Science

Legal Aspects of Nursing Practice NURS 2300

State Boards of Nursing

 Purpose of licensing:  To protect the public health, safety, and welfare of the

people (not nurses!)  All states have a mandatory licensure law for the

practice of nursing to safeguard the public.   Thus, only licensed nurses – RN or LVN/LPN – can

practice nursing. 

2

Nurse Practice Act Objectives of NPA:  Defines the practice of professional nursing  Sets the minimum educational qualifications and other

requirements for licensure  Determines the legal titles and abbreviations nurses

may use  Provides for disciplinary action of licensees for certain

causes In many states, NPA is a statutory law affecting nursing practice within the bounds of the state.  Nursing Practice Act – defines and controls nursing 

 https://www.bon.texas.gov/pdfs/law_rules_pdfs/nursin g_practice_act_pdfs/npa2013.pdf

Copyright © 2017 by Elsevier Inc. All rights reserved.

3

Composition of the Board of Nursing (BON)

Members appointed by the Governor with advice and consent of senate (13 Members)

1 APN; 2 RNs; 3 LVNs; 1 Nurse Faculty LVN Program; 1 Nurse Faculty ADN; 1 Nurse Faculty BSN; 4 Public Members

State Boards of Nursing and Nursing Education

 The state boards of nursing have the authority to set and enforce minimum criteria for nursing education criteria. 

 An applicant for licensure must graduate from a state- approved nursing education program. 

Copyright © 2017 by Elsevier Inc. All rights reserved.

5

National Council of Licensure Examination for Registered Nurses (NCLEX- RN)

 The licensure exam is updated regularly and tests critical thinking and nursing competence in all phases of the nursing process.

 Computerized adaptive testing  Minimum: 75 Maximum: 145  Duration: 5 hours  How does computerized adaptive testing work? Video:

The Next Generation NCLEX Uses Computer Adaptive Testing ( CAT) | NCSBN

Copyright © 2017 by Elsevier Inc. All rights reserved.

6

Licensure by Endorsement

 Endorsement – the RN may practice in different states without having to take another licensing exam

 Requirements:  Proof of licensure in another state  Licensure fee

 https://www.bon.texas.gov/forms/rninq.asp

7

Nurse Licensure Compact: A Mutual Recognition Model of Licensure

 As of January, 2018- eNLC is now in place  https://nurse.org/articles/enhanced-compact-multi-state-license-eNLC/

 Each state that wishes to participate in the compact must pass legislation enabling the board of nursing to enter into the interstate NLC.

 https://www.bon.texas.gov/discipline_and_complaints_imposter_alerts.asp

8

State Boards of Nursing and Sanctions

 The state boards of nursing has the power to sanction a nurse for performing professional functions that are dangerous to the patient or general public.  Probation  Suspension  Revocation

Most common reason for disciplining nurses: Practicing while under the influence of alcohol or drugs (diverted from workplace).

Copyright © 2017 by Elsevier Inc. All rights reserved.

9

Legal Risks in Professional Nursing Practice

 Malpractice occurs when a professional fails to act as a reasonably prudent professional would have acted under the same circumstances. 

 Malpractice may occur by  Commission – doing something that should not

have been done  Omission – failing to do things that should have

been done

10

Legal Risks in Professional Nursing Practice

Four Elements of a Cause of Action for Negligence 1. The professional (nurse) has assumed the

duty of care (responsibility for the patient’s care; Lunsford Case)

2. The professional (nurse) breached the duty of care by failing to meet the standard of care.

3. The failure of the professional (nurse) to meet the standard of care was the proximate cause of the injury.

4. The injury is proved.

Copyright © 2017 by Elsevier Inc. All rights reserved.

11

Delegation and Malpractice

 Professional nurses may delegate independent nursing activities (as well as medical functions that have been delegated to them) to other nursing personnel.

 State nurse practice acts do not give LPNs or LVNs the authority to delegate.

Copyright © 2017 by Elsevier Inc. All rights reserved.

12

Delegation and Malpractice

 Professional RNs retain accountability for acts delegated to another person.  RN is responsible for determining that the

delegated person (delegatee) is competent to perform the delegated act.

 The delegatee is responsible for carrying out the delegated act safely.

 The professional nurse remains legally liable, however, for the nursing acts delegated to others unless the delegatee is also a licensed professional whose scope includes the assigned act.

Copyright © 2017 by Elsevier Inc. All rights reserved.

13

Delegation and Ethical Implications

ANA Code of Ethics for Nurses Provision 4.4: Delegation of Nurse Activities (2015) The nurse must make reasonable efforts to assess individual competence when assigning selected components of nursing care to other healthcare workers.

This assessment involves evaluating the knowledge, skills, and experience of the individual to whom the care is assigned, the complexity of the assigned tasks, and the health status of the patient.

Nurses may not delegate responsibilities such as assessment and evaluation; they may delegate tasks. Employer policies or directives do not relieve the nurse of responsibility for making judgments about the delegation and assignment of nursing care tasks (p. 2).

Copyright © 2017 by Elsevier Inc. All rights reserved.

14

FIVE MOST FREQUENT ALLEGATIONS

1. Failure to ensure patient safety

2. Improper treatment or performance of treatment

3. Failure to monitor and report

4. Medication errors 5. Failure to follow

facility’s policy and procedure

Malpractice vs Peer Review

Malpractice-Actual injury, Money for compensation, Courts-judges & juries, Statute of limitations

Peer Review-Patient exposed to unnecessary risk of  harm, license restrictions, peer review committees and the BON, No Statute of Limitations

Peer Review

 Enacted in 1987 as part of the Professional Nursing Quality Assurance Act

 Organizations with 10 or more RNs required to have peer review procedure

Peer Review 

1. RN is reviewed at employer (hospital) 2. Complaint is received by BON 3. Informal Hearing at BON 4. Agreed Order/ No agreement 5. Formal Charges filed at State Office of Administrative

Hearings 6. Formal Hearing/Admin. Law Judge 7. State Court

Peer Review 

 The fact of the discipline remains on the RN’s/LVN’s record and is public information

National Data Bank

 The names of all disciplined nurses are sent to the National Practitioner’s Data Bank and the information is available to all nursing licensing boards

 https://www.bon.texas.gov/discipline_and_co mplaints_disciplinary_action.asp

Avoiding Malpractice   Maintain open, honest, respectful relationships and communication with

patients and family members.

 Patients are less likely to sue if they feel that a nurse has been caring and professional. 

 Don't offer opinions when a patient asks what you think is wrong with him-you may be accused of making a medical diagnosis.

 Don't criticize health care providers or their actions when you are with patients.

 Maintain confidentiality in the health care setting.

Avoiding Malpractice 

 Maintain competence in your specialty area of practice.

 Attend relevant continuing education classes.

 Attend relevant hospital in-service programs.

 Expand your knowledge and technical skills.

Avoiding Malpractice 

 Know legal principles and incorporate them into everyday practice.  Keep up to date on your state's nurse practice act.

 Keep up to date on hospital policies and procedures.

 Practice within the bounds of professional licensure.  Perform only the nursing skills allowed within your scope of

practice and that you are competent to perform.

Avoiding Malpractice   Know your strengths and weaknesses. Don't accept a clinical assignment you don't

feel competent to perform.

 Evaluate your assignment with your supervisor

 Accept only those duties you can perform competently

 Let an experienced nurse on the unit assume responsibilities for the specialized duties.

 Document all nursing care accurately.

 If care is not documented, courts assume it was not rendered.

 When documenting care on the patient's chart, use the FACT mnemonic: be f actual, a ccurate, c omplete, and timely. 

Informed Consent

Three Major Conditions of Informed Consent 1. Consent must be given voluntarily. 2. Consent must be given by an individual

with the capacity and competence to understand.

3. The patient must be given enough information.

25

Informed Consent and the Role of the Nurse

 Unless primary providers, nurses collaborate with the primary provider.

 A nurse may witness a patient’s signing but is not responsible for explaining the proposed treatment.

 The nurse is not responsible for evaluating whether the physician has truly explained the significant risks, benefits, and alternative treatments.

 The nurse is responsible for determining that the elements for valid consent are in place, providing feedback if the patient wishes to change consent, and communicating the patient’s need for further information to the primary provider.

26

Confidentiality

Confidentiality – legal and ethical concern. Protection of private information gathered about a patient during provision of care.  The Code of Ethics for Nurses Provision 3.1

states that:  “…the nurse has a duty to maintain

confidentiality of all patient information, both personal and clinical in the work setting and off duty in all venues, including social media and any other means of communication   Nurses are responsible for providing accurate, relevant data to members of the health care team and others who have a need to know” (ANA, 2015).

27

Health Insurance Portability and Accountability Act (HIPAA) of 1996

 What does this mean for nurses?

 What are the consequences?

 Case studies

28

Confidentiality and Social Media

 NCSBN (2011): A Nurse’s Guide to the Use of Social Media

 Confidentiality and HIPAA regulations place significant limitations on the content of nurses’ social media activities and comments.

 NCSBN identified six common  myths and misunderstanding regarding social media.    Video: 

Copyright © 2017 by Elsevier Inc. All rights reserved.

29

Social Media Do's

 Nurses should talk about themselves, the nursing profession, their family, hobbies, and interest

 Never talk about patients or identifiable coworkers

 Avoid identifying your employer on your social media profiles

 Don’t post anything online that you wouldn’t say in front of your boss or human resources

 Uplift the nursing profession

Social Media Don'ts

 Don’t use the employer’s internet to post on social media sites--just don’t post to social media while at work

 Realize that nothing online is ever really anonymous  Become keenly aware of your employer’s social media

policies  Don’t identify your employer on your personal profiles  Don’t do anything you would be embarrassed to say

to your mother, your clergy, your boss, or a potential employer

 Don’t do anything that could degrade or embarrass your profession