Nursing Leadership & Management

Patricia Kelly-Heidenthal 0-7668-2508-6

Delmar Learning
Copyright 2003 Delmar Learning, a Thomson Learning company

Chapter 22
Legal Aspects of Patient Care

Delmar Learning
Copyright 2003 Delmar Learning, a Thomson Learning company

Objectives

Upon completion of this chapter, the reader should be able to:

Identify the sources of public law and its impact on nursing practice. Name various federal administrative agencies and their areas of influence. Name the most common areas of nursing practice cited in malpractice actions and list some actions a nurse can take to minimize these risks.

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Objectives
Describe the various forms of advance directives and how these are commonly implemented. Describe risk management and how it is used in the health care setting. Discuss the rights of the nurse as an employee.

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Types of Law

Civil law: law that affects the relationship between individuals Public law: law that specifies the relationship between citizens and the state

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Sources of Law

Constitution: a set of basic laws that specifies the powers of the various segments of the government and how these segments relate to each other, and that grants the authority to make, implement, and interpret laws Legislative bodies: enact laws at both the federal and state levels

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Sources of Law

Administrative agencies: draft the rules that implement the law Judicial branch: interprets the law while ruling in court cases Common law: courts set precedents that are used by other courts; over time, these have the force of law

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Public Law

Public law consists of constitutional law, criminal law, and administrative law and defines a citizens relationship with government.

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Constitutional Law

Several categories of public law affect the practice of nursing, e.g., freedom of religion, right to abortion, and right to die. The nurse may not interfere in another persons expression of these and other constitutional rights.

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Criminal Law

Criminal law focuses on the actions of individuals that can intentionally do harm to others. The following are examples of criminal law affecting the nurse:
In many states, nurses are required to report suspicious injuries that may be signs of physical violence to the appropriate agency. Many health care agencies are required to do criminal background checks on potential employees. Both federal and state law require health care agencies to regulate and monitor regulated drugs.
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Criminal Law

A nurse also may be affected by criminal behavior outside the workplace; e.g., discovery of alcohol or drug abuse can result in the nurses license being revoked.

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Administrative Law

Administrative law deals with protection of the rights of citizens. Both federal and state governments have administrative laws that affect nursing practice.

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Administrative Law

Federal:
Civil Rights Act of 1964 Age Discrimination in Employment Act of 1967 (ADEA) Americans with Disabilities Act (ADA) OSHA regulations

State:
Nurse Practice Actlaws that give state boards of nursing the authority to define nursing, mandate the requisite preparation for nursing practice, and discipline those who deviate from rules governing nursing practice
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Civil Law

Civil law governs how individuals relate to each other in everyday matters.

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Contract Law

Contract law regulates certain transactions between individuals and/or legal entities such as businesses, e.g., employment contracts.

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Tort Law

A tort is a private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages. A tort can be:
The denial of a persons legal right The failure to comply with a public duty The failure to perform a private duty that results in harm to another

A tort can be intentional or unintentional (malpractice or neglect).

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Tort Law: Malpractice and Negligence

Malpractice refers to a professionals wrongful conduct in discharge of professional duties or failure to meet standards of care for the profession which results in harm to another individual entrusted to the professionals care. Negligence is the failure to provide the care a reasonable person would ordinarily provide in a similar situation.

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Tort Law: Malpractice and Negligence

Simply proving malpractice or negligence is not sufficient to recover damages. Proof of liability or fault requires proof of the following:
A duty or obligation created by law, contract, or standard practice that is owed to the complainant by the professional A breach of this duty, either by omission (negligence) or commission (malpractice) Harm, which can be physical, emotional, or financial, to the complainant (patient) Proof that the breach of duty caused the complained of harm
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Other Legal Issues That May Affect the Nurse

Assault and battery

Examples: Treatment administered without patients consent; failing to implement or honor a living will or advance directive

False imprisonment
Examples: misinterpretation of rights granted by power of attorney; use of physical and/or chemical restraints

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Other Legal Issues That May Affect the Nurse

Invasion of privacy
Example: revealing confidential patient information

Defamation
Example: communicating false information about a patient (Note: several courts have ruled that charting information in a medical record, whether accurate or not, does not constitute publication as required for a charge of defamation.)

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Legal Protections in Nursing Practice: Nurse Practice Act

The individual states Nurse Practice Act specifies the legal parameters of nursing practice in that state. It answers questions regarding what a nurse can legally do in that state. The parameters of this law vary from state to state. The nurse must know what a nurse is allowed to do in the state in which he or she practices.

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Policies and Procedures of the Institution

Failure to follow the policies and procedures of the institution in giving care can expose the nurse to personal liability without the protection of the institution. Nurses must know the policies and procedures of their employers and adhere to these in everyday practice.

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Good Samaritan Laws

Good samaritan laws are laws that have been enacted to protect the health care professional from legal liability for actions rendered in an emergency when the professional is giving service without pay. For actions to fall under the good samaritan laws, all these conditions must be met:
The care is rendered in an emergency situation. The health care worker rendered the care without pay. The care provided did not, recklessly or intentionally, cause injury or harm to the injured party.
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Good Samaritan Laws

Good samaritan laws protect volunteers who stop to render care at the scene of an accident. They do not protect emergency medical technicians (EMTs) or other health care professionals who render care at the scene of an accident as part of their assigned duties and for which they receive pay.

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Skillful Communications

The nurse must communicate accurately and completely both verbally and in writing. Many malpractice or negligence cases complain of a lack of communication by the nurse. To protect him- or herself in charting, the nurse should use the FLAT charting acronym.

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Skillful Communications

F factual: charting should express what the nurse sees, not what he or she thinks happened L legible: no erasures; corrections should be made with a single line drawn through the error and initialed A accurate: complete (What color was the drainage and how much was present? How many times, and at what times, was the doctor notified of changes?) T timely: completed as soon after the occurrence as possible; late entries should be avoided or kept to a minimum
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Following Doctors Orders

In most states, the nurse is required to follow the doctors orders in giving care to the patient unless doing so would cause the patient harm. In order to follow this mandate, the nurse must ensure that the orders are clear and accurate. If necessary, the nurse may have to contact the physician for clarification. If the nurse is still uncomfortable following the order, the nurse should notify the supervisor and follow the institutions policies regarding notification.
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Risk Management Program

Risk management programs in health care organizations are designed to identify and correct system problems that contribute to errors in patient care or to employee injury. Institutions usually have reporting and tracking forms that record incidents which may lead to financial liability for the institution. The risk management department may investigate and record information surrounding a patient or employee incident that might result in a lawsuit.
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Malpractice/Professional Liability Insurance

Nurses may need to carry their own malpractice insurance. They may not be covered under the employers liability insurance.

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Malpractice/Professional Liability Insurance

If, in giving care, the nurse fails to comply with the institutions policies and procedures, the institution may deny the nurse a defense, claiming that because of the nurses failure to follow institutional policy, or because the nurse was working outside his or her scope of employment, he or she was not acting as an employee at that time.

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Nurse-Attorney Relationship

If the nurse needs an attorney, the following guidelines are suggested:

Retain a specialist. Read the attorneys documents and observe the attorneys performance. Notify your insurance carrier of any real or potential liability issue, and keep the carrier informed of the status of your situation.

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Nurse-Attorney Relationship
Keep costs sensible. Stay informed. Examine all relevant documents, and do not hesitate to make corrections. Insist on a collaborative relationship with your attorney.

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