Chapter 8 Legal Accountabilities and Responsibilities.

Chapter 8

Legal Accountabilities and Responsibilities

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Legal Foundations of Nursing

The word law is derived from an Anglo-Saxon term meaning that which is laid down.

The two types of law are public law and civil law.

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Sources of Law

Public Law deals with an individual’s relationship to the state.

Civil Law deals with relations between individuals.

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Public law

Three sources of public law at the federal and state levels are:• Constitutional Law• Administrative Law• Criminal Law

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Public Law

Constitutional law defines and limits the powers of government.

Administrative law enforces the statutory laws passed by the legislature.

Criminal law refers to acts or offenses against the welfare or safety of the public.

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Civil Law

Contract Law Tort Law Protective/Reporting Law

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Contract Law

The enforcement of agreements among private individuals requires three essential elements:• Promise(s) between two legally competent

individuals • Mutual understanding of terms and

obligations• Compensation for lawful actions performed

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Contract Law

Written Contract (formal contract) Expressed Contract Implied Contract

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Tort Law

The enforcement of duties and rights among individuals independent of contractual agreements.

Tort Law is a civil wrong committed on a person or property by• Direct invasion of a legal right of the person• Infraction of a public duty• Violation of a private obligation.

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Tort Liabilities

Unintentional • Negligence, malpractice

Intentional• Assault and battery, false imprisonment,

invasion of privacy, defamation, fraud

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The Judicial Process

Judicial Law (judge-made law) • Equity acts in accordance with the spirit, not

the letter, of the law.• Equity plays an important role in the

American judicial system.• At various levels, courts in the United States

must adhere to the interpretations and procedures of higher courts.

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Legal Liability in Nursing

Liability is an obligation one has incurred or might incur through any act or failure to act.

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Negligence and Malpractice

Malpractice refers to a professional person’s wrongful conduct, improper discharge of professional duties, or failure to meet the standards of acceptable care, resulting in harm to another person.

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Negligence and Malpractice

Negligence (breach of duty) is the failure of an individual to provide care that a reasonable person would ordinarily use in a similar circumstance.• When a nurse commits a negligent act that

results in injury, it is known as malpractice.

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Negligence and Malpractice

Proof of liability depends on four elements:• Duty• Breach of duty• Injury• Causation

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Elements of a Malpractice Suit

Defendant (person being sued) Plaintiff (party who initiates a lawsuit) Expert Witness

• Member of the same profession as party being sued who is qualified to testify to the expected behaviors

Testimony • Written or verbal evidence by expert witness

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Negligence and Malpractice

Informed Consent • The client understands the reason for the

proposed intervention and its benefits and risks, and agrees to the treatment by signing a consent form.

• Consent forms must be obtained for all invasive (accessing body tissues, organs, or cavities through some type of instrumentation) procedures.

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Informed Consent

The health care provider can not coerce the client to sign the consent.

Parental or guardian consent should be obtained before treatment of a minor.

Exceptions to this ruling:• Emergency• Special circumstances• Legal authorization has been obtained

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Informed Consent

The physician cannot delegate the responsibility for obtaining informed consent.

The nurse could be held liable on a battery claim if the nurse knows the client has not given informed consent.

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Informed Consent

This nurse is witnessing the signing of a consent form after the physician has fully informed the client about the proposed treatment.

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Informed Consent

The nurse may witness a client’s signing of a consent form or may be responsible for making sure the signed form is in the chart.

When the nurse discovers circumstances that render a signed consent form invalid, the nurse should notify the physician.

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Negligence and Malpractice

Assault and Battery • Assault is a stated intent to touch a person

in an offensive, insulting, or physically intimidating manner.

• Battery is the touching of another person without the person’s consent.

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Negligence and Malpractice

False Imprisonment • Occurs when clients are wrongfully made to

believe they cannot leave a place.• Includes the use of physical or chemical

restraints.

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Negligence and Malpractice

Restraints or Seclusion • The Omnibus Budget Reconciliation Act

(OBRA, 1987) outlines the rights of the client and the responsibilities of the health care provider.

• Restraints are legal only if they are necessary to protect the client or others from harm.

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Restraints or Seclusion

The law mandates that the use of restraints or seclusion must have a physician’s order.

In an emergency situation when a client becomes violent and is in danger of harming self or others, the nurse may apply restraints and then immediately obtain an order from the physician.

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Restraints or Seclusion

If a competent client refuses to follow orders and the nurse uses restraints, the nurse can be charged with false imprisonment and/or assault and battery.

The nurse is legally accountable for the client in restraints or seclusion.

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Negligence and Malpractice

Privacy and Confidentiality • Nurses are accountable for respecting the

client’s right to privacy.• Privilege doctrine guarantees that no one

will reveal confidential information without the client’s permission.

• Example: Clients positive for HIV may choose to withhold this information from their family.

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Negligence and Malpractice

Privacy and Confidentiality • Nurses must obtain the client’s permission

before disclosing any information regarding the client, going through the client’s personal belongings, performing procedures, or photographing the client.

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Negligence and Malpractice

Defamation occurs when information that causes damage to someone else’s reputation is communicated to a third party. • Libel is written defamation.• Slander is verbal defamation.

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Negligence and Malpractice

Fraud results from a deliberate deception intended to produce unlawful gain. Fraud includes:• Illegal billing practices• Obtaining and using false credentials• Falsifying medical records.

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Fraud

The Federal False Claims Act protects an employee who experiences any type of retaliation for reporting fraudulent practices.

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Negligence and Malpractice

Unprofessional Conduct • Breach in client confidentiality• Failure to use sufficient knowledge, skills, or

nursing judgment• Physical or verbal abuse of a client• Knowingly delegating nursing tasks that

place the client at risk for injury to unlicensed personnel

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Unprofessional Conduct

Failure to accurately maintain a record for each client

Falsifying a client’s record Leaving a nursing assignment without

notifying appropriate personnel

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Negligence and Malpractice

Controlled Substances • Federal and stage laws regulate security

and access to controlled substances.- Narcotics- Depressants- Stimulants- Hallucinogens

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Controlled Substances

An impaired nurse is habitually intemperate or is addicted to the use of alcohol or habit-forming drugs.

If a nurse suspects a co-worker is abusing chemicals, the nurse has a duty to report the individual to nursing administration in a confidential manner. This person, in turn, notifies the board of nursing.

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Negligence and Malpractice

Safety• Failure to monitor client status• Medication errors• Client falls• Use of restraints

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Negligence and Malpractice

Understaffing • Failure of a facility to provide a sufficient

number of professional staff to meet client needs.

• Written staffing guidelines must comply with the standards of the Joint Commission for the Accreditation of Healthcare Organizations.

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Understaffing

Floating is reassignment to work on an unfamiliar unit.

Floating is an acceptable legal practice. Legally, nurses cannot refuse to float. Nurses who are required to float should

receive orientation before reassignment.

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Understaffing

Mandatory Overtime • Work hours imposed on an employee over

an agreed upon, predetermined work schedule.

• When a nurse is forced to work mandatory overtime, his professional judgment may be impaired.

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Negligence and Malpractice

Nurses are obligated to execute prescribed orders unless the orders would result in client harm.

The nurse has a legal responsibility to the client to ensure that the order is clear and appropriate to the client’s treatment.

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Legal Responsibilities and Roles of Professional Nurses

Provider of Service Expert Witness Forensic Specialist Reporting Responsibilities

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Forensic Specialist

Treats Incarcerated Clients Investigates Trauma Cases Serves as Expert Witness in Court

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Reporting Responsibilities

Reporting statutes vary among states and provinces.

Criminal acts of rape and sexual assault must also be reported in states and provinces.

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Legal Responsibilities of Students

Nursing students must act as reasonably prudent persons, equivalent with education and experience, when performing nursing duties.

When employed as caregivers, nursing students must perform only those tasks that they are competent to perform, as stated in their job description.

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Legal Safeguards for Nursing Practice

Institutional Policies Whistle-blowing in Health Care Professional Liability Insurance Interstate Nursing Practice Risk Management Programs Incident Report Client Education

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Institutional Policies

Nursing students and registered nurses are obligated to know the policies and follow the procedures/protocols that flow from policy.

Courts generally rule against nurses who violate policies.

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Whistle-Blowing in Health Care

Reporting of serious wrongdoing or danger created or concealed within the organization.

“Moral action of last resort.” After unsuccessful attempts to right a

wrong. Some states have passed legislation

protecting nurses from retaliation.

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Professional Liability Insurance

Offers personal protection against malpractice suits.

Group liability insurance is available through professional nursing organizations.

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Interstate Nursing Practice

Nurse Licensure Compact• Agreement among states to mutually

recognize each other’s licenses• Permits interstate nursing practice to occur

New issues arising from interstate nursing practice will have to be dealt with over time.

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Risk Management Programs

Decrease the agency’s risk of financial loss.

Involve systematic reporting of incidents or unusual occurrences.

Required by the Department of Health and Human Services, accrediting bodies, and liability insurance carriers.

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Incident Report

Filed when an incident occurs that could or did cause client harm.

Requires only that facts surrounding the incident are stated.

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Client Education

The nurse must provide the client with a thorough understanding of the treatment plan.

The nurse must document the degree of learning.

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Legislation Affecting Nursing

Advance Directives Abortion The Americans with Disabilities Act Good Samaritan Acts National Practitioner Data Bank Occupational Safety and Health Act

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Advance Directives

Patient Self-Determination Act of 1990 Three legal instruments recognized

under state law related to provision of care when the individual is incapacitated:• Living Will • Durable Power of Attorney• Advance Care Medical Directive

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Abortion

Roe v. Wade increased the safety and availability of abortions in the United States.

Requirement of reporting of abortions performed and other information varies among states.

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The Americans with Disabilities Act (ADA)

Prohibits discrimination on the basis of disability.

Defines a person with a disability as having a physical or mental impairment that substantially limits one or more of the major life activities.

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Good Samaritan Acts

Laws that provide protection and ensure immunity from civil liability to health care providers assisting at the scene of an emergency.

Not all states and provinces have Good Samaritan Acts.

Acts vary in coverage.

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National Practitioner Data Bank

Clearing-house for information on unsafe practitioners

Provides immunity for reporting incompetent peers

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Occupational Safety and Health Act (OSHA)

Ensures safe work environments for Americans

Decreases work-related injuries Develops standards for safety from work-

related exposure to blood-borne contaminants

Employers are fined if they violate OSHA.

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Legal Issues Related to Death

Do Not Resuscitate Orders Euthanasia Wills Pronouncement of Death Care of the Deceased Organ Donation Autopsies

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Do Not Resuscitate Orders

There should be knowledgeable concurrence by the physician and the client’s family or guardian about any actions to prolong the client’s life.

A written do not resuscitate (DNR) order provides an exception to the universal standing order to resuscitate.

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Euthanasia

An intentional action or lack of action causing the merciful death of someone suffering from a terminal illness or incurable condition.

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Wills

Legal Requirements for Written and Oral Wills• Format of wills • Number of witnesses needed• Who can be a witness• What makes a will valid or invalid• How to contest a will

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Pronouncement of Death

Various Definitions of Death• Absence of awareness of external stimuli• Lack of movement or spontaneous breathing• Absent reflexes• Flat brain wave repeated twice in 24 hours• The Uniform Definition of Brain Death

requires irreversible cessation of all functioning of the brain.

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Care of the Deceased

The nurse is obligated to treat the deceased with respect and dignity.

The nurse should prepare the body for removal to the morgue in accordance with agency policies.

The nurse is responsible for properly identifying the body.

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Organ Donation

All 50 states have adopted the Uniform Anatomical Gift Act for cadaveric organ donation.

Consent for organ donation requires the collaborative efforts of the health care team to ensure timely removal of the organs.

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Autopsies

Performed to determine the cause of death.

Autopsy reports are used in cases of suspicious death or the presence of communicable disease.

The nurse is responsible for ensuring that all documentation is in place before releasing the body for autopsy.