Legal Implications in Nursing Practice
• Explain the legal concept of standard of care.
• Discuss the nurse’s role in witnessing the informed consent process.
• Describe the legal responsibilities and obligations of nurses regarding the following federal statutes: Americans with Disabilities Act (ADA), Emergency Medical Treatment and Active Labor Act (EMTALA), Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Patient Self-Determination Act (PSDA).
• List sources for standards of care for nurses.
• Describe the nurse’s role regarding a “do not resuscitate” (DNR) order.
• Define legal aspects of nurse-patient, nurse–health care provider, nurse-nurse, and nurse-employer relationships.
• List the elements needed to prove negligence.
• Describe the nursing implications associated with legal issues that occur in nursing practice.
http://evolve.elsevier.com/Potter/fundamentals/
Safe nursing practice requires understanding the legal framework of health care. Understanding the legal implications of nursing practice demands critical reasoning skills to protect the patient’s rights and the nurse from liability. Society expects safe health care delivery, especially from nurses who are typically perceived as the most trusted profession. As patient care practice innovations and new health care technologies emerge, the principles of negligence and malpractice liability are being applied to challenging new situations. Nurses should not fear the law but instead practice nursing armed with the judgment skills that are the outcomes of informed critical thinking.
Legal Limits of Nursing
As a professional nurse you need to understand the legal limits influencing your practice. This, along with good judgment and sound decision making, ensures that your patients receive safe and appropriate nursing care.
Sources of Law
The legal guidelines that nurses follow come from statutory law, regulatory law, and common law. Elected legislative bodies such as state legislatures and the U.S. Congress create statutory law. An example of state statutes are the Nurse Practice Acts found in all 50 states (see Chapter 1). Nurse Practice Acts describe and define the legal boundaries of nursing practice within each state. An example of a federal statute enacted by the U.S. Congress is the Americans with Disabilities Act (ADA) (1990). The ADA protects the rights of individuals who are disabled in the workplace, in educational institutions, and throughout our society. Regulatory law, or administrative law, reflects decisions made by administrative bodies such as State Boards of Nursing when they pass rules and regulations. An example of a regulatory law is the requirement to report incompetent or unethical nursing conduct to the State Board of Nursing. Common law results from judicial decisions made in courts when individual legal cases are decided. Examples of common law include informed consent, the patient’s right to refuse treatment, negligence, and malpractice.
Statutory law is either civil or criminal. Civil laws protect the rights of individuals within our society and provide for fair and equitable treatment when civil wrongs or violations occur (Garner, 2006). The consequences of civil law violations are damages in the form of fines or specific performance of good works such as public service. An example of a civil law violation for a nurse is negligence or malpractice. Criminal laws protect society as a whole and provide punishment for crimes, which are defined by municipal, state, and federal legislation (Garner, 2006). There are two classifications of crimes. A felony is a crime of a serious nature that has a penalty of imprisonment for longer than 1 year or even death. A misdemeanor is a less serious crime that has a penalty of a fine or imprisonment for less than 1 year. An example of criminal conduct for nurses is misuse of a controlled substance.
Standards of Care
Standards of care are the legal requirements for nursing practice that describe minimum acceptable nursing care. Standards reflect the knowledge and skill ordinarily possessed and used by nurses actively practicing in the profession (Guido, 2010) (see Chapter 1). The American Nurses Association (ANA) (2010) develops standards for nursing practice, policy statements, and similar resolutions. These standards outline the scope, function, and role of the nurse in practice. Nursing standards of care are described in the Nurse Practice Act of every state, in the federal and state laws regulating hospitals and other health care institutions, by professional and specialty nursing organizations, and by the policies and procedures established by the health care facility where nurses work (Guido, 2010). In a malpractice lawsuit a nurse’s actual conduct is compared to nursing standards of care to determine whether the nurse acted as any reasonably prudent nurse would act under the same or similar circumstances. For example, if a patient receives a burn from a warm compress application, negligence is determined by reviewing if the nurse followed the correct procedure for applying the compress. A breach of the nursing standard of care is one element that must be proven in the tort of nursing negligence or malpractice (Daller, 2010).
Nurse Practice Acts define the scope of nursing practice, distinguishing between nursing and medical practice and establishing education and licensure requirements for nurses. The rules and regulations enacted by a State Board of Nursing define the practice of nursing more specifically. For example, State Boards develop rules regarding intravenous therapy. Another example involves the use of nursing assistive personnel (NAP) (e.g., nurse assistants). Some State Boards of Nursing define the registered nurse’s responsibilities specifically and develop position statements and guidelines to help licensed nurses delegate safely to NAP (National Council of State Boards of Nursing [NCSBN], 2005). All nurses are responsible for knowing the provisions of the Nurse Practice Act of the state in which they work and the rules and regulations enacted by the State Board of Nursing and other regulatory administrative bodies.
The Joint Commission (TJC) (2011a) requires accredited hospitals to have written nursing policies and procedures. These internal standards of care are specific and need to be accessible on all nursing units. For example, a policy/procedure outlining the steps to follow when changing a dressing or administering medication provides specific information about how nurses are to perform these tasks. Some hospitals are also now using commercially published procedural textbooks to reference the general policies and procedures of the institution. You need to know the policies, procedures, and protocols of your employing institution so you use the same standard of care as the other nurses in your institution. Institutional policies and procedures need to conform to state and federal laws and community standards and cannot conflict with legal guidelines that define acceptable standards of care (Guido, 2010).
In a lawsuit for malpractice or nursing negligence, a nursing expert testifies to the jury about the standards of nursing care as applied to the facts of the case (Box 23-1). A nurse may be requested to give evidence in a deposition; this appearance needs to be taken seriously (Scott, 2009). The jury uses the standards of care to determine whether the nurse acted appropriately. Nurse experts base their opinions on existing standards of practice established by Nurse Practice Acts, professional organizations, institutional policies and procedures, federal and state hospital licensing laws, TJC standards, job descriptions, and current nursing research literature (Guido, 2010). Usually nurses are responsible for meeting the same standards as other nurses practicing in similar settings. Specialized nurses such as nurse anesthetists, operating room (OR) nurses, intensive care nurses, or certified nurse-midwives have specially defined standards of care and skills. Ignorance of the law or of standards of care is not a defense against malpractice. The best way for nurses to keep up with the current legal issues affecting nursing practice is to maintain familiarity with standards of care and the policies and procedures of their employing agency and to read current nursing literature in their practice area (ANA, 2010).
One of the first and most important cases to discuss a nurse’s liability was Darling v Charleston Community Memorial Hospital. It involved an 18-year-old man with a fractured leg. The emergency department physician applied a cast with insufficient padding. The man’s toes became swollen and discolored, and he developed decreased sensation. He complained to the nursing staff many times. Although the nurses recognized the symptoms as signs of impaired circulation, they failed to tell their supervisor that the physician did not respond to their calls or the patient’s needs. Gangrene developed, and the man’s leg was amputated. Although the physician was held liable for incorrectly applying the cast, the nursing staff was also held liable for failing to adhere to the standards of care for monitoring and reporting the patient’s symptoms. Even though the nurses attempted to contact the physician, this case holds that, when the physician fails to respond, the nurse must go over the health care provider’s head to make sure that he or she is appropriately treated. Almost every state uses this 1965 Illinois Supreme Court case as legal precedence.
Federal Statutory Issues in Nursing Practice
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) (1990) is a broad civil rights statute that protects the rights of people with physical or mental disabilities (Grohar-Murray and Langan, 2011). The ADA prohibits discrimination and ensures for persons with disabilities equal opportunities in employment, state and local government services, public accommodations, commercial facilities, and transportation. It is also the most extensive law on how employers must treat health care workers and patients infected with the human immunodeficiency virus (HIV). The Supreme Court ruled in 1998 in Bragdon v Abbott that even asymptomatic HIV constitutes a disability within the meaning of the ADA. This means that the ADA protects a person who is HIV positive but does not have acquired immunodeficiency syndrome (AIDS). The ADA regulations protect the privacy of infected people by giving individuals the opportunity to decide whether to disclose their disability. However, several cases have held that the health care provider has to disclose the fact that he or she has HIV. Despite these rulings, ADA protects health care workers in the workplace with disabilities such as HIV infection. Likewise, health care workers cannot discriminate against HIV-positive patients (Guido, 2010).
Emergency Medical Treatment and Active Labor Act
As a result of patients being transferred from private to public hospitals without appropriate screening and stabilization (referred to as patient dumping), Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA) (1986). This act provides that, when a patient comes to the emergency department or the hospital, an appropriate medical screening occurs within the capacity of the hospital. If an emergency condition exists, the hospital is not to discharge or transfer the patient until the condition stabilizes. Exceptions to this provision include if the patient requests transfer or discharge in writing after receiving information about the benefits and risks or if a health care provider certifies that the benefits of transfer outweigh the risks.
Mental Health Parity Act
Health insurance plans are free to eliminate coverage for certain specialties and impose limits on the amount of coverage that they will pay for certain illnesses. However, if health insurance plans provide mental health benefits, the Mental Health Parity Act of 1996 forbids health plans from placing lifetime or annual limits on mental health coverage that are less generous than those placed on medical or surgical benefits.
Admission of a patient to a mental health unit occurs involuntarily or on a voluntary basis. Involuntary detention occurs when an individual files with the court within 96 hours of the patient’s initial detention. A judge may determine that the patient is a danger to self or others; then the judge will grant the involuntary detention, and the patient can be detained for 21 more days for psychiatric treatment.
Potentially suicidal patients are admitted to mental health units. If the patient’s history and medical records indicate suicidal tendencies, the patient must be kept under supervision. Lawsuits result from patients’ attempts at suicide within the hospital. The allegations in the lawsuits are that the health care provider failed to provide adequate supervision and safeguard the facilities. Documentation of precautions against suicide is essential.
Advance Directives
Advance directives include living wills, health care proxies, and durable powers of attorney for health care (Blais et al., 2006). They are based on values of informed consent, patient autonomy over end-of-life decisions, truth telling, and control over the dying process. The Patient Self-Determination Act (PSDA) (1991) requires health care institutions to provide written information to patients concerning their rights under state law to make decisions, including the right to refuse treatment and formulate advance directives. Under the act the patient’s record needs to document whether or not the patient has signed an advance directive. For living wills or durable powers of attorney for health care to be enforceable, the patient must be legally incompetent or lack the capacity to make decisions regarding health care treatment. A judge makes the determination of legal competency, and the health care provider and family usually make the determination of decisional capacity. Decisional capacity is the ability to make right choices for oneself as they relate to medical care. Be familiar with the policies of your institution complying with the act. Likewise, check the state laws to see if a state honors an advance directive that originates in another state.
Living Wills
Living wills represent written documents that direct treatment in accordance with a patient’s wishes in the event of a terminal illness or condition. With this legal document the patient is able to declare which medical procedures he or she wants or does not want when terminally ill or in a persistent vegetative state. Living wills are often difficult to interpret and not clinically specific in unforeseen circumstances. Each state providing for living wills has its own requirements for executing them. If health care workers follow the directions of the living will, they should be immune from liability (Bross, 2006).
Health Care Proxies or Durable Power of Attorney for Health Care
A health care proxy or durable power of attorney for health care (DPAHC) is a legal document that designates a person or persons of one’s choosing to make health care decisions when the patient is no longer able to make decisions on his or her own behalf. This agent makes health care treatment decisions based on the patient’s wishes (Blais et al., 2006).
In addition to federal statutes, the ethical doctrine of autonomy ensures the patient the right to refuse medical treatment. Courts upheld the right to refuse medical treatment in the 1986 Bouvia v Superior Court case. They have also upheld the right of a legally competent patient to refuse medical treatment for religious reasons. Christian Scientists may refuse medical treatment based on religious beliefs, and Jehovah’s Witnesses may accept medical treatment but may refuse blood transfusions based on personal religious beliefs. The U.S. Supreme Court stated in the Cruzan v Director of Missouri Department of Health case in 1990 that “we assume that the U.S. Constitution would grant a constitutionally protected competent person the right to refuse lifesaving hydration and nutrition.” In cases involving the patient’s right to refuse or withdraw medical treatment, the courts balance the patient’s interest with the interest of the state in protecting life, preserving medical ethics, preventing suicide, and protecting innocent third parties. Children are generally the innocent third parties. Although the courts will not force adults to undergo treatment refused for religious reasons, they will grant an order allowing hospitals and health care providers to treat children of Christian Scientists or Jehovah’s Witnesses who have denied consent for treatment of their minor children.
In addition to patient refusals of treatment, the nurse frequently encounters a DNR order. DNR means “do not resuscitate” or “no code.” Documentation that the health care provider has consulted with the patient and/or family is required before attaching a DNR order to the patient’s medical record (Guido, 2010).The health care provider needs to review DNR orders routinely in case the patient’s condition demands a change. If a patient does not have a DNR order, health care providers need to make every effort to revive the patient. Some states such as Ohio offer DNR Comfort Care and DNR Comfort Care Arrest protocols. Protocols in these instances list specific actions that health care providers will take when providing cardiopulmonary resuscitation (CPR).
CPR is an emergency treatment provided without patient consent. Health care providers perform CPR on an appropriate patient unless there is a DNR order in the patient’s chart. The New York law, the first adopted legislation regarding DNR, is one of the most comprehensive in the United States (New York DNR Statute, 1988). The statutes assume that all patients will be resuscitated unless there is a written DNR order in the chart. Legally competent adult patients consent to a DNR order verbally or in writing after receiving the appropriate information by the health care provider. Be familiar with the DNR protocols of your state.
Uniform Anatomical Gift Act
An individual who is at least 18 years of age has the right to make an organ donation (defined as a “donation of all or part of a human body to take effect upon or after death”). Donors need to make the gift in writing with their signature. In many states adults sign the back of their driver’s license, indicating consent to organ donation.
In most states Required Request laws mandate that, at the time of admission to a hospital, a qualified health care provider has to ask each patient over age 18 whether he or she is an organ or tissue donor. If the answer is affirmative, the health care provider obtains a copy of the document. If the answer is negative, the health care provider discusses the option to make or refuse an organ donation and places such documentation in the patient’s medical record. The health care provider who certifies death is not involved in the removal or transplantation of organs (see Chapter 36).
The National Organ Transplant Act of 1984 prohibits the purchase or sale of organs. The act provides civil and criminal immunity to the hospital and health care provider who performs in accordance with the act. The act also protects the donor’s estate from liability for injury or damage that results from the use of the gift. Organ transplantation is extremely expensive. Patients in end-stage renal disease are eligible for Medicare coverage for a kidney transplant, but private insurance pays for other transplants. The United Network for Organ Sharing (UNOS) has a contract with the federal government and sets policies and guidelines for the procurement of organs. Patients who require organ transplantation are on a waiting list for an organ in their geographical area that gives priority to patients who demonstrate the greatest need. Be familiar with the policies and procedures of your employing institution regarding organ donation.
Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) represents one of the more recent federal statutory acts affecting nursing care. This law provides rights to patients and protects employees. It protects individuals from losing their health insurance when changing jobs by providing portability. It allows employees to change jobs without losing coverage as a result of preexisting coverage exclusion as long as they have had 12 months of continuous group health insurance coverage (Carter, 2010).
In the privacy section of the HIPAA, there are standards regarding accountability in the health care setting (Carter, 2010). These rules create patient rights to consent to the use and disclosure of their protected health information, to inspect and copy one’s medical record, and to amend mistaken or incomplete information. It limits who is able to access a patient’s record. It establishes the basis for privacy and confidentiality concerns, viewed as two basic rights within the U.S. health care setting. Privacy is the right of patients to keep personal information from being disclosed. Confidentiality protects private patient information once it has been disclosed in health care settings. Patient confidentiality is a sacred trust. Nurses help organizations protect patients’ rights to confidentiality. Although the HIPAA does not require such measures as soundproof rooms in hospitals, it does mean that nurses and all health care providers need to avoid discussing patients in public hallways and provide reasonable levels of privacy in communicating with and about patients in any manner. Message boards used in patients’ hospital rooms to post daily nursing care information can no longer contain information revealing the patient’s medical condition. With the increased use of technology in the health care setting such as with the use of electronic health records, nurses have a challenging task to maintain patient privacy and confidentiality. HIPAA violations have civil and criminal sanctions.
Health care information privacy is also protected by standards set by the Health Care Financing Administration (HCFA) for hospitals and health care providers who participate in Medicare and Medicaid (Guido, 2010). These standards require that hospitals and health care providers give notice to patients of their rights to decisions about their care, grievances regarding their care management, personal freedom and safety, confidentiality, access to their own medical records, and freedom from restraints that are not clinically necessary. In addition, many state laws allow patients to access their medical records. Exceptions to the ability to access medical records apply to psychotherapy notes or when the health care provider has determined that access would result in harm to the patient or another party (Privacy Rights Clearinghouse, 2011).
Restraints
The Federal Nursing Home Reform Act (1987) gave residents in certified nursing homes the right to be free of unnecessary and inappropriate restraints. The use of physical restraints is a safety strategy that has been used in hospitals and long-term care settings to protect patients from injury. However, the Centers for Medicare and Medicaid Services (2007) and The Joint Commission (2011a) have set standards for reducing the use of restraints in health care settings and for using them only with extreme caution. The risks associated with the use of restraints are serious. A restraint-free environment is the first goal of care for all patients. There are many alternatives to the use of restraints, and you should try all of them before using restraints. Restraints can be used (1) only to ensure the physical safety of the resident or other residents, (2) when less restrictive interventions are not successful, and (3) only on the written order of a health care provider (TJC, 2011a). Written orders include a specific episode with start and end times. Litigation from improper restraint use is a common nursing legal issue (Evans and Cotter, 2008). Nurses are negligent for failure to initiate safety procedures when the patient condition necessitates it. Knowing when and how to use restraints correctly is key (Chapter 27). Liability for improper or unlawful restraint and for patient injury from unprotected falls lies with the nurse and the health care institution. Nurses who apply restraints in violation of state and federal regulations may be charged with abuse, battery, or false imprisonment.
State Statutory Issues in Nursing Practice
A State Board of Nursing licenses all registered nurses in the state in which they practice. The requirements for licensure vary among states, but most states have minimum education requirements and require a licensure examination. All states use the National Council Licensure Examinations (NCLEX®) for registered nurse and licensed practical nurse examinations. Licensure permits people to offer special skills to the public, and it also provides legal guidelines for protection of the public.
The State Board of Nursing suspends or revokes a license if a nurse’s conduct violates provisions in the licensing statute based on administrative law rules that implement and enforce the statute. For example, nurses who perform illegal acts such as selling or taking controlled substances jeopardize their license status. Because a license is a property right, the State Board has to follow due process before revoking or suspending a license. Due process means that nurses must be notified of the charges brought against them and have an opportunity to defend against them in a hearing. Hearings for suspension or revocation of a license do not occur in court. Usually a panel of professionals conducts the hearing. Some states provide administrative and judicial review of such cases after nurses have exhausted all other forms of appeal.
Good Samaritan Laws
Nurses act as Good Samaritans by providing emergency assistance at an accident scene (Good Samaritan Act, 1997). All states have Good Samaritan laws enacted to encourage health care professionals to assist in emergencies (Dachs and Elias, 2008). These laws limit liability and offer legal immunity if a nurse helps at the scene of an accident. For example, if you stop at the scene of an automobile accident and give appropriate emergency care such as applying pressure to stop hemorrhage, you are acting within accepted standards, even though proper equipment is not available. If the patient subsequently develops complications as a result of your actions, you are immune from liability as long as you acted without gross negligence (Good Samaritan Act, 1997). Although Good Samaritan laws provide immunity to the nurse who does what is reasonable to save a person’s life, if you perform a procedure for which you have no training, you are liable for any injury resulting from that act. You should only provide care that is consistent with your level of expertise. In addition, once you have committed to providing emergency care to a patient, you must stay with that patient until you can safely transfer his or her care to someone who can provide needed care such as emergency medical technicians (EMTs) or emergency department staff. If you leave the patient without properly transferring or handing him or her off to a capable person, you may be liable for patient abandonment and responsible for any injury suffered after you leave him or her (Dachs, 2008). Three states (Louisiana, Minnesota, and Vermont) have enacted “failure-to-act” laws that make it a crime not to provide Good Samaritan care (Dachs and Elias, 2008).
Public Health Laws
Nurses, especially those employed in community health settings, need to understand public health laws. State legislatures enact statutes under health codes, which describe the reporting laws for communicable diseases and school immunizations and those intended to promote health and reduce health risks in communities. The Centers for Disease Control and Prevention (CDC) (http://www.CDC.gov) and the Occupational Health and Safety Act (OHSA) (http://www.osha.gov) provide guidelines on a national level for safe and healthy communities and work environments. The purposes of public health laws are protection of public health, advocating for the rights of people, regulating health care and health care financing, and ensuring professional accountability for care provided. Community and public health nurses have the legal responsibility to enforce laws enacted to protect public health (see Chapter 3). These laws include reporting suspected abuse and neglect such as child abuse, elder abuse, or domestic violence; reporting communicable diseases; ensuring that patients in the community have received required immunizations; and reporting other health-related issues enacted to protect public health. To encourage reports of suspected cases, states provide legal immunity for the reporter if the report is made in good faith. Any health care professional who does not report suspected child abuse or neglect may be liable for civil or criminal legal action.
The Uniform Determination of Death Act
Many legal issues surround the event of death, including a basic definition of the actual point at which a person is legally dead. There are essentially two standards for the determination of death. The cardiopulmonary standard requires irreversible cessation of circulatory and respiratory functions. The whole-brain standard requires irreversible cessation of all functions of the entire brain, including the brainstem. The reason for the development of different definitions is to facilitate recovery of organs for transplantation. Even though the patient is legally “brain dead,” the patient’s organs are sometimes healthy for donation to other patients. Most states have adopted the Uniform Determination of Death Act (1980). It states that health care providers can use either the cardiopulmonary or the whole-brain definition to determine death. Be aware of legal definitions of death because you need to document all events that occur when the patient is in your care. Nurses have a specific legal obligation to treat the deceased person’s remains with dignity (see Chapter 36). Wrongful handling of a deceased person’s remains causes emotional harm to the surviving family.
Autopsy
An autopsy or postmortem examination may be requested by the patient or patient’s family, as a part of an institutional policy; or it may be required by law. When a patient’s death has occurred under suspicious circumstances or if the patient died within 24 hours of admission to a health care facility, the decision to conduct a postmortem examination is made by the medical examiner (Autopsy Consent, 1998). When the patient’s death is not subject to a medical examiner review, consent must be obtained. The priority for giving consent is (1) the patient in writing before death; (2) durable power of attorney; (3) surviving spouse; (4) surviving child, parent, or sibling in the order named.
Physician-Assisted Suicide
Providing end-of-life care in today’s world is challenging for health care professionals because people are living longer. The Oregon Death with Dignity Act (1994) was the first statute that permitted physician or health care provider–assisted suicide. The statute stated that a competent individual with a terminal disease could make an oral and written request for medication to end his or her life in a humane and dignified manner. A terminal disease is an “incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within 6 months.”
The American Nurses Association (ANA) (2008) has held that nurses’ participation in assisted suicide violates the code of ethics for nurses. The American Association of Colleges of Nursing (AACN) supports the International Council of Nurses’ mandate to ensure an individual’s peaceful end of life (Guido, 2010). The positions of these two national organizations are not contradictory and require nurses to approach a patient’s end of life with openness to listening to the patient’s expressions of fear and to attempt to control the patient’s pain.
Civil and Common Law Issues in Nursing Practice
A tort is a civil wrong made against a person or property. Torts are classified as intentional, quasi-intentional, or unintentional. Intentional torts are willful acts that violate another’s rights such as assault, battery, and false imprisonment. Quasi-intentional torts are acts in which intent is lacking but volitional action and direct causation occur such as in invasion of privacy and defamation of character. The third classification of tort is the unintentional tort, which includes negligence or malpractice.
Intentional Torts
Assault: Assault is any action that places a person in apprehension of a harmful or offensive contact without consent. No actual contact is necessary. It is an assault for a nurse to threaten to give a patient an injection or to threaten to restrain a patient for an x-ray procedure when the patient has refused consent. Likewise, it is an assault for a patient to threaten a nurse (Guido, 2010).
Battery: Battery is any intentional touching without consent. The contact can be harmful to the patient and cause an injury, or it can be merely offensive to the patient’s personal dignity. In the example of a nurse threatening to give a patient an injection without the patient’s consent, if the nurse actually gives the injection, it is battery. Battery also results if the health care provider performs a procedure that goes beyond the scope of the patient’s consent. For example, if the patient gives consent for an appendectomy and the surgeon performs a tonsillectomy, battery has occurred. The key component is the patient’s consent.
In some situations consent is implied. For example, if a patient gets into a wheelchair or transfers to a stretcher after receiving advice that it is time to be taken for an x-ray procedure, the patient has given implied consent to the procedure. If the patient learns that he or she will have an x-ray film of the head instead of the foot and the patient refuses to have the x-ray film taken, the consent has been revoked or withdrawn.
False Imprisonment: The tort of false imprisonment occurs with unjustified restraint of a person without legal warrant. This occurs when nurses restrain a patient in a confined area to keep the person from freedom. False imprisonment requires that the patient be aware of the confinement. An unconscious patient has not been falsely imprisoned (Guido, 2010).
Quasi-Intentional Torts
Invasion of Privacy: The tort of invasion of privacy protects the patient’s right to be free from unwanted intrusion into his or her private affairs. HIPAA privacy standards have raised awareness of the need for health care professionals to provide confidentiality and privacy. Typically invasion of privacy is the release of a patient’s medical information to an unauthorized person such as a member of the press, the patient’s employer, or the patient’s family. The information that is in a patient’s medical record is a confidential communication that may be shared with health care providers for the purpose of medical treatment only.
Do not disclose the patient’s confidential medical information without his or her consent. A patient must authorize the release of information and designate to whom the health care information may be released. For example, respect the wish not to inform the patient’s family of a terminal illness. Similarly, do not assume that a patient’s spouse or family members know all of the patient’s history, particularly with respect to private issues such as mental illness, medications, pregnancy, abortion, birth control, or sexually transmitted infections. When a family asks to see a patient’s medical record, you must instead establish a relationship that allows for open communication so you can discuss the family’s concerns.
An individual’s right to privacy sometimes conflicts with the public’s right to know. In one case a television crew filmed a married couple who were participating in a hospital program. The couple had previously told no one but their immediate family that they were involved in the in vitro fertilization program and had received assurance that there would be no publicity or public exposure. After the newscast they received phone calls and embarrassing questions. The couple filed a lawsuit. The court held that the husband and wife stated a claim for invasion of privacy and that, even though the in vitro fertilization program was of public interest, the identity of the plaintiffs was a private matter (YG v Jewish Hospital, 1990).
Many states, through their respective public health departments, require that hospitals report certain infectious or communicable diseases. Sometimes the patient is a public figure whose physical condition is newsworthy (Guido, 2010). There are also cases in which information about a scientific discovery or a major medical breakthrough is newsworthy, as with the first heart transplant case or the first artificial heart recipient. If an event falls into any of these categories, guide information through the public relations department of the institution to ensure that invasion of privacy does not occur. It is not the nurse’s responsibility to decide independently the legality of disclosing information.
Defamation of Character: Defamation of character is the publication of false statements that result in damage to a person’s reputation. Slander occurs when one speaks falsely about another. For example, if a nurse tells people erroneously that a patient has gonorrhea and the disclosure affects the patient’s business, the nurse is liable for slander. Libel is the written defamation of character (e.g., charting false entries in a medical record).
Unintentional Torts
Negligence: Negligence is conduct that falls below a standard of care. The law establishes the standard of care for the protection of others against an unreasonably great risk of harm (Garner, 2006). For example, if a driver of a car acts unreasonably in failing to stop at a stop sign, it is negligence. In general, courts define negligence in car accident cases and other negligence cases as that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances. Negligent acts such as hanging the wrong intravenous solution for a patient or allowing a NAP to administer a medication often lead to disciplinary action by the state board of nursing.
Malpractice: Malpractice is one type of negligence and often referred to as professional negligence. When nursing care falls below a standard of care, nursing malpractice results. Certain criteria are necessary to establish nursing malpractice: (1) the nurse (defendant) owed a duty to the patient (plaintiff), (2) the nurse did not carry out that duty, (3) the patient was injured, and (4) the nurse’s failure to carry out the duty caused the injury. Even though nurses do not intend to injure patients, some patients file claims of malpractice if nurses give care that does not meet the appropriate standards. Malpractice sometimes involves failing to check a patient’s identification correctly before administering blood and then giving the blood to the wrong patient. It also involves administering a medication to a patient even though the medical record contains documentation that the patient has an allergy to that medication. In general, courts define nursing malpractice as the failure to use that degree of skill or learning ordinarily used under the same or similar circumstances by members of the nursing profession (Box 23-2) (Austin, 2006).
The best way for nurses to avoid malpractice is to follow standards of care, give competent health care, and communicate with other health care providers. You also avoid malpractice by developing a caring rapport with the patient and documenting assessments, interventions, and evaluations fully. Nurses need to know the current nursing literature in their areas of practice. Know and follow the policies and procedures of the institution where you work. Be sensitive to common sources of patient injury such as falls and medication errors. Finally, communicate with the patient, explain tests and treatments, document that you provided specific explanations to him or her, and listen to his or her concerns about treatments. You are accountable for reporting any significant changes in the patient’s condition to the health care provider and documenting these changes in the chart (see Chapter 26). Timely and truthful documentation is important to provide the communication necessary among health care team members. Be certain that documentation is legible and signed (Austin, 2006).
A number of courts have stated that, when a health care provider negligently alters or loses medical records relevant to a malpractice claim, the health care provider needs to demonstrate why these events occurred. An institution has a duty to maintain nursing records. Statutes and accreditation regulations establish these duties. Nursing notes contain substantial evidence needed to understand the care received by a patient. If records are lost or incomplete, there is a presumption that the care was negligent and therefore the cause of the patient’s injuries. In addition, incomplete or illegible records make the health care provider less credible or believable.
Consent
A signed consent form is required for all routine treatment, hazardous procedures such as surgery, some treatment programs such as chemotherapy, and research involving patients (TJC, 2011a). A patient signs general consent forms when admitted to the hospital or other health care facility. The patient or his or her representative needs to sign separate special consent or treatment forms before the performance of a specialized procedure. State statutes provide the designation of individuals who are legally able to give consent to medical treatment (Medical Patient Rights Act, 1994). Nurses need to know the law in their states and be familiar with the policies and procedures of their employing institution regarding consent (Box 23-3). If a patient is deaf or illiterate or speaks a foreign language, an official interpreter must be present to explain the terms of consent. A family member or acquaintance who speaks a patient’s language should not interpret health information. Make every effort to assist the patient in making an informed choice.
Informed Consent
Informed consent is a person’s agreement to allow something to happen such as surgery or an invasive diagnostic procedure, based on a full disclosure of risks, benefits, alternatives, and consequences of refusal (Garner, 2006). Informed consent creates a legal duty for the health care provider to disclose material facts in terms the patient is able to understand to make an informed choice (Guido, 2010). Failure to obtain consent in situations other than emergencies will possibly result in a claim of battery. Without informed consent a patient may bring a lawsuit against the health care provider for negligence.
Informed consent is part of the health care provider–patient relationship. It must be obtained and witnessed when the patient is not under the influence of medication such as opioids. Because nurses do not perform surgery or direct medical procedures, in most situations obtaining patients’ informed consent does not fall within the nursing duty. The person responsible for performing the procedure has the responsibility to obtain the informed consent.
Key elements of responsibility for the health care provider include the following: (1) the patient receives a brief, complete explanation of the procedure or treatment; (2) the patient receives the names and qualifications of persons performing and assisting in the procedure; (3) the patient receives a description of the serious harm, including death, that may occur as a result of the procedure and anticipated pain and/or discomfort; (4) the patient receives an explanation of alternative therapies to the proposed procedure/treatment and the risks of doing nothing; (5) the patient knows that he or she has the right to refuse the procedure/treatment without discontinuing other supportive care; (6) the patient knows that he or she may refuse the procedure/treatment even after the procedure has begun.
The nurse’s signature witnessing the consent means that the patient voluntarily gave consent, the patient’s signature is authentic, and the patient appears to be competent to give consent (Guido, 2010). When nurses provide consent forms for patients to sign, they must ask the patients if they understand the procedure for which they are giving consent. If patients deny understanding or you suspect that they do not understand, notify the health care provider or nursing supervisor. Health care providers must inform a patient refusing surgery or other medical treatment about any harmful consequences of refusal. If the patient persists in refusing the treatment, this rejection needs to be written, signed, and witnessed. It is important to note that nursing students cannot and should not be responsible for or asked to witness consent forms because of the legal nature of the document.
Parents are usually the legal guardians of pediatric patients; therefore they typically are the persons who sign consent forms for treatment. If the parents are divorced, the parent with legal custody gives consent. Occasionally a parent or guardian refuses treatment for a child. In these cases the court sometimes intervenes on the child’s behalf.
In some instances obtaining informed consent is difficult. For example, if the patient is unconscious, you must obtain consent from a person legally authorized to give it on the patient’s behalf. Sometimes the patient has legally designated other surrogate decision makers through special power of attorney documents or court guardianship procedures. In emergencies, if it is impossible to obtain consent from the patient or an authorized person, a health care provider may perform a procedure required to benefit the patient or save a life without liability for failure to obtain consent. In such cases the law assumes that the patient would wish to be treated.
Patients with mental illnesses must also give consent. They retain the right to refuse treatment until a court has legally determined that they are incompetent to decide for themselves.
Abortion Issues
In 1973 in the case of Roe v Wade, the U.S. Supreme Court ruled that there is a fundamental right to privacy, which includes a woman’s decision to have an abortion. The court ruled that during the first trimester a woman could end her pregnancy without state regulation because the risk of natural mortality from abortion is less than with normal childbirth. During the second trimester the state has an interest in protecting maternal health, and it enforces regulations regarding the person performing the abortion and the abortion facility. By the third trimester, when the fetus becomes viable, the state’s interest is to protect the fetus; therefore it prohibits abortion except when necessary to save the mother.
In 1989 in the case of Webster v Reproductive Health Services the court substantially narrowed the Roe v Wade case. Some states require viability tests before conducting abortions if the fetus is over 28 weeks’ gestational age. Some states also require a minor’s parental consent or a judicial decision that the minor is mature and can self-consent.
Nursing Students
Nursing students are liable if their actions cause harm to patients. If a student harms a patient as a direct result of his or her actions or lack of action, the student, instructor, hospital, or health care facility and the university or educational institution generally share the liability for the incorrect action. Nursing students should never be assigned to perform tasks for which they are unprepared, and instructors should supervise them carefully as they learn new skills. Although nursing students are not employees of the hospital, the institution has a responsibility to monitor their acts. They are expected to perform as professional nurses would in providing safe patient care. Faculty members are usually responsible for instructing and observing students, but in some situations staff nurses serving as preceptors share these responsibilities. Every nursing school should provide clear definitions of preceptor and faculty responsibility.
When students work as nursing assistants or nurse’s aides when not attending classes, they should not perform tasks that do not appear in a job description for a nurse’s aide or assistant. For example, even if a student has learned to administer intramuscular medications in class, the student now working as a nurse’s aide may not perform this task. If a staff nurse overseeing the nursing assistant or aide knowingly assigns work without regard for the person’s ability to safely conduct the task defined in the job description, the staff nurse is also liable. If someone requests students employed as nurse’s aides to perform tasks that they are not prepared to complete safely, they need to bring this information to the supervisor’s attention so they are able to obtain the needed help.
Malpractice Insurance
Malpractice or professional liability insurance is a contract between the nurse and the insurance company. Malpractice insurance provides for a defense when a nurse is in a lawsuit involving professional negligence or medical malpractice. As part of the insurance contract, the insurance company pays for any judgment or settlement of the case and for the attorney’s fees generated in the representation of the nurse. Nurses employed by health care institutions generally are covered by insurance provided by the institution and do not need to purchase any supplemental insurance unless the nurse plans to practice nursing outside of the employing institution. However, the insurance provided by the employing institution only covers nurses while they are working within the scope of their employment. Because nurses are professionals and it is often difficult to separate their private lives from their professional skills, they need to consider purchasing individual professional liability insurance, even if the employing institution has coverage. For example, a hospital policy does not cover a nurse when neighbors and friends ask him or her to provide nursing care on a volunteer basis if the neighbor or friend files suit (Guido, 2010). Nursing students need to check with their educational institutions regarding the need for liability insurance.
Nurses need to consult their lawyers on which types of policies to purchase and which rights or duties, if any, exist under the policy. If both the employing institution and the nurse are sued in a professional liability case, even though the nurse has insurance with the hospital, he or she needs to notify his or her private insurance carrier of the lawsuit. If both the hospital policy and the private policy are considered primary and the hospital loses as a result of the nurse’s acts, theoretically the hospital could sue the nurse’s private insurer to recover its losses. However, most private insurance policies for nurses are excess policies and only begin covering the nurse after all of the primary (hospital) insurance coverage has been exhausted. Because hospital insurance coverage is generally much broader and has higher monetary limits than private insurance coverage, hospitals very rarely sue nurses’ private insurers.
Abandonment and Assignment Issues
During nursing shortages or staff downsizing periods, the issue of inadequate staffing occurs. The Community Health Accreditation Program (CHAP) and other state and federal standards require institutions to have guidelines for determining the number (staffing ratios) of nurses required to give care to a specific number of patients. Legal problems occur if there are not enough nurses to provide competent care or if nurses work excessive overtime (Box 23-4). One such example is in a class-action suit, Spires v Hospital Corporation of America, filed on April 10, 2006. The wife claims that there was poor patient care related to insufficient registered nurse staffing and that the poor nurse-staffing levels led to the resultant death of her husband. This suit emphasizes the potential seriousness of short staffing and the importance of nurses’ asserting employee rights. In an attempt to address the short-staffing problem, 15 states and the District of Columbia have legislation to mandate fixed nurse-patient ratios for all areas of acute care nursing. The safe staffing ratio debate is occurring throughout the country and demands close attention by all nurses (ANA, 2011).
If nurses are assigned to care for more patients than is reasonable, they need to bring this information to the attention of the nursing supervisor (Guido, 2010). If nurses have to accept unreasonable assignments, they need to make written protests to nursing administrators. Although these protests do not relieve nurses of responsibility if a patient suffers an injury because of inattention, it shows that the nurses were attempting to act reasonably. Whenever you make a written protest, keep a copy of this document in your personal file. Most administrators recognize that knowledge of a potential problem shifts some of the responsibility to the institution. Do not walk out when staffing is inadequate because you may be charged with patient abandonment. A nurse who refuses to accept an assignment may be considered insubordinate. It is important to know the policies and procedures of the institution on how to handle such reports before the situation occurs.
Floating
Nurses are sometimes required to “float” from the area in which they normally practice to other nursing units based on census load and patient acuities. In one case a nurse in obstetrics was assigned to an emergency department. A patient entered the emergency department and complained of chest pain. The patient received an incorrect dose of lidocaine by the obstetrical nurse and died after suffering irreversible brain damage and cardiac arrest. The nurse lost the malpractice lawsuit. Nurses who float need to inform the supervisor of any lack of experience in caring for the type of patients on the nursing unit. They also need to request and receive an orientation to the unit. Supervisors are liable if they give a staff nurse an assignment that he or she cannot safely handle. Before accepting employment, learn the policies of the institution regarding floating and have an understanding as to what is expected (Kane-Urrabazo, 2006).
Health Care Providers’ Orders
The health care provider (physician or advanced practice nurse) is responsible for directing medical treatment. Nurses follow health care providers’ orders unless they believe the orders are in error or harm patients. Therefore you need to assess all orders; if you find one to be erroneous or harmful, further clarification from the health care provider is necessary. If the health care provider confirms an order and you still believe that it is inappropriate, inform the supervising nurse or follow the established chain of command. The supervising nurse should help resolve the questionable order. A medical consultant sometimes helps clarify its appropriateness or inappropriateness. A nurse carrying out an inaccurate or inappropriate order is legally responsible for any harm the patient suffers.
In a malpractice lawsuit against a health care provider and a hospital, one of the most frequently litigated issues is whether the nurse kept the health care provider informed of the patient’s condition. To inform a health care provider properly, you perform a competent nursing assessment of the patient to determine the signs and symptoms that are significant in relation to the attending health care provider’s tasks of diagnosis and treatment. Be certain to document that you notified the health care provider and his or her response, your follow-up, and the patient’s response.
The health care provider should write all orders. The nurse is responsible for transcribing written orders correctly. If a verbal order is necessary (e.g., during an emergency), it is signed by the health care provider as soon as possible, usually within 24 hours. Nurses verify the complete order or test results by reading verbal orders back to the health care provider. Nursing students never take verbal orders. Be familiar with the policy and procedures of the institution regarding verbal orders.
Risk Management
Risk management is an organization’s system of ensuring appropriate nursing care by identifying potential hazards and eliminating them before harm occurs (Guido, 2010). The steps involved in risk management include identifying possible risks, analyzing them, acting to reduce the risks, and evaluating the steps taken. One tool used in risk management is the occurrence report. Occurrence reports are sometimes called incident reports.
Occurrence reporting provides a database for further investigation in an attempt to determine deviations from standards of care and corrective measures needed to prevent recurrence and to alert risk management to a potential claim situation. Examples of an occurrence include patient or visitor falls or injury; failure to follow health care provider orders; significant complaint by patient, family, health care provider, or other hospital department; error in technique or procedure; and malfunctioning device or product. Institutions generally have specific guidelines to direct health care providers in how to complete the occurrence report. The report is confidential and separate from the medical record. As a nurse, you are responsible for providing information in the medical record about the occurrence. Never document in the patient’s medical record that you completed an occurrence report.
Risk management also requires complete documentation. A nurse’s documentation is often the evidence of care received by a patient and serves as proof that the nurse acted reasonably and safely. When a lawsuit is filed, very often the nurses’ notes are the first thing an attorney reviews (Austin, 2006). The nurse’s assessments and the reporting of significant changes in the assessments are very important factors in defending a lawsuit. Therefore, it is critical for you to document the health care provider contacted, the information communicated to the health care provider, and the health care provider’s response.
For nurses in practice the underlying rationale for quality improvement and risk management programs is the highest possible quality of care. Some insurance companies, medical and nursing organizations, and TJC require the use of quality improvement and risk management procedures (TJC, 2011a).
One area of potential risk is associated with the use of electronic monitoring devices. No monitor is reliable at all times; therefore do not depend on them completely. Continual assessment of a patient is necessary to help document the accuracy of electronic monitoring. There are also electrical hazards to the nurse and the patient. Biomedical engineers check equipment to ensure that it is in proper working order and that a patient will not receive an electrical shock.
All nurses need to be risk managers. For example, surgeons rely on operating room nurses to compare the consent form with the indicated and prepped surgical site for accuracy. Because of errors with patients undergoing the wrong surgery or having surgery performed on the wrong site, The Joint Commission’s Universal Protocol includes guidelines for preventing such mishaps (TJC, 2011b). Implement this protocol whenever an invasive surgical procedure is to be performed, regardless of the location (hospital, ASC, or health care provider office). The three principles of the protocol include a preoperative verification that ensures all relevant documents and studies are available before the start of the procedure and are consistent with the patient’s expectations; marking of the operative site with indelible ink to mark left and right distinction, multiple structures (e.g., fingers), and levels of the spine; and a “time out” just before starting the procedure for final verification of the correct patient, procedure, site, and any implants.
In the OR sponge, needle, and instrument counts are routine surgical standards to prevent patient injury and lawsuits. Health care providers rely on nurses to provide an accurate count of sponges and instruments inserted at the end of a procedure, even though it is the health care provider who inserts sponges and instruments into the surgical wound. Generally, when the chart records a correct sponge count and the patient suffers an injury because of a retained sponge, the hospital is liable because the nurse charted a correct count when it, in fact, was incorrect.
Professional Involvement
As a nurse you should stay involved in professional organizations and on committees that define the standards of care for nursing practice. If current laws, rules and regulations, or policies under which nurses practice do not reflect reality, you need to become involved as an advocate to see that the scope of nursing practice is defined accurately. Be willing to represent nursing and the patient’s perspective in the community as well. The voice of nursing is powerful and effective when the organizing focus is the protection and welfare of the public entrusted to nurses’ care (Blais et al., 2006).
Key Points
• Registered nurses and licensed practical nurses are licensed by the state in which they practice; licensing is based on educational requirements, the passing of an examination, and other criteria.
• The civil law system is concerned with the protection of a person’s private rights, and the criminal law system deals with the rights of individuals and society as defined by legislative statutes.
• A nurse is liable for malpractice if the nurse (defendant) owed a duty to the patient (plaintiff), the nurse did not carry out that duty, the patient was injured, and the nurse’s failure to carry out the duty caused the patient’s injury.
• All patients are entitled to confidential health care and freedom from unauthorized release of information.
• Under the law practicing nurses must follow standards of care, the guidelines of professional organizations, and the written policies and procedures of employing institutions.
• Nurses who witness consents are responsible for confirming that patients have voluntarily given informed consent for any surgery or other medical procedure before the procedure is performed.
• Nurses are responsible for performing all procedures correctly and exercising professional judgment as they carry out health care providers’ orders.
• Nurses follow health care providers’ orders unless they believe the orders to be in error or harmful to patients.
• Staffing standards determine the ratio of nurses to patients; if the nurse has to care for more patients than is reasonable, he or she needs to make a formal protest to the nursing administration.
• Legal issues involving death include documenting all events surrounding the death and treating a deceased person with dignity.
• All nurses need to know the laws that apply to their area of practice.
• Depending on state laws, nurses are required to report possible criminal activities such as child abuse and certain communicable diseases.
• Nurses are patient advocates and ensure quality of care through risk management and lobbying for safe nursing practice standards.
• Nurses file incident/occurrence reports for all errors even when someone is not injured.
Clinical Application Questions
Preparing for Clinical Practice
You are working the first shift on the hematology-oncology unit and receive report on your assigned team of four patients. You have a nursing assistive personnel assigned to help you with routine care. You make quick rounds on your patients to ensure that there are no immediate needs before you begin checking medications. Patient No. 1 is scheduled for surgery later in the morning for a biopsy and needs the surgical consent signed. Patient No. 2 is receiving blood products for an HIV complication and needs frequent vital sign monitoring. You find patient No. 3, an 83-year-old confused man, lying on the floor. He states that he needed to go to the restroom and no one was there to help. You call for help to get the patient back in bed and assess for further injuries.
1. The nurse prepares the surgical consent form for patient No. 1. What key points does he or she need to ensure that the patient received before witnessing informed consent?
2. The son of patient No. 2 calls to talk to the nurse caring for his father. The son asks questions about the reason for the blood administration. What guidelines does the nurse follow in responding to the son’s questions about the father’s condition? What federal statutes are involved in this scenario?
3. One week after discharge from the hospital, the hospital received a written complaint from the family of patient No. 3 about the incident related to the fall and the intent to take legal action.
a. What must patient No. 3 establish to prove negligence against the nurse?
b. Describe situations in which restraints may be legally applied to prevent falls.
Answers to Clinical Application Questions can be found on the Evolve website.
Are You Ready to Test Your Nursing Knowledge?
1. A nurse is caring for a patient who recently had coronary bypass surgery. Which are legal sources of standards of care the nurse uses to deliver safe health care? (Select all that apply.)
1. Information provided by the head nurse
2. Policies and procedures of the employing hospital
4. Regulations identified in The Joint Commission’s manual
5. The American Nurses Association standards of nursing practice
2. A nurse is sued for failure to monitor a patient appropriately after a procedure. Which of the following statements are correct about this lawsuit? (Select all that apply.)
1. The nurse represents the plaintiff.
2. The defendant must prove injury, damage, or loss.
3. The person filing the lawsuit has the burden of proof.
4. The plaintiff must prove that a breach in the prevailing standard of care caused an injury.
3. A nurse stops to help in an emergency at the scene of an accident. The injured party files a suit, and the nurse’s employing institution insurance does not cover the nurse. What would probably cover the nurse in this situation?
1. The nurse’s automobile insurance
2. The nurse’s homeowner’s insurance
3. The Good Samaritan laws, which grant immunity from suit if there is no gross negligence
4. The Patient Care Partnership, which may grant immunity from suit if the injured party consents
4. A nurse is planning care for a patient going to surgery. Who is responsible for informing the patient about the surgery along with possible risks, complications, and benefits?
5. A woman who is a Jehovah’s Witness has severe life-threatening injuries and is hemorrhaging following a car accident. The health care provider ordered 2 units of packed red blood cells to treat the woman’s anemia. The woman’s husband refuses to allow the nurse to give his wife the blood. What is the nurse’s responsibility?
1. Obtain a court order to give the blood
2. Coerce the husband into giving the blood
3. Call security and have the husband removed from the hospital
4. Abide by the husband’s wishes and inform the health care provider
6. The nurse notes that an advance directive is on a patient’s medical record. Which statement represents the best description of an advance directive guideline the nurse will follow?
1. A living will allows an appointed person to make health care decisions when the patient is in an incapacitated state.
2. A living will is invoked only when the patient has a terminal condition or is in a persistent vegetative state.
3. The patient cannot make changes in the advance directive once admitted to the hospital.
4. A durable power of attorney for health care is invoked only when the patient has a terminal condition or is in a persistent vegetative state.
7. A nurse notes that the health care unit keeps a listing of the patient names at the front desk in easy view for health care providers to more efficiently locate the patient. The nurse talks with the nursing manager because this action is a violation of which act?
2. Patient Self-Determination Act (PSDA)
3. Health Insurance Portability and Accountability Act (HIPAA)
8. Which of the following actions, if performed by a registered nurse, would result in both criminal and administrative law sanctions against the nurse? (Select all that apply.)
1. Taking or selling controlled substances
2. Refusing to provide health care information to a patient’s child
3. Reporting suspected abuse and neglect of children
4. Applying physical restraints without a written physician’s order
9. The nurse received a hand-off report at the change of shift in the conference room from the night shift nurse. The nursing student assigned to the nurse asks to review the medical records of the patients assigned to them. The nurse begins assessing the assigned patients and lists the nursing care information for each patient on each individual patient’s message board in the patient rooms. The nurse also lists the patients’ medical diagnoses on the message board. Later in the day the nurse discusses the plan of care for a patient who is dying with the patient’s family. Which of these actions describes a violation of the Health Insurance Portability and Accountability Act (HIPAA)?
1. Discussing patient conditions in the nursing report room at the change of shift
2. Allowing nursing students to review patient charts before caring for patients to whom they are assigned
3. Posting medical information about the patient on a message board in the patient’s room
4. Releasing patient information regarding terminal illness to family when the patient has given permission for information to be shared
10. The patient has a fractured femur that is placed in skeletal traction with a fresh plaster cast applied. The patient experiences decreased sensation and a cold feeling in the toes of the affected leg. The nurse observes that the patient’s toes have become pale and cold but forgets to document this because one of the nurse’s other patients experienced cardiac arrest at the same time. Two days later the patient in skeletal traction has an elevated temperature, and he is prepared for surgery to amputate the leg below the knee. Which of the following statements regarding a breach of duty apply to this situation? (Select all that apply.)
1. Failure to document a change in assessment data
2. Failure to provide discharge instructions
3. Failure to follow the six rights of medication administration
4. Failure to use proper medical equipment ordered for patient monitoring
5. Failure to notify a health care provider about a change in the patient’s condition
11. A homeless man enters the emergency department seeking health care. The health care provider indicates that the patient needs to be transferred to the City Hospital for care. This action is most likely a violation of which of the following laws?
1. Health Insurance Portability and Accountability Act (HIPAA)
2. Americans with Disabilities Act (ADA)
3. Patient Self-Determination Act (PSDA)
4. Emergency Medical Treatment and Active Labor Act (EMTALA)
12. You are the night shift nurse and are caring for a newly admitted patient who appears to be confused. The family asks to see the patient’s medical record. What is the first nursing action to take?
13. A home health nurse notices significant bruising on a 2-year-old patient’s head, arms, abdomen, and legs. The patient’s mother describes the patient’s frequent falls. What is the best nursing action for the home health nurse to take?
1. Document her findings and treat the patient
2. Instruct the mother on safe handling of a 2-year-old child
14. A new graduate nurse is being mentored by a more experienced nurse. They are discussing the ways nurses need to remain active professionally. Which of the statements below indicates the new graduate understands ways to remain involved professionally? (Select all that apply.)
1. “I am thinking about joining the health committee at my church.”
2. “I need to read newspapers, watch news broadcasts, and search the Internet for information related to health.”
3. “I will join nursing committees at the hospital after I have several years of experience and better understand the issues affecting nursing.”
4. “Nurses do not have very much voice in legislation in Washington, DC, because of the shortage of nurses.
15. You are floated to work on a nursing unit where you are given an assignment that is beyond your capability. What is the best nursing action to take first?
Answers: 1. 2, 3, 4, 5; 2. 3, 4; 3. 3; 4. 2; 5. 4; 6. 2; 7. 3; 8. 1, 4; 9. 3; 10. 1, 5; 11. 4; 12. 3; 13. 3; 14. 1, 2; 15. 1.
References
American Nurses Association. Guide to the code of ethics for nurses: interpretation and application. Silver Spring, Md: The Association; 2008.
American Nurses Association. Nursing: scope and standards of practice, ed 2. Silver Spring, Md: The Association; 2010.
American Nurses Association. Nurse staffing laws enacted in the states. http://www.safestaffingsaveslives.org/WhatisANADoing/StateLegislation/StaffingPlansandRatios.aspx, 2011. [Accessed August 21, 2011].
Austin, S. Ladies of the jury, I present the nursing documentation. Nursing. 2006;36(1):56.
Blais, K, et al. Professional nursing practice: concepts and perspectives, ed 5. Upper Saddle River, NJ: Pearson Prentice Hall; 2006.
Bross, W. Healthcare issues: patient self determination acts and informed consent. Ala Nurse. 2006;32(4):9.
Carter, P. HIPAA compliance handbook. Austin: Wolters Kluwer; 2010.
Centers for Medicare and Medicaid Services. Revisions to Medicare conditions of participation, 482.13. Bethesda, Md: US Department of Health and Human Services; 2007.
Dachs, R, Elias, J. What you need to know when called upon to be a good Samaritan. Fam Pract Manag. 2008;15(4):37.
Daller M: Tort law desk reference, 2010, Wolters Kluwer.
Evans, K, Cotter, V. Avoiding restraints in patients with dementia. Am J Nurs. 2008;108(3):40.
Garner, B, Black’s law dictionary. pocket. ed 3. St Paul: West Publishing; 2006.
Grohar-Murray, M, Langan, J. Leadership and management in nursing, ed 4. Boston, Mass: Pearson; 2011.
Guido, G. Legal and ethical issues in nursing, ed 5. Upper Saddle River, NJ: Prentice Hall; 2010.
Kane-Urrabazo, C. Said another way: our obligation to float. Nurs Forum. 2006;41(2):95.
National Council of State Boards of Nursing. Working with others: a position paper. http://www.ncsbn.org/pdfs/Working_with_Others.pdf, 2005. [Accessed August 21, 2011].
Privacy Rights Clearinghouse. Medical privacy FAQ. https://www.privacyrights.org/fs/fs8b-MedFAQ.htm, 2011. [Accessed August 21, 2011].
Scott, R. Promoting legal and ethical awareness: a primer for health professionals and patients. St Louis: Mosby; 2009.
The Joint Commission (TJC). Comprehensive accreditation manual for hospitals: the official handbook (E-dition). Oak Brook Terrace, IL: The Joint Commission; 2011.
The Joint Commission (TJC). Critical Access Hospital National Patient Safety Goals. http://www.jointcommission.org, 2011.
Research References
Berger, A, Hobbs, B. Impact of shift work on the health and safety of nurses and patients. Clin J Oncol Nurs. 2006;10(4):465.
Garrett, C. The effect of nurse staffing patterns on medical errors and nurse burnout. AORN J. 2008;87(6):1191.
Stone, PA, et al. Nurse working conditions and patient safety outcome. Med Care. 2007;45(6):571.
Trinkoff, A, et al. How long and how much are nurses now working? Am J Nurs. 2006;106(4):60.
Statutes
Americans with Disabilities Act (ADA), 42 USC §§121.010-12213 (1990)
Autopsy Consent, Mo Rev Stat, {194.115 (1998)
Emergency Medical Treatment and Active Labor Act (EMTALA), 42 USC §1395 (dd) (1986)
Federal Nursing Home Reform Act from the Omnibus Budget Reconciliation Act of 1987
Good Samaritan Act, IL Compiled Statutes, 745 ILCS 49/ (1997)
Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law No. 104 (1996)
Medical Patient Rights Act, IL Compiled Statutes, 410 ILCS 50 (1994)
Mental Health Parity Act of 1996, 29 USC §1885 (1996)
National Organ Transplant Act, Public Law 98–507 (1984)
New York DNR Statute, NY Public Health Laws §2962 (1988)
Oregon Death with Dignity Act, Ore Rev Stat §§127.800-127.897 (1994)
Patient Self-Determination Act, 42 CFR 417 (1991)
Bouvia v Superior Court, 225 Cal Rptr 297 (1986)
Bragdon v Abbott, 524 U.S. 624 (1998)
Cruzan v Director Missouri Department of Health, 497 U.S. 261 (1990)
Darling v Charleston Community Memorial Hospital, 33 Ill 2d 326 (Ill 1965)
Roe v Wade, 410 U.S. 113 (1973)
Spires v Hospital Corporation of America, 28 U.S.C. §1391(b) Kansas (2006) http://www.kansas.com/multimedia/kansas/archive/pdfs/041106spireshca.pdf