Nursing Leadership & Management Patricia Kelly-Heidenthal 0-7668-2508-6 Delmar Learning Copyright © 2003 Delmar Learning, a Thomson Learning company

Legal Aspects of Patient Care Chapter 22 Legal Aspects of Patient Care Delmar Learning Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Objectives Upon completion of this chapter, the reader should be able to: Identify the sources of public law and its impact on nursing practice. Name various federal administrative agencies and their areas of influence. Name the most common areas of nursing practice cited in malpractice actions and list some actions a nurse can take to minimize these risks. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Objectives Describe the various forms of advance directives and how these are commonly implemented. Describe risk management and how it is used in the health care setting. Discuss the rights of the nurse as an employee. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Types of Law Civil law: law that affects the relationship between individuals Public law: law that specifies the relationship between citizens and the state Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Sources of Law Constitution: a set of basic laws that specifies the powers of the various segments of the government and how these segments relate to each other, and that grants the authority to make, implement, and interpret laws Legislative bodies: enact laws at both the federal and state levels Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Sources of Law Administrative agencies: draft the rules that implement the law Judicial branch: interprets the law while ruling in court cases Common law: courts set precedents that are used by other courts; over time, these have the force of law Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Public Law Public law consists of constitutional law, criminal law, and administrative law and defines a citizen’s relationship with government. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Constitutional Law Several categories of public law affect the practice of nursing, e.g., freedom of religion, right to abortion, and right to die. The nurse may not interfere in another person’s expression of these and other constitutional rights. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Criminal Law Criminal law focuses on the actions of individuals that can intentionally do harm to others. The following are examples of criminal law affecting the nurse: In many states, nurses are required to report suspicious injuries that may be signs of physical violence to the appropriate agency. Many health care agencies are required to do criminal background checks on potential employees. Both federal and state law require health care agencies to regulate and monitor regulated drugs.  Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Criminal Law A nurse also may be affected by criminal behavior outside the workplace; e.g., discovery of alcohol or drug abuse can result in the nurse’s license being revoked. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Administrative Law Administrative law deals with protection of the rights of citizens. Both federal and state governments have administrative laws that affect nursing practice. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Administrative Law Federal: Civil Rights Act of 1964 Age Discrimination in Employment Act of 1967 (ADEA) Americans with Disabilities Act (ADA) OSHA regulations  State: Nurse Practice Act—laws that give state boards of nursing the authority to define nursing, mandate the requisite preparation for nursing practice, and discipline those who deviate from rules governing nursing practice Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Civil Law Civil law governs how individuals relate to each other in everyday matters. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Contract Law Contract law regulates certain transactions between individuals and/or legal entities such as businesses, e.g., employment contracts. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Tort Law A tort is a private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages. A tort can be: The denial of a person’s legal right The failure to comply with a public duty The failure to perform a private duty that results in harm to another  A tort can be intentional or unintentional (malpractice or neglect). Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Tort Law: Malpractice and Negligence Malpractice refers to a professional’s wrongful conduct in discharge of professional duties or failure to meet standards of care for the profession which results in harm to another individual entrusted to the professional’s care.  Negligence is the failure to provide the care a reasonable person would ordinarily provide in a similar situation. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Tort Law: Malpractice and Negligence Simply proving malpractice or negligence is not sufficient to recover damages. Proof of liability or fault requires proof of the following: A duty or obligation created by law, contract, or standard practice that is owed to the complainant by the professional A breach of this duty, either by omission (negligence) or commission (malpractice) Harm, which can be physical, emotional, or financial, to the complainant (patient) Proof that the breach of duty caused the complained of harm Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Other Legal Issues That May Affect the Nurse Assault and battery Examples: Treatment administered without patient’s consent; failing to implement or honor a living will or advance directive False imprisonment Examples: misinterpretation of rights granted by power of attorney; use of physical and/or chemical restraints Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Other Legal Issues That May Affect the Nurse Invasion of privacy Example: revealing confidential patient information  Defamation Example: communicating false information about a patient (Note: several courts have ruled that charting information in a medical record, whether accurate or not, does not constitute publication as required for a charge of defamation.) Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Legal Protections in Nursing Practice: Nurse Practice Act The individual state’s Nurse Practice Act specifies the legal parameters of nursing practice in that state. It answers questions regarding what a nurse can legally do in that state. The parameters of this law vary from state to state. The nurse must know what a nurse is allowed to do in the state in which he or she practices. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Policies and Procedures of the Institution Failure to follow the policies and procedures of the institution in giving care can expose the nurse to personal liability without the protection of the institution. Nurses must know the policies and procedures of their employers and adhere to these in everyday practice. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Good Samaritan Laws Good samaritan laws are laws that have been enacted to protect the health care professional from legal liability for actions rendered in an emergency when the professional is giving service without pay. For actions to fall under the good samaritan laws, all these conditions must be met: The care is rendered in an emergency situation. The health care worker rendered the care without pay. The care provided did not, recklessly or intentionally, cause injury or harm to the injured party. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Copyright © 2003 Delmar Learning, a Thomson Learning company Good Samaritan Laws Good samaritan laws protect volunteers who stop to render care at the scene of an accident. They do not protect emergency medical technicians (EMTs) or other health care professionals who render care at the scene of an accident as part of their assigned duties and for which they receive pay. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Skillful Communications The nurse must communicate accurately and completely both verbally and in writing. Many malpractice or negligence cases complain of a lack of communication by the nurse.  To protect him- or herself in charting, the nurse should use the FLAT charting acronym. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Skillful Communications F – factual: charting should express what the nurse sees, not what he or she thinks happened L – legible: no erasures; corrections should be made with a single line drawn through the error and initialed A – accurate: complete (What color was the drainage and how much was present? How many times, and at what times, was the doctor notified of changes?) T – timely: completed as soon after the occurrence as possible; “late entries” should be avoided or kept to a minimum Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Following Doctor’s Orders In most states, the nurse is required to follow the doctor’s orders in giving care to the patient unless doing so would cause the patient harm. In order to follow this mandate, the nurse must ensure that the orders are clear and accurate. If necessary, the nurse may have to contact the physician for clarification. If the nurse is still uncomfortable following the order, the nurse should notify the supervisor and follow the institution’s policies regarding notification. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Risk Management Program Risk management programs in health care organizations are designed to identify and correct system problems that contribute to errors in patient care or to employee injury. Institutions usually have reporting and tracking forms that record incidents which may lead to financial liability for the institution.  The risk management department may investigate and record information surrounding a patient or employee incident that might result in a lawsuit. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Malpractice/Professional Liability Insurance Nurses may need to carry their own malpractice insurance. They may not be covered under the employer’s liability insurance. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Malpractice/Professional Liability Insurance If, in giving care, the nurse fails to comply with the institution’s policies and procedures, the institution may deny the nurse a defense, claiming that because of the nurse’s failure to follow institutional policy, or because the nurse was working outside his or her scope of employment, he or she was not acting as an employee at that time. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Nurse-Attorney Relationship If the nurse needs an attorney, the following guidelines are suggested: Retain a specialist. Read the attorney’s documents and observe the attorney’s performance. Notify your insurance carrier of any real or potential liability issue, and keep the carrier informed of the status of your situation. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company

Nurse-Attorney Relationship Keep costs sensible. Stay informed. Examine all relevant documents, and do not hesitate to make corrections.  Insist on a collaborative relationship with your attorney. Chapter 22 Copyright © 2003 Delmar Learning, a Thomson Learning company