Legal Issues in NP Practice Holly Armstrong, JD Madison, Mroz, Steinman & Dekleva, P.A (505)242-2177

What Is the NM Nurse Practice Act ? Set of laws passed by the State legislature which govern the practice of the nursing profession. In New Mexico, the “Nursing Practice Act” is found at Chapter 61, Article 3 New Mexico Statutes. Chapter 61-3-23.2 Specifically applies to Certified Nurse Practitioners

Nurse Practice Act Cont. Rules derived from the statutory authority also govern: see New Mexico Administrative Code (NMAC, title 16 Chapter 12). Other requirements, such as informed consent, and federal laws, such as adhering to HIPAA mandates, are also requisite to practice.

Purpose of New Mexico’s Nursing Practice Act The purpose of the NM Nursing Practice Act is to “promote, preserve and protect the public health, safety and welfare by regulating the practice of nursing, schools of nursing, hemodialysis technicians and medication aides in the state.”

Scope of Practice – What is it? Defined in New Mexico Nursing Practice Act (NMSA Article 3, Section 61-3-3(P)) “ “scope of practice” means the parameters within which nurses practice based upon their individual education, experience, licensure certification and expertise”

NM NPA Defines CNP & Advanced Practice “ “Certified nurse practitioner” means a registered nurse who is licensed by the board for advanced practice as a certified nurse practitioner and whose name and pertinent information are entered on the list of certified nurse practitioners maintained by the board.” “ “Advanced Practice” means the practice of professional registered nursing by a registered nurse who has been prepared through additional formal education as provided in Sections 61-3-23.3 through 23.4 NMSA 1978 . . . Including” CNPs, CRNAs and CNS’”

Who Decides Scope? Each state has a board of nursing that interprets it’s respective state’s Nurse Practice Act. “Responsibility for interpreting and enforcing nursing scopes of practice, including the determination of the appropriate education, training and experience necessary to support a given scope of practices rests safely with the boards of nursing.” - National Council of State Boards of Nursing, August 2005

New Mexico Standards of Practice NMAC Title 16, Chapter 12 Standards, generally Must maintain individual competence in respective practice. Accept responsibility for individual actions. Must have knowledge of the laws governing discipline/respective license. If you have questions re your scope, need to exercise due diligence and find answer to your question. Safeguard patients and their right to privacy

Disciplinary Action 16.12.1.9 NMAC The Board of Nursing may deny, revoke or suspend and license or certificates held or applied for under the NM Nurse Practice Act, or reprimand or place a licensee or certificate on probation. Regulations list grounds for action (practice violations). Incompetence defined; may be based on single act or pattern. No findings of harm necessary.

Defining a Legal Standard of Practice In [treating] [diagnosing] [caring for] a patient, a health care provider is under the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified [health care provider] practicing under similar circumstances, giving due consideration to the locality involve - NM Uniform Jury Instruction 13-1101

Defining a Legal Standard of Practice Cont. The only way in which [a jury] may decide whether a [health care provider] possessed and applied the knowledge and used the skill and care which the law required of him/her is by evidence presented at this trial by [health care providers] testifying as expert witnesses. - NM Uniform Jury Instruction 13-1101

Evaluating the Legal Standard of Care Medical Records are key Defined by statute. Owned by organization rendering the care. Conversion to EHR has largely occurred. EHR has changed availability and amount of data/documentation to prove or defend a lawsuit.

Litigation Issues With EMR Presentation of medical record creates changes different from that of paper record. Attorneys don’t see screen shots that provider or clinician see at time of entry. What could have been a 75 pages of paper can be hundreds more with EMR once printed. How it’s organized – can make it more challenging because of the way it reads when printed, something that witnesses can struggle with when testifying. Introduction of metadata into discovery process.

Metadata Automatically captured audit trail of: Who accessed the record; When the chart was accessed; Where/terminal from where chart is accessed; What action user takes within chart (e.g., viewing it, entering data, etc.)

Metadata Cont. Ideally, audit trail should correspond to the patient’s medical chart or record. If an entry in the audit trail shows data was added, changed or deleted, a corresponding entry should appear in the patient’s chart, and vice versa. Electronically stored data generally discoverable, though it has to be balanced against need versus burden and expense of collecting it and in accordance with rules of procedure. May require bringing in IT staff as witnesses.

Risk Management With EHR Rely less on copying and pasting. Repetitious typos in EMR perpetuate inadvertent charting errors that you wouldn’t expect to see in a paper chart. Free text can add significant context to the record. Avoid boilerplate language when you can. Confirm charting was saved. Be mindful of how EHR times entries.

Thank you for your attention. This presentation is for educational purposes only and should not be construed as providing legal advice.