Download 07 Legal issues encountered in nursing practice.Nursing Practice

Legal Issues in Nursing and
Health Care
Why is it important to understand the legal
issues that impact nursing practice?
 Nurses are constantly faced with the challenge of
making difficult decisions regarding good and evil or
life and death
 Nurses have a responsibility to:
 Understand the legal obligations when caring for clients
 Understand the legal limits influencing daily practice
 Protect the client’s rights
 Protect themselves from liability
Types of Law
 Statutory Law
 Created by elected legislators (Congress, state legislatures) STATUTES
 Can be either criminal or civil
 Example: Nurse Practice Acts (NPA), Emergency Medical
Treatment and Active Labor Act (EMTALA)
 Common Law
 Created by judicial bodies as a result of legal cases
 Examples: “Informed consent,” “abortion rights,” client’s right to
refuse treatment
Standards of Care
 Standards of care are guidelines for nursing practice, they
delineate scope of practice, function and role of the nurse. They
are defined in various ways:
 Nurse Practice Acts
 State Boards of Nursing of each state
 Federal/ state laws regulating hospitals and health care institutions
 Professional and specialty nursing organizations
 Facility policies and procedures
Scope of Practice
 Defined by:
 Nurse Practice Acts
 Code of Ethics
 Organization Standards
 Policy and Procedure Manuals
Federal Statutes
 ADA (Americans with Disabilities Act) – is to end discrimination against
qualified persons with disabilities by removing barriers that prevent them from
enjoying the same opportunities available to persons without disabilities
 Emergency Medical Treatment and Active Labor Act (EMTALA) – is to prohibit
refusal of care for indigent and uninsured patients seeking medical assistance in the
ED
 Mental Health Parity Act
 Patient Self Determination Act (PSDA)
 Advance Directives (“living will”, “DNR”, “durable power of attorney”)
 Uniform Anatomical Gift Act – organ’s donation
 HIPAA (Health Insurance Portability and Accountability Act) – to ensure
confidentiality of the patient’s medical records
 Restraints
State Statutes
 Licensure - regulated by each state. Licensed by State Board of Nursing (minimum
education requirements, successful completion of licensure exam (NCLEX). Can be
suspended or revoked)
 Good Samaritan Laws (1998) - protects health professionals stopping to help in
emergencies
 Public Health Law - laws created to promote health and reduce health risks in
communities (school immunizations, reporting communicable diseases)
 Uniform Determination of Death Act (1980)- has been adapted in most states -
changed standards for determining death
 Physician-Assisted Suicide (1994) - Oregon passed the Oregon Death with Dignity
Act - first statue that permitted physician assisted suicide
State Statutes
 Nurse Practice Acts:
 Establish education requirements
 Distinguish between nursing and medical practice
 Define the nurses scope of practice
 Define nursing practice more specifically
 All nurses are responsible for knowing their Nurse
Practice Act
Reporting Statutes
 Child Abuse Prevention and Treatment Act and
Reporting Statutes
 Mandate reporting specific health problems and
suspected or confirmed abuse
 Health professionals must report under penalty of fine
or imprisonment for failing to do so:



Infant and child abuse
Dependent elder abuse
Specified communicable diseases
Common Law Issues in Nursing
Practice
 Consent
 A signed consent is required for all routine treatment, hazardous procedures, some
treatments, and research
 Abortion Issues
 Includes a woman’s right to have an abortion
 Student Nurses
 Student nurses are liable if their actions cause harm to patients (liability is usually
shared)
 Malpractice Insurance
 Professional insurance, contract w/ nurse and insurance company if nurse is sued for
professional negligence or medical malpractice
 Abandonment and Assignment Issues
 Short staffing - Inadequate staffing/ patient ratios
 Floating - Assignments to a department where the nurse does not normally work
 Physician’s orders - Nursing judgment when carrying out physician orders
What is Informed Consent?
In 1914, Justice Benjamin Cardozo stated, “ Every human
being of adult years and sound mind has a right to
determine what shell be done with his own body…”
(Schloendorff v. Society of N.Y. Hospital)
More about IC:
http://www.ama-assn.org/ama/pub/category/4608.html
Definition
 Informed Consent (IC) is the duty of a health care
provider to discuss the risks and benefits of a
treatment or procedure with a client prior to giving
care
IC must include the following:
1.
2.
3.
4.
The nature of the procedure
The risks and hazards of the procedure
The alternatives to the procedure
The benefits of the procedure
When IC is Not Required
 In case of emergency situation (for minor or adult) A MINOR is
defined as a person who has not yet obtained the age at which she
or he is considered to have the rights and responsibilities of an
adult (Alabama , Nebraska and Wyoming – 19 y.o., all other states
– 18 y.o.).
 It is prudent to obtain the IC from the adolescent in case if
health care providers have made a reasonable attempt to contact
the child parent
When IC is Not Required
 Many states allow the evaluation and treatment of a
child for suspected physical or sexual abuse without
the informed consent of a parent or guardian.
 Photographing and taking an X-Ray (Utah)
 In case of forensic examination (do not force or
restrain the child to perform genital or rectal
examination)
When a minor can consent for
care?
 Care involving pregnancy, contraception, or treatment
of STD
 Drug and alcohol treatment
 In some states – emancipated children can make their
health care decisions by themselves
Emancipation
Emancipation is the legal recognition that the minor lives
independently and is legally responsible for his or her own
support and decision making.
 Can occur through an official court proceeding
 In some states, a minor can automatically become emancipated
by marrying, joining the military, or becoming a parent before
the age of majority
 Some states do not officially recognized any form of
emancipation
Consents
 A client’s signature implies that the client has been thoroughly
informed about the procedure.
 Consent must be witnessed appropriately
 Not considered informed if client is:
 Confused
 Unconscious
 Mentally incompetent
 Under the influence of sedatives, including preoperative
medications
Legal signatures on consents
 Who can legally sign a consent:
 Individuals of legal age - 18
 Under legal age but have a valid marriage certificate
 Emancipated minors (certain states)
 A parent or legal guardian of a minor
 A spouse or next of kin for an adult who is unconscious or mentally
incompetent
 Conservators
 Court ordered consent
 Telephone consents
 Emergency consents
Civil Law Issues in Nursing Practice
 Tort - a civil wrong against an individual or property. May or may not be on
purpose . It violates another person’s right’s
 Intentional





assault - attempt to threaten or harm another person (Ex: force feeding)
battery - intentional physical contact with a person without consent ( Ex:
touching without the other person’s permission)
invasion of privacy - right to confidentiality (Ex: release of client’s medical
information)
defamation of character - ridiculing others, slander, may apply to client or a
colleague (Ex: attack the reputation of a colleague)
false imprisonment - confined or held against a person’s will (Ex: preventing
a person from leaving the hospital voluntarily)
 Unintentional


Negligence - an occasion when a person owes a duty to another and, through
failure to fulfill that duty, causes harm
Malpractice - is professional negligence
For a court to recognize a claim of
malpractice or negligence, four legal
elements must be present
1.
2.
3.
4.
There must be a duty owed to the client by nurse
The nurse must breach the duty
The breach of duty must be the cause of the damage
There must be actual damage to the client
Risk Management
 A system for ensuring appropriate nursing care and
identifying hazards before harm is done to a client.
 Steps in risk management




Identify possible risks
Analyze those risks
Act to reduce the risk
Evaluate the steps taken
 Incident/occurrence reports
To Decrease Chance of Liability












Caring, respectful attitude
Follow standards of care
Give competent care
Communicate with other health care workers
Develop a good therapeutic caring relationship (rapport)
Document, document, document (accurately, completely, timely, factually, legibly)
Stay current with your knowledge of your practice
Know your clients
Confidentiality
Informed consent
Physician orders
Malpractice insurance
Legal Issues and Implications for
Nurses
Objectives
 Discuss how the Professional RN can safely practice
within the NJ Statues and Board of Nursing
Regulations in an unstable economy.
 Review how to safely delegate to other members of the
health care team.
 Discuss how the Professional Nursing Organizations
keep the profession of nursing safe by monitoring
legislation and the regulatory process.
Legal Issues and Implications for
Nurses
 Members of the Board of Nursing
 Appointed by the Governor
 13 members= 6 RNs; 2LPNs; 1APN; 3 public members;
and 1 State Government official






Marietta Cahill, CNM, MSN,RN
Irma Bojazi, RN, BSN, MPA
Leo-Felix Jurado PHD-c, RN, CAN, APN,C
Patricia Murphy, PHD, RN, APN
Saundra Austin-Benn, MSN, RN, APN, BC
Joni Jones, RN, BC
Legal Issues and Implications for
Nurses
Members (continued)






Constance Wilson LPN
Karen Rodriquez LPN
Avery Hart, MA, LCSW, PHD (Public Member)
Vacant (Public Member)
Vacant (Public Member)
Noreen D’Angelo, MS, RN (State Member)
 Executive Director George Hebert RN, MA
Legal Issues and Implications for
Nurses
 Mission
 The mission of the New Jersey State Board of Nursing is
to protect the health and safety of the public through
effective public policy, competent and ethical nursing
practice, and exceptional customer service. The Board
accomplishes its mission in an environment
characterized by openness, trust and integrity
Legal Issues and Implications for
Nurses
 VISION











Foster public protection
Eliminate artificial barriers to licensure and practice
Respond to changes in the health care environment
Ensure consumer protection from fraud and abuse
Collaborate with all communities of interest
Value innovation and embrace change
Promote communication internally and externally
Utilize advanced information systems and technology
Exceed customer expectations
Excel in delivering effective services
Provide employees with the opportunity for meaningful work
in an atmosphere of shared commitment
Legal Issues and Implications for
Nurses
 Board of Nursing Roles
 Primary role is to protect the public
 Licensing/Endorsements APN/RN/LPN
 Certification of SANE/Forensic Nurses
 Certification HHA
 Certification of Massage, Bodywork and Somatic
Therapy
 Development of the Standards (Scope) of Practice
APN/RN/LPN
Legal Issues and Implications for
Nurses
Roles (continued)
 Development of Rules and Regulations
 Criminal Background Checks
 Contact hour verifications for licensure (30/renewal)
 Disciplinary Action
Legal Issues and Implications for
Nurses
Path of State Legislation
Definitions
Law- Bill which has completed those 7 Steps
Statute- Another name for law
Rules and Regulations- Essentially terms are used
interchangeably. Specific to a Division/Board. They are
the guidelines written to outline and/or enforce the
law
Legal Issues and Implications for
Nurses
Path of State Legislation
Definitions (cont)
Resolution-express sentiments, create and empower
temporary authorities and/or regulate internal
legislative organizations
Policy-Principals that govern action toward a goal
Appropriations- the $,$$$,$$$
Legal Issues and Implications for
Nurses
 Path of State Legislation
 7 Steps from bill drafting to law
 Identify an issue or problem
 Nurses have opportunities to have influence along the
way
Legal Issues and Implications for
Nurses
Path of State Legislation
Step 1 Drafting a Bill
 Legislator sponsors a bill at the suggestion of a
constituent , interest group, public official or the
Governor
 Co-Sponsors- “the more the better”!
 Office of Legislative Services provides research and
drafting assistance
Legal Issues and Implications for
Nurses
Path of State Legislation
Step 2 Introduction of the Bill
 During the legislative session the sponsoring legislator
gives the bill to the Secretary of the Senate or Clerk of
the General Assembly
 The bill is read (1st reading)
 The bill is printed and released to the public
Legal Issues and Implications for
Nurses
Path of State Legislation
Step 3 Committee Reference and Action
 President of the Senate and/or the Speaker of the
Assembly refers the bill to a committee for review
 The Committee Chair schedules the bill for a open
public hearing in committee
 Committee will report bill to House as is or with
amendments or as a substitute bill
Legal Issues and Implications for
Nurses
Path of State Legislation
Step 4 Second or Third Reading
 Bill is reported to the floor and title is read aloud for
the second reading
 May now be amended from floor
 President/Speaker schedules third reading
Legal Issues and Implications for
Nurses
Path of State Legislation
Step 5 House Vote
 Passes each House when approved by a majority of
authorized members- 21 in Senate and 41 in Assembly
 Final legislative approval only when passed by both
Houses in identical form.
Legal Issues and Implications for
Nurses
Path of State Legislation
Step 6 Governor’s Action
 Sign
 Conditional Veto
 Veto
 Veto line items of appropriation bills
Legal Issues and Implications for
Nurses
Path of State Legislation
Step 7 Law
 A bill becomes law upon the Governor’s signature or
after 45days if no action is taken
 No action on bill passed within the last 10 days of
legislative session, fails to become law
 A vetoed bill may become law by a 2/3 override vote
Legal Issues and Implications for
Nurses
 Board of Nursing Laws (Statutes)
















Definitions
Appointments
Application fees HHA
Oral Competency for HHA
Background Checks for HHA
Qualification/disqualifications for certifications HHA
Assumption of costs for background checks HHA
Conditions for issuance of biennial recertification HHA
Required Language on certificate HHA
Rules and Regs HHA
False sworn statement fines
Alternative to Discipline Program for nurses-definition
Review of Program after 5 years
Revision of fees construction of act
Rules and Regs Alternative to discipline
Secretary-treasurer and executive secretary bond accounts and reports
Legal Issues and Implications for
Nurses
Statutes(continued)
















Professional Nurses
Practical Nursing
School of Professional Nursing
Renewal of certificates of accreditation
Violations of the act
Repeals
Short title APN
Certification required APN
Certification requirements
Interim certification
Permitted duties of APN
Provision administration of certain non controlled drugs to home health patients
Standards for joint protocols applicable to ordering, prescription of controlled
dangerous substances
NJ Board of Nursing additional powers and duties
Adoption of Standards
Review of chart records of patients treated by APNs
Legal Issues and Implications for
Nurses
 NJ Board of Nursing Regulations
















Programs in Nursing Education
Licensure by Examination RN/LPN
(reserved)
Licensure by Endorsement RN/LPN
General Requirements of Licensure; License Renewal; Fee Schedule
Nursing Procedures
Certification of APNs
Nursing Practice
Forensic Nursing-SANE
Reserved
Reserved
Reserved
Nurse Anesthetists
Homemaker Home Health Aides
Reserved
Massage, Bodywork and Somatic Therapy
Legal Issues and Implications for
Nurses
 Know your Standards of Practice
 I-The collection of data about the health status of the
patient/client is systematic and continuous: the data are
accessible, communicated and recorded.
 II-Nursing Diagnoses are derived from the data about
the health status of the patient/client.
 III-The plan of nursing care includes goals derived from
the nursing diagnoses
Legal Issues and Implications for
Nurses
 Standards of Practice (continued)
 IV- The plan of nursing care includes assessing priorities
and prescribing nursing approaches or measures to
achieve the goals.
 V- Nursing actions provide for the patient/client
participation in health promotion, maintenance and
restoration.
 VI- Nursing actions assist the patient/client to maximize
his health capabilities.
Legal Issues and Implications for
Nurses
 Standards of Practice (continued)
 VII- The patient’s/client’s progress or lack of progress
toward goal achievement is determined by the
individual and the nurse.
 VIII- The patient’s/client’s progress or lack of progress
toward goal achievement determines the reassessment;
the recording of priorities, the setting of new goals and
the revision of the plan of nursing care.
Legal Issues and Implications for
Nurses
 Decision Making Model Algorithm:






Is the act consistent with your scope of practice in the New Jersey Nursing Practice Act? Do the Board's regulations address
this specific act? (This may be all the information you need to make your decision. If not, continue to the next step.) Resource
documents you might need include: a. Nursing Practice Act: N.J.S.A. 45:11-23, 11-23, 46: b. Delegation Rule: N.J.A.C. 13:37-6.2; c.
Standards of Nursing Practice from your professional nursing organization; d. Board Licensed Practical Nursing Standards
of Practice and Board Guidelines, such as the LPN Role in IV Therapy-Available upon request. If NO, the act is NOT within
your scope of practice without the above. If YES, continue to the next step.
Is the activity authorized by a valid order, an in accordance with established institutional/agency or provider protocols,
policies and procedures? The nurse is accountable for clarifying any order or treatment regimen believed to be inaccurate or
contraindicated by consulting with the licensed prescribing practitioner, and notifying the prescribing practitioner when the RN
makes a decision not to administer the medicine or treatment. If NO, the act is NOT within your scope of practice without the above.
If YES, continue to the next step.
Is the act supported by research data from nursing literature and/or research from a health related field? Has a national
nursing organization issued a position statement on this practice? If NO, the act is NOT within your scope of practice without
the above. If YES, continue to the next step.
Do you possess the knowledge and clinical competence to perform safely? Documentation to validate your educational and
clinical competence should be maintained for a four year period. If NO, the act is NOT within your scope of practice without the
above. If YES, continue to the next step.
Is the act to be performed within accepted "standards of care" which would be provided in similar circumstances by
reasonable, prudent nurses with similar education and clinical skills? Nurses are accountable for knowing and conforming to
their scope of practice in the Nursing Practice Act, Board regulations, and any other State and Federal laws impacting their practice. If
NO, the act is NOT within your scope of practice. Performance of the act may place the patient and the nurse at risk. If YES, continue
to the next step.
Are you prepared to assume accountability for the provision of safe care? If NO, the act is NOT within your scope of practice. If
YES, you may perform the act based upon a valid order in accordance with the institution/agency or provider's established protocols,
policies and procedures.
Legal Issues and Implications for
Nurses
 Scope of Practice Decision-Making Algorithm
 Seven Steps




1. Is the act consistent with your scope of practice and the
Rules and Regulations in the New Jersey Board of Nursing
Practice Act?
YES:
CONTINUE
NO: STOP
Legal Issues and Implications for
Nurses
 Scope of Practice Decision-Making Algorithm




2. Is the act consistent with the Board's Guidelines regarding
nursing practice?
YES:
CONTINUE
NO: STOP
Legal Issues and Implications for
Nurses
 Scope of Practice Decision-Making Algorithm




3. Is the act supported by Standards of Nursing Practice or
scope of practice statements from professional nursing
organizations, and research data in nursing and health related
literature?
YES:
CONTINUE
NO: STOP
Legal Issues and Implications for
Nurses
 Scope of Practice Decision-Making Algorithm




4. Do you posses the required knowledge and have you
demonstrated the clinical competency required to implement
the act safely?
YES:
CONTINUE
NO: STOP
Legal Issues and Implications for
Nurses
 Scope of Practice Decision-Making
Algorithm




5. Is the act authorized by a valid order (written agreement
with collaborating physician for the advanced practice nurse),
and in accordance with established institutional, agency or
provider protocols, policies and procedures?
YES:
CONTINUE
NO: STOP
Legal Issues and Implications for
Nurses
 Scope of Practice Decision-Making Algorithm




6. Are you prepared to assume accountability of the act and
for the outcome of the care rendered?
YES:
CONTINUE
NO: STOP
Legal Issues and Implications for
Nurses
 Scope of Practice Decision-Making Algorithm
 7. If YES to all of the above, you may perform the act
based upon a valid order (written agreement with
collaborating physician for advanced practice nurses),
and in accordance with the institution, agency or
provider's established protocols, policies and
procedures.
Legal Issues and Implications for
Nurses
 Reasons for Delegation
 Cost Savings
 Time Savings
 Professional growth of employees
 Professional growth of manager
Legal Issues and Implications for
Nurses
 Barriers to Delegation
 I can do it better myself
 Lack of ability to direct
 Lack of confidence in staff
 Absence of control that warn of impending difficulties
 Aversion to taking a risk
 Easier to ask the “boss”
 Fear of criticism
 Lack of necessary information
Legal Issues and Implications for
Nurses
 Barriers to delegation (continued)
 May have more work than the employees can do
 Lack of self confidence
 Positive incentives may be inadequate.
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 Is task within a licensed nurse's scope of practice?
 YES
 CONTINUE
 No
 Do not delegate
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 RN assessment of patient's nursing care needs





completed?
YES
CONTINUE
No
Do Assessment then proceed
with a consideration of delegation
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 Can the task be performed without requiring judgment




based on nursing knowledge?
YES
CONTINUE
No
Do not delegate
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 Are the results of the task reasonably predictable?
 YES
 CONTINUE
 No
 Do not delegate
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 Can the task be safely performed according to exact,




unchanging directions?
YES
CONTINUE
No
Do not delegate
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 Can the task be performed without a need for complex




observations or critical decisions?
YES
CONTINUE
No
Do not delegate
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 Can the task be performed without repeated nursing





assessments?
YES
CONTINUE
No
Do not delegate
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 Can the task be performed properly without life




threatening consequences?
YES
CONTINUE
No
Do not delegate
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 Is appropriate supervision available?
 YES
 CONTINUE
 No
 Do not delegate
Legal Issues and Implications for
Nurses
 Delegatory Algorithm
 There are no specific laws or rules prohibiting the




delegation?
YES
Task is delegatable
No
Do not delegate
Legal Issues and Implications for
Nurses
 What do you do when the Board of Nursing
Calls?
 Why do they investigate?
 When should you contact a lawyer?
 What is the cost?
 What about liability insurance?
Legal Issues and Implications for
Nurses
 Prevent actions against you
 Provide compassion and kinds to patients/family
 Communicate-Communicate-Communicate
 Keep nursing skills current
 Maintain complete and accurate charting without bias
 Attend education programs
 Subscribe to professional journals
 Exercise good judgment in patient care
 Seek guidance if unsure
 Don’t provide care out of scope of practice
Legal Issues and Implications for
Nurses
 Lawsuit Survival
 Review all medical records
 Dress appropriately
 Respond to disposition with simple answers
 Don’t volunteer information
 Ask for clarification if you don’t understand a question
 If you are unsure of an answer state you don’t know
 Hesitate before answering so you attorney has time to object
 Watch prosecuting attorney tricks
 Be calm, cool and collected
Legal Issues and Implications for
Nurses
Professional Lobbying
 A campaign to influence members of the legislature to
vote for the group’s special interest
 Identify objectives, prioritize and devise plans and
timetables
 Strategize and work with other groups
 Build organized support for goal
Legal Issues and Implications for
Nurses
Grassroots Lobbying
 Nurses are the largest single group of healthcare
providers
 Members of Congress and State Legislatures and the
general public need to hear nursing’s opinion on
healthcare
 Mobilize and influence national and state policy
Legal Issues and Implications for
Nurses
 Professional Organization and Lobbying
 PNA- FGNE
 AORN-Violence in the Workplace
 NAON- Helmet laws
 ANA/NJSNA- Cullen Law
- Alternative to Discipline
Legal Issues and Implications for
Nurses
 Current Bills/Laws
 A2848/S1779- Upgrades penalties for assaulting a nurse
 S620- “BSN in 10”
 A1866/S1484- Multistate Licensure
 A1531/S1233- Establishes RN minimums for hospitals and
other DHS facilities
 16 Bills in NJ Legislature
 266 Bills in US Congress
Legal Issues and Implications for
Nurses
 Resources
 Internet
 BON Website
 NJSNA Website
 ANA Website
 NJ Legislature Website
 US Congressional Website
 “Ask Jeeves” Ask.com
 NJ Register
Legal Issues and Implications for
Nurses
 Your Role in Professional Practice
 Remain active by being a member of a professional
organization and reading materials presented.
 Be aware of Bills in the Legislature and Congress that
effect the Practice of Nursing.