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What is the purpose of law and legislation in nursing?

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to protect the patient and the nurse

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Law and legislation define the

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scope of acceptable practice, as well as protecting individual rights

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Being aware of these rights allows the nurse to

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better protect themselves against liability or loss of licensure

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What define and limit the practice of nursing?

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Nurse Practice Acts

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Nurse Practice Acts

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vary by state. they constitute what is authorized practice as well as what exceeds the scope of the RN's authority

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The scope of practice and licensures is determined by

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the State Board of Nursing

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Constitution

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highest law in the US. interpreted by US supreme court. gives authority to other sources of law

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Involvement in nursing practice: constitution

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little direct involvement

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Statutes

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aka legislative law. laws passed by state/federal legislators and must be signed by the president or govenor

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Involvement in nursing practice: statutes

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many statutes directly affect malpractice

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Administrative agencies

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rules and regulations established by appointed agencies of executive branch of government (aka governor or president)

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Involvement in nursing practice: administrative agencies

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some agencies directly affect nursing practices. National Labor Relations Board, CDC, NIH

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Court decisions

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aka tort law. interpret the statutes and set precedents. can be trial court or appellate court.

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Involvement in nursing practice: court decisions

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most malpractice is addressed here, if unable to address, it moves up to a different level. ex - getting sued

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Burden of proof required for guilty verdict: criminal law

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beyond a reasonable doubt

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Likely consequences of a guilty verdict: criminal law

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incarceration, probation and fines

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Burden of proof required for guilty verdict: civil law

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based on evidence

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Likely consequences of a guilty verdict: civil law

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monetary damages. and goes on your credit report

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Burden of proof required for guilty verdict: administrative

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clear and convincing standards. ex - nursing school

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Likely consequences of a guilty verdict: administrative

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suspension/loss of licensure

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Plaintiff

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injured party

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Defendant

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professional alleged to have caused the 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 doing something a reasonable and prudent person would not do

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Reasonable and prudent

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average judgement, foresight, intelligence, and skill that would be expected of a similar training and experience

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Example and reasonable and prudent

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an expert witness. ex - being an ICU nurse w/ certifications

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Malpractice

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failure of a person with training to act in a reasonable and prudent manner

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Malpractice can also be referred to as

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professional negligence

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Standards of care

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outlines the level of quality considered adequate by a given profession

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Breach of duty

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standard of care violation

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Foreseeability of harm

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knowledge or availability of information of not meeting standard of care could result in harm. ex - trust your gut instinct. do a thorough assessment so you can at least identify that something isn't right.. whether or not you know what exactly is wrong. DOCUMENT EVERYTHING

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Duty to use due care (defined by the standard of care)

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the care that should be given under the circumstances. what the reasonable and prudent nurse would have done

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Example of duty to use due care

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a nurse should give medications accurately, completely, and on time

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Failure to meet standard of care (breach of duty)

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not giving the care that should be given under the circumstances

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Example of failure to meet standard of care

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a nurse fails to give medications accurately, completely, and on time

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Foreseeability of harm

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nurse must have reasonable access to information about whether the possibility of harm exists

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Example of foreseeability of harm

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drug handbooks/websites specify that wrong dosage or route may cause injury

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Direct relationship between breach of duty and injury can be proved

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patient is harmed because proper care was not given. this is negligence because injury occured

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Example of negligence

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wrong dosage of a medication causes patient to have a seizure

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Injury

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harm results to the patient

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Example of injury

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serious complication to patient

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How to avoid malpractice: The Joint Commission summary of recommendations

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pursue pt safety initiatives that prevent medical injury. promote open communication between pt and practitioners (bedside shift report w/ everyone in room). create an injury compensation system that is pt centered and serves the community (b/c nurses will be able to work longer instead of having to retire at a young age)

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How to avoid malpractice

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be familiar with and practice your organizational policies and procedures. (policies are put in place to help cover you if something goes wrong). follow current evidence based practice standards. always put pts rights and welfare first. critically think: integrate law, legal doctrines, biological, psychological, cultural factors when making decisions. practice within your area of individual competence. upgrade and maintain your skills with continuing education and specialty certifications. practice within your state's scope of practice/nurse practice acts

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Malpractice insurance

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most agencies will cover you, but only if you are following their policies and procedures. liability insurance does not prevent malpractice, but it will help protect you from financial ruin if there is a malpractice case and your organization does not cover you

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Joint liability

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nurse, physician, and organization are held liable

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Charitable immunity

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nurses or physicians were held accountable and organizations were exempt. prior to 1965

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Vicarious liability

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employers being held liable for nurse's actions. this is why there is so much training

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Respondeat superior

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the master is responsible for acts of his servants

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Doctrine of charitable immunity

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charitable or nonprofit organizations cannot be sued by a person who has been injured as a result of a hospital employee's negligence

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Governmental immunity

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governments cannot be held liable for negligent acts of their employees while carrying out government activities

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Personal liability

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every person is liable

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Incident reports

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forms filled out for an unusual or unexpected incident that occurs in the course of a patients treatment. used by lawyers to defend confidential communications and cannot be subpoenaed by pts or used as evidence. however, if the incident report has been disclosed to the plaintiff, then they are no longer considered confidential and can be used in court. they are a method of promoting quality care and risk management

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True or False. You should document incident reports in the pts chart

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FALSE!! NEVER document that you filled one out in their chart. the chart should have enough information on its own about the incident, so that any necessary treatment can be given. if you document it, it makes it available to everyone. if you don't, its the hospitals ownership

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Tort

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

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Unintentional tort

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professional negligence

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Intentional tort

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direct invasion of someone's legal rights (assault, batter, false imprisonment, invasion of privacy, defamation, slanders)

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Assault

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conduct that makes a person fearful and produces a reasonable apprehension of harm. ex -- a threatening comment made to a pt

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Battery

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intentional and wrongful physical contact with a person that entails an injury or offensive touching

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Simple assault

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threat, but no physical contact

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False imprisonment

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the restrain of a person's liberty of movement by another party who lacks the legal authority or justification to do so

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Defamation

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communicating to a third party false information that injures a person's reputation in writing

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Slander

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communicating to a third party false information that injures a person's reputation verbally

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Product liability

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when a product is involved, negligence does not have to be proven

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Strict liability

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product holds a higher level of liability than a person. if it can be proven that the equipment or product had a defect that caused an injury, then it would be debated in court by using all elements essential for negligence (duty and breach). if a nurse has knowledge that equipment is faulty, the nurse has the right to refuse to use the equipment

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Informed consent can only take place

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after the pt has received a complete explanation of the surgery, procedure or treatment and indicates that he or she understands the risks and benefits related to it

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When nurses witness a signature on a consent form, it means

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they are just witnessing that it was THAT pts signature

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Who needs to get the consent form signed?

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the person performing the procedure

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The person giving consent must fully comprehend

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the procedure to be performed, the risks involved, expected or desired outcomes, expected complications or side effects that may occur as a result of treatment (death is always a risk), alternative treatments that may be available

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Consent may be given by

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a competent adult, a legal guardian or individual holding durable power of attorney (need to have the legal papers), an emancipated or married minor, mature minor (varies by states), parent of a minor child, court order

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In an emergency, the physician can invoke

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implied consent. the physician will then document and dictate that the pt is unable to sign but the treatment is needed immediately and is in pts best interest

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The injured person may be

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unconscious or their life may be in danger. there may not be enough time to obtain their consent or it may be impossible to do so

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Obtaining informed consent is sometimes not required if

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the pt is unable to physically or emotionally respond to being informed about medical surgery risks

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Documentation

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if it is not documented in the record, it was not done. Document factually and objectively

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Patient self determination act

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required any health care organization that received federal funding (medicare or medicaid) must provide education to staff and pts on end of life treatment issues

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Advance directives

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written instructions regarding desired end of life care

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Durable power of attorney

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aka health care proxy. someone you trust to make your health care decisions if you are unable to do so

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Good Samaritan Laws

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protect health care providers from potential liability if they volunteer their nursing skills away from the workplace, specifically in emergencies, provided that actions are not grossly negligent and if the healthcare worker does not excess their scope of practice. nurses are NOT required to stop and provide emergency services as a matter of the law, however, ethics may compel many to do so. variable from state to state and country to country

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Health Insurance Portability and Accountability Act (HIPAA)

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Part 1- administrative simplification plan: restructuring the coding of health information to simplify the digital exchange of information among health care providers and improve efficiency of health care delivery. Part 2- privacy rules: directed at ensuring strong privacy protection for pt without threatening access to care

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Legal considerations in nursing management

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remember to be diverse: there are always variable dynamics dependent on age, gender, religion, customs, sexual orientation, physical size, physical and mental capabilities, beliefs, culture, ethnicity and skin color. communicate effectively. make sure there is not a reluctance to ask questions (open door policy). respond appropriately -- your response could be taken as a subtle discrimination so think before responding and reacting

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Professional licensure is a

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privilege, not a right

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License

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a legal document that permits a person to offer special skills and knowledge to the public in a particular jurisdiction when such practice would otherwise be unlawful

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Common causes of nursing license suspension

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professional negligence, practicing w/o a license (ex- an expired license), obtaining a nursing license fraudulently or allowing others to use your license, felony conviction of an offense substantially related to duties of an RN, participating in criminal abortions, not reporting substandard care, providing care under the influence of drugs or alcohol, giving narcotics without an order, falsely holding oneself out to the public or any practitioner as a nurse practitioner

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Institutional licensure

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shifts the burden of license and makes the institution vs the individual accountable

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Advocacy

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informing others of their rights and making certain they have sufficient information to make decisions

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What's important with advocacy?

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GET THE FAMILY INVOLVED. advocacy involves the family. suggest to the pt "maybe you want to talk to your family first".

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Whistle blowing

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report wrong doing or corruption

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Internal whistle blowing

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reporting up the chain of command

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External whistle blowing

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reporting outside the organization, for example, to the media

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Whistle blowers are often

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honored more in theory, then in actuality, but are protected by federal law. nurses on any level should be willing to advocate for those that speak out against wrongdoing

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Professional advocacy

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advocate for your profession: do not feel that you are powerless - one voice is all it takes to raise the consciousness of colleagues within a profession

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Public policy

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nurses must exert their collective influence and make their concerns known to their policy makers before they can have a major impact on political and legislative outcomes

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