Legal and Ethical Issues in Nursing

Legal Issues in Nursing

• Involves a legal relationship with the client and family, influenced by laws, rules, and regulations.
• Failure to act within the scope of practice can result in client injury and/or legal liability, potentially leading to loss or sanction of the nurse's license.
• Clients are more educated and aware of their rights, leading to more nurse-related litigations.
• Knowledge of scope of practice and standards of care is essential for nurse and client outcomes.
• Nursing error reviews often identify preventable failures in performance.

Overview of the Legal System

• Laws prescribe proper behavior and prohibit unacceptable behavior.
• Criminal Law: Involves the needs of the public, charged by government agents, resulting in findings of guilt or innocence, penalties, fines, incarceration, or a combination for offenses like robbery, murder, and assault.
• Civil Cases: Between individuals, determining accountability or innocence, with monetary settlements based on the type of liability involved.

Negligence

• Absence of due care or being careless, failing to act in a manner demonstrating the care and knowledge any prudent individual would.

Professional Negligence for Nurses

• Includes actions taken and those omitted.
• Each element must be present to establish:
  • Duty: Established relationship between client and nurse (patient assignment).
  • Breach: Failure to perform duty in a reasonable and prudent manner.
  • Harm: Has occurred but doesn't have to be physical.
  • Proximate Cause: Harm was dependent on the occurrence of the breach.
• When a court finds malpractice, legal punishment or restitution is determined.
• Best method to avoid this is to practice within the rules, regulations, standards of care, and employer policies and procedures.
• A positive nurse-to-patient relationship is a must.

Responsibility

• Individual: Person responsible for negligent or malpractice acts.
• Manager: Did not provide appropriate supervision or delegation.
• Employer: May be responsible if there is a lack of education or credentials of the individual.
• Employer: Also has a lack of needed supplies or equipment.

Legal Process

• Civil litigation is the legal exchange between individuals, as opposed to criminal matters involving state or federal law.
• Most legal suits in healthcare involve civil litigation where individuals believe a breach of duty has taken place, resulting in pain, suffering, or injury.
  • Plaintiff (plff): Complaining party.
  • Defendant: Person alleged to be liable who will have the legal responsibility.
  • Damages: Compensation the plaintiff is seeking.
  • Summons: A court-ordered notification of legal action, and the defendant is asked to provide a response to the charge, whether it's an admission of guilt or denial of the allegation.
• Discovery: The next step where both parties review documents and interview witnesses.
  • Questioning of the witnesses is referred to as a deposition under oath and is part of the evidence.
  • Documents often reviewed include standards of care, the medical record, assignment sheets, personnel files, equipment maintenance logs, birth certificates, medical bills, and social media records.
• The verdict is the evidence reviewed, and a court decides the outcome.
• Each party has the right to disagree with the outcome and can appeal, which is a request for a review of the decision.

Criminal Trial

• The person is answerable for a crime against society and not an individual.
• If a jury finds the individual not guilty, they are cleared of all charges.
• If a jury or judge passes sentence, it is based on severity, criminal record, and applicable laws.
• An appeal may occur if there is an error in process or court proceedings.

Common Legal Terms

• Abandonment of Care: Wrongful termination of providing care.
• Assault: Intentional threat to use bodily harm; it does not require actual contact.
• Battery: Touching without informed consent.
• Competency: The age to make a decision for oneself unless proved otherwise.
• Defamation: Spoken or written statements maliciously and intentionally to injure a subject's reputation.
• Harm: Injury to a person or property that gives rise to a basis for legal action against the person who caused the damage.
• Liability: Malicious or untrue writing about another person brought to the attention of another.
• Malpractice: The failure to meet a legal duty causing harm to another.
• Negligence: Doing or not doing what a reasonable prudent person would do in a similar situation, causing harm to another person.
• Slander: A malicious or untrue spoken word about another person brought to the attention of another.
• Tort: Civil law involving wrongs against a person or property, including negligence, assault, battery, and defamation.

Legal Relationship

• Client or family may pursue charges against the facility, nursing personnel, medical staff, or ancillary departments, either separately or as a group.
• Nurses are being charged today due to gained recognition of expertise and autonomy.
• Accountability (responsible for one's own actions) gives rise to legal duty; thus, nurses are legally responsible.
• Advanced technology requires knowledge and competency.
• Short staffing and budget constraints may be a concern.
• Higher patient acuity and emphasis on early discharge necessitate referrals and improved patient teaching.

Common Areas of Litigation Against Nursing

• Performance failure in standards of care, use of equipment, documentation, and patient advocacy.
• When a nurse accepts a patient care assignment, the nurse-patient relationship is initiated.
• Duty to provide professional care and advocate for the patient.
• Legal and ethical obligation to safeguard the patient's interests.
• The patient has the right to expect the nurse to act in their best interest.
• Darling versus Charleston Community Memorial Hospital: Refers to a case where there was no documented communication of a change in condition.

Patients Bill of Rights

• Established by the American Hospital Association in 1972.
• Promotes public understanding of rights and responsibilities as consumers of health.
• Consider cultural, religious, linguistic, and educational backgrounds of the population.
• Compliance is monitored by The Joint Commission and the Office of the Inspector General (CMS).
• Patients are entitled to specific rights during care, and nurses are expected to provide for patient rights such as the right to privacy, the right to confidentiality, the right to refuse care, and so on.
• 1980 Mental Health Bill of Rights and the Pregnancy Patients Bill of Rights was adopted into law.
• Patient Self-Determination Act (included in the Omnibus Budget Reconciliation Act of 1990) requires facilities to have policies and procedures on advanced directives (use of life support if a patient is incapacitated) and the right to participate in care decisions.

Patient Rights

1. Access to healthcare without prejudice.
2. Treatment with respect and dignity at all times.
3. Privacy and confidentiality.
4. Personal safety.
5. Complete information about one's own condition and treatment.

Patient Responsibilities

1. Providing accurate information about oneself.
2. Giving information regarding known conditions.
3. Participating in decision-making regarding treatment and care.

Informed Consent

• Cannot be provided without permission.
• Implied consent: Informed of care and agreeing to sign general consent for care when admitted to a facility.
• Requires full disclosure of the facts needed to make an intelligent decision before invasive treatment or procedure is performed.
• Explanation in non-technical terms that the patient understands.
• The provider obtains the informed consent (physician or other healthcare provider performing the treatment or procedure).
• Information shared:
  • Proposed treatment.
  • The purpose of the treatment.
  • Associated risks and benefits.
  • Any alternatives to the treatment.
  • Answers to any questions.
  • Diagnosis, which is a complete description of the treatment or procedure. (shared by the provider)
  • Description of professionals who will be performing or participating in the treatment. (shared by the provider)
  • Description of potential harm, pain, and/or discomfort that might occur. (shared by the provider)
  • Options for other or different treatment. (shared by the provider)
  • The right to refuse treatment and the risks involved if the patient chooses not to undergo treatment. (shared by the provider)

Requirements for Informed Consent

• The patient must do so voluntarily and not be coerced.
• Be competent and of legal age or an authorized person.
• Receive sufficient information to make a decision based on an informed understanding of what is expected.
• The nurse witnesses the informed consent and is responsible for:
  • Ensuring that the provider gave the patient all the necessary information.
  • Ensuring that the patient understood the information and is competent to give informed consent.
  • Having the patient sign the informed consent document.
  • Notifying the provider if the patient has any more questions or does not understand any of the information provided.
  • The provider is responsible for giving clarification or any additional information required before care is given.
• Except in emergency situations or if a patient is unresponsive, the patient must have the mental capacity to understand explanations and make informed decisions.
• The decision must be voluntary and never coerced.
• The patient must understand the treatment and information presented by the provider.
• The patient must not be under the influence of alcohol or drugs.
• The nurse may witness the signature of the patient on the consent form, validating that the patient is actually the person signing, is competent, and has no further questions.
• The patient knows that they can withdraw consent at any time.
• Failure to obtain informed consent is considered battery.

Confidentiality

• The duty to protect information about the patient, regardless of how the information is kept, on a need-to-know basis.
• Those directly involved in an individual's care must maintain confidentiality.
• Failure to maintain confidentiality is a legal liability risk that could lead to civil and criminal findings.
• Most employers consider offenses justification for termination, not limited to the work environment.
• Held in confidence for the physical chart as well as technological resources. You must appropriately log out of an information system.
• Information used to identify patients is considered protected health information (PHI), which is more than just name and date of birth, and must only be discussed in private areas.
• Discussing patient information in elevators, cafeterias, or public areas are all problematic.

Social Media

• Nurses have access to a variety of sites, some of which are evidence-based practice resources, online and mobile tools to share opinions, information, experiences, images, videos, and audio clips.
• Nurses who violate confidentiality often blur the boundaries, which can lead to termination.
• Discussing the care of a facility in a disparaging manner can be viewed negatively by the employer.
• Facebook postings while on duty, when assigned to patient care, are looked down upon by employers, stating staffing concerns or opinions about management may result in sanctions by the agency.

Medical Records

• Follow your policy and procedure of the agency.
• Medical records are not public records.
• If there is a breach in confidentiality, this is a legal liability in lawsuits.
• Both parties have access to medical records to confirm if standards of care provided are breached.
• Injuries must be permanent, accurate, complete, and legible.
• Current risks include the increase in the number of individuals who could access the record, the merging of healthcare organizations into large corporations, and computer-based healthcare records.

Invasion of Privacy

• Consent for treatment does not outweigh one's right to privacy.
• May include physical exposure or disclosure of patient information.
• Close appropriate drapes, doors, and curtains during care or procedures.
• Any call should be referred to the charge nurse.
• Notes from the report should be disposed of appropriately and not leave the facility.
• Do not use any patient information without authorization.

HIPAA

• The Health Insurance Portability and Accountability Act.
• Notice of privacy practices is provided by each healthcare facility, allowing disclosure of PHI for treatment, payment, and facility operation. This is not the same as consent.
• Addresses access to medical records; patients have the right to access their medical records and request amendments to the medical record.
• Patients have the right to request restrictions on the use of PHI as long as it does not interfere with treatment, payment, or facility operation.
• Patients can request an accounting of access, a list of people, companies, or agencies that have accessed their information.
• Confidential communication allows patients to request that PHI is delivered in a method that the sender is not identified.
• Complaints about violations include information about how to contact the privacy officer if their privacy is violated.
• The minimal necessary rule allows the ability to give only the information needed.
• Telephone requests for PHI can only confirm if a specific name is admitted, and the general condition of the patient may be given. Refer family members for additional questions.
• Emails or faxes should send only the minimal necessary information, marked as confidential, and request notification if received in error.

Reporting Abuse

• An exception to the right to privacy.
• Healthcare professionals are required to report certain information to appropriate authorities.
• Follow policies and procedures for the organization, reporting to the supervisor or the police as policy and procedures direct.
• When reported in good faith, the healthcare professional is protected from liability.
• The Child Abuse Prevention and Treatment Act of 1973 made reporting of child abuse mandatory. Failure to report may result in fines or imprisonment.
• The Child Abuse Amendment of 1984 states that withholding medical treatment to an infant born with serious life-threatening handicaps is a form of child abuse.
• Viability after 24 weeks is standard; some high-risk facilities may consider 22 weeks. Always refer to your policies and procedures.
• Passive euthanasia, or letting a person die, is a medical malpractice risk.
• Spousal and elder abuse is an underreported crime and a hidden family problem. Most states have laws to protect victims, including fines, restraining orders, and even imprisonment.
• Nurses are responsible for knowing the signs of abuse and procedures to report workplace violence, whether verbal, emotional, sexual harassment, physical assault, or threatening behavior.
• Facilities have policies and procedures to promote a safe work environment and education strategies, adequate supervision, employee security personnel, and monitoring work areas to facilitate reporting of incidents, which helps decrease workplace violence.

Avoiding Lawsuits and Insurance Claims

• Open and honest communication is key to building a therapeutic relationship.
• Follow your policies and procedures, standards of care, nurse practice act, and scope of practice to reduce the risk of lawsuits.
• Continuing education in your area of work increases competency and current practice. Development outside of work is also important.
• The Good Samaritan laws protect against negligence.
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Proper Documentation

• Only factual, objective data should be charted.
• Care provided must be documented; if it was not charted, it was not done.
• Omissions in charting can lead to prosecution.

Professional Liability Insurance

• Employers carry insurance for their facilities, and some facilities also cover employees. Many nurses should also purchase their own policies.
• Carefully review policies prior to purchase to ensure they meet your needs.
  • Claims-made policies cover while you hold the policy.
  • Occurrence policies cover claims made during the policy period or extended coverage period.
  • A tail agreement offers coverage for an extended period when nurses no longer have claims-made policies.

Disciplinary Process

• Nurses receive a letter from the Kentucky Board of Nursing (KBN) alleging breaches of standards of care or infractions of patient safety.
• Potential sanctions against a nursing license may include:
  • Dismissed charges.
  • Investigation agreements.
  • Letters of reprimand.
  • Formal or informal probation with stipulations (such as education, fines, fees, worksite monitoring, or evaluation by a psychiatrist, psychologist, or drug addiction specialist).
  • Mandated diversion programs.
  • Suspension with stipulations.
  • Revocation of your license.
• Continued disciplinary actions taken against nurses may include
  • Fraud and deceit: usually involves attempting to obtain a nursing license with false documents.
  • Criminal activity: such as theft, fraud, or embezzlement.
  • Negligence: not providing care as a prudent nurse would provide.
  • Being disciplined by another jurisdiction (another state) or the National Practitioner Data Bank can occur.
  • Incompetence: a failure to follow standards of care, and it is the mental status of the nurse that is evaluated.
  • Unethical conduct: includes breaches of confidentiality or refusal to care for someone, alcohol or drug abuse, and personal use of or selling controlled or illegal substances.

Ethical Aspects of Nursing

• Refer to values that influence a person's behavior and beliefs about what is right or wrong.
• Values can change over time and can vary in different circumstances.
• Nursing ethics involve moral values and disciplines that affect personal and professional conduct.
• Patient advocates and are accountable to ourselves, the patient, the family, supervisors, instructors, team members, and system-based issues.

Advanced Directives

• Give direction to healthcare providers about treatment choices in certain circumstances.
• The Patient Self-Determination Act requires facilities to provide written information to clients about their right to make decisions, refuse care, and formulate advanced directives.
• Must also incorporate cultural beliefs and values when discussing.
• Documentation in the record is required if they have an advance directive signed or not.
• Facilities must provide education to staff and the public concerning living wills and durable power of attorney.
• The patient must be legally competent or lack capacity to make healthcare decisions regarding treatment.

Living Will

• A written document that directs treatment in the event of terminal illness or condition.
• Can be difficult to interpret and may not use clinically specific wording.
• The general requirement is for two witnesses, who cannot be family or the healthcare provider.
• Not all states recognize living wills; however, Kentucky does.

Durable Power of Attorney for Healthcare

• Designates a surrogate to make healthcare decisions on the patient's behalf based on the patient's wishes. This is allowed in all 50 states.

Ethical Dilemma

• A situation that does not have a clear right or wrong answer.
• Laws, rules, and policies do not always answer the question.
• Ethical principles serve as a framework for decision-making.
• Answers are not always clear; often, it is more right than wrong or more good and less bad.

Ethical Principles in Nursing

• Respect for people: human life is sacred; no one person is more important than another; all should be viewed as equal.
• Autonomy: freedom of personal choice; the patient may ask the nurse for a decision on an issue, but nurses do not have the authority to make choices or give opinions for the patient.
• Beneficence: doing good; protect life and promote well-being.
• Non-maleficence: do no harm; act in the best interest of the patient; do nothing that has harmful effects on the patient.
• Justice: what is fair; all patients have the right to nursing interventions and care.

Code of Ethics for Nurses

• Uses personal and professional ethical principles to govern professional practice.
• The National Federation of Licensed Practical Nurses has developed a code for them to know and function within the scope of practice, maintain patient confidences, provide healthcare without discrimination, maintain a high degree of professional and personal behavior, and take an active role in the development of the profession.
• The American Nurses Association also has a code of ethics, which you can access from their website.

Reporting Unethical Behavior

• Reporting unethical behavior, such as practitioner-assisted suicide and euthanasia, is a duty.
• Must report behavior that does not meet established standards.
• Failure to perform duties of competent care in nursing is difficult to consider.
• Puts the patient or the facility at risk, demonstrates incompetency, involves the use of alcohol or drugs, relates to a physical or mental condition, or violates nurse statutes.
• Follow the chain of command and be objective and accurate when reporting unethical behavior.
• Reporting a coworker is never easy, but the nurse's first duty is to the patient's health, safety, and well-being.

Practitioner-Assisted Suicide

• Violates the code of ethics. Proponents use the right to autonomy and the right to self-determination.
• The healthcare provider provides the means, not the administration.
• In the USA, it is only legal in Washington D.C., California, Colorado, Vermont, Maine, New Jersey, Hawaii, and Washington. It is legal in Montana but is still being disputed.

DNR (Do Not Resuscitate) Order

• An advanced directive based on the Patient Self-Determination Act that gives the physician legal permission to write the order.
• The nurse has a duty to follow the order.
• If there is no DNR order and the nurse does not resuscitate, the nurse is making a decision and is practicing medicine, which is a violation and opens the nurse to a malpractice suit.

Duty to Disclose

• Certain items are required by law to be reported.
• Includes the obligation to warn identified individuals if the patient has made a credible threat to harm them, communicable diseases to the health department, and criminal acts such as rape, abuse, or neglect.

Physician's Orders

• Nurses must legally carry out physician's orders unless they believe they are inaccurate or unsafe for the patient.
• The nurse is obligated to question or clarify an order that is illegible, unclear, or believed to be inappropriate.
• If a nurse carries out questionable orders that harm a patient without clarifying, the nurse is responsible for patient harm.
• Always question any order that the patient questions, if the patient condition has changed, if it is a verbal order, an illegible order, an unclear order, or an inappropriate order.

Refusal to Treat

• Personal lifestyle choices or diagnoses do not allow a nurse the legal right to refuse care.
• Get the right fit at employment; if new procedures are initiated, speak up, offer to work in other areas, or may need to seek other employment.
• Patients have the right to receive care, and nurses have the responsibility to provide care without bias.

Incident Reporting

• An in-house document; it is not part of the medical record.
• The record helps facilities make improvements in policy and procedures, risk management, quality control, and a system approach to attempt to prevent reoccurrence.
• Fill it out as though someone outside of the facility would understand. Do not place blame or make accusations; state only the facts.
• Do not document the incident report in the nurse's notes. Document objective events.

Against Medical Advice (AMA)

• Occurs when a patient refuses treatment and wants to leave the hospital without official discharge.
• You cannot hold a patient against their will if they are capable of decision-making and not hospitalized for involuntary hold; that is false imprisonment.
• Report to the supervisor and the doctor immediately.

Abandonment

• Once an assignment has been made and accepted, you may not leave your place of employment until you can transfer care of patients to your relief or oncoming caregiver.

Unprofessional Conduct

• Includes the use of illegal substances, falsification of records, and only charting what you did and what you observed after you did it or observed it.
• Report unprofessional conduct. I know this was a long one, and it was very boring, but I thank you for your attendance.