Legal and Ethical Issues



Legal and Ethical Issues


Robert W. Cooper



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A major advantage of being viewed as a profession is the societal grant of autonomy in practice. In professional terms, autonomy means that the occupational group has control over its own practice. The American Nurses Association’s (ANA’s) Nursing’s Social Policy Statement: The Essence of the Profession (2010, p. 25) indicates “competence is foundational to autonomy” with the profession ensuring nursing competence to society through professional regulation of nursing practice via standards and ethical codes of practice, legal regulation of nursing practice via state licensure requirements and law pertaining to criminal and civil wrongdoing, and self-regulation in which all nurses retain personal accountability for their own practice.


Although some laws can be unethical, laws generally provide minimum standards of acceptable conduct that are binding on individuals, groups, and businesses in dealing with other members of society. Many situations, however, are either not covered by specific laws or involve issues so complicated that, although the law can provide general guidelines for conduct, the issues cannot be fully resolved by the legal system alone. In these cases, ethical codes for a profession provide standards of conduct that serve as guidelines for decision making by the members of the profession.


By the very nature of their work, nurses and nurse managers are decision makers constantly faced with making choices in personal, clinical, and organizational situations. These decision-making situations are commonly fraught with legal and ethical issues that often become entwined. As members of a profession, nurses and nurse managers are guided by both legal and ethical considerations in making decisions.



LEGAL ASPECTS


There are extensive legal aspects to both nursing practice and nursing management. For example, nurse practice acts exist for each state and govern the legal practice of nursing, including delegation and supervision. The legal regulation of nursing via nurse practice acts and related administrative rules arises because society needs to have safeguards that protect the health and safety of citizens. In regard to health care, the public demands assurance that health care providers, including nurses, are properly prepared and competent to deliver needed services. Thus to practice nursing, the person must hold a valid license issued by the state. Therefore it is illegal to practice nursing without a license. State licensure confers autonomy on nurses to the limit of legal standards of practice.


Autonomy involves accountability, as well as authority, for one’s decisions and actions. As professional autonomy and responsibility increase, so does the level of accountability and liability. To the extent that nurses are subject to malpractice lawsuits and carry malpractice insurance, nurses are held accountable (Aiken, 2004).


The legal aspects of nursing management center around decision making and supervision. Because all nurses retain personal accountability for their own acts and the use of knowledge and skills in the provision of care, personal accountability cannot be assumed by another. Nurse managers keep their own personal accountability for their own specific acts, but they are accountable also for their acts of delegation and supervision. Nurse managers carry the major responsibility for developing and upholding the standards of care for the staff.


Nurses and nurse managers carry the accountability for the supervision of others, who are often unlicensed assistive personnel. Supervision includes monitoring the tasks performed, ensuring that functions are performed in an appropriate fashion, and ensuring that assigned tasks and functions do not exceed competency or require a license to perform.


Nurse managers use their autonomy to make decisions about practice situations. They are accountable for carrying out supervisory responsibilities; proper notification; assessing the competency of staff; training, orientation, and evaluation of staff; reasonable staffing decisions; and monitoring and maintenance of professional treatment relationships with clients, called nonabandonment (Aiken, 2004; Guido, 2010).



DEFINITIONS


In addition to law included in the federal and state constitutions, United States law is composed of statutory law (law enacted by the U.S. Congress, state legislatures, and local government bodies), administrative law (regulations promulgated and adopted by federal or state agencies to implement statutory law adopted by Congress or state legislatures), and common law (decisions of courts setting precedents to be followed, at least in that court’s jurisdiction, until overturned by a higher court). The law recognizes two classes of wrongful acts that may cause harm. These are criminal acts (conduct that is offensive or harmful to society as a whole) and civil acts (wrongs that violate the rights of individuals by tort or by breach of contract). Persons found guilty of crimes are generally fined, jailed, or both, whereas persons who commit civil wrongs are usually required to pay monetary damages to those who are wronged.


Nurses, nurse managers, and health care facilities are all subject to being found legally liable (i.e., legally responsible) for harm caused to others by civil wrongs. More specifically, liability is created when the law imposes a civil obligation on a wrongdoer to compensate an injured party for the consequences of a wrongful act. As shown in Figure 6-1, there are two sources of legal liability—torts and contracts.


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FIGURE 6-1 Sources of legal liability.

The most common source of legal liability for nurses and nurse managers is a tort—that is, a wrongful act (other than breach of contract) committed against another person or organization or their property that causes harm and can be remedied by a civil (rather than criminal) lawsuit. Although torts most commonly give rise to personal (or direct) liability for the person committing the wrongful act, in some cases another person or organization may also be held vicariously liable for the same wrongful act they did not commit. For example, when a nurse commits a tort, the nurse may be found to be directly liable and the nurse’s employer also may be found to be vicariously liable for the nurse’s wrongful action.


As indicated in Figure 6-1, determination of legal liability as a result of a tort depends on more than just the various technical elements of the tort that must be proved by the injured party (plaintiff), the presentation of various available defenses by the defendant, and the formal rules of the judicial system regarding the litigation process. In the case of torts, the legal outcomes are often influenced also by what may be termed judicial risk—various aspects of the litigation process that can introduce further uncertainty and additional cost into the determination of legal liability. Judicial risk can result in findings with respect to legal liability that are not based solely on the merits of the case nor on the rules of law applicable to the case.


There are three categories of torts: negligence, intentional torts, and strict liability torts. Negligence is the failure to exercise the proper degree of care required by the circumstances. In general, the standard of care is defined as that which a reasonably prudent person would exercise under the circumstances to avoid harming others. Malpractice is a special type of negligence that applies only to professionals and employs a higher standard of care than ordinary negligence (Weld & Bibb, 2009). Malpractice is the failure of a professional person to act as other prudent professionals with the same knowledge and education would act under similar circumstances. Depending on the nature of the situation involved, nurses and nurse leaders may be subject to either ordinary negligence or malpractice. An example of ordinary negligence would be a situation in which a nurse saw that food had been spilled on a client’s floor but failed to have it cleaned up, and as a result, the client slipped and broke her hip. Because this is an act not requiring the exercise of professional judgment, the standard of care in determining negligence would be the degree of care that an ordinary prudent person would exercise under the circumstances. However, if the client had fallen and broken her hip because a nurse had failed to raise the side rails on the client’s bed, the standard of care in determining malpractice would be the degree of care other prudent professionals with the same knowledge and education could be expected to exercise under similar circumstances.


Although negligence involves unintentional wrongful acts that harm another person or his or her property, intentional torts are voluntary and willful acts intended to cause harm by interfering with another person’s rights. Common intentional torts occurring in the health care field include, among others, assault and battery, medical battery (surgical procedures performed without patient consent), false imprisonment, trespass to land, conversion of property, and intentional infliction of emotional distress.


In some cases, tort liability can be imposed without the defendant acting either negligently or with intent to cause harm. Strict liability requires that the responsibility for some accidents automatically rests with the defendant. With strict liability, anyone who engages in an activity known to endanger others assumes responsibility for any resulting damages. In general society, situations requiring strict liability include such activities as blasting, keeping dangerous animals, and selling dangerously defective products. In the health care field, the concept of strict liability has been applied in some cases involving harm caused by, among other things, the use of unlicensed medicines, defectively designed medical devices, tainted or contaminated drugs, and the prescription of dangerous combinations of drugs without obtaining a sufficient medical history to ensure that problems do not occur.


As shown in Figure 6-1, contracts are also a source of legal liability. In most states, employment of nurses generally follows the employment-at-will doctrine in which there is no written contract specifying the term of employment. However, in some cases, nurse managers, especially those at higher levels in an organization, negotiate written employment contracts. In addition, a few courts have ruled that contracts existed on the basis of language used in advertisements and statements made during the interviewing process. Courts also have held that contracts may arise after employment based on statements made in employee manuals and handbooks. With an increasing number of nurses negotiating various types of consulting arrangements with facilities, working as independent contractors and operating their own privately owned businesses, contracts are playing an even greater role in nursing.


Legal liability based on contracts can arise in two ways: breach of contract, or an agreement to assume another party’s liability. The most common is breach of contract, in which one party to the contract fails to perform as promised in the contract. For example, if a nurse has an employment contract stating that he or she can be discharged only for incompetence but then is discharged for another reason, the nurse can bring a suit for wrongful discharge under contract law due to breach of contract. Less likely to be encountered by nurses is legal liability arising from an agreement to assume another party’s liability. For example, in signing a lease for property needed to carry on his or her privately owned business, the nurse likely would be agreeing to assume responsibility for all injuries occurring on the premises, including any caused by the owner of the property.



LAW AND THE NURSE MANAGER


The managers of any health care organization are responsible to the policy-making body of the organization. The managers also hold an obligation to comply with the laws of society at local, state, and national levels. Managers are responsible for ensuring that laws are adhered to in the actions of management itself and also in the actions of those employees who assist the managers in carrying out the mission of the organization. Concern for the law involves three general areas: personal negligence in clinical practice, liability for delegation and supervision, and liability of health care organizations.



Personal Negligence in Clinical Practice


Activities of clinical client care involve corresponding legal accountability and risk. Errors do happen. Some lead to injury to a client. At minimum, nurses have an ethical obligation to nonmaleficence, or to do no harm to clients. This duty is discharged in part by remaining competent in knowledge and skills and the standards of practice. Nursing negligence/malpractice occurs when the nurse’s actions are unreasonable given the circumstances or fail to meet the standard of care or when the nurse fails to act and causes harm. In nursing, harm related to clinical practice commonly arises from negligent acts or omissions (unintentional torts) and a variety of intentional acts (intentional torts) such as invasion of privacy or assault and battery (Aiken, 2004).


To establish legal liability on the grounds of malpractice (professional negligence), the injured client (plaintiff) must prove the following four elements:



Critical in determining liability for malpractice (professional negligence) is the definition of the duty (standard) of care owed by the nursing professional to the client. The standard of care, the minimum requirements that define an acceptable level of care, is “the average degree of skill, care, and diligence exercised by members of the same profession under the same or similar circumstances” (Aiken, 2004, p. 39). Standards of care can be found in the state nurse practice act, standards published by the American Nurses Association, other professional organizations and specialty practice groups, federal agency guidelines and regulations, and the facility’s policy and procedure manuals. In malpractice cases, the standard of care owed to the injured client is commonly introduced into evidence by expert witnesses and the impact of that evidence is ultimately determined by the jury after receiving instructions from the judge on the law applicable to its use.


Common clinical practice areas that give rise to allegations of malpractice include the general areas of treatment, communication, medication, and the broad category of monitoring/observing/supervising/surveillance. Examples of common negligence allegations in nursing malpractice suits include patient falls, use of restraints, medication errors, burns, equipment injuries, retained foreign objects, failure to monitor, failure to ensure safety, failure to take appropriate nursing action, failure to confirm accuracy of physicians’ orders, improper technique or performance of treatments, failure to respond to a patient, failure to follow hospital procedure, and failure to supervise treatment (Aiken, 2004; Weld & Bibb, 2009).


Because intentional torts differ in nature from negligence (unintentional torts), establishing legal liability for these intentionally harmful acts is based on elements different from those used in proving malpractice. To establish liability on the grounds of an intentional tort, the injured client (plaintiff) must prove that a voluntary and willful act by the nursing professional (defendant) was intended to interfere with the plaintiff’s rights and was a substantial factor in doing so. Unlike negligence, intent is necessary in proving intentional torts. However, proof of actual injury or damage is not required, because intentional torts interfere with another person’s rights. Also, there is no need to determine duty or standards of care in proving intentional torts.



Liability for Delegation and Supervision


Over and above personal liability for clinical practice, nurses and nurse managers have accountability and liability for their acts of delegation and supervision. Both nurses and nurse managers are obligated to report incompetent practice that occurs at any point in the care delivery process. Nurse managers have a duty to train, orient, and evaluate the ability of nursing staff to perform specific functions and tasks. Health care organizations have a duty to monitor the competence and ability of nursing and medical professionals and to inquire about their credentials (Aiken, 2004).


Both nurses and nurse managers have a duty to follow policies and procedures when reasonable. Nurse managers are advised to review policies and procedures carefully, including the language used, in order to adhere to legal and ethical parameters more closely. Clearly, management in nursing practice means that nurses must fulfill obligations and duties both to clients and to the organization. This means using knowledge, skill, and decision-making abilities to reduce the incidence of negligence and malpractice by employees as a way to reduce harm to clients and legal risk to the organization. As the primary coordinators of care, nurses need to manage the environment of care delivery. Ensuring staff competence and reporting incompetent practice are key activities. For example, in nursing, legal and ethical issues arise when a nurse is impaired by substance abuse. The overall consideration is protecting the client from harm. Confronting suspected abuse must be done carefully. However, when an incident occurs, the nurse manager has a responsibility to intervene.



Liability of Health Care Organizations


In addition to the liability faced by nurses and nurse managers arising out of malpractice in clinical practice and negligence in the process of delegating and supervising, health care facilities face extensive exposure to legal liability from several sources. These sources include negligence of their employees, negligence of independent contractors, corporate negligence arising out of the facility’s responsibilities to hire qualified employees and monitor and supervise their activities, and failure to comply with numerous laws and regulations, especially those related to employment issues. Nurse managers have important roles to play in helping their organizations control facility liability arising from each of these sources.


Under the doctrine of respondeat superior (meaning “let the master answer”), an employer may be held vicariously liable for the negligent act or omission of an employee. For the employer to be found vicariously liable, the employee’s act or omission must occur both during the course of employment and while the employee was acting within the scope of employment. For example, if a nurse negligently injured a client during the course of and within the scope of employment, not only would the nurse be directly liable for damages but also the health care organization would be vicariously liable. Because of their “deep pockets” (their ability to pay larger settlements or judgments) and the concept of vicarious liability, health care facilities are almost always named as defendants in malpractice suits. Nurse managers can play a key role in assisting facilities to avoid payments for vicarious liability by ensuring that the nurses they supervise deliver competent care to clients while following facility policies and procedures (Guido, 2010).


Under the doctrine of ostensible authority (or apparent agency), facilities may also become liable for the negligence of an independent contractor if it would appear to a reasonable client that the independent contractor is a facility employee. For example, a hospital might be held liable for the negligence of an agency nurse who appeared to a client to be a nurse employed by the hospital. Guido (2010) recommends that when dealing with agency or temporary personnel, nurse managers should, among other things, do the following:



Under the doctrine of corporate liability, health care organizations themselves are held legally responsible for “ensuring that competent and qualified practitioners deliver quality health care to consumers” (Guido, 2010, p. 307). Under this doctrine, facilities can be held liable for a variety of activities that are beyond the control of any single employee, including the following (Aiken, 2004):



Nurse managers can help the facility avoid corporate liability by, among other things, ensuring that those who report to them remain competent and qualified and have current licensure. Nurse managers should also report to appropriate managers dangerously low staffing levels or incorrect mixes of staff for effectively meeting the health care needs of clients, as well as report incompetent, illegal, or unethical practices to appropriate authorities (Guido, 2010).


In addition to facility liability arising from vicarious liability, the doctrine of ostensible authority, and the doctrine of corporate liability, health care organizations are constrained by specific laws related to employment issues. Although the various health care providers and their employing organizations have specific legal and ethical obligations to clients, such as executing informed consent and following the Patient Self-Determination Act of 1990, organizations carry specific legal and ethical obligations toward employees. The employer has an obligation to provide a safe and secure care delivery environment (Aiken, 2004).


Management policies and procedures must be in compliance in the areas of hiring, performance appraisal, management of employees with problems, and termination (Aiken, 2004). Lawsuits also have formed the basis for the standards to be met for the termination of employees. Discharges may occur for lack of adherence to employer-established policies or standards, “good cause” per institutional policy, illegal activity, assault, insubordination, or excessive absenteeism. Written notice and the reasons for termination avoid misunderstandings and show justice through due-process procedures. Careful documentation is important. If the employee is a member of a protected group, the employer may be required to submit formal justification for the termination (Aiken, 2004).


The various legal and ethical considerations of nursing management span client, provider, and employer rights and obligations. Nurses and their employing organizations are responsible for knowing and following the various applicable laws and regulations. In-service education can increase knowledge and awareness. Nurse managers will need to manage the environment of nursing care to ensure client safety, provider justice and safety, and organizational compliance with the law.



LEADERSHIP AND MANAGEMENT IMPLICATIONS


Clearly, nurses, nurse managers, and the facilities that employ them face legal liability from a wide array of sources. Although it is not possible to avoid legal liability in all cases, nurse managers can take a number of steps to protect themselves, staff nurses reporting to them, and their facilities where possible. The first step is summed up in a statement often attributed to football coach Vince Lombardi: The best defense is a good offense. Nurse managers can do a number of things in applying this strategy of using a good offense to defend against problems leading to legal liability. First, because problems generally can be dealt with more effectively if anticipated, nurse managers should see that both they and the staff nurses who report to them are knowledgeable concerning the most common problem areas related to malpractice and the other sources of legal liability, especially new ones that have not yet been experienced within the unit. Likewise, nurse managers should ensure that both they and their staff nurses are aware of the many prevention activities that can aid them in avoiding these legal liability problems. Providing this information to staff nurses and using examples will probably improve both recognition and retention. In addition to the previous brief discussion of the sources of legal liability faced by nurses and nurse managers and the activities for preventing them, extensive information, including examples, is available from numerous sources. These include books (e.g., Aiken, 2004; Brothers, 2005; Guido, 2010), articles in nursing journals (e.g., Austin, 2011; Frank-Stromborg & Christensen, 2001a, b; Miller & Glusko, 2003), and a variety of websites that present articles and continuing education materials about recommendations for avoiding malpractice (e.g., Croke, 2003; Nurses Service Organization [NSO], 2012; Wetter, 2007).


Many, if not most, of the lawsuits seeking to determine legal liability involve the alleged failure of nurses to meet appropriate standards of care, especially those reflected in the policies and procedures of their facility. Therefore nurse managers must not only ensure that they and their staff nurses know the standards of care that apply to them and are competent to satisfy them but also actively participate in facility committees as well as those at the state, national, and even international level that make decisions as to the standards of care to which nurses will be held.


Although the first step in defending against problems of legal liability involves taking positive action in an effort to prevent them from arising, it is not possible for nurses, nurse managers, and health care facilities to avoid legal liability in all cases. This is so, if for no other reason than the existence of what might be termed judicial risk.



RESEARCH NOTE






Judicial risk can result in findings with respect to legal liability that are not based solely on the merits of the case or on the rules of law applicable to the case. In the case of torts, aside from all the lists of elements that must be proved by injured plaintiffs, all the legal defenses available for attempting to block their arguments for damages, and the formal rules of the judicial system regarding the litigation process, legal outcomes also are often influenced by judicial risk—that is, various aspects of the litigation process that can introduce further uncertainty and additional cost into the determination of legal liability. The following are some examples:



• Any client can sue a staff nurse, nurse manager, and/or health care facility for a tort, and if no response is filed within the legal time frame, the court will enter a default judgment against the defendant. Thus, at a minimum, regardless of the apparent validity of the grounds for the lawsuit, the defendant must incur defense costs or lose.


• Given the typical lengthy period between the defendant’s act or omission and the introduction of evidence into the trial, many things can happen that will alter the perception of the facts. Witnesses, for example, may be questioned repeatedly, coached, or simply forget exactly what they witnessed.


• Conditions in the courtroom can also influence the jury. Some jury members may be influenced by the dress or behavior of the defendant’s attorney and form subsequent opinions despite the facts (e.g., a high-priced lawyer with an arrogant attitude may elicit feelings such as “We’ll show him”). Or the appearance of the plaintiff may influence jurors (e.g., “How could a little old man like that be partly responsible for his own injuries, and besides, who cares anyway since the defendant has liability insurance?”).


• Often more than one principle of law applies to a case, and the outcome may be influenced by which one the judge uses in giving his or her instructions to the jury.


• In suits such as those alleging malpractice in providing or failing to provide proper end-of-life care, juries and even judges can be sufficiently influenced by their emotions so as to rationalize a finding of legal liability against the defendant, especially when, as is generally the case, liability insurance is available to pay the judgment. In fact, in some cases, a jury can actually change the law of a jurisdiction in making its decision. (See Case Study.)

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Aug 7, 2016 | Posted by in NURSING | Comments Off on Legal and Ethical Issues

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