Basic Nursing Ch 4: "Legal Principles in Nursing"

Common Laws and Statutory Laws
Laws that apply to nursing practice were derived from these two sources.
Common Law
Based on judicial decisions or case law precedent
Statutory Law
Rules codified by legislative bodies of government.
Example of judicial decision
Roe v. Wade. U.S Supreme Court identified time periods in which elective termination of a pregnancy is legal.
Example of a Federal Statute
Americans with Disabilities Act(ADA) which protects the rights of handicapped individuals.
Nurse Practice Acts
-statutes enacted by state legislatures to regulate the practice of nursing
-define the scope of nursing practice
-set educational roles
-distinguish between nursing practice and medical practice
-establish regulatory agency
—State Board of Nursing
—-guides regulations
—-must pass the National Council License Examination (NCLEX)
The State Board of Nursing
Has the power to suspend or revoke a nurses license if the nurse’s conduct violates provisions of the licensing statute. Criminal law violations, even if unrelated to nursing , may jeopardize your license status. Because the nursing license is a common law property right under the law, the State Board must fulfill the constitutional duty of due process in any suspension or revocation situation.
Criminal Laws
are federal or state statutory laws that define as a crime certain actions that inflict or threaten substantial harm to individuals or the public interest with out justification
Criminal Laws
are separated into 2 groups. Misdemeanor and Felony.
Misdemeanor
is a crime that while injurious, does not inflict serious harm. Usually has a penalty of a monetary fine,forfeiture, or brief imprisonment.
Felony
is a serious offense that results in significant harm to another person or to society in general. May carry penalties of monetary restitution , imprisonment for greater than a year, or death.
Nurse Practice Act violations
that may carry criminal penalties include practicing nursing with out a license and misuse of controlled substances.
Torts
a violation of a civil law in which an individual has been wronged. may be intentional or unintentional.
Intentional Tort
Deliberate acts that violate another persons rights. An example in heath care is assault and battery.
Unintentional Tort
a wrong that the defendant did not mean to commit; a case in which a bad outcome occurred because of the failure to exercise reasonable care
Assault
Intentional threat toward another person that gives that person a reasonable fear of harmful contact. No actual contact is required for a assault to occur. Example in nursing is to threaten to restrain a patient for an x-ray procedure when the patient refuses consent.
Battery
Any intentional touching with out consent or lawful justification, The touching may be harmful to the patient by causing injury or it may be merely offensive to the patients dignity. This is why the law routinely combines the terms assault and battery. Example of battery in health care is when a patient has consented to a right knee surgery and the surgeon performs surgery on the left knee. Example of assault and battery is too threaten to restrain a competent patient for a un-consented x-ray procedure and then actually restraining the patient.
Negligence is an unintentional tort.
Negligence is conduct that falls below the generally accepted standards of care of a reasonably prudent person. Example is a drivers failure to stop at a clearly identified stop sign.
Malpractice
is a example of negligence , some times referred to as professional negligence.
To establish the elements of malpractice
the patient or plaintiff must prove the following-
1- the nurse defendant owed a duty to the patient
2- the nurse breached that duty
3- the patient was injured because of the nurses breach of duty
4- the patient has accrued damages as a result of the injury.
Negligent acts may result in lawsuits against hospitals and nurses.
The best way to avoid being liable for malpractice
is to give nursing care that meets the generally accepted standard of care.
Standards of Care
are defined by the following:

(1) State Nurse Practice Acts

(2) State and federal hospital licensing laws and accreditation rules

(3) Professional and specialty organizations

(4) Written policies and procedures of the nurse’s health care facility.
Written policies and procedures of the nurses health care facility are specific guidelines and directions for nursing care and are usually found on every nursing unit in policy and procedural manual.

Common Sources of Negligence
Medication errors that result in injury to patients, IV therapy errors resulting in infiltration or phlebitis, Burns to patients caused by equipment, bathing, or spills of hot liquids and foods, Falls resulting in injury to patients, Failure to use aseptic technique when required, Errors in sponge , instrument, or needle counts in surgical cases, Failure to give a report, or giving incomplete report to oncoming shift personnel, Failure to adequately monitor a patients condition, Failure to notify a health care provider of a significant change in a patients status.
Some states have developed “Apology Statutes”
that encourage the health care provider to disclose errors or unexpected outcomes to the patient/family with out admitting liability. These statutes are designed to decrease litigation.
Anatomy of a lawsuit
Review on page 51 in the book, not typing all of that.
Malpractice insurance
usually provides you with an attorney, the payment of attorney’s fees and the payment of any judgment or settlement if a patient sues you for medical malpractice. You will need your own coverage if working on your own. If you work for a health care facility , their policy will cover you during your employment.
Documentation
written, legal record of all pertinent interventions with the patient—assessments, diagnoses, plans, interventions, and evaluations. ” If it was not charted, it was not done”. This is your 1st line of defense against claims. Provides proof and factual information in court.
Occurrence report/incident report
When there is a deviation from the standard of care, such as when a patient or visitor falls or an error is made, you make specific documentation of the event or incident.
Risk Management and Quality Assurance
Involves several components , including identifying possible risk, analyzing them, acting to reduce the risk and evaluating the measures taken to reduce risk. The joint Commission requires the use of quality improvement and risk management procedures. Both quality improvement and risk management require good documentation.
Tool used in risk management
Occurrence report/incident report
Good Samaritan Law
This law deals with the rendering of first aid by health care professionals at the scene of an accident or sudden injury. It encourages health care professionals to provide medical care within the scope of their training without fear of being sued for negligence. Once you start care, you are responsible with following through with care. Do not stop rendering care until some one is there to take over, like the EMS or you could be held liable for abandonment.
Restraints
restrict a person’s freedom; intended to prevent falls but may cause them instead; require a physician order (has to be renewed every 24 hours); must document the device and nursing assessment; alternatives – move client closer to the nurses station, have a family member sit with them at all times, use bed alarms, reposition frequently, observe and document patients response to alternatives before restraining them
Death and Dying
Know your legal responsibilities. Document all events that occur when caring for the dying patient. Two standards for determination of death. Cardiopulmonary- Failure of respiratory functions. Whole brain standard- irreversible failure of all functions of the entire brain, including the brain stem. Legal standard in determining death in all situations.
Deceased
You are legally obligated to treat your deceased patients remains with dignity and care. Wrongful handling causes emotional harm for the survivors.
Advanced Directives
allows patients to give directions to health care providers about treatment choices in circumstances in which the patient may no longer be able to provide that direction. There are two types: Living Will and Durable Power of Attorney
Living Will
a document which governs the withholding or withdrawal of life-sustaining treatment from an individual in the event of an incurable or irreversible condition that will cause death within a relatively short time, and when such person is no longer able to make decisions regarding his / her medical treatment
Durable Power of Attorney for Health Care
a person appointed as a proxy for health care decisions. The proxy is a spokesperson for the patient when he/she becomes incapable of making choices about treatment. goes into effect anytime the person is incompacitated and is not limited to terminal illness. the document can also specify some of the person’s wishes
Organ and Tissue Donation
Requires a signed consent before donations. Back of drivers license is not valid if license is expired and has to give consent each time the license is renewed, Hospital is not liable for honoring a patients request despite family objections. Health care locations will honor family wishes even if the conflict with the patients organ donation consent.
Organ and Tissue Donation
In most states, there is a law that requires that at the time of death a qualified health care provider as the patients family members to consider organ donation or tissue donation. You approach individuals in the following order. 1- Spouse 2- adult son or daughter 3-parent 4- adult brother or sister 5-grandparents 6 – guardian.
Autopsies
Requires consent by patient before death or by a close family member at the time of death. Priority for giving consent for autopsies . 1- patient in writing before death. 2 – durable power of attorney, 3- surviving spouse 4- surviving child ,parent,brother or sister in the the order named.
Autopsies
State statutes specify that when there are reasonable grounds to believe that a patient died as result of violence , homicide, suicide , accident , or death occurring in any unusual or suspicious manner, you need to notify the coroner. You also notify the coroner if a patients death is unforeseen and sudden and a health care provider has not seen the patient in 36 hours.
Confidentiality
The obligation not to reveal information obtained about a patient except to other health-care professionals involved in the patient’s care, or under subpoena, or in a court of law, or when the patient has signed a release of confidentiality. Do not discuss patients information in the hallways ect.
Physicians or Health Care Providers Orders
A nurse is responsible for carrying out medical treatments via orders unless they are in error, violates hospital policy , or is harmful to the patient., Therefor you will assess all physicians orders and determine if they are erroneous or harmful , obtain further clarification from that physician or heath care provider,
Physicians or Health Care Providers Orders
If the physician or health care provider confirms a order and you still believe the order is inappropriate , inform the nurse manager or the nursing supervisor. Do not carry out a order if there is a risk that harm will come to the patient. Your supervisor will help resolve the questionable order. If you carry out a questionable order with out any support consultation, you are legally responsible for the harm suffered.
Nursing Students
Responsible for all their actions that cause harm to patients. When a patient is injured as a direct result of your actions, you, your instructor, the staff nurses working with you and the hospital or health care facility may all share the liability for the incorrect action.
Nursing Students
Faculty members are responsible for instructing and observing their students, but in some situations, staff nurses also share these responsibilities. No one should assign a student nurse to a task they are unprepared for. If you are a nursing student and are employed as a aide, you can not perform things you have learned in school in the role of being a aide.
Patient Abandonment and Delegation Issues
You will encounter inadequate staffing during times of nursing shortages and staff downsizing periods in a effort to manage cost. The joint commission requires institutions to have guidelines for the number of staff needed to care for patients.
Patient Abandonment and Delegation Issues
Liability issues exist if a heath care facility does not have enough registered nurses to provide competent care and if a patient is injured as a result of negligent care by any personnel. If you are assigned to more patients than is reasonable for safe care, notify your nursing supervisor. If you are required to accept the assignment, document this information in writing and provide the document nursing administrators.
Patient Abandonment and Delegation Issues
If a staffing issue is present, do not abandon your patients, If a problem comes about, make sure you have your documentation of the problem in the first place. Registered Nurses are responsible for patients even when assigning task to others. If you ” Float ” and are not able to care for patents in a assigned locations, make sure you tell a supervisor.
Controlled Substances
Administer controlled substances under the direction of a licensed physician and in some places a advanced practice nurses can order controlled substances. You could face criminal charges if you misuse controlled substances, If you work for a physician who misuses controlled substances, you could be held liable for aiding and abetting a physician. Report it.
Reporting Obligations
as a nurse you have legal responsibility to report incidents of suspected child abuse, spousal abuse, elderly abuse, rape, gunshot wounds, attempted suicide, and certain communicable diseases. To encourage reports of abuse, states offer immunity for who reports the problem. Required reporting information varies among states, become familiar with the statutes in your states and with your employers policies and procedures.
Key Points
Registered nurses are licensed by the state in which they practice.
Key Points
Under the law you are required to follow standards of care, which originate in Nurse Practice Acts, the guidelines of professional organizations, and written policies and procedures of employing institutions.
Key Points
You are responsible for performing procedures correctly and exercising professional judgment when you carry out physician or health care provider orders.
Key Points
All patients are entitled to confidential health care and freedom from unauthorized release of information.
Key Points
You will be liable for malpractice if the following are established: (1) you (defendant) owed a duty to the patient (plaintiff), (2) you did not carry out that duty or breached that duty, (3) the patient was injured, and (4) your failure to carry out that duty caused the patient’s injury.
Key Points
Informed consent must meet the following criteria: (1) the person giving consent is competent and of legal age; (2) the consent is given voluntarily; (3) the person giving consent thoroughly understands the procedure, its risks and benefits, and alternative procedures; and (4) the person giving consent has a right to have all questions answered satisfactorily.
Key Points
You are obligated to follow the physician’s or health care provider’s order unless you believe that it is in error, violates hospital policy, or is possibly harmful to the patient, in which case you make a formal report explaining the refusal.
Key Points
You file an occurrence report in any unusual situation that will potentially cause harm to a patient; such reports are also for quality improvement and risk management.
Key Points
The civil law system is concerned with the protection of a person’s private rights, and the criminal law system deals with the rights of individuals and society as defined by legislative statutes.
Key Points
Legal issues involving death include documenting all events surrounding the death, treating a deceased person with dignity, and obtaining timely consent for an autopsy from the decedent or close family member.
Key Points
A competent adult is able to legally give consent to donate specific organs, and nurses are sometimes able to serve as witnesses to this decision.
Key Points
You need to know the laws that apply to your specific area of practice.
Key Points
Depending on state laws, nurses are required to report possible criminal activities such as child abuse, as well as certain communicable diseases.
The nurse understands that state law affects the way patient care is performed. Therefore he dose an intranet search of the Nurse Practice Act.
The Nurse Practice Act is a state law that describes the scope of practice of nurses in an individual state. It sets the standard of care to be provided by licensed nurses in that state. The Nurse Practice Act may differ from state to state. HIPAA, Americans With Disabilities Act (ADA), and Uniform Anatomical Gift Act are federal laws applying to all states equally.
When preparing an occurrence report, the nurse understands that statements made by the patient should be included in the report.
All pertinent information, including a full description of the incident and statements made by participants, if known, should be included in the report. A copy of the occurrence report is never kept in the medical record. Subjective information is never included in an occurrence report because it cannot be validated at a later time. Blame is an example of unnecessary and unhelpful subjectivity in an occurrence report.
Even though you may witness the patients signature on a form, obtaining informed consent is the responsibility of the physician or health care provider.
Generally the individual who performs the procedure is obligated to obtain informed consent. All other parties may be witnesses to a patient’s signature. A patient is not responsible for providing the necessary information in order to achieve informed consent for themselves.
Your Employers malpractice insurance covers you for incidents that occur while you are working within the scope of your employment.
Employer malpractice insurance provides protection for employees who are working within the scope of their employment. Incidents that occur in a person’s home are generally protected by home insurance, unless their home is their place of employment. In that case, the home owner generally carries a broader home owner’s insurance policy. Driving to and from work is generally covered by an individual’s automobile insurance.
When you stop to help in an emergency at the scene of an accident, if the injured party files suit and you employing institutions insurance dose not cover you, you will probably be covered by the Good Samaritan Law.
Good Samaritan laws grant immunity from liability so long as the nurse provides assistance that meets the standard of care or does not fall to the level of gross negligence.
You are obligated to follow a physicians or health care providers order unless the order is in error, violates hospital policy, or would be detrimental to the patient.
Generally, verbal orders need to be written in the physician’s or health care provider’s orders as soon as possible and then cosigned within a specified time period. Untranscribed orders may be followed if time is of the essence. Illegible health care provider orders should be clarified with the provider who wrote the order.
A 75 year old Hispanic woman is scheduled for colon cancer surgery in the morning , you are the night nurse and discover that the patient has decided not to have the surgery even though the consent form has been signed. What is the best action for you to take.
Report the situation to the health care provider, and record it in the nurses notes. A patient who has capacity to consent to a procedure has the capacity to withdraw that consent at any time. Efforts to convince the patient to change her mind could be construed as coercion. Informing the patient that she will die without the procedure may be seen as a threat. Both acts would affect the voluntary nature of the patient’s consent and would be illegal if the patient were to consent under those circumstances.
One element of negligence is a breach of the standard of care or duty. The standard of care may best be defined as which of the following,
The standard of care that a nurse’s actions are compared to arise from several sources, among them are the State Nurse Practice Act, community standards, the standard of a reasonably prudent professional under similar circumstances, and the standard of the nurse’s own competence.
The nurse suspects that an older adult patient newly admitted to the nursing division is a victim of abuse based on verbal statements and the patient overall appearance and condition. Which of the following is the best action for the nurse to take.
The nurse’s best action is to report the suspected abuse after documenting the patient’s verbal statements and the nursing assessment of the patient’s condition. Reporting the nurse’s findings to the patient’s health care provider maintains patient confidentiality and protects the patient from any potential abuser. Reporting the nurse’s findings to the nursing supervisor meets the requirements of most state laws regarding abuse reporting. Doing nothing would violate the nurse’s obligation as a patient advocate.
You are working the night shift for a nursing division of 30 acutely ill patients. There are two nursing assistants assigned to work the night shift with you. Based on the staffing and end of shift reports,, you have determined that there is insufficient staff to safely take care of the patients on this nursing division. What is the best action to take.
Leaving the nursing division is not an option because, under these facts, it could be construed as patient abandonment. Contacting the patients’ physicians or health care providers does not adequately inform the hospital administration, which is legally responsible for safe staffing of the hospital. Documenting the staffing and end-of-shift report analyses along with the response of the nursing supervisor to your notification that the present staffing does not meet safe patient care standards is your best protection in the face of potential liability should a patient suffer an injury as a result of the inadequate staffing.

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