Nursing: A Concept-Based Approach to Learning, 2nd Edition

Module 49 Legal Issues  The Concept of Legal Issues Legal issues ( rights, responsibilities, scope of nursing practice Defined by state nurse practice acts Legislated through criminal and civil laws Malpractice ( conduct deviating from the standard of practice dictated by the profession All clients have privilege, demand, claim by virtue of law or right to expect competent nursing services Right that which is proper or just See Box 491, MALPRACTICE CASES AGAINST NURSES, p. 2654 Nursing students need knowledge of laws and regulations that affect nursing practice Sources of laws Law ( sum total of rules and regulations by which a society is governed Law made at federal, state, and local levels Statutory laws ( made by any legislative branch of government Includes U.S. Congress, state legislatures, city/county governments Nursing laws are state statutory laws Other statutory laws that affect nursing practice Statutes of limitations Protection and reporting laws Natural death acts Informed consent laws Administrative laws (legislative body delegates responsibility of administration and enforcement of statutory laws to administrative agencies State boards of nursing See Figure 491, OVERVIEW OF THE SOURCES OF LAW, p. 2655 See Table 491, SELECTED CATEGORIES OF LAWS AFFECTING NURSES, p. 2654 Criminal and civil law Criminal law ( defines conduct that is harmful to another individual or society as a whole, may be punishable by fines or imprisonment Crime ( act prohibited by statute or by common law principles Crimes committed against state, as opposed to individual Crimes classified by severity Felonies (more serious crimes Misdemeanors (lesser offenses Usually punishable by fine or short-term jail sentence or both Civil law ( deals with rights and duties of private persons Most often enforced through awarding of damages or compensation Tort law Tort ( civil wrong committed against a person or persons property Individual who violates tort law may be sued/compensation awarded to those wrongfully injured by those actions May be intentional or unintentional Unintentionalnegligence, malpractice Intentionalassault, battery, false imprisonment Unintentional torts Negligence (conduct that deviates from what a reasonable person would perform in a particular circumstance Reasonable person standard describes person who exercises average care, skill, judgment ( comparative standard for determining liability Persons with greater than average skill/ability held to higher standard Includes nurses, physicians, other healthcare providers Term used in nursing reasonable professional nurse standard Injured party needs to prove that the other party had A duty of reasonable care Did not maintain reasonable care Failure to maintain such reasonable care caused/resulted in injuries to aggrieved party Professional negligence or malpractice Standard of reasonable person different for those in specific professional occupations An individual who engages in activity requiring special skills, education, training, licensure is measured by standard of conduct of reasonably skilled, competent, experienced person who is qualified member of group Nursing student held to standard of conduct of experienced, licensed professional nurse Malpractice ( conduct deviating from standard of practice Includes acts and omissions committed by professional in course of performing professional duties Any negligent act or omission may rise to the standard of malpractice Elements of professional negligence or malpractice Five elements required to establish liability ( state of being legally obligated and responsible Dutylegally enforceable obligation to conform to a particular standard of conduct Formation of providerclient relationship is basis Nurseclient relationship begins when nurse accepts responsibility for providing nursing care to the client Breach of dutydeviation from standard of care owed to client Foreseeabilitycertain events may reasonably be expected to cause specific results Causationinjury must have occurred as direct result of nurses breach of duty Injury or harmplaintiff must demonstrate some type of physical, financial, or emotional injury resulted from breach of owed duty Basic purpose of malpractice lawsuit to award damages Sufficient to restore plaintiff to original position, so far as is financially possible Related doctrines Respondeat superior Let the superiors answerhospitals, employers may be held liable Res ipsa loquitur Let the thing speak for itself Harm cannot be traced to specific healthcare provider or standard however, harm does not normally occur unless some type of negligence has occurred Statute of limitations Limit to amount of time that can pass between recognition of harm and bringing of a suit Exact time limit varies by type of suit/state Plaintiffs typically have 12 years from knowledge of injury to file suit Intentional torts Assault, battery, and false imprisonment Assault Creating apprehension of offensive, insulting or physically injurious touching May occur without actually touching client Battery Willful touching of another person that is unwanted, embarrassing, or unwarranted False imprisonment Unjustifiable detention of a person Restraints Invasion of privacy Fourth Amendment of the U.S. Constitution ( individuals have the right to privacy Includes use of clients name and photographic/videographic representations Extends to control of clients personal belongings/space and immediate territory Strategies to prevent incidents of professional negligence Following categories contribute to incidents of professional negligence or malpractice Documented medication errors Failure to follow physician orders, established protocols, or policies Improper use of equipment or technology Failure to remove foreign objects from client Failure to provide sufficient monitoring and assessment of client Failure to communicate, notify, and/or report key nursing information in proper and timely manner Maintaining client safety Clients often fall accidentally Elevate side rails Do not leave babies unattended on bath tables Failure to observe and take appropriate action Ignoring clients complaints Mistaken identity Properly identifying client is one of the first steps in all nursing procedures Minimizing the risk of medication errors Medication administration is high-risk activity for error Prevention of medication errors requires a systems approach Strictly apply the Six Rights Right drug Right dose Right client Right route Right time Right documentation Nothing replaces nursing judgment in preventing medication administration errors Using effective communication Poor communication skills may create perception of incompetent nurse Clear communication of directions, explanations, and client education helps decrease risk of bad outcomes Attentive listening skills demonstrate caring Accurate documentation and reporting is source of information that supports or defends allegations of malpractice Nursing documentation part of legal record Professional liability insurance Nurses should carry professional liability insurance to manage personal financial risk Occurrence-based coverage ( covers incidents that occurred during time period policy in effect Claims-made policies ( provide coverage only if incident occurred and claim reported during active policy period Types of policies Individualprovides broadest coverage to policyholder Covers named policyholder as long as actions fall within scope of practice Employer-sponsorednarrowest coverage for individual Only covers actions while working as institution employee Policies should identify Limits of liability Declarations Deductibles Exclusions Reservation of rights Covered injuries Defense costs Coverage conditions Supplementary payments The standard of care Standards of care for nurses based on The nurse practice act Administrative rules Laws are not static Other sources that define standards of care Specific job descriptions Agency policies and procedures Prevailing national nursing standards Standards of care ( skills and learning common to profession The nursing process and professional practice Follow nursing process using clear and appropriate documentation at every step Demonstrate competence in professional roles Practice ethically See CONCEPTS RELATED TO LEGAL ISSUES, p. 2660 Selected laws that affect nursing practice Informed consent ( clients legal and ethical rights to be informed of and give permission for any procedure or treatment Physician or independent health provider duty to disclose information in terms client can easily understand Must also disclose information regarding Available alternatives Risks and benefits of each treatment option Clients right to refuse treatment General guidelines regarding what information should be provided Diagnosis or condition Purposes of treatment What client can expect to feel or experience Intended benefits of treatment Possible risks or negative outcomes of treatment Advantages/disadvantages of possible alternatives (including no treatment) Client must not be coerced in any manner Client understanding essential element If client unable to read Healthcare provider must read consent form Client must state understanding Interpreter must be present if client does not speak same language as healthcare provider Obtaining informed consent responsibility of person performing procedure/treatment Does not require written consent before each occurrence Nurses rely on Expressed consentoral or written agreement Implied consentbased on clients action See FOCUS ON DIVERSITY AND CULTURE AUTONOMY, p. 2659 Competency for consent Competency is legal presumption Applied to individuals when become adults Most states consider individuals competent at age 18 Incompetency Court-ordered legally incompetent adults provided legal guardian Temporary incompetency caused by narcotics or accidents Gradual incompetence as result of dementia Notify primary care provider if concerns about clients level of competency Consent in an emergency Law assumes persons consent to medical treatment when in imminent danger of life or limb and unable to give informed consent Permits healthcare providers to perform potentially lifesaving procedures when informed consent impossible or impractical Does not permit healthcare providers to provide treatment that client previously refused Child participation in healthcare decisions Parent or guardian must give informed consent for minor (younger than age 18) Exceptions When emergency doctrine applies Child is emancipated No longer under parental control Manages own financial affairs Child is resident of state that allows mature minors to give valid consent Example 15-year-old adolescent able to understand treatment risks Existing court order to proceed with treatment Law recognizes minor as having ability to consent to specific treatment Minor who is parent of a child may give informed consent for treatment of child in majority of states Some states permit teenagers of a certain age to receive certain types of care without parental consent Birth control Prenatal care Mental health counseling Diagnosis and treatment of sexually transmitted disease Treatment of substance abuse See Box 493, OVERVIEW OF MINOR CONSENT LAWS, p. 2662 Case Study A ( Marvin Martinice, a 15-year-old boy with acute myelocytic anemia, has come out of his second remission , p. 2661 Controlled Substances Act Federal law Requires drugs be based on Substances medical use Potential for abuse Safety risks Classifications referred to as Schedules Numbered from I to V Schedules I and II have highest potential for abuse See Table 492, U.S. DRUG SCHEDULES AND EXAMPLES, p. 2662 Enforced by U.S. Drug Enforcement Agency Good Samaritan laws In place in most states Encourage healthcare providers to help victims in an emergency Designed to protect healthcare workers from potential liability when volunteering skills outside of employment contract Nurse must adhere to standard of nursing care during all volunteer activities Only provide care that is consistent with training level and licensure Nurse is responsible for following through with emergency care Conclusion Number of laws that affect nurses overwhelming Must keep up with changes in laws and regulations See Box 494, WHERE TO GO FOR ADDITIONAL INFORMATION, p. 2662 Review The Concept of Legal Issues Relate Link the Concepts Refer Go to Nursing Student Resources Reflect Case Study Exemplar 49.1 Nurse Practice Acts Overview Nurse practice act (NPA) regulates practice of nursing at state level NPA defines Scope of practice Standards for education programs Licensure requirements Grounds for disciplinary actions See Box 495, ANATOMY OF A NURSE PRACTICE ACT (NPA), p. 2664 Provision for NPAs quite similar from state to state for RNs Each states NPA enforced and administered by state board of nursing (BON) Some states use other titles for this board BONs also serve as forum for citizen complaints about nursing services and against individual nurses North Carolina only state where licensed nurses serving on BON are elected by other licensed nurses Licensure Licensure allows nurses legal privilege to practice nursing as defined by NPA BON oversees licensure by Establishing and monitoring educational standards for nursing education programs Defining professional standards Examining and renewing licenses of duly qualified applicants Investigating violations of NPA Sanctioning those who violate NPA Holding disciplinary hearings for possible license suspension or revocation Establishing and overseeing diversity programs in some states Each BON oversees administration of a licensure examination Measures competencies needed to perform safely and effectively as newly licensed, entry-level nurse National Council of State Boards of Nursing (NCSBN) has two licensure examinations National Council Licensure Examination for Registered NursesNCLEX-RN National Council Licensure Examination for Practical NursesNCLEX-PN Licenses are issued by state or territory in which the applicant wishes to practice BON monitors compliance with state laws BON responsible for taking action against nurses who have exhibited unsafe nursing practice Most BONS will take action against nurse found guilty of following charges Giving false information to, or withholding material information from, the board Being convicted of, or pleading guilty or nolo contendere to, any crime that indicates nurse unfit or incompetent to practice Nolo contendere ( individuals neither admit nor deny that they have committed the crime but agree to a punishment as if guilty Engaging in conduct that endangers public health Being unfit or incompetent to practice by reason of deliberate or negligent acts Engaging in conduct that deceives, defrauds, or harms the public 2009 NCSBN report for years 19962006 Percentage of licensed nurses disciplined by BONs increased to 0.18 25 of violations were drug related 7,076 criminal violations by licensed nurses reported Nurses disciplined during this period averaged almost 12 years of experience National Council of State Boards of Nursing Membership includes BONs in 50 states and District of Columbia Four U.S. territories Guam Virgin Islands American Samoa Northern Mariana Islands Four states have separate BONs for RNs and LPNs/LVNs California Georgia Louisiana West Virginia NCSBN functions Provides support services to member BONs Serves as central repository of data Develops NCLEX-RN and NCLEX-PN Conducts research on nursing practice See Box 496, RESEARCH PRIORITIES OF THE NCSBN, 2013, p. 2665 Maintains Nursys database Works with BONs to promote uniformity in regulation of nursing practice One outcome Nurse Licensure Compact Nurse Licensure Compact Mutual recognition model Allows nurse to have single license that confers privilege to practice in other states that are part of Nurse Licensure Compact See Box 497, MUTUAL RECOGNITION MODEL, p. 2665 Nurse accountable for following laws and rules in state in which practicing Each state must enact legislation or regulations authorizing Nurse Licensure Compact Credentialing Credentialing ( formal identification of professionals who meet predetermined standards of professional skill or competence Certification ( defines credentialing process American Nurses Credentialing Center (ANCC) Subsidiary of American Nurses Association (ANA) Provides credentialing programs to certify nurses in specialty practice areas Recognizes healthcare organizations for nursing excellence through Magnet Recognition Program Accredits providers of continuing nursing education Federal organizations with impact on standards of nursing care The Joint Commission Centers for Medicare and Medicaid Services Impact of laws and standards on nurses profound See Figure 493, IMPACT OF LAWS AND STANDARDS ON THE NURSE, p. 2666 Nursing students Each NPA addresses duties and responsibilities of nursing students Allows nursing students to practice nursing without a license while in approved nursing education program Nursing students have ultimate responsibility for own actions Responsibility ( accountability for actions Nursing students held accountable to standards of care for licensed nurses Standards of practice Nursing has responsibility to self-regulate Defining practice of nursing Researching and developing nursing practice Establishing standards of practice Providing for education and credentialing of nurses ANA largest professional nursing organization Established Standards of Clinical Nursing Practice Review Nurse Practice Acts Relate Link the Concepts and Exemplars Refer Go to Nursing Student Resources Reflect Case Study Exemplar 49.2 Advance Directives Overview Healthcare advance directive ( legal document that expresses an individuals desires regarding medical treatment Used once individual no longer able to communicate preferences directly Right to use advance directives guaranteed in Patient Self-Determination Act Patient Self-Determination Act ( federal law requiring healthcare institutions receiving federal funding to On admission, give clients written summary of Healthcare decision-making rights Facilitys policies with respect to recognizing advance directives Ask clients if currently have advance directive Document existence in medical record Client has responsibility to provide copy Educate staff and community about advance directives Ensure that individuals know that facility never discriminates based on whether or not individual has advance directive Advance directives formal written documents that typically outline clients desires regarding Use or withholding of hydration and/or total parenteral nutrition Resuscitation or intubation in event of life-threatening emergency Who has authority to make decisions on clients behalf when client unable to do so Referred to as health surrogate Types of advance directives Living will Provides specific instructions about what medical treatment client chooses to omit or refuse when client unable to make such a decision Durable power of attorney for health care Client designates another person as healthcare surrogate or healthcare proxy This person has power to make healthcare decisions on behalf of client if client unable to do so Case Study B ( Gary Casper has been in the hospital several times in the past year with a deteriorating diagnosis., p. 2667 Elements of an advance directive Advance directives usually gives surrogate decision maker authority to Consent to or refuse any medical treatment or diagnostic procedure Hire or discharge medical providers Authorize admission to medical and long-term care facilities Have access to all medical records Consent to measures for comfort care and pain relief Take whatever measures necessary to carry out wishes Each state determines specific requirements for advance directives Most states require advance directives to be witnessed by two people Many states require that a specific legislated form be used Majority of states do not permit relatives, heirs, primary care providers to serve as witnesses See Figure 494, SAMPLE ADVANCE HEALTHCARE DIRECTIVE, p. 2669 Role of the nurse Nurses need to reassure clients and families that they have option to change their decision Need to assess whether clients and families have accurate understanding of life-sustaining measures Nurses need to be supportive of clients decisions Review Advance Directives Relate Link the Concepts and Exemplars Refer Go to Nursing Student Resources Reflect Case Study Exemplar 49.3 Health Insurance Portability and Accountability Act Overview Health Insurance Portability and Accountability Act (HIPAA) Enacted by Congress in 1996 Purposes Minimize exclusion of preexisting conditions as barrier to healthcare insurance Designate special rights for those who lose other health coverage Eliminate medical underwriting in group plans Includes Privacy Rule National standard for disclosure of private health information Affects all healthcare providers and health insurance plan providers Protected health information Protected health information ( protected by Privacy Rule Individually identifiable health information Includes electronic, paper, oral transmission, or holdings Information that identifies individual Name Address Birth date Social security number Information that may be used to identify individual as relates to Past, present, or future physical or mental health or condition Provision of health care to individual Past, present, or future payment for the provision of health care HIPAA also includes Provisions for protection of clients that addresses access to medical records Required notice of privacy practices and opportunity for confidential communications Limits on use of medical information beyond sharing among healthcare providers directly involved in providing care Prohibition of use of personal information for marketing Individuals may file formal complaint if they feel that healthcare plan or provider violated their HIPAA rights Nurses should be familiar with employers policies See Box 499, EXAMPLES OF HIPAA COMPLIANCE AND NURSING PRACTICE, p. 2671 Privacy versus confidentiality Privacy ( right of individuals to keep their personal information from being disclosed Confidentiality ( the assurance client has that private information will not be disclosed without clients consent Refers to Obtaining information Request and record only information pertinent to health status of client Disclosing information Only disclose information to those directly involved in providing that clients health care Even presence of individual in healthcare setting is protected information Advocating for confidentiality Nurses also professionally obligated to curb gossiping Review HIPAA Relate Link the Concepts and Exemplars Refer Go to Nursing Student Resources Reflect Case Study Exemplar 49.4 Just Culture Overview Move from punitive to proactive culture Just culture Just culture ( based on the understanding that errors are often the result of systems failures rather than human failures Involvement in decision making Support for learning Analysis of system failure Accountability Constructive feedback Each employee has responsibility to Take action to prevent errors Respond to errors Recognize that errors are more often the result of system failures than individual error Recognize that when error does occur, it is usually accidental rather than willful or neglectful Whistleblowing Whistleblowing ( action taken by nurse who goes outside of organization for publics best interest when organization fails to follow procedures Whistleblower ( nurse who takes such action Whistleblower Protection Act of 1989 Establishes certain protections for individuals who report gross misconduct on part of their employers to federal authorities Nurses must first make every effort to resolve concern by following internal procedures Individual does not qualify for protection unless employer threatens or engages in retaliation against employee for making complaint Activity or policy in question must violate state or federal law or rule A few examples Billing fraud Failure to maintain safety equipment Chronic insufficient staffing False Claims Act Encourages individuals to report medical and billing agency fraud Consequences of whistleblowing Potentially negative consequences include Losing support of ones coworkers Losing ones job Failure to act may jeopardize client care Statutes exist to prevent discrimination by employer for reasonable, good-faith reporting Discrimination includes Firing or laying off Blacklisting Demoting Denying overtime or promotion Disciplining Denial of benefits Failure to hire or rehire Intimidation Reassignment affecting promotion prospects Reducing pay or hours Nurse must report illegal activity before resigning from place of employment Review Just Culture Relate Link the Concepts and Exemplars Refer Go to Nursing Student Resources Reflect Case Study Exemplar 49.5 Mandatory Reporting Overview Mandatory reporting ( legal requirement to report act, event, or situation that is designated as reportable by state or local law Disclosure statutes mandate reporting of certain types of health information All states mandate reporting of certain vital statistics Federal and state laws mandate reporting of communicable diseases Abuse or neglect of minors and older adults Abuse or suspected abuse of vulnerable individuals mandated to be reported in most states Report required information through institutions chain of command All information reported is documented in client record Reporters required only to have a good faith suspicion in most states See LIFESPAN CONSIDERATIONS Reporting Abuse or Neglect of an Adult or Other Adult by a Caretaker, p.2674 Good faith immunity Healthcare workers protected in every state when reporting suspected child abuse in good faith See Box 4910, GUIDELINES REGARDING DISCLOSURE OF HEALTH INFORMATION, p. 2675 Mandatory reporting of nurses in violation of the NPA Each states NPA addresses requirements for reporting nurses who are in violation of the NPA Example Any individual who has reasonable cause to suspect that a nurse is in violation of NPA has the duty to report relevant facts to BON Reporting individual not expected to do any type of investigation NPA spells out any formal action the BON may take Nurses themselves have legal obligation to report conduct that is Incompetent Unethical Illegal Mandatory reporting of certain injuries and illnesses Certain types of injuries and illnesses may need to be reported Bullet wounds, gunshot wounds, any other injuries suspected of arising from discharge of a gun or firearm Illnesses that appear to be caused by poisoning Injuries appearing to be caused by knife or other sharp or pointed instrument Any wound, injury, illness resulting in bodily harm as result of suspected criminal act or act of violence Infectious diseases, including Tuberculosis HIV/acquired immunodeficiency syndrome (AIDS) Escherichia coli Primary care provider or hospital staff member making report provides Name Age Sex Race Residence or present location of client Nature and extent of injuries or illness Good faith immunity typically applies Emergency department typically reports injuries due to violence Diagnosis of infectious disease may occur at any point in healthcare interaction Mandatory reporting of infectious conditions is cornerstone of public health Data reported at county level Primary care providers report to local health departments Each county health department reports to states department of health Data provided from state level to Centers for Disease Control and Prevention See Box 4911, NATIONALLY NOTIFIABLE INFECTIOUS CONDITIONS, p. 2675 Other examples of mandatory reporting Most states mandate child care workers, teachers, other school personnel to report any suspicions of child abuse or neglect School administrators typically required to report to law enforcement when have knowledge that a crime has been committed on school property Crimes that typically must be reported Assault Sexual assault Rape Kidnapping Indecent liberties with a minor Possession of a firearm on school property or in violation of the law Review Mandatory Reporting Relate Link the Concepts and Exemplars Refer Go to Nursing Student Resources Reflect Case Study Exemplar 49.6 Risk Management Overview Risk management ( focuses on limiting a healthcare agencys financial and legal risk associated with delivery of care Process that identifies, analyzes, treats potential hazards Purpose is to identify and rectify hazards Typical areas for high risk of incidents Medication administration Falls Overall client safety Use of technology Assessment and communication of allergies Any action or intervention that might harm the client Strategies for risk management Strategies used to minimize risk include Purchasing insurance or self-insuring to protect against financial risk Identifying exposures, types, where they occur, frequency, level of risk Implementing practices to protect against undue risk Implementing organizational programs to prevent occurrence of events that might increase financial risk Investigating incidents that might result in potential lawsuit as soon as possible Monitoring strategies for prevention of risk Implementing a physicians orders Minimize risk by analyzing physician orders Nurses responsibility to seek clarification of ambiguous or erroneous orders Clarification from any other source than prescriber is unacceptable Nurse is responsible for implementing orders if not ambiguous or apparently erroneous Categories of orders that nurses must question Question any order a client questions Question any order if the clients condition has changed Question and record verbal orders to avoid miscommunication Question any order that is illegible, unclear, incomplete Providing competent nursing care Provide care that is within legal boundaries of practice Provide care that is within boundaries of agency policies and procedures Nurses need to anticipate sources of client injury Application of nursing process essential See Box 4912, GUIDELINE FOR LEGAL PROTECTION FOR NURSES, p. 2678 Reducing medical errors among children Children at high risk for medical error Reasons for increased medical errors Medication dosage calculations more complex Misplacement of a decimal in medication dosage calculation can result in overdose Many drug preparations require dilution Medications are sometimes prescribed that are not yet approved by Food and Drug Administration Pediatric standard dosage guidelines have not been established Young children cannot communicate well if having reaction to medication Families with limited English proficiency at risk for potential medical errors Incident reports Each healthcare organization has incident report system as part of risk management Incident report Agency record of accident or incident occurring within agency Designed to collect adequate information to prevent future incidents Also called variance reports or unusual occurrence reports May be used in discovery in some jurisdictions Discoverylegal process of obtaining information before a trial Always fill out incident report as though it is discoverable Do not include language admitting liability Completely and accurately document facts Do not document assumptions, conclusions, blame Include clients account of incident in direct quotes Identify all witnesses Incident reports generally include the following Name and identifying information of any clients and healthcare personnel involved in incident Location, time, date of incident Equipment or medication involved Do not document that incident report completed in clients chart Only document the event that prompted incident report Risk management required of every nurse in course of practicing nursing on daily basis Review Risk Management Relate Link the Concepts and Exemplars Refer Go to Nursing Student Resources Reflect Case Study 2015 by Education, Inc. 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