Copyright © 2006 Elsevier, Inc. All rights reserved Chapter 20 Legal Issues.

Copyright © 2006 Elsevier, Inc. All rights reserved

Chapter 20

Legal Issues


Practical Advice “Mother rule”—would you feel comfortable telling

your mother about what you are doing or propose to do?

Fraud or defamation Doing something outside your scope of practice or

something unsafe for the patient and that could cause injury; these actions are involved in malpractice

Invasion of privacy and breach of confidentiality are claims involving gossip or talking about patients unnecessarily


Where Does “The Law” Come From?

Statutory law— most common type of law affecting nurses Nurse Practice Acts are examples of state

statutory laws Constitutional law— refers to rights,

privileges, and responsibilities from U.S. Constitution, including Bill of Rights


Where Does “The Law” Come From? (cont’d)

Administrative law —rules and regulations passed by boards of nursing

Common law —decisions made by judges in court cases

Case law —composed of decisions rendered in court cases by appeals courts


Court Actions Based on Legal Principles

Criminal actions—occur when you have done something considered harmful to society as a whole

Civil actions—concern private interests and rights between individuals involved in cases Sometimes an event can have both criminal

and civil consequences


Legal Control Over Nursing Practice

The Nurse Practice Act—statute governing nurses in your state

The Board of Nursing—agency designated to apply laws to individuals


What Are The Legal Aspects of Licensure?

Receiving license to practice nursing is a privilege, not a right

License is granted by state after candidate has successfully met all requirements

Each state’s Practice Act may be different from any other state’s Act


The Nurse Practice Act

Describes how to obtain licensure and enter practice within that state

Describes how and when to renew your license Defines the educational requirements for entry

into practice Provides definitions and scope of practice for

each level of nursing practice Describes the process by which individual

members of the Board of Nursing are selected and the categories of membership


The Nurse Practice Act (cont’d)

Identifies situations that are grounds for discipline or circumstances in which a nursing license can be revoked or suspended

Identifies the process for disciplinary actions, including diversionary techniques

Outlines the appeal steps if the nurse feels the disciplinary actions taken by the Board of Nursing are not fair or valid


What About the Impaired Nurse?

Impaired nurses are unable to function effectively because of some type of substance abuse Heightened awareness Significant impact on rendering safe, effective

patient care High stress and easy access to drugs seem to

contribute to this common problem Many states have taken a rehabilitative approach

to this problem


Who Knows About the Disciplinary Actions Against Nurses?

NURSYS—Comprehensive electronic information system including collection and warehousing of nurse licensing information and disciplinary actions

Nurses can also access system to provide nursing license verification for fee of $30

National Practitioner Data Bank, was part of a federal law under Medicare called The Health Care Quality Improvement Act


Torts

Civil actions—plaintiff files lawsuit for compensation for damages suffered from perceived wrong

Unintentional torts Incidents or accidents

Intentional torts Deliberate acts


Nursing Malpractice

Most common unintentional tort action brought against nurses is a malpractice claim

Important for nurses to know basic elements that must be proved before malpractice can occur

From 1990 to 2003, reports made against 16,339 nurses and nursing-related practitioners


What Are the Basic Elements of Malpractice?

You must have a duty (in other words, there must be a professional nurse-patient relationship)

You must have breached that duty (in other words, you must have fallen below the standard of care for a nurse)

Your breach of duty must have been a foreseeable cause of the patient’s injury

Damages or injury must have occurred


Malpractice Elements Do you have a professional duty?

Nurse/patient relationship—a professional duty to a patient?

Good Samaritan statutes Give immunity from malpractice to those

attempting to give assistance at scene of accident

What is the professional duty owed? Act as a reasonable nurse would under same

or similar circumstances


Malpractice Elements (cont’d)

What about the Nurse Practice Act? Acts describe what nurses may do—fairly

general What’s prohibited—more specific

What is an expert witness? Common way to establish duty owed Testifies what a reasonable nurse would do

in similar circumstances



What are established policies and procedures? Crucial pieces of evidence for establishing

standard of care Resources for questions regarding certain

procedures What about accreditation and facility licensing

standards? Evidence of standard of care for nurses working

in accredited facilities



Was there a breach of professional duty? Standard of care not met must be proved Must demonstrate you did not act as a

reasonable and prudent nurse under the circumstances



Did the breach of duty cause the injury? Causation must be proven Good documentation makes proof

impossible


Malpractice Elements (cont’d) Well-documented observations include

Patient’s physical/mental condition upon admission and discharge

After incident (i.e., fall), note patient’s physical and mental condition

Patient’s noncompliance with medical directives

Any patient complaints or noncomplaints Note exactly what patient says Note patient’s own admissions Clear discharge instructions Allergies or lack of any allergies



Applying “causation” Document facts Document what you see and do Role is to render nursing services, not to

judge Leave the determination of fault to courts Actions and truthful documentation will be

best defense



Did the patient suffer damages or injury? Must be proved that breach of duty caused

injury to patient Damages—sum of money General damages—given for intangibles such as

pain/suffering, disfigurement, interference with ordinary enjoyment of life, loss of consortium

Special damages—out-of-pocket expenses Punitive damages—to punish those whose

conduct goes beyond normal malpractice


Who Might Have Liability (Responsibility) in a Claim?

Personal liability Each individual accountable for own actions You are held to professional standard of care

Physician and other independent practitioner liability NOT ultimately responsible for everything that

happens to patient Nurses follow orders, but not those unsafe for

patients or out of scope of practice


Who Might Have Liability (Responsibility) in a Claim? (cont’d)

Supervisory liability Task properly assigned to competent worker Adequate supervision provided Nurse provided appropriate follow-up and

evaluation of delegated task Institutional liability

Respondeat superior Carry insurance Policies or lack of common claim in court


Who Might Have Liability (Responsibility) in a Claim? (cont’d)

Student liability Responsible for own actions Held to standard of RN for performed

tasks Don’t accept assignments beyond

preparation Communicate frequently with instructors


What Evidence Can Help Me in a Lawsuit?

Medical record 1 of 4 cases decided on basis of what’s in

the medical record Integrity, accuracy, and completeness

makes claim defensible or indefensible Good documentation—best defensive action Document extensively, accurately, and

very factually


How Can I Avoid a Malpractice Claim?

Medication errors Violation of classic five rights Miscalculations, drug interactions, drug

allergies Listen to patients or family members

regarding new medications, recheck anything amiss

Take time to administer correctly (will ultimately save time)


How Can I Avoid a Malpractice Claim? (cont’d)

Provide a safe environment Know how equipment works Remove hazards such as chemicals Make environment free of hazards such

as poorly placed furniture or equipment Document any incident correctly



Patient falls Primary risk second to med errors Source of both physical and psychological

injury to elderly patients First duty to patient

Notify physician to assess and treat Make sure patient is protected from another fall Notify family Document what occurred



Equipment failure Know standard of care connected with

equipment Use as directed Properly maintained? Working properly? Removed from service if necessary


Malpractice Claim? (cont’d)

Failure to adequately assess, monitor, and obtain assistance Do not delegate assessment and

evaluation of patient care and progress Be aware of any changes in progress Document changes and events



Failure to adequately adequately communicate Communicate changes in patient’s

condition Document this communication (not to be

done defensively)



Failure to report Must report certain incidences or occurrences

Unprofessional behavior of health care professional Evidence of child/adult/elderly abuse/neglect Certain communicable diseases Certain deaths under suspicious circumstances Certain types of injuries possibly caused by violence Evidence of Medicare fraud Emergency Medical Treatment and Labor Act

violations


Intentional Torts

Closely related to criminal acts Assault and battery False imprisonment Defamation

Libel Slander


Intentional Torts (cont’d)

Don’t communicate patient information without the patient’s consent

Confidentiality Keep info about patients to themselves, share

only with other health care workers Invasion of privacy

Photographing procedures Going through patient’s belongings Talking about patient’s private life publicly


Miscellaneous Intentional Torts

Intentional infliction of emotional distress

Sexual harassment and discrimination


Defense for Intentional Torts

Informed consent—patient informed of: Nature of proposed care, treatment, services,

medications, interventions, or procedures Potential benefits, risks, or side effects Likelihood of achieving care, treatment, and

service goals Reasonable alternatives and their risks and

benefits and alternative of refusing all interventions


What Criminal Acts Pose a Risk to the Nurse?

Theft and misappropriation of property Nursing practice violations Violations of the Food and Drugs Act


How Do I Protect Myself and My Patient from All These Risks?

Quality assurance, continuous quality management, or continuous quality improvement

Peer review Look for better ways to give care

Evaluate what nurses are doing Develop policies and procedures Prepare staff—competent?—skill documentation Continuing education and certification Employee evaluations Ongoing monitoring


How Do I Protect Myself and My Patient from All These Risks? (cont’d)

Risk management Process to review untoward events posing

financial risk/lawsuit to institution Evaluate how to prevent reoccurrence by

changing systems Tool—incident report

Do NOT include: conclusions, opinions, defensiveness, and judgments, or blame of others


How Do I Protect Myself and My Patient from All These Risks? (cont’d)

Risk management (simple actions by nurses) Apologize and offer to help Sharing uncertainties and bringing down

patient’s expectations during informed consent process

Not participating in gossip or judging others


Malpractice Insurance What about individual malpractice

insurance? Not very expensive Not used much

What is institutional coverage? Most carry large policies covering acts or

omissions by employed nurses Most individual policies are secondary to this


Malpractice Insurance (cont’d)

What should I ask about institutional coverage? Name of carrier, limits of policy, and rating of insurance

company Covered for all acts occurring/acts not covered Cover if you need to appear before State Board of

Nursing Independent practitioners must know how covered by

employers Limited coverage if working in physician’s office If self-employed, need to purchase coverage


What Happens When I Go to Court?

95% of personal injury lawsuits are either dismissed or settled out of court

Discovery process Interrogatories—written questions Deposition—recorded oral questioning


What Happens When I Go to Court?

At deposition Look/act like professional, be prepared Be clear, accurate, and very concise Give NO opinions, stick to facts Speak slowly, use well-modulated tone Ask for questions to be repeated if don’t understand

or don’t remember Correct any misstatements Don’t become angry or give emotional responses Avoid “always,” “never,” “maybe,” “I think,” or “possibly” Do not answer more than is asked

Copyright © 2006 Elsevier, Inc. All rights reserved Chapter 20 Legal Issues.

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Transcript of Copyright © 2006 Elsevier, Inc. All rights reserved Chapter 20 Legal Issues.