Transcript Legal - TeacherWeb

Chapter 20
Legal Issues
Copyright © 2006 Elsevier, Inc. All rights reserved
Practical Advice
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“Mother rule”—would you feel comfortable
telling your mother about what you are
doing or propose
to do?
Fraud or defamation
Doing something outside your scope of
practice or something unsafe for the patient
and that could cause injury; these actions
are involved in malpractice
Invasion of privacy and breach of
confidentiality are claims involving gossip or
talking about patients unnecessarily
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Where Does “The Law”
Come From?
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Statutory law— most common type of
law affecting nurses
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Nurse Practice Acts are examples of
state statutory laws
Constitutional law— refers to rights,
privileges, and responsibilities from
U.S. Constitution, including Bill of
Rights
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Where Does “The Law”
Come From? (cont’d)
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Administrative law —rules and
regulations passed by boards of
nursing
Common law —decisions made by
judges in court cases
Case law —composed of decisions
rendered in court cases by appeals
courts
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Court Actions Based
on Legal Principles
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Criminal actions—occur when you have
done something considered harmful to
society as a whole
Civil actions—concern private interests and
rights between individuals involved in cases
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Sometimes an event can have both criminal
and
civil consequences
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Legal Control
Over Nursing Practice
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The Nurse Practice Act—statute
governing nurses in your state
The Board of Nursing—agency
designated
to apply laws to individuals
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What Are The
Legal Aspects of Licensure?
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Receiving license to practice nursing is
a privilege, not a right
License is granted by state after
candidate has successfully met all
requirements
Each state’s Practice Act may be
different from any other state’s Act
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The Nurse Practice Act
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Describes how to obtain licensure and enter
practice within that state
Describes how and when to renew your
license
Defines the educational requirements for
entry into practice
Provides definitions and scope of practice
for each level of nursing practice
Describes the process by which individual
members of the Board of Nursing are
selected and the categories of membership
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The Nurse Practice Act (cont’d)
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Identifies situations that are grounds for
discipline or circumstances in which a
nursing license can be revoked or
suspended
Identifies the process for disciplinary actions,
including diversionary techniques
Outlines the appeal steps if the nurse feels
the disciplinary actions taken by the Board
of Nursing are not fair or valid
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What About the Impaired Nurse?
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Impaired nurses are unable to function
effectively because of some type of
substance abuse
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Heightened awareness
Significant impact on rendering safe,
effective patient care
High stress and easy access to drugs
seem to contribute to this common
problem
Many states have taken a rehabilitative
approach to this problem
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Who Knows About the Disciplinary
Actions Against Nurses?
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NURSYS—Comprehensive electronic
information system including collection and
warehousing of nurse licensing information
and disciplinary actions
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Nurses can also access system to provide
nursing license verification for fee of $30
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National Practitioner Data Bank, was part of
a federal law under Medicare called The
Health Care Quality Improvement Act
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Torts
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Civil actions—plaintiff files lawsuit for
compensation for damages suffered
from perceived wrong
Unintentional torts
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Incidents or accidents
Intentional torts
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Deliberate acts
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Nursing Malpractice
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Most common unintentional tort action
brought against nurses is a
malpractice claim
Important for nurses to know basic
elements that must be proved before
malpractice can occur
From 1990 to 2003, reports made
against 16,339 nurses and nursingrelated practitioners
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What Are the Basic Elements
of Malpractice?
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You must have a duty (in other words, there
must be a professional nurse-patient
relationship)
You must have breached that duty (in other
words, you must have fallen below the
standard of care for a nurse)
Your breach of duty must have been a
foreseeable cause of the patient’s injury
Damages or injury must have occurred
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Malpractice Elements
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Do you have a professional duty?
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Nurse/patient relationship—a professional
duty
to a patient?
Good Samaritan statutes
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Give immunity from malpractice to those
attempting to give assistance at scene of accident
What is the professional duty owed?
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Act as a reasonable nurse would under same
or similar circumstances
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Malpractice Elements (cont’d)
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What about the Nurse Practice Act?
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Acts describe what nurses may do—fairly
general
What’s prohibited—more specific
What is an expert witness?
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Common way to establish duty owed
Testifies what a reasonable nurse would do
in similar circumstances
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Malpractice Elements (cont’d)
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What are established policies and
procedures?
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Crucial pieces of evidence for
establishing standard of care
Resources for questions regarding
certain procedures
What about accreditation and facility
licensing standards?
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Evidence of standard of care for nurses
working in accredited facilities
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Malpractice Elements (cont’d)
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Was there a breach of professional
duty?
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Standard of care not met must be proved
Must demonstrate you did not act as a
reasonable and prudent nurse under the
circumstances
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Malpractice Elements (cont’d)
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Did the breach of duty cause the
injury?
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Causation must be proven
Good documentation makes proof
impossible
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Malpractice Elements (cont’d)
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Well-documented observations include
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Patient’s physical/mental condition upon
admission and discharge
After incident (i.e., fall), note patient’s physical
and mental condition
Patient’s noncompliance with medical
directives
Any patient complaints or noncomplaints
Note exactly what patient says
Note patient’s own admissions
Clear discharge instructions
Allergies or lack of any allergies
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Malpractice Elements (cont’d)
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Applying “causation”
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Document facts
Document what you see and do
Role is to render nursing services, not to
judge
Leave the determination of fault to courts
Actions and truthful documentation will be
best defense
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Malpractice Elements (cont’d)
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Did the patient suffer damages or injury?
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Must be proved that breach of duty caused
injury to patient
Damages—sum of money
General damages—given for intangibles such as
pain/suffering, disfigurement, interference with
ordinary enjoyment of life, loss of consortium
Special damages—out-of-pocket expenses
Punitive damages—to punish those whose
conduct goes beyond normal malpractice
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Who Might Have Liability
(Responsibility) in a Claim?
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Personal liability
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Each individual accountable for own actions
You are held to professional standard of care
Physician and other independent
practitioner liability
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NOT ultimately responsible for everything that
happens to patient
Nurses follow orders, but not those unsafe for
patients or out of scope of practice
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Who Might Have Liability
(Responsibility) in a Claim? (cont’d)
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Supervisory liability
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Task properly assigned to competent worker
Adequate supervision provided
Nurse provided appropriate follow-up and
evaluation of delegated task
Institutional liability
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Respondeat superior
Carry insurance
Policies or lack of common claim in court
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Who Might Have Liability
(Responsibility) in a Claim? (cont’d)
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Student liability
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Responsible for own actions
Held to standard of RN for performed
tasks
Don’t accept assignments beyond
preparation
Communicate frequently with instructors
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What Evidence Can Help
Me in a Lawsuit?
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Medical record
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1 of 4 cases decided on basis of what’s in
the medical record
Integrity, accuracy, and completeness
makes claim defensible or indefensible
Good documentation—best defensive
action
Document extensively, accurately, and
very factually
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How Can I Avoid a
Malpractice Claim?
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Medication errors
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Violation of classic five rights
Miscalculations, drug interactions, drug
allergies
Listen to patients or family members
regarding new medications, recheck
anything amiss
Take time to administer correctly
(will ultimately save time)
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How Can I Avoid a
Malpractice Claim? (cont’d)
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Provide a safe environment
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Know how equipment works
Remove hazards such as chemicals
Make environment free of hazards such
as poorly placed furniture or equipment
Document any incident correctly
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How Can I Avoid a
Malpractice Claim? (cont’d)
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Patient falls
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Primary risk second to med errors
Source of both physical and
psychological injury to elderly patients
First duty to patient
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Notify physician to assess and treat
Make sure patient is protected from another
fall
Notify family
Document what occurred
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How Can I Avoid
a Malpractice Claim? (cont’d)
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Equipment failure
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Know standard of care connected with
equipment
Use as directed
Properly maintained?
Working properly?
Removed from service if necessary
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Malpractice Claim? (cont’d)
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Failure to adequately assess, monitor,
and obtain assistance
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Do not delegate assessment and
evaluation of patient care and progress
Be aware of any changes in progress
Document changes and events
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How Can I Avoid a
Malpractice Claim? (cont’d)
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Failure to adequately adequately
communicate
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Communicate changes in patient’s
condition
Document this communication (not to be
done defensively)
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How Can I Avoid a
Malpractice Claim? (cont’d)
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Failure to report
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Must report certain incidences or occurrences
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Unprofessional behavior of health care professional
Evidence of child/adult/elderly abuse/neglect
Certain communicable diseases
Certain deaths under suspicious circumstances
Certain types of injuries possibly caused by violence
Evidence of Medicare fraud
Emergency Medical Treatment and Labor Act
violations
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Intentional Torts
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Closely related to criminal acts
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Assault and battery
False imprisonment
Defamation
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Libel
Slander
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Intentional Torts (cont’d)
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Don’t communicate patient information
without the patient’s consent
Confidentiality
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Keep info about patients to themselves, share
only with other health care workers
Invasion of privacy
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Photographing procedures
Going through patient’s belongings
Talking about patient’s private life publicly
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Miscellaneous Intentional Torts
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Intentional infliction of emotional
distress
Sexual harassment and discrimination
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Defense for Intentional Torts
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Informed consent—patient informed of:
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Nature of proposed care, treatment,
services, medications, interventions, or
procedures
Potential benefits, risks, or side effects
Likelihood of achieving care, treatment,
and service goals
Reasonable alternatives and their risks
and benefits and alternative of refusing
all interventions
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What Criminal Acts Pose
a Risk to the Nurse?
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Theft and misappropriation of property
Nursing practice violations
Violations of the Food and Drugs Act
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How Do I Protect Myself and My
Patient from All These Risks?
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Quality assurance, continuous quality management,
or continuous quality improvement
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Peer review
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Look for better ways to give care
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Evaluate what nurses are doing
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Develop policies and procedures
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Prepare staff—competent?—skill documentation
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Continuing education and certification
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Employee evaluations
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Ongoing monitoring
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How Do I Protect Myself and My
Patient from All These Risks?
(cont’d)
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Risk management
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Process to review untoward events
posing financial risk/lawsuit to institution
Evaluate how to prevent reoccurrence by
changing systems
Tool—incident report
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Do NOT include: conclusions, opinions,
defensiveness, and judgments, or blame of
others
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How Do I Protect Myself and My
Patient from All These Risks?
(cont’d)
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Risk management (simple actions by
nurses)
 Apologize and offer to help
 Sharing uncertainties and bringing down
patient’s expectations during informed
consent process
 Not participating in gossip or judging
others
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Malpractice Insurance
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What about individual malpractice
insurance?
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Not very expensive
Not used much
What is institutional coverage?
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Most carry large policies covering acts or
omissions by employed nurses
Most individual policies are secondary to this
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Malpractice Insurance (cont’d)
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What should I ask about institutional
coverage?
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Name of carrier, limits of policy, and rating of insurance
company
Covered for all acts occurring/acts not covered
Cover if you need to appear before State Board of
Nursing
Independent practitioners must know how covered by
employers
Limited coverage if working in physician’s office
If self-employed, need to purchase coverage
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What Happens When I Go to Court?
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95% of personal injury lawsuits are
either dismissed or settled out of court
Discovery process
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Interrogatories—written questions
Deposition—recorded oral questioning
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What Happens When I Go to Court?
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At deposition
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Look/act like professional, be prepared
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Be clear, accurate, and very concise
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Give NO opinions, stick to facts
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Speak slowly, use well-modulated tone
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Ask for questions to be repeated if don’t understand
or don’t remember
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Correct any misstatements
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Don’t become angry or give emotional responses
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Avoid “always,” “never,” “maybe,” “I think,” or “possibly”
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Do not answer more than is asked
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