Legal Implications in Nursing Practice



Legal Implications in Nursing Practice


Objectives



• Explain the legal concept of standard of care.


• Discuss the nurse’s role in witnessing the informed consent process.


• Describe the legal responsibilities and obligations of nurses regarding the following federal statutes: Americans with Disabilities Act (ADA), Emergency Medical Treatment and Active Labor Act (EMTALA), Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Patient Self-Determination Act (PSDA).


• List sources for standards of care for nurses.


• Describe the nurse’s role regarding a “do not resuscitate” (DNR) order.


• Define legal aspects of nurse-patient, nurse–health care provider, nurse-nurse, and nurse-employer relationships.


• List the elements needed to prove negligence.


• Describe the nursing implications associated with legal issues that occur in nursing practice.


Key Terms


Administrative law, p. 296


Assault, p. 301


Battery, p. 301


Civil laws, p. 297


Common law, p. 297


Confidentiality, p. 299


Criminal laws, p. 297


Defamation of character, p. 302


Durable power of attorney for health care (DPAHC), p. 299


Felony, p. 297


Informed consent, p. 302


Intentional torts, p. 301


Libel, p. 302


Living wills, p. 298


Malpractice, p. 302


Misdemeanor, p. 297


Negligence, p. 302


Nurse Practice Acts, p. 296


Occurrence report, p. 305


Privacy, p. 299


Regulatory law, p. 296


Risk management, p. 305


Slander, p. 302


Standards of care, p. 297


Statutory law, p. 296


Tort, p. 301


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Safe nursing practice requires understanding the legal framework of health care. Understanding the legal implications of nursing practice demands critical reasoning skills to protect the patient’s rights and the nurse from liability. Society expects safe health care delivery, especially from nurses who are typically perceived as the most trusted profession. As patient care practice innovations and new health care technologies emerge, the principles of negligence and malpractice liability are being applied to challenging new situations. Nurses should not fear the law but instead practice nursing armed with the judgment skills that are the outcomes of informed critical thinking.


Legal Limits of Nursing


As a professional nurse you need to understand the legal limits influencing your practice. This, along with good judgment and sound decision making, ensures that your patients receive safe and appropriate nursing care.


Sources of Law


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


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).



Box 23-1


Anatomy of a Lawsuit


Pleadings Phase



Discovery



Interrogatories: Written questions requiring answers under oath. Usual questions concern witnesses, insurance experts, and which health care providers the plaintiff has seen before and after the incident.


Medical records: The defendant obtains all of the plaintiff’s relevant medical records for treatment before and after the incident.


Witnesses’ depositions: Questions are posed to the witness under oath to obtain all relevant, nonprivileged information about the case.


Parties’ depositions: The plaintiff and defendants (physician, nurse, hospital personnel) are almost always deposed.


Other witnesses: Factual witnesses, both neutral and biased, including family members on the plaintiff’s side and other medical personnel (e.g., nurses) on the defendant’s side, are deposed to obtain information and their version of the case.


Treating physicians’ or health care providers’ depositions: Before subsequent treating, physicians’ or health care providers’ depositions are taken to establish issues such as those concerning preexisting conditions, causation, the nature and extent of injuries, and permanency.


Experts: The plaintiff selects experts to establish the essential legal elements of the case against the defendant. The defendant selects experts to establish the appropriateness of the nursing care.


Trial



Proof of Negligence



One of the first and most important cases to discuss a nurse’s liability was Darling v Charleston Community Memorial Hospital. It involved an 18-year-old man with a fractured leg. The emergency department physician applied a cast with insufficient padding. The man’s toes became swollen and discolored, and he developed decreased sensation. He complained to the nursing staff many times. Although the nurses recognized the symptoms as signs of impaired circulation, they failed to tell their supervisor that the physician did not respond to their calls or the patient’s needs. Gangrene developed, and the man’s leg was amputated. Although the physician was held liable for incorrectly applying the cast, the nursing staff was also held liable for failing to adhere to the standards of care for monitoring and reporting the patient’s symptoms. Even though the nurses attempted to contact the physician, this case holds that, when the physician fails to respond, the nurse must go over the health care provider’s head to make sure that he or she is appropriately treated. Almost every state uses this 1965 Illinois Supreme Court case as legal precedence.


Federal Statutory Issues in Nursing Practice


Americans with Disabilities Act


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).


Emergency Medical Treatment and Active Labor Act


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.


Mental Health Parity Act


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


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.


Living Wills


Living wills represent written documents that direct treatment in accordance with a patient’s wishes in the event of a terminal illness or condition. With this legal document the patient is able to declare which medical procedures he or she wants or does not want when terminally ill or in a persistent vegetative state. Living wills are often difficult to interpret and not clinically specific in unforeseen circumstances. Each state providing for living wills has its own requirements for executing them. If health care workers follow the directions of the living will, they should be immune from liability (Bross, 2006).


Health Care Proxies or Durable Power of Attorney for Health Care


A health care proxy or durable power of attorney for health care (DPAHC) is a legal document that designates a person or persons of one’s choosing to make health care decisions when the patient is no longer able to make decisions on his or her own behalf. This agent makes health care treatment decisions based on the patient’s wishes (Blais et al., 2006).


In addition to federal statutes, the ethical doctrine of autonomy ensures the patient the right to refuse medical treatment. Courts upheld the right to refuse medical treatment in the 1986 Bouvia v Superior Court case. They have also upheld the right of a legally competent patient to refuse medical treatment for religious reasons. Christian Scientists may refuse medical treatment based on religious beliefs, and Jehovah’s Witnesses may accept medical treatment but may refuse blood transfusions based on personal religious beliefs. The U.S. Supreme Court stated in the Cruzan v Director of Missouri Department of Health case in 1990 that “we assume that the U.S. Constitution would grant a constitutionally protected competent person the right to refuse lifesaving hydration and nutrition.” In cases involving the patient’s right to refuse or withdraw medical treatment, the courts balance the patient’s interest with the interest of the state in protecting life, preserving medical ethics, preventing suicide, and protecting innocent third parties. Children are generally the innocent third parties. Although the courts will not force adults to undergo treatment refused for religious reasons, they will grant an order allowing hospitals and health care providers to treat children of Christian Scientists or Jehovah’s Witnesses who have denied consent for treatment of their minor children.


In addition to patient refusals of treatment, the nurse frequently encounters a DNR order. DNR means “do not resuscitate” or “no code.” Documentation that the health care provider has consulted with the patient and/or family is required before attaching a DNR order to the patient’s medical record (Guido, 2010).The health care provider needs to review DNR orders routinely in case the patient’s condition demands a change. If a patient does not have a DNR order, health care providers need to make every effort to revive the patient. Some states such as Ohio offer DNR Comfort Care and DNR Comfort Care Arrest protocols. Protocols in these instances list specific actions that health care providers will take when providing cardiopulmonary resuscitation (CPR).


CPR is an emergency treatment provided without patient consent. Health care providers perform CPR on an appropriate patient unless there is a DNR order in the patient’s chart. The New York law, the first adopted legislation regarding DNR, is one of the most comprehensive in the United States (New York DNR Statute, 1988). The statutes assume that all patients will be resuscitated unless there is a written DNR order in the chart. Legally competent adult patients consent to a DNR order verbally or in writing after receiving the appropriate information by the health care provider. Be familiar with the DNR protocols of your state.


Uniform Anatomical Gift Act


An individual who is at least 18 years of age has the right to make an organ donation (defined as a “donation of all or part of a human body to take effect upon or after death”). Donors need to make the gift in writing with their signature. In many states adults sign the back of their driver’s license, indicating consent to organ donation.


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.


Health Insurance Portability and Accountability Act


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).


Restraints


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.


State Statutory Issues in Nursing Practice


Licensure


A State Board of Nursing licenses all registered nurses in the state in which they practice. The requirements for licensure vary among states, but most states have minimum education requirements and require a licensure examination. All states use the National Council Licensure Examinations (NCLEX®) for registered nurse and licensed practical nurse examinations. Licensure permits people to offer special skills to the public, and it also provides legal guidelines for protection of the public.


The State Board of Nursing suspends or revokes a license if a nurse’s conduct violates provisions in the licensing statute based on administrative law rules that implement and enforce the statute. For example, nurses who perform illegal acts such as selling or taking controlled substances jeopardize their license status. Because a license is a property right, the State Board has to follow due process before revoking or suspending a license. Due process means that nurses must be notified of the charges brought against them and have an opportunity to defend against them in a hearing. Hearings for suspension or revocation of a license do not occur in court. Usually a panel of professionals conducts the hearing. Some states provide administrative and judicial review of such cases after nurses have exhausted all other forms of appeal.


Good Samaritan Laws


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).


Public Health Laws


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.


The Uniform Determination of Death Act


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.


Autopsy


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.


Physician-Assisted Suicide


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.


Civil and Common Law Issues in Nursing Practice


Torts


A tort is a civil wrong made against a person or property. Torts are classified as intentional, quasi-intentional, or unintentional. Intentional torts are willful acts that violate another’s rights such as assault, battery, and false imprisonment. Quasi-intentional torts are acts in which intent is lacking but volitional action and direct causation occur such as in invasion of privacy and defamation of character. The third classification of tort is the unintentional tort, which includes negligence or malpractice.


Intentional Torts


Assault

Assault is any action that places a person in apprehension of a harmful or offensive contact without consent. No actual contact is necessary. It is an assault for a nurse to threaten to give a patient an injection or to threaten to restrain a patient for an x-ray procedure when the patient has refused consent. Likewise, it is an assault for a patient to threaten a nurse (Guido, 2010).


Battery

Battery is any intentional touching without consent. The contact can be harmful to the patient and cause an injury, or it can be merely offensive to the patient’s personal dignity. In the example of a nurse threatening to give a patient an injection without the patient’s consent, if the nurse actually gives the injection, it is battery. Battery also results if the health care provider performs a procedure that goes beyond the scope of the patient’s consent. For example, if the patient gives consent for an appendectomy and the surgeon performs a tonsillectomy, battery has occurred. The key component is the patient’s consent.


In some situations consent is implied. For example, if a patient gets into a wheelchair or transfers to a stretcher after receiving advice that it is time to be taken for an x-ray procedure, the patient has given implied consent to the procedure. If the patient learns that he or she will have an x-ray film of the head instead of the foot and the patient refuses to have the x-ray film taken, the consent has been revoked or withdrawn.


False Imprisonment

The tort of false imprisonment occurs with unjustified restraint of a person without legal warrant. This occurs when nurses restrain a patient in a confined area to keep the person from freedom. False imprisonment requires that the patient be aware of the confinement. An unconscious patient has not been falsely imprisoned (Guido, 2010).


Quasi-Intentional Torts


Invasion of Privacy

The tort of invasion of privacy protects the patient’s right to be free from unwanted intrusion into his or her private affairs. HIPAA privacy standards have raised awareness of the need for health care professionals to provide confidentiality and privacy. Typically invasion of privacy is the release of a patient’s medical information to an unauthorized person such as a member of the press, the patient’s employer, or the patient’s family. The information that is in a patient’s medical record is a confidential communication that may be shared with health care providers for the purpose of medical treatment only.


Do not disclose the patient’s confidential medical information without his or her consent. A patient must authorize the release of information and designate to whom the health care information may be released. For example, respect the wish not to inform the patient’s family of a terminal illness. Similarly, do not assume that a patient’s spouse or family members know all of the patient’s history, particularly with respect to private issues such as mental illness, medications, pregnancy, abortion, birth control, or sexually transmitted infections. When a family asks to see a patient’s medical record, you must instead establish a relationship that allows for open communication so you can discuss the family’s concerns.


An individual’s right to privacy sometimes conflicts with the public’s right to know. In one case a television crew filmed a married couple who were participating in a hospital program. The couple had previously told no one but their immediate family that they were involved in the in vitro fertilization program and had received assurance that there would be no publicity or public exposure. After the newscast they received phone calls and embarrassing questions. The couple filed a lawsuit. The court held that the husband and wife stated a claim for invasion of privacy and that, even though the in vitro fertilization program was of public interest, the identity of the plaintiffs was a private matter (YG v Jewish Hospital, 1990).


Many states, through their respective public health departments, require that hospitals report certain infectious or communicable diseases. Sometimes the patient is a public figure whose physical condition is newsworthy (Guido, 2010). There are also cases in which information about a scientific discovery or a major medical breakthrough is newsworthy, as with the first heart transplant case or the first artificial heart recipient. If an event falls into any of these categories, guide information through the public relations department of the institution to ensure that invasion of privacy does not occur. It is not the nurse’s responsibility to decide independently the legality of disclosing information.


Defamation of Character

Defamation of character is the publication of false statements that result in damage to a person’s reputation. Slander occurs when one speaks falsely about another. For example, if a nurse tells people erroneously that a patient has gonorrhea and the disclosure affects the patient’s business, the nurse is liable for slander. Libel is the written defamation of character (e.g., charting false entries in a medical record).


Unintentional Torts


Negligence

Negligence is conduct that falls below a standard of care. The law establishes the standard of care for the protection of others against an unreasonably great risk of harm (Garner, 2006). For example, if a driver of a car acts unreasonably in failing to stop at a stop sign, it is negligence. In general, courts define negligence in car accident cases and other negligence cases as that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances. Negligent acts such as hanging the wrong intravenous solution for a patient or allowing a NAP to administer a medication often lead to disciplinary action by the state board of nursing.


Malpractice

Malpractice is one type of negligence and often referred to as professional negligence. When nursing care falls below a standard of care, nursing malpractice results. Certain criteria are necessary to establish nursing malpractice: (1) the nurse (defendant) owed a duty to the patient (plaintiff), (2) the nurse did not carry out that duty, (3) the patient was injured, and (4) the nurse’s failure to carry out the duty caused the injury. Even though nurses do not intend to injure patients, some patients file claims of malpractice if nurses give care that does not meet the appropriate standards. Malpractice sometimes involves failing to check a patient’s identification correctly before administering blood and then giving the blood to the wrong patient. It also involves administering a medication to a patient even though the medical record contains documentation that the patient has an allergy to that medication. In general, courts define nursing malpractice as the failure to use that degree of skill or learning ordinarily used under the same or similar circumstances by members of the nursing profession (Box 23-2) (Austin, 2006).


Nov 17, 2016 | Posted by in NURSING | Comments Off on Legal Implications in Nursing Practice

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