CHAPTER 5. Legal Issues
Jan Odom-Forren
OBJECTIVES
At the conclusion of this chapter, the reader will be able to:
1. Identify five common causes of nursing liability.
2. Discuss methods for prevention of a malpractice suit.
3. Describe the four elements of negligence.
4. Discuss phases of litigation that can occur with a malpractice suit.
I. LEGAL CONCEPTS
A. Sources of law
1. Constitutional—system of laws for governance of a nation; may be federal or state
2. Statutory—made by the legislative branch of the government
3. Administrative—laws enacted by administrative agencies charged with implementing particular legislation
4. Judicial—laws made by the courts that interpret legal issues that are in dispute
B. Types of law
1. Common law—derived from principles rather than rules and regulations
2. Civil law—based on rules and regulations
a. Administered through courts as damages or money compensation
b. Most important area is tort law, which involves compensation to those wrongfully injured
3. Criminal law—conduct that is offensive or harmful to society as a whole
4. Substantive law—concerns the wrong, harm, or duty that caused the lawsuit
5. Procedural law—concerns the process and rights of the individual charged with violating substantive law
C. Legal definitions (Box 5-1)
BOX 5-1
LEGAL TERMINOLOGY
Assault
An attempt or threat that causes a person to fear physical touch or injury
Battery
The unauthorized touching of an individual’s body, any extension of it, or anything attached to it in an offensive or injurious manner
Defendant
Person or entity against whom plaintiff’s allegations are made
Expert Witness
A person who serves to educate the court and jury about the subject under consideration, including the appropriate standard of care
Malpractice (Professional Negligence)
A type of negligence that involves a standard of care that can be reasonably expected from professionals (e.g., attorneys, nurses, physicians, accountants); failure to act as a reasonably prudent nurse would act under similar circumstances
Negligence
Deviation from the standard of care that a reasonable person would use in a certain set of circumstances
Plaintiff
The person or party who brings the lawsuit and alleges harm
Standard of Care
The care and judgment exercised by a reasonable, prudent person (nurse) under the same or similar circumstances
D. Negligence law
1. Tort law—a civil wrong that allows the injured party to seek reparation; concerns any action or omission that harms someone
a. Negligence
b. Malpractice
c. Assault and battery
d. Invasion of privacy
e. False imprisonment
f. Defamation
2. Essential elements of professional negligence (malpractice)
a. Duty—once you, as a nurse, undertake the care of a patient, you are under a duty to act in accordance with the standard of care (e.g., you establish a duty to the patient when you take report on a patient in the post anesthesia care unit and accept that patient into your care).
b. Breach of duty—failure to act in accordance with the standard of care
(1) May be an act of omission (e.g., a failure to administer a medication that was ordered)
(2) May be an act of commission (e.g., administration of a medication to which the patient had an allergy)
c. Causation—plaintiff must prove that the breach of duty was the cause of damages (e.g., the administration of the medication to which the patient had an allergy caused an anaphylactic shock, resulting in the patient’s death).
(1) Most difficult element to prove
d. Damages—actual loss or damages must be established (e.g., death, nerve damage, fracture).
e. Plaintiff must prove all four elements of negligence for the cause of action to succeed.
3. Employer liability
a. Respondent superior—“let the master speak”—employer is vicariously liable for negligent acts of employee if the act occurred during an employment relationship and within part of the employee’s job responsibilities.
b. Corporate liability—health care delivery system can be sued when it breaches any direct duty to the patient.
4. Res ipsa loquitur—“the thing speaks for itself”; a rule of evidence that allows a supposition of negligence on the part of the defendant (e.g., permanent loss of neuromuscular control of arm after routine hysterectomy)
a. Defendant must be solely in control at the time injury occurred, and injury would not have occurred if defendant had exercised due care.
b. Plaintiff must have done nothing to contribute to negligence (e.g., foreign object left inside patient after surgery).
5. Intentional torts—intent is necessary, and there must be a willful action against the injured person.
a. Assault—an action that causes apprehension or unwarranted touching (e.g., threatening a patient)
b. Battery—unauthorized touching of one person by another (e.g., lack of consent for treatment)
c. False imprisonment—unjustifiable detention of a person without a legal warrant (e.g., not allowing a patient to go who wants to leave against medical advice)
6. Quasi-intentional torts
a. Invasion of privacy—patient’s right to privacy is recognized.
(1) Using a person’s likeness or name without consent for commercial advantage
(2) Unreasonable intrusion into person’s private affairs
(3) Public disclosure of private facts about a person
(4) Placing a person in a false light in the public’s eye
b. Defamation—wrongful injury to another’s reputation
(1) libel (written form)
(2) slander (spoken form)
7. Standards of care—minimal requirements that define an acceptable level of care
a. May be established by:
(1) State Nurse Practice Act
(2) Federal agency guidelines and regulations
(3) American Nurses Association
(4) American Society of PeriAnesthesia Nurses or other national specialty organization
(5) The Joint Commission or other accrediting bodies, such as Accreditation Association for Ambulatory Health Care
(6) Hospital or ambulatory surgery facility rules and procedures
(7) State Board of Nursing
(8) Common practice
(9) Nursing texts and articles
b. Determined by expert witnesses for judicial system
(1) Essential in professional negligence cases
II. LIABILITY ISSUES
A. Possible causes of nursing liability for the perianesthesia nurse
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1. Failure to adequately assess or monitor a patient
a. Nurse must possess competency to assess and/or monitor patient.
b. Assessment and monitoring of patient are actually performed.
c. If assessment and monitoring reveal reportable condition, nurse must notify physician.
d. Nurse must continue to assess and monitor to evaluate effectiveness of intervention.
2. Errors in the use of equipment
3. Errors in medication or treatment
a. Failure to follow seven rights:
(1) Right drug
(2) Right dose
(3) Right patient (two identifiers)
(4) Right route
(5) Right time
(6) Right reason
(7) Right documentation
4. Failure to communicate
a. To another nurse
b. Confirmation of physician orders
c. Changes in patient condition to a physician
5. Patient falls
6. Operating room errors (e.g., sponges/instruments left inside patient)
7. Mix-ups during patient transfers and/or before surgery (e.g., wrong surgery on patient)
8. Failure to report or act on deviations from accepted practice
a. Nurses expected to exercise independent judgment and object when physician’s orders are inappropriate
b. Report facts to manager or otherwise follow chain of command.
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