Study Guide 7-Nursing Practice and The Law: Topic Outline

Study Guide 7- Nursing Practice and the Law
Topic Outline
1. General Principles
Meaning of Law
Sources of Law
The Constitution
Statutes
Administrative Law
2. Types of Laws
Criminal Law
Civil Law Tort
Quasi-Intentional
Tort
Negligence
Course Code and Title
Malpractice
3. Other Laws Relevant to Nursing Practice
Good Samaritan Laws
Confidentiality
Social Networking
Slander and Libel
False Imprisonment
Assault and Battery
4. Standards of Practice Use of Standards in Nursing Negligence and Malpractice Actions Patient ’ s Bill of Rights
Informed Consent
5. Staying Out of Court Prevention Appropriate Documentation Common Actions Leading to Malpractice Suits If
a Problem Arises
6. Professional Liability Insurance
7. End-of-Life Decisions and the Law
Do Not Resuscitate Orders
Advance Directives Living Will and Durable Power of Attorney for Health Care (Health-Care Surrogate)
Nursing Implications
8. Conclusion
Learning Objectives
After studying this module, you will be able to:
■ Describe three major forms of laws
■ Identify the differences among the various types of laws
■ Clarify the criteria that determine negligence from malpractice
■ Differentiate between an intentional and an unintentional tort
■ Support the use of standards of care in determining negligence and malpractice
■ Explain how nurse practice acts protect the public
■ Differentiate between internal standards and external standards
■ Examine the role advance directives play in protecting client rights
■ Discuss the legal implications of the Health Insurance Portability and Accountability Act (HIPAA)
■ Identify legal issues surrounding the use of electronic
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Introduction
As client advocates, nurses have a responsibility to deliver safe and effective care to their clients. This
expectation requires nurses to have professional knowledge at their expected level of practice and be profi
cient in technical skills. A working knowledge of the legal system, client rights, and behaviors that may
result in lawsuits helps nurses to act as client advocates. As long as nurses practice according to the
established standards of care, they may be able to avoid the kind of day in court
Activating Prior Knowledge

As a student nurses, have you heard nurses who committed the crimes in the hospital or in other
institution? How do you feel if you are in that position? What would be your initial action in the
prioritization of handling patients?
1.1 Discussion of Key Concepts

Meaning of Law
The word law holds several meanings. Law refers to any system of regulation that governs the conduct of
individuals within a community or society, in response to the need for regularity, consistency, and justice (
Riches & Allen, 2013 ). In other words, law means those rules that prescribe and control social conduct in
a formal and legally binding manner. Laws are created in one of three ways:
1. Statutory laws are created by various legislative bodies, such as state legislatures or Congress. Some
examples of federal statutes include the Patient Self-Determination Act of 1990 (PSDA), the Americans with
Disabilities Act, and, more recently, the Affordable Care Act. State statutes include the state nurse practice
acts and the Good Samaritan Act. Laws that govern nursing practice fall under the category of statutory law.
2. Common law is the traditional unwritten law of England, based on custom and use. It dates back to
1066 A.D. when William of Normandy won the Battle of Hastings ( Riches & Allen, 2013 ). Th is law
develops within the court system as the judicial system makes decisions in various cases and sets
precedents for future cases. A decision rendered in one case may affect decisions made in later cases of a
similar nature. For this reason, one case sets a precedent for another.
3. Administrative law includes the procedures created by administrative agencies (governmental bodies
of the city, county, states, or federal government) involving rules, regulations, applications, licenses,
permits, hearings, appeals, and decision making. These governing boards have the duty to meet the
intent of laws or statutes.
Sources of Law
The Constitution
The U.S. Constitution is the foundation of American law.
The Bill of Rights, composed of the first 10 amendments to the Constitution, laid the foundation for
the protection of individual rights. These laws define and limit the power of government and protect
citizens’ rights, such as freedom of speech, assembly, religion, and the press. They also prevent the
government from intruding into personal choices. State constitutions may expand individual rights but
cannot limit nor deprive people of rights guaranteed by the U.S. Constitution.
Constitutional law evolves. As individuals or groups bring suits that challenge interpretations of the
Constitution, decisions are made concerning the application of the law to that particular event. An
example of this is the protection of “freedom of speech.” Is the use of obscenities protected?
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Statutes
Statutes are written laws created by a government or accepted governing body. Localities, state
legislatures, and the U.S. Congress generate statutes. Local statutes are usually referred to as oto as
ordinances. Requiring all residents to use a specific city garbage bag is an example of a local ordinance.
Administrative Law
Federal agencies concerned with health-care– related laws include the Department of Health and Human
Services (DHHS), the Department of Labor, and the Department of Education. Agencies that focus on
health-care law at the state level involve state health departments and licensing boards.
Administrative agencies are staffed with professionals who develop the specific rules and regulations that
direct the implementation of statutory laws.
These rules need to be reasonable and consistent with existing statutory law and the intent of the
legislature. The targeted individuals and groups review and comment before these rules go into effect. For
example, specific statutory laws give the state boards of nursing (SBONs) the authority to issue and
revoke licenses. This means that each SBON holds the responsibility to oversee the professional nurse ’ s
competence.
Types of Laws Course Code and Title

Another way to view the legal system is to divide laws into categories, such as public law and private law.
Public law encompasses state, constitutional, administrative, and criminal law, whereas private law (civil
law) covers contracts, torts, and property.
Criminal Law
Criminal or penal law focuses on crime and punishment. Societies created these laws to protect citizens
from threatening actions. Criminal acts, although directed toward individuals, are considered offenses
against the state. The perpetrator of the act is punished, and the victim receives no compensation for
injury or damages. Criminal law subdivides into three categories:
1. Felony: the most serious category, including such acts as homicide, grand larceny, and nurse practice
act violations.
2. Misdemeanor: includes lesser offenses such as traffic violations or shoplifting of a small dollar
amount.
3. Juvenile: crimes carried out by individuals younger than 18 years of age; specific ages vary by state
and crimes. Th ere are occasions when a nurse breaks a law an
There are occasions when a nurse breaks a law and is tried in criminal court. A nurse who obtains or
distributes controlled substances illegally either for personal use or for the use of others is violating the
law. Falsification of records of controlled substances is also a criminal action. In some states, altering a
patient record may lead to both civil and criminal action depending on the treatment outcome ( Zhong,
McCarthy, & Alexander, 2016 ).
Civil Law
Civil laws usually involve the violation of one person ’ s rights by another person. Areas of civil law that
particularly affect nurses are tort law, contract law, antitrust law, employment discrimination, and labor
laws.
Tort
The remainder of this chapter focuses primarily on tort law. By definition, tort law consists of a body of
rights, obligations, and remedies that courts apply during civil proceedings for the purpose of providing
relief for individuals who suffered harm from the wrongful acts of others. Tort laws serve two basic
functions:
(1) to compensate a victim for any damages or losses incurred by the defendant’s actions (or inaction)
and
(2) to discourage the defendant from repeating the behavior in the future ( LaMance, 2018 ).
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The individual who incurs the injury or damage is known as the plaintiff , whereas the person who caused
the injury or damage is referred to as the defendant. Tort law recognizes that individuals, in their
relationships to one another, have a general duty to avoid harm.
For example, automobile drivers have a duty to drive safely so that others will not be harmed. A
construction company has a duty to build a structure that meets code and will not collapse, resulting in
harm to individuals using it ( Viglucci & Staletovich, 2017 ). N
Quasi-Intentional Tort
A quasi-intentional tort includes voluntary wrongful acts based on speech. These are committed by a
person or entity against another person or entity that inflicts economic harm or damage to reputation.
For example, a defamation of character through slander or libel or an invasion of privacy is considered a
quasi-intentional tort ( Garner, 2014 ).
Negligence
Negligence is an unintentional tort of acting or failing to act as an ordinary, reasonable, prudent person,
resulting in harm to the person to whom the duty of care is owed ( Garner, 2014 ). For negligence to
occur the following elements must be present: duty, breach of duty, causation, and harm or injury
( Jacoby & Scruth, 2017 ). All four elements need to be present in the determination of negligence.
Nurses find themselves in these situations when they fail to meet a specified standard of practice or
standard of care. The duty of care is the standard ( Wade, 2015 ).
For example, if a nurse administers the incorrect medication to a client, but the client does not suffer any
injury, the element of harm is not met.
However, if a nurse administers the appropriate pain medication to a client and fails to raise the side rails
and the client falls and breaks a hip, all four elements of negligence have been satisfied. The law defines
the standard of care as that which any reasonable, prudent practitioner with similar education and
experience would do or not do in a similar circumstance ( Jacoby & Scruth, 2017 ; Sanbar, 2007 ).
Malpractice
Malpractice is the term applied to professional negligence (Sohn, 2013). This term is used when the
fulfillment of duties requires specialized education.
In most malpractice suits, the facilities employing the nurses who cared for a client are named as the
defendants in the suit.
These types of cases fall under the legal principle known as vicarious liability ( West, 2016 ). Three
doctrines come under the principle o
Three doctrines come under the principle of vicarious liability:

1. respondeat superior,
An important principle in understanding negligence is respondeat superior (“let the master answer”)
( Thornton, 2010 ). This doctrine holds employers liable for any negligence by their employees when
the employees were acting under the scope of employment.
2. the borrowed servant doctrine, and

The “borrowed servant” rules come into play when an employee may be subject to the control and
direction of an entity other than the primary employer.
3. the “captain of the ship” doctrine. The captain of the ship doctrine, an adaptation of the borrowed servant
rules, emerged from the case of McConnell v. Williams and refers to medical malpractice ( McConnell v.
Williams, 1949 ). The ruling declared that the person in charge is held accountable for all those falling under
his or her supervision, regardless of whether the “captain” is directly responsible for the alleged error or act
of alleged negligence, and despite the others’ positions as hospital employees ( Stern, 1949 ). An important
principle in understanding
Other Laws Relevant to Nursing Practice

Good Samaritan Laws
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Fear of being sued often prevents trained professionals from providing assistance in emergency situations.
To encourage physicians and nurses to respond to emergencies, many states developed what are now
known as Good Samaritan laws.
These laws protect health-care professionals from civil liability as long as they behave in the same manner
as an ordinary reasonable and prudent. professional in the same or similar circumstances. In other words,
the professional standards of care still apply. However, if the provider receives a payment for the care
given, the Good Samaritan laws do not hold.
Confidentiality
It is possible for nurses to find themselves involved in lawsuits other than those involving negligence. For
example, clients have the right to confidentiality, and it is the duty of the professional nurse to ensure this
right (Guglielmo, 2013).
This assures the client that information obtained by a nurse while providing care will not be communicated
to anyone who does not have a need to know. This includes giving information without a client ’ s signed
release or removing documents from a health-care provider with a client ’ s name or other information.
The Health Insurance Portability and Accountability Act (HIPAA) of 1996 was passed as an effort
to preserve confidentiality, protect the privacy of health information, and improve the portability and
continuation of health-care coverage. Course Code and Title
The HIPAA gave Congress until August 1999 to pass this legislation.
Congress failed to act, and the DHHS took over developing the appropriate regulations (Charters, 2003).
The latest version of HIPAA can be found on the Health and Human Services Web site at www.hhs.gov.
The increased use of electronic medical records (EMRs) and transfer of client information presents many
confidentiality issues. It is important for nurses to be aware of the guidelines protecting the sharing and
transfer of information through electronic sources
Social Networking
Another issue affecting confidentiality involves social networking. The definition of social media is
extensive and consistently changing.
The term usually refers to Internet-based tools that permit individuals and groups to meet and
communicate; to share information, ideas, personal messages, images, and other content; and to
collaborate with other users in real time ( Ventola, 2014 ).
Social media use is widespread across all ages and professions and is universal throughout the world.
Social media modalities provide health-care professionals with Internet-based methods that assist them in
sharing information; engaging in discussions on health-care policy and practice issues; encouraging
healthy behaviors; connecting with the public; and educating and interacting with patients, caregivers,
students, and colleagues ( Ventola, 2014 ). T
Social media modalities provide health-care professionals with Internet-based methods that assist them
in sharing information; engaging in discussions on health-care policy and practice issues; encouraging
healthy behaviors; connecting with the public; and educating and interacting with patients, caregivers,
students, and colleagues ( Ventola, 2014 ).
Employers, academic institutions, and other organizations often view social media content and develop
perceptions about prospective employees, students, and possible clientele based on this content
( Denecke et al., 2015 )
Several years ago Microsoft conducted a survey revealing that 79% of employers accessed online
information regarding potential employees, and only 7% of job candidates knew of this possibility
( MacMillan, 2013 ).
Behaviors associated with unprofessional actions include violations of patient privacy; the use of profanity
or biased language; images of sexual impropriety or drunkenness; and inappropriate comments about
patients, an employer, or a school ( Peck, 2014 ).
Slander and Libel

Slander and libel are categorized as quasiintentional torts.
 slander refers to the spoken word, whereas;
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 Libel refers to the written word. Nurses rarely think of themselves as being guilty of slander or libel,
but making a false verbal statement about a client ’ s condition that may result in an injury is
considered slander.
Making a false written statement is libel.

For example, verbally stating that a client who had blood drawn for drug testing has a substance abuse
problem, when infact the client does not carry that diagnosis, could be considered a slanderous statement.
Slander and libel also refer to statements made about coworkers or other individuals whom you may
encounter in both your professional and educational life.
False Imprisonment
False imprisonment is confining an individual against his or her will by either physical (restraining) or
verbal (detaining) means. The following represent examples of false imprisonment
■ Using restraints on individuals without the appropriate written consent or following protocols
■ Restraining mentally challenged individuals who do not represent a threat to Code
Course themselves or others
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■ Detaining unwilling clients in an institution when they desire to leave
■ Keeping persons who are medically cleared for discharge for an unreasonable amount of time
■ Removing a client ’ s clothing to prevent him or her from leaving the institution
■ Threatening clients with some form of physical, emotional, or legal action if they insist on leaving
Nurses need to decide on the appropriateness of restraints as a protective measure. Nurses should always
try to obtain the cooperation of the client before applying any type of restraint and follow the institutional
protocols and standards for restraint use ( Springer, 2015 ). T
The first step is to attempt to identify a reason for the risky or threatening behavior and resolve the
problem.
If this fails, document the need for restraints, consult with the health-care provider, and conduct a
complete assessment of the patient ’ s physical and mental status. Systematic documentation and
continuous assessment are of highest importance when caring for clients who have restraints. Any
changes in client status must be reported and documented. Failure to follow these guidelines may result in
greater harm to the client and possibly a lawsuit for the staff .
To protect themselves against charges of negligence and false imprisonment in cases similar to this one,
nurses should discuss safety needs with clients, their families, or other members of the health-care team.
Careful assessment and documentation of client status remain imperative and are also components of
good nursing practice. Confusion, irritability, and anxiety often result from metaabolic causes that need
correction, not restraint.
Assault and Battery
Assault is threatening to do harm.

Battery is touching another person without his or her consent. The significance of an assault lies in the
threat: “If you don ’ t stop pushing that call bell, I ’ ll sedate you” is considered an assaultive statement.
Battery would occur if the sedation was given when it was refused, even if the medical personnel deemed
it necessary for the “client ’ s good.” With few exceptions, clients have the right to refuse treatment
Standards of Practice
Avedis Donabedian, credited as the “Father of Quality Assurance,” said, “Standards are professionally
developed expressions of the range of acceptable variations from a norm or criterion” ( Best & Neuhauser,
2004 ). Concern for the quality of care is a major part of nursing’s responsibility to the public. Therefore,
the nursing profession is accountable to the consumer for the quality of its services.
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One defining characteristic of a profession is the ability to set its own standards. Nursing standards were
established as guidelines for the profession to ensure acceptable quality of care.
Clear statements of the scope of practice including specialty nursing practice and standards of specialty
practice and professional performance assist and promote continued awareness and recognition of nurses’
varied professional contributions ( Finnel, Thomas, Nehring, McLoughlin, & Bickford, 2015 ).
SBONs and professional organizations develop standards and delineate responsibilities ( Finnel
et al., 2015
Standards of practice are also used as criteria to determine whether appropriate care has been delivered.
In practice, they represent the minimum acceptable level of care. They take many forms. Some are
written and appear as criteria of professional organizations, job descriptions, and agency policies and
procedures
The courts have upheld the authority of boards of nursing to regulate standards of practice. The boards
accomplish this through direct or delegated statutory language (Maloney & Harper, 2016). Th e ANA
developed specific standards of practice for general practice areas and in several clinical areas (ANA,
2015)
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“Specialty organizations align with those broad parameters by developing andCode andtheir
revising Titleown specific
scope and standards of practice. Standards of professional practice include a description of the standard
followed by multiple competency statements that serve as evidence for compliance with the standard”
( Maloney & Harper, 2016 , p. 327).
With the expansion of advanced nursing practice, the need to clarify the legal distinctions and scope of
practice among the varied levels of education and certification has become increasingly important
( Feringa, DeSwardt, & Havenga
However, these practices remain institution-specifi with the expectation that the nurse has received the
appropriate education to implement the protocols ( Feringa et al., 2018 ). Nurses need to realize that the
same practices may be unacceptable in another
Th e nurse practice acts help nurses clarify their roles at the varied practice levels ( Altman, Butler, &
Shern, 2016 ).
Use of Standards in Nursing Negligence and Malpractice Actions
When omission of prudent care or acts committed by a nurse or those under his or her supervision cause
harm to a client, standards of nursing practice are among the elements used to determine whether
malpractice or negligence exists.
■ National, state, or local (community—those used universally within the community) standards
■ Institutional policies that alter or adhere to the nursing standards of care
■ Expert opinions on the appropriate standard of care at the time
■ Available literature and research that substantiates a standard of care or changes in the standard
Patient ’ s Bill of Rights In 1973 the American Hospital Association (AHA) approved a statement called the
Patient ’ s Bill of Rights. It was revised in October 1992. Patient rights were developed with the belief that
hospitals and other health-care institutions and providers would support them with the goal of delivering
effective client care.
In 2003 the Patient’s Bill of Rights was replaced by the Patient Care Partnership. These standards were
derived from the ethical principle of autonomy.
In 2010, President Obama announced new regulations that included a set of protections that applied to
health coverage that started in September, 6 months af
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Informed Consent Informed consent is a legal document in all 50 states. It requires health-care providers
to divulge the benefits, risks, and alternatives to a suggested treatment, nontreatment, or procedure. It
allows for fully informed, rational persons to maintain involvement in their health and healthcare decisions
( Hall, Prochazka, & Fink, 2012 )
Although the concept of consent goes as far back as ancient legal and philosophical principles, the modern
legal model for “simple” consent was based on the case of Schloendorff v. Society of New York Hospital in
1914
In this case, a young woman agreed to an examination of her uterus while under anesthesia, but she
had not consented to surgery. Her surgeon discovered a tumor and removed her uterus. Although the New
York court dismissed the patient ’ s claim for reasons that were not related to providing consent, the case
gave the judge a chance to discuss and contribute to the development of the legal concept of informed
consent. The judge noted that it was the patient ’ s “understanding” that there was only to be an
examination, and that the patient ’ s understanding was crucial to determining consent. The New York
Court of Appeals issued a decision that laid the groundwork for informed consent and instituted a patient ’
s “right to determine what shall be done with his body” ( Moore et al., 2014 ).
Without informed consent, many of the procedures performed on clients in a health-care setting may be
considered battery or unwarranted touching. When clients consent to treatment, they give health-care
personnel the right to deliver care and perform specific treatments without fear of prosecution. Although
physicians and other practitioners performing procedures or care are responsible for obtaining informed
consent, nurses often find themselves involved in the process.
is performing the procedure or treatment to give information to a client about the benefits and risks of
treatment and outcomes ( The Joint Commission [TJC], 2016 )
It is the responsibility of the practitioner who is performing the procedure or treatment to give information
to a client about the benefits and risks of treatment and outcomes ( The Joint Commission [TJC], 2016 ).
Although the nurse may witness the signature of a patient or client for a procedure or surgery, the nurse
should not be providing details such as the benefits, risks, or possible outcomes. Th e individual institution
is not responsible for obtaining the informed consent unless;
(1) the physician or practitioner is employed by the institutions, or

(2) the institution was aware or should have been aware of the lack of informed consent and failed to act
on this fact ( Hall, Prochazka, & Fink, 2012 ). S
Some institutions require the physician or independent practitioner to obtain his or her own informed
consent by getting the patient ’ s signature at the time the provider offers the explanation for treatment.
Although some nurses believe that they only
The defining opinion on the requirements of informed consent emerged from the case of Canterbury v.
Spence. In this situation, a young patient developed paralysis after spinal surgery ( Moore et al., 2014 ). T
The patient and the family asked the surgeon if the operation was serious, and he responded, “Not any
more than any other operation.” The suit was litigated as a “failure to obtain informed consent due to
battery” (p. 923);
The informed consent form should contain all the possible negative outcomes as well as the positive ones.
The following are some criteria to help ensure that a client has given an informed consent ( Bal & Choma,
2012 ; Gupta, 2013 ):
■ A mentally competent adult has voluntarily given the consent.
■ The client understands exactly as to what he or she is consenting.
■ The consent includes the risks involved in the procedure, alternative treatments that may be available,
and the possible result if the treatment is refused.
■ The consent is written.
■ A minor’s parent or guardian needs to give consent for treatment.
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Ideally, a nurse should be present when the healthcare provider who is performing the treatment,
surgery, or procedure is explaining benefits and risks to the client. To give informed consent, the client
must receive complete information and understand the risks and benefits. Clients have the right to refuse
treatment, and nurses must respect that right. I
Implied consent occurs when consent is assumed ( Moore et al., 2014 ). This often occurs in emergency
situations when an individual is unable to give consent. State laws support the right of health-care
providers to act in an emergency without the expressed consent of the patient.
Example:
A recent civil case, Futral v. Webb, supported this. In this lawsuit, a patient presented in shock and with
altered mental status. The emergency department provider placed a subclavian line for fluids and caused
a hemothorax.
A chest tube was then inserted; however, the patient became bradycardic, arrested, and died. The patient
’ s family sued the provider; however, the jury ruled in favor of the provider and the hospital based on the
fact that the complication was a known and accepted unable to receive expressed consent ( Moore et al.,
2014 ).
Nurses may find themselves involved in emergent situations Course
where Code and Title
consent
Staying Out of Court Prevention
The public’s trust in the healthcare industry and the medical profession has declined during recent years.
Consumers are better informed and more assertive in their approach regarding care. They demand safe
and effective care that promotes positive outcomes.
The same applies to nurses. If nurses demonstrate a caring attitude and interest toward their clients and
families, a relationship develops. Individuals rarely initiate lawsuits against those they view as “caring
friends.” Demonstrating care and concern and making clients and families aware of choices and explaining
situations helps decrease liability.
Nurses who involve clients and families in care and decisions about care reduce the likelihood of a lawsuit.
Tips to prevent legal problems;
All health-care personnel remain accountable for their own actions and adherence to accepted standards
of care. Most negligence and malpractice suits arise from the violation of the accepted standards of
practice and the policies of the employing institution. Common causes of negligence.
Tips for Avoiding Legal Problems
• Keep yourself informed regarding new research related to your area of practice.
• Insist that the health-care institution keep personnel apprised of all changes in policies and procedures
and in the management of new technological equipment.
• Always follow the standards of care or practice for the institution.
• Delegate tasks and procedures only to appropriate personnel.
• Identify clients at risk for problems, such as falls or the development of decubiti.
• Establish and maintain a safe environment.
• Document precisely and carefully.
• Write detailed incident reports, and fi le them with the appropriate personnel or department.
• Recognize certain client behaviors that may indicate
Appropriate Documentation
The adage “not documented, not done” holds true in nursing. According to the law, if something is not
documented, then the responsible party did not do whatever needed to be done. If a nurse did not “do”
something, he or she will be left open to negligence or malpractice charges. Nursing documentation needs
to be legally credible. The move to computerized charting, known by various names, has decreased some
concerns but added others.
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Catalano (2014) provided several tips regarding electronic documentation.
Nurses need to be cognizant that in the electronic record, everything documented exists and does not
disappear. In other words, nurses cannot simply rip up the paper and start a new sheet or new form.
Common Causes of Negligence

Problem Prevention
Client falls Identify clients at risk.
Place notices about fall precautions.
Follow institutional policies on the use of restraints.
Always be sure beds are in their lowest positions.
Use side rails appropriately.
Equipment injuries Check thermostats and temperature in equipment used for heat or
cold application.
Check wiring on all electrical equipment.
Failure to monitor Observe IV infusion sites as directed by
institutional policy.
Obtain and record vital signs, urinary output, cardiac status, and
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so on, as directed by institutional Code
policy andand Title
more often if client
condition dictates.
Check pertinent laboratory values.
Failure to communicate Report pertinent changes in client status. Document changes
accurately.
Document communication with appropriate source.
Medication errors Follow the Seven Rights. Monitor client responses.
Check client medications for multiple drugs for the same actions
Even when nurses are using an electronic method for documentation, some of the “old rules”
still apply:
■ Remember to only use approved abbreviations.
■ Document at the time care was provided.
■ Keep documentation objective.
■ Ensure appropriateness (document only what could be discussed comfortably in a public setting).
■ Always use the barcodes on both clients and medications.
■ Avoid shortcuts on documentation.
Common Actions Leading to Malpractice Suits
■ Failure to assess a client appropriately
■ Failure to report changes in client status to the appropriate personnel
■ Failure to document in the patient record
■ Falsifying documentation or attempting to alter the patient record
■ Failure to report a coworker ’ s negligence or poor practice
■ Failure to provide appropriate education to patients and families
■ Violation of an internal or external standard
EXAMPLE OF CASES;
In the case of Tovar v. Methodist Healthcare (2005), a 75-year-old female came to the emergency
department reporting a headache and weakness in her right arm. Although the physician wrote an order
for admission to the neurological care unit, 3 hours passed before the patient was transferred. After the
patient was admitted to the unit, nurses called a physician regarding the client ’ s status; however, it took
90 minutes for another physician to return the call. Three hours later the nurses called to report a change
in the patient’s neurological status. A STAT computerized tomography scan was ordered, which revealed a
massive brain hemorrhage. Th e courts established the following based on the standard of care:
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Professional Liability Insurance
We live in a litigious society. Although a variety of opinions exist on this issue, in today ’ s world nurses
need to consider obtaining personal liability insurance ( Pohlman, 2015 ).
Although physicians get sued more than nurses, health-care institutions realize the contributions of all
members of the health-care team. A nurse can be found liable under the specific circumstances mentioned
during this chapter. Even in a case of a frivolous suit, where the patient fails to incur damages but hopes
to collect on a settlement, the nurse faces expenses ( Pohlman, 2015 ).
If a nurse is charged with malpractice and found guilty, the employing institution holds the right to sue the
nurse to reclaim damages. When a nurse has his or her own liability insurance, the company provides
legal counsel. The company may also negotiate with another company on the nurse’s behalf. Many liability
policies also cover assault, violations of HIPAA, libel, slander, and property damage.
End-of-Life Decisions and the Law

When a heart ceases to beat, a client is in a state of cardiac arrest. In health-care institutions and in the
community, it is common to initiate cardiopulmonary resuscitation (CPR) when this occurs. In health-care
institutions, an elaborate mechanism is put into action when a patient “codes.” Much controversy exists
concerning when these mechanisms should be used and whether individuals Course Codewhoand Title
have no chance of
regaining full viability should be resuscitated.
Do Not Resuscitate Orders A do not resuscitate order (DNR) is a specific directive to health-care personnel
not to initiate CPR measures. In the past, only physicians could write DNR orders; however, in many
states, nurse practitioners and physician assistants may also write a DNR order ( Hayes, Zive, Ferrell,
&Toll, 2017 ).
Although New York State has one of the most complete laws regarding DNR orders for acute and long-
term care facilities, all states have legislation regarding this request.
In 2007, the American Bar Association (ABA), in collaboration with the Department of Health and Human
Services (DHSS), developed a document addressing the overall legal and policy issues regarding DNR
requests and orders ( Sabatino, 2007 ).
This document outlined the overall existence of common law cases and policies that support a patient ’ s
right to self-determination. Th is action has been supported by the ANA (1992, 2005). It is important for
the nurse to familiarize himself or herself with the policies and procedures of the employing institution. Th
e nurse ’ s role in DNR orders are listed in Box 3-2 .
The American Nurses Association recommends that:

• Clinical nurses actively participate in timely and frequent discussions on changing goals of care and
initiate DNR/AND discussions with patients and their families and significant others.
• Clinical nurses ensure that DNR orders are clearly documented, reviewed, and updated periodically to
reflect changes in the patient ’ s condition (Joint Commission, 2010).
• Nurse administrators ensure support for the clinical nurse to initiate DNR discussions.
• Nursing home directors and hospital nursing executives develop mechanisms whereby the AND form
accompanies all inter-organizational transfers.
• Nurse administrators have an obligation to assure palliative care support for all patients.
• Nurse educators teach that there should be no implied or actual withdrawal of other types of care for
patients with DNR orders. DNR does not mean “do not treat.” Attention to language is paramount, and
euphemisms such as “doing everything,” “doing nothing,” or “withdrawing care or treatment,” to indicate
the absence or presence of a DNR order should be strictly avoided.
• Nurse educators develop and provide specialized education for nurses, physicians, and other members
of the interdisciplinary health care team related to DNR, including conversations on moving away from
DNR and toward AND language.
• Nurse researchers explore all facets of the DNR process to build a foundation for evidence-based
practice. ANA Position Statement 10 Nursing Care and Do Not Resuscitate (DNR) and Allow Natural Death
(AND) Decisions
11
• All nurses ensure that whenever possible, the DNR decision is a subject of explicit discussion between
thehealth care team, patient, and family (or designated surrogate), and that actions taken are in
accordance with the patient’s wishes.
• All nurses facilitate and participate in interdisciplinary mechanisms for the resolution of disputes between
patients, families, and clinicians’ DNR orders (Cantor, et al., 2003).
• All nurses actively participate in developing DNR policies within the institutions where they work. Specifi
cally, policies should address, consider, or clarify the following:
○ Guidance to health care professionals who have evidence that a patient does not want CPR attempted
but for whom a DNR order has not been written
○ Required documentation to accompany the DNR order, such as a progress note in the medical record
indicating how the decision was made
○ The role of various health care practitioners in communicating with patients and families about DNR
orders
○ Effective communication of DNR orders when transferring patients within or between facilities
○ Effective communication of DNR orders among staff that protects against patient stigmatization or confi
dentiality breaches
○ Guidance to practitioners on specific circumstances that may require reconsideration of the DNR order
(e.g., patients undergoing surgery or invasive procedures)
○ The needs of special populations (e.g., pediatrics and geriatrics). Course Code and Title
Advance Directives
The legal dilemmas that may arise in relation to DNR orders often require court decisions. For this reason,
in 1990, Senator John Danforth of Missouri and Senator Daniel Moynihan of New York introduced the PSDA
to address questions regarding life-sustaining treatment.
The act was created to allow people the opportunity to make decisions about treatment in advance of a
time when they might become unable to participate in the decision-making process.
Federal law mandates that health-care institutions that receive federal monies (from Medicare or
Medicaid) inform clients of their right to create advance directives (H.R. 5067, 1995). The PSDA (S.R.
13566) provides guidelines for developing advance directives concerning what will be done for individuals
if they are no longer able to participate actively in making decisions about care options. More information
regarding the PSDA may be found at www.congress.gov.
Living Will and Durable Power of Attorney for Health Care (Health-Care Surrogate)
The two most common forms of advance directives are living wills and durable power of attorney. Living
wills and other advance directives describe individual preferences regarding treatment in the event of a
serious accident or illness.
These legal documents indicate an individual’s wishes regarding care decisions ( Sabatino, 2010 ). A living
will is a legally executed document that states an individual ’ s wishes regarding the use of life-prolonging
medical treatment in the event that he or she is no longer competent to make informed treatment
decisions on his or her own behalf ( Sabatino, 2010 ).
A condition is considered terminal when to a reasonable degree of medical certainty there is little
likelihood of recovery or the condition is expected to cause death. A terminal condition may also refer to a
severe neurological entity, a persistent vegetative state characterized by a permanent and irreversible
condition of unconsciousness in which there is
(1) Absence of voluntary action or cognitive behavior of any kind and
(2) an inability to communicate or interact purposefully with the environment ( Shea & Bayne, 2010 ).
Another function of the advance directive is to designate a health-care surrogate. The role of the
health-care surrogate is to make the client’s wishes known to medical and nursing personnel.
12
In some situations, clients are unable to express themselves adequately or competently, although they
may not be considered “terminally ill.”
For example, clients who have been
a. diagnosed with a cognitive impairment such as Alzheimer ’ s disease or
b. other forms of dementia cannot communicate their wishes;
c. clients under anesthesia are temporarily unable to communicate; and
d. the condition of a comatose client fails to allow for expression of health-care wishes.
In the case of Wendland v. Sparks ( Reagan, 1998 ), the physician and nurses were sued for not
“initiating CPR.” In this case, the client had been hospitalized for more than 2 months for a lung disease
and multiple myeloma. Although improving at the time, during the hospitalization the client experienced
three cardiac arrests. Even after this she had not requested a DNR order, nor had her family.
Nursing Implications
The PSDA does not specify who should discuss treatment decisions or advance directives with clients.
Because directives are often implemented on care units, nurses must be knowledgeable regarding living
wills, advance directives, and health-care surrogates. Course Code and Title
The responsibility for creating an awareness of individual rights often falls on nurses because they act as
client advocates. The responsibility for educating the professional staff about policies resides with the
health-care institution. Nurses who are unsure of the existing policies and procedures of the institution
should contact the appropriate
Activity (can also be Critical Thinking and Review Questions)

ACTIVITY 1:
1. How do federal laws, court decisions, and SBONs affect nursing practice? Give an example of each.
2. Obtain a copy of the nurse practice act in your state. What are some of the penalties for violation of the
rules and regulations?
3. Review the minutes or documents of a state board meeting. What were the most common issues for nurses
to be called before the board of nursing? What were the resulting disciplinary actions?
4. The next time you are on your clinical unit, look at the nursing documentation done by several diff erent
staff members. Do you believe it is adequate? Explain your rationale.
5. How does your clinical institution handle medication errors.
6. . What is the difference between consent and informed consent? 10. Look at the forms for advance directives
and DNR policies in your institution. Do they follow the guidelines of the PSDA? 11. What are the most
common errors nurses commit that lead to negligence or malpractice?
ACTIVITY 2: CASE STUDY
Mr. Evans, 40 years old, was admitted to the hospital’s medical-surgical unit from the emergency
department with a diagnosis of acute abdomen. He had a 20-year history of Crohn ’ s disease and had
been on prednisone, 20 mg, every day for the past year. Three months ago he was started on the new
biological agent etanercept, 50 mg, subcutaneously every week. His last dose was 4 days ago. Because he
was allowed nothing by mouth (NPO), total parenteral nutrition was started through a triple-lumen central
venous catheter line, and his steroids were changed to Solu-Medrol, 60 mg, by intravenous (IV) push
every 6 hours. He was also receiving several IV antibiotics and medication for pain and nausea.
During the next 3 days, his condition worsened. He was in severe pain and needed more analgesics. One
evening at 9 p.m., it was discovered that his central venous catheter line was out. The registered nurse
(RN) notified the physician, who stated that a surgeon would come in the morning to replace it. The nurse
failed to ask the physician what to do about the IV steroids, antibiotics, and fluid replacement; the client
was still NPO. She also failed to ask about the etanercept. At 7 a.m., the night nurse noticed that the
client had had no urinary output since 11 p.m. the night before. She documented that the client had no
urinary output but forgot to report this information to the nurse assuming care responsibilities on the day
13
shift. The client ’ s physician made rounds at 9 a.m. The nurse for Mr. Evans did not discuss the fact that
the client had not voided since 11 p.m., did not request orders for alternative delivery of the steroids and
antibiotics, and did not ask about administering the etanercept. At 5 p.m. that evening, while Mr. Evans
was having a computed tomography scan, his blood pressure dropped to 70 mm Hg, and because no one
was in the scan room with him, he coded. He was transported to the intensive care unit and intubated. He
developed severe sepsis and acute respiratory distress syndrome.
1. List all the problems you can find with the nursing care in this case.
2. What were the nursing responsibilities in reporting information?
3. What do you think was the possible cause of the drop in Mr. Evans’s blood pressure and his subsequent
code?
4. If you worked in risk management, how would you discuss this situation with the nurse manager and
the staff?
Interactive Link Course Code and Title

www.congress.gov.
Everyday Connection
SYNCHRONOUS AND ASYNCHRONOUS LEARNING
Summary
Nurses need to understand the legalities involved in the delivery of safe and effective health care that promotes
positive outcomes. It is important to be familiar with the standards of care established within your institution and
the rules and regulations that govern nursing practice within your state because these are the standards to which
you will be held accountable. Health-care consumers have a right to expect quality care and that their health
information will remain confidential. Caring for clients safely and avoiding legal difficulties requires nurses to adhere
to standards of care and their scope of practice and carefully document changes in client conditions.
Readings and References
Source: American Nurses Association. (2012). Position statement on nursing care and do not resuscitate
decisions. Washington, DC: ANA.
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Study Guide 7-Nursing Practice and The Law: Topic Outline

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Study Guide 7-Nursing Practice and The Law: Topic Outline

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Study Guide 7- Nursing Practice and the Law

Activating Prior Knowledge

1.1 Discussion of Key Concepts

Types of Laws Course Code and Title

Three doctrines come under the principle of vicarious liability:

2. the borrowed servant doctrine, and

Other Laws Relevant to Nursing Practice

Slander and Libel

Making a false written statement is libel.

Assault and Battery

Assault is threatening to do harm.

Use of Standards in Nursing Negligence and Malpractice Actions

(1) the physician or practitioner is employed by the institutions, or

Staying Out of Court Prevention

Tips for Avoiding Legal Problems

Common Causes of Negligence

End-of-Life Decisions and the Law

The American Nurses Association recommends that:

Activity (can also be Critical Thinking and Review Questions)

ACTIVITY 2: CASE STUDY

Interactive Link Course Code and Title

Readings and References

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