Legal Issues in Nursing

Chapter 8 Legal Issues in Nursing and Health Care OBJECTIVES ◼ ◼ ◼ Differentiate among the (3) major categories of law on which nursing practice is established and governed. Distinguish between intentional & un-intentional torts in relation to nursing practice. Outline the essential elements that must be proven to prove a claim of negligence or malpractice. Sources of Law and Nursing Practice ◼ Statutory Law  Definition ◼ Laws written and enacted by legislative bodies ◼ Violations are criminal offenses and are punishable by fines or imprisonment. Sources of Law and Nursing Practice ◼ Federal statutes related to nursing and health care  Have a major impact on nursing care—mandate a minimum standard of care in all settings that receive federal funds (Medicare, Medicaid) Statutory Law

 Emergency Medical Treatment and Active Labor Law (EMTALA) ◼ Enacted to prohibit the refusal of care for indigent and uninsured patients seeking medical assistance in emergency departments ◼ Prohibits the transfer of unstable patients, including women in active labor, from one facility to another ◼ Applicable to nonemergency facilities such as urgent care clinics  Americans With Disabilities Act of 1990 (ADA)—prohibits discrimination against persons with disabilities by removing barriers that might prevent the same opportunities available to persons without disabilities Statutory Law    Patient Self-Determination Act of 1990—requires that federally funded hospitals (Medicare, Medicaid) inform adult patients in writing about their right to make treatment choices and that they ask patients if they have a living will or durable power of attorney for health care Health Insurance Portability and Accountability Act of 1996 (Public Law No. 104-191) (HIPAA)—intent of this law is to ensure confidentiality of the patient’s medical records; the statute sets guidelines for maintaining the privacy of health data The Patient Safety and Quality Improvement Act—allows certain disclosures of patient safety data Statutory Law ◼ State statutes  Nurse Practice Act and board of nursing rules and regulations ◼ Define the scope and limitations of professional nursing practice ◼ Vary from state to state, but common elements include the following:  Definition of the term registered nurse  Description of professional nursing functions  Standards of competent performance  Behaviors that represent misconduct or prohibited practices  Grounds for disciplinary action  Fines and penalties for violations

◼ Each nurse should own a copy and should understand the content. Statutory Law  Violations of the Nurse Practice Act or rules and regulations ◼ Licensing boards have the authority to hear and decide cases against nurses. ◼ Penalties that may be imposed  Issuing a formal reprimand  Establishing a period of probation  Levying fines  Limiting, suspending, or revoking the nurse’s license Statutory Law ◼ Nurse/patient ratio and mandatory overtime statutes  California was the first state to enact a law in January 2004 that mandates the establishment of minimum nurse/patient ratios in acute care facilities (e.g., critical care units, step-down and medicalsurgical units, maternity departments).  Research indicates that improved nurse/patient ratios are associated with lower “failure-to-rescue” rates and lower inpatient mortality rates. Statutory Law ◼ Reporting statutes

 Child Abuse Prevention and Treatment Act and reporting statutes ◼ Laws mandating the reporting of specific health problems and suspected or confirmed abuse ◼ Health professionals must report the following under penalty of fine or imprisonment for failing to do so:  Infant and child abuse  Dependent elder abuse  Specified communicable diseases ◼ Most laws grant immunity from suit within the context of the mandatory reporting statute. Statutory Law ◼ Institutional licensing laws  All facilities that provide health care services must comply with licensing laws.  Generally contained within the law are the following: ◼ Minimum standards for maintenance of the physical plant ◼ Basic operational aspects for major departments—nursing, dietary, clinical labs, and pharmacy ◼ Essential aspects of patient rights and informed consent process ◼ Copies of licensing laws can be obtained from the state health department. American Nurses Association (ANA) Standards of Professional Performance ◼ Should be used along with Standards of Quality Practice to guide nurses Common Law ◼ Created through cases heard and decided in federal and state appellate courts—also known as decisional or judge-made law Common Law ◼ Nursing case law  Body of written opinions about nursing practice, also known as nursing case law

 Importance cannot be overstated in establishing the current standard of practice  One important case established “affirmative duty”— the duty that nurses will exercise independent judgment to prevent harm to patients.  Nurses should review case law and journals dedicated to legal issues in nursing practice.  Common law and case law provide courts with guidelines for deciding future cases. Civil Law ◼ Negligence and malpractice  Negligence is defined as failure to act in a reasonable and prudent manner.  Malpractice is a special type of negligence, that is, the failure of a professional, a person with specialized education and training, to act in a reasonable and prudent manner. Civil Law ◼ Elements essential for proving negligence or malpractice  Nurse owed the patient or client a special duty of care based on the establishment of a nurse-patient relationship.  Nurse breached his or her duty to the patient or client.  The patient suffered actual harm or damage.  Proximate cause or a causal connection has been established between the standard of care provided by the nurse and the patient’s injury. Civil Law ◼ Most frequent allegations of nursing negligence  Failure to ensure patient safety  Improper treatment or negligent performance of treatment  Failure to monitor the patient and report significant findings  Medication errors  Failure to follow the agency’s policies and procedures Civil Law ◼ Negligence and the doctrine of res ipsa loquitur  Doctrine that applies when the negligent act clearly lies within the range of a jury’s common knowledge and experience to determine the standard of care— “the thing that speaks for itself”  Expert nurse witness is not required to help establish the standard of care.  For example, recent studies confirm that approximately 1000 to 2500 foreign bodies (instruments, needles, sponges) are inadvertently left in the patient after surgery. Civil Law ◼ Gross negligence  Reckless act that reflects a conscious disregard for the patient’s welfare  Court may award special damages meant to punish the nurse for the outrageous conduct; these damages are referred to as punitive damages. Civil Law ◼ Criminal negligence  Negligent act also constitutes a crime—The act is deemed so reckless that the action results in serious injury or death to the patient.

 Consequences in addition to criminal charges ◼ Loss of job and livelihood ◼ Suspension or revocation of license ◼ Out-of-pocket fines levied by the nursing board ◼ Significant attorney’s fees ◼ Malpractice insurance may not cover costs in all cases. ◼ Conservative estimates suggest that as many as 98,000 patients die each year as a result of negligence and malpractice of health care providers. Civil Law ◼ Defenses against claims of negligence  In no case may a nurse use the defense “following physician’s orders.”  Emergency situations—Nursing care rendered in a life-threatening emergency may breach the standard of care required under normal circumstances  Governmental immunity—Individual health care workers employed in federal or state facilities are shielded from personal responsibility for damages in malpractice cases.  Good Samaritan immunity—limits a nurse’s liability or shields the nurse from malpractice for rendering emergency assistance outside the employment setting Statutes of Limitation in Malpractice Cases ◼ ◼ Establish time limits within which a person may initiate a lawsuit Time limits vary depending on state laws and a variety of case circumstances. Reasons for Malpractice Insurance

◼ ◼ ◼ ◼ ◼ All nurses purchase malpractice insurance. More states recognize nurse malpractice as a legitimate claim in a civil suit. Functions for RNs and advanced practice nurses are expanding. Increasing floating and cross-training mandates Nurses have increasing responsibility for supervising subordinate staff. Reasons for Malpractice Insurance ◼ ◼ Some employers may fail to initiate an adequate defense for nurses. Lack of coverage will not discourage a lawsuit when there is a legitimate claim. Liability ◼ ◼ ◼ Definition Asserts that every person is responsible for the wrong or injury done to another as the result of carelessness Personal liability  Requires the nurse to assume responsibility for patient harm or injury that is a result of his or her negligent acts  Nurse cannot be relieved of liability by another professional such as a physician or nurse manager.  Damages can be levied against current assets and future earnings. Liability ◼ Personal liability with floating and cross-training  Nurses should be cognizant of state statutes and case law services outside of their usual practice area.  In no case is a nurse permitted to render services if the requisite knowledge to act competently is lacking.  Nurses have a legal duty to refuse specific tasks that they cannot perform safely and competently but should consider negotiation and compromise with the supervisor. Liability ◼ Personal liability for team leaders and managers  Held to the standard of care of the reasonably prudent supervisor  Team leaders and managers have been held negligent for issues surrounding ◼ Triage of staff and equipment ◼ Supervision of subordinates ◼ Delegation of patient care tasks ◼ Reporting of team member performance deficits Liability  Nurse managers and administrators may be held liable for ◼ Inadequate training ◼ Failure to periodically reevaluate staff competencies Legal Issues in Nursing

◼ Failure to discipline or terminate unsafe workers ◼  Negligence in developing appropriate policies and procedures Liability  RNs functioning in the role of team leader or in any supervisory capacity should review the following: ◼ Detailed job description, including responsibilities when asked to supervise in an unfamiliar area or floor ◼ Job descriptions for team members ◼ Formal period of training and mentoring in the role ◼ Validated proof of competencies ◼ Guidelines for personal patient care assignments ◼ Chain of command  Nurse managers and administrators should be aware of case law regarding incompetent charge nurses and team leaders. Liability ◼ ◼ Personal liability in delegation and supervision of team members  Nurses must be absolutely clear about the lawfulness of patient care assignments. Legal Issues in Nursing

 Determine whether it is reasonable and prudent to delegate a task on the basis of knowledge of the worker, patient status, and current work setting conditions. Employer liability—vicarious liability Liability ◼ Defenses against claims of vicarious liability  Charitable immunity  Borrowed servant and “captain of the ship” doctrines  Employer also may be liable for the negligent conduct of nurses within the scope of their employment.  Based on the legal principle of respondeat superior (let the master answer)—adequate numbers of qualified nursing staff Liability ◼ Corporate liability  Health care corporation can be held to a specified standard of care.  Health care facilities have been found corporately liable for failing to have adequate numbers of qualified nursing staff.  The Joint Commission has developed standards related to orientation, training, and education of agency staff. Reducing Legal Liability ◼ Risk management systems  Track incidents and accidents in the facility  Assist in the development of policies and procedures to improve practice  Provide knowledge about federal and state laws, licensing laws, and health care case law Reducing Legal Liability ◼ Incident reports  Nurses are legally bound to report critical incidents to the manager. Legal Issues in Nursing

 Critical incidents that result in patient injury or death may lead to a malpractice claim.  Know appropriate procedures for completing and filing the incident report.  Describe events objectively; avoid subjective comments or personal opinions.  Never note in the medical record that an incident report was completed or filed.  Never photocopy the incident report. Legal Issues in Nursing

 Physician’s order for an incident report should not be written in the chart.  Report every unusual occurrence or incident. Intentional Torts in Nursing Practice ◼ Definition  Direct violation of a person’s legal rights  Plaintiff does not have to prove that the nurse breached a special duty or was negligent.  Consequences include fines and punitive damages but may rise to the level of criminal acts. Intentional Torts in Nursing Practice ◼ Assault and battery  Assault is causing a person to fear that he or she will be touched without consent.  Battery is the unauthorized touching or the actual harmful or offensive touching of a person and may rise to the level of a crime.  Nurse should ask the patient’s permission before initiating any procedure and should document permission granted. Intentional Torts in Nursing Practice ◼ Defamation of character

 Libel is defamation caused by written work.  Slander is defamation caused by spoken word.  Nurses are subject to libel for subjective comments written in the medical record.  Nurses are subject to slander when they repeat subjective comments about patients in public places. Intentional Torts in Nursing Practice ◼ False imprisonment  Unlawful restraint or detention of another person against his or her wishes  Nurse has no authority to detain a patient even if there is likelihood of harm or injury. Intentional Torts in Nursing Practice ◼ ◼ Invasion of privacy  Person’s private affairs (including health history and status) are made public without consent.  Nurse has a legal and ethical duty to maintain patient confidentiality. Intentional infliction of emotional distress  Nurse’s behavior is so outrageous that it leads to the patient’s emotional shock. Legal Issues in Nursing

The Nurse and Criminal Law ◼ Definition  Crime is an offense against society that is defined through written criminal statutes or codes.  Punishable by fines, imprisonment, or the death penalty in some states  An increasing number of nurses are being charged with criminal acts. The Nurse and Criminal Law ◼ Misdemeanor offenses  Minor criminal offenses  Common offenses nurses are charged with ◼ Illegal practice of medicine ◼ Failing to report child abuse ◼ Falsification of medical records ◼ Assault and battery and physical abuse of patients The Nurse and Criminal Law ◼ Felony acts  Major criminal offenses  Common offenses ◼ Drug trafficking ◼ Fraud in billing services for Medicare patients ◼ Theft, rape, murder The Law and Patient Rights ◼ Advance directives  Statutes grant adults the right to refuse extraordinary medical treatment when there is no hope of recovery. Legal Issues in Nursing

 Patient’s wishes are made known through the execution of a formal document known as the living will.  Medical and physician directives ◼ Document that lists the desire of the patient in a particular scenario ◼ If properly executed, provides the physician with immunity from claims of negligence in the patient’s death The Law and Patient Rights  “Do not resuscitate” orders ◼ Written by the physician on the basis of directives by the patient ◼ Nurses have an absolute duty to respect the patient’s desires in DNR orders. ◼ A lawfully executed DRN order must be followed.  Durable power of attorney for health care—document that authorizes the patient to name the person who will make the day-to-day and end-of-life decisions when he or she becomes decisionally incompetent The Law and Patient Rights ◼ Informed consent  Physician or advanced practice nurse has a duty to disclose information, so the patient can make intelligent choices.

 Mandated by federal statute and state law  Information that must be disclosed ◼ Nature of the therapy or procedure ◼ Expected benefits and outcomes ◼ Potential risks The Law and Patient Rights  The provider cannot delegate the duty to the RN.  If the nurse has reason to believe that the patient has not given informed consent, the provider should be immediately notified.  In no case should the nurse attempt to convey information required for informed consent. The Law and Patient Rights ◼ The right to refuse treatment  An adult of sound mind has a right to refuse any treatment that has previously been agreed to.  Nurse must notify the provider if a patient refuses treatment.  The provider should give the patient information about the consequences, risks, and benefits of refusing treatment and should explore available alternatives. The Law and Patient Rights   Leaving against medical advice (AMA) ◼ Nurse must act promptly to notify the provider. ◼ Nurse must clearly articulate the danger inherent in leaving. ◼ Value of AMA document will depend a great deal on the nurse’s charting, which should note that leaving the facility could result in the following:  Aggravated current condition and complicated future care  Permanent physical or mental impairment or disability  Complications leading to death Nurses have been charged with offenses, including assault, battery, and false imprisonment, when they unlawfully detain patients. Legal Issues in Nursing

The Law and Patient Rights ◼ The use of physical restraints  Restraint of any form—chemical or physical—is a kind of imprisonment.  Goal when clinical restraints are indicated is to use the least restrictive restraint and only when all other strategies to ensure patient safety have been exhausted.  Use of physical and chemical restraints and seclusion are governed by federal and state statutes and accrediting bodies.  Charges of assault and battery and false imprisonment can be leveled against nurses who use restraints improperly. The Law and Patient Rights  Nurses may lawfully apply restraints in an emergency when, in their independent judgment, no other strategies are effective in protecting the patient from harm.

 Careful nursing documentation is essential when restraints are applied. NCLEX QUESTIONS ◼ ◼ ◼ ◼ ◼ The nurse learns in orientation that an incident report does not “blame” anyone but concisely documents the events leading up to an occurrence. Which of the following events would warrant completion of an incident report? (Select all that apply.) A. The patient is crying and distraught when he learns of a diagnosis of cancer. B. An intravenous antibiotic given preoperatively does not infuse because of a faulty pump. C. The nurse is unable to carry out orders written by the specialist because of illegibility. D. A client falls while in the shower, although she was told not to get up alone. E. The registered nurse is not available to complete the preoperative checklist. NCLEX QUESTIONS ◼ All 50 states would require the nurse to report to leg .