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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Torts
Civil actions—plaintiff files lawsuit for compensation for damages suffered from perceived wrong
Unintentional torts Incidents or accidents
Intentional torts Deliberate acts
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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
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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
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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
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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
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Malpractice Elements (cont’d)
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
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Malpractice Elements (cont’d)
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
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Malpractice Elements (cont’d)
Did the breach of duty cause the injury? Causation must be proven Good documentation makes proof
impossible
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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
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Malpractice Elements (cont’d)
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
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Malpractice Elements (cont’d)
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
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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
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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
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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
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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
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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)
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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
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How Can I Avoid a Malpractice Claim? (cont’d)
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
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How Can I Avoid a Malpractice Claim? (cont’d)
Equipment failure Know standard of care connected with
equipment Use as directed Properly maintained? Working properly? Removed from service if necessary
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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
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How Can I Avoid a Malpractice Claim? (cont’d)
Failure to adequately adequately communicate Communicate changes in patient’s
condition Document this communication (not to be
done defensively)
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How Can I Avoid a Malpractice Claim? (cont’d)
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
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Intentional Torts
Closely related to criminal acts Assault and battery False imprisonment Defamation
Libel Slander
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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
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Miscellaneous Intentional Torts
Intentional infliction of emotional distress
Sexual harassment and discrimination
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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
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What Criminal Acts Pose a Risk to the Nurse?
Theft and misappropriation of property Nursing practice violations Violations of the Food and Drugs Act
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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
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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
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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
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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
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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
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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
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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
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