1. Chapter 5 Legal and Ethical Issues All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.

2. Objectives  Examine nurse practice acts  Examine various legal concepts  Analyze key aspects of employment law  Analyze selected ethical principles and their application  Analyze decision making when legal and ethical issues overlap All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.2

3. Nurse Practice Acts  Single most important piece of legislation for nurses  Define categories of nurses  Set educational and examination requirements  Establishes a state board of nursing, which develops and implements rules and regulations All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.3

4. Multistate Licensure  RNs may be licensed in one state and practice in another state within the compact  The state where the patient or client resides is the state that regulates the nurse’s practice. All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.4

5. Negligence and Malpractice  Negligence equates with carelessness  Malpractice or professional negligence concerns professional actions  Both concern actions taken as well as actions omitted  Both are nonintentional All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.5

6. Elements of Malpractice  Duty owed the patient  Breach of this duty owed the patient  Forseeability  Causation  Injury  Damages All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.6

7. Duty Owed the Patient  Established through a valid employment contract with the healthcare facility  Based on standards of care or the minimum requirement for acceptable practice All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.7

8. Breach of Duty Owed the Patient  Synonymous with failing to uphold the standard of care owed the patient  Generally shown at court through the testimony of expert witnesses All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.8

9. Foreseeability  Concept that certain events may reasonably be expected to cause specific results  Based on education and prior knowledge  Common areas of potential liability include medication errors, patient falls, and failure to enact physician orders All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.9

10. Causation and Injury  What the nurse did or failed to do must directly cause the patient's subsequent harm  The harm or injury that occurs must be physical  Pain and suffering are allowable harms when they accompany a physical injury All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.10

11. Damages  The patient must be able to prove injury so that damages may be assessed  Purpose of damages is to compensate the injured party for the harm that was done  Thus immediate and future medical costs can be assessed All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.11

12. Preventing Malpractice Lawsuits  Nurse managers should:  Ensure that employees meet or exceed standards of care  Review standards periodically so that standards can be revised  Review randomly selected patient records for evidence that standards are being met  Perform scheduled evaluations of staff All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.12

13. Liability  Personal liability: individual responsibility and accountability for actions or omissions  Vicarious liability: employer’s accountability for the negligence of employees  Corporate liability: institution responsibility and accountability for maintaining an environment that ensures quality healthcare delivery for consumers All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.13

14. Malpractice Concerns for Nurse Managers  These include:  Assignment, delegation, and supervision  Duty to orient, educate, and evaluate  Failure to warn  Staffing issues  Protective and reporting laws All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.14

15. Assignment, Delegation, and Supervision  Supervision is the active process of directing, guiding, and influencing the outcome of an individual’s performance of an activity.  Delegation is the transfer of responsibility, but not of accountability, for the performance of an activity.  Assignment is the transfer of the responsibility and the accountability for the performance of an activity. All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.15

16. Duty to Orient, Educate, and Evaluate  Nurse mangers are responsible for the daily evaluation of safe and competent nursing care delivery  Key is reasonableness and should be determined on a case-by-case basis All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.16

17. Failure to Warn  This involves warning subsequent potential employers of staff incompetencies or impairment.  Provided by using qualified privilege, which is communication made in good faith between persons or entities with a need to know All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.17

18. Staffing Issues  Three areas to consider:  Maintaining adequate numbers of staff  Floating staff from unit to unit  Using temporary staff to augment current staff numbers All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.18

19. Maintaining Adequate Staff  Accreditation standards mandate adequate staffing with qualified personnel  Applies to both numbers of staff and staffing mix  Adequate staffing is based on:  Numbers of patients  Care acuity scores  Numbers and classification of nursing staff All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.19

20. Guidelines  Nurse managers in times of inadequate staffing should:  Alert agency administration of concerns  Reassign staff as appropriate  Approve overtime for adequate coverage  Restrict new admissions All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.20

21. Floating Staff to Alternate Units  One means to ensure that every area of the facility is adequately staffed  Consider staff expertise, patient care delivery systems, and patient care requirements before deciding which staff to float  Cross-train staff during times of adequate staffing All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.21

22. Agency or Temporary Staff  Has become more important because of the principle of apparent agency.  Patients can infer that the agency staff are working directly for the institution. Thus it is imperative that the agency or temporary nurse can deliver safe and competent nursing care. All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.22

23. Protective and Reporting Laws  Ensure the safety or rights of specific classes of individuals  Examples include the mandatory reporting for suspected child and elder abuse and reporting of certain categories of diseases or injuries  Includes the mandatory reporting of incompetent practitioners All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.23

24. Informed Consent  Authorization by the patient or the patient’s legal representative to do something to the patient  Based on legal capacity, voluntary action, and comprehension All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.24

25. Selected Informed Consent Issues  Research issues are impacted by the federally enacted HIPAA laws  Research issues vary in regard to de- identified information and protected health information  Issues also arise in relationship to a patient's health literacy All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.25

26. Privacy and Confidentiality  Privacy: the patient’s right to protection against unreasonable interference with reputation or right to be left alone  Confidentiality: right to privacy of the medical record All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.26

27. Incident Reports  Serve to alert the facility to risk management and quality assurance issues  May often be viewed by all parties to a lawsuit  Include pertinent patient observations and care given the patient, avoiding any language of liability All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.27

28. Employment Laws  Nurse managers need to be familiar with several of these federal laws, including  Equal Employment Opportunity Laws  Americans with Disabilities Act of 1990  Occupational Health and Safety Laws  Family and Medical Leave Act of 1993  Whistleblower laws All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.28

29. Equal Employment Opportunity Laws  Prohibit discrimination based on gender, age, race, religion, handicap, pregnancy, and national origin  Title VII of the amended Civil Rights Act of 1964 governs these equal employment opportunities  Amended Civil Rights Act of 1991 governs sexual harassment in the workplace All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.29

30. Americans with Disabilities Act of 1990  Provides protection to persons with disabilities  Disability is defined as:  Physical or mental impairment that substantially limits one or more of the major life activities of an individual  The fact that there is a record of such impairment to the individual is regarded as establishing that the individual has the impairment. All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.30

31. Occupational Safety and Health Act  Ensures that healthful and safe working conditions exist in the workplace setting  Newer aspects that the rules address include:  Violence and bullying in the workplace  Safe patient handling  Ergonomic issues common in the healthcare industry All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.31

32. Family and Medical Leave Act of 1993  Balances the demands of the workplace with the demands of the family, allowing employed individuals to take leaves for medical reasons  Includes care for:  the birth or adoption of a child  care of a spouse, child, or parent with serious health problems  healthcare needs of the employed individual himself or herself All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.32

33. Whistleblower Laws  Enacted to protect healthcare professionals who are terminated in retaliation for:  Speaking out against unsafe practices  Reporting violations of federal laws  Filing lawsuits against employers  Best known case is the Winkler County Nurses Lawsuit All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.33

34. Ethics  Concern the individual within society and the “why” of actions as opposed to what was done or not done  Provide no right or wrong answers; rather there are better or less desirable actions  Often encountered in conjunction with legal concerns  Example: Theresa Schiavo case All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.34

35. Ethical Principles  Autonomy: personal freedom  Beneficence: duty to do good  Nonmalefience: do no harm  Veracity: truth telling  Justice: fairness  Paternalism: assisting with decision making  Fidelity: keeping one’s promises  Respect for others: dignity of the person All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.35

36. Professional Codes of Ethics  Formal statements that articulate values and beliefs of a given profession  Serve the following functions:  Inform the public of the minimum standards of conduct for members of the profession  Outline ethical considerations of the profession  Provide guidelines for ethical practice by members of the profession  Guide the discipline’s self-regulation All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.36

37. Moral Distress  Occurs when faced with situations in which two ethical principles compete  Experienced in clinical settings when nurses cannot provide what they perceive is the best care or outcome for a given patient  Examples include disagreements regarding patient interventions and limited patient care resources All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.37

38. Ethics Committees  Provide long- and short-term assistance by:  Providing structure and guidelines for potential problems  Serving as open forums for discussion  Functioning as patient advocates by placing the patient at the core of the committee discussions All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.38

39. Future Ethical Issues  Issues to be considered:  Development of nurses as leaders in healthcare delivery  Rights of patients to refuse healthcare interventions  Ability to be patient advocates in today’s healthcare structure  Others? All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.39

40. Tips for Incorporating Legal and Ethical Issues  In conclusion,  Read and comply with provisions of the state nurse practice act  Apply legal concepts in all healthcare settings  Understand and abide by state and federal employment laws  Implement the provisions of the Code of Ethics  If legal and ethical issues are contradictory, legal aspects take precedence. All items and derived items © 2015, 2011 by Mosby, Inc., an imprint of Elsevier Inc.40