Legal Issues in Nursing

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Constitutional Law
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supreme law of the land, general org of federal govt, grants certain powers to state, law to due process
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Statutory Laws
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(Nurse Practice Act) -enacted by legislative law
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Administrative Law
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enforces statutory law (State Board of Nursing)
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Common Law
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evolve from court decisions
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California Nurse Practice Act
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-legal controls for the scope of nursing practice -each state has one (protects the public) -standards of care -licensing requirement for nurses -Nurses who know & follow their Nurse Practice Act and standards of care provide safe, competent nursing care.
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Nursing Practice
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-provides care (ind., families & communities)
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4 areas of Nursing Practice
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1. Promoting health & wellness 2. Preventing illness 3. Restoring health 4. Care of the dying (not enhance)
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Role/Regulation of the BRN
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-write rules & regulation to implement & enforce a nurse practice act -provides licensure -ensure that schools preparing nurses maintain minimum care standards of education (curriculum, NCLEX, accredited vs. non-accredited schools)
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Voluntary Controls
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-nursing associations can also choose to seek voluntary accreditation from a private organization -National League of Nursing Accreditation Commission (NLNAC) -Commission on collegiate Nursing Education (CCNE)
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What is JHACO?
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-independent non-profit org. -governed by medical professionals -regulatory agency -GOAL: sets standards by which health quality is measured -ACCREDITATION IS TIED TO FUNDING
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What is WASC?
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-Western Accreditation of Schools and Colleges -evaluates and accredit public & private postsecondary institutions that offer two-year education programs and award associates degrees
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What are some statutory (legislative) laws?
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-laws enacted by any legislative body – Nurse Practice Act: protect nurses against litigation -Good Samaritan Act: protect patient outside hospital setting -Child & Adult abuse laws: RN are mandated reporters -Sexual harassment laws -Americans with Disabilities Act
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What are common laws?
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-laws evolving from court decisions (Roe v. Wade) -continually being adapted and expanded -when deciding a ruling in a case, the court applies the same rules & principles applied in previous, similar cases
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What are Tort Laws?
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-defines and enforces duties & rights among private individuals that are not based on contractual agreement -a civil wrong committed against a person or a person’s property (ie. OJ v. Goldman Family) -Acts of Commission or Omission (unreasonable act of commission & reasonable acts of omission)
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What are some TORT laws applicable to nursing?
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negligence malpractice invasion of privacy assault battery
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What is an Intentional Tort?
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ACT WAS ON PURPOSE OR WITH INTENT -liability may still exist even if no harm occurs
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What are the 4 intentional torts related to nursing?
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Assault/battery False Imprisonment Invasion of Privacy (HIPAA) Defamation (Libel/Slander)
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Intentional Tort: Assault
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ASSAULT PRECEDES BATTERY (perceived threat of battery) -“an attempt or threat to touch another person unjustifiably” -a person who makes a gesture with a closed fist is guilty of assault (lunging at someone, threatening) “i’ll kill you” (causes person to believe battery will occur)
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What is an example of assault in nursing?
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A nurse who threatens a client with an injection after the client refuses to take the medication orally would be committing assault.
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Intentional Tort: Battery
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“the willful touching or a person (or the person’s clothes” that may or may not cause harm” -if the nurse had given the injection without the clients consent. -Liability applies even if there is a Dr. Order
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What is liability?
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“the quality of state of being legally responsible for one’s obligations & actions and to make financial restitution for wrongful acts” -NURSING OBLIGATION: prevent harm or injury to client, maintain standards of care -nurse can refuse to carry out orders -> report to nursing supervisor -medication liability falls on the nurse (look up meds, know Rxn)
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What are criminal actions?
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-deal with disputes between an individual and the society as a whole -ie. homicide, manslaughter, theft, arson, active euthanasia, sexual assault, illegal possession of controlled drugs -if a nurse is found guilty of a criminal action: may lose his/her license, lose $$, go to jail
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Intentional Tort: False Imprisonment
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“unjustifiable detention of a person without legal warrant to confine the person” (client has the right to leave AMA) -false imprisonment accompanied by forceful restraint or threat of restraint is BATTERY.
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Intentional Tort: Invasion of Privacy
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“a direct wrong of a personal nature” -the client has the right to privacy -Nurse breaches confidentiality (HIPAA): confidential client information, intrudes on client’s privacy -never discuss client situations in the elevator, cafeteria, or other public areas
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Intentional Tort: Defamation
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“communication that is false, or made with a careless disregard for the truth, and results in injury to the reputation of a person” -includes both libel (writing or pictures) and slander (spoken word by which a reputation is damaged) -communication must be made in good faith to patient care
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What is an UNINTENTIONAL TORT?
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Negligence & Malpractices are examples of unintentional tors that may occur in the health care setting. -must be element of harm
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Element of Nurse Liability: Negligence
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misconduct or practice that is below the standard expected of an ordinary, reasonable and prudent person. -non medical & medical personnel *ie. FAIL to notify MD soon enough *ie. FAIL to implement fall precautions for pain meds
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Common areas of NEGLIGENCE
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-medication administration #1 in nursing arena -Treatments: pain meds (must evaluate after administering & document response) -Monitoring/Observing/Supervising (failure to observe & take appropriate action – you must assess, not CNA) -SAFETY: Falls
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Element of Nurse Liability: Malpractice
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“professional negligence” -meaning negligence that occurred while the person was performing as a professional -malpractice applies to physicians, dentists, lawyers & nurses
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Six Elements of Malpractice
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HAVE TO BE PROVEN 1. duty 2. breach of duty 3. foreseeability 4. causation 5. harm or injury 6. damages
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Six Elements of Malpractice: DUTY
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the nurse has a general duty of care (even if the client is not specifically assigned to that nurse) -ie. call light on -> nurse has the duty to assist pt.
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Six Elements of Malpractice: BREACH OF DUTY
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the nurse did not meet the “standards of care” or expectation (failure to act as a reasonable, prudent nurse) -something done that shouldn’t have been done or something NOT DONE that SHOULD HAVE BEEN DONE.
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Six Elements of Malpractice: FORESEEABILITY
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a link must exist between the nurse’s act and the injury suffered *ie. McDonalds hot coffee case – heating coffee to 10 degrees higher than told by corporate office
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Six Elements of Malpractice: CAUSATION
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it must be proved that the harm occurred as a direct result of the nurses failure to follow the standard of care. *ie. giving pt.pain meds while pt. sleeping -> pt. died b/c you have to assess respiration before administering medication *ie. when giving an IV and applying tourniquet and leaving -> pt. arm turns purple and loses digits.
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Six Elements of Malpractice: HARM OR INJURY
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the client must demonstrate some type of harm or injury “pain and suffering” *ie. must change IV within 24 hours if given in the field by paramedic
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Six Elements of Malpractice: DAMAGES
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if malpractice caused the injury, the nurse is held liable for damages
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What is an incident report?
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An incident report is an agency record of an accident or an unusual occurrence PURPOSE: to make all facts available to the agency, contribute statistical data about accidents, help health care personnel prevent future incidents or accidents
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Incident Report: Special Considerations
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-report should be completed as soon as possible -THE INCIDENT REPORT DOES NOT GO INTO THE CLIENTS RECORD (purpose of report: alert risk management to the event) -becomes legal document -the facts of the incident should be noted in the clients record -when an accident occurs the nurse should first assess the client & intervene to prevent injury
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What is CONSENT?
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CLIENT MUST BE COMPETENT TO GIVE CONSENT (if the nurse is concerned regarding client competency, you must report to your supervisor for guidance) -consent is required before procedures are performed -battery exists if there is no consent -life-threatening emergencies = implied consent (trying to save a life)
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What are the 2 types of CONSENT?
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1. EXPRESSED CONSENT: oral or written agreement, usually high risk procedures need WRITTEN informed consent 2. IMPLIED CONSENT: exists with clients non-verbal behavior (sit up to take meds, give arm for BP) -consent is also implied in a medical emergency when an individual cannot provide expressed consent
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What are the 3 elements of Informed Consent?
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1. consent must be given voluntarily (no coercion; coercion validates the consent) 2. client must be competent to understand 3. client must be given enough information to be the ultimate decision maker *ie. BKA but pt. wants entire leg removed. MD must explain why they don’t want to remove entire leg.
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What are the 3 groups that CANNOT provide consent?
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1. minors: parent or guardian must give consent (adult with mental capacity of a child=appointed guardians must give consent (viewed as a minor)) 2. patient who is unconscious or injured in a way which prevents them from giving consent 3. mentally ill patients who have been judged by professionals to be incompetent
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Exceptions to CONSENT
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in some states, minors are allowed to give consent for: blood donations treatments for substance abuse mental health problems reproductive concerns (STD or pregnancy)
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What minors are legally permitted to provide their own consent?
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-married -pregnant -parents -members of the military -emancipated (living on their own)
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What is the nurses role regarding consent?
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-witness the client’s signature on the document -confirm that the consent is voluntary, signature is authentic, and client “appears” competent to give consent
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What are some legal safeguards for Nursing Practice?
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-follow the Nurse Practice Act -Standards of Practice (major safeguard for nursing) -documentation (accurate & complete. if not charted=not done) -standards of clinical nursing practice -institutional policies & procedures
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Nurses as Witnesses
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-a nurse may be called to testify in a legal action *ie. pulled in as a SN when you see other nurse miscount narcotics; now you are a witness EXPERT WITNESS: special training, experience, or skill in a relevant area and is allowed by the court to offer an opinion on some issue within their area of expertise ***if you don’t know, don’t pretend to know***
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Delegation:
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“transferring to a competent individual the authority to perform a selected nursing task in a selected situation” -legally nurses need to know the scope of practice of an NA (job description, facilities policies & procedures, NA’s skill level) *ie. 4th semester SN asks 1st semester SN to chg. pt. bd -> ok to delegate b/c we have been taught to do (but not a foley cath)
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IMPORTANT CONCEPT IN DELEGATION:
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THE NURSE MAY DELEGATE TASK TO THE NA, HOWEVER: THE RESPONSIBILITY FOR ACTION OR INACTION REMAINS WITH THE LICENSED NURSE *ie. NA takes VS, reports to RN/SN, puts in affinity but it is our responsibility to re-assess. -get to know your NA’s (establish guidelines and expectations) – tell NA to watch VS if you need them to
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What is an impaired nurse?
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refers to a nurse whose practice has been affected because of chemical abuse, specifically alcohol and drugs. MAIN CONCERN: protection of clients, treatment for nurse
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What is a diversion program?
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it is a program instituted to assist impaired nurses in recovery *impaired nurses who voluntarily enter into a diversion program do not have their license revoked if they follow treatment requirements
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Diversion Program: Guidelines
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-work on general nursing unit, not critical care -no overtime -work only day shift -not allowed to administer or have access to narcotics program requires: counseling, support group, periodic progress reports & random drug screening
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Reporting unsafe practices
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nurses may need to report nursing colleagues or other health professionals for practices that endanger the health and safety of clients *have a duty to report unsafe practices *do NOT be afraid to be a whistleblower
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Guidelines for reporting:
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-described the observed behavior only -write a clear description of the situation you believe you should report -make your statements factual and complete -report the matter starting with the lowest level in the agency hierarchy -assume responsibility for reporting (sign your name) -see the problem through once you have reported it
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Good Samaritan Act
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“laws designated to protect health care providers who provide assistance at the scene of an emergency against claims of malpractice unless it can be shown that there was a gross departure from the normal standard of care or willful wrongdoing on their part”
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Good Samaritan Act: Guidelines
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-limit actions to those normally considered first aid, if possible -do not perform actions that you do not know how to do -offer assistance but do not insist -do not leave the scene until the injured person leaves or another qualified person takes over -do not accept any compensation
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Legal Responsibilities of Student Nurses
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” nursing students are responsible for their own actions & liable for their own acts of negligence committed during the course of clinical experiences” -SN are held to the same standard as RN’s *always forllow up w/instructor, not nurse on the floor
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Legal Responsibilities of Student Nurses: what to do
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-be prepared for your assigned patient (clinical worksheets) -ask for help in situations you feel inadequately prepared (ask instructor, not nurse) -comply with agency policies -comply with policies defined by the School of Nursing
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What is the Patients Rights & Responsibilities?
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“an agreement by a client to accept a course of treatment or a procedure after being provided complete information, including benefits & risks of treatment, alternatives to treatment and prognosis if not treated. *client signs a form (witness needed)
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When was the Patient Bill of Rights signed?
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1973 *revised 1992
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What are the patient rights?
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Right to considerate and respectful care right to information (dx, tx, prognosis) right to decide (plan of care) right to advance directive (living will) right to privacy (consultation/examination) right to privacy (records, charts, labs) right to request care/services/referrals/transfers to another facility) right to consent or decline services right to be informed of hospital policies & procedures related to their care
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What is AMA?
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Against Medical Advise *clients have the right to insist on leaving even though it may be detrimental to their health -client advocate role: make sure the client is aware of all risks of leaving up to and including death. ASK: “why would you want to leave?” EXCEPTIONS: Active TB patients: house arrest (any communicable disease as long as it is active)
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What is HIPAA?
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American Health Insurance Portability and Accountability Act (1996) *requires client’s health information be secured (only those with the right and need to acquire information regarding patients fare/status are able to do so
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What are DNR orders?
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“DO NOT RESUSCITATE” *terminal ill clients, expected death” -written when a client has expressed no resuscitation in the event of a respiratory or cardiac arrest GOAL: dignified death, comfortable measures (no heroic efforts must be explained to pt. clearly) -DNR orders must be clearly documented, reviewed and updated periodically to reflect changes in the clients condition *MUST BE HONORED Documentation: JHACO requirement
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What are the categories of NEGLIGENCE that result in MALPRACTICE?
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1. FAILURE to follow standards of care (fail to complete admission assessment or design plan of care. fail to adhere to standardized protocols or policies & procedures. fail to follow MD orders 2. FAILURE to use equipment in responsible manner 3. FAILURE to communicate (notify MD timely, listen to pt. complaints) 4. FAILURE to document (inc. fail to note in pt. medical records) 5. FAILURE to assess & monitor (complete shift assessment, implement plan of care) 6. FAILURE to act as a patient advocate (fail to question discharge orders, question incomplete illegible MD orders)

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