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Legal Issues in Critical

Care Nursing
Governmental Organizations Overview
Legislative Branch
◦ Create and modify statutes

Executive Branch
◦ Write and enforce regulations

Judicial Branch
◦ Interpret statutes and regulations

I’m Just a Bill


Administrative Law
Includes state/federal statutes and regulatory agencies enforce those laws
Nurse Practice Act (NPA)
◦ Defines practice of nursing
◦ Requires nursing licensure
◦ Establishes standards for nursing schools
◦ Delegates enforcement powers to a state agency
◦ State Board of Nursing
State Board of Nursing
State Board of Nursing develops regulations for the public and nurses of how the NPA will be
interpreted.
National Council of State Boards of Nursing (NCSBN)
◦ Conduct research
◦ Pool resources
◦ Publish practice acts and position statements
◦ Develop NCLEX for licensure examination
Complaints may be reported regarding care provided by a nurse.
◦ Conducts an investigation
◦ Must meet certain procedural requirements to revoke, discipline, or place limitations or conditions on a
nursing license
◦ The nurse is entitled to a notice of the complaint.
◦ Final step is usually in the form of a hearing before the Board.
HIPAA
Statute enacted by Congress in response to concerns about security of electronic health records
Critical Care Nurses, according to HIPPA, need to
◦ Verify who can have access to patient information before sharing it
◦ The patient has right to make the decision.
◦ Must communicate this right to the patient
◦ Use of passwords and careful use of computers out of view of public
Criminal Law
Criminal law is public law.
If convicted, penalty can include loss of liberty.
In nursing includes
◦ Intentional assault and battery
◦ Fraud
◦ Theft
◦ Negligent homicide
◦ Murder
Civil Law
Civil law is private law.
Includes tort law:
◦ Trespass, assault, battery, and negligence

Most common against nurses and employers is negligence by a professional, called malpractice.
Nursing Malpractice Case
The distressed patient and/or family file a lawsuit against the nurse in a civil court.
The nurse becomes a defendant.
◦ Legal representation obtained

Discovery phase
◦ Written answers to written questions

Depositions
◦ Oral testimony

Trial
Elements of Malpractice
Duty
Breach of Duty
Damages
Causation
Duty
Legal relationship between two or more parties
Contractual relationship between the patient and the health care facility
Duty of individual nurse confirmed by the nurse’s name in the patient’s records
A nurse has a duty to provide reasonable care within established standard of care.
Breach of Duty
After the establishment of duty, the plaintiff must show the nurse violated that duty.
Negligence is determined by comparing the nurse’s conduct with established standard of care
(SOC).
If the nurse fails to have met the SOC, he or she has violated his or her duty to the patient.
Negligence can be “ordinary” or “gross.”
◦ Gross negligence indicates the nurse willfully and consciously ignored a known risk of harm for the
patient.
Causation
Malpractice law requires a causal relationship between the nurse’s breach of SOC and injury to
the patient.
The plaintiff has to show the injury or harm occurred as a result of the nurse’s action or inaction.
“Proximate cause” has to be established.
Damages
The intent of malpractice law is to make the injured party “whole.”
Most courts award monetary “damages” to compensate the plaintiff for their injuries
Economic damages
Noneconomic damages
◦ Pain and suffering
◦ Many states place limits on the amount of monetary awards.
Common Cases in Critical Care
Failure to comply with reasonable SOC
◦ Case study

Improper medication administration


◦ Case study

Criminal liability
◦ Case study
Vicarious Liability
Vicarious liability means to hold someone responsible for the actions of another.
Includes
◦ Respondeat superior
◦ Corporate liability
◦ Negligent supervision
◦ Rule of personal liability
Respondeat Superior
“Let the master answer for the sins of the servant.”
Hospitals are held liable for the negligence of their employees.
Applies when hospital employees act within their scope of employment
Does not apply in situations involving temporary personnel or typically to physicians
Corporate Liability
Corporate liability occurs when a hospital is found liable for its own unreasonable conduct.
Example:
◦ Chronically understaffed or injury occurs as a result of being understaffed
◦ Floating nurses not competent in area they are floated to
Negligence Supervision
Negligence supervision is claimed when a supervisor fails to reasonably supervise people under
his or her direction.
Example:
◦ A nurse being floated to an ICU but is not skilled or trained in ICU is delegated invasive procedures by
the charge nurse.
◦ Charge nurse may be found liable if an injury occurred to the patient.
Captain of the Ship Doctrine
Physicians used to be considered the “captain of the ship.”
◦ Nurses were expected to follow any order.

Now practice under a legal concept called “rule of personal liability”


Nurses are responsible for making sound decisions by virtue of their own specialized education,
training, and experience.
◦ Do not follow orders the nurse deems unsafe
◦ Seek clarification or follow the chain of command
Independent Nursing Judgment
Questionable medical order
◦ Case study

Policy statements should exist in hospitals that indicate the manner of resolving the issue of
“questionable” medical order.
◦ An order that is wrong can harm the patient.
◦ Initially clarification of order
◦ Clear chain of command
Establishment of Protocols
Critical care nurses may perform medical acts without direct supervision of the physician, but
the act must have established protocols.
Protocols should be in compliance with NPA.
Should reflect current SOC
Liability for Defective Equipment
The Safe Medical Devices Act requires user facilities to report to the manufacturer medical
device malfunctions that result in serious illness, injury, or death.
Required to report to FDA a death
Nurses must participate in the reporting, even if due to user error.
Nurses have a duty not to use equipment that is defective.
◦ Case study
Autonomy
Laws protecting autonomy include “informed consent.”
A nurse witnesses a signed consent form.
◦ Witness signature only when you sign

Document in the nurse’s notes stating, “consent procedure witnessed” if present during the
consent procedure.
Decision-Making of Incompetent Patient
Advance directives
State laws identify next of kin for decision making.
Living wills
Durable power of attorney for health care
Issues Involving Life Support Measures
DNR orders
◦ No “slow codes”

Refusal of treatment for religious reasons


Advance directives
Withdrawal of life support
Right to restrict food and fluids
Brain Death and Organ Donation
States have laws on definition of brain death and about organ donation based upon the Uniform
Anatomical Gift Act.
Brain death is legally dead with no legal duty to continue to treat.
Statues set making and accepting gift of an organ.
Professional Practice
Models
Defining Critical Care Nurse
Exceptional and diverse group
Knowledgeable
◦ Specialized body of knowledge

Highly skilled
◦ Competent skills

Caring
◦ Holistic nursing
AACN
Evaluating data drives decision making.
Determine trends, issues, and policy
Advocacy implications affect critical care nursing practice, patients, and families.
Defining Nursing Professionalism
True profession
Level of entry to nursing
Personal responsibility and accountability to professional role
Term “professionalist”
◦ Strive to build solid foundation for their calling
◦ Ethical, academic, political, and socioeconomic
Characteristics of a Profession
Services provided to humanity and welfare of society
Special body of knowledge
Services provided involve intellectual activities
Practitioners educated in higher learning
Motivated by service
Code of ethics
Supports standard of care
Professionalism Among Critical Care
Nurses
Critical care nursing characteristics
◦ Professional beliefs
◦ Decision making
◦ Level of education
◦ Membership of professional nursing organizations
◦ Certifications
Defining Nursing Excellence
“Excellence” is “best practice.”
No single definition of excellence
Definition may include dynamic process.
Six attributes for advanced-practice nursing
◦ Values, vision, mastery, passion, action, and balance
Healthy Work Environment
Skilled communication
True collaboration
Effective decision making
Appropriate staffing
Meaningful recognition
Authentic leadership
Personal Mastery
Commitment to lifelong learning.
Seek feedback and peer review.
Seek a degree higher education.
Demonstrate competence through certification.
Certification
Certification validates clinical competency.
◦ Process of achieving highest recognition of excellence

Certification validates competency of


◦ Knowledge
◦ Skills
◦ Experience

Perception among nurses gives autonomy and control over practice, enhances collaboration,
and results in higher patient satisfaction.
Passion
Enthusiastically striving for what is best
Goes beyond 8 to 12 hour shift
Examples:
◦ Bring research to bedside
◦ Updating protocols and procedures

Passion beyond the bedside


Action
A “thought pause”
Actions to ensure safety
“To walk the talk” for clinical excellence
AACN Beacon Award for Critical Care Excellence
Outcome-based practice
◦ AACN Practice Alerts
Balance
Allow for moments of “full presence.”
Taking time to care for oneself
◦ Required for body and mind

Shift over, “let go.”


Renew and recharge for next day.
Balance professional and personal life.