Nursing and the Courts
David M. Keepnews and Virginia Trotter Betts
“Power concedes nothing without a demand. It never did and it never will.”
The courts are an important source of health policy. Their deliberations and decisions hold significant implications for nurses and the patients, communities, and populations they serve. Many nurses and other health professionals (like most nonlawyers) may think of legal and judicial processes as arcane, highly technical, even frightening, and better left to legal experts to address and understand. But nurses should not regard the legal system as the exclusive domain of lawyers and judges any more than they regard the legislative process as belonging only to lobbyists and legislators. In fact, anyone who seeks to understand policy needs at least a basic knowledge not just of the impact of court decisions, but also how advocates respond to and even influence the outcomes of those decisions.
This chapter provides an overview of the legal and judicial system and the role of the courts in shaping policy. It is not a comprehensive overview; rather, it aims to provide the reader with a general understanding of this area and its critical importance for nursing.
The Judicial System: A Brief Overview
The United States has two major, parallel court systems: federal and state. The federal courts have jurisdiction over matters that involve federal law (generally, those that pertain to the U.S. Constitution, federal statutes and/or the actions of federal agencies). Federal courts can also hear complaints that arise between parties in different states if a sufficient monetary amount (currently a minimum of $75,000) is in dispute. The trial courts for the federal system (the entry point for most federal cases) are called district courts; there are 94 federal district courts located throughout the U.S. and its territories. Federal courts of appeal, also referred to as Circuit Courts, are organized into 11 geographic circuits plus the District of Columbia Circuit Court and the Federal Circuit Court (Want, 2009). The U.S. Supreme Court is the federal court of last resort—there is no higher court to which its decisions can be appealed.
Each state has its own court system. State courts generally rule on issues arising under the state’s constitution and laws. (State courts may also hear some claims that arise under federal law or the U.S. Constitution.) Generally, state court systems include trial-level and appellate courts, with a high court as the court of last resort. (The high court is known as the Supreme Court in most states, but not all; in New York State, for example, it is known as the Court of Appeal.) Often, trial courts are further subdivided on the basis of subject matter, an amount in dispute or a type of remedy. (Thus, states may have a family court, probate court, municipal court, mental health court, and so on.) On certain matters, decisions of a state Supreme Court may be appealed directly to the U.S. Supreme Court.
In Marbury v. Madison (1803), the U.S. Supreme Court first asserted its power to declare a law null and void if it is found to violate the Constitution. This concept of judicial review has evolved into one of the courts’ most important powers because it grants them significant influence over government action. Another important doctrine, stare decisis (“let the decision stand”), set the course for judicial precedents by adhering to previous findings in cases with substantially comparable facts and situations. Thus, courts grant deference to their own prior rulings. Courts are not completely bound by precedent, and they sometimes overrule their prior decisions, but they are expected to depart from precedent based on compelling and clearly articulated reasons.
The scope of the Supreme Court’s influence on American life expanded greatly in the years after the Civil War when the Fourteenth Amendment to the Constitution, ratified in 1868, limited states’ abilities to restrict the rights of their citizens, including the right to due process and the equal protection of the law. This amendment made many state laws susceptible to challenge in the federal courts, particularly as the Supreme Court ruled that the Fourteenth Amendment had the effect of making most of the rights in the Bill of Rights (e.g., the right of free speech under the First Amendment) applicable to the states.
The Context for Court Decisions: The Constitution and the Branches of Government
The U.S. Constitution sets out the basic structure of the federal government. State constitutions do the same for each state government. A key element of this structure is a system of checks and balances between the three branches of government: the legislative branch (Congress, state legislatures, local legislative bodies), the executive branch (the president, governors, and the government agencies they administer), and the judicial branch (the federal and state courts). Within this structure, each branch carries out specific functions, but no branch is completely autonomous. For example, Congress passes legislation, but the president can either sign or veto it, and Congress can override a presidential veto by a two-thirds majority. Federal executive agencies such as the U.S. Department of Health and Human Services are accountable to the President, but their budgets depend on actions by Congress. The federal courts act independently of the President and Congress, but judges are nominated by the President subject to confirmation by the U.S. Senate.
The Constitution is our fundamental source of law. All government action must be consistent with it. This is true of the U.S. Constitution (which applies to the actions of the federal and state governments) and each state constitution (which apply to the actions of each respective state).
The U.S. Constitution is the legal source of the rights and freedoms that Americans enjoy. While much of the Constitution is concerned with the structure and functions of the federal government, the first ten amendments to the Constitution—known as the Bill of Rights—define the basic rights of all people in the U.S. including freedom of speech; freedom of assembly; freedom of religion; freedom from unlawful searches and seizures; protection against being deprived of life, liberty, or property without due process; and others. In the U.S., the rights outlined by the Bill of Rights are defined primarily as limitations on government’s power to restrict or deny them. Thus, for example, the First Amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(While the Bill of Rights specifically focuses on the federal government, the Fourteenth Amendment—as noted earlier—has had the effect of applying most of these rights to actions by state governments as well.)
Because the Bill of Rights applies to government action, it does not directly limit the behavior of private individuals (including employers). Other laws may apply to actions by employers and individuals—for example, whistleblower laws that protect employees’ rights to report unethical or illegal conduct.
Laws passed by Congress must be consistent with the U.S. Constitution. Any laws passed by a state legislature must be consistent with the U.S. Constitution and the state constitution. Laws or ordinances passed by a local legislative body (such as a City Council) must be consistent with the federal and state constitutions and any other legal documents that set out the structure and functions of local government (such as a city charter).
Rules or regulations issued by the executive branch (administrative agencies) must be consistent with the Constitution. There must also generally be some statutory (legislative) source of authority for them to act. For example, the U.S. Secretary of Health and Human Services is authorized by federal law to issue rules and regulations to carry out the functions of her department, including the administration of the Medicare program (42 U.S.C. Sections 1302 and 1395 ); this is the basis for that agency to adopt regulations spelling out Conditions of Participation that hospitals and other health care organizations must meet in order to participate in the Medicare and Medicaid programs (42 CFR Chapter IV, Subchapter G, 2004.) The federal Administrative Procedure Act (5 U.S.C., Chapter 5 ) and parallel state laws also spell out the procedures that government agencies must follow in issuing regulations—for example, how much notice must be provided to the public and how members of the public can provide comments on proposed regulations. The actions of an executive agency may be challenged on the basis that it has allegedly acted without legal authority or fails to comply with procedural requirements.
For example, in Spine Diagnostics Center of Baton Rouge, Inc. v. Louisiana State Board of Nursing (2008), a Louisiana appellate court considered a challenge to a Board of Nursing Advisory Opinion that interventional pain management is within the scope of practice of Certified Registered Nurse Anesthetists (CRNAs). The court upheld a trial court finding that this Advisory Opinion constituted a “rule” (regulation) expanding the CRNA scope of practice into an area in which they had not traditionally practiced. The court agreed that interventional pain management is “solely the practice of medicine.” Since this “rule” expanding (according to the court) CRNAs’ scope of practice had not been issued in accordance with the state’s Administrative Procedures Act (including advance notice and an opportunity for public comment), it was found to be an improper attempt at rule making. The state Supreme Court subsequently declined to hear an appeal of the decision thus allowing it to stand.
Two other examples, both pertaining to nurse staffing ratios in California, also help to illustrate the court’s power to review agency actions. In 1999, California enacted Assembly Bill (AB) 394, which requires hospitals to abide by mandatory nurse staffing ratios. AB 394 directed the California Department of Health Services (CDHS) to issue regulations implementing the ratios. When the CDHS issued its ratios regulations in 2002, they included a proviso that the ratios be in effect “at all times.” The state hospital association argued that this requirement was too rigid—that applying it during meal and bathroom breaks would be costly and impractical. They sued the CDHS, seeking to have that provision overturned. A California Superior Court ruled against them, finding that the “at all times” language accurately reflected the intent of AB 394 and that eliminating it would render the law “meaningless” (Egelko, 2004).
Another section in the regulations initially set requirements for nurse staffing on medical-surgical units at 6 patients per licensed nurses (6 : 1), but included a change to a required 5 : 1 staffing ratio, scheduled to go into effect on January 1, 2005. At the behest of a newly elected governor, the CDHS issued emergency regulations to delay implementation of the 5 : 1 ratio until January 1, 2008. California law allows a state agency to issue emergency regulations (which are not subject to requirements for advance notice and public comment) “if the emergency situation clearly poses such an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest” (California Government Code Section 11346.1).
The California Nurses Association, a major proponent of mandatory nurse staffing ratios, sued to stop the emergency regulations (and thus to stop delay in implementation of the more stringent staffing ratios). A Superior Court judge granted their request, finding that the CDHS had failed to follow required procedures for changing state regulations and that it had not demonstrated that the delay was needed for the immediate preservation of public health and safety (California Nurses Association v. Schwarzenegger et al., 2005). The planned 1 : 5 ratio for medical-surgical units was implemented; an appeal of the judge’s decision was later dropped (Martin, 2005).
Impact Litigation: Establishing Rights
Over the decades, advocates have had a strong tradition of using the courts strategically to establish, affirm, or clarify rights. Litigation that is pursued with a goal of achieving a broad social affect that sets a significant precedent or benefits a class of people is often referred to as impact litigation. Impact litigation “is most commonly understood to mean litigation that is expected to have far-reaching results” (Churchill, 2009).
A major example of impact litigation is Brown v. Board of Education, the 1954 case in which the U.S. Supreme Court struck down school segregation and mandated that states begin a process of desegregating their public schools. The Court unanimously found that segregated public school education constituted a state policy of inferior education—that “separate educational facilities are inherently unequal”—and that it thus violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. This case had been pursued by civil rights advocates who sought to use the courts as a vehicle for vindicating their rights as promised by the U.S. Constitution.
Another prominent example of using the courts to forge social policy is Roe v. Wade (1973) in which the U.S. Supreme Court found that women had a right to choose abortion without unreasonable state restrictions. The Court made its ruling on the basis of its interpretation of various amendments to the Constitution that taken together conferred a right of privacy that included self-determination in seeking a medical procedure to terminate pregnancy. Although Roe v. Wade has been modified and narrowed in some respects by subsequent Supreme Court decisions, the basic right of a woman to choose abortion to terminate an unwanted pregnancy as established by the Court in 1973 has remained intact and continues as current reproductive health policy.
Litigation has also helped to establish and advance tobacco policy (Parmet, 1999). Through both individual lawsuits and class actions, advocates have sought to hold the tobacco industry accountable for illnesses and deaths caused by tobacco use. These legal efforts have also helped publicize important, previously undisclosed information about the tobacco industry and its practices and about the serious health effects of tobacco use, adding ammunition to both legal and political efforts to limit access to and use of tobacco. In 1998, 46 states settled a lawsuit against U.S. tobacco manufacturers, agreeing on payments to states of over $250 billion, as well as restricting advertising and marketing of tobacco products (Wilson, J., 1999). This multistate settlement helped to spur increased social and political support for numerous public health–oriented anti-tobacco efforts. In 2009, Congress passed—and President Obama signed—the Family Smoking Prevention and Tobacco Control Act giving the Food and Drug Administration authority to regulate tobacco and further restricting tobacco advertising. Tobacco companies challenged this new law in court. In January 2010, a federal court struck down some of the bill’s provisions, but upheld key provisions, including FDA regulation and some advertising restrictions (Wilson, D., 2010; Commonwealth Brands Inc. v. U.S., 2010).
Interpreting and Enforcing Existing Legislation
Expanding Legal Rights through Litigation
Laws passed at the federal or state level often create rights or remedies that can be legally enforced through the courts. The Americans with Disabilities Act (ADA) provides for equal treatment for disabled Americans and bars discrimination in a number of areas including employment and public accommodations. For example, a person with a disability who is able to perform the essential aspects of a job with reasonable accommodation cannot be fired or denied a promotion on the basis of her or his disability. While the ADA applies principles of equality and fair play that are basic to American law and public life, it also created specific, enforceable rights.
In Olmstead v. L.C., (1999), the Supreme Court found that states are required to place persons with mental disabilities in community settings rather than in institutions when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.
Enforcing Legal and Regulatory Requirements
The courts are often used as a means to seek enforcement of existing regulatory requirements. Nursing organizations sometimes turn to the courts to challenge practices they believe violate state nurse practice acts. For example, the American Nurses Association (ANA), ANA/California, and the California School Nurses Organization sued the California Department of Education (CDE) challenging a CDE directive authorizing insulin injection in public schools by unlicensed personnel. The CDE had issued this directive in connection with its settlement of a suit by parents of diabetic students who, the parents had charged, were being denied needed care by the lack of school personnel qualified to administer insulin (CDE, 2007). The nursing groups challenged this practice as a violation of California’s Nursing Practice Act and questioned the authority of the CDE to issue a directive on nursing practice. The trial court issued an order stopping the CDE directive; (American Nurses Association California v. Connell, 2008); that order was subsequently stayed (essentially, put on hold) pending appeal.
Federal and state antitrust laws are designed to protect consumers by prohibiting anticompetitive business practices. These laws have their roots in the end of the nineteenth century when large and powerful businesses combined into alliances and colluded on prices, distribution, and other practices. Such collusion effectively eliminated competition among these businesses and blocked newer companies from entering the market. Such practices operated to the detriment of the consumer. Antitrust protections have been a legal area to which nurses and others have sometimes looked for relief from practices that block their full participation in the health care marketplace.
Traditionally, health professionals were largely free from antitrust scrutiny under an exemption for “learned professions.” In 1975, the U.S. Supreme Court essentially eliminated that exemption (Goldfarb v. Virginia State Bar, 1975). Over the past 3 decades, antitrust laws have become significant to the health care industry. Beginning in the 1990s, merger activity among hospitals, insurance companies, and health systems brought attention from antitrust enforcement agencies.
Although federal antitrust laws are enforced through two federal agencies, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ), private parties can also bring antitrust suits directly in federal court. In June 2006, class action antitrust suits were filed on behalf of nurses in Detroit, San Antonio, Albany, Chicago, and Memphis. (Class action suits seek to vindicate the rights of an entire class of individuals who share a common interest giving rise to the suit and who seek a common outcome.) These suits alleged that hospitals and health systems in each of those metropolitan areas had secretly shared nurses’ pay and planned raises, agreeing not to compete with each other on compensation. This collusion between erstwhile competitors, the suits alleged, violated federal antitrust laws (Evans, 2007; Miles, 2007). Some hospitals opted to settle without going to trial. An Albany, New York, health system reached a $1.25 million settlement (Greenhouse, 2009); a Detroit health system agreed to a $13.6 million settlement (Greene, 2009).
Professional associations can also be subject to antitrust scrutiny. For example, in a prominent case, the U.S. Supreme Court found that an agreement by a county medical society to establish maximum fees for medical procedures constituted illegal price-fixing (Arizona v. Maricopa County Medical Society, 1982). In Wilk v. American Medical Association (1990), the AMA was found to have violated antitrust laws for anticompetitive activities aimed toward chiropractors. The AMA had advised that physicians were guilty of unethical conduct if they referred patients to chiropractors or accepted referrals from them, since one of the AMA’s ethical principles barred cooperation with “unscientific practitioners.” A group of chiropractors filed suit against the AMA and prevailed in the Seventh Circuit Court of Appeals, which found that this was part of an attempt to conduct an illegal group boycott of the chiropractic profession.
Many of the court decisions that have an impact on health policy and nursing practice are civil actions. In some prominent instances, however, actions in criminal courts have posed significant policy implications for nursing as well. For example, while negligent acts or commissions that lead to patient injury or death are usually addressed in civil suits by the injured party (or his or her family), on occasion they have led to criminal prosecution. In 2006, a Wisconsin nurse faced criminal charges for negligence leading to the tragic death of a teenage mother in labor. She was charged with Neglect of a Patient Causing Great Bodily Harm—a felony. This case drew national attention because of concern that criminalizing medical errors was over reaching and excessive and that emphasizing individual blame rather than systems-level accountability for errors and their prevention could actually impede efforts to improve patient safety. The Wisconsin nurse eventually accepted a plea bargain, agreeing to plead “no contest” to two misdemeanor charges and accepting 2 years’ probation and restrictions on her work hours; in addition, the Wisconsin Board of Nursing suspended her license for 9 months (Treleven, 2006).
In 2006, 10 nurses simultaneously resigned their positions at a Long Island nursing home. These nurses were among a larger group—all of them recruited from the Philippines—working in facilities owned by the Sentosa Care nursing home chain. These nurses had complained that many of the promises made to them when they were first hired regarding wages, working, and living conditions had been broken. The nurses, fearing retaliation by their employer, resigned with minimal notice. The facility, whose patients included ventilator-dependent children, covered their shifts with other nurses. After receiving a complaint from the nursing home, the state’s board of nursing found no basis to proceed with a patient abandonment complaint. An investigation by the state Department of Health later yielded a conclusion that no patients had been put at risk. Nonetheless, the local county District Attorney filed criminal charges against the nurses, indicting them for conspiracy and for putting children and disabled patients at risk.
The case raised significant concerns not only about mistreatment of immigrant nurses but about the rights of all nurses (Keepnews, 2009). Nursing organizations, including the ANA, the New York State Nurses Association, and the Philippine Nurses Association of America, supported the nurses’ call for charges to be dropped. The trial court judge refused to drop the charges. However, the nurses filed an appeal of this decision. A state appellate court issued an order that the trial be stopped. The court found that “criminalizing [the nurses’] resignations” would have the effect of unjustifiably “abridging the nurses’ Thirteenth Amendment rights”—referring to that Constitutional amendment’s prohibition on involuntary servitude (Matter of Vinluan v. Doyle, 2009).
Influencing and Responding to Court Decisions
Judges are supposed to rule based on facts and law, not according to public or political pressure. There are established channels for advocates to seek to persuade judges through written and oral argument, presentation of witnesses, and other evidence. In a strict sense, this precludes attempts by non-parties to a case to lobby for or influence the outcome of judicial proceedings.
However, in reality, several factors may influence the outcome of court decisions. In a very general sense, judges often take changing social attitudes and standards into account in their rulings. Judges also differ in their own judicial philosophy. The views of federal judicial appointees and their judicial record may influence a president’s decision to nominate someone to the district or appellate courts and to the Supreme Court. (Past judicial rulings may also be a factor in the Senate’s ultimate decision whether or not to confirm a nominee.) Thus, supporting one or another candidate for president is, in a general but important sense, one way of seeking to influence the courts’ decision-making on major issues. The appointee frequently matters. (However, it should be noted that judges’ opinions and attitudes often shift over time and cannot always be reliably predicted. Justice Harry Blackmun, often characterized as a liberal Court member, and who wrote the majority opinion in Roe v. Wade, had been nominated to the Supreme Court by President Nixon.)
Influencing the Courts: Amicus Curiae Briefs
A more direct route for influencing courts’ decisions is through filing amicus curiae (“friend of the court”) briefs. Amicus briefs provide an important tool for advocacy groups to make their views known on a case with broad implications, even when they are not parties to that case. When (with the court’s permission) groups and/or individuals file an amicus brief, they bring their perspectives, data, and beliefs about the issues before the court in order to influence how the court should rule.
Examples of cases in which nursing organizations have filed amicus briefs include the following:
• Lark v. Montgomery Hospice (2008). ANA, the Maryland Nurses Association, the American College of Nurse-Midwives, and the Public Justice Center filed an amicus brief in Maryland’s high court in support of a nurse who had accused her employer of violating that state’s health care whistleblower law.
• Spine Diagnostics Center of Baton Rouge, Inc. v. Louisiana State Board of Nursing (2008). The ANA, the Louisiana State Nurses Association, and the Louisiana Alliance of Nursing Organizations jointly filed an amicus brief with a Louisiana appellate court in support of a state board of nursing advisory opinion that interventional pain management is within the scope of practice of Certified Registered Nurse Anesthetists. The American Association of Nurse Practitioners, the Louisiana Association of Nurse Practitioners, and the National Council of State Boards of Nursing each also filed an amicus brief in this case.
• Olmstead v. L.C. (1999). The American Psychiatric Nurses Association joined several other organizations in an amicus brief before the U.S. Supreme Court to support the right of disabled persons to receive care in non-institutional settings.
• Sullivan v. Edward Hospital (2004). The American Association of Nurse Attorneys (TAANA) filed an amicus brief with the Illinois Supreme Court arguing that only nurses are qualified to provide expert testimony on nurses’ standard of care.
• Matter of Vinluan v. Doyle (2009). ANA and NYSNA filed an amicus brief urging a New York State appellate court to stop the criminal trial against 10 Filipino nurses who had resigned their positions at a Long Island, New York, nursing home.
• Commonwealth Brands Inc. v. U.S. (2010). The Oncology Nursing Society joined with 10 other organizations in support of FDA regulation of tobacco manufacturing, sales, and advertising.