Chapter 7 Legal Dimensions of Nursing Practice PDF

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Ivy Tech Community College NRSG 100 Chapter 7: Legal Dimensions of Nursing Practice LEGAL CONCEPTS Legal accountability of nurses is expanding Nurses are increasingly the subjects of both civil and criminal negligence cases and are being brought to court to defend their practice To avoid legal conflicts, nurses need to develop trusting nurse-patient relationships, practice within the scope of their competence, and identify potential liabilities to their practice and work to prevent them DEFINITION OF LAW Law = standard or rule of conduct established and enforced by the government that is intended to protect the rights of the public Public law = regulates relationships between government and individuals Private law = regulates relationships among people Civil law = laws relating to contracts, ownership of property, and the practice of nursing, medicine, pharmacy, and dentistry Criminal law = concerns state and federal statutes SOURCES OF LAW 4 sources: constitution, statutory, administrative, and common law Constitution = either federal/state and give authority and provisions for establishing state laws Statutory = Laws to keep with both federal constitution and state constitution. Example - Nurse Practice Acts Administrative = agencies are responsible for law enforcement and have power to make rules and regulations. Example – State Boards of Nursing Common = evolved from previous judiciary decisions. Precedent (case that first sets the rule by decision) has been set LITIGATION Lawsuit = legal action in court Litigation = process of bringing and trying a lawsuit Plaintiff = person or government bringing suit against another Defendant = one being accused of the crime or tort 2 levels of court – trial and appellate Trial = hears all evidence in the case and makes decisions based on facts, usually through a jury Appellate = hears only cases questioning a point of law decided by the trial court. No witnesses testify. Opinions of appellate courts become common law PROFESSIONAL AND LEGAL REGULATION OF NURSING PRACTICE

NURSE PRACTICE ACTS **Indiana Nurse Practice Act is the most important law affecting your nursing practice Nurse Practice Acts broadly defines the legal scope of nursing practice. Also, lists the violations that can result in disciplinary actions against a nurse and also serve to exclude untrained or unlicensed people from practicing nursing Grounds for revoking or suspending a nursing licensed in Indiana: See page 19-22 of Indiana Nurse Practice Act STANDARDS Voluntary standards = not mandatory, but are used as guidelines for peer review. Example: ANA standards of practice Legal standards = developed by a legislature and are implemented by an authority to determine minimum standards for education of nurses, set requirements for licensure or registration, and to decide when a nurse’s license may be suspended or revoked. Example: state Nurse Practice Act CREDENTIALIING Credentialing = ways to which professional competence is ensured and maintained 3 processes for credentialing 1. Accreditation = process by which an educational program is evaluated and recognized as having met certain standards. Most schools seek NLNAC or AACN accreditation, which is a voluntary accreditation. It is not a legal requirement to have NLNAC or AACN accreditation; state accreditation is a legal requirement. Students who attend a school without NLNAC or AACN accreditation may have some difficulty obtaining employment as most employers prefer a graduate from a NLNAC or AACN school. 2. Licensure = candidate meets certain minimum requirements and grants a license. License may not be revoked without due process. Drug or alcohol abuse is most frequent reason for license revocation. Other reasons: fraud, deceptive practices, criminal acts, previous disciplinary actions by another state board, gross or ordinary negligence, and physical or mental impairments. 3. Certification = process by which a person who has met certain criteria established by nongovernmental association is granted recognition in a certain practice area. Voluntary and offered by American Association of Critical Care Nurses and American Nurse’s Credentialing Center CRIMES AND TORTS Wrong committed against a person or his/her property is either classified as a crime or a tort CRIMES Crime = violation punishable by the state Classified as misdemeanor (commonly punishable with fines, imprisonment of less than 1 year, or parole) or felony (punishable by imprisonment in a state or federal penitentiary for more than one year)

TORTS Tort = subject to action in a civil court with damages usually being settled with money May be unintentional or intentional Intentional = assault and battery, defamation of character, invasion of privacy, false imprisonment, and fraud Intentional = person committing intentional tort has knowledge of the permitted legal limits of his or her own words or acts Unintentional torts are referred to as negligence Intentional torts Assault and battery Definition

Examples

Assault

Threat or attempt to make bodily contact with another person without that person’s consent

Threatening to push a patient in a chair, to place patient in restraints

Battery

Assault that is carried out

Any willful, angry, violent, negligent touching another person’s body or clothes or anything attached to or held by that person

Defamation Definition = one person makes derogatory remarks about another that diminish the other party’s reputation Slander = oral defamation Libel = written defamation Plaintiff can be awarded civil damages and amount is based on amount of harm done to the plaintiff Invasion of privacy Patients have a right to have information kept confidential. According to HIPAA, patients have a right: 1. To see a copy of their health record 2. To update their health record 3. To get a list of disclosures a healthcare institution has made independent of disclosures made for the purposes of treatment, payment, and healthcare operations 4. To request a restriction on certain uses or disclosures 5. To choose how to receive health information HIPAA punishments: Up to $250,000 fine or go to jail for up to 10 years

False imprisonment Cannot legally force person to remain in health agency, if of sound mind, even if healthcare practitioners believe the person should remain for more care Patients may discharge themselves out as AMA (against medical advice) Those who are mentally ill may be committed to a psychiatric institution without consent when it can be proved that they may be harmful to themselves or others Fraud Willful and purposeful misrepresentation that could cause, or has caused, loss or harm to a person or property Unintentional torts Negligence and malpractice Negligence = performing an act that a reasonably prudent person under similar circumstance would not do or conversely, failing to perform an act that a reasonably prudent person under similar circumstances would do Malpractice = negligence by a health care personnel Elements of liability 4 elements must be present to prove malpractice/negligence Duty – obligation to sue due care and is defined by standard appropriate for nurse-patient relationship Breach of duty – failure to meet the standard of care Causation – most difficult one to prove; failure to meet the standard of care actually caused the injury Damages – actual harm or injury resulting to the patient Standards of practice Responsible for following standards of care for their particular area of practice LEGAL SAFEGUARDS FOR THE NURSE INFORMED CONSENT OR REFUSAL Informed and voluntary consent is needed for admission, for each specialized diagnostic procedure or medical or surgical treatment, or for any experimental treatments or procedures Consent must be signed by patient; unless there is an emergency and an immediate threat to life or health is present, experts agree there is an emergency and patient unable to give consent, and if patient is unable to give consent and a legally authorized person cannot be reached Nurse’s role = confirm that a signed consent is present in the patient’s chart and to answer any patient questions about the consent Nurse may sign consent form as a witness to patient signing form CONTRACTS

Your employment contract should specify what it is reasonable for you to expect of your employer and what the employer can expect of you COLLECTIVE BARGAINING Some may find that their interests are better protected when contracts are negotiated as a group versus individually Legal process in which representatives of organized employees negotiate with employers about matters such as wages, hours, and conditions COMPETENT PRACTICE **Nurses most important and best legal safeguard Legal safeguards 1. Respecting legal boundaries of practice 2. Following institutional procedures and policies 3. “Owning” personal strengths and weaknesses; seeking means of growth, education, and supervised experience to ensure continued competence for new and evolving responsibilities 4. Evaluating proposed assignments 5. Keeping current 6. Respecting patient rights and developing rapport with patients 7. Keeping careful documentation 8. Working within the agency to develop and support management policies PATIENT EDUCATION Determine what aspects of patient education is the nurse’s responsibility Look at job description and be familiar with agency policies regarding patient education and documentation Forms and checklists can facilitate rapid documentation EXECUTING PHYSICIAN ORDERS Nurses are legally responsible for carrying out orders of the physician in charge of a patient unless an order would lead a reasonable person to anticipate injury if it were carried out Guidelines 1. Know who can write orders for nurse to execute 2. Be familiar with agency’s policy about physician orders 3. Attempt to get all physician orders in writing. Verbal and telephone order should only be done in an emergency and should be countersigned within 24 hours 4. Question physician orders that are ambiguous, contraindicated by normal practice, contraindicated by patient’s present condition DELEGATING NURSING CARE May delegate aspects of nursing care, but not the nursing process Nurse still accountable for any actions that are delegated

DOCUMENTATION Must be factual, accurate, complete, and entered in a timely fashion Write comprehensive nursing notes for each patient problems addressed during your shift ADEQUATE STAFFING Understaffing results in reduced quality of nursing care and may jeopardize patient safety Nurse working at an agency understaffed would still be held to a professional standard of judgment with respect to accepting responsibility for work and delegating nursing responsibilities to others WHISTLE-BLOWING Effort by a member of past member of an organization to deliver a warning to the public concerning a serious wrongdoing or danger crated or masked by the organization Decision to whistle blow may result in a nurse threatened with loss of job or license Some states have whistleblower laws PROFESSIONAL LIABILITY INSURANCE Due to increasing number of malpractice claims, nurse may consider liability insurance Reasons ANA supports nurse obtaining insurance: 1. Protection of the nurse’s best interests 2. Limitation of employer’s coverage 3. Care or advice given outside work RISK MANAGEMENT PROGRAMS Programs designed to identify, analyze, and treat risks Elements of such programs 1. Safety program – provide safe environment to meet basic needs 2. Product safety program – ensure safe and adequate equipment 3. Quality assurance program – provide quality healthcare to all patients INCIDENT, VARIANCE, OR OCCURRENCE REPORTS Used to document the occurrence of anything out of the ordinary that results in, or has the potential to result in, harm to a patient, employee, or visitor Used for quality improvement and not for disciplinary action Means of identifying risks Incident report improve the management and treatment of patients by identifying high-risk patterns and initiating in-service programs to prevent future problems Incident reports should be filled out by the nurse responsible or who witness the injury Do not document in patient’s record that an incident report was completed SENTINEL EVENTS

Definition = unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. Accredited organizations are expected to identify and respond to all sentinel events Appropriate responses: root cause analysis (RCA), implementation of improvement to improve risk, and monitoring of the effectiveness of these improvements NEVER EVENTS National Quality Forum lists 28 events that are termed “serious reportable events” that should never happen. Examples: wrong site surgery, leaving object in after surgery Website: http://www.qualityforum.org/Publications/2007/03/ Serious_Reportable_Events_in_Healthcare%E2%80%932006_Update.aspx

PATIENT’S BILL OF RIGHTS Nurse needs to be aware of agency’s patient’s bill of rights as each agency differs GOOD SAMARITAN LAWS Protect health practitioners when they give aid to someone in an emergency Laws vary from state to state Indiana law: http://www.ai.org/legislative/ic/code/title34/ar30/ch12.html STUDENT LIABILITY Held to the same standard of care that would be used to evaluate the actions of a registered nurse Responsible for being familiar with agency policies and procedures...