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Lecture Notes

Legal Implications of Nursing  

  1. Legal concepts
    1. definition of law
      1. a standard or rule of conduct established and enforced by the government of a society that is intended chiefly to protect the rights of the public
    2. types of law
      1. public law (criminal law)
        1. body of law that regulates the relationships between individuals and the government
      2. private law (civil law)
        1. body of law that regulates the relationships between private individuals
    3. sources of law
      1. constitutions
        1. federal and state constitutions indicate how their governments are created and given authority and state the principles and provisions for establishing specific laws
        2. clauses of the constitution
          1. due process clause
            1. the procedural element, which guarantees a fair and orderly legal process
            2. the substantive element, which protects a person's property from unfair governmental interference or taking
          2. equal protection clause
            1. guarantee that no person or group of persons can be denied the same protection of the law which is enjoyed by other persons or classes in like circumstances
      2. statutes (statutory law)
        1. laws enacted by a legislative body that must be in keeping with the federal and state constitution as well
        2. example
          1. Nurse Practice Acts
      3. administrative law
        1. agencies that have the power to make administrative rules and regulations, in conformity with enacted law, which act as laws and are enforceable
        2. example
          1. State Boards of Nursing
      4. court decisions (common law)
        1. body of law that has evolved from accumulated judiciary decisions at the local, state, and national levels as it has been applied in specific instances and makes decisions concerning law enforcement
        2. based on the principle, stare decisis , "to let the decision stand"
          1. the case that first sets down the rule by decision is called a precedent
          2. similar cases after a precedent is set are changed only when a strong justification exists
        3. common law helps prevent one set of rules from being used to judge one person and another set to judge another person in similar circumstances
    4. litigation
      1. definition
        1. the process of a lawsuit
      2. parties involved in litigation
        1. the plaintiff
          1. the person or government bringing suit against another
        2. the defendant
          1. the person accused of a crime or tort who is presumed innocent until proven guilty of a crime or tort
      3. courts involved in litigation
        1. trial court
          1. first-level court
          2. hears all the evidence in a case
          3. witnesses testify at the trial court level
          4. makes decisions on facts, usually through a jury
        2. appellate court
          1. second-level court
          2. evidence is heard that questions a point of law decided by the trial court
          3. no witnesses testify at the appellate court level
          4. opinions of appellate court judges are published and become court decisions (common law)
    5. informed consent
      1. informed consent is needed:
        1. upon admission (for routine treatment)
        2. for each specialized diagnostic procedure
        3. for experimentation involving patients
      2. expectations of informed consent are:
        1. that it must be written
        2. that it must be signed by the patient or person legally responsible for the patient
        3. that it must be for the procedure performed
      3. informed consent is not needed if:
        1. there is an emergency or if there is an immediate threat to life or health
        2. experts agree that it is an emergency
        3. the patient is unable to consent and the legally authorized person cannot be reached
      4. elements of informed consent
        1. disclosure
          1. that the patient has been informed of current course of medical status and treatment
          2. that the patient has been informed of the risks and benefits of various treatment alternatives
          3. that the patient has been told that no outcomes can be guaranteed
          4. that the patient has been given a professional opinion as to the best alternative
        2. comprehension
          1. that the consentor has been innovative in transmitting information to aid understanding
          2. that internal impediments to comprehension have been assessed, e.g.:
            1. anxiety, pain, medication
          3. that external impediments to comprehension have been assessed, e.g.:
            1. transcultural barriers, terminology, speed of presentation
        3. competence
          1. that the consentor has assessed competence in terms of the ability of the patient, considering age, education, and emotional stability
          2. that the consentor has assessed the requirements of the task
          3. that the consentor has assessed the possible deleterious effects of the patient's decision
          4. that the patient possess a set of values and goals that make possible reasonably consistent choices
          5. that the patient is able to communicate and understand the information presented
          6. that the patient has the ability to reason and deliberate
        4. voluntariness
          1. that the consentor has determined that the patient has not been force to consent
          2. that the consentor has been careful to avoid coercive influences by herself/himself or others
          3. that the consentor has been careful to avoid subtle manipulation of the patient by herself/himself or others
      5. responsibility for obtaining informed consent:
        1. responsibility of the person who will execute the diagnostic or treatment procedure or conduct the research study
  2. Professional and legal regulation of nursing practice
    1. voluntary standards
      1. standards that are developed and implemented by the nursing profession itself
        1. not mandatory
        2. used as a guideline for peer review
      2. example
        1. ANA Standards of Practice
    2. legal standards
      1. standards that are developed by legislative action and are implemented by authority granted by the state to determine minimum standards for the education of nurses, to set requirements for licensure or registration, and to decide when a nurse’s license may be suspended or revoked
      2. example
        1. Nurse Practice Acts
  3. Credentialing
    1. credentialing
      1. ways in which professional competence is ensured and maintained
    2. processes used for credentialing
      1. accreditation
        1. process by which an educational program is evaluated and then recognized as having met certain predetermined structure, process, and outcome criteria of education
        2. accreditation as a legal requirement
          1. state accreditation: yes
          2. NLN or ACNE accreditation: yes or no
      2. licensure
        1. process by which a state determines that a candidate meets certain minimum requirements to practice in the profession of his or her choice and grants a license to do so
        2. a nurse's license may be revoked for the following:
          1. fraud
          2. deceptive practices
          3. criminal acts
          4. previous disciplinary actions by other state boards
          5. gross or ordinary negligence
          6. physical or mental impairment
        3. however, a nurse's license may not be revoked without due process:
          1. he/she must be given notice of the investigation
          2. he/she must be given a fair and impartial hearing
          3. he/she must be given a proper decision based on substantial evidence
      3. registration
        1. listing of the individuals name and other information on the official roster of a governmental or nongovernmental agency
          1. mandatory in the US
      4. certification
        1. process by which a person who has met certain criteria established by a nongovernmental association is granted recognition
  4. Crimes and torts
    1. crime
      1. a wrong committed against a person or his or her property in violation of public law (criminal law)
      2. results in criminal trials where damages are usually settled with imprisonment
      3. classification of crimes
        1. misdemeanor
          1. a crime of a less serious nature usually punishable by a fine or with imprisonment for less than 1 year, or both, or parole
        2. felony
          1. a crime of a serious nature punishable by imprisonment for more than 1 year in a state or federal penitentiary
            1. intentional (with malice aforethought; e.g., lst-degree murder, arson, armed robbery)
            2. unintentional (without malice aforethought; e.g., 2nd-degree murder, manslaughter)
    2. tort
      1. an act committed by a person against another person or his or her property in violation of private law (civil law)
      2. results in civil trials where damages are usually settled with money but rarely imprisonment
        1. however, if the tort is also considered gross negligence, it will also be tried as a crime in a criminal trial, too
      3. classification of torts
        1. intentional (with malice aforethought)
          1. assault
            1. a threat or an attempt to make bodily contact with another person without that person's consent
          2. battery
            1. an assault that is carried out and includes every willful, angry, and violent or negligent touching of another person's body or clothes or anything attached or held by that other person
          3. defamation of character
            1. one party makes derogatory remarks about another, diminishing the other party's reputation
            2. types of defamation of character
              1. libel
                1. written defamation of character through print, writing, or pictures about a person that subjects that person to ridicule or contempt
              2. slander
                1. verbal defamation of character through oral statements about a person that subjects that person to ridicule or contempt
          4. invasion of privacy
            1. disclosure of confidential information whenever a person's problem is inappropriately discussed with a third party
          5. false imprisonment
            1. unjustified retention or prevention of the movement of another person without proper consent
          6. fraud
            1. willful and purposeful misrepresentation that could cause, or has caused, loss or harm to a person or property
        2. unintentional torts (without malice aforethought)
          1. negligence
            1. performing an act that a reasonably prudent person under similar circumstances would not do, or conversely, failing to perform an act that a reasonably prudent person under similar circumstances would do
            2. based on fault
              1. may be an act of commission (something done incorrectly)
              2. may be an act of omission (something that should have been done was not done)
          2. malpractice
            1. term generally used to describe the negligent acts of professional personnel
          3. elements of proof for negligence and malpractice
            1. duty
              1. obligation to use due care (what a reasonably prudent nurse would do) and is defined by the standard of care appropriate for the nurse-patient relationship
              2. e.g., the standard of care is that a nurse must assess all of his/her patients
            2. breach of duty
              1. failing to meet the standard of care
              2. e.g., a nurse failed to assess an elderly patient so he/she failed to uncover that the patient is exhibiting periods of confusion
            3. causation
              1. links the failure to meet the standard of care (breach of duty) to actually causing the injury
              2. e.g., the failure of the nurse to assess the elderly patient and uncover his/her periods of confusion resulted in lack of the use of appropriate safety measures with a confused patient so the patient fell while getting out of bed
            4. damages
              1. the actual harm or injury resulting to the patient
              2. e.g., the patient suffered a fractured hip from the fall from his/her bed
          4. malpractice litigation
            1. the civil legal procedure in malpractice litigation
              1. the basis for the claim is appropriate and timely, e.g.:
                1. all elements of liability are present, e.g., duty, breach of duty, causation, serious damages
              2. all parties named as defendants, as well as insurance companies and attorneys, work toward a fair settlement
              3. if a fair settlement cannot be reached the case is presented to a malpractice arbitration panel
              4. the malpractice arbitration panel makes a decision
              5. the malpractice arbitration panel decision:
                1. can be accepted
                2. or the panel decision can be rejected and the case is sent to a trial court
              6. if the case is sent to a trial court
                1. a complaint is filed by the plaintiff
                2. a written response, called an answer, is made by the defendant
                3. both parties engage in pretrial activities, referred to as discovery, in an effort to gain all the facts of the situation
                4. in the trial of the case, all the relevant facts are presented to a jury or a judge
                5. the judge renders a decision, or the jury renders a verdict
                  1. the verdict can be accepted, or
                  2. the verdict can be rejected and the case is appealed to the appellate court
            2. nurse as defendant
              1. work closely with an attorney while preparing the defense
                1. attorney may be secured by the nurse (if carrying personal liability insurance) or by the employing agency
              2. recommendations for the nurse as defendant, do not:
                1. discuss the case with anyone at your agency
                2. discuss the case with the plaintiff
                3. discuss the case with the plaintiff's lawyer
                4. discuss the case with anyone testifying for the plaintiff
                5. discuss the case with reporters
                6. alter the patient's records
                7. hide any information from your lawyer
                8. go to the witness stand unprepared
                9. volunteer any information
            3. nurse as fact witness
              1. a nurse who has first-hand knowledge of the actual incident and can be called on by either the plaintiff's or defendant's attorney
              2. recommendations for the nurse as fact witness:
                1. base your testimony only on first-hand knowledge of the incident and not assumptions
            4. nurse as expert witness
              1. a nurse who explains to the judge and jury what happened based on the patient's record and offers an opinion whether the nursing care met acceptable standards
              2. recommendations for the nurse as expert witness, have a(n):
                1. solid education background
                2. strong clinical experience comparable with those of the nurse as defendant
                3. understanding of the legal aspects of nursing and malpractice liability
                4. knowledge of the nurse practice act and the standards of nursing care where the incident occurred
  5. Legal safeguards for nurses
    1. contracts
      1. exchange of promises between two parties
      2. for a contract to be legally enforceable, it must contain the following:
        1. consent of the parties or persons involved
        2. a valid consideration of something of value (usually money)
        3. a lawful purpose (be legal)
        4. competent parties or persons
          1. legal age
          2. have the mental capacity
        5. completion of the appropriate documents required by the law
    2. competent practice
      1. competent practice remains the nurse's best legal safeguard
      2. guidelines for competent practice include:
        1. respecting legal boundaries of practice
        2. following institutional procedures and policies
        3. "owning" personal strengths and weaknesses; seeking means of growth, education, supervised experience, and discussions with colleagues
        4. evaluating proposed assignments; refusing to accept responsibilities for which the nurse is unprepared
        5. keeping current
        6. respecting patient rights and developing rapport with patients
        7. keeping careful documentation
        8. working within the agency to develop support management policies
    3. patient education
      1. US courts affirm the patient's right to know and view patient education as the legal duty of the nurse
      2. failure to conduct or document the assessment of learning needs and teaching may be construed as negligence
    4. executing physician orders
      1. nurses are legally responsible for carrying out the orders of the physician in charge of a patient unless an order is one that would lead a reasonably prudent person to anticipate injury if it were carried out
      2. guidelines for executing physician's orders include:
        1. be familiar with the parties, designated in your nurse practice act, who can legally write orders for the nurse to execute
        2. be familiar with your institutional/agency policy regarding physician orders
        3. attempt to have all physician's orders in writing
        4. all verbal and telephone orders should be countersigned within 24 hours
        5. when telephone extensions make this possible, have two nurses listen to a questionable telephone order, with both nurses countersigning the order
        6. question any physician's order that is:
          1. ambiguous
          2. contraindicated by normal practice
          3. contraindicated by the patient's present condition
        7. question any order a patient questions
    5. documentation
      1. presumption of the law is that if it was not documented, it was not done
      2. all documentation must be factual, accurate, complete, and entered in a timely fashion
    6. adequate staffing
      1. a nurse in an understaffed agency will be held to a professional standard of judgment with respect to accepting responsibility for work and for delegating nursing responsibility to others
    7. professional liability insurance
      1. the increasing number of malpractice claims make it wise for nurses to carry their own liability insurance
      2. reasons the ANA (1990) lists for purchasing a personal professional liability insurance policy are as follows:
        1. protection of the nurse's best interests
        2. limitations of employer's coverage
        3. care or advice given outside of work
      3. malpractice insurance can be obtained through the following:
        1. the ANA
        2. private insurance companies
    8. risk management programs
      1. programs designed to identify, analyze, and treat risks
      2. elements of a comprehensive risk management program include:
        1. safety program
          1. aim is to provide a safe environment for patients, employees, and visitors
        2. products safety program
          1. aim is to ensure safe and adequate equipment
        3. quality assurance program
          1. aim is to provide quality healthcare
    9. incident, variance, or occurrence reports
      1. a tool used by healthcare agencies to document the occurrence of anything out of the ordinary that results in, or has the potential to result in, harm to a patient, employee, or visitor
      2. used for the following:
        1. quality improvement (not disciplinary action)
        2. identifying high-risk patterns
        3. initiating inservice programs to prevent future problems
        4. making all the facts about an incident available to the agency in case of litigation
      3. filling out incident reports
        1. the nurse responsible for a potential or actual harmful incident or who witnesses an injury is responsible for filling out the incident report
        2. the incident report typically includes:
          1. complete names of the person or people involved
          2. complete names of all witnesses
          3. complete factual account of the incident, e.g.:
            1. date
            2. time
            3. place of the incident
            4. pertinent characteristics of the person or people involved (e.g., alert, ambulatory, asleep)
            5. any equipment or resources being used
            6. any other variables believed to be important to the incident
        3. document a complete account of the incident in the patient's record
        4. DO NOT document that an incident report was filed in the patient's record
    10. Good Samaritan Laws
      1. laws designed to protect healthcare practitioners when they give aid to people in emergency situations against fear of legal suit if such care appears necessary unless it can be shown that the care was given in a grossly negligent manner
      2. helping at the scene of an emergency is an ethical, not legal, duty in most states
        1. however, some states have enacted legislation that requires health care providers to stop and aid the injured at the scene of an emergency
        2. moreover, some states have enacted legislation that release health care providers from legal liability for injuries caused under such circumstances (even if they resulted from gross negligence) if their actions are at a level that would be provided by any reasonably prudent health care provider under similar circumstances
  6. Student liability
    1. students are responsible for their own acts of negligence if these result in patient injury
    2. students are held to the same standard of care that would be used to evaluate the actions of a registered nurse
    3. legal responsibilities of students include the following:
      1. careful preparation for each new clinical experience
      2. notifying their clinical instructor if they feel in any way unprepared to execute a nursing procedure
      3. not attempting a nursing procedure if unsure of the correct steps involved in its application
      4. being familiar with agency policies and procedures
    4. influence of the type of nursing program on student liability
      1. hospital-controlled programs
        1. the hospital may also be held liable for the negligent acts of a student because the student is considered an employee of the hospital
      2. baccalaureate or associate degree programs
        1. the status of students is less clear so they need their own professional liability insurance
  7. Laws affecting nursing practice
    1. occupational safety and health
      1. the Occupational Safety and Health Act of 1970 (OSHA) set legal standards in the United States in an effort to ensure safe and healthful working conditions for men and women
      2. the legal standards set by the Occupational and Health Act of 1970 (OSHA):
        1. continue to be updated
        2. are specific concerning its application, e.g.:
          1. use of electrical equipment
          2. use of isolation techniques for patients with infectious diseases and management of contaminated equipment and supplies
          3. use of radiation, such as infrared or ultraviolet
          4. use of chemicals, such as those that are toxic or flammable
        3. when infractions against OSHA standards are noted, fines can be severe
      3. nurses can assist in implementing OSHA standards wherever they work
    2. National Practitioner Data Bank
      1. the Health Care Quality Improvement Act of 1986 provided a method to protect the public from incompetent practitioners
      2. The Health Care Quality Improvement Act of 1986:
        1. encourages healthcare practitioners to identify and discipline practitioners who engage in unprofessional conduct
        2. restricts the ability of incompetent practitioners to move from state to state without disclosure of the practitioner's previous performance
        3. established the National Practitioner Data Bank as an information clearinghouse
        4. provides immunity from civil damages for peer review
      3. nurses may be reported to the National Practitioner Data Bank for:
        1. medical malpractice payments
        2. adverse licensure actions
        3. adverse professional actions
    3. reporting obligations
      1. the unique nature of nurse-patient interactions frequently results in the nurse's having knowledge that a state requires to be reported, e.g.:
        1. vital statistics (e.g., births, deaths)
        2. infectious and communicable diseases (e.g., diphtheria, syphilis, typhoid fever)
        3. child or elder abuse
        4. violent incidents (e.g., gunshot wounds, knife wounds)
    4. controlled substances
      1. the United States has specific laws governing the distribution and use of controlled substances, e.g.:
        1. narcotics, depressants, stimulants, hallucinogens
      2. violations of these specific laws governing the distribution and use of controlled substances are considered criminal acts
    5. discrimination or sexual harassment
      1. Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on race, color, religion, gender, or national origin, and provides that pregnant women receive the same protection as other employees and applications
      2. the Equal Employment Opportunity Commission (EEOC) defines sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature" occurring in the following circumstances:
        1. when submission to sexual advances is considered implicitly or explicitly a condition of employment
        2. when submission to sexual advances is used as a basis for employment decisions
        3. when sexual harassment interferes with job performance even if it only creates an intimidating, offensive, or hostile atmosphere
    6. person with disabilities
      1. the Americans with Disabilities Act of 1990 was passed by Congress to protect individuals with physical or mental disabilities from discrimination in employment, housing, public accommodations, education, transportation, communication, and health services
      2. the Americans with Disabilities Act of 1990 covers any individual who:
        1. has a physical or mental impairment that substantially limits one or more major life activities or who has a record of such impairment
        2. has a communicable diseases such as AIDS or HIV
        3. is recovering form drug or alcohol addiction
        4. is regarded as disabled, whether or not he/she is in fact disabled
      3. the Americans with Disabilities Act of 1990 requires businesses to:
        1. prohibit discrimination against disabled persons
        2. "reasonably accommodate" individuals who are protected by the Americans With Disabilities Act of 1990
    7. wills
      1. describes the intentions of a person wishes carried out upon his or her death
        1. person who makes a will is called a testator
        2. person who receives money or property from a will is called a beneficiary
      2. if a nurse acts as a witness to a testator’s signing of his or her will, the nurse should be familiar with the following:
        1. that a witness should feel sure that the testator is of sound mind, e.g.:
          1. he or she knows what he or she is doing
          2. he or she is free of the influence of drugs that could likely distort his or her thinking
        2. that a witness should feel that the testator is acting voluntarily and is not being coerced in any way concerning the terms of his or her will
        3. that a witness should watch the testator sign his or her will and they should sign in the presence of each other
          1. state law mandates how many witnesses must acknowledge the testator’s signature on a will
        4. that witnesses to the signature on a will do not need to read it, but they should be sure that the document being signed is a will and not some other type of document
        5. that in most states, a person who is a beneficiary in a will is disqualified to act as a witness to the testator's signature

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This page was last modified on 6/1/03