Chapter 44 - Legal Accountability PDF

Preview

Summary

Legal Accountability...

Description

Chapter 44 – Legal Accountability

Liability means that the person is financially or legally responsible for something. Nurses are legally responsible for their own actions and this legal responsibility cannot be delegated—this is the basis for liability in nursing practice. Malpractice is one source of legal liability. It means that a professional person has failed to act in a reasonable and prudent manner. If someone is harmed, the professional may be held liable.

Bill of Rights Many of these rights have direct implications for healthcare, including the rights of nurses and of patients. For example, protecting patients’ privacy rights is a fundamental role of the professional nurse that is derived from the Fourth Amendment to the U.S. Constitution

Health Insurance Portability and Accountability Act (HIPAA)  Protect health insurance benefits for workers who lose or change their jobs.  Protect coverage to persons with preexisting medical conditions.  Establish standards to protect the privacy of personal health information. (confidentiality)

HIPAA allows patients to see, make corrections to, and obtain copies of their medical records. Health Information Technology for Economic and Clinical Health (HITECH) Act Healthcare agencies are required to notify clients of breaches without unreasonable delay and by no longer than 60 days. In addition, its enhanced enforcement provisions increase civil penalties for breaches caused by willful neglect up to $250,000, with a maximum penalty of $1.5 million for repeated or uncorrected violations. Posting client information online can trigger HITECH violations.

1

Emergency Medical Treatment and Labor Act (EMTALA) Requires healthcare facilities to provide emergency medical treatment to patients who seek healthcare in the emergency department (ED), regardless of their ability to pay, legal status, or citizenship status. Should provide screening and stabilize the patient before transferring to another facility.

Patient Self-Determination Act (PSDA) Recognizes the client’s right to make decisions regarding his own healthcare. There are two types of legal written advance directives: the living will and the durable power of attorney for healthcare. 1. A living will is prepared by an alert and oriented (competent) individual and gives directions to others about the person’s wishes regarding lifeprolonging treatments if he becomes unable to make those decisions.

2. A durable power of attorney (DPOA) for healthcare identifies a person (called the surrogate decision maker) who will make healthcare decisions in the event the client is unable to do so. The surrogate has the right to make the medical decisions for as long as the person is not able to do so for himself (is incompetent). The Patient Self-Determination Act requires healthcare facilities to:  Provide written information to each client regarding the right to make decisions, including the right to accept or to refuse medical treatment, and the right to make advance directives.  Document in the client’s medical record the presence or absence of advance directives.  Provide education to the staff, healthcare providers, and community on advance directives.  Follow state law as it relates to advance directives.  Treat everyone the same regardless of the presence or absence of advance directives (facilities may not discriminate).

2

Americans With Disabilities Act (ADA) Provides protection against discrimination of individuals with disabilities. Employers must provide reasonable accommodations for employees with disabilities.

State Laws 1)Mandatory Reporting Laws Requires healthcare workers to report communicable diseases. You also have a duty to report physical, sexual, or emotional abuse or neglect of vulnerable individuals (even if suspected.) * if you report abuse or neglect, you cannot be charged with violating a patient’s right to privacy.

2)Good Samaritan Laws Designed to protect from liability those who provide emergency care to someone who is in need of medical services. To successfully use the Good Samaritan defense, the following elements must be present:     

Care was provided in an emergency situation. Person(s) providing the care did not cause the emergency or injury. Care was provided in a reasonably competent manner. Care provided must be voluntary (not paid or eligible for payment). Person receiving care did not object to receiving care.

In addition, nurses should follow these guidelines to ensure their protection by Good Samaritan laws:  Call 911, or have someone else call, as soon as you can.  Do not leave the person unless you transfer care to an equally competent professional.  Place the person under the care of emergency personnel or other qualified healthcare professionals as soon as possible and follow their instructions.  Do not accept money or any other form of compensation for the services provided.

3

Nurse Practice Acts Nurse practice acts (NPAs) are statutory laws that define the practice of nursing and are designed to: 1) Regulate nursing practice to protect the health, safety, and welfare of the general public. 2)Define the scope of nursing practice. 3)Approve programs providing pre-licensure nursing education to students.

Medical Malpractice Statutes Medical malpractice refers to a lawsuit brought against a healthcare provider for damages (e.g., money) when there has been death of, injury to, or other loss to the person being treated. Other Guidelines for Practice Institutional Policies and Procedures They describe care that is reasonable, appropriate, and expected in the context of that facility. You must be familiar with these policies and procedures because they can be used as evidence of a violation of a standard of care if you failed to follow them. American Nurses Association Code of Ethics  Describes the standards of professional responsibility for nurses and provides insight into ethical and acceptable behavior.  It describes nurses’ obligations for safe, compassionate, nondiscriminatory, and quality care, while defining commitments to self, the client, the employer, and the profession.  Ana code guarantees the patient the right dignity, privacy and safety. the nurse will:  be accountable and competent  Used informed judgment 4

 protect client from misinformation  collaborate with other health care professionals  Maintain employment conditions conducive to provide quality care. Patient Care Partnership (PCP) What patients should expect during hospitalization:      

High-quality care A clean and safe environment Involvement in care Protection of privacy Help when leaving the hospital Help with billing claims

American Nurses Association Nurses’ Bill of Rights The Nurses’ Bill of Rights is a policy statement adopted by the ANA to identify the seven conditions that nurses should expect from their workplace that are necessary for sound professional practice. o Practice in a manner that fulfills their obligations to society and to those who receive nursing care. o Practice in environments that allow them to act in accordance with professional standards and legally authorized scopes of practice. o A work environment that supports and facilitates ethical practice as defined by the Code of Ethics for Nurses. o Freely and openly advocate for themselves and their clients, without fear of retribution. o Fair compensation for their work, consistent with their knowledge, experience, and professional responsibilities. o A work environment that is safe for themselves and for their clients. o Negotiate the conditions of their employment, either as individuals or collectively, in all practice settings.

5

American Nurses Association Standards of Practice The ANA (2015c) Standards of Practice has three components: 1. Professional standards of care that incorporate the nursing process in the diagnostic, intervention, and evaluation aspects of client care 2. Professional performance standards that identify the various role functions of the nurse in direct client care, quality of practice, ethics, education, communication, research, leadership, collaboration, resource management, collegiality, and environmental health 3. Practice guidelines for the various specialty areas that are developed by professional organizations.

Nurse Practice Acts As you have learned, nurse practice acts (NPAs) contain a provision that creates and empowers a state board of nursing to regulate the practice of nursing in that state. Define what the can/cannot do      

A state’s nurse practice act usually includes the following: The authority of the board of nursing, its composition, and powers A definition of nursing and the boundaries of nursing practice Standards for the approval of nursing education programs Requirements for licensure of nurses Grounds for disciplinary action against a nurse’s license

Requirements for Licensure  Graduate from an approved or accredited nursing program  meet the stablished character criteria  undergo criminal background check and fingerprinting  past the NCLEX-RN exam  be an application for you  meet the additional state requirements 6

What Constitutes Unprofessional Conduct? The following are a few examples of actions that may constitute unprofessional conduct:  Acting outside your scope of practice  Accepting duties or responsibilities for which you are not prepared or competent.  Inaccurately recording, falsifying, or altering patient or agency records.  Causing intentional or careless physical abuse or harm to a client, including unreasonable use of restraint, isolation, or medication; threatening or frightening patients; verbal abuse; sexual abuse, misconduct, or exploitation  Violating the patient’s confidentiality  Failing to take appropriate action to safeguard a patient from incompetent practice of another nurse (e.g., reporting to the state board of nursing)  Diverting drugs, supplies, or property of any patient or agency  Using a false or assumed name or impersonating another person licensed by the board.

Credentialing Accreditation The Joint Commission accredits healthcare facilities that meet established standards focused on safe, appropriate, and quality client care. Certification Another form of credentialing is certification. Through certification and licensing, the board identifies nurses who are qualified for advanced practice or for certification in a subspecialty, such as emergency nursing or pediatric nursing. WHAT IS CRIMINAL LAW? Criminal law deals with wrongs or offenses against society. It may result in prosecution (legal action) by the state or federal government for engaging in behavior that constitutes a crime. A crime is a violation of a law.  A felony is a crime punishable by more than 1 year in jail (e.g., murder, assisted suicide, rape/sexual assault, stealing drugs and equipment, felony abuse). Cannot vote.

7

 A misdemeanor, compared with a felony, is a minor charge. Misdemeanors involve less than a year in jail. They include crimes such as assault, battery, and petty theft.

WHAT IS CIVIL LAW? In contrast to criminal law, in which the state or federal government brings charges against a person, civil law involves a dispute between individuals or entities. A settlement in civil law often results in the guilty party paying monetary damages. Two types of civil law are contract law and tort law. Contract law involves a written or oral agreement between two parties in which one party accepts an offer made by the other party to perform (or not perform) certain acts in exchange for something of value. A breach of contract occurs if either party does not comply with the terms of the agreement. An employment contract is one example. Tort law, in comparison, deals with wrongs done to one person by another person that do not involve contracts. A tort is a civil wrong and there are three types of tort: quasi-intentional torts, intentional torts, and unintentional torts. 1) Quasi-intentional torts involve actions that injure a person’s reputation. The communication (written or oral) about the person (defamation of character):  Was false.  Was made to another person or persons.  Caused the defamed person to experience shame and ridicule and had a negative impact on the person’s reputation.  Was made as a statement of fact rather than as an opinion. Libel is the written or published form of defamation of character. Slander is the spoken or verbal form of defamation of character. 2) Intentional Tort is an action taken by one person with the intent to harm another person. The harm does not have to be violent, hostile, or cause a significant amount of pain or distress to the other person.

8

A) Battery: A battery is committed when (1) an offensive or harmful physical contact is made to the client without his consent, or (2) there is unauthorized touching of a person’s body by another person. To avoid charges of battery, always obtain informed consent before providing certain treatments. B) Assault: It is a threat C) False Imprisonment s the restraining of a person without proper legal authorization. Freedom of movement. AMA – Competent leaving the hospital against medical advice. Contact nurse supervisor and provider. Inform the risks and the choice of staying and receiving treatment. D) Invasion of Privacy: discussing pt in public places, photographing, posting pt on social media, search pt belongings without permission and releasing medical info without consent. E) Fraud is the false representation of significant facts by words or by conduct. It can occur through making false statements, falsifying documentation, or concealing information that should have been disclosed. 3) Unintentional Torts  Negligence is the failure to use ordinary or reasonable care or the failure to act in a reasonable and prudent (careful) manner.  Malpractice Applies only to professionals, such as nurses and physicians. Occur when such actions cause injury or death to the client. The person bringing the lawsuit is the plaintif and the person who must defend against the lawsuit is the defendant.

Common malpractice claims:  Failure to assess, failure to analyze the data and make correct nursing diagnoses can lead to incorrect actions, no action, or improper delegation.  failure to plan, failure to formulate a plan of care.

9

 failure to implement, failure to respond, failure to educate, failure to follow standards of care and policies and procedures failure to notify provider, failure to act as an advocate.  failure to evaluate, failure to make a judgement about your interventions. Malpractice/Negligence Liability To win and recover damages (money) in a malpractice lawsuit, the plaintiff must prove four elements:  duty, A duty forms when the client is assigned to the nurse or seeks treatment from the nurse, or when the nurse observes another person doing something that could harm the client.  breach of duty occurs when the nurse fails to meet standards of care. The plaintiff’s attorney will use a nurse to educate the jury how the nurse’s action caused damage to pt. Failure to intervene, failure to communicate.  Causation is usually established based on the testimony of experts. Causation is usually established based on the testimony of experts.  Damages In civil cases, the remedy for the harm the client suffered is money.

Vicarious Liability You are legally accountable for your actions or inactions.

Potential Boundary Violations Between Nurse and Client  Excessive Self-Disclosure—Discussing personal problems or intimate details with the client  Flirtation—Communication that is sexual in nature or reveals personal attraction between client and nurse  Secretive Behavior—When the nurse is defensive or guarded about the interaction between client and nurse  “Super Nurse” Attitude—The nurse who acts as though she is the only one who understands and can meet the client’s needs  Excessive Attention to Client—When the nurse spends much more time with a particular client than is required by his needs. Personal gifts, off-duty visits, or trading assignments are signs of boundary violation.

10

 Unclear Communication—When only part of the story is told about client care. The client might repeatedly seek out the nurse, even when not assigned to his care.

HOW CAN YOU MINIMIZE YOUR MALPRACTICE RISKS? -

Practice proper documentation observe standards of practice use nursing process Avoid medication and treatment errors Report and document: record in detail all care you provided, if it's not documented it was not done.

Charting A basic principle of charting is that a third person should be able to read your documentation and form a mental picture of your client and the care provided during your shift. F—Your information must be factual and objective. Don’t document your opinions. A—You must be accurate: For example, record the vital signs accurately. C—Your information must be complete: Don’t omit any important information. T—You must be timely: Document care as soon as possible after doing it; don’t wait until the end of your shift and then try to remember everything that happened. U—You must always document unusual occurrences. A—You must document your assessment data and the plan of care. L—Remember that the client’s chart is a legal record and is subpoenaed in a malpractice case. Obtain Informed Consent Informed consent is the client’s permission to receive any and all types of care with full knowledge of the risks, benefits, costs, and alternatives.

11

Elements of Consent  Completeness: consumers need adequate information to make educated decisions regarding their treatment. Be sure they get information on the nature of the procedure, risks, benefits, post-procedure care and considerations, and treatment alternatives.  Clarity and Comprehension Language should be at the appropriate educational level so the client (or his surrogate decision maker) can understand the explanation.  Voluntariness The client must be free to accept or reject the treatment.  Competence The person must have the ability to understand the information and make a choice about the particular situation. KEY POINT: You may witness a client’s signature on a consent form, but you are not legally responsible for explaining the treatments and options, or for evaluating whether the provider has adequately explained them. You must, however, determine that the elements of a valid informed consent are in place, communicate the client’s needs for more information to the care provider, and provide feedback if the client wishes to change her consent. Delegate According to Guidelines As a nurse, you are expected to properly delegate to ensure clients receive timely and quality care. This involves implementing the five rights of delegation: delegating the right task to the right person, under the right circumstances, using the right directions and communication, and practicing the right supervision and evaluation. To do this safely, you (the delegator) must know the education background, knowledge, experience, and physical and emotional capability of those to whom you delegate (delegatee). You must also know the scope of practice of the delegatee as determined by the state board of nursing. In addition, you must consider the condition and requirements of the client. The registered nurse should not delegate to LPNs or nursing assistive personnel (NAPs) clients who:    

Require complex care. Are unpredictable. Require nursing judgment. Involve a high level of interaction.

12

13...