Legal Issues in Nursing Practice

Legal Issues in Nursing Practice

• Legal issues encompass the rights, responsibilities, and scope of nursing practice
• Nurse practice acts define legal issues at the state level
• Criminal and civil laws legislate legal issues

Patient Rights and Nursing Students

• Patients have the legal right to expect competent nursing services
• Nursing students need proper training to provide safe care that meets legal requirements

Malpractice

• Malpractice is conduct that deviates from the standard of practice dictated by a profession
• Nursing malpractice cases are linked to liability risks and increasingly informed patients

Sources and Types of Laws

• Law is the total set of rules and regulations governing a society
• Laws are made at the federal, state, and local levels to reflect current needs and expectations

Statutory Laws

• Statutory laws originate from legislative branches at the federal, state, and local levels
• Nursing laws are state statutory laws, with each state having a nurse practice act

Administrative Laws

• Administrative laws are created by administrative agencies
• State boards of nursing are administrative agencies empowered by the legislature to interpret and enforce laws

Criminal Law

• Criminal law defines harmful conduct to another individual or society
• Punishment for criminal acts includes fines and imprisonment

Crime Classifications

• Felonies are more serious crimes
• Misdemeanors are lesser offenses
• Law enforcement and government prosecutors enforce criminal laws

Civil Law

• Civil law addresses the rights and duties of private individuals
• A tort is a civil wrong committed against an individual or their property

Torts

• Torts define and address unintentional and intentional actions or omissions that cause harm to another person or property
• Civil actions involve a plaintiff filing a lawsuit to seek compensation for damages resulting from a perceived wrong

Unintentional Torts

• Unintentional torts include incidents or accidents

Intentional Torts

• Intentional torts involve deliberate acts

Negligence

• Negligence is conduct that deviates from what a reasonable person would do in a given situation
• A "reasonable person" applies average care, skill, and judgment in society

Negligent Act

• A negligent act occurs when individual damages person or property without intent to injure
• Negligence can result from carelessness

Establishing Negligence

• Establishing negligence requires proving that the other party had a duty of reasonable care
• The other party did not maintain reasonable care
• Failure to maintain reasonable care caused injuries to the aggrieved party

Malpractice Defined

• The "reasonable person" standard differs for specific professional occupations
• Malpractice includes acts and omissions by a professional in the course of their duties

Malpractice Standard

• The standard is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized in that activity
• Failure to meet the professional standard of conduct is considered professional negligence (malpractice)

Importance of Law for Nurses

• One of the most significant areas of law for nurses
• Any unintentional negligent act or omission may jeopardize a nurse's license and patient safety
• The public relies on the special expertise of the profession
• Nursing students are held to the same standard of conduct as licensed nurses

Malpractice Elements

• Elements of professional negligence or malpractice include duty, breach of duty (by commission or omission), foreseeability, causation, and injury or harm

Malpractice Lawsuit Purpose

• The purpose of a malpractice lawsuit is to award damages to restore the plaintiff to their original position as far as possible
• Damages provide compensation the plaintiff's loss or injury
• Punitive damages may be awarded for misconduct deemed malicious, willful, or wanton

Duty of Care

• A relationship must exist between the healthcare provider and the patient
• Duty arises when the professional assumes responsibility for the patient's care
• Once assumed, the nurse must possess and exercise the level of skill of a reasonable prudent nurse

Breach of Duty

• Breach of duty consists of an act or omission that violates the standard of care
• Examples include failure to follow a physician's order, failure to assess and report changes in a patient's condition, giving the wrong medication, or improperly following a physician's order

Sources for Standards of Care

• Federal Law - Constitution is the basis concerning privacy & confidentiality
• State Law – Nurse Practice Act found in the Ohio Revised Code
• Association Standards – Position papers
• Hospital Policy

Standards of Care Explained

• Law does not require a nurse to protect against every possible harm
• Law requires a nurse to give care that other reasonably prudent nurses would do
• The provision of high-quality care is consistent with established nursing standards of care and professional performance

Foreseeability

• Certain events may be expected to cause specific results

Foreseeability Considerations

• One must reasonably foresee a result based on the facts as they existed at the time of the event in question

Causation

• The breach of duty must be the direct and proximate cause of the injury
• The type of injury was a foreseeable consequence of the negligent act
• Causation is the most difficult element for the plaintiff to prove

Causation Importance

• DOCUMENTATION is critical to refute any claim of causation

Injury Requirements

• Once the plaintiff proves a duty existed and was breached, the injury must be proven
• A minor injury with full recovery is insufficient
• Injury must be serious and permanent
• Claims based on psychological or emotional distress are seldom successful

Intentional Torts Defined

• Actions taken by an individual with intent to perform
• Separated from negligence and malpractice by willful nature, intent behind the action

Intentional Torts Examples

• Assault
• Battery
• False Imprisonment

Assault Defined

• Creating apprehension of offensive, insulting, or physically injurious touching
• Includes threatening a patient who refuses to agree to a nursing action

Battery Defined

• Willful touching or apprehension of touching that is unwanted, embarrassing, unwarranted
• Includes touching without permission, giving an injection without patient's consent, forcing a patient to ambulate against his/her will

False Imprisonment Defined

• Unjustified detention of a person without legal warrant

Invasion of Privacy

• Individuals have rights to privacy
• Information about patients is confidential and may not be disclosed without authorization
• Patient's right to privacy extends to use of patient's name, photographic, or videographic representations of the patient
• Nurses are bound by the Privacy Rule of HIPAA

Intentional Torts : Right to Privacy

• Right to privacy includes patient's personal belongings, personal space

Intentional Torts : Failure to Follow Policies

• Failure to follow policies could lead to claim of invasion of privacy

Nursing and HIPAA

• Nurses are bound by Privacy Rules of HIPAA
• HIPAA protections are minimum requirements
• State law, professional codes may include more strict protections

Strategies to Prevent Malpractice Incidents

• Continue to address issue of medication errors
• Document clearly, discuss clearly with the patient

Malpractice Situations : Orders

• Ensure physician's orders are clear

Malpractice Situations : Equipment

• Understand how to use equipment

Malpractice Situations : Communication of Patient Care

• Communicate care concerns, key information about patient condition

Preventing Malpractice Through Patient Care

• Provide appropriate mentoring, assessment, care plans for patients

Maintaining Patient Safety

• Failure to observe, take appropriate action

Patient Falls

• Nurse is liable for malpractice if patient is injured as a result of nurse action, inaction leading to fall
• Hospitals, nursing homes have policies regarding use of safety devices

Patient Complaints

• Ignoring patient complaints is a type of malpractice; failure to observe, take appropriate action

Patient Identification

• Incorrect identification of patients can lead to occurrences such as surgery on the wrong patient, rendering nurse liable for malpractice

Minimizing Medication Errors

• Nurses need to strictly apply the Seven Rights of medication administration

Seven Rights of Medication

• Right assessment
• Right drug
• Right dose
• Right patient
• Right route
• Right time
• Right documentation

Replacing Nursing Judgment

• Nothing replaces nursing judgment in preventing medication administration errors
• Clarify unclear orders
• Get questions answered
• Know each medication before administration

Effective Communication

• Poor communication coupled with a negative outcome increases chance of malpractice claim
• Clear communication of directions, explanations, provision of effective patient education can decrease risk of bad outcomes
• Attentive listening skills demonstrate caring

Accurate Documentation

• Accurate documenting, reporting provides information to support, refute allegations of malpractice
• Nursing documentation serves as legal record of what occurred
• Nurses should document defensively, be inclusive, not rely on their own or patient's memories of details of care

General Documentation Guidelines

• It’s important to maintain confidentiality of patient's records meets legal standards in recording process
• Accepted terminology, abbreviations, symbols, and terms
• When in doubt, write term in full

Recordings Should Include

• Date and time
• Timing
• Frequency of documentation
• No recording to be done before providing care

Documentation Guidelines : Abbreviations

• Joint Commission requires accredited organizations to develop a "Do Not Use" list of abbreviations and acronyms
• The above includes those banned by Joint Commission

Documentation : Correctness

• Correct spelling
• Signature
• Accuracy
• Sequence
• Appropriateness All must be present within documentation

Correct Documentation

• Must follow agency policy about how to sign names, title abbreviations to use
• Facts, objective observations, not opinions or interpretations
• Must follow agency policies regarding documenting errors and recording correct information

Original Documentation

• The original entry must remain visible

Documentation Order

• Recording should be recorded in order in which events occur

Documentation Relevance

• Only information pertaining to patient's health problems and care needs to be included, no other information about patient

Documentation Completeness

• Reflect the nursing process
• Patient problems
• Patient comments and responses to interventions and tests
• Progress toward goals
• Communication between members

Documentation : Omitted Care

• Omitted care must also be recorded, specify what, why, who

Documentation Rationale

• Legal rationale; accurate, complete documentation give legal protection to nurse, caregivers, healthcare facility, patient
• Clinical record is admissible in court as legal document
• Adhere to professional standards
• Follow agency policy and procedures

Do's of Documentation

• Chart changes in patient's condition and show follow-up actions
• Read prior notes
• Be timely
• Use objective, specific, factual descriptions
• Correct charting errors per agency policy
• Chart all of teaching

Maintaining Notes & Record Integrity

• Record patient's actual words, using quotation marks
• Chart patient's responses to interventions
• Review notes to ensure clarity, accuracy

Don't's of Documentation

• Chart in advance of the event
• Use vague terms
• Chart for someone else
• Alter a record
• Record assumptions or words reflecting bias
• Use "patient" instead of patient's name

Insurance Coverage

• Nurses should all carry liability insurance
• Policies may be individual, group or employer sponsored
• Individual coverage provides broadest coverage for policy holder
• Employer sponsored coverage provides narrowest coverage

Nursing Student Coverage

• Nursing students generally are required to carry liability insurance for duration of the education program
• Some programs insure students under broad institutional policy
• Report promptly any incident
• Complete incident report
• Documentations of incident

Minimizing Issues

• Don't discuss incident with anyone other than risk management
• Acknowledge patient feelings
• Have Just culture

Just Culture Defined

• Recognizing and modifying system flaws, holding individuals accountable for reckless, repeated behavior that poses increased risk to patients
• System, organizational focus vs/errors
• Ensure individual accountability versus the system

An overview of legal issues, rights, and responsibilities in nursing practice. Includes nurse practice acts, criminal and civil laws, and the legal rights of patients. Also covers malpractice and statutory laws affecting nursing.