Legal Aspects of Nursing Prepared by: John J.

Teodoro PTRP, RN Definition of Terms Board of Registered Nursing Each state has a Board of Registered Nursing organized within the executive branch of the state government. Primary Responsibilities of the BRN include the administration of the Nurse Practice Act as applied to registered nurses. Authorization to Practice Nursing To legally engage in the practice of nursing, an individual must hold on an active license issued by the state in which he or she intends to work. Nurse Practice Act A series of statutes enacted by each state legislature to regulate the practice of nursing in that state. Topics that are included are the following a. scope of nursing, education, licensure, grounds for disciplinary actions & related topics. a. Provides legal authority for nursing practice including delegation of nursing tasks. b. Many boards of nursing also provide decision and delegation checklist. c. Set educational requirements for the nurse distinguishing Nursing Practice from Medical Practice & defines the Scope of Nursing. ANA (American Nurses Association) of 1980 Incorporates the following elements that demonstrate in a nurse: a. Human dignity & uniqueness of individual regardless of health problems & socio-economic status b. Maintain patients right for privacy & confidentiality c. Maintain competence through ongoing professional development & consultation. Ethical Principles of Bio-ethics A philosophical field that applies ethical reasoning process for achieving clear & convincing reasons to issues & dilemmas ( conflicting between two obligations) 1. Autonomy: the right of the patient to make one’s own decision - Example: Religious Practices & Cultural Beliefs (Blood Transfusion & Organ Donation) 2. Veracity: the intention to tell the truth - Never give false reassurance to another person 3. Beneficence versus Non-malfeasance a. Beneficence : duty to do good b. Non-malfeasance: duty to avoid evil 4. Confidentiality: social contract in keeping one’s privacy Standards of Care

Guidelines for determining whether nurses have performed duties in a appropriate manner & guidelines in which the nurse should practice Patient’s Bill of Rights Right for appropriate treatment that is most supportive & least restrictive Right to individualized treatment plan, subject to review & treatment Right to active participation in treatment with the risk and side effect of all medications and treatment Right to give and withhold consent/contracts Contracts & Consent: it is the meeting o the minds between two or more persons whereby one binds himself with respect to the other to give something or to render some service. Pre-requisites of a Valid Consent and Contract (OPEN- V) O- Opportunity to ask questions (possible consequences of the procedure) P- Physically & Mentally Competent & Mature ( 18 years old & up ) E- Explained the Procedures & Treatment Specifically N- Nothing should be misunderstood by the patient (the patient should not be allowed to sign the informed consent if she / he is pre-medicated or under the influence of alcohol or drugs or mentally incapacitated V-Voluntary Made (absence of force, fraud, deceit or duress ( force) Exceptions to an Informed Consent (MEMO-S) M –Married & Mature Minors E- Emancipated minors (to release a child from the control of his parents) Emergency Cases M- Minors seeking birth control or pre-natal treatment O- Over specific age (ex. 12 years old & above) may give consent for STD, HIV testing, AIDS treatment, drugs & alcohol treatment WITHOUT parents consent. SSexually abused minors & adolescents Right to refuse Treatment 1. Advance Directives: Legal, written or oral statements made by a mentally competent person about treatment. In the event the person is unable to make these determinations, a surrogate decision-maker can do so, example: sudden serious illness. Characteristics of Advance Directives 1. allows clients to participate in choosing health care providers (Choosing his / her own nurses & doctors)

2. allows also in choosing the type of medical treatments the client desires. 3. Allows clients to consent or refuse treatments The Patient Determination Act of 1990 (PSDA) is a federal law that imposes on states and providers of health care certain requirements concerning Advanced Directives as well as client’s right under law to to make decisions concerning medical care.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1990 - Medical Screening of patients cannot be delayed until insurance coverage or the ability to pay has been determined. This is to assure that the patients are not denied care based on their ability to pay , patients must be medically screened & stabilized before their ability to pay is determined. Failure of a Hospital to comply may result in denial of Medicare funding. Example: All women patients having labor contractions must be medically screened & stabilized before transfer to another facility. Whether it is obvious that the patient is in labor or not, the patient must be medically screened & examined before the decision is made to transfer the patient to another facility. The emergency department does not have the right to refuse treatment to a patient before medically screening the patient. - It does not address payment for services as part of the admission procedure. It only addresses medical screening & stabilization of patients before transport or the determination of ability to pay for services rendered. a. Living Will: legal document stating person does not wish to have extra-ordinary life saving measures when not able to make decisions about his own care. -applicable FOR LIFE SAVING TREATMENT ONLY. Example: CPR, antibiotics & dialysis will be used or not b. Durable Power of Attorney: legal document giving designated person authority to make health care decisions on the client’s behalf when the client is unable to do so. Right to obtain Advocacy Assistance Patient Advocate: is a person who pleads for a cause or who acts on the client’s behalf. Example: nurse Goal of Advocacy: help client gain greater self-determination & Encourage freedom o choices, increase sensitivity & responsiveness of the health care, social, political systems to the needs of the client.

Example: advocates for HIV client rights for proper treatment & job opportunities CRIMES AFFECTING NURSES I. Crime - Act committed in violation of social law. a. Tort (fraud, negligence & malpractice) - Legal wrong committed against a person, his rights & property. 1. Fraud – misrepresentation of fact with intentions for it to be acted on by another person ( such as falsifying graduate nursing programs) 2. Negligence 3. Malpractice Negligence Definition: - Unintentional failure of an individual person to perform an act or omission to do something that a reasonable prudent person would do or not do. - Most common unintentional tort - Failure to observe the protection of one’s interest, the degree of care, and vigilance of circumstances. versus Malpractice Definition: - any professional misconduct which involves any conduct that exceeds the limits of one’s professional standards means going beyond the context or scope of allowed nursing practice resulting to injurious or non-injurious consequences. - stepping beyond one’s authority

Example: Example: a. Incorrect sponge counts a. prescribing drugs b. burns: heating pads ,solutions & steam b. giving anesthesia vaporizers c. doing surgery c. failure to take & observe appropriate actions – forgetting to take vital signs to a newly post –operative client. d. Falls: side rails left down, baby left unattended e. loss of or damage to a patient’s property f. failure or ignore to report to the superiors or client’s family g. mistaken identity, wrong medicine, dose & route ELEMENTS OF NEGLIGENCE LAWSUIT (B-R-O-D) ELEMENTS OF MALPRACTICE(p-r-e)

B- breach of duty was the cause of the P- professional SPECIFIC standards of care

plaintiff’s injury R- Real or actual proof injuries to the standards of care O- owed specific nursing duty D- defendant breach the duty Assault -Mental or physical threat

is required R- required obedience E- exceeds the limits of the standards of care

Intentional Torts Battery -physical harm through willful touching of person or clothing without consent. Example a. actually touching or wounding a offensive manner b. hitting or striking a client c. immediately injecting a surgical without informing the patient about the said procedure

Example a. threatening or attempting to do person in violence to another b. forcing a medication or treatment when the patient doesn’t want it needle c. threatening children to take the medication False Imprisonment

- occurs when the person is not allowed to leave a health care facility when there is no legal justification to detain the client. - occurs when restraining devices are used without an appropriate clinical need. - The intentional confinement without authorization by a person who physically constricts another using force , the threat of force or confining structures and or clothing , even without force or malicious intent to detain another without consent in a specified area constitutes grounds or a charge of false person from harming self or others if it is necessary to confine to define one self , others or property or to effect a lawful arrest. Examples: a. A Hispanic American patient undergo TAHBSO and has no Medicare or HMO card nor nor any petty cash to pay hospital bills. The nurse put the patient in a room until the relatives of the former arrive to pay the bills. B. a Hong Kong OFW was suspected of having SARS. The ground duty nurse put the patient in a secluded room without doctors order and checked for other manifestations to confirm the presence of SARS. After 9 hours, it was just an ordinary cough and colds. c. A client was tested positive for HIV. Nurse Hamilton learned that this is highly contagious & communicable disease. The nurse locked the client inside a room.

Legal aspect regarding Restraints Restraints are protective devices used to limit the physical activity of a client or to immobilize a client or an extremity. Physical restraints: restrict client movement through the application of a device. Chemical restraints: Medications given to inhibit a specific behavior or movement. Under Omnibus Budget Reconciliation Act: any client or patient has the right to be free from Physical (such as restraint jackets) and chemical (sedation, psychotropic drugs) restraints Imposed for the purpose o discipline or convenience and should not be required to treat medical or psychiatric symptoms. Lawful Requirements & Nursing Actions for Using Restraints According to (JCAHO) Joint Commission on ACCREDIATATION OF HEALTHCARE ORGANIZATIONS 1. RESTRAINTS SHOULD NOT BE USED PRN!!! 2. Informed consent and a Doctors order is needed to use restraints. 3. Doctors orders for restraints should be renewed within a specific time frame according to the agencies policies. 4. Restraints should not interfere with any treatments or affect the client’s health problems. 5. Document the following: Reason for the restraints Method of restraints Date and time of application Duration of use and clients response Release from the restraints (every 30 minutes) with periodic exercise and Circulatory, neurovascular and skin assessment Evaluation of client’s response 6. DON’T ASK PERMISSION IF THE PATIENT HAS AN ALTERED LEVEL OF CONSCIOUSNESS!!! 7. If the client is unable to give consent to a restraint procedure, then consent of proxy must be obtained AFTER FULL DISCLOSURE OF ALL RISK AND BENEFITS. 8. Use a clove hitch knot so that restraint can be changed and release easily and ensure that there is enough slack on the straps to allow some movement o the body part. 9. Never secure restraints to bed rails or mattress. Secure restraints to parts of the bed or chair that will move with client & not constrict movement.

ALTERNATIVES TO RESTRAINTS 1. Before restraints offer explanations, ask someone to stay with the client, use clocks, calendars, TV & radio ( to decrease disorientation) or any relaxation techniques. 2. Use LESS restrictive methods first. RESTRAINTS should always be the last. 3. Assign confuse and disoriented clients to rooms near the nurse’s station. 4. Maintain toileting routines & institute exercise and ambulation schedules as the client condition allows. QUESTION: Can I put restraints on a patient who is combative I there is no order for this? Only in an EMERGENCY, for a limited time (no longer than 24 hours) For the limited purpose of protecting the patient from injury – NOT FOR CONVENIENCE OF Personnel. Notify the attending MD immediately, consult with another staff member, obtain patients consent if possible, and get a coworker to witness the record. RESTRAINTS OF ANY DEGREE MAY CONSTITUTE FALSE IMPRISONEMENT. Freedom from any UNLAWFUL restraint is a Basic human right protected by law. In July 1992 the FDA (Food and Drug Administration) issued a warning that the use of restraints is – NO LONGER REPRESENTS RESPONSIBLE PRIMARY MANAGEMENT of a client’s behavioral problem. Writing an Incident Report - A tool used as a means of identifying and improving client care. They are usually made immediately after its occurrence and validated immediately by co-workers. - the real purpose is to provide accurate documentation of occurrences affecting the client as to have basis for its intervention. - it is usually made as a comprehensive & accurate report on any unexpected or unplanned occurrence that affects or potentially affects his family or other members of the health team. The following are common situations that require an incident report: MOST OF THEM ARE NEGLIGENT NURSING ACTS a. Falls , Burns & medication error b. Break in the aseptic technique c. Incorrect sponge count during surgery d. Failure to report the clients condition Rules in Incident Report Don’t use the word error or include lawful judgment or inflammatory words

Legal Rules on Documentation, Charting & MD’s Order Documentation - Legally required by accrediting agencies, state licensing laws and state nurse and medical practice acts. -required for insurers reimbursement - legal documentation that signifies proper communication about the patients condition Question: What should be written in the nurses notes? All facts and information regarding the patients condition, treatment, care, progress and response to illness and treatment. Document consent or refusal of treatment. Question: 1. 2. 3. 4. 5. 6. 7. 8. 9. How should data be recorded? Entries should: State date and time given. be written, signed & titled by caregiver or supervisor who observed action follow chronological sequence Be accurate, factual, objective, complete , precise and clear Use universal abbreviations. Example: prn, b.c. be legible; black pen Have all spaces filled in, leave no blank spaces. Avoid judgmental or evaluative statements such as “ uncooperative client” Do not document for others or change documentation for other individuals

Question: Should I accept verbal phone orders from an MD? Generally, NO. Specifically, follow your hospitals by laws, regulations and policies regarding this. Failure to follow the hospital’s rules could be considered NEGLIGENCE. In cases when verbal orders are deemed necessary the following outline may find helpful REGARDING TELEPHONE ORDERS: 1. date and time entry 2. repeat the order to the MD & record the order 3. sign the order, begin with t.o. ( telephone order), write the MD’s name & then signature the order 4. if another nurse witnesses the order, that signature follows 5. The physician needs to countersign the order within the time frame according to hospital or agency policy. Question: Should I follow an MD’s order if I know it is wrong? ] No. If you think a reasonable prudent nurse would not follow it; but first inform the MD and record your decision. Report it to your supervisor. Should I follow an MD’s order if I disagree with his or her judgment?

Yes. Because the law does not allow you to substitute your nursing judgment for a doctors medical judgment. Do record that you questioned the order and that the doctor confirmed it before you carried it out. In order to be safe, check the agency policy manual of your work. Question: What can I do if the MD delegates a task to me for which I am not prepared? Inform the MD of your lack of medication and experience in performing the task. Refuse to do it. If you inform him or her and still carry out the task, both you and the MD could be considered NEGLIGENT if the patient is harmed by it. If you do not tell the MD and carry out the task, you are solely liable. Liability for Mistakes Question: Is the hospital or the nurse liable for the mistakes made by the nurse while following orders? Both the nurse and hospital can be sued for damage if a mistake made by the nurse injures the patient. The nurse is responsible for his or her own actions. The hospital would be liable, based on the doctrine of Respond eat Superior. Question: For what would I be liable if I voluntarily stopped to give care at the scene of an accident? The GOOD SAMARITAN ACT – protects health practitioners against malpractice claims resulting from assistance provided at the scene of an emergency ( UNLESS THERE WAS WILLFUL DOING) as long as the level of care provided is the same way as any other reasonably prudent person would give under similar circumstances. It also encouraged health care professionals to assist in emergency situations without fear of being sued for the care provided. These laws limit liability and offer legal immunity for people helping in an emergency, providing they give reasonable care. Organ Donation Requirements: a. Any person 18 years of age or older may become an organ donor by written consent. b. Informed choice to donate an organ can take place with the use of a written document signed by the client prior to death, a will, or a donor card or an advance directive. c. In the absence of appropriate documentation, a family member or legal guardian may authorize donation on the descendant’s organs. d. In case of newborns, they must be full term already ( more than 200 grams) Laws that Protect potential donors to Expedite acquisition: 1. National Organ Transplant Act: prohibit selling of organs 2. Uniform Anatomical Act: guidelines regarding who can donate, how donations are to Be made, and who can receive donated organs. 3. Uniform Determination Death Act: Legal determination of brain death ( absence of breathing movement, cranial nerve reflex, response to any painful stimuli and cerebral blood flow and flat EEG. Management of Donor 1. Maintain body temperature at GREATER than 96.8 F with room temperature at 70 -80 F warming blankets, warmer for IV fluids. 2. Maintain greater than 100% PaO2 and suction/ turn & use (PEEP) positive End expiratory pressure to prevent hypoxemia caused by airway obstruction & pulmonary edema.

3. Maintain CVP (Central Venous Pressure) at 8 to 10 mm Hg and systolic blood pressure at greater than 90 mm Hg to prevent Hypotension. 4. Maintain Fluid & Electrolyte balance due to volume depletion 5. Prevent infections due to invasive procedures. Religions that have different views regarding organ donations 1. Russian Orthodox: permits all donations EXCEPT THE HEART. 2. Jehovah’s Witness: DOES NOT ALLOW organ donation and all organ to be transplanted must be drained of blood first. 3. Judaism: They permit organ donation as long as with RABBINICAL CONSULTATION. 4. Islam: will NOT USE ORGAN STORED IN ORGAN BANKS.

Do not Resuscitate (DNR) Factors in giving order of resuscitation: 1. Client’s will and advance directives 2. Disease Prognosis such as cancer or HIV 3. Client/s ability to cope 4. Whether CPR will be given or not Reasons for refusing to perform resuscitation 1. Epidemic or widespread disease or debilitating condition & that CPR is not beneficial 2. CPR will aggravate or prolong the agony of the client 3. against cultural & religious suffering 4. Advance directives & Will Voluntary Admission versus Involuntary Admissions Voluntary Admissions: Requirements & By Laws a. Lawful or of legal age b. If the client is too ill, a guardian is possible c. Client agrees to accept the treatment d. The client is free to sign him or herself out of the hospital- Has the right to demand & receive RELEASE. Involuntary Admissions Requirements & By Laws a. Deemed necessary for the following reasons & criteria: 1. Danger to self & others 2. need psychiatric or physical care 3. State laws have been determined legally by the state b. The client who is involuntarily admitted does not lose his or her right of informed consent.

Question: What is the meaning of Conditional Release? - usually requires outpatient treatment for a specified period of time to determine the client’s compliance with medication protocol , ability to meet basic needs and ability to reintegrate to community. Other Laws to be Remembered Tarasoff Act- if there are manifestations that a patient has some suicidal tendencies, it is the duty on the part of the nurse of a threatened suicide or possible harm or threat to others. There must be the proper dissemination of information to other members of the health care team. Occupational Safety & Health Act- requires that an employer provide a safe work place for employees according to regulations. Employees can confidentially report UNSAFE WORKING CONDITIONS that violate regulations. A PERSON WHO DOES NOT REPORT UNSAFE WORKING CONDITIONS CAN BE RETALIATED AGAINST BY THE EMPLOYER. M’Naghten Rule (1832) - a person is guilty if: a. person did not know the nature and quality of the act b. Person could not distinguish right from wrong, if the person does not know what she / he is doing or a person does not know it was wrong. Irresistible Impulse Test (used together with M,Naghten Rule) – person knows right from wrong, but: a. Driven by impulse to commit criminal acts regardless of consequences. b. Lack premeditation in sudden violent behavior.

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