Note
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Health Law & Nursing Notes
Health Care Law
Definition: The collection of laws that directly impact healthcare delivery, relationships within the healthcare business, or between providers and recipients of healthcare. (Giddens, 2017)
Overview of US Government
Federal Government
Executive - President
Legislative - Senate & House of Representatives
Judicial - Court System
U.S. Supreme Court
13 Circuits U.S. Courts of Appeals
Trial courts
Overview of State Government
State Government
Executive - Governor
Legislative - Senate & House of Delegates
Judicial - Court System
State Supreme Court
Court of Appeals
Trial Courts
Introduction to the Law
Sources of law
Constitutional law - established by the U.S. Constitution.
Statutory Law – from legislation
Common law/Judicial law- from the courts
Statutory Law
Definition: Laws that come from legislation and are formally written.
Submitted by Federal, State, or Local Legislators as bills that can become law.
Examples:
Maryland Nurse Practice Acts
Good Samaritan Laws
Medicare and Medicaid (Federal)
Examples of Statutory Health Laws
AIDS laws – requires reporting of HIV and AIDS cases
Abuse laws – health care practitioners, educator, human service worker & law enforcement officer are required to report both orally and in writing any suspected child abuse or neglect.
Emergency Medical Treatment and Active Labor Act (EMTALA)
Americans with Disabilities Act of 1990
Patient Self-Determination Act of 1990 (advanced directives)
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
Nurse Practice Acts
General rules intended to safeguard the public welfare
Define who may practice
What qualifications are necessary
Defines the scope (or limits) of practice
Provide guidelines to professional and social conduct
Nurse Practice Acts (Detailed)
Each state has Statutory Law (laws coming from legislation) that regulates the practice of nursing including the scope (permissible boundaries of professional practice)
Each state has statues that determine Standards of Care.
The Standard of Care identifies nursing practice with examples of standards violations and sanctions for violations.
Standard of Care definition: “those acts performed or omitted that an ordinary prudent person would have performed or omitted” and serve as a measure against which the nurse’s conduct is compared.
Standards of Care
Formation of a nurse-patient relationship. This relationship has legal implications: once initiated it holds the nurse to a certain professional standard of care
These standards are defined by:
Individual, institutional policies and procedures
Professional nursing organizations (i.e., The American Nurses Association or ANA)
Expert witness testimony
Statues (laws) and codes, job descriptions
The Joint Commission
Previous court rulings – Common law
Examples of Standards of Care
Assessment – including subjective, objective data regarding the health status of the client
Safety and Delegation
Communication – including significant changes in the patient's condition to the healthcare team
Health Teaching – including assessment of learning needs, readiness to learn, plan to meet needs, implementation, and evaluation.
Common Law (Judicial Law)
Laws determined by court decisions
Court decisions set - precedent or prior law as bound by the doctrine of stare decisis* (*to stand by things decided)
Malpractice is often decided by common law (prior court decisions that have been made)
Example: Roe v. Wade – set law for abortion rights (law that came down through a court decision)
Doctrines Result From Judicial Opinions
Judicial opinions create the rules or standards that comprise legal doctrine.
Doctrines represent the legal rules applied by judges in courts of law.
NOTE: It is important to understand that individuals hold responsibility for their own actions
Essential Doctrines that Apply to Health Care
Personal Liability – states that every person is responsible for his/her actions (this includes students!)
Reasonably Prudent Person—A Standard that requires a person to perform a function that any person with the same education and training in the same situation would perform.
Foreseeability - reasonable anticipation of the possible results of an action, such as what may happen if one is negligent or consequential damages resulting from a breach of a contract.
Two Classifications (Branches) of Law Pertinent to Nursing
CRIMINAL LAW
CIVIL LAW
Criminal Law
Offensive conduct against the public
The remedy for a criminal offense is punishment
It could be a fine or could be jail time, or both
Examples include mandatory reporting laws and criminal behavior by nurses outside of the workplace, such as drug abuse that can result in license revocation.
Felonies
Misdemeanors
Infractions
Civil Law
Legal rights and duties of private citizens
The remedy for civil offense is compensation
Financial awards
Torts
A civil law category is Any legal wrong committed by one person on another person or another’s property.
Intentional – examples are defamation of character, trespassing
Unintentional – examples are leaving a surgical sponge in a body cavity or throwing a football through your neighbor’s window
What is Reasonable Nursing Care?
Courts use Standards of Care to determine if reasonable (expected) nursing care was rendered
Considerations for nursing conduct include:
Knowledge, skill, education, experience, and available resources
i.e. greater level of education and experience holds a nurse to a higher standard of care; nurses practicing in a specialty are all held to the same standards of that specialty practice; an RN is compared to another RN, not to an LPN.
RN Nursing Students are held to the standard of an RN student in a court of law.
Delegation and The Nurse Practice Acts
Effective delegation is based on the state Nurse Practice Acts and the understanding of the concepts of responsibility, authority, and accountability
Delegation also requires critical thinking and professional judgment
Five Rights of Delegation
right task
right circumstances
right person
right directions and communication
right supervision and evaluation
Negligence
One of the most common nursing torts
Defined as The failure of a responsible person to act reasonably prudently.
Unintentional torts
Medication errors
Falls
Burns
Operating equipment incorrectly (not knowing how to use it, using defective equipment)
Not maintaining a safe environment (electrical hazards, spills, not changing light bulbs that have burned out, etc.)
Failure to observe and report
Intentional Torts
Assault (threatening to inflect harm)
Battery (unprivileged touching of another)
False imprisonment (restraints)
Defamation of character (verbal = slander; written = libel), derogatory statements in presence of a 3rd party
Invasion of privacy (giving information to another without patient consent, failure to cover a patient, close a door, or curtain during a procedure can be considered a tort).
Malpractice
Defined as: A negligent act a professional commits during his/her duty.
For example, a nurse administering the wrong medication to a patient would be negligent in carrying out her duty and, therefore, guilty of malpractice.
Neither negligence nor malpractice requires intent to harm another person.
Elements of Malpractice
4 elements of negligence – must be proven before any malpractice suit may go to trial
If any one of the legal concepts of negligence is not proven – the case is dismissed in the pretrial stage
Duty – The nurse-patient relationship established and created a duty to provide care
Duty Breached – the standard of care not met
Direct Cause - Causation – the relationship between the breach and the injury
Damage – the patient has suffered quantifiable damages as a result of the injury
Factors Contributing to Liability Lawsuits
The expanded role of the nurse
Nurses doing duties once relegated to the MD
Increasing complex tasks
Independent implementation of the nursing process
Making professional judgments/decisions about nursing care
The public is more informed than in the past
Educated from media
Health promotion mindset – no longer content for HCP to make all the decisions regarding care
I prefer partnering, being an active participant, and demanding quality
Patient’s Bill of Rights/PBOR (1970’s), Affordable Care Act (2010) now has the Patient Care Partnership that replaced the PBOR
Violations of rights and perceived substandard care = seeking monetary compensation.
How to Avoid Malpractice Liability
Be familiar with the NPA of your state
Be familiar with institutional policies and procedures
Don’t accept assignments you cannot perform
Delegate carefully – you are responsible
Administer Meds carefully (8 rights) / check orders
Do not offer opinions
Take steps to prevent falls
Maintain a level of expertise and competency by keeping up to date (lifelong learning)
Possess a basic knowledge of the law and its effects on nursing practice.
Continually make a conscious effort to personalize patient care (therapeutic nurse-patient relationships)
Keep your nursing license current and easily accessible
Accurately document all nursing assessments using the nursing process.
Consider purchasing malpractice insurance regardless of the area of nursing being practiced
Protection = Education
Good Samaritan Law – protection from malpractice nurse rendering assistance in emergencies outside of the employment setting
The State Board of Nursing (BON)
Each state’s legislature establishes regulatory agencies to implement and enforce the Nurse Practice Acts (which define, monitor, and regulate the nursing profession)
State Boards of Nursing do not have the power or right to make nursing laws. However, they are charged with enforcing existing laws.
State Boards also approve educational programs, determine licensure, re-licensure, academic requirements, and discipline nurses.
Membership of the board of nursing
Appointed by the Governor’s office
Duties of the board of nursing
Administering the state’s Nurse Practice Act
Granting and renewing licenses
Taking disciplinary action
Approving schools of nursing
Risk Management
healthcare risk management has traditionally focused on the important role of patient safety and the reduction of medical errors that jeopardize an organization’s ability to achieve its mission and protect against financial liability.
Hospitals and other healthcare systems are expanding their risk management programs from ones that are primarily reactive and promote patient safety and prevent legal exposure, to ones that are increasingly proactive and view risk through the much broader lens of the entire healthcare ecosystem.
Responsibilities of Risk Management
Identification, analysis, evaluation, and elimination or reduction of risks to hospital visitors, patients, or employees.
Handles all incidents, claims, and other insurance- related tasks.
Helps generate system analysis
Using Standardized procedures – SBAR / TIME OUT
Incident Reports – ANY injury, problem, mistake that puts the facility at risk for legal action
Facts only
Not assigning blame
Do NOT document in patient’s chart that a report was completed
All nurses should be risk managers!
Reporting Sentinel Events – Adverse events that cause severe or fatal injuries
Summary
Health Care laws come from Statutes, Common Law (court decisions), or the Bill of Rights (Constitutional law).
Most HC Laws are State laws.
Standards of Care come from the state Nurse Practice Acts – every nurse should know these laws
Knowing the expected Standards of Care can help prevent professional negligence (Malpractice)
Understanding the process of Risk Management is important for all nurses at every level of practice
Standards of Nursing Practice are statements established by the American Nurses Association and made law in each states Nurse Practice Act
The Nurse Practice Acts are statues that define nursing practice, licensure requirements, standards for education, and authorize the state board of nursing
Malpractice is professional negligence.
Nurses should understand the areas of practice that most potentiate mistakes
Risk Management is the duty of all nurses to improve practice and prevent injuries
Patient Protection and Affordable Care Act.
Americans with Disabilities Act.
Emergency Medical Treatment and Active Labor Law.
The Patient Self Determination Act.
Health Insurance Portability and Accountability Act.
Restraints
Social Media (Health Information Technology Act 2009)
POLICIES