Discussion Topic-Ch 2,3

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Nursing Practice and the Law

Chapter 3

Objectives

Identify three major sources of law.
Explain the differences among various types of laws.
Differentiate between negligence and malpractice.
Explain the difference between an intentional tort and an unintentional tort.

Objectives (cont’d)

Explain how Standards of Care are used in determining negligence and malpractice.
Describe how nurse practice acts guide nursing practice.
Explain the purpose of licensure.
Explain the difference between internal standards and external standards.

Objectives (cont’d)

Discuss Advance Directives and how they pertain to patients’ rights.
Discuss the legal implications of the Health Insurance Portability and Accountability Act (HIPAA).

Meaning of Law

Law refers to any system of regulations that govern the conduct of individuals within a community and/or society in response to the need for regularity, consistency, and justice.
Law is the rules that prescribe and control social conduct in a formal and legally binding manner.

Types of Laws

Statutory law
Common law
Administrative law

Statutory Law

Created by various legislative bodies
Congress
State legislatures
Examples of federal statutes
Patient Self-Determination Act of 1990
The Americans with Disabilities Act

Statutory Law (cont’d)

Examples of state statutes
Nurse Practice Acts
Good Samaritan Law

Common Law

Comes from the traditional unwritten law of England.
Based on custom and usage.
Develops within the court system as judicial decisions are made.
One decision creates the precedence for another.

Administrative Law

Procedures created by administrative agencies
City councils
County boards
State government
Established through the authority given to government agencies by a legislative body
Boards of Nursing

Sources of Law

The Constitution

Foundation of American law
The Bill of Rights
Limits the power of the government and protects citizens’ freedoms
Constitutional law evolves as issues emerge.

Statutes

Localities, state legislatures, and the U.S. Congress create statutes.
Ordinances
Local statutes
Example: noise ordinance
Nurses can influence the development of statutory laws.

Administrative Law

Created by administrative agencies that develop specific rules and regulations that direct the implementation of statutory law.
Rules must be consistent with statutory laws.
Specific statutory laws give state Boards of Nursing the authority to issue and revoke licenses.

Agencies

Department of Health and Human Services
Department of Labor
Department of Education

Types of Laws

Criminal Law

Felony
Misdemeanor
Juvenile

Civil Law

Tort
Quasi-intentional tort
Negligence
Malpractice

Other Laws Relevant to Nursing Practice

Good Samaritan Laws

Created to encourage physicians and nurses to respond to emergencies
Protects licensed health-care providers from civil liability as long as they “behave in the same manner as an ordinary, reasonable, and prudent professional in the same or similar circumstances.”

Confidentiality

Patients have the right to confidentiality.
Information should only be shared with others who have a “need to know.”
Need permission to share information
HIPAA

Social Networking

Use of technology has caused an increase in violations of confidentiality.
Breach of confidentiality without intent
Need to be aware of institutional policies on social networking
Immediate termination
Cancellation of contracts/affiliation agreements with outside agencies

Slander and Libel

Quasi-intentional torts
Slander refers to the spoken word.
Libel refers to the written word.
Can refer to patients, coworkers, or other individuals

False Imprisonment

Confining an individual against his or her will
Restraining
Detaining
Removing a patient’s clothes
Keeping a patient who has been medically discharged for an unreasonable amount of time

Assault and Battery

Assault is the threat to do harm.
Battery is touching without consent.
The significance of an assault is embedded in the threat.
Often, the terms are used together.
Informed consent

Standards of Practice

Purpose

Guidelines to ensure quality of care
Criteria to determine if quality care has been delivered
May be specialty directed
AACN standards of care
AWHONN standards of care

Internal Standards

Developed within institutions
Usually explained within specific policies
Included in Policy and Procedure Manuals
Based on current literature and research
Nursing responsibility to meet the institution’s standards

Use of Standards in Nursing Negligence and Malpractice

One of the elements used to determine liability
Use of professional standards
Institutional policy
Standards of the Specialty organization if warranted
Expert opinions

Patient’s Bill of Rights

Created by the American Hospital Association in 1973 and amended in 1992
In 2003, replaced by the Patient Care Partnership
The patient rights were derived from the ethical principle of autonomy.

Informed Consent

Informed consent is a legal document in all 50 states.
Requires physicians to divulge the benefits, risks and alternatives to treatment, nontreatment, and/or procedures.
Allows individuals to be involved in choices about their health care.

Informed Consent (cont’d)

Permits health-care providers to “touch.”
Physicians are responsible for “obtaining” the informed consent.
Nurses are involved in the process when
Witnessing a signature
Clarifying questions
If a nurse assesses that a patient lacks a full understanding of the risks/benefits, the nurse should notify the physician.

Criteria for Informed Consent

A mentally competent adult as voluntarily given the consent.
The client understands exactly what he or she is consenting to.
The consent includes the risks involved in the procedure, alternative treatments, and risk of refusal.
The consent is written.

Implied Consent

Occurs when consent is assumed
Emergency situations
Child is involved and the health-care institution is unable to reach parents and/or legal guardians

Staying Out of Court

Prevention

Practice caring behaviors.
Demonstrate an interest in patients and their families.
Assist patients and families in making choices by providing information.
Maintain accountability.
Adhere to Standards of Practice.

Documentation

Needs to be legally credible
Avoid charting by exception.
Clear, concise, and accurate
Only sign off on medications once administered.
Document assessments after completion.

Keys to Credible Documentation

Contemporaneous
Accurate
Truthful
Appropriate

Common Actions Leading to Malpractice Suits

Failure to assess properly
Failure to report changes in a patient’s condition to the appropriate personnel
Failure to document in a patient’s record
Altering or falsifying a patient’s record
Failure to obtain an informed consent
Failure to report a coworker’s negligence or poor practice
Violation of internal or external standards of practice

What to Do if Named in a Suit

Contact the legal department of your institution.
Answer the complaint.
Obtain legal guidance/representation.
Only sign documents after review by legal counsel or malpractice insurance company.
Maintain a file of all information connected to the case.
BE HONEST.

Professional Liability Insurance

Nurses need to consider obtaining insurance.
Policies protect nurses against personal financial loss.
If a nurse is found guilty of malpractice the employing agency has the right to sue the nurse to reclaim damages.

End-of-Life Decisions and the Law

Do Not Resuscitate Orders (DNRs)
Advance Directives
Patient Self-Determination Act
Living Will
Health-Care Surrogate

Patient Self-Determination Act

Allows individuals to make decisions regarding treatment in advance of a time when they may be unable to make these decisions.
Federal law directs that health-care institutions that receive federal funding inform patients of their right to create advance directives.

Provisions of the Act

Provide information to every patient.
Document.
All patients must be asked if they have a Living Will.
Ask about a health-care surrogate (Durable Power of Attorney).
Must be placed in the patient’s record.
Educate.
Be respectful of patients’ rights.
Have cultural humility.

Nursing Implications

The Patient Self-Determination Act does not specify who should discuss treatment decisions or advance directives with patients.
Nurses are patient advocates.
Nurses need to have knowledge about documents pertaining to the Act.
Review institutional policies.

Issues Affecting Practice

Legal implications of mandatory overtime
Affects patient safety
Position statements from nursing organizations
Nurse Practice Acts
Licensure
Qualifications
Endorsement
Multistate
Disciplinary action

NCLEX-RN

Preparation
Review courses
NCSBN online NCLEX-RN study program
Test plan
Test plan blueprint changed in April 2013
Changes in the blueprint are based on findings from practice.
Level of difficulty increased
Alternative question formats

Preparing for NCLEX-RN

Be positive.
Use relaxation techniques.
Advance planning.
Pack an “NCLEX bag.”
Perform a “dry run” at the same time you would leave to get to the test site to familiarize yourself with the area, parking, etc.
Call the Center and see if you may bring water or snacks.
Eat well and get a good night’s sleep the night before the test.

On the Day of the Test

Eat before you leave.
Leave early and give yourself sufficient time to arrive at your destination.
Bring a jacket or sweater.

Conclusion

Nurses need to understand the legal issues regarding practice.
It is important to know and understand the Nurse Practice Acts in your state.
Patients expect nurses to provide safe, competent, and quality care.