, and malpractice are torts (e.g., losing a client’s hearing aid, or bathing the client in water that causes burns).
ü Fraud: misrepresentation of fact with intentions for it to be acted on by another person (e.g., falsifying college transcripts when applying for a graduate nursing program).
ü Negligence: “Omission to do something that a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs would do; or doing something which a reasonable and prudent person would not do”
Types of negligent acts related to:
ü Sponge counts: incorrect counts or failure to count.
ü Burns: heating pads, solutions, steam vaporizers.
ü Falls: side rails left down, infant left unattended.
ü Failure to observe and take appropriate action—forgetting to take vital signs and check dressing in a client who is newly postoperative.
ü Wrong medicine, wrong dose and concentration, wrong route, wrong client.
ü Mistaken identity—wrong client for surgery.
ü Failure to communicate—ignore, forget, fail to monitor, report, or document client’s status or to report complaints of client or family.
ü Loss of or damage to client’s property— dentures, jewelry, money.
ü Inappropriate use of equipment (e.g., excessive IV fluids via pump).
ü Malpractice: part of the law of negligence as applied to the professional person; any professional misconduct, unreasonable lack of skill, or lack of fidelity in professional duties, such as accidentally giving wrong medication or forgetting to give correct medication or instilling wrong strength of eye drops into the client’s eyes. Proof of intent to do harm is not required in acts of commission or omission.
INVASION OF PRIVACY
ü Compromising a person’s right to withhold self and own life from public scrutiny.
ü Implications for nursing—avoid unnecessary discussion of client’s medical condition; client has a right to refuse to participate in clinical teaching; obtain consent before teaching conference.
LIBEL AND SLANDER
ü wrongful action of communication that damages person’s reputation by print, writing, or pictures (libel), or by spoken word using false words (slander).
ü Implications for nursing—make comments about client only to another health team member caring for that client.
PRIVILEGED COMMUNICATIONS
ü Information relating to condition and treatment of client requires confidentiality and protection against invasion of privacy.
ü This applies only to court proceedings. Selected person does not have to reveal in court a client’s communication to him or her. The purpose of privileged communication is to encourage the client to communicate honestly with the treating practitioner. It is the client’s privilege at any time to permit the professional to release information.
ü Therefore, if the client asks the nurse to testify, the nurse must truthfully give all information. However, if the nurse is a witness against the client, without the client’s permission to release information, the nurse must keep the information confidential by invoking the privileged communication rule
if the state law recognizes it and if it applies to the nurse.
ASSAULT AND BATTERY
ü Violating a person’s right to refuse physical contact with another.
ü Definitions
ü Assault—the attempt to touch another or the threat to do so and person fears and believes harm will result.
ü Battery—physical harm through willful touching of person or clothing, without consent.
ü Implications for nursing—need to obtain consent to treat, with special provisions when clients are underage, unconscious, or mentally ill.
VIII. GOOD SAMARITAN ACT
Protects health practitioners against malpractice claims resulting from assistance provided at scene of an emergency (unless there was willful wrongdoing) as long as the level of care provided is the same as any other reasonably prudent person would give under similar circumstances.
NURSES’ RESPONSIBILITIES TO THE LAW
A nurse is liable for nursing acts, even if directed to do something by a physician. B. A nurse is not responsible for the negligence of the employer (hospital). C. A nurse is responsible for refusing to carry out an order for an activity believed to be injurious to the client. D. A nurse cannot legally diagnose illness or prescribe treatment for a client. (This is the physician’s responsibility.) E. A nurse is legally responsible when participating in a criminal act (such as assisting with criminal abortions or taking medications from client’s supply for own use). F. A nurse should reveal client’s confidential information only to appropriate health-care team members. G. A nurse is responsible for explaining nursing activities but not for commenting on medical activities in a way that may distress the client or the physician. H. A nurse is responsible for recognizing and protecting the rights of clients to refuse treatment or medication, and for reporting their concerns and refusals to the physician or appropriate agency people. I. A nurse must respect the dignity of each client and family.
ORGAN DONATION
ü Legal aspects to protect potential donors and to expedite acquisition
ü Prohibits selling of organs (National Organ Transplant Act).
ü Guidelines regarding who can donate, how donations are to be made, and who can receive donated organs (Uniform Anatomical Gift Act).
ü Legal definition of brain death (Uniform Determination of Death Act)—absence of: breathing movement, cranial nerve reflex, response to any level of painful stimuli, and cerebral blood flow; and flat EEG.
ü Donor criteria
ü Contraindications for being organ donator: HIV-positive status and metastatic cancer.
ü Prospective donors of both organs and tissues: those with no neurological functions, but have cardiopulmonary functions.
ü Prospective donors of only tissues: those with no cardiopulmonary function (e.g., can donate corneas, eyes, saphenous veins, cartilage, bones, skin, heart valves).
ü Management of donor
ü Maintain body temperature at greater than 96.8°F with room temperature at 70° to 80°F, warming blankets, warmer for intravenous fluids.
ü Maintain greater than 100% PaO2 and suction/turn and use positive end-expiratory pressure (PEEP) to prevent hypoxemia caused by airway obstruction, pulmonary edema.
ü Maintain central venous pressure at 8 to 10 mm Hg and systolic blood pressure at greater than 90 mm Hg to prevent hypotension caused by complete dilation of systemic vasculature due to destruction of brain’s vasomotor center, cessation of antidiuretic hormone production, and decreased cardiac output. Give fluid bolus and vasopressors, and monitor sodium levels.
ü Maintain fluid and electrolyte balance due to volume depletion. Monitor for hyponatremia, hyperkalemia, and hypokalemia, and intake and output.
ü Prevent infections due to invasive procedures (e.g., tubes, catheters) by using aseptic technique.
ü [social-locker]
Legal Aspects of Nursing: Questions Most Frequently Asked by Nurses About Nursing and the Law
TAKING ORDERS
ü A.Should I accept verbal phone orders from a physician? Generally, no. Specifically, follow your hospital’s bylaws, regulations, and policies regarding this.
Failure to follow the hospital’s rules could be considered negligence.
ü B. Should I follow a physician’s orders if
I know it is wrong, or (b) I disagree with his or her judgment? Regarding
(a)—no, if you think a reasonable, prudent nurse would not follow it; but first inform the physician and record your decision. Report it to your supervisor. Regarding
(b)—yes, because the law does not allow you to substitute your nursing judgment for a doctor’s medical judgment. Do record that you questioned the order and that the doctor confirmed it before you carried it out. C. What can I do if the physician delegates a task to me for which I am not prepared? Inform the physician of your lack of education and experience in performing the task. Refuse to do it. If you inform the physician and still carry out the task, both you and the physician could be considered negligent if the client is harmed by it. If you do not tell the physician and carry out the task, you are solely liable.
OBTAINING CLIENT’S CONSENT FOR MEDICAL AND SURGICAL PROCEDURES:
ü Is a nurse responsible for getting a consent for medical-surgical treatment? Obtaining consent requires explaining the procedure and risks involved, which is the physician’s responsibility. A nurse may accept responsibility for witnessing a consent. This carries with it little legal liability other than obtaining the correct signature and describing the client’s condition at time of signing.
CLIENT’S RECORDS (DOCUMENTATION)
ü What should be written in the nurse’s notes? All facts and information regarding a person’s condition, treatment, care, progress, and response to illness and treatment. Document consent or refusal of treatment. Purpose of record: factual documentation of care given to meet legal standards; used to refute unwarranted claims of negligence or malpractice.
How should data be recorded? Entries should:
ü State date and time given.
ü Be written, signed, and titled by caregiver or supervisor who observed action.
ü Follow chronological sequence.
ü Be accurate, factual, objective, complete, precise, and clear.
ü Be legible; use black pen.
ü Use universal abbreviations.
ü Have all spaces filled in on documentation forms; leave no blank spaces.
CONFIDENTIAL INFORMATION
ü If called on the witness stand in court, do I have to reveal confidential information? It depends on your state, because each state has its own laws pertaining to this. Consult a lawyer. Inform the judge and ask for specific directions before relating in court information that was given to you within a confidential, professional relationship.
ü Am I justified in refusing (on the basis of “invasion of privacy”) to give information about the client to another health agency to which a client is being transferred?
No. You are responsible for providing continuity of care when the client is moved from one facility to another. Necessary and adequate information should be transferred between professional health-care workers. The client’s consent for this exchange of information should be obtained.
Circumstances under which confidential information can be released include:
ü By authorization and consent of the client.
ü By order of the court.
ü By statutory mandate, as in reporting cases of communicable diseases or child, elder, or dependent adult abuse.
Prevent Legal Problems
ü Practice in a safe setting
ü Employs appropriate number and skill mix of personnel.
ü Has P&P that promotes quality improvement. (Risk management and JC)
ü Keeps equipment in good working order.
ü Provides orientation and continuing education.
ü Communicate with providers, patient, family.
ü Document accurately, in timely manner, and concisely, If not documented, not done
ü Rapport with patient & family can be protection from lawsuits
ü Meet the standard of care in facility, trends in area of practice, ANA Nursing: Scope & Standards of Practice; Stay within own limits of education, expertise & state’s Nurse Practice Act
Legal Tips Administer meds properly
ü Monitor for & report deterioration
ü Communicate effectively
ü Delegate responsibly
ü Document accurately & timely
ü Know & follow facility policies & procedures
ü Use equipment properly
Morals: rules of conduct in regard to decisions of right or wrong values: attitudes, ideals, or beliefs that one holds & uses to guide behavior ethics: reflects what actions one should take; habits or customs bioethics: application of ethical theories and principles to moral issues or problems in health care.
ü Ethical dilemma caused by advances in technology that allow us to keep patients alive.
ü Moral distress: pain/anguish affecting mind, body, relationships in response to a situation in which the person is aware of a moral problem, acknowledges moral responsibility, and makes a moral judgment about the correct action; however, as a result of real or perceived constraints, participates in perceived moral wrongdoing
Nursing Code of Ethics-
ü Code of ethics is a hallmark of a profession—guidelines of professional self-regulation Provision 2 describes the nurse’s primary commitment to the patient.
ü Provision 5 describes the responsibility of nurses to maintain their own integrity.
ü A wise nurse who is aware of deep personal values and moral standards will make decisions regarding practice setting so the nurse’s own personal integrity remains intact, while putting patients and their needs first Moral Reflection = critical analysis of one’s morals beliefs and actions
Kohlberg’s Levels of Moral Development:
; research on men & boys; justice focused
ü Pre-conventional: perspective is self-centered; decisions based on wants/needs, not right/wrong; children < 9 yo, adolescents, adult criminals; respond to punishment
ü Conventional: moral decisions conform to expectations of family/society; what pleases others; most adolescents & adults function at this level; respond to prospect of personal reward
ü Post-conventional: individual develops own moral values; ignore self-interest and group norms in making moral choices; may sacrifice themselves on behalf of the group; create own morality; minority of adults achieve this level
Gilligan’s levels of moral development
ü Individual survival
ü Goodness,
ü self-sacrifice
Morality of caring & responsible to others and self
ü A moral person responds to need & demonstrates a considerations of care & responsibility in relationships
Understanding Ethical Dilemmas in Nursing-
ü From personal value systems & beliefs Involving peers’ & other’s behaviors.
ü Regarding patient rights: right to privacy, informed consent, to die, confidentiality, respectful care, care without discrimination, information concerning medical condition & treatment, right to refuse to participate in research studies; partnership regarding treatment plan.
ü Patient self-determination act (1991) gives patients legal right to determine how they wish to be treated in life-or-death situations.
ü Ethical issues related to immigration and migration
ü Dilemmas created by institutional issues
ü Dilemmas created by patient data access issues
Federal and state statutes and regulations
ü In addition to nursing malpractice, there are multiple federal and state laws and regulations that impact the practice of nursing and may impose liability.
The following discussion presents a brief overview of some of these:
ü The Privacy Act (1974) regulates the collection, use, maintenance, and distribution of personally identifiable information about individuals that is kept in the record systems of federal agencies. This act impacts all health care providers and health care plans that transmit health care information in electronic form. It has been described as a consumer protection act.
ü The Health Insurance Portability and Accountability Act-Congress enacted the Health Insurance Portability and Accountability Act (HIPAA, 1996) to limit the ability of an employer to deny health insurance coverage to employees with preexisting medical conditions.
ü The law also directed the US Department of Health and Human Services (USDHHS) to develop privacy rules, including, but not limited to, the use of electronic medical records.
ü In recent years, this has expanded to include other considerations for electronic transmission of health care information.
ü Among other things, HIPAA gives individuals the right to obtain their own medical records and request amendments to their medical records (USDHHS, n.d.-a) and allows the individual to learn where the records have been disclosed.
ü HIPAA provides that individuals must be provided with medical records within 30 days of a request. It also prohibits release of personal health information without permission.
ü Generally, a HIPAA-compliant, signed authorization must be presented in order to obtain medical records.
ü Social networking can have a significant impact on health care practice. Society has become adept at using computers, cell phones, Facebook, and Twitter for exchange of information. However, the ease of exchange of information does not exempt the health care provider from obtaining a HIPAA-compliant consent form. There have been cases of practitioners sharing an interesting case or sharing health care information over social networking sites. Without the patient's consent, it is not appropriate to share information, especially when the information is not shared on a secured network and is out there for the world to see. This can result in civil and criminal penalties. Therefore, it is important to be aware that a HIPAA-compliant authorization must be obtained for any exchange of health care information.
ü The Health Care Quality Improvement Act (1986) encourages hospitals, state licensing boards, and professional societies to identify and take corrective action for health care workers who may be found by peer review to be engaged in negligent or unprofessional conduct.
ü This act encourages peer review, and, if performed correctly, it might provide immunity from civil liability. Many states encourage “peer review” and internal investigations of incidents that have resulted in harm to patients and provide statutory protection of peer review activities within an organization. In addition, hospitals/facilities and personnel have a strong interest in providing quality care and preventing future harm to their patients through such review activities.
ü Patient Self-Determination Act (PSDA, 1990) mandates that individuals receiving medical care must be given written information about their rights under state law to make decisions about medical care, including the right to accept or refuse medical or surgical treatment (Crego, 1999).
ü The PSDA defines the rights of competent patients to make binding, legally enforceable decisions about their health care preferences that are to be followed should they later become unable to express their wishes.
ü This includes assigning a patient care advocate for medical decision making and endorsing a witnessed and notarized living will for end-of-life decisions. Many state legislatures have added additional legal steps and actions that need to be taken for end-of-life decisions that may vary greatly from state to state.
ü Elder abuse and neglect-Elder abuse has become a growing problem. Various states have mandatory requirements for reporting elder abuse and neglect. To encourage reporting, many states have enacted immunity provisions protecting individuals who report abuse and/or neglect from civil liabilities. Also, some states, in addition to having mandatory reporting requirements, include penalties for individuals who fail to comply. Nurses are often observers of abuse or neglect and should be aware of reporting requirements.
ü The National Center on Elder Abuse (NCEA), directed by the US Administration on Aging, is committed to helping national, state, and local partners to be fully prepared to ensure that older Americans live with dignity, integrity, and independence and without abuse, neglect, and exploitation.
ü The NCEA is a resource for policy makers, social services, health care practitioners, the justice system, researchers, advocates, and families.
ü Reporting child abuse-WOC nurses are in a unique position to identify and report suspected child abuse. Children who are chronically ill or require wound care and/or ostomy care are at risk for abuse. Since the early 1970s, federal and state legislation has been enacted to protect children from abuse. Those who report abuse are generally protected from liability.
ü Professional practice acts and licensure-For each group of health care professionals, licensed by the state, laws and regulations are in place that define the scope of practice and outline the oversight authority vested in their professional regulatory boards.. The scope of practice of an individual practitioner is an important consideration because practicing outside of the scope of nursing can open the individual to civil liability and censorship by the board of nursing.
ü The scope of practice of nursescan also be further defined by hospital policies and procedures. The policies and procedures of individual organizations should show evidence of compliance with licensing board requirements and legislative requirements, as well as with guidelines established by such agencies as The Joint Commission. National and state nurse associations are other resources that provide guidelines for the practice of nursing.
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