The legal guidelines that nurses follow come from statutory law, regulatory law, and common law. Elected legislative bodies such as state legislatures and the U.S. Congress create statutory law. An example of state statutes are the Nurse Practice Acts found in all 50 states (see Chapter 1). Nurse Practice Acts describe and define the legal boundaries of nursing practice within each state. An example of a federal statute enacted by the U.S. Congress is the Americans with Disabilities Act (ADA) (1990). The ADA protects the rights of individuals who are disabled in the workplace, in educational institutions, and throughout our society. Regulatory law, or administrative law, reflects decisions made by administrative bodies such as State Boards of Nursing when they pass rules and regulations. An example of a regulatory law is the requirement to report incompetent or unethical nursing conduct to the State Board of Nursing. Common law results from judicial decisions made in courts when individual legal cases are decided. Examples of common law include informed consent, the patient’s right to refuse treatment, negligence, and malpractice.

Statutory law is either civil or criminal. Civil laws protect the rights of individuals within our society and provide for fair and equitable treatment when civil wrongs or violations occur (Garner, 2006). The consequences of civil law violations are damages in the form of fines or specific performance of good works such as public service. An example of a civil law violation for a nurse is negligence or malpractice. Criminal laws protect society as a whole and provide punishment for crimes, which are defined by municipal, state, and federal legislation (Garner, 2006). There are two classifications of crimes. A felony is a crime of a serious nature that has a penalty of imprisonment for longer than 1 year or even death. A misdemeanor is a less serious crime that has a penalty of a fine or imprisonment for less than 1 year. An example of criminal conduct for nurses is misuse of a controlled substance.

Standards of care are the legal requirements for nursing practice that describe minimum acceptable nursing care. Standards reflect the knowledge and skill ordinarily possessed and used by nurses actively practicing in the profession (Guido, 2010) (see Chapter 1). The American Nurses Association (ANA) (2010) develops standards for nursing practice, policy statements, and similar resolutions. These standards outline the scope, function, and role of the nurse in practice. Nursing standards of care are described in the Nurse Practice Act of every state, in the federal and state laws regulating hospitals and other health care institutions, by professional and specialty nursing organizations, and by the policies and procedures established by the health care facility where nurses work (Guido, 2010). In a malpractice lawsuit a nurse’s actual conduct is compared to nursing standards of care to determine whether the nurse acted as any reasonably prudent nurse would act under the same or similar circumstances. For example, if a patient receives a burn from a warm compress application, negligence is determined by reviewing if the nurse followed the correct procedure for applying the compress. A breach of the nursing standard of care is one element that must be proven in the tort of nursing negligence or malpractice (Daller, 2010).

Nurse Practice Acts define the scope of nursing practice, distinguishing between nursing and medical practice and establishing education and licensure requirements for nurses. The rules and regulations enacted by a State Board of Nursing define the practice of nursing more specifically. For example, State Boards develop rules regarding intravenous therapy. Another example involves the use of nursing assistive personnel (NAP) (e.g., nurse assistants). Some State Boards of Nursing define the registered nurse’s responsibilities specifically and develop position statements and guidelines to help licensed nurses delegate safely to NAP (National Council of State Boards of Nursing [NCSBN], 2005). All nurses are responsible for knowing the provisions of the Nurse Practice Act of the state in which they work and the rules and regulations enacted by the State Board of Nursing and other regulatory administrative bodies.

The Joint Commission (TJC) (2011a) requires accredited hospitals to have written nursing policies and procedures. These internal standards of care are specific and need to be accessible on all nursing units. For example, a policy/procedure outlining the steps to follow when changing a dressing or administering medication provides specific information about how nurses are to perform these tasks. Some hospitals are also now using commercially published procedural textbooks to reference the general policies and procedures of the institution. You need to know the policies, procedures, and protocols of your employing institution so you use the same standard of care as the other nurses in your institution. Institutional policies and procedures need to conform to state and federal laws and community standards and cannot conflict with legal guidelines that define acceptable standards of care (Guido, 2010).

In a lawsuit for malpractice or nursing negligence, a nursing expert testifies to the jury about the standards of nursing care as applied to the facts of the case (Box 23-1). A nurse may be requested to give evidence in a deposition; this appearance needs to be taken seriously (Scott, 2009). The jury uses the standards of care to determine whether the nurse acted appropriately. Nurse experts base their opinions on existing standards of practice established by Nurse Practice Acts, professional organizations, institutional policies and procedures, federal and state hospital licensing laws, TJC standards, job descriptions, and current nursing research literature (Guido, 2010). Usually nurses are responsible for meeting the same standards as other nurses practicing in similar settings. Specialized nurses such as nurse anesthetists, operating room (OR) nurses, intensive care nurses, or certified nurse-midwives have specially defined standards of care and skills. Ignorance of the law or of standards of care is not a defense against malpractice. The best way for nurses to keep up with the current legal issues affecting nursing practice is to maintain familiarity with standards of care and the policies and procedures of their employing agency and to read current nursing literature in their practice area (ANA, 2010).

The Americans with Disabilities Act (ADA) (1990) is a broad civil rights statute that protects the rights of people with physical or mental disabilities (Grohar-Murray and Langan, 2011). The ADA prohibits discrimination and ensures for persons with disabilities equal opportunities in employment, state and local government services, public accommodations, commercial facilities, and transportation. It is also the most extensive law on how employers must treat health care workers and patients infected with the human immunodeficiency virus (HIV). The Supreme Court ruled in 1998 in Bragdon v Abbott that even asymptomatic HIV constitutes a disability within the meaning of the ADA. This means that the ADA protects a person who is HIV positive but does not have acquired immunodeficiency syndrome (AIDS). The ADA regulations protect the privacy of infected people by giving individuals the opportunity to decide whether to disclose their disability. However, several cases have held that the health care provider has to disclose the fact that he or she has HIV. Despite these rulings, ADA protects health care workers in the workplace with disabilities such as HIV infection. Likewise, health care workers cannot discriminate against HIV-positive patients (Guido, 2010).

As a result of patients being transferred from private to public hospitals without appropriate screening and stabilization (referred to as patient dumping), Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA) (1986). This act provides that, when a patient comes to the emergency department or the hospital, an appropriate medical screening occurs within the capacity of the hospital. If an emergency condition exists, the hospital is not to discharge or transfer the patient until the condition stabilizes. Exceptions to this provision include if the patient requests transfer or discharge in writing after receiving information about the benefits and risks or if a health care provider certifies that the benefits of transfer outweigh the risks.

Health insurance plans are free to eliminate coverage for certain specialties and impose limits on the amount of coverage that they will pay for certain illnesses. However, if health insurance plans provide mental health benefits, the Mental Health Parity Act of 1996 forbids health plans from placing lifetime or annual limits on mental health coverage that are less generous than those placed on medical or surgical benefits.

Admission of a patient to a mental health unit occurs involuntarily or on a voluntary basis. Involuntary detention occurs when an individual files with the court within 96 hours of the patient’s initial detention. A judge may determine that the patient is a danger to self or others; then the judge will grant the involuntary detention, and the patient can be detained for 21 more days for psychiatric treatment.

Potentially suicidal patients are admitted to mental health units. If the patient’s history and medical records indicate suicidal tendencies, the patient must be kept under supervision. Lawsuits result from patients’ attempts at suicide within the hospital. The allegations in the lawsuits are that the health care provider failed to provide adequate supervision and safeguard the facilities. Documentation of precautions against suicide is essential.

Advance directives include living wills, health care proxies, and durable powers of attorney for health care (Blais et al., 2006). They are based on values of informed consent, patient autonomy over end-of-life decisions, truth telling, and control over the dying process. The Patient Self-Determination Act (PSDA) (1991) requires health care institutions to provide written information to patients concerning their rights under state law to make decisions, including the right to refuse treatment and formulate advance directives. Under the act the patient’s record needs to document whether or not the patient has signed an advance directive. For living wills or durable powers of attorney for health care to be enforceable, the patient must be legally incompetent or lack the capacity to make decisions regarding health care treatment. A judge makes the determination of legal competency, and the health care provider and family usually make the determination of decisional capacity. Decisional capacity is the ability to make right choices for oneself as they relate to medical care. Be familiar with the policies of your institution complying with the act. Likewise, check the state laws to see if a state honors an advance directive that originates in another state.

In most states Required Request laws mandate that, at the time of admission to a hospital, a qualified health care provider has to ask each patient over age 18 whether he or she is an organ or tissue donor. If the answer is affirmative, the health care provider obtains a copy of the document. If the answer is negative, the health care provider discusses the option to make or refuse an organ donation and places such documentation in the patient’s medical record. The health care provider who certifies death is not involved in the removal or transplantation of organs (see Chapter 36).

The National Organ Transplant Act of 1984 prohibits the purchase or sale of organs. The act provides civil and criminal immunity to the hospital and health care provider who performs in accordance with the act. The act also protects the donor’s estate from liability for injury or damage that results from the use of the gift. Organ transplantation is extremely expensive. Patients in end-stage renal disease are eligible for Medicare coverage for a kidney transplant, but private insurance pays for other transplants. The United Network for Organ Sharing (UNOS) has a contract with the federal government and sets policies and guidelines for the procurement of organs. Patients who require organ transplantation are on a waiting list for an organ in their geographical area that gives priority to patients who demonstrate the greatest need. Be familiar with the policies and procedures of your employing institution regarding organ donation.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) represents one of the more recent federal statutory acts affecting nursing care. This law provides rights to patients and protects employees. It protects individuals from losing their health insurance when changing jobs by providing portability. It allows employees to change jobs without losing coverage as a result of preexisting coverage exclusion as long as they have had 12 months of continuous group health insurance coverage (Carter, 2010).

In the privacy section of the HIPAA, there are standards regarding accountability in the health care setting (Carter, 2010). These rules create patient rights to consent to the use and disclosure of their protected health information, to inspect and copy one’s medical record, and to amend mistaken or incomplete information. It limits who is able to access a patient’s record. It establishes the basis for privacy and confidentiality concerns, viewed as two basic rights within the U.S. health care setting. Privacy is the right of patients to keep personal information from being disclosed. Confidentiality protects private patient information once it has been disclosed in health care settings. Patient confidentiality is a sacred trust. Nurses help organizations protect patients’ rights to confidentiality. Although the HIPAA does not require such measures as soundproof rooms in hospitals, it does mean that nurses and all health care providers need to avoid discussing patients in public hallways and provide reasonable levels of privacy in communicating with and about patients in any manner. Message boards used in patients’ hospital rooms to post daily nursing care information can no longer contain information revealing the patient’s medical condition. With the increased use of technology in the health care setting such as with the use of electronic health records, nurses have a challenging task to maintain patient privacy and confidentiality. HIPAA violations have civil and criminal sanctions.

Health care information privacy is also protected by standards set by the Health Care Financing Administration (HCFA) for hospitals and health care providers who participate in Medicare and Medicaid (Guido, 2010). These standards require that hospitals and health care providers give notice to patients of their rights to decisions about their care, grievances regarding their care management, personal freedom and safety, confidentiality, access to their own medical records, and freedom from restraints that are not clinically necessary. In addition, many state laws allow patients to access their medical records. Exceptions to the ability to access medical records apply to psychotherapy notes or when the health care provider has determined that access would result in harm to the patient or another party (Privacy Rights Clearinghouse, 2011).

The Federal Nursing Home Reform Act (1987) gave residents in certified nursing homes the right to be free of unnecessary and inappropriate restraints. The use of physical restraints is a safety strategy that has been used in hospitals and long-term care settings to protect patients from injury. However, the Centers for Medicare and Medicaid Services (2007) and The Joint Commission (2011a) have set standards for reducing the use of restraints in health care settings and for using them only with extreme caution. The risks associated with the use of restraints are serious. A restraint-free environment is the first goal of care for all patients. There are many alternatives to the use of restraints, and you should try all of them before using restraints. Restraints can be used (1) only to ensure the physical safety of the resident or other residents, (2) when less restrictive interventions are not successful, and (3) only on the written order of a health care provider (TJC, 2011a). Written orders include a specific episode with start and end times. Litigation from improper restraint use is a common nursing legal issue (Evans and Cotter, 2008). Nurses are negligent for failure to initiate safety procedures when the patient condition necessitates it. Knowing when and how to use restraints correctly is key (Chapter 27). Liability for improper or unlawful restraint and for patient injury from unprotected falls lies with the nurse and the health care institution. Nurses who apply restraints in violation of state and federal regulations may be charged with abuse, battery, or false imprisonment.

Nurses act as Good Samaritans by providing emergency assistance at an accident scene (Good Samaritan Act, 1997). All states have Good Samaritan laws enacted to encourage health care professionals to assist in emergencies (Dachs and Elias, 2008). These laws limit liability and offer legal immunity if a nurse helps at the scene of an accident. For example, if you stop at the scene of an automobile accident and give appropriate emergency care such as applying pressure to stop hemorrhage, you are acting within accepted standards, even though proper equipment is not available. If the patient subsequently develops complications as a result of your actions, you are immune from liability as long as you acted without gross negligence (Good Samaritan Act, 1997). Although Good Samaritan laws provide immunity to the nurse who does what is reasonable to save a person’s life, if you perform a procedure for which you have no training, you are liable for any injury resulting from that act. You should only provide care that is consistent with your level of expertise. In addition, once you have committed to providing emergency care to a patient, you must stay with that patient until you can safely transfer his or her care to someone who can provide needed care such as emergency medical technicians (EMTs) or emergency department staff. If you leave the patient without properly transferring or handing him or her off to a capable person, you may be liable for patient abandonment and responsible for any injury suffered after you leave him or her (Dachs, 2008). Three states (Louisiana, Minnesota, and Vermont) have enacted “failure-to-act” laws that make it a crime not to provide Good Samaritan care (Dachs and Elias, 2008).

Nurses, especially those employed in community health settings, need to understand public health laws. State legislatures enact statutes under health codes, which describe the reporting laws for communicable diseases and school immunizations and those intended to promote health and reduce health risks in communities. The Centers for Disease Control and Prevention (CDC) (http://www.CDC.gov) and the Occupational Health and Safety Act (OHSA) (http://www.osha.gov) provide guidelines on a national level for safe and healthy communities and work environments. The purposes of public health laws are protection of public health, advocating for the rights of people, regulating health care and health care financing, and ensuring professional accountability for care provided. Community and public health nurses have the legal responsibility to enforce laws enacted to protect public health (see Chapter 3). These laws include reporting suspected abuse and neglect such as child abuse, elder abuse, or domestic violence; reporting communicable diseases; ensuring that patients in the community have received required immunizations; and reporting other health-related issues enacted to protect public health. To encourage reports of suspected cases, states provide legal immunity for the reporter if the report is made in good faith. Any health care professional who does not report suspected child abuse or neglect may be liable for civil or criminal legal action.

Many legal issues surround the event of death, including a basic definition of the actual point at which a person is legally dead. There are essentially two standards for the determination of death. The cardiopulmonary standard requires irreversible cessation of circulatory and respiratory functions. The whole-brain standard requires irreversible cessation of all functions of the entire brain, including the brainstem. The reason for the development of different definitions is to facilitate recovery of organs for transplantation. Even though the patient is legally “brain dead,” the patient’s organs are sometimes healthy for donation to other patients. Most states have adopted the Uniform Determination of Death Act (1980). It states that health care providers can use either the cardiopulmonary or the whole-brain definition to determine death. Be aware of legal definitions of death because you need to document all events that occur when the patient is in your care. Nurses have a specific legal obligation to treat the deceased person’s remains with dignity (see Chapter 36). Wrongful handling of a deceased person’s remains causes emotional harm to the surviving family.

An autopsy or postmortem examination may be requested by the patient or patient’s family, as a part of an institutional policy; or it may be required by law. When a patient’s death has occurred under suspicious circumstances or if the patient died within 24 hours of admission to a health care facility, the decision to conduct a postmortem examination is made by the medical examiner (Autopsy Consent, 1998). When the patient’s death is not subject to a medical examiner review, consent must be obtained. The priority for giving consent is (1) the patient in writing before death; (2) durable power of attorney; (3) surviving spouse; (4) surviving child, parent, or sibling in the order named.

Providing end-of-life care in today’s world is challenging for health care professionals because people are living longer. The Oregon Death with Dignity Act (1994) was the first statute that permitted physician or health care provider–assisted suicide. The statute stated that a competent individual with a terminal disease could make an oral and written request for medication to end his or her life in a humane and dignified manner. A terminal disease is an “incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within 6 months.”

The American Nurses Association (ANA) (2008) has held that nurses’ participation in assisted suicide violates the code of ethics for nurses. The American Association of Colleges of Nursing (AACN) supports the International Council of Nurses’ mandate to ensure an individual’s peaceful end of life (Guido, 2010). The positions of these two national organizations are not contradictory and require nurses to approach a patient’s end of life with openness to listening to the patient’s expressions of fear and to attempt to control the patient’s pain.