Legal Nurse Case Study
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Chapter_003ethicalandLegalissues.pptxChapter 3
Ethical and Legal Issues in Nursing
Learning Outcomes
Apply the principles included in state nurse practice acts, including scope of practice and unprofessional conduct.
Apply various legal principles when acting in leading and managing roles in nursing practice settings.
Evaluate informed-consent issues, including patients’ rights in research and health literacy, from a nurse manager’s perspective.
Analyze how employment laws benefit professional nursing practice.
Analyze ethical principles and codes and institutional policies that influence nursing practice.
Apply best practices to assist staff in addressing legal and ethical situations, particularly when the law and ethics overlap.
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Professional Nursing Practice: Nurse Practice Acts
Most important piece of legislation for nurses.
Define the categories of nurses.
Set educational and examination requirements.
Establishes a state board of nursing, which develops and implements rules and regulations.
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Licensure and Nursing Practice Acts
Nurse Licensure Compact (NLC)
RNs may be licensed in one state and practice in another state within the compact.
The state where the patient or client resides is the state that regulates the nurse’s practice.
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Negligence and Malpractice
Negligence equates with carelessness.
Malpractice or “professional negligence” concerns professional actions.
Both concern actions taken as well as actions omitted.
Both are nonintentional.
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Elements of Malpractice
Duty/Standard of Care
Breach of Duty/Standard of Care
Causation
Damages
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Duty Owed the Patient
Established through a valid employment contract with the healthcare facility
Based on standards of care or the minimum requirement for acceptable practice
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Breach of Duty Owed the Patient
Synonymous with failing to uphold the standard of care owed the patient
Generally shown at court through the testimony of expert witnesses
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Causation
What the nurse did or failed to do must directly cause the patient’s subsequent harm
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Damages
The patient must be able to prove injury so that damages may be assessed.
Purpose of damages is to compensate the injured party for the harm that was done.
Thus immediate and future medical costs can be assessed.
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Liability
Personal liability: individual responsibility and accountability for actions or omissions
Vicarious liability: employer’s accountability for the negligence of employees
Corporate liability: institution responsibility and accountability for maintaining an environment that ensures quality healthcare delivery for consumers
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Preventing Malpractice Lawsuits
Nurse managers should:
Ensure that employees meet or exceed standards of care
Review standards periodically so that standards can be revised
Review randomly selected patient records for evidence that standards are being met
Perform scheduled evaluations of staff
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Causes of Medical Malpractice for Nurse Managers
Assignment, delegation, and supervision
Duty to orient, educate, and evaluate
Failure to warn
Staffing issues
Accreditation
Mandatory Overtime
Floating
Temporary Staff
Protective and reporting laws
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Assignment, Delegation, and Supervision
Supervision is the active process of directing, guiding, and influencing the outcome of an individual’s performance of an activity.
Delegation is the transfer of responsibility, but not of accountability, for the performance of an activity.
Assignment is the transfer of the responsibility and the accountability for the performance of an activity.
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Duty to Orient, Educate, and Evaluate
Nurse mangers are responsible for the daily evaluation of safe and competent nursing care delivery.
Key is reasonableness and should be determined on a case-by-case basis.
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Failure to Warn
This involves warning subsequent potential employers of staff incompetencies or impairment.
Provided by using qualified privilege, which is communication made in good faith between persons or entities with a need to know.
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Staffing Issues
Three areas to consider:
Maintaining adequate numbers of staff
Floating staff from unit to unit
Using temporary staff to augment current staff numbers
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Accreditation
TJC and the Community Health Accreditation Program (CHAP)
Mandate adequate staffing with qualified personnel
Applies to both numbers of staff and staffing mix
Adequate staffing is based on:
Numbers of patients
Care acuity scores
Numbers and classification of nursing staff
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Mandatory Overtime
Prohibited by several states
Protect employees from disciplinary action or retribution for refusing to work overtime
Establish monetary penalties for the employer’s failure to adhere to the law
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Floating Staff to Alternate Units
One means to ensure that every area of the facility is adequately staffed
Consider staff expertise, patient care delivery systems, and patient care requirements before deciding which staff to float
Cross-train staff during times of adequate staffing
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Guidelines
Nurse managers in times of inadequate staffing should:
Alert agency administration of concerns
Reassign staff as appropriate
Approve overtime for adequate coverage
Restrict new admissions
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Temporary Staff
Has become more important because of the principle of apparent agency.
Patients can infer that the agency staff are working directly for the institution. Thus it is imperative that the agency or temporary nurse can deliver safe and competent nursing care.
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Protective and Reporting Laws
Ensure the safety or rights of specific classes of individuals.
Examples include the mandatory reporting for suspected child and elder abuse and reporting of certain categories of diseases or injuries.
Includes the mandatory reporting of incompetent practitioners.
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Informed Consent
Authorization by the patient or the patient’s legal representative to do something to the patient
Based on legal capacity, voluntary action, and comprehension
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Selected Informed Consent Issues
Research issues are impacted by the federally enacted HIPAA laws.
Research issues vary in regard to de-identified information and protected health information.
Issues also arise in relationship to a patient’s health literacy.
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Privacy and Confidentiality
Privacy: the patient’s right to protection against unreasonable interference with reputation or right to be left alone
Confidentiality: right to privacy of the medical record
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Policies and Procedures
Documents set standards of care for the institution and direct practice.
They must be clearly stated, well delineated, and based on current practice.
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Employment Laws
Nurse managers need to be familiar with several of these federal laws, including
Equal Employment Opportunity Laws
Americans with Disabilities Act of 1990
Occupational Health and Safety Laws
Family and Medical Leave Act of 1993
Whistleblower laws
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Equal Employment Opportunity Laws
Prohibit discrimination based on gender, age, race, religion, handicap, pregnancy, and national origin.
Title VII of the amended Civil Rights Act of 1964 governs these equal employment opportunities.
Amended Civil Rights Act of 1991 governs sexual harassment in the workplace.
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Americans with Disabilities Act of 1990
Provides protection to persons with disabilities
Disability is defined as:
Physical or mental impairment that substantially limits one or more of the major life activities of an individual.
The fact that there is a record of such impairment to the individual is regarded as establishing that the individual has the impairment.
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Occupational Safety and Health Act
Ensures that healthful and safe working conditions exist in the workplace setting.
Newer aspects that the rules address include:
Violence and bullying in the workplace
Safe patient handling
Ergonomic issues common in the healthcare industry
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Family and Medical Leave Act of 1993
Balances the demands of the workplace with the demands of the family, allowing employed individuals to take leaves for medical reasons
Includes care for:
The birth or adoption of a child
Care of a spouse, child, or parent with serious health problems
Healthcare needs of the employed individual himself or herself
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Employment-at-Will and Wrongful Discharge
Public Policy
Jury
Whistleblower Laws
Workers’ compensation claim
Implied Contract
“Good faith and fair dealing”
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Professional Nursing Practice: Ethics
Concern the individual within society and the “why” of actions as opposed to what was done or not done
Provide no right or wrong answers; rather there are better or less desirable actions
Often encountered in conjunction with legal concerns
Example: Theresa Schiavo case
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Ethical Principles
Autonomy: personal freedom
Beneficence: duty to do good
Confidentiality
Fidelity: keeping one’s promises
Justice: fairness
Non-maleficence: do no harm
Paternalism: assisting with decision making
Respect: dignity of the person
Veracity: truth-telling
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Professional Codes of Ethics
Formal statements that articulate values and beliefs of a given profession.
Serve the following functions:
Inform the public of the minimum standards of conduct for members of the profession.
Outline ethical considerations of the profession.
Provide guidelines for ethical practice by members of the profession.
Guide the discipline’s self-regulation.
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Ethical Decision-Making Framework
Use of orderly, systematic, and objective method
Ethical model to assist in complex decision making
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Moral Distress
Occurs when faced with situations in which two ethical principles compete.
Experienced in clinical settings when nurses cannot provide what they perceive is the best care or outcome for a given patient.
Examples include disagreements regarding patient interventions and limited patient care resources.
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Ethics Committees
Provide long- and short-term assistance by:
Providing structure and guidelines for potential problems
Serving as open forums for discussion
Functioning as patient advocates by placing the patient at the core of the committee discussions
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Blending Legal and Ethical Issues
In conclusion,
Read and comply with provisions of the state nurse practice act.
Apply legal concepts in all healthcare settings.
Understand and abide by state and federal employment laws.
Implement the provisions of the Code of Ethics.
If legal and ethical issues are contradictory, legal aspects take precedence.
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