Legal Issues

Legal Issues

Kelly K. Dineen


The law routinely influences and intersects with the practice of nursing and with health care in general. This influence extends far beyond the common notion of malpractice and the trial system. Legal systems operate at the local, state, and federal level and range from matters handled through the courts to those handled through administrative agencies to agreements between private individuals or organizations. Regardless of the setting, the law, in general, is concerned with minimum standards rather than best practices or even ethical practice. In other words, practice that meets legal criteria is often far less than what meets ethical criteria or criteria for best practices. Nursing licensure is one such example as it indicates that the nurse has demonstrated the basic competencies to safely practice as an entry-level nurse.

Of course, effective nursing is about much more than minimal competencies. The National Council of State Boards of Nursing (NCSBN), an organization that works to develop policy and consistent standards throughout the state licensing boards, defines nursing as: 1) a scientific process founded on a professional body of knowledge; 2) a learned profession based on an understanding of the human condition across the lifespan and the relationship of a client with others and within the environment; and 3) an art dedicated to caring for others.1 The NCSBN further describes nursing as a “dynamic discipline that increasingly involves more sophisticated knowledge, technologies and client care activities.” As nurses practice in this increasingly complex and rapidly evolving health care system, it is critical to understand some basic principles of law, the differences between legal thresholds and quality and scope of practice, and the ways in which practice is impacted by law and the ability of nurses to impact health law and policy.

This chapter will highlight some of the laws and legal systems that figure prominently in nursing practice, including 1) administrative law (illustrated by the regulation of the profession by state boards of nursing); 2) tort law (lawsuits brought by patients for the actions or inactions of nurses); 3) constitutional law (illustrated through a discussion of the legal rights of patients to make decisions to accept or refuse treatment); and 4) federal and state health care statutory laws (illustrated through self-determination laws and select federal laws).

Administrative Law: Professional Regulation

For most nurses, the first professional interaction with a legal system is through the process of licensure. The very ability to practice as a licensed professional nurse is a privilege granted by the state and is a function of each state’s authority to promote and protect the health and welfare of its citizens. State boards of nursing (BON) are administrative bodies created by—and that operate under—state statutes, or more generally written state laws created by state legislatures and signed by the governor. In turn, the BONs develop more specific rules (or regulations) for obtaining and maintaining licensure.

This process is consistent throughout every administrative system, whether federal or state. Administrative bodies are created and granted power under statutes written and passed by legislatures and signed by the governor (in the case of state law) or the president (in the case of federal law). Administrative agencies, in turn, develop, propose and effectuate specific regulations in their areas. These regulations can be changed by the administrative agencies through a process of rulemaking that allows the agencies to adapt to changes in their relative areas without requiring the action of the legislature. For example, state nurse practice acts (NPAs) are statutes that established the scope of practice in each state. BONs, state administrative agencies, create more specific rules or regulations further defining the scope of practice, delineating the standards of practice or criteria for licensure and may change them through the same rulemaking process. The work of the BONs is just one tangible example of an administrative system, but perhaps the most important to nurses, as BONs control the very ability to practice.

Functions of Boards of Nursing

The regulation of nursing practice is intended to protect the health and safety of citizens by: 1) regulating the conditions of licensure; 2) regulating the scope of practice; 3) establishing a framework of standards of nursing practice; 4) removing incompetent or unsafe practitioners through disciplinary actions; and 5) prohibiting unlicensed persons from providing services reserved for licensed individuals. In addition, the regulation of nursing can enhance the professional status and public’s trust of nurses.

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.

Box 3-1

Scope of Practice (Activities of Professional Nurses)

Model Nursing Act, Scope of Nursing Practice (Model Statutory Law)

1. Providing comprehensive nursing assessment of the health status of clients.

2. Collaborating with health care team to develop an integrated client-centered health care plan.

3. Developing a strategy of nursing care to be integrated within the client-centered health care plan that establishes nursing diagnoses; sets goals to meet identified health care needs; prescribes nursing interventions; and implements nursing care through the execution of independent nursing strategies and regimens requested, ordered or prescribed by authorized health care providers.

4. Delegating and assigning nursing interventions to implement the plan of care.

5. Providing for the maintenance of safe and effective nursing care rendered directly or indirectly.

6. Promoting a safe and therapeutic environment.

7. Advocating the best interest of clients.

8. Evaluating responses to interventions and the effectiveness of the plan of care.

9. Communicating and collaborating with other health care providers in the management of health care and the implementation of the total health care regimen within and across care settings.

10. Acquiring and applying critical new knowledge and technologies to the practice domain.

11. Managing, supervising and evaluating the practice of nursing.

12. Teaching the theory and practice of nursing.

13. Participating in development of policies, procedures, and systems to support the client.

14. Other acts that require education and training as prescribed by the BON commensurate with the RN’s continuing education, demonstrated competencies, and experience.

Modified from National Council of the State Boards of Nursing (NCSBN). NCSBN Model Nursing Practice Act and Model Nursing Administrative Rules. Chicago: NCSBN; 2011.

Box 3-2

Standards of Practice*

Model Nursing Administrative Rules, Standards of Nursing Practice (Model Regulations or Administrative Rules)

2 Standards Related to RN Responsibility for Nursing Practice Implementation

The RN:

a. Conducts a comprehensive nursing assessment that is an extensive data collection (initial and ongoing) regarding individuals, families, groups, and communities.

b. Detects faulty or missing patient/client information.

c. Applies nursing knowledge effectively in the synthesis of the biologic, psychologic, and social aspects of the client’s condition.

d. Uses this broad and complete analysis to plan strategies of nursing care and nursing interventions that are integrated within the client’s overall health care plan.

e. Provides appropriate decision making, critical thinking, and clinical judgment to make independent nursing decisions and nursing diagnoses.

f. Seeks clarification of orders when needed.

g. Implements treatment and therapy, including medication administration and delegated medical and independent nursing functions.

h. Obtains orientation/training for competence when encountering new equipment and technology or unfamiliar care situations.

i. Demonstrates attentiveness and provides client surveillance and monitoring.

j. Identifies changes in client’s health status and comprehends clinical implications of client signs, symptoms, and changes as part of expected and unexpected client course or emergent situations.

k. Evaluates the impact of nursing care, the client’s response to therapy, the need for alternative interventions, and the need to communicate and consult with other health team members.

l. Documents nursing care.

m. Intervenes on behalf of client when problems are identified and revises care plan as needed.

n. Recognizes client characteristics that may affect the client’s health status.

o. Takes preventive measures to protect client, others, and self.

4 Standards Related to RN Responsibility to Organize, Manage, and Supervise the Practice of Nursing

The RN:

a. Assigns to another only those nursing measures that fall within that nurse’s scope of practice, education, experience, and competence or unlicensed person’s role description.

b. Delegates to another only those nursing measures for which that person has the necessary skills and competence to accomplish safely.

c. Matches client needs with personnel qualifications, available resources, and appropriate supervision.

d. Communicates directions and expectations for completion of the delegated activity.

e. Supervises others to whom nursing activities are delegated or assigned by monitoring performance, progress, and outcomes; and assures documentation of the activity.

f. Provides follow-up on problems and intervenes when needed.

g. Evaluates the effectiveness of the delegation or assignment.

h. Intervenes when problems are identified and revises plan of care as needed.

i. Retains professional accountability for nursing care as provided.

*Methods by which nurses safely and effectively deliver care within the scope of practice.

Modified from National Council of the State Boards of Nursing (NCSBN). NCSBN Model Nursing Practice Act and Model Nursing Administrative Rules. Chicago: NCSBN; 2011.

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.

Box 3-3

Standards for Acute and Critical Care Nursing

Standards of Care for Acute and Critical Care Nursing Practice

Standard 3: Outcomes Identification

The nurse caring for the acutely and critically ill patient identifies outcomes for the patient or the patient’s situation.

Standard 4: Planning

The nurse caring for the acutely and critically ill patient develops a plan that prescribes interventions to attain outcomes.

Standard 5: Implementation

The nurse caring for the acutely and critically ill patient implements the plan, coordinates care delivery, and employs strategies to promote health and a safe environment.

Measurement Criteria

1. Interventions are delivered in a manner that minimizes complications and life-threatening situations.

2. The patient and family participate in implementing the plan according to their level of participation and decision-making capabilities.

3. Interventions are responsive to the uniqueness of the patient and family and create a compassionate and therapeutic environment, with the aim to promote comfort and prevent suffering.

4. The implemented plan and modifications are documented.

5. Collaboration to implement the plan occurs with the patient, family, healthcare providers, and the healthcare system.

6. The plan facilitates learning for patients, families, nursing staff, other members of the healthcare team, and the community including but not limited to health teaching, health promotion, and disease management according to patient characteristics.

Standards of Professional Performance

Standard 1: Quality of Practice

The nurse caring for the acutely and critically ill patient systematically evaluates and seeks to improve the quality and effectiveness of nursing practice.

Measurement Criteria

1. The nurse participates in clinical inquiry through quality improvement activities.

2. The nurse uses systems thinking to initiate changes in nursing practice and the healthcare delivery system.

3. The nurse ensures that quality improvement activities incorporate the patient’s and family’s beliefs, values, and preferences as appropriate.

4. The nurse questions and evaluates practice in an ongoing process, providing informed practice and innovation through research and experiential learning.

5. The nurse identifies organizational systems barriers to quality care and patient outcomes.

6. The nurse collects data to monitor the quality and effectiveness of nursing practice.

7. The nurse develops, implements, evaluates, and updates policies, procedures, and/or guidelines to improve the quality and effectiveness of nursing practice.

Standard 4: Collegiality

The nurse caring for the acutely and critically ill patient interacts with and contributes to the professional development of peers and other healthcare providers as colleagues.

Standard 5: Ethics

The nurse’s decisions and actions are carried out in an ethical manner in all areas of practice.

Standard 8: Resource Utilization

The nurse caring for the acutely and critically ill patient considers factors related to safety, effectiveness, cost, and impact in planning and delivering nursing services.

Measurement Criteria

1. The nurse considers factors related to safety, effectiveness, availability, cost, and impact on outcomes when choosing among practice options.

2. The nurse assists the patient and family in identifying and securing appropriate and available services to address health-related needs according to resource availability.

3. The nurse assigns or delegates aspects of care as defined by the state nurse practice acts, based on an assessment of the needs and condition of the patient, the potential for harm, the stability of the patient’s condition, the predictability of the outcome, the availability and competence of the healthcare provider, and the availability of resources.

5. The nurse assists the patient and family to become informed consumers by facilitating learning of the options, alternatives, risks, benefits, and costs of treatment and care.

Modified from American Association of Critical-Care Nurses. Standards for Acute and Critical Care Nursing Practice. Aliso Viejo, CA: AACN; 2008.

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.

Tort Law: Negligence and Professional Malpractice, Intentional Torts

Many civil lawsuits for injuries fall under the legal heading of torts. Anyone can find themselves as a party in such a lawsuit. Torts are civil lawsuits based on unintentional acts (failure to act or negligence that results in harm) or intentional acts, such as assault, battery, or defamation. For the lay public, the standard for behavior for negligence is based on reasonableness, or what a reasonably prudent person would do in the same situation. This is also known as ordinary negligence.

In a professional capacity, individuals are judged based on their professional standard of care. Nurses caring for acutely and critically ill patients may be alleged to have acted in a manner that is inconsistent with standards of care or standards of professional practice and may find themselves involved in civil litigation that focuses in whole or in part on the alleged failure. This is professional malpractice or negligence law applied to professional behavior.

There are many types of cases based in tort law but this chapter will focus on negligence and professional malpractice, intentional torts of assault and battery, and some cases based on specific clinical circumstances. These include the respiratory management of acutely and critically ill patients, as well as liability associated with blood transfusions, infection control, and informed consent.

Ordinary Negligence

Generally, the standard for negligence is failing to act as a reasonably prudent person would under similar circumstances. There are four criteria or elements for all negligence cases: 1) duty to another person; 2) breach of that duty; 3) harm that would not have occurred in the absence of the breach (causation); and 4) damages that have a monetary value. All four elements must be satisfied for a case to go forward. For example, suppose a grocery store employee mops the floor but fails to block off the area or put up a wet floor sign and a customer walks in the area, falls and breaks a hip, and is left with hospital bills and lost wages. The grocery store has a duty to its customers to provide a reasonably safe environment and warn customers of areas of danger. Warning customers and/or blocking off the wet area is what a reasonably prudent grocery store would do. Failing to warn customers was a breach of that duty. Because the customer had no warning, she walked on the wet floor, fell, and suffered the harm of a broken hip. She would not have suffered the broken hip if the area had been blocked off. Finally, there are monetary damages in the form of hospital bills and lost wages. This is an example of ordinary negligence in which any person could make a determination of what is reasonable in a given circumstance. A juror need not hear from a professional to determine what is a reasonably prudent practice for the grocery store (standard for non-negligent behavior) in this case. On the other hand, negligence in the professional health care context differs in that expert testimony is needed to establish the standard of care. These cases are referred to as professional negligence or professional malpractice.

Professional Malpractice

Whereas negligence claims may apply to anyone, malpractice requires the alleged wrongdoer to have special standing as a professional. If a nurse caring for acutely and critically ill patients is accused of failing to act in a manner consistent with the standard of care, that nurse is subject to liability for professional malpractice (negligence applied to a professional). Just as in ordinary negligence, the person bringing the lawsuit must prove the elements of negligence. In the health care context, patient/plaintiffs (person[s] bringing the lawsuit) must prove: 1) that the nurse had a duty to care for the patient; 2) that the nurse breached that duty by deviating from the standard of care; 3) that the breach caused harm that would not have occurred in the absence of negligence; and 4) that the plaintiff should be compensated for the resulting damages.

In civil cases alleging wrongdoing by health care professionals, the terms “malpractice” and “negligence” are used interchangeably, although there are courts that distinguish between the two causes of action. The malpractice-negligence distinction was addressed in Candler General Hospital Inc. v McNorrill.8 In that case, the court concluded that malpractice was merely a negligence action applied to a professional.

The legal standard of care for nurses is established by expert testimony and is generally “the care that an ordinarily prudent nurse would perform under the same circumstances.”9 The standard of care determination focuses more on accepted practice of competent nurses rather than best practice of excellent nurses (which may be reflected in some specialty standards of practice). In addition to expert testimony, courts may rely on multiple types of evidence to establish the standard of care.

In Gould v NY City Health and Hospital,10 the court looked more closely at the standard of care and determined that there were three obligations inherent in a malpractice cause of action. The nurse should 1) possess the requisite knowledge and skill possessed by an average member of the profession; 2) exercise reasonable and ordinary care in the application of professional knowledge and skill; and 3) use best judgment in the application of professional knowledge and skill.


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.

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Oct 29, 2016 | Posted by in NURSING | Comments Off on Legal Issues

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