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Chapter 5 Legal and Legislative Issues

Learning Objectives

1. Identify the primary sources of law and how each affects nursing practice (ATI p 42) (Text 111-112)

2. Describe the types (criminal, civil, and administrative) of legal cases nurses may be involved in and differentiate between the burden of proof and the potential consequences for rule breaking in each (ATI p 42) (Text p 111-115)

*Federal Regulations (ATI p 42) (Text 125, 127)

*State Laws (ATI p 42) (Text p 129-30)

Learning Objectives

3. Identify specific doctrines used by the courts to define legal boundaries for nursing practice (ATI p 42) (Text p 114)

4. Describe the five elements that must be present for a professional to be held liable for malpractice (ATI p 43) (Text p. 114-118)

5. Identify strategies nurses can use to reduce their likelihood of being sued for malpractice (Text p. 118)

6. Identify types of intentional torts as well as strategies nurses can use to reduce their likelihood of being sued (ATI p 42) (Text p 121)

Learning Objectives

7. Describe appropriate nursing actions to ensure informed consent (ATI p 36-37) (Text p 123)

8. Describe the need for patient and family education regarding treatment and end-of-life issues as part of the Patient Self-Determination Act (Text p 125)

9. Describe conditions that must exist to receive liability protection under the Good Samaritan laws. (ATI p 43) (Text p 127)

Learning Objectives

10. Recognize his or her legal imperative to protect patient confidentiality in accordance with the Health Insurance Portability and Accountability ac Act of 1995 (Text p 127)

11. Identify the role State Boards of Nursing play in professional licensure and discipline (ATI p 43 (Text p 129-30)

* Standards of Care (Practice) (ATI p 44) (Text p 115-116, 122, 129, 138, 147,315,625)

* Advance Directives (ATI p 38) (Text p 125)

Learning Objectives

Confidentiality—Privacy Rule (ATI p 40) (Text p 127)

* Confidentiality and Information Security (ATI p 40) (NCSBN)

* Use of Social Media (ATI p 41) (NCSBN)

* Reporting Incidents (ATI p 69-71) (Text p 121)

Types of Law

Criminal law

Civil law

Administrative law

Civil Cases (Typically Including Malpractice)

One individual sues another monetarily to compensate for a perceived loss.

Burden of proof required to be found guilty is a preponderance of the evidence.

Two Types of Negligence

Ordinary negligence

Professional negligence (also called malpractice)

Nurses Risk Increased Legal Liability Due to: #1

More authority and independence in decision making

Increased legal accountability for decision making

Doing more things that used to be in the realm of medical practice

Making more money

More are carrying malpractice insurance

Nurses Risk Increased Legal Liability Due to: #2

Nurses need malpractice insurance not only because of their expanded roles but also because they incur a greater likelihood of being sued if they have malpractice insurance since injured parties will always seek damages from as many financial resources as possible.

Standard of Care

A minimal level of expertise that may be delivered to a patient

The conduct of a reasonably prudent nurse in similar circumstances

Malpractice

The failure of a person with professional training to act in a reasonable and prudent manner—also is called professional negligence.

Five Components Necessary for Professional Negligence #1

A standard of care is in place.

There is a failure to meet the standard of care.

Foreseeability of harm must exist.

There must be a provable correlation between care and harm.

Actual patient injury must occur.

Five Components Necessary for Professional Negligence #2

Being ignorant is not a justifiable excuse, but not having all the information in a situation may impede one’s ability to foresee harm.

Under Ordinary Circumstances

The question of whether a nurse acted with reasonable and prudent care is determined by the testimony of expert nursing witnesses.

Being Sued for Malpractice

“Just following physician orders” is not a defense for malpractice.

Nurses have an independent responsibility to take appropriate steps to safeguard patients.

Other Legal Terms

Stare decisis

Liability

Tort

Respondeat superior

Vicarious liability

Product liability

Stare Decisis

Means “to let the decision stand” (use precedents)

Respondeat Superior

Means “the master is responsible for the acts of his servants”

Res Ipsa Loquitur

Latin term meaning ”the thing speaks for itself”

Harm is obviously the result of negligence.

Intentional Torts #1

Assault and battery

False imprisonment

Invasion of privacy

Defamation of character

Intentional Torts #2

The use of physical restraints has led to claims of false imprisonment.

Frequent Causes of Claims Against Nurses #1

Inadequate charting

Inadequate communication with physician or supervisors about changes in patient conditions

Leaving potentially harmful items within patient reach

Frequent Causes of Claims Against Nurses #2

Unattended patient falls

Inaccurate counting of operative instruments and sponges

Misidentifying patients for medications, surgeries, tests

The Board of Registered Nursing Protects Citizens by: #1

RN licensing

Monitoring of RN educational standards

RN continuing education

Disciplining RNs

The Board of Registered Nursing Protects Citizens by: #2

Boundaries for practice are defined in the Nurse Practice Act of each state.

RN Licensure #1

Remember that nursing licensure is a privilege and not a right.

RN Licensure #2

Since the first mandatory Nurse Practice Act passed in New York in 1938, nursing has been legislated, directed, and controlled to some extent.

Nurse Practice Act

The Nurse Practice Act is a legal instrument that defines what the functions of nursing shall be and sets standards for licensure.

It grants a nurse the authority to carry out those functions.

Each state has its own Nurse Practice Act, but all must be consistent with provisions or statutes established at the federal level.

Types of Consents

Informed consent

Implied consent

Express consent

Informed Consent

Obtained only after the patient receives full disclosure of all pertinent information regarding the surgery or procedure and only if the patient understands the potential benefits and risks associated with doing so.

Medical Records

Although the patient owns the information in the medical record, the actual record belongs to the facility that originally made the record and is storing it.

Health Insurance Portability and Accountability Act (HIPAA) of 1996

Protects the privacy of health information and improves the portability and continuity of health insurance coverage.

Good Samaritan Immunity

Generally, a nurse is not liable for injury that occurs as a result of emergency treatment, provided that:

Care is provided at the scene of the emergency.

The care is not grossly negligent.

Patient Self-Determination Act (PSDA)

Required health-care organizations that received federal funding (Medicare and Medicaid) to provide education for staff and patients on issues concerning treatment and end-of-life issues

Includes the use of advance directives (ADs), written instructions regarding desired end-of-life care

Also likely includes durable power of attorney for health care (health-care proxy)

Legal Responsibilities of the Nurse-Manager

Reporting dangerous understaffing

Checking staff credentials and qualifications

Carrying out appropriate discipline

Common Causes of Professional Nursing License Suspension or Revocation #1

Professional negligence

Practicing medicine or nursing without a license

Obtaining a nursing license by fraud or allowing others to use your license

Common Causes of Professional Nursing License Suspension or Revocation #2

Felony conviction for any offense substantially related to the function or duties of an RN

Participating professionally in criminal abortions

Not reporting substandard medical or nursing care

Common Causes of Professional Nursing License Suspension or Revocation #3

Providing patient care while under the influence of drugs or alcohol

Giving narcotic drugs without an order

Falsely holding oneself out to the public or to any health-care practitioner as a “nurse practitioner”