Chapter 5 - Legal & Legislative Issues (Nursing)

**Chapter 5 - PPT Slides Converted to Notes** **Legal and Legislative Issues\ ** **Purpose of Law and Legislation** - The primary purpose is to protect the patient and the nurse. - Laws and legislation define the scope of acceptable practice and protect individual rights. - Nurses who...

**Chapter 5 - PPT Slides Converted to Notes** **Legal and Legislative Issues\ ** **Purpose of Law and Legislation** - The primary purpose is to protect the patient and the nurse. - Laws and legislation define the scope of acceptable practice and protect individual rights. - Nurses who are aware of their rights and duties in legal matters are better able to protect themselves against liability or loss of professional licensure. **Sources of Law- Table 5.1** **Origin of Law** **Use** **Impact on Nursing Practice** ----------------------------- ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------------------------------------------------------------ **The Constitution** The highest law in the United States; interpreted by the U.S. Supreme Court; gives authority to other three sources of the law Constitutional law has little direct involvement in the area of malpractice. **Statutes** Also called statutory law or legislative law; laws that are passed by the state or federal legislators and that must be signed by the president or governor Before 1970s, very few state or federal laws dealt with malpractice. Since the malpractice crisis, many statutes affect malpractice. **Administrative agencies** The rules and regulations established by appointed agencies of the executive branch of the government (governor or president) State Boards of Nursing and agencies, such as the National Labor Relations Board and health and safety boards significantly impact nursing practice. **Court decisions** Also called tort law; this is court mode law, and the courts interpret the statutes and set precedents; in the United States, there are two levels of court: trial court and appellate court Most malpractice laws are addressed by the courts. Types of Laws and Courts \\\\Fsasi12\\DATA1\\jobs\_LWW\\InDesign\\WKH-16-190 (Marquis)\\Ancillaries\\00\_PPT Links\\Marquis9e\_Ch05\_Table5.2.jpg - Civil Cases (Typically Including Malpractice) - One individual sues another monetarily to compensate for a perceived loss. **Legal Doctrines Guiding Courts in Decision Making** - *Stare decisis* (let the decision stand): uses precedents as a decision-making guide - Res Ipsa Loquitur (thing or matter settled by judgment): no further appeals are possible. - *Respondeat superior* (the master is responsible for the acts of his servants): an employer should be held legally liable for the conduct of employees whose actions they have a right to direct or control **Nurses Risk Increased Legal Liability Due to:** - More authority and independence in decision making - Increased legal accountability for decision making - Doing more things that used to be in the realm of medical practice - Making more money - More are carrying malpractice insurance **Standard of Care** - **The minimum level of expertise that may be delivered to a patient** - **The conduct of a reasonably prudent nurse in similar circumstances** **Malpractice Insurance Dilemma** Nurses need malpractice insurance because of their expanded roles, but they also incur a greater likelihood of being sued if they have malpractice insurance because injured parties will always seek damages from as many individuals with financial resources as possible. **Elements of Malpractice** - Negligence: the omission to do something that a reasonable person, guided by the considerations that ordinarily regulate human affairs, would do---or as doing something that a reasonable and prudent person would not do - Malpractice: the failure of a person with professional training to act in a reasonable and prudent manner---also called professional negligence - The question of whether a nurse acted with reasonable and prudent care is determined by the testimony of expert nursing witnesses. - Reasonable and prudent generally means the average judgment, foresight, intelligence, and skill that would be expected of a person with similar training and experience.  **Five Components Necessary for Professional Negligence to Occur** - **[Most important the first two]** - A standard of care is in place (minimal level of expertise delivered to a patient - the conduct of a reasonably prudent nurse in similar circumstances) - There is a failure to meet the standard of care (breach of duty). - Foreseeability of harm must exist (Being ignorant is not a justifiable excuse, but not having all the information in a situation may impede one's ability to foresee harm). - There must be a provable correlation between care and harm. - Actual patient injury must occur.  **Being Sued for Malpractice** - "Just following physician orders" is *not* a defense for malpractice. - Nurses have an independent responsibility to take appropriate steps to safeguard patients. - The question of whether a nurse acted with reasonable and prudent care is determined by the testimony of expert nursing witnesses. **Reducing the Risk of Malpractice Claims** - Practice within the scope of the nurse practice act. - Observe agency policies and procedures. - Model practice after established standards by using evidence-based practice. - Always put patient's rights and welfare first. - Be aware of relevant law and legal doctrines. - Practice within the area of individual competence and upgrade technical skills consistently. - Be aware of relevant law and legal doctrines and combine such with the biological, psychological, and social sciences that form the basis of all rational nursing decisions. **Frequent Causes of Claims Against Nurses** - Inadequate charting - Inadequate communication with physician or supervisors about changes in patient conditions - Leaving potentially harmful items within patient reach - Inaccurate counting of operative instruments and sponges - Misidentifying patients for medications, surgeries, tests **LEARNING EXERCISE 5.3 - Understanding Limitations and Rules** - Have you ever been directed in your nursing practice to do something that you believed might be unsafe or that you felt inadequately trained or prepared to do? - What did you do? - Would you act differently if the situation occurred now? - What risks are inherent in refusing to follow the direct orders of a physician or superior? - What are the risks of performing a task that you believe may be unsafe?   **Intentional Torts** - *Torts* are legal wrongs committed against a person or property, independent of a contract, that render the person who commits them liable for damages in a civil action. Whereas professional negligence is an *unintentional tort* - *Intentional torts* are a direct invasion of someone's legal rights. - Assault - conduct that makes a person fearful and produces a reasonable apprehension of harm - *Battery*---intentional and wrongful physical contact with a person that entails an injury or offensive touching - False imprisonment -- an unlawful confinement within fixed boundaries, or restraint of movement, produced by physical, emotional, or chemical means. Use of restraints - Invasion of privacy - HIPAA - Defamation of character - communicating to a third-party false information that injures a person's reputation; causes economic damage; diminishes the esteem, respect, goodwill, or confidence that others have for the person; or causes adverse, derogatory, or unpleasant opinions of him or her. - Slander (spoken) - Libel (written) **Incident Reports (Adverse Event Forms)** - Records of unusual or unexpected incidents that occur in the course of a client's treatment - Generally considered confidential communications and cannot be subpoenaed by clients or used as evidence in their lawsuits in most states - Incident reports that are inadvertently disclosed to the plaintiff are no longer considered confidential and can be subpoenaed in court. - A copy of an incident report should not be left in the chart, and no entry should be made in the patient's record about the existence of an incident report. - The chart should, however, provide enough information about the incident or occurrence so that appropriate treatment can be given. **Guidelines for Informed Consent** **[Obtained by the physician only]** after the patient receives full disclosure of all pertinent information regarding the surgery or procedure. and only if the patient understands the potential benefits and risks associated with doing so. The person(s) giving consent must fully comprehend: 1. The procedure to be performed 2. The risks involved 3. Expected or desired outcomes 4. Expected complications or side effects that may occur as a result of treatment 5. Alternative treatments that are available 6. A competent adult 7. A legal guardian or induvial holding durable power of attorney 8. An emancipated or married minor 9. Mature minor (varies by state) 10. Parent of a minor child 11. Court order **Informed Consent (cont.)** - **Implied consent** - physician states in the progress notes of the medical record that the patient is unable to sign but that treatment is immediately needed and is in the patient's best interest. Usually, this type of implied consent must be validated by another physician. - **Expressed conse**nt - Nurses frequently seek express consent from patients by witnessing patients sign a standard consent form. In express consent, the role of the nurse is to be sure that the patient has received informed consent and to seek remedy if they have not. **Is it Really Informed Consent?**\ You are a staff nurse in a surgical unit. Shortly after reporting for duty, you make rounds on all your patients. Mrs. Jones is a 36-year-old woman scheduled for a bilateral salpingo-oophorectomy and hysterectomy. In the course of conversation, Mrs. Jones comments that she is glad she will not be undergoing menopause as a result of this surgery. She elaborates by stating that one of her friends had surgery that resulted in "surgical menopause" and that it was devastating to her. You return to the chart and check the surgical permit and doctor's progress notes. The operating room permit reads "bilateral salpingo-oophorectomy and hysterectomy," and it is signed by Mrs. Jones. The physician has noted "discussed surgery with patient" in the progress notes. You return to Mrs. Jones's room and ask her what type of surgery she is having. She states, "I'm having my uterus removed." You phone the physician and relate your information to the surgeon who says, "Mrs. Jones knows that I will take out her ovaries if necessary; I've discussed it with her. She signed the permit. Now, please get her ready for surgery---she is the next case." **Ethical Issues for Nurses -- Informed Consent** - Informed consent does pose ethical issues for nurses. - Although nurses are obligated to provide teaching and to clarify information given to patients by their physicians, nurses must be careful not to give new information that contradicts information given by the physician, thus interfering in the physician--patient relationship. - The nurse is not responsible for explaining the procedure to be performed. - The role, rather, is to be a patient advocate by determining their level of understanding and seeing that the appropriate person answers their questions. - At times, this can be a cloudy issue both legally and ethically. **Patient Medical Records** - Patient owns the information, but the record belongs to the facility that made it and is storing it. - Patients must have reasonable access to the record, the method for retrieving the record varies greatly from one institution to another. - Nurses should be aware of the procedure for procuring medical records for patients at the facilities where they work. - [Pt can see the record but not directly from the nurse's chart. It should be based on the hospital protocol.] - Collaboration between health-care providers and patients, and documentation thereof, is a good indication of well-provided clinical care. **Patient Self-Determination Act (PSDA)** - Required health-care organizations that received federal funding (Medicare and Medicaid) to provide education for staff and patients on issues concerning treatment and end-of-life issues - Includes the use of *advance directives* (ADs), written instructions regarding desired end-of-life care - Also, likely includes durable power of attorney for health care (health-care proxy) **Legal Responsibilities of the Nurse-Manager** - **Reporting dangerous understaffing** - **Checking staff credentials and qualifications** - **Carrying out appropriate discipline** **Good Samaritan Immunity** - Generally, a nurse is not liable for injury that occurs as a result of emergency treatment, provided that: - Care is provided at the scene of the emergency. - The care is not grossly negligent. - Care does not exceed training and scope of practice. - You do not have to stop, but when you do, you must give appropriate care. **Health Insurance Portability and Accountability Act of 1996** - Provides patient right to confidentiality - Essentially represents two areas for implementation - ***Administrative simplification plan***---portion of Health Insurance Portability and Accountability Act (HIPAA) aimed at restructuring the coding of health information to simplify the digital exchange of information among health-care providers and to improve the efficiency of health-care delivery - ***Privacy rules***---portion of HIPAA directed at ensuring strong privacy protections for patient without threatening access to care - - **Legal Considerations of Managing a Diverse Workforce\ **Nurses in healthcare need to know to deal sensitively and appropriately with an increasingly diverse workforce to effectively avoid many legal problems associated with discriminatory issues. - Enhancing self-awareness - Staff awareness of personal cultural biases (implicit bias) - Participating in a comprehensive cultural diversity program - Role modeling cultural sensitivity are some of the ways that nurses can embrace diversity. Example: Staff from cultures in which assertiveness is not promoted may find it difficult to disagree with or question others. **The Board of Registered Nursing Protects Citizens by**: - RN licensing - Monitoring of RN educational standards - RN continuing education - Disciplining RNs - Boundaries for practice are defined in the Nurse Practice Act of each state. - Remember that nursing licensure is a privilege and not a right. **Common Causes of Professional Nursing License Suspension or Revocation** - Professional negligence - Practicing medicine or nursing without a license - Obtaining a nursing license by fraud or allowing others to use your license - Felony conviction for any offense substantially related to the function or duties of an RN - Participating professionally in criminal abortions in states where they are illegal - Not reporting substandard medical or nursing care - Providing patient care while under the influence of drugs or alcohol - Giving narcotic drugs without an order - Falsely holding oneself out to the public or to any health-care practitioner as a "nurse practitioner" **Display 5.5 Actions A Nurse Should Take When Being Investigated by the Board of Nursing** - Do not ignore the Board's notification. It won't go away. - Do not unnecessarily share news of the complaint with friends and colleagues as it may undermine your credibility. - Read employee handbooks/contracts/policy and procedures to determine if must report the investigation to your employer. - Consider contacting an attorney. - If a lawyer is needed, hire an experienced one. - Carefully consider anything you put in writing. - Contact your malpractice insurance provider. - If the investigation involves a patient, do not violate HIPAA by copying the patient's medical record. - Do not alter the patient's medical record. - Be prepared for a lengthy process of investigation. **Impact on Licensure** Wisconsin Department of Safety and Professional Services\ **Reference** Huston, C. J. (2024). Leadership roles and management functions in nursing (11th ed.). Wolters Kluwer