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Primary purpose of law and legislation

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The primary purpose of law and legislation is to protect the patient and the nurse.

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Types of Law:

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Types of Law Criminal Law Civil Law Administrative Law

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Criminal Law

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Individual faces charges filed by the state or federal attorney general for crimes committed against an individual or society

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Civil Law

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One individual sues another monetarily to compensate for a perceived loss. The burden of proof required to be found guilty in a civil case is described as a preponderance of the evidence or the judge or jury must believe that it was more likely than not the accused individual was responsible for the injuries of the complaintant.

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Administrative Law

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An individual is sued by a state or federal governmental agency assigned the responsibility of implementing governmental programs. ex. State Boards of nursing. If an individual violets Nurse Practice Act the board of nursing may seek to revoke licensure or institute some form of disciple. Burden of proof varies state to state.

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Two Types of Negligence

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1. Ordinary negligence 2. Professional negligence (also called malpractice)

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Ordinary Negligence

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The omission to do something that a reasonable person would do.

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Professional Negligence (malpractice)

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The failure of a person with professional training to act in a reasonable and prudent manner. physicians and even nurses because we have more authority, autonomy, and accountability, etc. for our own practice. Many nurses now carry our own malpractice insurance. *plaintiff: injured party Defendent: profession who is alleged to have caused injury.

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Negligence

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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.

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reasonable and prudent

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generally means that the av erage judgement, foresight, intelligence and skill that would be expected of a person with similar training and experience.

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Malpractice

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the failure of a person with professional training to act in a reasonable and prudent manner also called professional negligence.

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Components of Negligence

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Refer to page 97 in text

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Nurses Are at Increased Legal Liability in the 21st Century Due to:

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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 of them carrying malpractice insurance.

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Standard of Care

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A minimal level of expertise that may be delivered to a patient. The conduct of a reasonably prudent nurse in similar circumstances.

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Malpractice

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The failure of a person with professional training to act in a reasonable and prudent manner—also is called professional negligence.

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Five Components Necessary for Professional Negligence to Occur

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A standard of care is in place. There is a failure to meet the standard of care. Foreseeability of harm must exist. There must be a provable correlation between care and harm. Actual patient injury must occur

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Under Ordinary Circumstances

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The question of whether a nurse acted with reasonable and prudent care is determined by the testimony of expert nursing witnesses.

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Being Sued for Malpractice

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Just following physician orders" is NOT a defense for malpractice. Nurses have an independent responsibility to take appropriate steps to safeguard patients.

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Civil Cases (Typically Including Malpractice)

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One individual sues another monetarily to compensate for a perceived loss. Burden of proof (the obligation to prove allegations which are presented in a legal action) required to be found guilty is a preponderance of the evidence (superiority in importance)

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Legal Terms

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Stare decisis Liability Tort Respondeat superior Res ipsa loquitur Vicarious liability Product liability

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Stare Decisis

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means to let the decision stand (use precedents).

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Intentional Torts- Direct invasion of someone's legal rights

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Assault and battery False imprisonment Invasion of privacy Defamation of character

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Respondeat superior

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The employee should be held liable for the conduct of employees whose actions she or he has a right to direct or control. "the master is responsible for the act of his servants" An employer should be held legally liable for the conduct of employees who actions he or she has a right to direct or control. Difficult to interpret because many exceptions exist. Most important exception is related to the state in which the nurses practices. Doctrine of charitable immunity applies in some states who says that a caharitable hospital cannot be sued by a person who has been injured as a result of a hospital employee's negligence. Liability limited to the employee.

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Governmental immunity

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provides that governments cannot be held liable for the negligent acts of their employees while carring out government activities. Some places have changed this law however and respondeat superior continues to apply to the acts of nurses employed by the state goverment.

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Vicarious Liability

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Employers are held liable for the nurse's act. (respondeat superior is a form of this)

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Res ipsa loquitur

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"The thing speaks for itself" Assume a person's injury was caused by the negligent action of another due to the information.

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personal liability

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says that every person is liable for his or her own conduct. Does not permit a wrongdoer to avoid legal liability for his or her own wrongdoing, even though someone else may be sued and be held legally liable.

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Tort

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legal wrongs committed against a person or property, independent of a contract, that render the person who commits them liable for damages in civil action.

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Professional negligence

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unintentional tort

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intentional torts

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assault, battery, false imporisonment, invasion of privacy, defemation and slander. Direction invasion of someone's rights.

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The use of physical restraints has led to claims of false imprisonment. Frequent Causes of Claims Against Nurses

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Inadequate charting Inadequate communication with physician or supervisors about changes in patient conditions Leaving potentially harmful items within patient reach Unattended patient falls Inaccurate counting of operative instruments and sponges Misidentifying patients for medications, surgeries, tests

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The Board of Registered Nursing Protects Citizens by:

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RN licensing monitoring of RN educational standards RN continuing education Disciplining RNs

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Boundaries for practice are defined in the Nurse Practice Act of each state

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RN Licensure Remember that nursing licensure is a privilege and not a right.

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Nurse Practice Act

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The Nurse Practice Act is a legal instrument that defines what the functions of nursing shall be and sets standards for licensure. It grants a nurse the authority to carry out those functions. Each state has its own Nurse Practice Act, but all must be consistent with provisions or statutes established at the federal level.

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Types of Consents

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Informed consent: Implied consent: Express consent:

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Informed Consent

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Obtained 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.

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express consent

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by witnessing patients sign a standard consent form. In express consent, the role of the nurse is to be sure that the patient received informed consent and to seek remedy if he or she has not.

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implied consent

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the 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.

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Medical Records

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Although the patient owns the information in the medical record, the actual record belongs to the facility that originally made the record and is storing it.

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The Patient Self Determination Act (PSDA) (1991)

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Requires health-care organizations that receive federal funding to provide education for staff and patients on issues concerning treatment and end-of-life issues

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Health Insurance Portability and Accountability Act (HIPAA) of 1996

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Protects the privacy of health information and improves the portability and continuity of health insurance coverage

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Good Samaritan Immunity

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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

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Key Concepts

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sources of law include constitutions, statues, administrative agencies and court decisions.

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Key Concepts

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the burden of proof required to be found guilty and the punishment for the crime varies significantly between criminal, civil and administrative courts

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Key Concepts

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Nurse Practice Act define and limit the practice of nursing in each state

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Key Concepts

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Professional organizations generally espouse standards of care that are higher than those required by law. These voluntary controls often are forerunners of legal controls.

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Key Concepts

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Legal doctrines such as stare decisis and res judicata frequently guide courts in their decision making.

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Key Concepts

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Stare decisis: means to let the decision stand. Uses precedents as a guide for decision making. Gives nurses insight into ways that the court has previously fixed liability in given situations. Two pitfalls: the previous case must be within the jurisdiction of the court hearing the current case. Also, the court hearing the current case can depart from the precedent and set a landmark decision.

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Key Concepts

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Res Judicata: means "a thing or matter settled by judgement". It applies only when a competent court has decided a legal dispute and when no further appeals are possible. Keeps the same parties in the original lawsuit from retrying the same issues that were involved in the first lawsuit.

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Key Concepts

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Currently, licensing for nurses is a responsibility of state boards of nursing or state boards of nurse examiners. These state boards also provide discipline as necessary.

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Key Concepts

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Some professionals have advocated shifting the burden of licensure, and thus accountability, from individual practitioners to an institution or agency. Many professional nursing organizations oppose this move.

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Key Concepts

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Malpractice or professional negligence is the failure of a person with professional training to act in a reasonable and prudent manner. Five components must be present for an individual to be found guilty of malpractice.

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Key Concepts

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Employers of nurses can now be held liable for an employee's acts under the concept of vicarious liability.

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Key Concepts

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Each person, however, is liable for his or her own tortuous conduct.

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Key Concepts

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Managers are not automatically held liable for all acts of negligence on the part of those they supervise, but they may be held liable if they were negligent in supervising those employees at the time that they committed the negligent acts.

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Key Concepts

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While professional negligence is considered to be an unintentional tort, assault, battery, false imprisonment, invasion of privacy, defamation, and slander are intentional torts.

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Key Concepts

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Consent can be informed, implied or expressed. Nurses need to understand the difference between these types of consents and use the appropriate one.

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Key Concepts

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Although the patient owns the information in a medical record, the actual record belongs to the facility that originally made it and is storing it.

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Key Concepts

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It has been shown that despite good technical competence, nurses who have difficulty establishing positive interpersonal relationships with clients and their families are at greater risk of being sued.

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Key Concepts

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Each nrse hsould be aware how laws such as Good Samaritan immunity or legal access to incident reports are implemented in the sate in which they live.

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Key Concepts

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Neg legislation pertaining to confidentiality (HIPPA) and patient rights (e.g. PSDA) continue to shape nurse - client interactions in the healthcare system.

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