Ethical and Legal Issues in Nursing Chapter 3

Chapter 3: Ethical and Legal Issues in Nursing

• Learning outcomes include applying state nurse practice acts, including scope of practice and unprofessional conduct.
• Applying legal principles in leading and managing nursing roles.
• Evaluating informed consent, including patient rights in research and health literacy from a nurse manager’s perspective.
• Analyzing how employment laws benefit professional nursing practice.
• Analyzing ethical principles, codes, and institutional policies influencing nursing practice.
• Applying best practices when law and ethics overlap.

Professional Nursing Practice: Nurse Practice Acts

• Nurse practice acts are the most important legislation for nurses.
• They define categories of nurses.
• They set educational and examination requirements.
• They establish state boards of nursing that develop and implement rules and regulations.

Licensure and Nursing Practice Acts

• Nurse Licensure Compact (NLC) allows RNs licensed in one state to practice in other compact states.
• The state where the patient resides regulates the nurse’s practice.

Negligence and Malpractice

• Negligence is carelessness.
• Malpractice is professional negligence concerning professional actions.
• Both concern actions taken and omitted.
• Both are unintentional.

Elements of Malpractice

• Duty/Standard of care
• Breach of duty/standard of care
• Causation
• Damages

Duty Owed the Patient

• Duty is established through a valid employment contract with the healthcare facility.
• It’s based on standards of care or the minimum requirements for acceptable practice.

Breach of Duty Owed the Patient

• Failing to uphold the standard of care owed to the patient is synonymous with a breach of duty.
• Expert witness testimony is typically needed to show a breach of duty in court.

Causation

• A nurse’s actions or omissions must directly cause harm to the patient.

Damages

• Patients must prove injury for damages to be assessed.
• Damages compensate the injured party for the harm.
• Immediate and future medical costs can be assessed.

Liability

• Personal liability is individual responsibility for actions or omissions.
• Vicarious liability is an employer’s accountability for employee negligence.
• Corporate liability is an institution’s responsibility for maintaining an environment ensuring quality healthcare delivery for consumers.

Preventing Malpractice Lawsuits

• Nurse managers should ensure employees meet or exceed standards of care.
• Nurse managers should review standards periodically for revision.
• Nurse managers should review randomly selected patient records for evidence standards are being met.
• Nurse managers should perform scheduled evaluations of staff.

Causes of Medical Malpractice for Nurse Managers

• Assignment, delegation, and supervision
• Duty to orient, educate, and evaluate
• Failure to warn
• Staffing issues
• Accreditation
• Mandatory Overtime
• Floating
• Temporary Staff
• Protective and reporting laws

Assignment, Delegation, and Supervision

• Supervision directs, guides, and influences the outcome of an individual’s activity.
• Delegation transfers responsibility, but not accountability.
• Assignment transfers both responsibility and accountability.

Duty to Orient, Educate, and Evaluate

• Nurse managers are responsible for evaluating safe and competent nursing care delivery.
• Reasonableness should be determined on a case-by-case basis.

Failure to Warn

• Warning potential employers of staff incompetencies or impairment is involved.
• Qualified privilege communication is needed in good faith.

Staffing Issues

• Maintaining adequate numbers of staff
• Floating staff from unit to unit
• Using temporary staff to augment current staff numbers

Accreditation

• TJC and the Community Health Accreditation Program (CHAP) mandate adequate staffing.
• Adequate staffing is based on patient numbers, care acuity scores, and nursing staff.

Mandatory Overtime

• Prohibited by several states.
• Protects employees from disciplinary action refusing overtime.
• Establishes monetary penalties for the employer's failure to comply with laws.

Floating Staff to Alternate Units

• Ensuring every area of the facility is adequately staffed is one approach.
• Considering staff expertise, delivery systems, and patient care requirements is necessary before floating.
• Cross-training during adequate staffing times can help.

Guidelines

• Nurse managers should alert administrators if staffing is inadequate.
• Nurse managers should reassign staff when necessary.
• Nurse managers should approve overtime for adequate coverage.
• Nurse managers should restrict new admissions when appropriate.

Temporary Staff

• Temporary staff has become more important due to the principle of apparent agency.
• Patients can infer that temporary agency staff work directly for the institution, so it’s crucial they deliver safe and competent care.

Protective and Reporting Laws

• Laws ensure safety and rights of specific individuals.
• Examples include mandatory reporting of suspected child or elder abuse, and reporting for certain diseases or injuries.
• Mandatory reporting for incompetent practitioners is also part of these laws.

Informed Consent

• Authorization by a patient or legal representative to perform actions on a patient is needed.
• Consent is based on legal capacity, voluntary action, and comprehension.

Selected Informed Consent Issues

• Research issues are impacted by HIPAA laws.
• Research issues vary regarding de-identified and protected health information.
• Patient health literacy can also present informed consent challenges.

Privacy and Confidentiality

• Privacy is the patient’s right to protection against unreasonable interference.
• Confidentiality is the right to privacy for the medical record.

Policies and Procedures

• Policies and procedures set standards of care for institutions and direct practice.
• They should be clearly stated, well-defined, and based on current practice.

Employment Laws

• Nurse managers need to know about equal employment opportunities laws, Americans with Disabilities Act, Occupational Safety and Health Acts, Family and Medical Leave Act, and whistleblower laws.

Equal Employment Opportunity Laws

• Prevent gender, age, race, religion, handicap, pregnancy, and national origin discrimination.
• Governed by Title VII of the amended Civil Rights Act of 1964.
• Sexual harassment in the workplace is also unlawful as defined in the Amended Civil Rights Act of 1991.

Americans with Disabilities Act of 1990

• Provides protection to persons with disabilities.
• Disability includes physical or mental impairment substantially limiting one or more major life activities.

Occupational Safety and Health Act

• Ensures healthy and safe work conditions.
• Addresses issues including violence and bullying in the workplace, safe patient handling, and common healthcare industry ergonomic issues.

Family and Medical Leave Act of 1993

• Balances workplace demands with family demands, allowing medical leave.
• Includes leave for: childbirth or adoption, care for a spouse, child, or parent with severe health problems, and employee healthcare needs.

Employment-at-Will and Wrongful Discharge

• Public policy, such as jury, whistleblower, and workers’ compensation claims.
• Implied contracts ("good faith and fair dealing").

Professional Nursing Practice: Ethics

• Focuses on the 'why' behind actions, rather than just the actions themselves.
• Provides no right or wrong answers, only better or less desirable actions.
• Often overlaps with legal considerations (e.g., Theresa Schiavo case).

Ethical Principles

• Autonomy (personal freedom)
• Beneficence (duty to do good)
• Confidentiality
• Fidelity (keeping promises)
• Justice (fairness)
• Non-maleficence (do no harm)
• Paternalism (assisting with decision-making)
• Respect (dignity of the person)
• Veracity (truth-telling)

Professional Codes of Ethics

• Formal statements of values and beliefs of a profession.
• Inform the public about minimum conduct standards.
• Outline ethical considerations.
• Provide guidelines for ethical practice.
• Guide professional self-regulation.

Ethical Decision-Making Framework

• Uses orderly, systematic, and objective methods.
• Provides ethical models for complex decision-making.

Moral Distress

• Occurs when competing ethical principles are present.
• Nurses experience distress when unable to provide what they believe is the best care due to limitations.
• Patient interventions and limited resources commonly cause disagreements.

Ethics Committees

• Offer long-term and short-term assistance.
• Provide a structure and guidelines for problems.
• Serve as open discussion forums.
• Act as patient advocates.

Blending Legal and Ethical Issues

• Comply with the state nurse practice act provisions.
• Apply legal concepts to all healthcare settings.
• Understand and comply with state and federal employment laws.
• Implement ethical coding provisions.
• If legal and ethical considerations conflict, prioritize legal factors.