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Legal and Legislative Issues
Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins
The primary purpose of law and legislation is to
protect the patient and the nurse.
Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins
Types of Law
• Criminal law
• Civil law
• Administrative law
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Two Types of Negligence
• Ordinary negligence
• Professional negligence (also called malpractice)
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Nurses Are at Increased Legal Liability in the
21st Century Owing to:
• More authority and independence in decision making.
• Increased legal accountability for decision making.
• Doing more things that used to be in the realm of medical
practice.
• Making more money.
• More of them carrying malpractice insurance.
Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins
Need for Malpractice Insurance
Nurses need malpractice insurance because of their
expanded roles, but they also incur a greater likelihood of
being sued if they have malpractice insurance, since injured
parties will always seek damages from as many individuals
with financial resources as possible.
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Standard of Care
• A minimal level of expertise that may be delivered to a
patient
• The conduct of a reasonably prudent nurse in similar
circumstances
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Malpractice
The failure of a person with professional training to act in a
reasonable and prudent manner—also called professional
negligence.
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Five Components Necessary for Professional
Negligence to Occur
•
A standard of care is in place. (Nurse-patient relationship)
•
There is a failure to meet the standard of care.
•
Foreseeability of harm must exist.
•
There must be a provable correlation between care and
harm.
•
Actual patient injury must occur.
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Professional Negligence
Being ignorant is not a justifiable excuse, but not having
all the information in a situation may impede one’s ability
to foresee harm.
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Under Ordinary Circumstances:
The question of whether a nurse acted with reasonable
and prudent care is determined by the testimony of
expert nursing witnesses.
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Being Sued for Malpractice
• “Just following physician orders” is NOT a defense for
malpractice.
• Nurses have an independent responsibility to take
appropriate steps to safeguard patients.
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Civil Cases (Typically Including Malpractice)
• One individual sues another monetarily to compensate for a
perceived loss.
• Burden of proof required to be found guilty is a preponderance
of the evidence.
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Legal Terms
• Stare decisis
• Liability
• Tort
• Respondeat superior
• Res ipsa loquitur
• Vicarious liability
• Product liability
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Stare Decisis
Means “to let the decision stand” (to use precedents).
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Respondeat Superior
Means “the master is responsible for the acts of his servants.”
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Res Ipsa Loquitur
• Means “the thing speaks for itself.”
• Harm is obviously the result of negligence.
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Intentional Torts
• Assault and battery
• False imprisonment
• Invasion of privacy
• Defamation of character
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False Imprisonment
The use of physical restraints has led to claims of false
imprisonment.
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Frequent Causes of Claims Against Nurses
• Inadequate charting.
• Inadequate communication with physician or
supervisors about changes in patient conditions.
• Leaving potentially harmful items within patient
reach.
• Unattended patient falls.
• Inaccurate counting of operative instruments and
sponges.
• Misidentifying patients for medications, surgeries,
tests.
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The Board of Registered Nursing
Protects Citizens by:
• RN licensing
• Monitoring of RN educational standards
• RN continuing education
• Disciplining RNs
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RN Licensure
• Boundaries for practice are defined in the Nurse
Practice Act of each state.
• Remember that nursing licensure is a privilege
and not a right.
• Since the first mandatory Nurse Practice Act
passed in New York in 1938, nursing has been
legislated, directed, and controlled to some
extent.
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Nurse Practice Act
• The Nurse Practice Act is a legal instrument
that defines what the functions of nursing
shall be and sets standards for licensure.
• It grants a nurse the authority to carry out
those functions.
• Each state has its own Nurse Practice Act,
but all must be consistent with provisions
or statutes established at the federal level.
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NYS Nurse Practice Act
The practice of the profession of nursing as a registered
professional nurse is defined as diagnosing and treating human
responses to actual or potential health problems through such
services as casefinding, health teaching, health counseling, and
provision of care supportive to or restorative of life and wellbeing, and executing medical regimens prescribed by a
licensed physician, dentist or other licensed health care
provider legally authorized under this title and in accordance
with the commissioner's regulations. A nursing regimen shall
be consistent with and shall not vary any existing medical
regimen.
NYS Education Law Article 139, Nursing
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Types of Consent
• Informed consent
• Implied consent
• Express consent
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Informed Consent
• Obtained only after the patient
receives full disclosure of all
pertinent information regarding the
surgery or procedure and only if the
patient understands the potential
benefits and risks associated with
doing so.
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Implied Consent
• Situations in which the patient presents needing care,
usually an emergency situation and is unable to consent.
• The physician describes the circumstances in the medical
record, indicates the patient is unable to sign and
certifies that it is an emergency and the procedure must
be done to protect the health of the patient. It usually
requires that a second physician make an independent
concurring judgment and documents that in the record.
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Express Consent
• Nurses seek expressed consent form the patient when
witnessing a patient sign a standard consent form. The
role of the nurse is to ensure that the patient t has
received informed consent and if, not, seek remedy.
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Medical Records
Although the patient owns the information
in the medical record, the actual record
belongs to the facility that originally made
the record and is storing it.
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The Patient Self-Determination Act (PSDA)
(1991)
Requires health care organizations that
receive federal funding to provide education
for staff and patients on issues concerning
treatment and end-of-life issues.
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Health Insurance Portability and Accountability
Act (HIPAA) of 1996
Protects the privacy of health information and
improves the portability and continuity of health
insurance coverage.
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Good Samaritan Immunity
Generally, a nurse is not liable for injury that
occurs as a result of emergency
treatment, provided that:
• Care is provided at the scene of the
emergency.
• The care is not grossly negligent.
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