Transcript False Imprisonment

Legal Issues in Health Care
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LEGAL ISSUES
DEDE CARR, BS, LDA
KAREN NEU, MSN, CNE, CNP
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Legal Issues
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Competencies:
 4. Describe the components of healthcare employee
and healthcare liability when delivering client care.
A.
B.
C.
Define: liability, negligence, malpractice and scope of
practice.
Discuss what a policy and procedure is.
Describe how policy and procedures protect the worker and
client from harm.
Legal Issues
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Competencies:
 Discuss how confidentiality must be maintained in
healthcare facilities with clients and their medical
records.
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Define confidentiality.
Discuss examples of confidential information
Discuss with whom confidential information can be shared
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Define libel and slander.
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Vocabulary List
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 Review terms (see instructor resource and course
outline)
Law
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 Law can be defined as “those rules made by humans
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which regulate social conduct in a formally binding
manner” (Bernzweig, p. 3, as cited in Ramont & Niedringhaus, p. 28).
It provides a framework for establishing which
healthcare worker actions in the care of clients are legal.
It differentiates the healthcare worker’s responsibilities
from those of other healthcare professionals.
It helps establish the boundaries for independent nursing
actions.
It assists in maintaining a standard of healthcare practice
by making healthcare workers accountable under the
law.
(Ramont & Niedringhaus, p. 28)
Legal Actions
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Two kinds of legal actions:
 Civil or private Actions
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Civil actions deal with relationships among individuals
in society.
 For example, a man may file a suit against a person who he
believes cheated him (Civil).
 Criminal Actions
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Criminal actions deal with disputes between and
individual and society (Criminal).
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For example, if a man shoots a person, society bring him to trial.
(Ramont & Niedringhaus, p. 28)
Legal Action Differences
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 Major difference between criminal and civil law is
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the potential outcome for the defendant.
If found guilty in a civil action, such as malpractice,
the defendant will pay a sum of money.
If found guilty in a criminal action, the defendant
may lose money, be jailed, or be executed.
Healthcare workers & nurses can lose their license.
The action in a lawsuit is called litigation, and
lawyers who participate in lawsuits may be referred
to as litigators.
(Ramont & Niedringhaus, p. 28)
Legal Process-Civil
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Civil litigation begins when the plaintiff (the complaining
party) contacts an attorney. If a legal basis is found for
litigation, a document called a complaint (statement by the
plaintiff) is written and filed in the appropriate court.
 The complaint names the defendant (the person alleged
liable), states the facts involved in the case, defines the legal
issues raised, and outlines the damages (compensation
sought by the plaintiff.
 Once the defendant is served a summons (a court order that
notifies the defendant of the legal action), legal notices has
been given and the defendant hires an attorney to represent
his/her lawsuit.
 The attorney will prepare and file an answer (a detailed
response to the charges outlined in the complaint) that will
either admit to or deny an or all of the allegations made in the
complaint.
(Parker-Feliciano, p. 22)
Civil Litigation Process
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 The next step in litigation is a phase called discovery (a
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pretrial process allowing both sides to interview witnesses and
look at documents) before the trial.
Depositions (out-of-court statements made by a witness
under oath) may be taken, and interrogatories (written
questions that must be answered in writing) may be served on
the opposite party.
At trial, evidence will be presented and witnesses will be called
to testify under oath.
Once the evidence has been presented, a verdict (a decision)
will be rendered based on the facts of the case, the evidence
and testimony presented, the credibility of the witnesses, and
the laws that pertain to the issue/issues.
If either party disagrees with the outcome of the lawsuit they
may file an appeal (request for a review of the decision).
(Parker-Feliciano, p. 22)
Criminal Legal Process
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 In a criminal trial, the defendant (person accused
of the crime) has been arrested for a crime against the
People (society). At trial, the People’s attorney and
the defendant’s attorney present their case.
 The judge or jury if a jury trial then deliberate
(decide) the guilt or innocence of the defendant.
 If a verdict of not guilty is reached, the defendant is
released from custody.
 If the verdict is guilty, the sentence (penalty) is
decided based on the severity of the crime, the
defendant’s past criminal record, and applicable laws.
(Parker-Feliciano, p. 22)
Civil Law-Tort
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 A tort is a civil wrong committed against a person or
person’s property.
 Torts are usually litigated in court by civil action
between individuals.
 The person or persons claimed to be responsible for
the tort are sued for damages.
 Tort liability almost always is based on fault, that
is, something done incorrectly (an unreasonable act
of commission) or something should have been done
but was not (an unreasonable act of omission).
(Ramont & Niedringhaus, p. 28)
Torts-Civil Law
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Unintentional Torts
Intentional Torts
 Negligence:
 Assault
 Malpractice
 Battery
 False imprisonment
 Invasion of privacy
False Communication
 Defamation
 Slander
Loss of Client Property
Negligence-Unintentional Tort (Civil)
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Negligence: misconduct or practice that is below the
standard of expected of an ordinary, reasonable, and
prudent practitioner/nurse/healthcare worker, which
places another person at risk for harm.
 Giving the wrong medication, the wrong food, or even
food at the wrong consistency could be seen as
negligence.
 Pay attention to individual patient needs.
 Perform all your duties related to the patient as
instructed.
 Missing or incorrectly doing one part of the care could be
construed as negligence. (Ramont & Niedringhaus, p. 28)
Standards of Care
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Standards of Care: Acts that are permitted to be
performed or prohibited from being performed.
Every healthcare provider is obligated to know and follow
the established standards of care; the legal test is
what a reasonable prudent (wise) healthcare worker of
a similar education and experience would have done
under similar circumstances.
 The healthcare worker is held to the standards of care
in the state in which he or she practices.
 Federal and state laws, rules, regulations, and other
professional agencies/organizations help define these
standards.
(Parker-Feliciano, p. 23)
Negligence-Civil Tort
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Gross negligence involves extreme lack of
knowledge, skill, or decision-making.
 The person clearly should have known that such
behavior put clients at risk for harm.
(Ramont & Niedringhaus, p. 28)
Malpractice-Unintentional Tort (Civil)
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 Malpractice is negligence that occurred while the
person was performing as a professional.
 Four elements must be present for a case of negligence
or malpractice to be proven:
1. Healthcare worker has a relationship with the client
(duty).
2. Healthcare worker fails to uphold the appropriate
standard of care (breach).
3. The client has suffered harm, injury, or damage
(harm).
4. The harm has to be a direct result of the healthcare
worker’s failure to provide appropriate care
(causation).
(Ramont & Niedringhaus, p. 29)
Negligent Actions
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 If a lawsuit is filed for a negligent act performed by a
healthcare worker, it will also name the healthcare
worker’s employer (facility).
 In addition, employers may be held liable (legally
responsible) for negligence if they fail to provide adequate
human and material resources for healthcare., to properly
educate healthcare workers on the use of new equipment
or procedures, or to orient healthcare workers to the
facility.
 Sometimes the harm cannot be traced to a specific
healthcare provider or standard but does not normally
occur unless there has been a negligent act.
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Example, harm that results from surgical instruments accidently left in
a client during surgery.
(Ramont & Niedringhaus, p. 29)
Malpractice-Negligence
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 To defend against a negligence suit, the healthcare worker
must prove that one or more of the required elements is
not met.
 There is also a limit to the amount of time that can pass
between recognition of harm and the bringing of a suit;
referred to as the statute of limitation.
 In some cases, an additional defense is “contributory
or comparative negligence” on the part of the injured
person. In these situations, the client was at least partly
responsible for his/her own injury.
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Example, when clients choose not to follow healthcare advice, such as
remaining in bed while recovering from treatment, the court may
reduce any verdict against the healthcare worker by an amount
considered to be the plaintiff’s own fault. (Ramont & Niedringhaus, p. 29)
Malpractice
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 A person who does NOT give care with same level of skill
that they learned in school can be found guilty of
malpractice when this leads to an injury or damage to the
person.
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For example, when a nursing assistant does NOT wash his/her hands
between patients and some of the patients get a serious infection,
this nursing assistant can be found guilty of malpractice.
 Nursing assistants should know how and when to wash
their hands. Hand washing is learned in school before
one becomes a nursing assistant and it is again taught
again on a regular basis when the nursing assistant takes
an in-service class on infection control. (Burke)
Negligence
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 Negligence is when a person does NOT act the way
they should.
 For example, a nursing assistant is negligent when they
do NOT take vital signs when they should have.
 Criminal negligence occurs when a person is very
reckless with patients and residents.
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For example, a nursing assistant can be found guilty of
criminal negligence if their at-risk for falls patient falls
and dies after they were left alone for hours in a bath tub.
(Burke)
Unprofessional Conduct
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Abandonment is when a person leaves residents or
patients without the care that they need.
 A nursing assistant has abandoned the patients and
residents when he/she leaves his/her place of work
and goes home before the end of the shift without
telling the nurse or supervisor.
Unprofessional conduct is when a person does
NOT follow standards of practice even when NO
harm or injury has come to a patient or resident.
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For example, a nursing assistant who comes to work impaired
with alcohol or drugs is showing unprofessional conduct even
if none of the patients is harmed. (Burke)
Malpractice Situations
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 To avoid malpractice, the healthcare worker must
recognize situations in which negligent actions are
most likely to occur & take measures to prevent
them.
 A common malpractice situation involves medication
errors.
 Another frequent malpractice action is attributed
causing burns in a client (too hot a heating pad,
bathwater, compresses). The elderly, comatose, and
diabetic people are particularly vulnerable to burns
because of their decreased sensitivity to pain and
temperature.
(Ramont & Niedringhaus, p. 29)
Malpractice Examples
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 Falls: clients often fall accidently, sometimes with a
resultant injury.
 Some falls can be prevented by raising the side rails on
cribs, beds, and stretchers for babies & small children,
and some adults. If the healthcare worker leaves the side
rails down or the baby unattended on the changing table,
that healthcare worker is guilty of malpractice if the
client falls and is injured as a direct result.
 Healthcare workers must follow the facility’s policy and
procedures about providing a safe client environment.
(Ramont & Niedringhaus, p. 29)
Malpractice Situations
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 In some instances, ignoring a client’s complaints can
constitute malpractice.
 This type of malpractice is termed failure to
observe and take appropriate action.
(Ramont & Niedringhaus, p. 29)
Intentional Torts
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Intentional Torts
 Assault
 Battery
 False Imprisonment
 Invasion of privacy
False Communication
 Defamation
 Slander
Loss of client property
Intentional Torts
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Assault: an attempt or threat to touch another person
unjustifiable
Assault precedes battery;
 It is the act that cause the person to believe a battery is
about to occur.
Example: the person who threatens someone by making a
menacing gesture with a club or a closed fist is guilty of
assault.
 In healthcare, a healthcare worker who threatens a client
with an injections after the client refuses to take the
medication orally would be committing an assault.
(Ramont & Niedringhaus, p. 30)
Intentional Tort
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Battery: the willful touching of a person (or person’s
clothes, or even something the person is carrying) that
may or may not cause them harm.
 To be illegal, however, the touching must be wrong in
some way; it must be done without permission, be
embarrassing, or cause injury.
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Example if the healthcare worker followed through with his threat &
gave the injection without the client’s consent, he would be
committing battery.
 Even though the physician ordered the medication &
even if the client benefits from the administration of the
medication, the healthcare worker is still liable.
(Ramont & Niedringhaus, p. 30)
Assault & Battery-Torts
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The care provided to the client by a healthcare worker is with
the client’s permission or informed consent.
 Therefore, a patient should know and agree to what the
healthcare worker plans do before starting to provide that
care.
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For example, the healthcare worker is assigned to do a warm
foot soak for the client. Despite the healthcare worker’s
explanation of reasons for the order, the client refuses.
The healthcare worker cannot force the client to submit as doing
so would result in battery. Assault occurs if the healthcare
worker threatened the client that she/he would get others to
assist if the client continued to refuse.
(Hegner, Acello, Caldwell, p. 40)
Avoid Liability Pitfalls
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 Inform the patient what you plan to do.
 Make sure the patient understands.
 Pause before starting the care to give the client an
opportunity to refuse.
 Report refusal of care to your supervisor & document
the facts.
 Never carry out a treatment on your own against the
patient’s wishes.
Coercion means forcing the client to do something
against his/her wishes. (Hegner, Acello, & Caldwell, p. 40)
Avoid Liability Pitfalls
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Refusal of a treatment creates a dilemma for the nursing
assistant when the patient is mentally confused.
In general a family member or other responsible person gives
consent for treatment. In this situation, it is presumed that
the client would agree if he/she were mentally able to do so.
The patient may refuse a procedure, such as a bath, but the
legally responsible person consented to the procedure, so you
may perform it.
Gaining the client’s cooperation and trust is best. The nursing
assistant may be able to perform the procedure if he/she waits
awhile and returns.
Avoid forcing the patient.
If one is unsure of how to handle refusals, check with the
supervisor.
(Hegner, Acello, & Caldwell, p. 40)
Intentional Tort
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False Imprisonment: the “unlawful restraint or
detention of another person against his/her wishes.”
False imprisonment need not require force; the
fear of force to restrain or detain the individual is
sufficient (Bernzweig, as cited in Ramont & Niedringhaus, p.
30).
 False imprisonment accompanied by forceful
restraint or threat of restraint is battery.
(Ramont & Niedringhaus, p. 30)
False Imprisonment-Restraints
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Using physical restraints or threatening to do so, in
order to make a client cooperate can constitute false
imprisonment.
Restraints may be in the form of physical devices or
chemical agents.
A physical restraint is any manual method or physical
or mechanical device, material, or equipment attached or
adjacent to the patient’s body that
 A patient cannot easily move
 Restricts a patient’s movement
 Does not allow the patient normal access to his/her body
False Imprisonment-Restraints
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 Physical Restraints Examples
 Wrist/arm & ankle/leg restraints
 Vests
 Jackets
 Hand mitts
 Geriatric chairs; cardiac chairs
 Wheelchair safety belts & bars
 Bed rails if they meet the definition listed
 In general, many devices and practices meet the
definition of physical restraints if the patient does not
have the physical or mental ability to remove the device.
(Hegner, Acello, & Caldwell, p. 39)
False Imprisonment-Restraints
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Examples of other practices that constitute restraints:
 Tucking in, tying, or using Velcro to hold a sheer
fabric or clothing tightly so the patient’s movement is
restricted.
 Using devices in conjunction with a chair (trays,
tables, bars, or belts)that the patient cannot move
easily and that keep the patient from rising.
 Placing the patient in a chair that prevents the patient
from rising.
 Placing a chair or bed so close to a wall that the wall
prevents the patient from rising or voluntarily getting
out of bed.
(Hegner, Acello, & Caldwell, pp. 39-40)
False Imprisonment-Restraints
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According to the Minnesota Department of Health,
research shows multiple risks with the use of physical
restraints. Access the website for information about:
MDH: Safety without Restraints
The following are some risks with restraints:
Falls
Strangulation
Loss of Muscle Tone
Pressure Sores
Decreased Mobility
Agitation
Reduced Bone Mass
Stiffness
Frustration
Loss of Dignity
Incontinence
Constipation
False Imprisonment-Restraints
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 Psychoactive medications are considered
chemical restraints because they affect the
patient’s mobility.
 Sometimes it is necessary to support and restrain the
movements of patients.
 Support or restraints cannot be used without a
physician’s order.
 This order indicates the extent of the restraint or
support to be used, when it is used, and the reason
for it.
(Hegner, Acello, & Caldwell, p. 40)
Alternatives to Restraints
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1. Personal strengthening and rehabilitation program;
2. Use of "personal assistance" devices such as hearing
aids, visual aids and mobility device;
3. Use of positioning devices such as body and seat
cushions, and padded furniture;
4. Efforts to design a safer physical environment, including
the removal of obstacles that impede movement,
placement of objects and furniture in familiar places,
lower beds and adequate lighting;
5. Regular attention to toileting and other physical and
personal needs, including thirst, hunger, the need for
socialization, and the need for activities adapted to
current abilities and past interests;
(Minnesota Department of Health)
Alternatives to Restraints
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6. Design of the physical environment to allow for close
observation by staff;
7. Efforts to increase staff awareness of residents' individual
needs - possibly including assignment of staff to specific
residents, in an effort to improve function and decrease
difficult behaviors that might otherwise require the use of
restraints;
8. Design of resident living environments that are relaxing
and comfortable, minimize noise, offer soothing music
and appropriate lighting, and include massage, art or
movement activities;
9. Use of bed and chair alarms to alert staff when a resident
needs assistance;
10. Use of door alarms for residents who may wander away.
(Minnesota Department of Health)
False Imprisonment-Tort
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 Nurses may suggest under certain circumstances that a client
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remain in the hospital room or bed, but the client must not be
detained against the client’s will.
The client has a right to insist on leaving, even though it may
be detrimental to his/her health.
The client can leave by signing an absence without authority
(AWA) or against medical advice (AMA) form.
If you learn that a client wishes to leave without permission,
inform your supervisor who will take care of the situation.
As with assault & battery, client competency is a factor in
determining whether there is a case of false imprisonment or
a situation of protecting a client from injury.
Agencies have clear policies about the application of restraints
to guide healthcare workers in such dilemmas.
(Ramont & Niedringhaus, p. 30)
Intentional Tort
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 Invasion of Privacy: a direct wrong of a personal
nature that injures the feelings of the person and does
not take into account the effect of revealed
information on the standing of the person in the
community.
 Privacy is the right of individuals to withhold
themselves and their lives from public scrutiny, or the
right to be left alone.
 Liability can result if the healthcare worker breaches
confidentiality by passing along confidential client
information to others or by intruding into the client’s
private domain. (Ramont & Niedringhaus, p. 30)
Invasion of Privacy
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 Patients have a right to their person and personal affairs
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kept confidential.
Protect the patient from exposure of his/her body.
Knock & pause before entering the patient’s room.
Draw the curtains when providing cares.
Leave the room while visitors are with the patient.
Do not listen to patients as they make calls.
Abide by the rules of confidentiality.
Do not try to force a patient to accept your personal beliefs
or views.
Do not discuss the patient’s condition with anyone outside
of work.
(Hegner, Acello, Caldwell, p. 42)
Invasion of Privacy-Tort
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Necessary discussion about a client’s medical condition is
usually considered appropriate, but unnecessary
discussion and gossip are considered a breach of
confidentiality.
 Necessary discussion involves only those people engaged
in the client’s care.
Four major areas of confidential client information must be
reported:
1. Vital statistics (births, deaths)
2. Infections and communicable diseases (syphilis)
3. Child or elder abuse; any abuse
4. Violent incidents (knife or gunshot wounds)
(Ramont & Niedringhaus, p. 30)
Invasion of Privacy-Tort
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 As of April 14, 2003, healthcare agencies and
providers must adhere to the Health Insurance
Portability and Accountability Act of 1996
(HIPAA).
(Ramont & Niedringhaus, p. 30)
Patient Information--The ethical code asserts that
information about clients is privileged and must not
be shared with others. (Hegner, Acello, & Caldwell, p. 37)
Confidentiality
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Discuss client information only in appropriate places:
 It is unwise to discuss a patient’s condition while in a
patient’s room, even if the patient is unconscious. The
patient may be able to hear & it could cause
unnecessary worry.
 Never discuss the patients in your care with your
family or in the community.
 Never discuss the patients during lunch or breaks,
even with your coworkers. (Hegner, Acello, & Caldwell, p. 37)
Confidentiality
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Discuss patient information only with the proper people.
 At times you may be approach by others requesting information about a
patient.
 For example, you might be asked for such information by other
patients, family members, or members of the public, such as news
reporters.
Discuss patients and their personal concerns only with your
supervisor during a conference or report.
 Make sure you are not being overheard by visitors or other
patients.
 You will learn to evade inquires tactfully: Stating that you do not
know all the details of the treatment or the patient’s condition.
 Redirecting inquires to the proper authority.
 Firmly, but politely, indicate that you do not have the authority
to provide the answers they seek.
(Hegner, Acello, & Caldwell, p. 37)
Confidentiality
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 Refer patient’s questions about laboratory results,
the patient’s condition, or course of illness to the
nurse or doctor.
 Let the nurse/doctor relay information about a
client’s death. Never give information concerning a
client’s death to the patient’s family. When done with
tact, a refusal if this kind is rarely resented by the
family.
(Hegner, Acello, & Caldwell, p. 37)
False Communication-Tort
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Defamation: Communication that is false, or made with a
careless disregard for the truth, and that results in injury
to the reputation of a person.
 Libel: Defamation by means of print, writing, or pictures.
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Writing in a patient’s chart that the physician is incompetent because
he doesn’t respond immediately to a call is an example of libel.
 Slander: Defamation by the spoken word, stating
information or false words that can cause damage to a
person’s reputation.
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An example of slander would be for the healthcare worker to tell the
client that another healthcare worker is incompetent.
(Ramont & Niedringhaus, p. 30)
Defamation-Slander
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 If a comment that criticizes a person’s competence is
made to that person in private, it is not defamation
because a third party cannot hear it.
 It is slander only if it is communicated to a third
party.
 Nurses are allowed to make statements that could be
considered defamatory, but only as part of nursing
practice and only to a physician or another
healthcare team caring directly for the client, for
example: “The client exhibits inappropriate sexual
behavior.”
(Ramont & Niedringhaus, p. 30)
Loss of Client Property
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 Client property, such as jewelry, money, eye glasses,
and dentures is a constant concern to hospital
personnel.
 Many agencies request that client’s leave valuables at
home to decrease the risks of lost property.
 Sometimes situations arise in which the client may
have valuables & facilities have policies to safeguard
the client’s property.
 Healthcare workers are expected to take reasonable
precautions to safeguard a client’s property, and they
can be held liable for its loss or damage if they do not
exercise reasonable care. (Ramont & Niedringhaus, pp. 30-31)
Theft
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 Taking anything that does not belong to you makes you guilty of theft. If
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you are caught, you are liable. The article taken need not be large or
expensive to be considered stolen.
Even if patients offer an item to you, do not take it.
 Some patients may not be aware of their offer later, and it could look
bad.
If you see someone stealing something and you do not report it, you are
guilty of aiding and abetting the crime.
Because of the nature of work in healthcare, people must be honest and
dependable.
Despite careful screening, dishonest people are sometimes hired and
things begin to disappear.
These range from washcloths, money, patient’s personal belongings to
drugs.
Sometimes workers are reluctant to report things that they see other
people doing.
Remember you are responsible for your own actions & must take the
proper actions.
(Hegner, Acello, & Caldwell, p. 39)
Criminal Law
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A crime is an act committed in violence of public
(criminal) law and punishable by a fine or imprisonment.
Crimes are classified as either felonies or
misdemeanors.
Crimes are punished through the criminal action by the
state against an individual.
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A felony is a crime of serious nature, (i.e., murder) punishable by
prison.
In other areas, second-degree murder is called manslaughter.
A misdemeanor is a less serious offense than a felony and it is
usually punishable by a fine, a short-term jail sentence, or both.
A healthcare worker who slaps a client’s face could be charged with a
misdemeanor.
(Ramont & Niedringhaus, p. 31)
Interventions to Prevent Law Suits
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 Stay within your scope of practice & do not overstep
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your authority
Do only things that you have been taught to do and
that are within your scope of training.
Carry out procedures carefully as you were taught.
Request guidance from the proper person before you
take action in a questionable situation.
Always keep safety and the well-being of the client
foremost in your mind and act accordingly.
(Hegner, Acello, & Caldwell, p. 41)
Interventions to Prevent Law Suits
54
 Make sure you thoroughly understand directions for





the care you are to give; don’t be afraid to ask
questions to clarify.
Perform your job according to the facility’s policies.
Maintain in-service/educational requirements of
OBRA
Stay within the OBRA guidelines.
Do no harm to the patient.
Respect the patient’s belongings (property).
(Hegner, Acello, & Caldwell, p. 41)
References
55
Burke, A. (2010). Legal aspects and ethics. Retrieved from
http://www.nursingassistanteducation.com/site/courses/eng/nae-liaeeng.php
Hegner, B.R., Acello, B., & Caldwell, E. (2004). Nursing assistant: A
nursing process approach (9th ed.). Clifton Park, NY: Thompson
Delmar Publishing
Minnesota Department of Health. (2001, December). Safety without
restraints: A new practice standard for safe care. Retrieved from
http://www.health.state.mn.us/divs/fpc/safety.htm
Parker-Feliciano, K. (2006). Legal and ethical aspects of nursing. In B.L.
Christensen & E. O. Kockrow (Eds.). Foundations and adult health
nursing (5th ed.) (pp. 270-314). St. Louis, MO: Elsevier, Mosby
Ramon, P.R. & Niedringhaus, D. M. (2008). Infection control and asepsis.
Fundamental nursing care (2nd ed.) (pp. 149-176). Upper Saddle River, NJ:
Person Prentice Hall