1. Chapter 23 Legal Implications in Nursing Practice
Nurses need to understand the law to protect themselves from liability and to protect their clients. Nurses need not fear the law, but rather view it as the foundation for understanding what society expects from professional nurses. Safe nursing practice includes an understanding of the legal boundaries within which nurses practice. As health care evolves, the legal implications for health care evolve as well. An understanding of the implications of the law supports critical thinking on the nurse’s part.

2. Legal Limits of Nursing
Sources of law:
Legal guidelines that come from statutory, regulatory, and common law
Standards of care:
Legal guidelines for defining nursing practice and identifying the minimum acceptable nursing care
Statutory laws are derived form the Nurse Practice Act found in all states. The Nurse Practice Act describes and defines the legal boundaries of nursing practice in each state. An example of a federal law is the American with Disabilities Act (1990).
Regulatory law, also known as administrative law, defines your duty to report incompetent or unethical nursing conduct to the Board of Nursing.
Common law results from judicial decisions concerning individual cases. Most of these revolve around negligence and malpractice.
Criminal laws are meant to prevent harm to society and provide punishment for crimes. These are categorized as felonies or misdemeanors. A felony is a serious crime that usually has a penalty of imprisonment for more than 1 year. At times, a felony will require the death penalty. A misdemeanor is a less serious crime that has a penalty of a fine or imprisonment for less than 1 year.
Civil laws protect the rights of the individual. Damage for civil laws usually involve the payment of a fine.
Standards of care reflect values and priorities of the profession. This was discussed in Chapter 1. The best known standard of care comes from the ANA. This organization has developed standards for nursing practice, policy statements, and similar resolutions. Nursing standards are also set by every state, as well as by state and federal laws that govern hospitals, other places where nurses work, and specialty nursing organizations. The Joint Commission requires that hospitals have written nursing polices and procedures.
Box 23-1 presents information on the anatomy of a lawsuit. Remember the best way for you to keep up with current legal issues is to maintain familiarity with standards of care, policies, and procedures.

3. Federal Statutory Issues in Nursing Practice
American with Disabilities Act
Emergency Medical Treatment and Active Labor Act
Mental Health Parity Act
Advance Directives
Living Wills, Durable Power of Attorney
Uniform Anatomical Gift Act
Health Insurance Portability and Accountability Act
Restraints
The 1990 ADA act is a very broad civil rights statue. It protects the rights of disabled people. Included in this statute are people who have HIV and AIDS.
The Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) is also known as the “patient dumping act.” Hospitals are mandated to treat and stabilize clients before transferring or discharging them.
The Mental Health Parity Act of 1996 forbids health care plans from placing lifetime or annual limits on mental health coverage that are less generous than those placed on medical or surgical benefits. The Patient Self Determination Act of 1991 (PSDA) requires health care institutions to provide written information to clients concerning their rights under state law to make decisions, including the right to refuse treatment and formulate advance directives.
There are two types of advance directives, living wills and durable power of attorney for health care. Living wills are written documents that direct treatment in accordance with a client’s wishes in the event of a terminal illness or condition. A Durable Power of Attorney for Health Care (DPAHC) is a legal document that designates a person or persons of one’s choosing to make health care decisions when clients can no longer make decision on their own behalf. A DNR or no CPR wish fits into this category. When advance directives exist, they need to be written into the patient care record/chart. Nurses must follow the client’s wishes and leave their own personal thoughts/emotions behind.
The Uniform Anatomical Gift Act states that an individual who is at least 18 years old has the right to make an organ donation. Donors need to make their wishes known in writing. Many states allow adults to sign the back of their driver's license indicating their intent for organ donation. The National Organ Transplant Act of 1984 prohibits the purchase or sale of organs. The United Network for Organ Sharing (UNOS) has a contract with the federal government and sets policies and guidelines for the procurement of organs.
HIPAA or the Health Insurance Portability and Accountability Act of 1996 provides rights to clients and protects employees. It protects individuals from losing their health insurance when changing jobs by providing portability. The privacy section of HIPAA established rules for clients’ rights to consent to use and disclose protected health information, to inspect and copy one’s own medical records, and to amend mistaken or incomplete information. Privacy and confidentiality are important factors of the privacy section.
The Federal Nursing Home Reform Act (1987) gave residents in certified nursing homes the right to be free of unnecessary and inappropriate restraints. Also The Joint Commission and Centers for Medicare and Medicaid Services (2004) regulate the use of restraints. The inappropriate use of restraints violates both state and federal regulations. Abuse constitutes abuse.

4. State Statutory Issues in Nursing Practice
Licensure
Good Samaritan laws
Public health laws
The Uniform Determination of Death Act
Physician-assisted suicide
The State Board of Nursing licenses all registered nurses in the state where they practice. The requirements for licensure vary among states, but most states have minimum educational requirements. You will be preparing to take the NCLEX-RN.
Nurses act as Good Samaritans when providing care at the scene of an accident. All states have Good Samaritan Acts. Provisions may vary among states; however, these laws limit liability and offer legal immunity for nurses who help at the scene of an accident. At least two states, Minnesota and Vermont, require nurses to stop and help in an emergency.
It is important for you to understand public health laws. Under the health code, state legislatures enact statutes that describe the reporting laws for communicable diseases, as well as specify necessary school immunizations and mandate other measures that promote health and reduce health risks in communities. The CDC and OSHA provide guidelines on a national level for safe and healthy communities and work environments.
The Uniform Determination Death Act of 1980 states that health care providers can use either the cardiopulmonary definition or the whole brain definition to determine death. The cardiopulmonary standard requires irreversible cessation of circulatory and respiratory functions. The whole brain standard requires irreversible cessation of all function of the entire brain, including the brain stem. These two definitions facilitate the recovery of organs for transplantation.
The Oregon Death with Dignity Act (1994) was the first statute that permitted physician-assisted suicide. The statute stipulates that competent yet terminal clients could make an oral or written request for medication to end their life in a human and dignified manner. The definition of a terminal disease is an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within 6 months.

5. Civil and Common Law Issues in Nursing Practice
Torts
Intentional:
Assault, battery, false imprisonment
Quasi-intentional:
Invasion of privacy, malice, slander, libel
Unintentional:
Negligence, malpractice
A tort is a civil wrong made against a person or property.
Intentional torts are willful acts that violate another’s rights. These include assault, battery, and false imprisonment. An assault may be actual or it may come from a threatened action, such as giving a person an injection or threatening to restrain a client who has refused a procedure. Battery is intentional touching without consent. False imprisonment is a tort, an example of which is restraining a client without justification.
Quasi-intentional torts are acts where intent is lacking but volitional action and direct causations occur. The tort of invasion of privacy protects clients’ rights to be free from unwanted intrusion into their affairs. Defamation of character comes under the categories of malice, slander, and libel. Malice means that the person publishing the information knows it is false and publishes it anyway or publishes it with reckless disregard for the truth. Slander occurs when one makes a false statement. Libel is written defamation of character.
Unintentional torts consist of negligence and malpractice. Negligence is conduct that falls below the standard of care. Malpractice is one type of negligence and is often referred to as professional negligence. When nursing care falls below the standard of care, nursing malpractice results. Box 23-2 lists common negligent acts.

6. Consent
A signed form required for all routine treatment, hazardous procedures, and some other treatments
Provisions are made for deaf, illiterate, or foreign language clients
Box 23-2 presents statutory guidelines for legal consent for medical treatment.
Informed consent is a person’s agreement to allow something to happen, such as surgery or an invasive diagnostic procedure, based on full disclosure of risks, benefits, alternatives, and consequences of refusal.

7. Abortion Issues 1973 Roe v. Wade
U.S. Supreme Court ruled that there is a fundamental right to privacy, which includes a woman’s right to have an abortion.
1989 Webster v. Reproductive Health Services
Some states require viability tests if the fetus is more than 28 weeks’ gestational age.
The issue of abortion can cause consternation for many nurses.
The court ruled that during the first trimester a woman could end her pregnancy without state regulation because the risk of natural mortality from abortion is less than with normal childbirth. During the second trimester, the state has an interest in protecting maternal health and the state enforces regulations regarding the person performing the abortion and the abortion facility. By the third trimester, when the fetus becomes viable, the state’s interest is to protect the fetus and thus the state prohibits abortion except when necessary to save the mother.

8. Nursing Students
You are liable if your actions cause harm to clients, as is your instructor, hospital, and college/university.
You are expected to perform as a professional when rendering care.
You must separate your student nurse role from your work as a CNA.
You must only use skills and perform tasks for which you have been instructed and checked off to perform.
You must not perform tasks you would do when working as a nursing assistant.

9. Malpractice Insurance
A contract between the nurse and the insurance company
Provides a defense when a nurse is in a lawsuit involving negligence or malpractice insurance
Nurses covered by institution’s insurance while working
It is important to know that the hospital policy does not cover a nurse when neighbors or friends seek a nurse to volunteer.
Nursing faculty should inform students regarding the university/college’s policy for malpractice insurance.

10. Abandonment and Assignment Issues
Short staffing:
Legal problems occur if there are inadequate nurses to provide care.
Floating:
Based on census load and client acuities
Physician’s orders:
Nurses follow orders unless they believe an order is in error or harmful.
In 2004 California became the first state to adopt legislation mandating a fixed nurse-to-client ratio.
Floating can cause legal problems for nurses, especially if they are not qualified or trained to work with a specific client cohort. When nurses float, they need to ask for an orientation to the unit.
Physicians are responsible for directing medical care. Nurses need to assess all orders. If they are erroneous or harmful, they need to seek further clarification from the physician if necessary. Physicians are responsible for writing all orders. Nurses are responsible for transcribing orders correctly. If a verbal order is written, it must be signed by the physician in 24 hours. One of the Joint Commission’s National Patient Safety Goals directs nurses to verify the complete order or test result by having the person receiving the information record and read back the complete order or test result.

11. Risk Management
A system of ensuring appropriate nursing care that attempts to identify potential hazards and eliminate them before harm occurs
Steps involved:
Identify possible risks.
Analyze risks.
Act to reduce risks.
Evaluate steps taken.
One tool used in risk management is the incident report or occurrence report.
Occurrence reporting provides a database for further investigation in an attempt to determine deviations from standards of care and corrective measures needed to prevent recurrence, as well as to alert risk management to a potential claim situation. Risk management requires good documentation. The nurse’s documentation is oftentimes the evidence of care a client received and serves as proof that the nurse acted reasonably and safely.