In many states, nurse practice acts also define the responsibilities and authorities of the SBN (National Council of State Boards of Nursing [NCSBN], 2006). Thus the nurse practice act of the state in which nurses practice is statutory law affecting nursing practice within the bounds of that state. For example, a registered nurse (RN) who works in Virginia practices under the nurse practice act of Virginia, although the nurse’s home address may be in Maryland. Maryland’s state board of nursing has no jurisdiction over the nurse’s practice as long as the nurse is working in Virginia.

Once the law regarding nursing practice is established or amended by the legislature, the legislative branch delegates authority to enforce the law to an executive agency, usually the SBN. SBNs are responsible for enforcing the nurse practice acts in the various states. The SBN publicizes rules and regulations that expand the law. The statutory law plus the rules and regulations propagated by the SBN give full meaning to the nurse practice act in each state. The board of nursing in each state has a comprehensive website containing crucial information for nurses practicing in that state. You should familiarize yourself with your SBN’s website, which will include details of how you apply for and maintain your nursing license once you have passed the licensing examination. In addition, the nursing practice act for your state will be featured on the website so that you can be informed as to the specific rules and regulations under which you will practice.

Nurse practice acts are revised from time to time to keep up with new developments in health care and changes in nursing practice. State nurses associations are usually instrumental in lobbying their state legislators for appropriate updating of nurse practice acts.

Because of the importance of practice acts to professional nurses, both the American Nurses Association (ANA) and the NCSBN have developed suggested language for the content of state nurse practice acts. The ANA’s Model Practice Act was published in 1996 to guide state nurses associations seeking revisions in their nurse practice acts (ANA, 1996). The guidelines encourage consideration of the many issues inherent in a nurse practice act and the political realities of each state’s legislative and regulatory processes. Through this document, the ANA recognizes the great importance of the nurse practice act and urges that the following content be included:

1. A clear differentiation between advanced and generalist nursing practice

2. Authority for boards of nursing to regulate advanced nursing practice, including authority for prescription writing

3. Authority for boards of nursing to oversee unlicensed assistive personnel (UAP)

4. Clarification of the nurse’s responsibility for delegation to and supervision of other personnel

5. Support for mandatory licensure for nurses while retaining sufficient flexibility to accommodate the changing nature of nursing practice

The NCSBN’s Model Nursing Practice Act and Model Nursing Administrative Rules (2011a) is a comprehensive documents developed to guide individual states’ development and revisions of their nurse practice acts. The NCSBN began development of model regulations in 1982. The NCSBN describes the current model, in its fourth major revision, as both a standard toward which states may strive and a reflection of the current and changing regulatory and health care system environments. Discussions over the past two decades at the national level, facilitated by both the NCSBN and ANA, have brought a national perspective on nursing regulation to the state level, fostered dialogue and the development of more consistent standards across state lines, and provided increased protection for the public (Mikos, 2004).

Executive authority of state boards of nursing

At both the federal and state government levels, the executive branch administers and implements law. The governor, who holds the state’s highest executive office, generally delegates the responsibility for administering the nurse practice act to the SBN, the agency charged with executing (carrying out) laws. In most states, the SBN consists of RNs representing different areas of practice and education, licensed practical/vocational nurses (LPN/LVNs), and consumers (members of the general public). In a few states, members of the SBN are elected by nurses; otherwise, they are appointed by the governor. Consumers are typically appointed to the board by the governor.

The SBN’s authority is limited. It can adopt rules that clarify general provisions of the nurse practice act, but it does not have the authority to enlarge the law. The law is set by the state governing body (legislature or assembly). Within these confines, SBNs have three functions that mirror those of the federal and state governments:

1. Executive, with the authority to administer the nurse practice act

2. Legislative, with authority to adopt rules necessary to implement the act (note that rules are different from laws, which are made by the state’s legislative body)

3. Judicial, with authority to deny, suspend, or revoke a license or to otherwise discipline a licensee or to deny an application for licensure

Each of these functions is as broad or as limited as the state legislature specifies in the nurse practice act and related laws.

SBNs may be independent agencies in the executive branch of state government or part of a department or bureau such as a department of licensure and regulation. Some state boards have authority to carry out the nurse practice act without review of their actions by other state officials. Others must recommend action to another department or bureau and receive approval of the recommendation before the decision is finalized.

Licensing powers

Because nursing is a regulated practice, nurses must hold a valid license to practice. Being granted a license to practice nursing takes several years of hard work, and keeping one’s license active and in good standing is a professional priority. Each state determines who is qualified to receive a license to practice nursing, as well as the limits on the license. Licensure laws may be either mandatory or permissive. A mandatory law requires any person who practices the profession or occupation to be licensed. A permissive law protects the use of the title granted in the law but does not prohibit persons from practicing the profession or occupation if they do not use the title. All states now have a mandatory licensure law for the practice of nursing to safeguard the public. This means that only licensed nurses—RNs or LPN/LVNs—can call themselves nurses. UAPs such as certified nursing assistants (CNAs) may not refer to themselves as nurses. It is not uncommon for patients to mistake the roles of various practitioners who are providing care; however, the CNAs and other UAPs should clarify with patients that they are not nurses when patients refer to them as such.

In most states, SBNs have the authority to set and enforce minimum criteria for nursing education programs. The practice act usually stipulates that an applicant for licensure must graduate from a state-approved nursing education program as a prerequisite to being admitted to the licensure examination. This means that schools of nursing must have state approval to operate. State approval requirements are generally less stringent than are national accreditation standards. Schools may voluntarily seek national accreditation to demonstrate that they meet higher than minimum standards. Although many other professions and occupations require graduation from a nationally accredited educational program as a prerequisite of licensure, only state approval is currently required in nursing. Some states are currently undertaking rule changes to require that nursing programs have national accreditation to achieve state approval.

Not only does the state, through the SBN, grant licenses, but it also has the power to discipline a licensee for performing professional functions in a manner that is dangerous to patients or the general public. Discipline may include sanctions such as temporary license suspension or revocation arising from unsafe, uninformed, or impaired practice by the nurse licensee. The most common reason nurses are disciplined by SBNs is for practicing while impaired (under the influence of alcohol or other substance).

Historically, the nursing profession has demonstrated a commitment to the rehabilitation of nurses whose practice is impaired by mental health issues or substance abuse. The ANA first published a recommendation that a Nursing Disciplinary Diversion Act be implemented by states through their boards of nursing (ANA, 1990). Later, the NCSBN published Substance Use Disorder in Nursing, a comprehensive resource to assist with the evaluation, treatment, and management of nurses with a substance problem (NCSBN, 2012). Nurses are estimated to misuse drugs and alcohol at approximately the same rate—10% to 15%—as the general population; however, only a small percentage of nurses are disciplined each year for substance abuse. The goal of SBNs is to return to safe practice those nurses who have been identified as having a problem with drugs and/or alcohol use. This is accomplished through the use of interventions that have evidence of effectiveness.

Licensure examinations

Individuals who have successfully completed their basic nursing education from a state-approved school of nursing are eligible to sit for the licensing examination. The nurse licensure examination for RNs is the National Council Licensure Examination for Registered Nurses (NCLEX-RN^®). It is administered by computerized adaptive testing at various testing centers across each state, at a time scheduled by the test-taker. The NCLEX-RN^®, which is updated periodically, tests critical thinking and nursing competence in all phases of the nursing process. The current test plan can be found at the NCSBN website (www.ncsbn.org/1287.htm), where you can download a comprehensive document available as a .pdf file. Test-takers who are not successful in passing the NCLEX-RN^® typically may take the examination again after paying the examination fees. Passing rates for graduates of different nursing schools are published online on SBNs’ websites. Passing rates for first-time test-takers reflect the quality of the education that specific programs are providing. Schools with consistently high scores among their first-time test-takers are providing excellent education and preparation of their graduates for professional nursing practice. Most if not all states include the first-time pass rate for each nursing school in their respective states. You can likely find your own school’s first-time pass rate on your SBN’s website.

Until 1978, the national nursing licensing examination was developed by the ANA’s Council of State Boards of Nursing, and the National League for Nursing served as the testing service. In 1978 the NCSBN was established and continued the activities of the ANA Council of State Boards. Through the NCSBN, each state participates in the licensing process through test plan and item development, periodic validation of the examination content with current practice, and adoption of a minimum passing score.

Mobility of nurses: Licensure by endorsement

Since 1944, most SBNs have participated in a cooperative effort to assist in the interstate mobility of nurses. The NCLEX-RN^® is a national examination; therefore, all states recognize the licensure awarded in other states because the nurses have passed the NCLEX-RN^®. This is called licensure by endorsement. Endorsement means that RNs may practice in different states without having to take another licensing examination. To receive a license in a different state, nurses submit proof of licensure in another state and pay a licensure fee, and they receive a license in the new state by endorsement. Licensure by endorsement is not available to all practice disciplines. Nursing’s plan serves as a national model for other licensed professions and occupations.

Nurse licensure compact

Because the United States has a mobile society, a regulatory approach known as a Nurse Licensure Compact (NLC)—a mutual recognition model of licensure—was developed by the NCSBN in 2000. The NLC has been adopted by 24 states, with 6 more states having pending legislation (as of mid-2012). The NLC was developed to improve mobility of nurses, while still protecting the public health, safety, and welfare. Mobility occurs in travel nursing, in crossing state lines from one’s home to one’s workplace, in the telehealth practices (being physically present in one state while providing nursing care to a patient in another state through digital technology), and simply moving to another state for personal or career purposes. Nursing workforce mobility during national or regional disasters is also increased (Hellquist and Spector, 2004).

The NLC allows an RN to have one license (in the state of residency) yet practice in other compact member states without an additional license in the state of employment. Importantly, the nurse is subject to the nurse practice act in the state where she or he is practicing, not to that of the state of licensure. A single license for each nurse and the concomitant reduction of state barriers provide better protection for the public through improved tracking of nurses for disciplinary purposes and information sharing.

Each state that wishes to participate in the compact must pass legislation enabling the board of nursing to enter into the interstate NLC. Utah, Texas, and Wisconsin were the first states to implement the compact on January 1, 2000. Nurses licensed in any state that has implemented the compact can practice in their own states, as well as in any other compact state without applying for licensure by endorsement. A nurse who has changed permanent residence from one compact state to another may practice under the license from their former state of residence for up to 30 days, which starts on the nurse’s first day of work. The license in the new state of residence will be granted under endorsement rules if the nurse is in good standing with the SBN of the state from which the nurse is moving. This means that a nurse moving between compact states does not have to delay working as a nurse until a new license is granted. Updated information about states participating in or seeking legislation to participate can be found at www.ncsbn.org/nlc.htm. Application of the compact model to advanced practice nurses is under discussion.

Exploration of the global perspective on nursing regulation is currently on the NCSBN agenda (Apple and Spector, 2005). Based on a demand from nurses educated abroad, the NCSBN began administering the NCLEX-RN^® internationally to otherwise qualified nurses applying for U.S. licensure in January 2005. The recruitment of nurses from outside the United States, particularly from poorer nations with their own high health care demands, is controversial (Dugger, 2006), with both legal and ethical considerations. Chapter 5 contains a fuller discussion of the significant issues surrounding recruiting nurses from other countries to practice in the United States.

Legal risks in professional nursing practice

Nurses make decisions daily that affect the well-being of their patients. Because they have access to personal information about patients and interact with them during stressful times, they are in positions of great responsibility and trust. Several areas of nursing practice—in particular, delegation, informed consent, and confidentiality—are fraught with legal risk. Nurses may also be charged with malpractice or assault and battery. In this section, we will discuss these areas of concern.

Malpractice

Malpractice is the greatest legal concern of health care practitioners. Nurses are accountable for their own practice and are being named in malpractice suits with increasing frequency. Malpractice suits are very complex legal entities. This discussion will give you some basic information about malpractice and, importantly, how to protect yourself from practices that make you susceptible to claims of malpractice.

Negligence is the central issue in malpractice. Negligence is the failure to act as a reasonably prudent person would have acted in the same circumstances. For example, a person parks his car on a hill and does not engage the parking brake. The car then rolls down the hill and into the porch of a nearby house. The homeowner may seek damages in a civil suit on charges of negligence. A reasonably prudent person would have set the parking brake, and the result—the damage to the porch—can be shown to be a direct result of the failure to act reasonably.

Malpractice is negligence applied to the acts of a professional. In other words, malpractice occurs when a professional, for example a nurse or a physician, fails to act as a reasonably prudent professional would have acted under the same circumstances. Malpractice does not have to be intentional—that is, the professional did not mean to act in a negligent manner. Malpractice—that is, professional negligence—may occur in two ways: by commission—doing something that that should not have been done—and by omission—failing to do things that should have been done (Box 4-1).

BOX 4-1 MALPRACTICE: PROFESSIONAL NEGLIGENCE

Malpractice is not limited to what a nurse does (commission); it also refers to what a nurse fails to do (omission) in a nursing care situation. The following is an example in which an RN is negligent in both ways.

A patient had surgery one morning for an abdominal mass. He was given morphine 8 mg intravenously (IV) at 5 p.m. At 5:20, he was very drowsy, but, when the nurse woke him and asked about his pain, he complained that his “stomach still hurts some.” She gave him a second dose of morphine 8 mg IV. When the nurse went back to check on him an hour later, he was in respiratory arrest.

The nurse was negligent by commission when she gave the patient a second dose of morphine. First, the nurse had to awaken the patient to ask him about his pain; the patient’s complaint of “some pain” likely did not warrant a second dose of intravenous morphine so soon after the first dose. A reasonably prudent nurse in the same situation would not have given a relatively large dose of morphine so soon after the first, especially given that the patient was now drowsy and had to be awakened in order to assess his pain.

The nurse was negligent by omission when she failed to check on her patient for an hour after giving a second substantial dose of morphine. The first dose made him very drowsy after 20 minutes; this would indicate that he had a significant response to the first dose. The nurse also failed to assess the patient for causes of his continuing pain, such as examining his abdomen and checking his vital signs for evidence of a surgical complication.

A patient who brings a claim of malpractice against a nurse (or other professional) is known in the legal system as the plaintiff. The nurse becomes the defendant. Getting a malpractice case to be pleaded in front of a judge and jury is a very long process and is actually very unlikely to get this far. Many times malpractice cases are settled out of court, meaning that the outcome is negotiated between attorneys for the plaintiffs and defendant(s) (Critical Thinking Challenge 4-1).

CRITICAL THINKING CHALLENGE 4-1

You hear nursing colleagues discussing prevention of malpractice, and you notice that some nurses are spending more time tending to patients’ records than they are in providing care to patients. Think about how this emphasis on “defensive practice,” that is, making sure that your patient’s chart is perfect, may actually impede the delivery of safe care. As you think about this issue, consider what the purpose of charting is. How can you use the medical record to enhance the care of your patients? How might excessive charting harm you in a malpractice suit?

The central question in any charge of malpractice is, “Was the prevailing standard of care met?” The nursing standard of care is what the reasonably prudent nurse, under similar circumstances, would have done. Standard of care reflects a basic minimum level of prudent care based on the ethical principle of nonmaleficence (“do no harm”). Nurses, not practitioners from other disciplines, determine whether standard of care is met. For instance, a physician cannot testify what the standards of care are for nurses. Nurse expert witnesses are hired by each side that will testify as to whether the prevailing standard of care was met.

“Prevailing” is an important qualifier. As practice changes and develops, standards of care change accordingly. The issue in malpractice cases is the standard of care that prevailed—or was in effect—at the time the negligent act occurred. What may be considered negligent now may not have been considered negligent at the time. The standard of care that prevailed at the time is key and is ascertained through expert witness testimony; documents, including national standards of nursing practice; the patient record; and other pertinent evidence such as the direct testimony of the patient, the nurse, and others. Box 4-2 illustrates the presumed failure of an RN to meet the prevailing standard of care.

BOX 4-2 STANDARDS OF CARE: A CASE EXAMPLE

An 8-month-old infant was brought by his parents to the emergency department (ED) with significant fever and dehydration. The family with the infant was Spanish-speaking and included a family member trained in nursing in her country of origin intravenous fluids were ordered for rehydration. Because of the need for the infant to be able to move from bed to the arms of his caregivers, the IV was set up before needle insertion with both regular- and extension-length tubing. The ED RN, in her second year in the ED, failed to flush the line to clear air from the extension tubing and then inserted the needle and began the infusion. This was noted by the family, and an unsuccessful attempt was made to alert the nursing and medical staff. The infant subsequently died of a significant air embolus. The family engaged an attorney, who eventually filed a malpractice suit against the hospital and the nurse. The following standards of care were considered in this case.

1. Hospital policy indicated that an interpreter should have been called for communication with family.

2. Hospital policies and orientation competency guidelines, completed by this nurse, indicated that flushing of an IV line was a required step in the process.

3. Local schools of nursing indicated that flushing of an IV line was part of basic skills training, and current textbooks about fundamentals of nursing confirmed this content.

4. Other nurses in local EDs were interviewed, and all reported that flushing of an IV line before insertion was standard practice.

5. The company manufacturing the IV tubing had visual and written instructions on the box indicating proper use of the product, including flushing of the line.

There are two requirements of a malpractice action. First, the defendant (nurse) has specialized knowledge and skills, and, second, through the practice of that specialized knowledge the defendant causes the plaintiff’s (patient’s) injury. All four elements of a cause of action for negligence must be proved. These elements are the same for any professional accused of malpractice:

1. The professional (nurse) has assumed the duty of care (responsibility for the patient’s care).

2. The professional (nurse) breached the duty of care by failing to meet the standard of care.

3. The failure of the professional (nurse) to meet the standard of care was the proximate cause of the injury.

4. The injury is proved.

A high degree of proof is needed in each of these four elements. Monetary damages are awarded when a plaintiff prevails. These awards are based on proved economic losses, such as time missed from work or out-of-pocket health care costs, and on remuneration for pain and suffering caused by the injury. In the case of a death, the next of kin can become the plaintiff on behalf of the deceased patient.

In the past, some malpractice lawsuits involved nurses, but the physician or hospital defendants were typically sued for damages even when the substandard care was provided by nurses. In these instances, physicians were implicated through the “captain of the ship” doctrine. This outmoded doctrine implies that the physician is ultimately in charge of all patient care and thus should be responsible financially. Hospitals were implicated through the legal theory of respondeat superior (from Latin, meaning “let the master answer”), which attributes the acts of employees to their employer. However, as nurses have obtained more credentials and their expertise, autonomy, and authority for nursing practice have increased, direct liability for nursing care has risen correspondingly.

Croke (2003) conducted a review of more than 350 trial, appellate, and supreme court case summaries from a variety of legal research sources and analyzed 253 cases that met the following criteria: A nurse was engaged in the practice of nursing as defined by his or her state’s nurse practice act; a nurse was a defendant in a civil lawsuit as the result of an unintentional action (no criminal cases were considered); and a trial was held between 1995 and 2001.

Croke found that the largest number of cases of reported negligence occurred in acute care hospitals (60%). Other settings included nursing homes/rehabilitation/transitional care units (18%), psychiatric settings (8%), home health settings (2%), and physician offices (2%); also included were cases involving care by advanced practice nurses (9%).

This review identified six major categories of negligence resulting in malpractice lawsuits against nurses: failure to follow standards of care, failure to use equipment in a responsible manner, failure to communicate, failure to document, failure to assess and monitor, and failure to act as a patient advocate. More details of Croke’s analysis are presented in Box 4-3.

BOX 4-3

SIX MAJOR CATEGORIES OF NEGLIGENCE THAT RESULT IN MALPRACTICE LAWSUITS