On completing this chapter, you will be able to do the following:
accountability (ă-kŏwn-tă-BIL-ĭ-tē)
advance directives (ăd-VĂNS dĭ-RĔCT-ĭvs)
assault (ă-SŎLT)
authorized consent (ĂW-thŏr-izd kŏn-SĔNT)
basic client situation (ˈklaәnt sĭt-u-Ā-shŭn)
battery (BĂT-ĕr-ē)
breach of duty (brēch)
civil action (sĭ-vŭl ĂK-shŭn)
common law (KŎM-mŏn)
complex nursing situation (KŎM-plĕks NŬR-sēng sĭt-u-Ā-shŭn)
confidentiality (kŏn-fĭ-dĕn-chē-ĂL-ĭ-tē)
criminal action (KRIM-ĭn-ăl ĂK-shŭn)
damages (DĂM- ăj-ĕs)
defamation (dĕf- ă-MĀ-shŭn)
delegated medical act (dĕl-ĕ-GĀ-tĕd)
depositions (dĕp-ō-ZISH-ŏn)
direct supervision (dĭ-RĔCT soo-pŭr-VI-shŭn)
do not resuscitate (DNR) (rĭ-SŬS-ĭ-tāt)
durable medical power of attorney duty (DOO-tē)
end-of-life principles (EOL)
euthanasia (ū-thă -NĀ-zhē-ă)
felony (FĔL-ō-nē)
general (implied) consent (JĔN-ĕr-ăl kŏn-SĔNT)
general supervision (JĔN-ĕr-ăl soo-pŭr-VI-shŭn)
Good Samaritan Act Health Insurance Portability and Accountability Act (HIPAA)
informed consent (ĭn-FŎRMD kŏn-SĔNT)
institutional liability (ĭn-stĭ-TOO-shŭn-ăl lī-ă-BIL-ĭ-tē)
intentional tort (ĭn-TĔN-shŭn-ăl TORT)
interstate endorsement (ĭn-tĕr-STĀT ĭn-DŎRS-mĕnt)
law liability (lī-ă-BIL-ĭ-tē)
libel (LĪ-bĕl)
living will (ˈlvŋ wl)
malpractice (professional negligence) (măl-PRĂK-tĭs)
misdemeanor (mĭs-dĭ-MĒ-nŏr)
multistate licensure (Nurse Licensure Compact) (LĪ-sĕn-shŭr)
negligence (NĔG-lĭ-jĕns)
Nurse Practice Act (NPA) (nŭrs PRĂK-tĭs AKT)
nursing standard of care (NURS-ĭng STĂN-dĕrd)
Oregon Death with Dignity Act client competency (ˈklaәnt KŎM-pĕ-tĕn-sē)
Patient Self-Determination Act (PSDA)
personal liability (PĔR-sŭn-ăl lī-ă-BIL-ĭ-tē)
physician-assisted suicide (PAS) (fĭ-ZI-shŭn ă-SIS-tĕd SOO-ĭ-sīd)
preponderance (prĭ-PŎN-dĕr-ănts)
proximate cause (PRŎKS-ĭ-mĕt căws)
slander (SLĂN-dĕr)
statutory law (STĂ-chū-TŏR-ē)
unintentional tort (ŭn-ĭn-TĔN-shŭn-ăl TORT)
vicarious liability (vĭ-KĂR-ē-ŭs)
The LPN is struggling with a clinical decision. The LPN was working on a team with an RN, LPN, and two nursing assistants. The RN, working with the LPN, became acutely ill during the work shift. As a result, the RN left early to go home. The evening shift RN was to arrive before the offgoing RN left; however, the incoming RN was stuck in traffic and did not arrive as anticipated. The RN left and stated to the LPN, “Just keep things quiet until the RN arrives.” Minutes after the RN left, the LPN realized that the RN had neglected to initiate an intravenous (IV) infusion on a client who was septic. The LPN had practiced in another state where IV therapy was within the scope of practice of the NPA. Although the LPN realized that IV therapy was prohibited in this state, the LPN thought this was an extenuating circumstance and, knowing what to do, and initiated the IV.
As you read this chapter, think about how the LPN’s actions violated the NPA. What could be the result of these actions? Would you have proceeded differently?
As we just reviewed in Chapter 6, ethics in nursing deals with rules of conduct, what is right and what you should do in a particular situation. Ethical values, in turn, are the basis of nursing law. Law has to do with regulations that control the practice of nursing. Your state’s NPA, discussed below, is your legal guideline in nursing. The state is the final authority.
Knowledge of your state’s NPA is critical to making safe nursing decisions. This knowledge will protect you against acts and decisions that could involve you in lawsuits and criminal prosecution. Lawsuits are commonplace in health care today. Your goal is to implement all strategies to minimize malpractice claims (lawsuits) and decrease your personal chance of being involved in a lawsuit. An in-depth knowledge and understanding of your state’s NPA coupled with your continued competency as an LPN/LVN will provide a solid foundation to reach this goal.
The state NPA defines nursing practice and establishes standards for nurses in your state. Ignorance of your state’s NPA is never a valid defense against any legal proceeding regarding your license.
Similarities in basic terminology in an NPA exist in many states. As you study the scope of practice for licensed (or trained) practical/vocational nurses in your state, an understanding of the following terms is necessary:
The NPA (rules and regulations) of each state commonly includes the following content:
All states and provinces have examining councils that provide nursing examinations for licensure and review complaints that can lead to revocation of a license.
State boards of nursing (sometimes called nurse regulatory boards) can have a single NPA or two distinct NPAs that address both the LPN/LVN and RN scope of practice. The boards have committees or councils that decide whether specific activities are within the scope of LPN/LVN practice in their state. An activity that is legal in one state may not be legal in another state. See Box 7.1 for common board of nursing functions.
State nursing boards offer a variety of services that can be accessed/completed online through their websites (e.g., license renewal, application for licensure by examination, verification of licensure status of a state nurse, change of address/phone number/e-mail address, downloadable forms, links to continuing education courses, the state’s NPA). As a practical/vocational nurse, understand that you must limit your work to the area of nursing defined in the state’s NPA.
In 2014, the National League for Nursing released a vision statement, A Vision for Recognition of the Role of the Licensed Practical/Licensed Vocational Nurses in Advancing the Nation’s Health. In addition, the National Association for Practical Nurse Education and Service Inc. (NAPNES) (2003) issued a professional guideline for LPNs/LVNs, titled The LPN/LVN Fulfills the Professional Responsibilities of the Practical/Vocational Nurse. These are examples of statements from national nursing organizations, but they do not carry the weight of law. These statements are useful as guides for behavior and recommendations regarding workforce trends and LPN/LVN job roles and may be used in a court of law as a point of reference. The NPA in your state is always your final authority.
Each state’s NPA lists specific reasons for which they seek to discipline a nurse for unprofessional conduct. NPA language differs state to state. Always remember your respective state board of nursing has a mandate to protect the public. Thus, disciplinary action is focused on client safety. According to NCSBN (Discipline, 2022), disciplinary cases are often grouped into the following categories: practice-related, drug-related, boundary violations, sexual misconduct, abuse, fraud, positive criminal background checks. Yoder-Wise (2019) provides examples of unprofessional conduct:
“Typical examples of unprofessional conduct include the following: boundary issues; practicing while impaired; violating client confidentiality; failure to supervise persons for whom nursing functions have been delegated; inaccurate recording; falsifying or altering a client or health care provider record; and sexual misconduct.”
Practice-related cases may seem difficult to determine accurately as a newly licensed nurse. For example, practice-related issues can include failure to assess changes in client’s condition, failure to adhere to the five rights of safe medication administration, and failure to accurately document. In addition, lack of adequate knowledge regarding the LPN/LVN scope of practice can lead to the LPN being asked to perform actions that are beyond your state’s NPA. It is critical to remember that you are responsible to know your NPA, specific to your licensure. It is also important to understand your agencies policy and procedures relative to the responsible person (i.e., LPN, RN, NP) for a procedure or action. A supervisor or manager could ask you to do something beyond your NPA simply because they are not fully aware of the NPA relative to LPN practice and perhaps your agency does not have a specific policy that assists in determining the safe action. Be sure to speak up if you believe you are being asked to do something that is prohibited by your NPA. It is your LPN/LVN license at risk.
Board actions resultant to the unprofessional conduct vary based on many factors inclusive of the type of unprofessional conduct. See Box 7.2 for a list of possible board actions (NCSBN, 2022) and https://www.ncsbn.org/673.htm for more details.
The disciplinary process is based on law and follows the rules of law. See Box 7.3 for the steps of a disciplinary process.
It is nursing licensure that defines and protects the title of LPN or LVN. Some states (e.g., Minnesota) have amended their NPA to include the provision that only LPN or RN may use the professional title “nurse.” This prevents an unlicensed person in a health care setting from misrepresenting themselves and stating, “Hi, I am your nurse Mary today.” This is illegal in states where the title of nurse is protected. It is definitely also unethical.
On completion of a state-approved practical/vocational nursing education program, a graduate is eligible to apply for the National Council Licensure Examination for Practical Nurses (NCLEX-PN®). In some states, immediately upon completion of their practical nursing program, the graduate may apply for a temporary permit to practice nursing as a graduate practical nurse/graduate vocational nurse (GPN/GVN). Today, this is a less common practice as technology has improved the speed of scheduling and achieving successful completion on the NCLEX-PN®. Thus, the temporary permit has become less necessary for most graduates because the graduate receives prompt notification of successful completion of the examination and a nursing license is issued promptly. If the graduate nurse fails the NCLEX-PN® examination, the temporary permit is revoked. The graduate is responsible for reporting the unsuccessful exam immediately to the employer. Until successful completion of the NCLEX-PN® examination, the temporary permit remains revoked and the graduate cannot work as a GPN/GVN. The graduate has an opportunity to retest at a later date for an additional fee. The number of allowable retests and length of time between each exam is dictated by each state’s NPA and varies across the United States.
Issuance of an LPN/LVN license can also be impacted by a previous criminal or child abuse history. In many states, each individual situation is reviewed on a case-by-case basis and recommendations to issue a license are made by the state board of nursing legal counsel. This also remains true throughout a nurses’ career as their license is renewed. Drug and alcohol violations, fraud, theft, and other infractions can result in license suspension or revocation or denial of renewal. Your license is essential to your profession. Be sure to protect it accordingly.
States have arrangements for interstate endorsements for nurses who choose to work in other states. This means that it is possible to work in another state without repeating the NCLEX-PN® examination, after you meet that state’s criteria for licensure by endorsement. Thus, you can breathe a sigh of relief that once you pass the NCLEX-PN® examination, you will not need to retake the exam if moving to another state.
Some states are involved in multistate licensure: a mutual recognition model for nursing regulation. The Nurse Licensure Compact allows LPN/LVNs and RNs to have one multistate license. The National Council of State Boards of Nursing (NCSBN) adopted the Nurse Multistate Licensure Mutual Recognition Model in 1997. Utah was the first state to adopt the NCSBN Nurse Licensure Compact (NLC) language that took effect in 2000. The NLC allows a nurse to have one license in his or her state of residency and practice in other states, depending on each state’s NPA and legislation (https://www.ncsbn.org/compacts.htm). To become law, each state must pass the law as part of their state NPA. As of 2022, 39 states are members of the NLC. Eligible nurses must legally reside in a NLC state to participate. You cannot experience the benefits (Box 7.4) of the Nurse Licensure Compact unless you declare a NLC state as your primary residence. Check the NPA of the state in which you will be working to find out if it is a compact state or if any other special considerations with border states exist. Final rules of the Interstate Commission of Nurse Licensure Compact Administrators, effective January 1, 2021, can be reviewed in detail at https://www.ncsbn.org/eNLCFinalRulesadopted121217.pdf
Most boards of nursing have instituted online verification of nursing licensure. The board provides public information about nurses who have current licensure. The verification system enables potential employers to use an online database confirming a nurse’s license number, registration expiration date, and whether any board action (disciplinary) has taken place. The service is available 24 hours a day, 7 days a week. Check your state’s board of nursing site to find out if this service is available.
Employers are able to use this option to comply with requirements for written verification of a nurse’s registration by the Joint Commission (TJC) and other accreditation agencies.
The use of assistive personnel (AP) to provide client care has grown dramatically in recent years. It is expected that the trend will continue. These unlicensed persons are trained to perform a variety of nursing tasks. Licensed nurses need to be aware of specific training that APs have had and facility job descriptions, so they can safely make assignments. Supervision of APs by the RN and the LPN/LVN charge nurse in long-term care to ensure safety of client care is a major concern. There is apprehension that because of the lack of licensed nurses in an agency, duties might be delegated and/or assigned inappropriately to APs. It is the RNs and LPNs/LVNs who stand to lose their jobs and licenses if the care provided by APs does not meet the standards of safety and effectiveness. The training program for APs does not provide the same in-depth education and experience that programs for student nurses provide. Licensed nurses are accountable to both their employers and their state nursing boards (see Chapter 17). Providing safe, high-quality care is always the focus. Working conditions that prohibit safe care need to be reported to employers, state boards of nursing, and accreditation agencies.
The nursing standard of care is your guideline for good nursing care. The phrase “you are held to the nursing standard of care” has important legal implications. The standard is based on what an ordinary, prudent nurse with similar education and nursing experience would do in similar circumstances. Resources for the nursing standard of care are found in Box 7.5. Note that health care institution routine (“I know you studied how to do this in nursing school, but this is how we do it here”) is not on the list. All clinical decisions made must be based on evidence.
The legal system in both the United States and Canada originates from English common law. Common law is called judge-made law because it originates in the courts. Common law is one way of establishing standards of legal conduct and is useful in settling disputes. Once the judge has decided, this decision sets the precedent for a ruling on a case with similar facts in the future. Thus, common law can change over time, based on precedent. Informed consent and a client’s right to refuse treatment are examples of common law.
Statutory law is law developed by the legislative branch of the state and the U.S. Congress of the federal government. The NPA, which governs the practice of nursing, is an example of a statutory law. State boards of nursing can make nursing laws as long as the items in their laws do not conflict with any federal statutes. Because the NPA is statutory law, governed by states, differences exist across the United States.
The two classifications of legal action are criminal action and civil action. A criminal action involves people and society as a whole. It involves relationships between individuals and the government. It is unlikely for nurses to be involved in criminal action. A criminal action is classified as follows:
Guilt on the part of the nurse needs to be established by producing proof beyond a reasonable doubt. Regardless of the outcome of the criminal case, when a criminal case is completed, it is also possible to be sued in a civil court.
A civil action protects individual rights and results in payment of money to the injured person (e.g., a back injury was sustained during a fall because spilled urine was not wiped up. This injury caused the client additional treatment time, including physical therapy, pain, suffering, and loss of time from work.) A civil action involves a relationship between individuals and the violation of those rights. A tort is a civil wrong. The two kinds of torts are intentional and unintentional, which are described as follows:
Guilt on the part of the nurse can be established by a preponderance (majority) of the evidence. Table 7.1 provides a comparison of criminal and civil law.
Table 7.1
Common law is judge-made law. A trial judge’s ruling lays down a legal principle and sets a precedent. These principles are used to decide future cases. This type of law is continually adapted and expanded.
Statutory law is formal legislative enactment. Law passed by Congress or enacted by state government. May be amended, repealed, or expanded by the legislature. The NPA is an example of statutory law.
Tort law is based on the premise that in the course of relationships with one another there is a general duty to avoid injuring one another. A tort is a wrong or injury done to someone that violates his or her rights.
Intentional torts require a specific state of mind; that is, that the nurse intended to do the wrongful act.
Assault and battery, false imprisonment and use of restraints, defamation that includes both libel and slander (discussed later), and physical and emotional abuse are examples of intentional torts. Not all insurance companies cover intentional torts in their malpractice insurance policies, so you should check your policy.
Assault is an unjustified attempt or threat to touch someone. Battery means to cause physical harm to someone. (Students often confuse these two terms. To avoid this, remember that assault and attempt both begin with the letter “A”). When a client refuses a treatment or medication, forcing the client to take medication could result in an assault and battery charge against you. The client gives implied consent (permission) for certain routine treatments when entering the institution. Clients retain the right to refuse any treatment verbally and may leave the institution when they choose, unless they are there for court-ordered treatment. Nurses can also protect themselves from assault by a client but can use only as much force as is considered reasonable for self-protection.
Treating a client without consent is battery even if the treatment is medically beneficial. A health care provider might go to the court to attempt to get a court order to allow a blood transfusion for someone who opposes it on religious grounds. If the client is fully competent, is not pregnant, and has no children, the court is likely to rule for the client even if a blood transfusion would save his or her life. When faced with a similar situation, the practical/vocational nurse respects the client’s belief system and notifies the RN and/or supervisor for further advice or interpretation.
False imprisonment is keeping someone detained against his or her will. It can include the use of restraints or seclusion in a room without cause and without a health care provider’s order. Restraint by verbal threats or physical harm is also included in this category. Chemical restraint (with medication) is defined as administering a PRN (from Latin, pro re nata meaning “as needed”) medication with a sedating side effect every 4 hours to keep the client tired and in his or her room. In this situation, the intent is to keep the client quiet and out of the way. The intended use of the medication has been circumvented to meet the nurse’s need.
Defamation means damage to someone’s reputation through false communication or communication without their permission. Libel and slander are included in this category and are described as follows:
The client has the right to expect you to speak the truth. Additional unnecessary conversation with coworkers and those outside the agency can result in a charge of defamation. The same is true for taking unwanted photographs or showing a client’s injury, cancerous growth, or gunshot wound to others, students included, without the client’s permission. Social media has escalated issues related to defamation. Posting any client information or “client story” on any type of social media site is prohibited unless written permission is obtained from the client and approved by your employer. Posting your clinical day experience even without using client names or specific information is prohibited. Review the pamphlet created by NCSBN, A Nurse’s Guide to the Use of Social Media (www.ncsbn.org/3739.htm).
Consider also that you often are privy to information about the personal lives of other nurses, health care providers, and other coworkers, and they are privy to information about you. Although the desire to repeat the information you hear may be tempting, it is best left unsaid. Later in the chapter, you will learn about HIPAA and how that law defines privacy.
Physical abuse is generally easier to identify, although the victim may find creative ways to hide the injuries for a period of time. Emotional abuse is more difficult to identify. The person doing the abusing may be very personable and attentive to the victim when out in public. A former student described how everyone thought her husband loved her and how fortunate she was. When they were alone, he would tell her she was ugly, worthless, and no one else would ever want her or love her. When she became pregnant, he would always take her to her health care provider appointment. He would answer the health care provider’s and nurse’s questions for her, and when she tried to speak, he would take over in gentle terms, doing the explaining. At no time was she alone with a health care provider or nurse.
In the course of your career in practical/vocational nursing, you will probably suspect or actually see the results of some types of abuse. As a practical/vocational nurse, you have a legal responsibility to report your suspicions or observations of abuse by following your facility’s abuse policy. Note that a “suspicion” is a nagging doubt. Be empathetic (as opposed to sympathetic) so that your observations or report will be as objective as possible. Becoming a part of the client’s emotions may lead you to jump to conclusions or accept a particularly convincing but untrue explanation. Whether the client is a child, woman, man, or elder, reputations are at stake. Once an accusation has been made, it is difficult to be truly free from it, even when it is proved groundless.
Refer to your state’s abuse laws for specific rules that govern your responsibility for reporting abuse. Remember that you are a mandated reporter. You must report any suspected or observed physical or emotional abuse. Some state’s laws may include a mandate that the individual who is suspicious of abuse contacts the government authority directly or, at a minimum, ensures the supervisor reported the event and follow-up has occurred. It is not sufficient to report to your supervisor and then move on, unsure if any investigation occurred. In addition, child abuse training or like training may be mandated for licensure and licensure renewal in your state. Follow your facility’s policy for reporting abuse. The social services department can help you report abuse. Offer concrete, specific observations. Quote the statements made and avoid offering a personal interpretation. Let the facts speak for themselves.
An unintentional tort holds that the nurse did not intend to injure the client. However, the nurse did not maintain the nursing standard of care and did not do what a prudent nurse with comparable education and skills would do in a similar situation. Negligence and malpractice (professional negligence) are examples of unintentional torts.
Black’s Law Dictionary (2014) defines negligence as “failure to use such care as a reasonably prudent and careful person would use under similar circumstances.” A common type of negligence is personal injury. For example, your town has a law stating that sidewalks must be shoveled within 24 hours after a snowstorm. Your sidewalk has not been shoveled within 24 hours, and your neighbor falls in front of your house and breaks her arm. The neighbor sues you for negligence. Remember that in negligence the property owner did not intend to cause the injury to the neighbor, but knowing the risks and the law, he or she should have guarded against the injury. Good intentions do not enter in. It is your conduct, not your intent, that is the issue.
Malpractice, the legal name for professional negligence, means negligence by a professional, in this case an LPN/LVN. The most common type of negligence in practical/vocational nursing relates to action or lack of action, not what you intended to do. These are often referred to as acts of commission or acts of omission. For example, you can give the wrong medication (commission) or forget to give a medication (omission). Box 7.6 lists the most common sources of malpractice, according to Watson (2014). The top three closed claim sites per practice setting for the LPN/LVN are Hospital-Inpatient Surgical Service, Client’s Home, and Hospital-Inpatient Medical Service (Watson, 2014). In addition, the LPN/LVN had an average paid indemnity of $83,213 (Watson, 2014). According to a PA-based Nurses Service Organization (NSO), which provides malpractice insurance to nurses, there has been an increase in the severity of closed malpractice claims impacted by closed claims that settled for $250,000 or more and involved infant and pediatric clients with tracheostomies (Relias Media, 2016). The charges of professional negligence (malpractice) listed could be avoided by good nursing practice (i.e., what a reasonable, prudent nurse would do in a similar situation). This includes knowing strategies to minimize errors required by entities such as TJC (The Joint Commission, 2019) (e.g., creating an institutional list of medications based on TJC’s published list of commonly confused look-alike, sound-alike drug names). The SPN/SVN is held to the level of an LPN/LVN’s performance. Know your state’s NPA and know essential standards of care.
There are occasions when the evidence is overwhelming and indicates the accused nurse is responsible for the client injury. Such an occasion is called res ipsa loquitur, meaning “the evidence speaks for itself.” For example, a client develops a drop in blood pressure immediately after the nurse administered an injection improperly.
More nurses are being named in lawsuits. Nurses assume liability for their own acts. Although the employing agency may assume responsibility for the nurse during a lawsuit, the agency can then turn around and sue the nurse. You can also be held responsible for the “neighborhood advice” you give; for example, telling a neighbor how to care for her sick child or emergency aid you provide in the community.
Each nurse must carefully consider whether or not it is necessary to purchase a malpractice insurance policy. Incidents of suing for malpractice continue, although your chances of being sued as an LPN/LVN compared with other health care providers are minimal. Given the inexpensive cost of malpractice insurance (approximately $100.00 per year for a recommended policy) for LPNs/LVNs, it is an important consideration. Malpractice insurance is provided for you as a student nurse, generally included in your total costs of attendance. Consider purchasing your malpractice insurance immediately upon graduation. Some reasons for having your own malpractice insurance are found in Box 7.7.
Duty, breach of duty, damages, and proximate cause are the four elements that must be present to cause an action for negligence against a nurse. Each of the four elements must be proved by the client to receive compensation. Box 7.8 explains the four elements needed to prove negligence.
Legal actions follow an orderly process. Remember that the nurse also has rights and is not considered guilty simply because someone filed a complaint. Steps for bringing a legal action by a client are found in Box 7.9.
Depositions are used to gather information under oath (fact finding). Once the deposition is scheduled, provide information on where and how you can be reached. The deposition usually takes place in an attorney’s office. You may be able to request that it be in your attorney’s office. (It will be helpful to have an attorney who understands nursing and is familiar with legal action against a nurse.) Opponents’ attorneys may also be present. However, only one of the opponent’s attorneys should be permitted to ask questions so as not to “tag team” (multiple attorneys firing questions at the nurse). A court reporter or stenographer will record your testimony.
Dress professionally, as you would for a job interview. Do your utmost to be calm and polite no matter how rude others, including the opposing attorney, seem to you.
In preparation for a deposition, your attorney will do the following:
Here are some basics to keep in mind during a deposition:
Personal liability holds us responsible for our own behavior, including negligent behavior. This rule makes it impossible to completely shift responsibility onto someone else. Vicarious liability means responsibility for actions of another because of a special relationship with the other. The term respondeat superior, Latin for “let the master speak,” is based on vicarious liability. It is applied in the following two ways:
Institutional liability is vicarious liability. It assumes that the health facility provides certain safeguards to keep the client from harm. This includes a safe facility to prevent physical harm (e.g., adequate supervision of staff, adequate staffing, and safe equipment).
Many of the errors leading to common nursing liabilities can be avoided by following the guidelines you learned in nursing school. The major areas of liability (responsibility/accountability) can be categorized as lack of safety, knowledge, skill, observation and reporting, documentation, and acceptance of responsibility for nursing actions, all of which are part of the usual clinical evaluation. The most common errors are drug errors, most of which can be avoided if you follow the guidelines you learn in basic nursing and practice in the clinical areas. One of the best defenses for prevention of legal liability is development of rapport with the client. If you treat clients with courtesy and respect, they are less likely to sue (unless you provide care below the nursing standard of care). Be honest, be nice, and be thorough. The very best defense is not to make a mistake in the first place. If you do err, the second best defense is to immediately admit that you made an error and communicate freely all steps taken to prevent or minimize harm. Transparency is a must!
Nursing demands that you be responsible. This means being reliable and trustworthy. At no time can you expect a peer, supervisor, or client to say to you, “it’s okay that you didn’t come to work today because your car wouldn’t start”; or “it’s okay if we talk about just your problems today instead of the clients”; or “it’s okay that you didn’t do the work you were assigned because you’re having a bad day.” Nursing says, “I’m sorry that you have personal problems that are distracting you, but you have to resolve them because your priority in this profession is the client.” Safe client care is essential.
The word accountability means that you are answerable. As a nursing student, you are answerable to yourself, to your assigned client, to the team leader, to the preceptor, to the health care provider, and to your instructor who constantly evaluates your work. As an LPN/LVN, accountability to the instructor is replaced by accountability to the employing agency. You are held accountable for all the nursing actions that you perform or are assigned to perform. The measures of accountability are the following nursing standards of practice:
They recommend minimal acceptable standards of nursing behavior for the SPN/SVN and the LPN/LVN.
Student nurses are held accountable for the nursing care they give. They are held to the standards of an LPN/LVN. This emphasizes the necessity to prepare for providing care for assigned clients in the clinical area. The instructor has the responsibility to make client assignments based on the student’s knowledge base and ability to give safe nursing care. The instructor is also expected to provide reasonable supervision for the care given by a student. A list of your responsibilities is found in Box 7.10.
As an LPN/LVN, you might be asked by an RN or health care provider to perform nursing duties that are beyond your scope of practice or experience. It is up to you to refuse. Box 7.11 contains examples of responses when asked to perform beyond your scope of practice. When seeking employment, check out the philosophy, mission statement, and policies of your potential place of employment. Ask what is included in your job, the period of orientation you will receive, what the orientation will cover, and who will do the orientation. If you discover during your inquiry that your work will cover more than you have learned or tasks that are beyond your scope of practice, say so. Listen also to your affective response: What is your intuition saying? Getting a job just to get a job may result in your being fired or losing your license. You may end up losing your job for something that was not your fault. The ideal is that everyone around you shares your ethics and demonstrates fairness, but the reality of ethics is sometimes quite different. Institutional policy and procedure is a critical resource for safe practice. Your employer can limit your scope of practice based on policy and procedure but may not expand it. For example, if you are employed in a state where LPN/LVNs are not permitted to administer IV medications via a central access device, then despite in-depth education and approval by your supervisor and institution, you may not perform that procedure.
A professional relationship between the nurse and the client is essential for the provision of nursing care. Legal precedent has established that the health care agency also has a responsibility to the client. Clients have become increasingly concerned and vocal about the quality of care they expect to receive. Many of the issues are directly related to privacy, confidentiality, and safety. These are also concerns of health agencies and health care workers, including nurses.
Privacy in health care means the right to be left alone and free from intrusion, including the right to choose care based on personal beliefs, feelings, or attitudes; the right to govern bodily integrity (accepting or rejecting treatment or exposure of the body); and the right to control when and how sensitive information is shared. Confidentiality in health care refers to the nondisclosure of information regarding clients.
Some laws require that certain client information must be reported without the client’s consent. The purpose is to protect the public. Examples of client information that must be revealed are listed in Box 7.12.
Clients’ rights in all types of institutions are mandated by the U.S. Constitution and by state and federal laws. Legal rights vary depending on the health care agency and the client’s competency. The American Hospital Association (AHA) developed The Client’s Bill of Rights in 1972. It was revised in 2003 and renamed The Client Care Partnership: Understanding Expectations, Rights, and Responsibilities. This is an ethical, rather than legal, document for hospitals recommending ways to guarantee client rights. It is intended as a model for states to develop rights statements. Some state legislatures have adopted client rights statements. Additional bills of rights have been developed for pregnant clients, nursing home residents, and mental health clients. The document is reviewed and revised yearly as needed. Box 7.13 provides The Client Care Partnership recommendations.
The U.S. HIPAA rules took effect on April 14, 2003, for health insurance companies, hospitals, clinics, health care providers, pharmacies, and other health groups throughout the United States. The original intent of HIPAA was portability of insurance for employees from one job to the next. Portability is addressed in the law, but the main focus of the law is privacy. Changes to modify HIPAA privacy, security, and enforcement of rules are updated as technological advances dictate. The law gives clients rights over their health information. Basic HIPAA terminology is provided in Box 7.14.
The following are the three basic parts of HIPAA:
The Department of Health and Human Services (DHHS) is the federal agency that oversees HIPAA. It has emphasized reasonableness as a guide to applying HIPAA regulations. Depending on the facility with which you are involved, interpretation of HIPAA ranges from reasonable to very strict. HIPAA rules and regulations have been reviewed and updated yearly since 2003. Details beyond the HIPAA discussion that follows can be found at update to https://www.hhs.gov.
The main focus of HIPAA is protection of privacy. Each covered entity (health facility) must develop a written “Notice of Privacy Practices.” The notice is made available to all clients, employees, and health-related companies with whom the facility does business (e.g., health insurance companies, medical equipment companies). The client receives a personal copy to read and sign. Signing the copy denotes understanding of, and agreement with, the use and disclosure of PHI for treatment, payment, and facility operation. This is not the same as consent for treatment. If the client is incompetent, state laws are followed. This usually means that the client’s health proxy is treated as though he or she is the client.
The Notice of Privacy Practices must address the following in plain language:
Additional concerns that the HIPAA does not address include discarding PHI that is not meant for the client’s chart and hallway conversations (Box 7.15).
Expect to find differences in interpretation of the HIPAA law. Find a copy of the facility privacy policy during each clinical rotation and do the same with each job you have after graduation. Note the differences and adjust to them. Question your employer if you do not understand why the differences exist. Seek to understand how the differences still meet HIPAA requirements.
You can expect to hear increased use of the term competency in both a legal and a clinical sense. The following details provide a brief framework to help you use this term correctly.
Client competency has both a legal meaning and a clinical meaning. Some clients’ rights issues are based on proof of competence or incompetence within the court system. Legal competency refers to a client who is:
Clinical competency refers to a client who is able to do the following:
The client’s right to consent to or refuse treatment is a significant example of client autonomy (right to choose). It is advisable for a client to be accompanied by someone he or she trusts whenever he or she goes to a health agency for care. Clients are often stressed to the point that they do not “hear” what is being said to them. Words such as “cancer” and “heart attack” can cause sheer terror. Furthermore, some clients still are afraid to question the health care provider and therefore agree to procedures that they do not understand: “whatever you think is best” is a frequent response.
General (implied) consent for treatment is obtained on admission. It may be obtained by the LPN/LVN or by an admission clerk during a routine admission. The fact that a person has voluntarily sought admission to a health care agency and willingly signs a general admission form is an example of general consent. A client may revoke this permission verbally or in writing (e.g., you walk into a client’s room with a syringe and explain that the health care provider has ordered Demerol for pain relief; the client might say, “I don’t want a shot; I’m going home”). Institutional policy and procedure will confirm if the LPN/LVN can obtain general consent.
Informed consent must be obtained for invasive procedures ordered for therapeutic or diagnostic purposes (e.g., surgery). Informed consent means that the client is told the following in nonmedical language:
The client must indicate comprehension (understanding) of the information. This means considerably more than just nodding the head. For example, have the client explain in his or her own words what he or she thinks is going to happen and the benefits and risks involved. Document the client’s understanding of the information.
Informed consent is the responsibility of the health care provider because he or she must explain the implications and complications of the procedure to the client before written permission is obtained. It is never the responsibility of the LPN/LVN. If you are in the room when the health care provider is obtaining informed consent, you might be asked to witness the signing. As a witness you are confirming that you observed the client give his signature willingly (no coercion) and the client appeared competent.
If the LPN/LVN is present when the treatment is being explained and the informed consent signed, in most states the LPN/LVN may support the teaching that has taken place by the health care provider. Be sure to check your state’s NPA and employer’s policy.
Parents cannot give informed consent for the treatment of their children, but they can authorize treatment for their children up to a certain age; this is called authorized consent. Courts of law recognize that parents generally authorize what is appropriate for their children. In most states, “minor” is defined as younger than age 18. Some states allow minors to give their own consent for treatment of substance abuse, mental health problems, and sexually transmitted diseases (STDs). Emancipated minors (legal mechanism) are defined as those living on their own and managing their own finances or who are married and have children. They are competent to give their consent.
The Patient Self-Determination Act (PSDA) (Teoli, 2021) is an amendment to the Omnibus Budget Reconciliation Act (a federal law). The PSDA requires many Medicare and Medicaid providers (e.g., hospitals, nursing homes, hospice programs, home health agencies, and health maintenance organizations [HMOs]) to give adult individuals, at the time of inpatient admission, certain information about their rights under state laws governing advance directives, including the following:
Two types of written advance directives are available to clients giving direction to health care providers about treatment choices in certain circumstances. The two types of advance directives are a living will and a durable power of attorney for health care. A good advance directive describes the kind of treatment that is desired by the person depending on how sick he or she is. Usually the advance directive indicates what type of treatment is not desired. However, it can indicate that the person wants all possible measures used to prolong life. Information on advance directives can be found at MedlinePlus at https://medlineplus.gov/advancedirectives.html
A living will is a legal document that describes the kind of medical treatments or life-sustaining treatments the person would want if seriously or terminally ill. There are many issues that can be addressed, including the following:
A living will does not let the person select someone to make decisions for them. The living will is filled out by the individual and witnessed by a person who will not benefit by the death of that individual. Some individuals will use an attorney to develop a living will.
Living wills are recognized as legal documents in most states in the United States, the District of Columbia, and Guam. A few states do not recognize a living will as binding. The individual generally is advised to give a witnessed copy to the health care provider and a trusted friend or relation and to keep one copy in a location that is easily accessible. If a person is moving to or spending time in another state, he or she is advised to determine whether or not the living will is considered legal in that state. Otherwise, the person may discover too late that the written directive may not be honored. Blank forms are available from hospitals, other health care agencies, age-related organizations such as the American Association of Retired Persons (AARP), and attorneys’ offices. Living wills can be revoked in writing or orally.
A durable medical power of attorney (DPOA) is a legal document that is valid in all 50 states. It names a health care proxy (anyone at least 18 years old) to make medical decisions if that person is no longer able to speak for himself or herself. The DPOA is generally more useful than a living will. It becomes active anytime the person is unconscious or unable to make a medical decision. The DPOA may not be a good choice if the person has no one he or she trusts to make these decisions.
A do-not-resuscitate (DNR) order is an advance directive based on the PSDA that gives a health care provider legal permission to write such an order. The health care provider may also write a DNR order for a client who no longer has decision-making ability but does not have personal advance directives written and signed. Commonly called a “no-code” order, it is a legal order to not resuscitate a client. The DNR order does not have to be updated unless the client changes her or his mind. If a written DNR order does not exist and the nurse does not try to resuscitate the client, the nurse is in effect making a medical decision. The nurse is essentially practicing medicine without a license and may be subject to a lawsuit. In addition, occasionally you may hear terms used such as “partial” or “slow” code. Generally, these terms may not be legal and can be viewed as unethical. All caregivers must know when a written DNR order exists. Check your state and agency policies regarding DNR orders because they vary considerably among states.
Sometimes providers ignore client advance directives. The client’s instructions may be too vague, or the health care provider might assume that the client did not know about an available treatment, or simply defers to the wishes of family members. Sometimes clients have not discussed advance directives with their health care provider, or a facility has a policy that a written health care provider’s order of DNR must be in the chart to comply with the client’s wish. A survey by the California Health Care Foundation (2012) showed that only 7% of the respondents had spoken to their provider regarding end-of-life (EOL) wishes, despite the fact that 80% wanted to have a conversation. In the same survey, only 23% had put their EOL wishes in writing. Thus, EOL dilemmas will occur in your practice. For your legal protection, find out about your state’s and facility’s policies and if the client has a written advance directive of which the health care provider is aware. Do-not-hospitalize (DNH) orders may be more effective than DNR orders in limiting treatment and preventing unnecessary or unwanted client transfer from long-term care to an acute treatment facility. Most important for you, as an LPN/LVN, is to know your agency’s policy. The Conversation Project provides a wealth of resources to assist people in having EOL conversations. More information can be found at https://theconversationproject.org/
The health care provider must pronounce the client dead and document this status before the nurse turns off a ventilator. In many states the RN can also pronounce the client dead; however, this is beyond the scope of practice for the LPN/LVN. If the nurse removes a life support system before the health care provider pronounces the client dead, it can be considered an act of murder.
Physician-assisted suicide (PAS) and euthanasia are not the same. “Physician-assisted suicide refers to a health care provider providing the means for death, most often with a prescription. The client, not the health care provider, will ultimately administer the lethal medication. Euthanasia generally means that the health care provider would act directly (for instance, by giving a lethal injection) to end a client’s life” (Starks, Dudzinski and White, 2013).
Both are different from the DNR order that a health care provider writes based on an agreement the health care provider makes with the client or the client’s family. A DNR order is a passive action, with the goal of avoiding prolonging life unnecessarily, not actively ending it. Table 7.2 provides a comparison of active and passive euthanasia.
Table 7.2
The following practices are also different from PAS:
ANA released a revised position statement in 2019 The Nurses Role when a Client Requests Medical Aid in Dying which supersedes the 2013 statement. ANA states,
“Knowledge of one’s own stance helps clarify the boundary knowledge of between nonjudgment and respect for client’s decisions, and imposition of personal values. Clarity about personal and professional values related to end-of-life options and care can also help nurses recognize the conditions to which they may conscientiously object. The nurse understands the distinction between medical aid in dying and euthanasia, and refrains from the sole intent to end life.”
ANA states that further research is needed. There is continual draft legislation regarding these controversial topics. Be sure to keep abreast of the changes in your state. This information is often posted on your state board of nursing or state nurses association website.
The Oregon Death with Dignity Act allows terminally ill Oregonians to end their lives through the voluntary self-administration of lethal medications that are expressly prescribed by a health care provider for that purpose (Oregon Health Authority, 2018). Death with Dignity Act information is available at https://www.oregon.gov/oha/PH/ProviderPartnerResources/Evaluationresearch/deathwithdignityact/Pages/index.aspx
According to the Death with Dignity National Center, as of 2019, California, Colorado, District of Columbia, Hawaii, Maine (as of September 2019), New Jersey (as of August 2019), Oregon, Vermont, and Washington have death with dignity statutes. In Montana, physician-assisted dying has been legal by State Supreme Court ruling since 2009.
Organ donations are voluntary. At this time organs cannot legally be bought or sold. Although many clients and families give permission for organ donation after death, the demand for organs far exceeds the supply. You may have been asked to agree to personal organ donation when you received/renewed your driver’s license. Many states participate in this effort. To increase the number of donors, it has been suggested that money be allocated to cover the donor’s funeral expenses.
Body tissues that can be donated include skin, corneas, bone, heart valves, and blood. One example of an early successful body tissue transplant was the transplantation of umbilical cord blood for a rare genetic bone disease at the University of Minnesota in Duluth in 1995. Approximately one cup of blood, taken from a newborn’s discarded umbilical cord and placenta, was donated. Donated body organs include the heart, liver, kidneys, lungs, and pancreas. Organ donation has raised both ethical and legal questions in some instances; for example, having a baby so that select organs or body tissues can be used to save a sibling.
Many organizations and projects are devoted to establishing EOL principles. Numerous organizations, including the American Medical Association, TJC, National Hospice and Palliative Care Organization (NHPCO), and the National Association for Home Care and Hospice (NAHC), have adopted or support core principles for end-of-life care. The NHCPO describes hospice as focusing on caring, not curing when clients face a life-limiting illness (see https://www.nhpco.org/hospice-care-overview for more details). The Center to Advance Palliative Care defines palliative care as “specialized care for people with serious illness” (see https://www.nahc.org/assets/1/7/NAHCPCWhitePaper.pdf for details). Palliative care can be provided aside curative procedures. Palliative care and hospice care are common care modalities today. LPNs/LVNs are employed in home care and hospice units where this care is provided.
The NAHC provides related resources at their website, https://www.nahc.org.
The Good Samaritan Act stipulates that a person who renders emergency care in good faith at the scene of an accident is immune from civil liability for his or her action while providing the care. Details of each state’s Good Samaritan laws vary. The state statutes are of particular interest to nurses and health care providers who provide emergency care when they are not in their employment setting. Check with your state’s board of nursing or agency risk manager for information about your state’s Good Samaritan laws. For example, in some states, a nurse has a choice of whether or not to give aid to someone during an emergency outside of a health care setting. A few states obligate health care professionals to assist at a scene of an accident requiring medical help. If, for instance, you provide pressure to stop severe bleeding and the client develops complications, you will not be held responsible as long as you acted without gross negligence. The law also permits the nurse to give aid to a minor at a sports event or accident scene before getting authorized consent from the parents. The LPN/LVN must have permission to treat the person, and verbal permission must be obtained from the victim. The person has the right to refuse. Once first aid is initiated, the nurse is obligated to continue until the victim can be turned over to someone with comparable or better training (Cherry and Jacob, 2019).