1. Delmar Learning Copyright © 2003 Delmar Learning, a Thomson Learning company The Nurse and Criminal Law

2. Delmar Learning Copyright © 2003 Delmar Learning, a Thomson Learning company Legal Aspects of Patient Care

3. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company3 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.

4. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company4 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.

5. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company5 Types of Law  Civil law: law that affects the relationship between individuals  Public law: law that specifies the relationship between citizens and the state

6. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company6 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

7. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company7 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

8. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company8 Public Law  Public law consists of constitutional law, criminal law, and administrative law and defines a citizen’s relationship with government.

9. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company9 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.

10. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company10 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.

11. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company11 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.

12. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company12 Administrative Law  Administrative law deals with protection of the rights of citizens.  Both federal and state governments have administrative laws that affect nursing practice.

13. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company13 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

14. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company14 Civil Law  Civil law governs how individuals relate to each other in everyday matters.

15. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company15 Contract Law  Contract law regulates certain transactions between individuals and/or legal entities such as businesses, e.g., employment contracts.

16. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company16 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).

17. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company17 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.

18. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company18 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

19. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company19 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

20. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company20 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.)

21. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company21 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.

22. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company22 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.

23. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company23 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.

24. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company24 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.

25. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company25 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.

26. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company26 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

27. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company27 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.

28. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company28 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.

29. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company29 Malpractice/Professional Liability Insurance  Nurses may need to carry their own malpractice insurance.  They may not be covered under the employer’s liability insurance.

30. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company30 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.

31. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company31 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.

32. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company32 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.

33. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company33 Introduction  Importance of Law to the Nurse Nurses have more responsibility Increased numbers of Advanced Practice Nurses Law is there to assist in the decision-making process involved in nursing practice

34. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company34 Law is there for the protection of nursing practice Law is there for the identification of the risk of liability

35. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company35  Effects of Law on Nursing Practice Legal Basis for Nursing Practice--Licensure Guidelines for Care –Who is the Client--Age of Consent –Emergency--Good Samaritan Act –Abused Clients--Criminal Laws –Use of Restraints –Dying Patient’s wishes--Advanced Directives

36. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company36 Guidelines for Care (Continued) –Confidentiality--Invasion of Privacy –Documentation –Incident Reports Role of Nurse as Witness –Witness in Criminal Cases –Expert Witness

37. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company37 Negligence & Malpractice Criminal Activity –Assault –Battery –Diversion of Narcotics

38. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company38  Contemporary Legislative Issues Prescriptive Authority Delegation to Unlicensed Personnel Unsafe Staffing in the Workplace  Contemporary Roles for Nurses

39. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company39 General Legal Aspects  Definition of Law Comes from the word which means “that which is laid down or fixed” Law is a rule or standard of human conduct established & enforced by authority, society, or custom

40. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company40 Law is established for the welfare of society Law is not stagnant--changes when society’s directs a change

41. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company41 Public Law  One type of law is Public Law which deals with an individual’s relationship to the state  Sources include Constitutional, Administrative & Criminal  These Sources occur on both the Federal & State level

42. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company42  Constitutional Law Set of basic laws that defines & limits the powers of government Nurse maintains rights as an individual Constitutional Rights, Civil Rights, State Constitution

43. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company43  Administrative Law Developed by groups who are appointed to governmental administrative agencies Food, Drug & Cosmetic Act; Social Security Act; Nurse Practice Act

44. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company44  Criminal Law Acts or offences against the welfare or safety of the public Controlled Substance Act; Criminal Codes (See Page 230)

45. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company45 Civil Law  The second type of law is Civil Law which deals with crimes against a person or persons in such legal matters as: Contracts Torts Protective Reporting Law

46. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company46  Contract Law is the enforcement of agreements among private individuals  Elements of: Promise Mutual Understanding Compensation

47. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company47  Employment Contracts is an example of contract law under civil law

48. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company48  Tort Law is the enforcement of duties & rights among independent of contractual agreements. It is a civil wrong committed on a person or property stemming from either a direct invasion of some legal right of the person, infraction of some public duty, or the violation of some private obligation by which damages accrue to the person.

49. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company49  Examples of Tort Law include: Negligence & Malpractice Assault & Battery False Imprisonment Restraints or Seclusion Invasion of Privacy Defamation Fraud

50. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company50 Negligence & Malpractice  Terms Liability is an obligation one has incurred or might incur thru any act or failure to act Malpractice refers to the behavior of a professional person’s wrongful conduct, improper discharge of professional duties, or failure to meet the standards of acceptable care which result in harm to another person

51. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company51  Terms Negligence(breach of duty) is the failure of an individual to provide care that a reasonable person would ordinarily use in a similar circumstance Defendant is the person being sued Plaintiff is the party who initiates the lawsuit that seeks damages

52. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company52  Proof of Liability depends on: Duty Breach of duty Injury Causation

53. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company53  Assault & Battery Assault is the intentional & unlawful offer to touch a person in an offensive, insulting or physically intimidating manner Battery is the touching of another person without the person’s consent

54. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company54  Protective/Reporting Laws are sometimes considered criminal laws based on state classification  Examples include: Americans with Disabilities Act Good Samaritan Act

55. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company55 Legal Basis for Nursing  Nurse Practice Act  Standards of Care

56. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company56 Legal Role of the Nurse  Provider of Service (p.234) Ensure that client receives competent, safe, & holistic care Render care by “standards of reasonable, prudent person” Supervise/evaluate that which has been delegated

57. Chapter 22Copyright © 2003 Delmar Learning, a Thomson Learning company57  Provider of Service (continued) Documentation of care Maintain clinical competency