Download Statutory Law

Chapter 8
Legal Issues in
Nursing and Health Care
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Sources of Law and
Nursing Practice
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Statutory Law
 Definition
• Laws written and enacted by legislative bodies
• Violations are criminal offenses and are punishable by fines
or imprisonment.
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Sources of Law and
Nursing Practice
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Federal statutes related to nursing and health care
 Have a major impact on nursing care—mandate a minimum
standard of care in all settings that receive federal funds
(Medicare, Medicaid)
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Statutory Law
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Emergency Medical Treatment and Active Labor Law
(EMTALA)
• Enacted to prohibit the refusal of care for indigent and
uninsured patients seeking medical assistance in
emergency departments
• Prohibits the transfer of unstable patients, including women
in active labor, from one facility to another
• Applicable to nonemergency facilities such as urgent care
clinics
Americans With Disabilities Act of 1990 (ADA)—prohibits
discrimination against persons with disabilities by removing
barriers that might prevent the same opportunities available to
persons without disabilities
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Statutory Law
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Patient Self-Determination Act of 1990—requires that federally
funded hospitals (Medicare, Medicaid) inform adult patients in
writing about their right to make treatment choices and that they
ask patients if they have a living will or durable power of
attorney for health care
Health Insurance Portability and Accountability Act of 1996
(Public Law No. 104-191) (HIPAA)—intent of this law is to
ensure confidentiality of the patient’s medical records; the
statute sets guidelines for maintaining the privacy of health data
The Patient Safety and Quality Improvement Act—allows
certain disclosures of patient safety data
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Statutory Law
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State statutes
 Nurse Practice Act and board of nursing rules and regulations
• Define the scope and limitations of professional nursing
practice
• Vary from state to state, but common elements include the
following:
 Definition of the term registered nurse
 Description of professional nursing functions
 Standards of competent performance
 Behaviors that represent misconduct or prohibited
practices
 Grounds for disciplinary action
 Fines and penalties for violations
• Each nurse should own a copy and should understand the
content.
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Statutory Law
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Violations of the Nurse Practice Act or rules and regulations
• Licensing boards have the authority to hear and decide
cases against nurses.
• Penalties that may be imposed
 Issuing a formal reprimand
 Establishing a period of probation
 Levying fines
 Limiting, suspending, or revoking the nurse’s license
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Statutory Law
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Nurse/patient ratio and mandatory overtime statutes
 California was the first state to enact a law in January 2004 that
mandates the establishment of minimum nurse/patient ratios in
acute care facilities (e.g., critical care units, step-down and
medical-surgical units, maternity departments).
 Research indicates that improved nurse/patient ratios are
associated with lower “failure-to-rescue” rates and lower
inpatient mortality rates.
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Statutory Law

Reporting statutes
 Child Abuse Prevention and Treatment Act and reporting
statutes
• Laws mandating the reporting of specific health problems
and suspected or confirmed abuse
• Health professionals must report the following under penalty
of fine or imprisonment for failing to do so:
 Infant and child abuse
 Dependent elder abuse
 Specified communicable diseases
• Most laws grant immunity from suit within the context of the
mandatory reporting statute.
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Statutory Law
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Institutional licensing laws
 All facilities that provide health care services must comply with
licensing laws.
 Generally contained within the law are the following:
• Minimum standards for maintenance of the physical plant
• Basic operational aspects for major departments—nursing,
dietary, clinical labs, and pharmacy
• Essential aspects of patient rights and informed consent
process
• Copies of licensing laws can be obtained from the state
health department.
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American Nurses Association (ANA)
Standards of Professional Performance
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Should be used along with Standards of Quality Practice to guide
nurses
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Common Law
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Created through cases heard and decided in federal and state
appellate courts—also known as decisional or judge-made law
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Common Law
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Nursing case law
 Body of written opinions about nursing practice, also known as
nursing case law
 Importance cannot be overstated in establishing the current
standard of practice
 One important case established “affirmative duty”—the duty
that nurses will exercise independent judgment to prevent harm
to patients.
 Nurses should review case law and journals dedicated to legal
issues in nursing practice.
 Common law and case law provide courts with guidelines for
deciding future cases.
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Civil Law
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Negligence and malpractice
 Negligence is defined as failure to act in a reasonable and
prudent manner.
 Malpractice is a special type of negligence, that is, the failure of
a professional, a person with specialized education and
training, to act in a reasonable and prudent manner.
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Civil Law
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Elements essential for proving negligence or malpractice
 Nurse owed the patient or client a special duty of care based on
the establishment of a nurse-patient relationship.
 Nurse breached his or her duty to the patient or client.
 The patient suffered actual harm or damage.
 Proximate cause or a causal connection has been established
between the standard of care provided by the nurse and the
patient’s injury.
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Civil Law
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Most frequent allegations of nursing negligence
 Failure to ensure patient safety
 Improper treatment or negligent performance of treatment
 Failure to monitor the patient and report significant findings
 Medication errors
 Failure to follow the agency’s policies and procedures
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Civil Law
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Negligence and the doctrine of res ipsa loquitur
 Doctrine that applies when the negligent act clearly lies within
the range of a jury’s common knowledge and experience to
determine the standard of care—“the thing that speaks for
itself”
 Expert nurse witness is not required to help establish the
standard of care.
 For example, recent studies confirm that approximately 1000 to
2500 foreign bodies (instruments, needles, sponges) are
inadvertently left in the patient after surgery.
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Civil Law
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Gross negligence
 Reckless act that reflects a conscious disregard for the patient’s
welfare
 Court may award special damages meant to punish the nurse
for the outrageous conduct; these damages are referred to as
punitive damages.
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Civil Law
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Criminal negligence
 Negligent act also constitutes a crime—The act is deemed so
reckless that the action results in serious injury or death to the
patient.
 Consequences in addition to criminal charges
• Loss of job and livelihood
• Suspension or revocation of license
• Out-of-pocket fines levied by the nursing board
• Significant attorney’s fees
• Malpractice insurance may not cover costs in all cases.
• Conservative estimates suggest that as many as 98,000
patients die each year as a result of negligence and
malpractice of health care providers.
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Civil Law
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Defenses against claims of negligence
 In no case may a nurse use the defense “following physician’s
orders.”
 Emergency situations—Nursing care rendered in a lifethreatening emergency may breach the standard of care
required under normal circumstances
 Governmental immunity—Individual health care workers
employed in federal or state facilities are shielded from
personal responsibility for damages in malpractice cases.
 Good Samaritan immunity—limits a nurse’s liability or shields
the nurse from malpractice for rendering emergency assistance
outside the employment setting
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Statutes of Limitation
in Malpractice Cases
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Establish time limits within which a person may initiate a lawsuit
Time limits vary depending on state laws and a variety of case
circumstances.
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Reasons for
Malpractice Insurance
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All nurses purchase malpractice insurance.
More states recognize nurse malpractice as a legitimate claim in a
civil suit.
Functions for RNs and advanced practice nurses are expanding.
Increasing floating and cross-training mandates
Nurses have increasing responsibility for supervising subordinate
staff.
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Reasons for
Malpractice Insurance
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Some employers may fail to initiate an adequate defense for
nurses.
Lack of coverage will not discourage a lawsuit when there is a
legitimate claim.
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Liability
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Definition
Asserts that every person is responsible for the wrong
or injury done to another as the result of carelessness
Personal liability
 Requires the nurse to assume responsibility for patient harm or
injury that is a result of his or her negligent acts
 Nurse cannot be relieved of liability by another professional
such as a physician or nurse manager.
 Damages can be levied against current assets and future
earnings.
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Liability
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Personal liability with floating and cross-training
 Nurses should be cognizant of state statutes and case law
services outside of their usual practice area.
 In no case is a nurse permitted to render services if the
requisite knowledge to act competently is lacking.
 Nurses have a legal duty to refuse specific tasks that they
cannot perform safely and competently but should consider
negotiation and compromise with the supervisor.
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Liability
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Personal liability for team leaders and managers
 Held to the standard of care of the reasonably prudent
supervisor
 Team leaders and managers have been held negligent for
issues surrounding
• Triage of staff and equipment
• Supervision of subordinates
• Delegation of patient care tasks
• Reporting of team member performance deficits
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Liability
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Nurse managers and administrators may be held liable for
• Inadequate training
• Failure to periodically reevaluate staff competencies
• Failure to discipline or terminate unsafe workers
• Negligence in developing appropriate policies and
procedures
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Liability
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RNs functioning in the role of team leader or in any supervisory
capacity should review the following:
• Detailed job description, including responsibilities when
asked to supervise in an unfamiliar area or floor
• Job descriptions for team members
• Formal period of training and mentoring in the role
• Validated proof of competencies
• Guidelines for personal patient care assignments
• Chain of command
Nurse managers and administrators should be aware of case
law regarding incompetent charge nurses and team leaders.
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Liability
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Personal liability in delegation and supervision of team members
 Nurses must be absolutely clear about the lawfulness of patient
care assignments.
 Determine whether it is reasonable and prudent to delegate a
task on the basis of knowledge of the worker, patient status,
and current work setting conditions.
Employer liability—vicarious liability
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Liability

Defenses against claims of vicarious liability
 Charitable immunity
 Borrowed servant and “captain of the ship” doctrines
 Employer also may be liable for the negligent conduct of nurses
within the scope of their employment.
 Based on the legal principle of respondeat superior (let the
master answer)—adequate numbers of qualified nursing staff
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Liability
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Corporate liability
 Health care corporation can be held to a specified standard of
care.
 Health care facilities have been found corporately liable for
failing to have adequate numbers of qualified nursing staff.
 The Joint Commission has developed standards related to
orientation, training, and education of agency staff.
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Reducing Legal Liability

Risk management systems
 Track incidents and accidents in the facility
 Assist in the development of policies and procedures to
improve practice
 Provide knowledge about federal and state laws, licensing
laws, and health care case law
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Reducing Legal Liability

Incident reports
 Nurses are legally bound to report critical incidents to the
manager.
 Critical incidents that result in patient injury or death may lead
to a malpractice claim.
 Know appropriate procedures for completing and filing the
incident report.
 Describe events objectively; avoid subjective comments or
personal opinions.
 Never note in the medical record that an incident report was
completed or filed.
 Never photocopy the incident report.
 Physician’s order for an incident report should not be written in
the chart.
 Report every unusual occurrence or incident.
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Intentional Torts in
Nursing Practice
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Definition
 Direct violation of a person’s legal rights
 Plaintiff does not have to prove that the nurse breached a
special duty or was negligent.
 Consequences include fines and punitive damages but may
rise to the level of criminal acts.
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Intentional Torts in
Nursing Practice
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Assault and battery
 Assault is causing a person to fear that he or she will be
touched without consent.
 Battery is the unauthorized touching or the actual harmful or
offensive touching of a person and may rise to the level of a
crime.
 Nurse should ask the patient’s permission before initiating any
procedure and should document permission granted.
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Intentional Torts in
Nursing Practice
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Defamation of character
 Libel is defamation caused by written work.
 Slander is defamation caused by spoken word.
 Nurses are subject to libel for subjective comments written in
the medical record.
 Nurses are subject to slander when they repeat subjective
comments about patients in public places.
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Intentional Torts in
Nursing Practice
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False imprisonment
 Unlawful restraint or detention of another person against his or
her wishes
 Nurse has no authority to detain a patient even if there is
likelihood of harm or injury.
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Intentional Torts in
Nursing Practice
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Invasion of privacy
 Person’s private affairs (including health history and status) are
made public without consent.
 Nurse has a legal and ethical duty to maintain patient
confidentiality.
Intentional infliction of emotional distress
 Nurse’s behavior is so outrageous that it leads to the patient’s
emotional shock.
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The Nurse and Criminal Law
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Definition
 Crime is an offense against society that is defined through
written criminal statutes or codes.
 Punishable by fines, imprisonment, or the death penalty in
some states
 An increasing number of nurses are being charged with
criminal acts.
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The Nurse and Criminal Law
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Misdemeanor offenses
 Minor criminal offenses
 Common offenses nurses are charged with
• Illegal practice of medicine
• Failing to report child abuse
• Falsification of medical records
• Assault and battery and physical abuse of patients
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The Nurse and Criminal Law
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Felony acts
 Major criminal offenses
 Common offenses
• Drug trafficking
• Fraud in billing services for Medicare patients
• Theft, rape, murder
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The Law and Patient Rights

Advance directives
 Statutes grant adults the right to refuse extraordinary medical
treatment when there is no hope of recovery.
 Patient’s wishes are made known through the execution of a
formal document known as the living will.
 Medical and physician directives
• Document that lists the desire of the patient in a particular
scenario
• If properly executed, provides the physician with immunity
from claims of negligence in the patient’s death
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The Law and Patient Rights
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“Do not resuscitate” orders
• Written by the physician on the basis of directives by the
patient
• Nurses have an absolute duty to respect the patient’s
desires in DNR orders.
• A lawfully executed DRN order must be followed.
Durable power of attorney for health care—document that
authorizes the patient to name the person who will make the
day-to-day and end-of-life decisions when he or she becomes
decisionally incompetent
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The Law and Patient Rights

Informed consent
 Physician or advanced practice nurse has a duty to disclose
information, so the patient can make intelligent choices.
 Mandated by federal statute and state law
 Information that must be disclosed
• Nature of the therapy or procedure
• Expected benefits and outcomes
• Potential risks
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The Law and Patient Rights
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The provider cannot delegate the duty to the RN.
If the nurse has reason to believe that the patient has not given
informed consent, the provider should be immediately notified.
In no case should the nurse attempt to convey information
required for informed consent.
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The Law and Patient Rights

The right to refuse treatment
 An adult of sound mind has a right to refuse any treatment that
has previously been agreed to.
 Nurse must notify the provider if a patient refuses treatment.
 The provider should give the patient information about the
consequences, risks, and benefits of refusing treatment and
should explore available alternatives.
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The Law and Patient Rights

Leaving against medical advice (AMA)
• Nurse must act promptly to notify the provider.
• Nurse must clearly articulate the danger inherent in leaving.
• Value of AMA document will depend a great deal on the
nurse’s charting, which should note that leaving the facility
could result in the following:
 Aggravated current condition and complicated future care
 Permanent physical or mental impairment or disability
 Complications leading to death
 Nurses have been charged with offenses, including assault,
battery, and false imprisonment, when they unlawfully detain
patients.
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The Law and Patient Rights

The use of physical restraints
 Restraint of any form—chemical or physical—is a kind of
imprisonment.
 Goal when clinical restraints are indicated is to use the least restrictive
restraint and only when all other strategies to ensure patient safety
have been exhausted.
 Use of physical and chemical restraints and seclusion are governed by
federal and state statutes and accrediting bodies.
 Charges of assault and battery and false imprisonment can be leveled
against nurses who use restraints improperly.
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The Law and Patient Rights
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Nurses may lawfully apply restraints in an emergency when, in
their independent judgment, no other strategies are effective in
protecting the patient from harm.
Careful nursing documentation is essential when restraints are
applied.
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