Legal and Legislative Issues

types of law

• criminal law

• civil law

• administrative law

civil cases

• 1 individual sues another monetarily to compensate for a perceived loss

• burden of proof required to be found guilty is a preponderance of evidence

types of negligence

• ordinary negligence

• professional negligence (malpractice)

ordinary negligence

failure to exercise reasonable care, which results in harm to another person

professional negligence (malpractice)

when a professional fails to provide a service with the skill and care expected of a competent professional in their field, resulting in harm or financial loss to the client

reasons nurses risk increased legal liability

• more authority and independence in decision making

• increased legal accountability for decision making

• doing more things that used to be in the realm of medical practice

• making more money

• more are carrying malpractice insurance

standard of care

• minimum level of expertise that may be delivered to a patient

• conduct of a reasonably prudent nurse in similar circumstances

malpractice (professional negligence)

failure of a person with professional training to act in a reasonable/prudent manner - basically dont rise to expected standards

5 components necessary for professional negligence

• standard of care is in place

• failure to meet the standard of care

• foreseeability of harm must exist

• must be a provable correlation between care/harm

• actual patient injury must occur

• being ignorant is not an excuse but not having all the info in a situation may impede ones ability to foresee harm

under ordinary circumstances

question whether a nurse acted with a reasonable and prudent care is determined by testimony of expert nursing witnesses

element of liability: duty to use due care (defined by standard of care)

the care that should be given under circumstances reflects what a reasonably prudent nurse would have done

element of liability: failure to meet standards of care (breach of duty)

care that should have been given was not

element of liability: foreseeability of harm

nurse must have reasonable access to info about whether the possibility of harm exists

element of liability: direct relationship between a failure to meet standard of care (breach) and injury can be proved

patient is harmed bc proper care is not given

element of liability: injury

actual harm results to the patient

other legal terms

• stare decisis

• liability

• tort

• respondent superior

• vicarious liability

• product liability

stare decisis

court follows principles, rules, and standards of previous decisions

pitfalls

include potential medical errors like medication mistakes, documentation errors, and falls, as well as professional and emotional challenges such as poor communication, burnout from long hours and high patient ratios, workplace violence, and the emotional toll of patient death

respondeat superior

• master is responsible for acts of his servants

• applied when employed by state/federal gov

• shares the blame between employee and employer

res ipsa loquitur

• “thing speaks for itself”

• harm is obviously the result of negligence

incident reports/adverse event forms

• records of unusual/unexpected incidents that occur during a clients treatment

• generally considered confidential communications and cannot be subpoenaed by clients/used as evidence in lawsuits in most states

intentional torts

• assault and battery

• false imprisonment

• invasion of privacy

• defamation of character/slander

assault

conduct that makes person fearful and produces a reasonable apprehension of harm

battery

intentional wrongful physical contact with a person that entails an injury/offensive touching

frequent causes of claims against nurses

• inadequate charting

• inadequate communication with physician/supervisor about changes in pt conditions

• leaving potentially harmful items within patient reach

• unattended patient falls

• inaccurate counting of operative instruments and sponges

• misidentifying patients for meds, surgeries, etc

types of consent

• informed consent

• implied consent

• express consent

informed consent

obtained only after the pt receives full disclosure of all pertinent information, procedure, or treatment and only if patient indicates they understand the potential benefits/risk related to it

guidlines for informed consent

• person giving consent must fully comprehend

  • procedure to be performed

  • risk involved

  • expected/desired outcomes

  • expected complications/side effects that may occur as a result of treatment

  • alternative treatments are available

• consent may be given by:

  • competent adult

  • legal guardian

  • emancipated/married minor

  • parent of a minor child

  • court order

HIPPA

protects the privacy of health information and improves portability and continuity of health insurance coverage

patient self determination act (PSDA)

• required health care orgs receive federal funding to provide education for staff and patients on issues concerning treatment and end of life issues

• includes use of advance directives, written instructions regarding end of life care

• likely includes durable power of attorney for healthcare HPOA

the board of registered nursing protects citizens by…

• RN licensing

• monitoring of RN educational standards

• RN continuing education

• disciplining RN’s

nurse practice act (NPA)

• legal instrument that defines what the functions of nursing shall be and sets standards of licensure

• grants nurse authority to carry out those functions

• each state has its own NPA but all must be consistent with provisions/statues

michigan nurses CE hours

• required to earn 25 hours of continuing education within 2 year period preceding the date renewal

• at least 2 of these hours must be in pain/pain symptom management

• no more than 12 credit hours may be earned during a 24 hour period

good samaritan immunity

• nurse is not liable for injury that occurs as a result of emergency treatment 

  • care is provided at the scene of an emergency

  • care is not grossly negligent

  • health care worker does not exceed their training/scope of practice in performing emergency services

legal responsibilities of the nurse manager

• reporting dangerous understaffing

• checking staff credentials and qualifications

• carrying out appropriate discipline

potential liabilities as a nurse manager

• failure to perform supervisory duties

• failure to properly delegate

• obligation to train, orient, evaluate

• provide staff with policies/procedures and ascertain theyre performing in accordance

• responsibility to facilitate and enable an underperforming staff member and unit to achieve goal of providing safe/efficient care

common causes of professional nursing license suspension/revocation

• professional negligence

• practicing medicine/nursing without a license

• obtaining a nursing license by fraud/allowing others to use your license

• felony conviction for any offense substantially related to the function/duties of an RN

• participating professionally in abortions

• not reporting substandard medical/nursing care

• providing care while under influence of drugs/alc

• giving narcotic drugs w/o order

• falsely identifying as NP

how to reduce risk of malpractice claims

• practice within scope of practice

• observe agency policies/procedures

• model practice after established standards by using EBP

• stay up to date

• always put patients rights/welfare first

• be aware of relevant law

• practice within area of individual competence

• attend CE

• keep a written log of everything