Legal Issues In Nursing

Federal Laws Guiding Nursing Practice

  • Bill of Rights

    • Comprises the first 10 Amendments of the United States Constitution.

    • Represents federal law that clearly identifies the role of government in the lives of individuals.

    • Has direct legal implications for nursing practice and patient rights.

  • Health Insurance Portability and Accountability Act (HIPAA)

    • Passed by Congress in 1996.

    • Protects health insurance benefits for individuals who lose or change jobs.

    • Protects patients with preexisting medical conditions from coverage discrimination.

    • Protects privacy and health-related information across all healthcare settings.

    • Guarantees patient confidentiality.

  • Health Information Technology for Clinical Health (HITECH) Act

    • Mandates that patients must be notified of security breaches involving protected health information without unreasonable delay.

    • Mandatory notification timeline: no longer than 60 days after the discovery of the breach.

    • Establishes that willful neglect to comply with security standards can constitute substantial financial penalties.

  • Emergency Medical Treatment and Active Labor Act (EMTALA)

    • Enacted to prevent "patient dumping" (the practice of transferring uninsured or underinsured patients to public hospitals without stabilizing them).

    • Mandates that any individual seeking emergency medical treatment in an emergency room (ER) must be treated regardless of their ability to pay or insurance status.

    • ER healthcare staff are legally obligated to perform a medical screening examination to determine whether a medical emergency exists.

    • In an emergency medical condition or active labor, the hospital must treat and stabilize the patient prior to transferring or discharging.


Emergency Department Sign

  • Patient Self-Determination Act (PSDA)

    • Requires healthcare institutions to inform patients about their rights to make healthcare decisions and execute advance directives.

    • Living Will:

    • Requires the patient to be alert and oriented at the time of execution.

    • Specific written document giving directions regarding the person's wishes for life-prolonging treatments in end-of-life situations.

    • Durable Power of Attorney for Healthcare (DPOA):

    • Designates a surrogate decision maker (healthcare proxy) to make medical decisions if the patient becomes unable to do so.

    • Copies of Living Wills and DPOA documents must be officially placed in the patient's medical chart.

  • Americans with Disabilities Act (ADA)

    • Enacted in 1990.

    • Protects against discrimination for individuals with physical or mental disabilities.

    • Mandates that employers provide reasonable accommodations in the work setting.


Wheelchair representing mobility accommodations under ADA

State Laws Guiding Nursing Practice

  • Mandatory Reporting Laws

    • Legal requirements enforced by individual state statutes requiring healthcare workers to report specific public health and safety events.

    • Mandates reporting of specified communicable diseases to public health authorities.

    • Mandates reporting of suspected abuse and neglect (e.g., child, elder, or vulnerable adult abuse).

  • Good Samaritan Laws

    • Statutory protections designed to protect healthcare workers from legal liability when providing emergency care to individuals in need outside of the workplace setting.

    • Protects nurses rendering emergency aid in good faith without willful misconduct or gross negligence.

  • Nurse Practice Acts (NPA)

    • Statutory laws passed individually by each state's legislative body.

    • Formally defines the practice of nursing and establishes state authority.

    • Defines the legal scope of practice for nurses within that state.

    • Guides clinical nursing decisions and actions.

    • Outlines disciplinary actions for unacceptable nursing decisions or actions, which directly impact nursing licensure.

Standards of Practice and Clinical Guidelines

  • Standard of Practice and Standard of Care

    • Defined as what a reasonable and prudent nurse would do in each situation.

    • Derived from two distinct categories of standards:

    • Mandatory Standards: Statutory requirements derived from state Nurse Practice Acts.

    • Voluntary Standards: Organizational guidelines established by professional organizations, including:

      • The Joint Commission

      • American Nurses Association (ANA)

  • Institutional Guidelines and Ethical Codes

    • Institutional Policies and Procedures: Facility-specific rules and protocols guiding care delivery within a specific institution.

    • Nurses Code of Ethics:

    • Exemplified by documents such as the ANA Code of Ethics with Imperative Statements.

    • Is not a law, but describes established standards of ethical responsibility.

    • Patient Care Partnership:

    • Replaced the American Hospital Association's (AHA) Patient's Bill of Rights.

    • Informs patients about rights and expectations regarding their hospital stay.

    • ANA Bill of Rights for Nurses:

    • Establishes seven rights for nurses within the healthcare workplace.

    • Includes rights to fair compensation, a safe work environment, ethical practice settings, and control over clinical practice.

Criminal Law in Nursing Practice

  • Overview of Criminal Law

    • Federal or state government prosecutes offenses under criminal law.

    • Defined as an offense against society as a whole.

    • Penalties can lead to a fine, imprisonment, or death.

  • Classifications of Crimes

    • Misdemeanor:

    • Minor crime.

    • Example: Driving Under the Influence (DUI).

    • Felony:

    • Major crime punishable by severe penalties or imprisonment.

    • Example: Homicide.

Civil Law and Torts

  • Overview of Civil Law

    • Framework that allows for the resolution of disputes between private parties.

    • May result in monetary compensation awarded to the injured party.

    • Parties Involved:

    • Plaintiff: The person bringing the suit.

    • Defendant: The person being sued.

  • Types of Civil Law

    • Contract Law:

    • Deals with agreements between individuals.

    • Can be explicit or implicit.

    • Tort Law:

    • Deals with duties and rights among individuals.

    • Involves legal claims for damages.

  • Quasi-Intentional Torts

    • Involves actions that injure a person's reputation through false communication to a third person (Defamation):

    • Slander: Oral defamatory statements.

    • Libel: Written defamatory statements.

  • Intentional Torts

    • Direct, intentional actions violating another individual's rights:

    • Assault and Battery: Performing a procedure without valid consent.

    • False Imprisonment: Restraining a client against her/his will.

    • Fraud: Failing to provide essential information required for informed consent.

    • Invasion of Privacy: Breach of patient confidentiality.

Negligence and Nursing Malpractice

  • Negligence

    • Failure to perform as a reasonable, prudent person would.

    • Failure to follow established standards of practice.

    • Characterized by the absence of intent to cause harm.

  • Malpractice (Professional Negligence)

    • A professional form of negligence committed by a healthcare worker.

    • Requires four essential elements to collect legal damages:

    1. Existence of a duty: Professional duty owed to the patient.

    2. Breach of the duty: Failure to adhere to the standard of care.

    3. Causation: Direct causal connection between the breach and the injury.

    4. Damages: Actual harm or injury suffered by the patient.

  • Common Nursing Malpractice Claims

    • Failure to assess and diagnose: Missing critical assessment findings or failing to recognize clinical deterioration.

    • Failure to plan: Omitting necessary nursing interventions from the care plan.

    • Failure to implement a plan of care: Delaying or missing ordered treatments/medications.

    • Failure to evaluate: Failing to monitor and reassess the patient's response to care.

Strategies to Prevent and Minimize Malpractice Risk

  • Minimizing Malpractice Risk

    • Observe mandatory standards of care.

    • Utilize the nursing process and follow professional standards.

    • Avoid medication and treatment errors.

    • Report and document accurately and timely.

    • Obtain proper informed consent.

    • Attend strictly to client safety.

    • Maintain client confidentiality.

    • Provide patient education and counseling.

    • Delegate, assign, and supervise properly.

    • Accept appropriate assignments within individual competence.

    • Participate in ongoing continuing education.

    • Observe professional boundaries.

    • Observe mandatory reporting regulations.

    • Be aware of legal safeguards for nurses.

    • Maintain a professional interpersonal demeanor (prevent malpractice by being nice—don't be rude!).

    • Maintain appropriate malpractice liability insurance.

    • Review notable criminal/civil case proceedings in clinical care, such as the RaDonda Vaught trial.