Legal Issues and Malpractice in Nursing

Legal Issues in Nursing

• Legal issues in nursing have been defined by state nurse practice legislation and civil/criminal laws.
• All patients have the right to expect competent nursing services.
• Nursing students need to be equipped to provide safe nursing care.
• Nursing students need to be aware of how to minimize the risks of errors.
• Errors can be caused by accident, carelessness, system failures, or malpractice.

Malpractice

• Malpractice is conduct that deviates from the standard of practice dictated by a profession.
• Professional nurses accounted for 795 of 11,810 malpractice payments in 2018.
• This was just under 7% of all malpractice payments in 2018.
• Nursing malpractice cases is related to liability risks and an increasingly informed patient base.
• The National Practitioner Data Bank is a great source of information regarding healthcare and nursing topics, their website is www.npdb.hrsa.gov.
• Nurses need more than just a knowledge of anatomy to provide safe care.
• Nurses need to know the regulations of healthcare providers (HCPs), payment systems, and federal/state laws.
• Nursing students start learning about laws and regulations when they enroll.
• Legal and professional regulations looks at nursing practice and the practices of healthcare organizations that serve as workplaces for nurses.
• Healthcare agency policies are to ensure relevant laws are followed in order to promote safety and protect staff/agencies.
• Policies regarding patient valuables are an example of healthcare policies to ensure valuables are cared for and prevent theft.
• Nurses must be aware of applicable regulations to provide safe and effective care, while also maintaining personal protection from liability.
• Awareness starts with understanding general legal concepts which then continues as the student nurses learn about laws that affect the daily activities of nursing.

Sources and Types of Laws

• Law is the "sum total of rules and regulations by which a society is governed".
• Law reflects the changing needs/expectations of a society; made at the federal, state, and local levels.
• Statutory laws are made by legislative branches of government.
• The U.S Constitution grants the federal government power to make laws.
• States have inherent authority to act to maintain safety/welfare unless restricted by the Constitution.
• Nursing laws are state statutory laws; each state has a nursing practice act.
• Nurse practice acts contain the laws pertaining to nursing practices in that state.
• Other statutory laws that affect nursing includes statutes of limitation, protection, reporting laws, natural death acts, and informed consent laws.
• A legislative body delegates the responsibility of administration and enforcement of those laws to administrative agencies.
• Administrative agencies can also interpret laws and enact policies.
• State boards of nursing are delegated the power to interpret and enforce laws by the legislatures that govern them.

Categories of Laws Affecting Nurses

• Constitutional refers to due process and equal protection.
• Statutory (legislative) refers to nurse practice acts, Good Samaritan acts, child/adult abuse laws, advance directives, sexual harassment laws, and the Americans with Disabilities Act.
• Criminal (public) refers to homicide, manslaughter, theft, arson, active euthanasia, sexual assault, and illegal possession of controlled substances.
• Contracts (private/civil) refers to nurse and patient, nurse and employer, and nurse and insurance provider.
• Torts (private/civil) include negligence/malpractice, libel, slander, invasion of privacy, assault, battery, false imprisonment, and abandonment.
• Criminal law defines actions that are harmful to another individual or society where punishments may occur through fines or imprisonment.
• Crimes are acts prohibited by law; they are against the state more than the individual.
• Felonies are more serious crimes, misdemeanors are lesser offenses.
• Criminal laws are enforced by law enforcement and prosecutors.
• Civil law deals with the rights/duties of private individuals and citizens, and is mainly enforced through lawsuits.
• A tort is a civil wrong against an individual or their property.
• Torts can either be intentional or unintentional.
• Tort law addresses unintentional/intentional actions that result in harm to another person/property.
• Negligence/malpractice are unintentional torts.
• Assault, battery, false imprisonment, and invasion of privacy are intentional torts.

Unintentional torts

• Negligence and malpractice are especially important for nurses to understand.

Negligence

• Negligence is conduct that deviates from what a normal person does in a specific situation.
• The "reasonable person" standard describes an individual who uses average care, skill, and judgment as a standard.
• A person who undertakes an activity is seen as having the knowledge common to other people in that activity.
• A negligent act occurs when an individual damages someone without intent to injure.
• This damage may be due to carelessness on the part of the individual.
• An example of negligence is someone failing to stop at a stop sign while on their cell phone.
• To establish negligence in a legal action, the injured party needs to prove the other party had a duty of reasonable care and failed to maintain it, leading to injuries to the aggrieved party.
• All drivers have a duty to operate their vehicles safely and follow traffic laws.

Malpractice

• The "reasonable person" standard is different for people in specific occupations.
• Conduct is based on a reasonably skilled, competent, and experienced individual if the individual has special skills/training/licensure, like nursing/piloting a plane.
• Failure to meet the standard of conduct for their profession might be considered malpractice.

Negligence that Results in Malpractice.

• Failure to do complete admission assessment or design a plan of care.
• Failure to adhere to standardized protocols or institutional policies/procedures, such as using an improper injection site.
• Failure to follow a provider's verbal or written orders (if appropriate)
• Failure to provide an environment that promotes safety.
• Failure to adequately monitor the patient's condition.
• Failure to notify the provider of any changes in the patient's condition.
• Failure to understand/use informatics to communicate knowledge of the patient's condition properly.
• Failure to document/communicate labs and changes in status to the provider.
• Failure to question orders when the patient’s condition warrants it.
• Failure to question illegible medical orders.
• Failure to report unsafe practices.
• Failure to know the skill levels of supervised personnel.
• Failure to adequately monitor supervised personnel.

Professional Duties/Malpractice

• Malpractice includes acts/omissions by a professional while performing duties.
• Malpractice is an important area of law for nurses because omissions may rise to the standard of malpractice.
• Omissions may jeopardize a nurse's license and, more importantly, patient safety.
• Anyone performing skill associated with a profession is held to the standard of those properly qualified.
• Nursing students are held to the same standard as an experienced nurse.

Elements to Establish Liability in a Professional Negligence/Malpractice Case

• A patient must be owed a duty, a legally enforceable obligation to follow a particular standard of care.
• A patient-provider relationship is the basis the HCP having a duty to the patient.
• A nurse-patient relationship begins when the nurse accepts responsibility for providing nursing care.
• There must be a deviation from owed standard of care by commission/omission, termed "breach of duty".
• Giving the wrong dose of medication is an example of breach of duty.
• "Foreseeability", must be present, meaning certain events can reasonably be expected to cause specific results.
• A nurse should know in advance that damage/injury will likely ensue from acts and omissions.
• The injury must be a direct result of the professional's breach of duty, termed "causation".
• It would be hard for a pt. to bring about a successful malpractice claim for acquiring a healthcare-associated infection.
• The plaintiff must demonstrate physical, financial, and emotional injury.
• If a nurse gives the wrong medication, but no harm occurs, these elements are not present for malpractice.

Safety Practices for Nurses

• Nurses giving medications need to know why the patient is receiving the medication.
• Nurses need to know dosage range.
• Nurses need to know possible adverse effects, toxicity levels, and contraindications.
• The basic purpose of a malpractice lawsuit is to give damages to restore the plaintiff's original position, as far as financially possible. The amount of damages may pay for medical fees associated with the loss/injury. Damages from the injury could also include compensation for lost work ability.
• Courts can provide compensation for emotional damages if there's apparent physical harm.
• Punitive damages may be awarded as punishment if the nurse's misconduct is malicious, willful, or wanton.

Related Doctrines

• Several doctrines are related to negligence/malpractice.
• "Respondeat superior" means "let the master answer". A negligent act from a nurse will generally name the employer in a lawsuit.
• Employers can be held liable for negligence if they don't provide resources for nursing care or properly educate on equipment.
• "Res ipsa loquitur" means "the thing speaks for itself". Harm with no traceable HCP/standard can mean negligence happened.
• Leaving a surgical instrument in a patient during surgery is an example.

Statute of Limitations

• The statute of limitations refers to a limit on how long a person has to bring a suit after recognizing harm.
• Plaintiffs generally have 1–2 years from when knowledge of the injury was obtained to file a lawsuit.
• The statute of limitations for minors varies.

Intentional Torts

• Intentional torts—actions taken by an individual with the intention to perform the action—have a bearing on nursing practice.
• The intentional nature separates intentional torts from negligence/malpractice.

Assault, Battery, and False Imprisonment

• Assault is creating apprehension of offensive, insulting, or physically injurious touching.
• Assault can happen without actually touching an individual.
• Battery the other hand, is willful touching of another individual (or their belongings) that is unwanted, embarrassing, or unwarranted.
• Guido defines false imprisonment as "unjustifiable detention of person without legal warrant to confine the person".
• False imprisonment includes confining the pt. to a room or restraining the patient to the bed.
• Standards of care prohibit nurses from forcing patients to participate in treatment.
• Assault, battery, and false imprisonment violate standards of care and can be criminal action against a nurse.

Invasion of Privacy

• The Fourth Amendment says people have the right to privacy.
• Pt. information is confidential and cannot be disclosed without authorization.
• Pt.'s right to privacy goes to use of the patient's name and photographic representations.
• This right extends to their belongings, personal space, and immediate territory.
• Nurse-patient relationships should be built on trust!
• Searching a patient's room, touching belongings without permission can violate trust.
• Agencies should be have policies on how patient information can be released.
• HIPAA protects the privacy of the patient's protected health information like physical conditions, healthcare services, payment etc.
• This also includes name, address, birth date, and Social Security Number.
• HIPAA provides minimum protection, and state law can afford more protection.

Safety and Negligence

• Safety is a legal issue.
• The nurse should aim to make the patient environment safe, and prevent falls.
• Nurses should also attend to patient issues.
• Failure to provide a safe environment of care can lead to charges of negligence and or malpractice.
• As many as 1 in 10 patients experience adverse events during hospital stays, with many of them attributed to medication errors
• Nurses must make sure to report any errors that occur. Proper reporting leads to insight into the causes of errors; failure to caught down the line could turn into legal ramifications.
• Accurate documentation can be used later in instances of malpractice allegations.

Communication

• Nurses should clearly communicate and listen attentively.
• Nurses should also educate the patient on their healthcare.
• Poor communication can lead to the pt. and their families viewing the nurse as less competent thereby increasing chance of malpractice claims.
• Nurses should document the care clearly and depict timeline.

Concepts Related to Legal Issues

Cognition

• Patients must demonstrate the capacity to understand the benefits, risks, and alternatives for care.
• Consent must be given voluntarily if capacity exists.
• Nurses should provide information about procedures and conditions.
• Nurses should work with the care team to assess consent.
• Nurses should assist the patient with consent forms.
• Work with the surrogate decision maker if the patient lacks capacity.

Comfort

• Patients have the legal right to end-of-life (EOL) care.
• Hospitals receiving Medicare/Medicaid funds are legally responsible to provide advance directive information and support patients' advance directive needs.
• Nurses should assess their assumptions of EOL care.
• Nurses should assess their knowledge of EOL options in the practice area.
• Nurses should ask for support from supervisors.
• Nurses should anticipate further assessments that the patients and family members may need.
• Nurses should be aware that advance directives can improve the EOL situation.

Patient Information

• Nurses must follow HIPAA regulations to ensure privacy.
• Nurses should ensure patient information is only accessible to appropiate staff members.
• Nurses and the patient must discuss privacy.
• Patient care should only be discussed with appropiate individuals, and within the care unit.
• Medication administration is high risk for error so errors must be prevented for the system.
• Both nurses and physicians should have liability insurance to manage their personal financial risks.
• Occurrence-based insurance covers incidents during the policy was in effect, regardless of whether the policy was still in effect when the claim was made.
• Claims-made policies provide coverage only if the incident occurred and the claim was reported during the active policy period.
• Policies should identify limits of liability, declarations, deductibles, exclusions, reservation of rights, covered injuries, defense costs, coverage conditions, and supplementary payments.
• Policies may be individual, group, or employer sponsored. Individual coverage provides the broadest coverage to the policyholder so long as actions fall within the scope of practice. Employer-sponsored coverage provides the narrowest coverage to the individual nurse while student nurses are often required to have liability insurance.

Standard of Care

• The applicable state nurse practice act and administrative rules form the basis.
• Nurses need to stay updated because these laws aren't static.
• An employer cannot expand the scope of practice.
• Agency policies is there yo define standard of care. Prudent nurses reviewed this.
• Quality improvement is there to handle a conflict between practice and policy.

National Standards

• American Nurses Association (ANA)
• Critical Care Nurses are main source for standard of practice
• Follow Standards, Minimize Malpractice
• Nurses should also be able to give informed consent and competency for laws.

Laws also regarding

• Controlled Substance Act
• Good Smaritan Act
• The nurse must to be aware of the laws.

Patients Legal Rights to: Informed Consent

• Giving a patient treatment/procedure.
• Patients can understand terminology.
• Patients have the right to accept/refuse any kind.

Elements Contained

• Patients' diagnosis
• Procedures
• Negative side effects of what could happen
• Any kind of alternatives
• Patients must be at ease and voluntarily, with no pressure.
• Be careful for when providing Healthcare it is better to be at easy and well understanding.
• A care plan must be created that the patient is able to see/read for their understanding.
• Patients are entitled to their privacy.
• Be aware of ones culture when helping others.
• Nurse follows specific agency medical/ surgical.

Expressed consent

• Oral/ written Agreement

Implied consent

• Action

Diversity

• Special circumstances (Cognitive Impairment affect the process of obtaining informed consent).
• Patients can still make choices (benefits, risks, and alternatives of care).
• Surrogate is there, if they cannot be made decision.
• Elective and Therapeutic Surgeries can be there.
• If there's an Emergency a response is made in timely matter for a life-saving procedure.
• In most states 18 is the limit of maturity, must get evidence to prove other if an adult.
• Adults who have been declared legally incompetent must have guardian.

Conditions

If one is under narcotic conditions, the nurse must assess these conditions for help of the patient with the primary care provider to determine (the Emergency Doctrines). States vary on laws. Nurses know care.

Emergency

• Pt may not be able to give consent in imminent danger.
• HCP might not take actions toward pt that is not consented if the pt has refused.

Minors

• Parent/guardian must agree to a treatment of a minor.
• Some exceptions are the minors are married
• The states recognizes the right to a minor's treatment if necessary.

What a minor cant consent to

• Contraceptive services
• Therapy/ Mental health
• Abuse Substance

Understand legal issues and malpractice in nursing. Learn about patient rights, safety, and minimizing errors. Explore malpractice cases, liability risks, and the National Practitioner Data Bank for information.