Board Of Nursing and Legal issues

Statutory Law

Most common type of law affecting nurse

Example: Nurse practice acts (defines the scope of nursing practice and expanded nursing roles)

constituitonal law

refers to rights privileges and responsibilities rom U.S constitution including Bill Of Right

Regulatory OR administrative Law

Rules and regulations passed by state BON (required to report incompetent or unethical nursing conduct to BON)

Common Law

decisions made by judges in court cases

Example: patient right to refuse treatment, negligence and malpractice

Criminal law (statutory)

occur when you have done something considered harmful to society as a whole (misdemeanor or felony offense)

Civil law (statutory)

concern private interests and rights between individuals involved in cases (some times can be both criminal and civil consequences)

Torts (civil)

Civil actions plaintiff files lawsuit for compensation for damages suffered from perceived wrong

intentional torts

deliberate acts intended to cause harm

"angle nurse"

Unintentional torts

incidents or accidents

Assault (intentional tort)

attempt or threat to touch another person unjustifiably

Battery (intentional tort)

willful touching that may or may not cause harm

False imprisonment (intentional tort)

unjustifiable detention of a person without legal warrant to confine the person

-restraints (nursing)

invasion of privacy (intentional tort)

breach of confidentiality

(HIPPA)

defamation (intentional tort)

communication that is false or made with careless disregard for the truth and results in injury to the persons reputation

Libel (defamation intentional tort)

defamation by print writing or pictures

Slander (defamation intentional tort)

defamation by the spoken word

Negligence (unintentional tort)

misconduct or practice that is below the standard expected of an ordinary reasonable and prudent person

malpractice (unintentional tort)

professional negligence

categories of negligence

-failure to follow standards of care

-failure to use equipment in a responsible manner

-failure to communicate

-failure to document

-failure to assess and monitor

-failure to act as a client advocate

Nursing Malpractice

Most common unintentional tort action brought against nurses is a malpractice claim.

Nurses need to know basic elements that must be proved before malpractice can occur.

There have been 6208 cases in which malpractice payments were made on behalf of a specifically named nurse

Basic elements of malpractice

You must have a duty (must be a professional nurse-pt relationship)

You must have breached that duty (you must have fallen below the standard of care for a nurse)

Your breach of duty must have been a foreseeable cause of the pt's injury.

Damages or injury must have occurred.

Good samaritain

gives immunity for any malpractice to those attempting to give assistance at scene of accidents

Nurse practice act

law established to regulate nursing practice

what nurses can do- Fairly general

What prohibited- more specific

Expert witness

common way to establish duty owed

testifies what a reasonable nurse would do in similar circumstances

Established policies and prodcedures

crucial piece of evidence for establishing standard of care

resources for questions regarding certain procedure

Accreditation and facility licensing standards

evidence of standard of care for nurses wokring in accredited facilities

Personal liability

each individual accountable for own actions

you are held to professional standard of care

Physician and other independent practitioner liability

NOT ultimately responsible for everything that happens to patient

nurses follow orders but not those unsafe for patients or out of scope of practice (Ex PA under doctor not responsible)

Supervisor liability

-Task properly assigned to competent worker

-Adequate supervision provided

-Nurse provided appropriate follow up and evaluation of delegated task (do not delegate wrongly)

Institutional Liability

carry insurance

policies or lack of common claim in court

Student liability

responsible for own actions

held to standard of RN for performed tasks

don't accept assignments beyond preparation

communicate frequently with instructors

Evidence that can help in a lawsuit

Medical record (1/4 cases decided on whats recorded) if not documented then you did not do it documentation will protect you

Integrity accuracy and completeness makes claim defensible or indefensible

Good documentation-best defensive action

Document extensively accurately and very factually

What happens when I Go to court?

95% of personal injury lawsuits are dismissed or settled out of court

Discovery process

Interrogatories—written questions

Deposition—recorded oral questioning

Interrogatories

—written questions

Deposition

—recorded oral questioning

at deposition

look act professional

be clear accurate and very concise

give no opinions stick to facts

speak slowly use well modulated tone

ask for questions to be repeated if you don't understand or remember

correct any misstatements

don't become angry or give emotional responses

avoid "always, never, maybe, i think or possibly statements"

do not answer more than is asked

1903 first nursing practice act

- north Carolina

- did not define nursing

- people could practice nursing, but couldn't use title RN

1938 new your passed first mandatory NPA

required applicants to pass licensure exam

hand to pass exam use RN (required exam)

1970

all states had passed mandated licensure of nursing

First nursing school

John Sealy Hospital School of Nursing - Galveston, Texas in 1890

Graduate nurses association of Texas

Concerned nurses who wanted control of nursing education to be by nurses

Texas nursing practice act

first passed texas legislature in 1907

Nursing Practice act

generally amended every two years during regular session of Texas legislature

Mission of the board of nursing

protect and promote the welfare of the people of texas

ensure that licensed nurses are competent to practice safely

Difference Between BON and Nursing associations

BON is to protect the welfare of the public

nursing associations generally promote welfare of nursing and its practice

BON has authority over all nurses licensed in state

nursing association have voluntary membership

Role of legislature and BON

legislature passed changes to NPA

BON interprets the NPA and develops rules and regulations to implement the NPA

Major provisions of NPA

- Definition of Nursing

- Establishes the BON and sets administrative functions and process

- Requirements for licensure and renewal of licensure

- Whistleblower protection for nurses

Texas board of nursing membership

6 members from nursing practice:

2 RN's

1 APN

3 LVN's

* 3 members from nursing education:

Baccalaureate

Associate

LVN

* 4 members who are consumers AKA the public.

Functions of the BON

- Establishes standards of practice & regulate practice

- Interprets NPA & Rules & Regulations to nurses and the public

- Investigates possible violations of NPA

- Disciplines violators through legal action

- License qualified applicants to practice nursing - RN, LVN, APN

- Grants licensure to nurses from other states

- Recommends to legislature appropriate changes in NPA

- Establishes standards for nursing education and approves nursing education programs

- Provides consultation to nursing education programs

- Provides advice and counsel to faculty, staff of health agencies utilizing nurses, and to nurses to improve professional service

Licensure for the APN/RN/LVN

-To practice nursing, you MUST have license

-May not use the titles RN, LVN, APN if you have not met the requirements of the BON and been granted a license to practice

-May not wear jewelry or other insignias with RN or LVN on it unless you are licensed

Licensure with history of criminal convictions

ABSOLUTE BARS TO LICENSURE:

-Murder

-Kidnapping

-Sexual Assault

-Aiding in Suicide

-Robbery

Major provisions of NPA

Nurses must report other nurses:

-who violate NPA or BON Rule and contribute to death or serious injury of a patient

-Whose practice is impaired by chemical dependency or drug/alcohol abuse

-Whose conduct constitutes abuse, exploitation, fraud, or a violation of professional boundaries

-Who lack knowledge, skill, judgement, or conscientiousness & could result in harm to a patient

Nurse compact

- Mutual recognition model of licensure

- Allows you to be licensed in one state and practice in other compact states

- States must enact legislation to authorize Nurse License Compact

- Nurse must reside in state

Mandatory continuing education

RN's are required to have 20 hours of continuing education every 2 years

RN will be asked on license renewal if you have done required CE

BON randomly audits nurses for verification

Possible Disciplinary Actions of BON

- Denial of application for a license

- Issue a written warning

- Administer a public reprimand

- Limitation on the license that might limit practice or specific activities or stipulate periodic BON review

- Suspension of the a license

- Assessment of a fine

- Require counseling, continuing education, practice be under supervision of another RN, or public service

Standards of practice

-guide professional behavior of nurses

-used as standard in issues related to practice and malpractice

nurses must know and conform to:

-NPA

-Rules & Regulations

-Federal, state, local laws affecting their area of practice

unprofessional conduct

-listed in Rules & Regulations relating to Nurse Education, Licensure & Practice

-Intended to protect clients and the public from incompetent, unethical, or illegal conduct of licensees

-identification of unprofessional or dishonorable behaviors

peer review for nurses

-evaluation of quality of care

-two kinds of peer review:

-Incident-based

-Safe Harbor

-Organizations that employee more than 20 nurses must have peer review plan

-All proceedings are confidential

Safe harbor

A process that protects a nurse from employer retaliation and licensure sanction when a nurse makes a good faith request for peer review of an assignment or conduct the nurse is requested to perform and that the nurse believes could result in a violation of the NPA or Board rules.

Good faith

Taking action supported by a reasonable factual or legal basis

The process

nurse's request for safe harbor must be made in writing before the assignment is accepted by the nurse

if you don't have time immediately to fill out the form you can submit a quick request for safe harbor

What is nursing incident based peer review?

- Evaluate the nursing services of a nurse

- Evaluate the qualifications of a nurse

- Evaluate the quality of patient care by a nurse

- Evaluate complaints concerning a nurse or nursing care

- Conclude a recommendation regarding a complaint

What is the minimum due process for nuses?

excluded from committee, including attendance at the peer review hearing, any persons with administrative authority for personnel decisions directly relating to the nurse

required is a description of the event to be evaluated of the incident circumstances and conduct specific date time location and individuals involved

Provide the nurse the opportunity to

-submit a written statement regarding the event under review

-call witness and question

-be present when testimony or evidence is being presented

-ask questions of the committee and respond to questions of the committee

-make an opening and closing statement

-an incident based peer review committee decision cannot be overruled changed or dismissed

-a nurse has the right to be accompanied by a nurse peer or an attorney

Whistle blower protections

What is it? protections available to a nurse that prohibit retaliatory action by employer or other entity

protections: refusal to engage in conduct relating to patient care that would violate NPA or Board making a lawful report of unsafe practitioners/unsafe patient care practices or conditions

Informed consent

communication process between provider and patient of explaining procedures and treatments

risks benefits alternatives must be disclosed

results in patient agreeing to procedures or treatments

allow patient opportunity to ask and have answered questions about procedure follow up complications

communication must be in language that patient can understand

provider must be certain that patient understands what has been said and that patient is willing to accept risk of procedure

What does a nurse need to do when having consent signed?

Authenticity-The signature belongs to the patient

Voluntaries- The patient was not forced to sign

Capacity- The patient understood the explanation of the procedure risks and alternatives read the consent form understood consent form and agreed to proposed treatment

Capacity

The patient understood the explanation of the procedure risks and alternatives read the consent form understood consent form and agreed to proposed treatment

Voluntaries

The patient was not forced to sign

Authenticity

-The signature belongs to the patient

Patient/Nurse situation

a physician writes "I have informed patient of risk of surgery expected outcomes and alternative treatment. Please get consent form signed"

A surgeon asks the nurse to get an informed consent signed by a patient needing brain surgery for a tumor. The condition is causing mental confusion for the patient

The patient should not sign the consent form

The nurse must determine if the spouse has the legal right to sign the form

--POA?

--Has court determined legal gaurdian?

If so the nurse should determine if the spouse is adequately informed

If informed have consent signed

DNR

all 50 states have enacted advance directive legislation

Texas Advanced directives act: Known as Texas futile care law (limit continuation)

advance directive

legal document that allows person to make decision about end of life care

Directs physician about preferences at end of life

---treatments to be discontinued/continued

No advance directive

treatment decision can be made by physician and one of these in order listed

1)patient spouse

2)the patients reasonably available adult children

3)the patient parents

4)the patients nearest living relative

Guardian and family member not present then what?

Physician and another physican who is not involved in the treatment of patient or who is on the hopsital ethics committee can make decision

Advance directions 2 signatures and at least one witness can't be someone who

is related to you by blood or marriage

has a claim on your estate

has been designated by you to make a health care treatment decision on you behalf

your attending physician

is employed by your attending physician

is an employee of a health care facility in which you reside if the employee is involved in providing direct patient care to you

Advance directives is in effect until it is...

revoked

can be revoked at any time

Medical durable power of attorney

Grants another person the right to act as legal representative for you to make decision related to medical care

Discontinuing life sustaining treatment

physician determines

given 10 days to find another hospital to take

ethics committee review

informed 48 hours before case

following agreement of ethics committee that life sustaining treatment is inappropriate after 10 day can discontinue

Health Insurance Portability and accountability Act HIPPA

standard for electronic health care transactions

identifiers for providers health plans and employers

security and privacy of health data

Specific protections of HIPPA

limits the use of pre existing condtion exclusions

prohibits health plans from discriminating by denying coverage or changing extra based on past or present poor health

guarantees small employers and people who lose job related coverage the right to purchase health insurance

HIPPA compliance and nursing practice

voice levels should be lowered to minimize disclosure of information

nurses must stay current with HIPPA regulations

Occupational safety and health administration OSHA

assure safe and healthful working conditions

establish standards of safe practice

research for information educations and training in the field of occupational safety

OSHA mission

to prevent work related injuries illness and deaths

Health care workers injuries

have more workplace injuries than any other industry

healthcare workers outnumber construction workers 2-1

20 times more OSHA inspections of construction sits than healthcare sites

7 billion on back related injuries each year

categories of potential hazards

Biological

chemical

Biological

infections/biological agents that may be transmitted by contact with infected patients or contaminated secretions/fluids (MRSA, Hep B, VRE, Staph)

Chemical

Chemicals that are potentially toxic or irritating to the body system including medications solution and gases

Psychological(potential hazard)

workplace factors that create or potentiate stress emotional strain and or other interpersonal problems (workplace violence, inadequate staffing, increase patient acuity)

Physical (potential hazard)

agents within the work environment that can cause tissue trauma

Example of OSHA requirement

PPE

blood born pathogen safety

Airborne pathogen

Ergonimics

procedures in place for back safety

reproductive hazards

safety when working around xrays

TJC joitn comission

Non profit org founded to evalutate and accredit hospitals

Mission: to continuously improve health care for the public in collaboration with other stake holders by evaluating healht care organizations and inspiring them to excel in providingsafe and effective care of the highest quality and value

CMS (center for medicare and Medicaid service)

fund hospitals and other providers who deliver care to MandM patients adminters

-medicare funding

-medicaid funding

-state children healht insurance program

-HIPPA

CMS will not reimburse

pressure ulcers

preventable fractures dislocations and burns

CAUTI

vascular catheter associated infections

certain surgical site infections

objects mistakenly left inside surgical patients

air emboli

blood incapability reactions