Scope of Practice

BONs maintain expectations for and limits of nursing practice in each state through the licensure of nurses and also through challenges to non-nurses engaged in professional activities that intrude upon the nursing scope of practice. The scope of practice generally refers to the broad range of activities that nurses perform and manage in the delivery of care. The scope of practice activities is framed broadly to account for the many professional nursing settings and roles but also to account for activities that are reserved for professional nurses or, as appropriate, their delegatees with nursing supervision. Scope of practice provisions are also intended to prevent unlicensed professionals from providing services that are reserved to licensed professionals.

Yet, the absolute outside limits of the scope of practice are sometimes a bit difficult to define. As such, the scope and limits of nursing practice have often been the subject of disciplinary action and legal challenges through the court system. In some cases, these challenges arise from other professional licensing boards, such as state medical boards, in response to circumstances within their state. The importance of the scope of practice has been demonstrated by several important legal cases. In Sermchief v Gonzales,² the Supreme Court of Missouri heard a case involving two nurses who worked with several physicians in rural Missouri to provide women’s health care services. The nurses engaged in health counseling, routine pelvic exams and testing such as pap smears, as well as community education under standing orders from physicians. All of the parties were in agreement that the nurses had provided excellent care and that the patients were satisfied. The issue was strictly whether they were practicing within the scope of nursing practice or if they were infringing upon the scope of medical practice (practicing medicine without a license). The court held in favor of the nurses because their work was within the boundaries of the then-existing NPA and within the limits of the physicians’ orders.

The field of obstetrics has commonly served as an example for scope of practice issues. A case in Ohio, Marion Ob/Gyn v State Med. Bd.,³ established that delivering infants was beyond the scope of physician assistant practice in Ohio. At the same time, nurses could deliver infants as the scope of nursing practice allowed licensed nurses to practice midwifery. In Kansas, lay midwives can deliver infants without infringing on the scope of nursing or medical practice. In State Board of Nursing v Ruebke,⁴ the Kansas Supreme Court held lay midwifery was a common and longstanding exception to the prohibition against the unauthorized practice of medicine if the midwife is working under the supervision of a physician.

Standards of Practice

NPAs establish the scope of nursing practice while BONs usually develop standards of practice at the state level through administrative rulemaking. These standards of practice communicate the expectations of safe and effective nursing practice within the scope of practice. State standards of practice also assist BONs in evaluating the ongoing practice of nursing. Thus, to fully understand the expectations for and limits of nursing in any particular state, it is necessary to review both the NPA and the rules or regulations of the BON.

In addition to standards developed by BONs, many specialty nursing organizations have developed standards of practice. While the BON standards establish broad expectations of safety and efficacy, specialty standards are more targeted and aimed at fostering excellence in the specialized field. An example of specialty standards are those developed by the American Association of Critical-Care Nurses (AACN).⁵

The Model Nursing Act (Model Act) and Model Administrative Rules (Model Rules) developed by the NCSBN serve as example NPAs and standards of practice for individual states in regulating nursing practice.⁶ Actual state laws governing professional nursing practice vary from state to state in the degree to which they have adopted all or part of the current or previous model acts and rules. Nonetheless, the Model Act scope of practice provisions (Box 3-1) and the Model Rules for standards of practice (Box 3-2) are useful in illustrating the differences between scope and standards. For example, the seventh activity listed within the scope of practice is “advocating the best interest of clients.” Within the standards of practice in Box 3-2, standard 3 lists eight specific obligations or expectations of nurses in advocating for clients.

In addition, nursing standards developed by professional and specialty nursing organizations complement BON standards, provide detail and specificity, and are typically drafted to promote excellence in clinical practice. Foundational organizations such as the American Nurses Association (ANA) and the AACN publish standards of practice and standards of care.⁷ The AACN standards appear in Box 3-3. These specialty standards are helpful in establishing and measuring quality care and often reflect a consensus opinion of experts in the particular specialty of appropriate nursing care.

The extent to which specialty standards are introduced in a legal context varies widely from state to state. It is critical to understand that the legal term of art, “standard of care,” is not the same as the standards of practice. In some cases, specialty standards of practice or care have been introduced in court to help establish a legal “standard of care,” but not all courts will consider these. The legal standard of care and the use of specialty standards will be discussed further in the Tort Law section.

Duty

Duty to the injured party is the first element of a malpractice case and is premised on the existence of a nurse-patient relationship. Nurses assume a duty to the patient to provide care that is consistent with the standard of care when the nurse-patient relationship is established. Cases from a number of states recognize the nurse-patient relationship as a separate and distinct relationship¹¹ and as a prerequisite for determining whether a nurse owes the patient a duty to provide care in accordance with the requisite standard of care. If a nurse shows that he or she 1) was not assigned to that particular patient on the date that the negligence allegedly occurred or 2) was not working on the day or at the time the negligence allegedly occurred, no duty will be imposed on the nurse. Because no duty is imposed on the nurse, negligence allegations will fail.¹²

Although courts have been willing to construct parameters around a nurse’s duty to his or her patient, if the patient establishes that a specific nurse actually rendered care, the nurse will be found to have assumed a duty to provide reasonable care for the patient. This duty cannot be waived or overridden by the instructions of a physician or hospital administrator. A nurse’s failure to provide reasonable care subjects the nurse to civil liability for negligence provided the patient proves that the failure caused damage or injury.

Lunsford v Board of Nurse Examiners¹³ illustrates this principle. In this case, Donald Floyd arrived at an emergency department in Texas complaining of chest pain and pressure that radiated down his left arm. Mr. Floyd was accompanied by Francis Farrell, who attempted to have Mr. Floyd examined by a physician who was sitting at the nurses’ station in the emergency department. The physician told Ms. Farrell that Mr. Floyd would need to first be seen by a nurse. The physician then instructed Nurse Lunsford to transfer Mr. Floyd to a neighboring hospital located 24 miles away because the equipment that would likely be needed to treat Mr. Floyd was already in use by another patient.

Lunsford interviewed Mr. Floyd and suspected cardiac involvement. Because of the transfer instruction that she received from the physician, Lunsford instructed Ms. Farrell to drive with her flashers on and to speed to get to the neighboring hospital. Reportedly, Lunsford also asked Ms. Farrell if she knew cardiopulmonary resuscitation (CPR) and suggested that she might need to perform CPR at some point on the way. Unfortunately, within approximately 5 miles of the Harlingen emergency department, Mr. Farrell died from cardiac arrest.

An administrative complaint was subsequently filed with the Texas Board of Nurse Examiners alleging negligence and challenging Lunsford’s nursing licensure. After a hearing on the matter, the Texas Board of Nurse Examiners suspended the license of Lunsford for 1 year. Lunsford appealed the decision and the court determined that Lunsford, as well as other nurses who are similarly situated, have a duty to evaluate the status of persons who are ill and seeking professional help. The court also determined that Lunsford, as well as other nurses, have a duty to implement care needed to stabilize a patient’s condition and to prevent complications. According to this Texas Court of Appeals, Lunsford failed to act reasonably and breached her duty to Mr. Floyd when she failed to 1) assess him; 2) inform the physician of the life-and-death nature of his condition; 3) take appropriate action to stabilize him and prevent his death. The court also pointed out that hospital policy or physician orders do not relieve a nurse of his or her duty to a patient.