Legal Issues in Health Care

Chapter Objectives

1. Differentiate between negligence and malpractice.

2. Explain why the nurse is at risk for legal issues.

3. Identify issues of importance for patient charting.

4. Discuss potential risk factors in health care setting.

5. Identify issues of importance in the Nurse Practice Act.

6. Explain why nurses must be aware of each state’s Nurse Practice Act.

Definitions

Personal liability

Responsibility and accountability of individuals for their own actions or inactions

Corporate liability

Responsibility of an organization for its own wrongful conduct

Policies and procedures

Written standardized protocol that is authorized by the health care organization

Risk management activities

Clinical and administrative activities that organizations undertake to identify, evaluate, and reduce the risk of injury to patients, staff, and visitors and the risk of loss to the organization itself

Informed consent

Consent for treatment given by a patient after three requirements are met: the patient has the capacity to consent, consent is voluntary, and the patient receives information regarding treatment in a manner that is understandable

Patient Self-Determination Act

Federal law requiring every heath care facility receiving Medicare or Medicaid to provide written information to adult patients concerning their right to make health care decisions

Advance directive

Document that allows the competent patient to make choices regarding health care before it is needed

Living will

Advance directive that indicates what an individual dictates regarding treatment or lifesaving measures in the future

Durable power of attorney for heath care decisions

Document that permits an individual to give a surrogate or proxy the authority to make decisions for that person in the event that he or she becomes incompetent

The Omnibus Budget Reconciliation Act (OBRA) of 1987

One provision of this act provides patients the right to be free from any physical or chemical restraint imposed for the purpose of discipline or convenience and not required to treat medical symptoms

Restraint

Direct application of physical force to a patient, with or without the patient’s permission, to restrict his or her freedom of movement. The physical force may be human, mechanical devices, or a combination thereof

Tort

Private or civil wrong or injury, including action of bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages

STATE BOARD OF NURSING

As a nurse you are well aware that you are held accountable for all of your actions both as an individual nurse and as the nurse managing the care of others. It is important, therefore, to have an understanding of legal issues and their impact on the profession. The first contact that you will have will be the state licensing authority and the laws of that authority. The first thing you will do after graduation is pass the NCLEX examination. Upon passing this milestone, you will receive your license to practice professional nursing. This license is given by the individual state where you are practicing and the license is governed by the statutory regulations of that particular state.

State boards of nursing in each state define those actions and duties of a nurse that are allowable by the profession guided by the state’s practice act and common law. Nurse Practice Acts affect all areas of nursing practice. Nurse Practice Acts set educational standards, examination requirements, and licensing requirements and regulate the nursing profession in each particular state. State boards of nursing exist to foster public protection, to ensure consumer protection from fraud and abuse, and to respond to changes in the health care practice environment. The National Council of State Boards of Nursing (NCSBN) serves as a central clearinghouse, ensuring that individual state actions are enforced in all states in which an individual nurse may hold licensure.

Because each state has its own practice act and regulations, all nurses need to know the provisions of the practice act of the state in which they are licensed. This is especially important in the areas of diagnosis and treatment that differ from state to state. The addresses and web addresses of the various state boards are listed in Chapter 21.

If you are a nurse licensed in one state while practicing telenursing or giving telephone triage in another state, it is imperative that you know the nursing regulations of the state in which your care is being delivered. With the advent of multistate licensures, nurses licensed in one state may legally practice in some other states without obtaining additional licensure. The state in which you practice is the state under whose regulations you are accountable. Not all states have multistate licenses, so again it is imperative that you know about the practice requirements of your state.

MULTISTATE LICENSE

The process for creating a nurse multistate licensure (compact) began in 1996 at the NCSBN Delegate Assembly when delegates voted to investigate different mutual recognition models and report the findings.

• At the 1997 Delegate Assembly, delegates unanimously agreed to endorse a mutual recognition model of nursing regulation.

• Strategies for implementation were also developed in 1997. In that same year, the Nurse Licensure Compact Administrators (NLCA) was established to manage compact implementation and to develop compact rules.

• In 1998, the NCSBN Board of Directors approved a policy goal relating to mutual recognition, which included the goal to “remove regulatory barriers to increase access to safe nursing care.”

• The RN and LPN/VN Compact began January 1, 2000, when it was passed into law by the first participating states: Maryland, Texas, Utah, and Wisconsin.

Since 1998, the compact has included registered nurses (RNs) and licensed practical or vocational nurses (LPN/VNs) (Nurse Licensure Compact Administrators, 2008).

The states that participate in the Compact have agreed to work toward general uniformity in the laws that regulate nursing. Each state, however, retains complete authority in nurse licensing (Table 18-1).

Table 18-1

NURSE LICENSURE COMPACT (NLC) STATES

Compact States	Implementation Date
Arizona	7/1/2002
Arkansas	7/1/2000
Colorado	10/1/2007
Delaware	7/1/2000
Idaho	7/1/2001
Iowa	7/1/2000
Kentucky	6/1/2007
Maine	7/1/2001
Maryland	7/1/1999
Mississippi	7/1/2001
Nebraska	1/1/2001
New Hampshire	1/1/2006
New Mexico	1/1/2004
North Carolina	7/1/2000
North Dakota	1/1/2004
Rhode Island	7/1/2008
South Carolina	2/1/2006
South Dakota	1/1/2001
Tennessee	7/1/2003
Texas	1/1/2000
Utah	1/1/2000
Virginia	1/1/2005
Wisconsin	1/1/2000
If you have questions regarding NLC licensure, please contact your state board of nursing in your primary state of residence for specific requirements.

States Pending NLC Implementation (these dates could be subject to change)
Pending Compact States	Status
Missouri	Pending

From Nurse Licensure Compact Administrators. (2008). Participating states in the NLC. Used with permission.

How does this work for an individual nurse seeking nursing licensure? Each nurse has a state of legal residency, which he or she already declares each year to the Internal Revenue Service. This is the primary state in which the nurse resides; typically where the nurse pays federal taxes, lives most of the year, and has a driver’s license. The nurse maintains an active nursing license in that state. If the state is part of the multistate Compact, the nurse is issued an active Compact license by that state and may not have a license in another Compact state (although she or he may have an inactive license in other states). The active license will be labeled “Multistate” or “Compact” to make identification of Compact status user-friendly, until all states join the Compact.

The nurse with a Compact license has met the requirements for a nursing license in the resident state. The nurse with a Compact license may practice in any Compact state using his or her Compact license. If a complaint and disciplinary action arise, it is processed in the state where the nursing care was rendered.

What about nurses in a Compact state who want to practice in a non-Compact state? Those nurses must apply for and receive a license before practicing in any state that has not joined the Compact.

A nurse who moves to another Compact state has a grace period to apply for a new nursing license, as well as for a new driver’s license. During that period, the nurse can both drive and start a new nursing job without any delays.

What about nurses who are not residents of one of the Compact states? These nurses cannot get a Compact nursing license. If they desire to practice in a Compact state, they must apply for and receive a “single-state” license in each Compact state, as well as each non-Compact state, before practicing nursing there. Like auto drivers of yore, they must be licensed in every state where they use a license (care for patients) (Nurse Licensure Compact Administrators).

DISCIPLINARY ACTION BY THE STATE BOARD OF NURSING

As a nurse manager, you are also responsible for the monitoring of the practice of employees under your supervision and ensuring that they remain current with their licensure. A list of all individuals who hold nursing licenses, registered nurses and licensed practical nurses, is maintained by the vice president of nursing. The nurse must show the original state license to the vice president of nursing or his or her designee when the new nursing license has been issued. Many state boards of nursing now have online licensee directories that give you the status of an individual’s license.

The nurse and the nurse leader are responsible for protecting the license of nurses in the organization. Disciplinary actions by the state board of nursing will occur if a complaint about a nurse’s action triggers an investigation. Potential situations that may trigger an investigation include:

• Impaired nursing practice (see Chapter 17)

• Practicing beyond the scope of the license

CORPORATE LIABILITY

Corporate liability is the responsibility of an organization for its own wrongful conduct. The health care facility must maintain an environment conducive to quality patient care. Corporate liability includes (1) the duty to hire, supervise, and maintain qualified, competent, and adequate staff; (2) the duty to provide, inspect, repair, and maintain reasonably adequate equipment; and (3) the duty to maintain safety in the physical environment (Sullivan, 2001, p. 72) (see Chapter 7).

MALPRACTICE

In the delivery of patient care, there is always a potential for malpractice and negligence. Malpractice refers to “any misconduct or lack of skill in carrying out professional responsibilities” (Sullivan & Decker, 2001, p. 75). It is also defined as failure of a professional person to act as other prudent professionals with the same knowledge and education would act under similar circumstances.

This is one of the reasons nurses need to maintain personal malpractice insurance. The employing organization maintains blanket malpractice coverage for all employees, but it is highly recommended that individuals purchase their own personal nursing liability insurance. Most commonly, nurses are subject to legal liability arising from malpractice and negligence. Nursing negligence malpractice occurs when the nurse’s actions do not meet the standard of care, when the nurse’s actions are unreasonable, or when the nurse fails to act and causes harm. Harm related to nursing clinical practice commonly arises from negligent acts and omissions (unintentional torts) and a variety of intentional acts (intentional torts) such as invasion of privacy, assault and battery, or false imprisonment (Aiken, 2004). See Box 18-1 for reasons that nurses should have personal malpractice insurance.

Box 18-1 REASONS THAT NURSES SHOULD HAVE PERSONAL MALPRACTICE INSURANCE

1. In the event of litigation, the facility, not the nurse, makes any decisions about settlement or defense, so the nurse’s best interests may not be represented.

2. If the court determines that the nurse acted outside the scope of employment, he or she is unprotected.

3. If the nurse does, in fact, practice outside the facility’s job description (professional committees, outside speaking, educational work), the facility coverage does not apply.

4. Facilities have the right to seek reimbursement from the nurse for claims paid as a result of negligence.

5. Personal assets may in some cases be attached to satisfy a judgment, or wages may be garnished.

6. Health care facility insurance is frequently a claims-made policy. This type of policy will cover the nurse only while he or she is employed by the facility, not years later when the claim is in court.

7. The cost of insurance is relatively small in relation to the peace of mind the insurance provides.

From Rowland, H., & Rowland, B. (1997). Nursing administration handbook, 4th ed., (p. 192) Gaithersburg, MD: An Aspen Publication, Aspen Publishers, Inc.