Legal Aspects Application to OB/Pediatrics. Tort Laws Tort laws offer remedies to individuals harmed by the unreasonable actions of others. Tort laws.

Legal Aspects Legal Aspects

Application to OB/PediatricsApplication to OB/Pediatrics

Tort LawsTort Laws Tort laws offer remedies to Tort laws offer remedies to

individuals harmed by the individuals harmed by the unreasonable actions of others.unreasonable actions of others.

Tort claims are based on the legal Tort claims are based on the legal premise that individuals are liable for premise that individuals are liable for their actions if they result in injury to their actions if they result in injury to others. others.

There are two major categories of There are two major categories of torts in medical related cases: torts in medical related cases: intentional tortintentional tort and and negligence negligence torttort..

Intentional Torts Intentional Torts Intentional torts are usually offenses committed by a person who Intentional torts are usually offenses committed by a person who

attempts or intends to do harm. For intent to exist, the individual attempts or intends to do harm. For intent to exist, the individual must be aware that injury will result from the act. The RN has must be aware that injury will result from the act. The RN has knowledge that the act or omission of an act will cause injury to knowledge that the act or omission of an act will cause injury to the plaintiff. the plaintiff.

This is different from “intent to injure”, which is a criminal matter. This is different from “intent to injure”, which is a criminal matter. The distinction is “intent to act without regard” as opposed to the The distinction is “intent to act without regard” as opposed to the “intent to injure”. “intent to injure”.

Examples of Intentional Torts:Examples of Intentional Torts:AssaultAssault: Threatening to harm resulting in fear.: Threatening to harm resulting in fear.

BatteryBattery: Unlawful, unprivileged touching of another person.: Unlawful, unprivileged touching of another person.

DeceitDeceit: False statement or deceptive practice done with intent to : False statement or deceptive practice done with intent to injure another.injure another.

False imprisonmentFalse imprisonment: Unlawful restraint of a person, whether in : Unlawful restraint of a person, whether in prison or otherwise.prison or otherwise.

DefamationDefamation: Wrongful act of injuring another’s reputation by making : Wrongful act of injuring another’s reputation by making false false statements.statements.

Invasion of privacyInvasion of privacy: Interference with person’s right to privacy.: Interference with person’s right to privacy.

Infliction of emotional distressInfliction of emotional distress: Intentionally or recklessly causing : Intentionally or recklessly causing emotional or mental suffering to others.emotional or mental suffering to others.

Negligence & MalpracticeNegligence & Malpractice Negligence and malpractice are Negligence and malpractice are

used synonymously in litigation. used synonymously in litigation. The difference is that “malpractice” is The difference is that “malpractice” is

a specific type of negligence. a specific type of negligence. Malpractice implies:Malpractice implies: a violation of a violation of professional dutyprofessional duty or or a failure to meet the standard of care of a failure to meet the standard of care of

other prudent professionals in similar other prudent professionals in similar circumstances orcircumstances or

failure to use the skills and knowledge of failure to use the skills and knowledge of other professionals in similar other professionals in similar circumstances. circumstances.

Nursing NegligenceNursing Negligence The elements of negligence are:The elements of negligence are:

(1) duty(1) duty

(2) breach of duty(2) breach of duty

(3) causation(3) causation

(4) injury and damages. (4) injury and damages.

Without all four elements there will Without all four elements there will be no malpractice claim in a be no malpractice claim in a court of law. court of law.

Negligence Element 1: DutyNegligence Element 1: Duty The existence of a duty of care exists because of the The existence of a duty of care exists because of the

contractual relationship between the patient and the contractual relationship between the patient and the doctor, the hospital, and other health care providers. doctor, the hospital, and other health care providers. When the nurse-patient relationship is established, the When the nurse-patient relationship is established, the nurse has a duty to: nurse has a duty to:

Possess the Possess the nursing knowledgenursing knowledge required of a required of a reasonably competent RN engaged in the same specialty, reasonably competent RN engaged in the same specialty, and and

Possess the Possess the skillsskills required of a reasonably competent required of a reasonably competent RN engaged in the same specialty, and RN engaged in the same specialty, and

Exercise the Exercise the care in the application of that knowledge care in the application of that knowledge and skill and skill to be expected of a reasonably competent RN in to be expected of a reasonably competent RN in the same specialty, and the same specialty, and

Use the Use the nursing judgment in the exercise of that care nursing judgment in the exercise of that care required of a reasonably competent RN in the same required of a reasonably competent RN in the same medical or health care specialty. medical or health care specialty.

Generally, a health care professional does Generally, a health care professional does notnot have a have a duty to someone who is duty to someone who is notnot a patient a patient. .

Negligence Element 2: Breach of Negligence Element 2: Breach of DutyDuty Breach of duty is the failure of the nurse to Breach of duty is the failure of the nurse to

follow the standards of care found in the follow the standards of care found in the hospital’s unit policies and procedures, hospital’s unit policies and procedures, authoritative nursing textbooks, Board of authoritative nursing textbooks, Board of Nursing (BON), and the nursing specialty Nursing (BON), and the nursing specialty association guidelines/standards.association guidelines/standards.

To prove that the RN beached his or her To prove that the RN beached his or her duty expert witnesses and nursing duty expert witnesses and nursing literature are used to show a deviation or literature are used to show a deviation or breach of the standard of care. It involves breach of the standard of care. It involves showing what a reasonably competent showing what a reasonably competent health care professional would have done health care professional would have done in a similar situation. in a similar situation.

Negligence Element 3: Negligence Element 3: DamageDamage

This element relates to the This element relates to the damage that was caused damage that was caused as a as a result of the breach of dutyresult of the breach of duty. This . This injury must an actual physical or injury must an actual physical or mental injury. Even in instances mental injury. Even in instances where there is negligence, where there is negligence, damage suits will not be damage suits will not be successful unless there is successful unless there is provable injury. provable injury.

Negligence Element 4: Causation Negligence Element 4: Causation

The breach in duty must be the cause of The breach in duty must be the cause of harm to the patient. Causation is the key harm to the patient. Causation is the key word. Question: If this act had or had not word. Question: If this act had or had not occurred would the results have been the occurred would the results have been the same? same?

Determination of proximate cause is a Determination of proximate cause is a factual one. This means that the evidence factual one. This means that the evidence must show that the results of misconduct must show that the results of misconduct were reasonably foreseeable. were reasonably foreseeable.

Proof of causation requires the testimony Proof of causation requires the testimony of an expert witness. Most jurors are not of an expert witness. Most jurors are not competent to draw their own conclusions competent to draw their own conclusions from the evidence without the aid of such from the evidence without the aid of such expert testimony. expert testimony.

Successful Malpractice SuitSuccessful Malpractice Suit The recoverable damages are the same as The recoverable damages are the same as

in other personal injury/wrongful death in other personal injury/wrongful death actions caused by the negligence of actions caused by the negligence of another. They include:another. They include:

Actual damages – easily measured such Actual damages – easily measured such as medical expenses and lost wagesas medical expenses and lost wages

Compensatory damages – that what Compensatory damages – that what makes a person whole. Loss of work, grief, makes a person whole. Loss of work, grief, mental anguish, loss of wage earning mental anguish, loss of wage earning capacity, loss of consortium (spouse, capacity, loss of consortium (spouse, parent, child)parent, child)

Punitive/Exemplary damages - to punish, Punitive/Exemplary damages - to punish, gross, negligence, and reckless disregard gross, negligence, and reckless disregard for safetyfor safety

Respondeat Superior:Respondeat Superior: The legal concept of vicarious liability and The legal concept of vicarious liability and

the doctrine of Respondeat Superior occur the doctrine of Respondeat Superior occur when the servant (employee) commits a when the servant (employee) commits a tort or civil wrong tort or civil wrong within the scope of within the scope of employment employment and the master (employer) is and the master (employer) is held liable, although the master may have held liable, although the master may have done nothing wrong. done nothing wrong.

For example, a hospital can be held liable For example, a hospital can be held liable for the negligence of a nurse employed by for the negligence of a nurse employed by the hospital, even if the hospital itself has the hospital, even if the hospital itself has not acted negligently. not acted negligently.

The doctrine of Respondeat Superior The doctrine of Respondeat Superior believes that employers are better able to believes that employers are better able to compensate injured parties than the compensate injured parties than the employees who work for them. Employers employees who work for them. Employers can purchase insurance and spread the can purchase insurance and spread the risk over the entire business. risk over the entire business.

Medical Liability and Medical Liability and Insurance Improvement ActInsurance Improvement Act The state of Texas passed The Medical Liability and The state of Texas passed The Medical Liability and

Insurance Improvement Act in 1977. This act introduced Insurance Improvement Act in 1977. This act introduced changes to malpractice lawsuits including pre-suit changes to malpractice lawsuits including pre-suit notification, the use of expert reports, caps on damage notification, the use of expert reports, caps on damage awards and a 2-year statute of limitations. Noneconomic awards and a 2-year statute of limitations. Noneconomic damages were limited to $500,000, plus cost-of-living damages were limited to $500,000, plus cost-of-living increases. These increases eventually raised the cap to increases. These increases eventually raised the cap to about $1.3 million. (Noneconomic damages include pain about $1.3 million. (Noneconomic damages include pain and suffering, physical impairment, disfigurement, loss of and suffering, physical impairment, disfigurement, loss of consortium or companionship, etc.)consortium or companionship, etc.)

The Texas Supreme Court in a 1988 ruling made the cap The Texas Supreme Court in a 1988 ruling made the cap unconstitutional. The size of awards for noneconomic unconstitutional. The size of awards for noneconomic damages soon shot up, as did insurance premiums. damages soon shot up, as did insurance premiums.

Texas legislated another cap on noneconomic liability Texas legislated another cap on noneconomic liability awards in 2003. $250,000 for physicians and $500,000 for awards in 2003. $250,000 for physicians and $500,000 for institutions. Texans approved the amendment by a 51% institutions. Texans approved the amendment by a 51% to 49% margin. Soon after, liability insurers to 49% margin. Soon after, liability insurers reducedreduced their their premiums by as much as 33%. premiums by as much as 33%.

Statute of LimitationsStatute of Limitations Statute of limitations places a limit on time during Statute of limitations places a limit on time during

which lawsuit can be filed. Medical malpractice which lawsuit can be filed. Medical malpractice lawsuit must be filed within 2 years and 75 days. lawsuit must be filed within 2 years and 75 days.

Exceptions to this are: Exceptions to this are: • FraudFraud: The patient was deliberately misled. : The patient was deliberately misled.

Evidence was covered up. The statue was Evidence was covered up. The statue was abused for physician’s benefit.abused for physician’s benefit.

• Birth-related injuryBirth-related injury. In cases of birth-related . In cases of birth-related injury in which parents did not file lawsuit, the injury in which parents did not file lawsuit, the injured individual may file suit on his/her own injured individual may file suit on his/her own behalf after adulthood is reached. At that time behalf after adulthood is reached. At that time they are sub ject to same statute of limitations. they are sub ject to same statute of limitations. Consequently, medical records of obstetric Consequently, medical records of obstetric patients should not be destroyed until the statute patients should not be destroyed until the statute has run out for the child. has run out for the child.

Litigious Medical Areas: OB Litigious Medical Areas: OB & Pedi!& Pedi! Number of lawsuits filed per specialty:Number of lawsuits filed per specialty:

Obstetrics 20%Obstetrics 20% Internal Medicine 18%Internal Medicine 18% Family Medicine 16%Family Medicine 16% General Surgery 15%General Surgery 15% Orthopedic Surgery 14%Orthopedic Surgery 14% Pediatrics 4%Pediatrics 4%

Obstetrics leads in amount of damages paid by Obstetrics leads in amount of damages paid by specialty followed by pediatrics. Brain damaged specialty followed by pediatrics. Brain damaged infants are the most expensive. The damages infants are the most expensive. The damages awarded to pediatric cases are high because they awarded to pediatric cases are high because they are multiplied over many years and have an are multiplied over many years and have an emotional component. emotional component.

Good Samaritan Act Good Samaritan Act Nurses have immunity for damage caused when providing Nurses have immunity for damage caused when providing emergency care if:emergency care if:Performed during an emergency unless actions are Performed during an emergency unless actions are willful/wanton negligent (therefore only covers ordinary willful/wanton negligent (therefore only covers ordinary negligence); andnegligence); andPerformed without charge/remuneration or with expectation Performed without charge/remuneration or with expectation of remuneration.of remuneration.Does not apply to persons who regularly administer Does not apply to persons who regularly administer emergency care in a hospital emergency room or to admitting emergency care in a hospital emergency room or to admitting physician in case of a health care liability claims.physician in case of a health care liability claims.Unlicensed emergency medical service personnel are not Unlicensed emergency medical service personnel are not liable for emergency care regardless of remuneration unless liable for emergency care regardless of remuneration unless care is grossly negligent.care is grossly negligent.State law and your level of training determine whether State law and your level of training determine whether you're legally protected when using your nursing skills in an you're legally protected when using your nursing skills in an emergency. emergency. TexasTexas Good Samaritan Act (Article 6701d, Vernon's Civil Good Samaritan Act (Article 6701d, Vernon's Civil Statutes ; Chapter 74, Civil Practice and Remedies Code Section 74.001)Statutes ; Chapter 74, Civil Practice and Remedies Code Section 74.001)

Rights of OB/Pedi PatientsRights of OB/Pedi PatientsConfidentialityConfidentiality Minors are considered emancipated for the purposes of Minors are considered emancipated for the purposes of

consenting to medical treatment if he or she is married, has consenting to medical treatment if he or she is married, has obtained court emancipation, served in the armed forces, or is a obtained court emancipation, served in the armed forces, or is a parent.parent.

Adolescents in the labor & delivery area make all decisions for Adolescents in the labor & delivery area make all decisions for themselves and their infant.themselves and their infant.

Legal exceptions to confidentiality include suspected child abuse Legal exceptions to confidentiality include suspected child abuse and the requirement to report certain kinds of sexually and the requirement to report certain kinds of sexually transmitted diseases.transmitted diseases.

Third party access to the minor’s personal health is usually Third party access to the minor’s personal health is usually controlled by the parents, making confidentiality between the controlled by the parents, making confidentiality between the health care provider and the minor difficult.health care provider and the minor difficult.

Virtually every state permits a minor to seek treatment for Virtually every state permits a minor to seek treatment for sexually transmitted diseases without parental consent. Any sexually transmitted diseases without parental consent. Any minor, regardless of age, can receive confidential care and minor, regardless of age, can receive confidential care and treatment related to family planning at a federally funded family treatment related to family planning at a federally funded family planning clinic without parental consent.planning clinic without parental consent.

http://www.cdc.gov/std/stats07/trends.htmhttp://www.cdc.gov/std/stats07/trends.htm

http://www.acog.org/from_home/publications/ethics/co390.pdfhttp://www.acog.org/from_home/publications/ethics/co390.pdf

Rights of OB/Pedi PatientsRights of OB/Pedi PatientsRefusal of TreatmentRefusal of Treatment Patients can refuse care at any timePatients can refuse care at any time Refusal is documented in chart and Refusal is documented in chart and

patient signs AMA form. patient signs AMA form. The wellbeing of the fetus can The wellbeing of the fetus can

become the object of court order.become the object of court order. When parents refuse life-saving care When parents refuse life-saving care

for their children the court may be for their children the court may be petitioned by the healthcare petitioned by the healthcare providers. providers.

Rights of OB/Pedi PatientsRights of OB/Pedi PatientsInformed ConsentInformed Consent Without informed consent assault and Without informed consent assault and

battery charges can resultbattery charges can result Dissent in ages 13-17 can be legally Dissent in ages 13-17 can be legally

bindingbinding Emergency treatment can be given to Emergency treatment can be given to

children without the parent’s consentchildren without the parent’s consent Elements of informed consent:Elements of informed consent:

CompetenceCompetence Full disclosure: purpose, risks, benefits, Full disclosure: purpose, risks, benefits,

other treatment options.other treatment options. Understanding of informationUnderstanding of information Voluntary consentVoluntary consent

Rights of OB/Pedi PatientsRights of OB/Pedi PatientsRight to Live or DieRight to Live or Die The right to die is related to a person's wish that The right to die is related to a person's wish that

caregivers allow death. For example, by not providing life caregivers allow death. For example, by not providing life support or vital medication. support or vital medication.

Living Wills and Do Not Resuscitate orders are legal Living Wills and Do Not Resuscitate orders are legal instruments that make a patient's treatment decisions instruments that make a patient's treatment decisions known ahead of time. This is not considered to be known ahead of time. This is not considered to be euthanasia. Usually these patients make it their wish to euthanasia. Usually these patients make it their wish to receive only palliative care to reduce pain and suffering.receive only palliative care to reduce pain and suffering.

Medical Durable Power of Attorney (or MDPOA) Medical Durable Power of Attorney (or MDPOA) designates an agent to make decisions in case of designates an agent to make decisions in case of incapacity. It is a most powerful instrument that does not incapacity. It is a most powerful instrument that does not require interpretation on the part of health care providers require interpretation on the part of health care providers or even court-appointed guardians. The MDPOA takes or even court-appointed guardians. The MDPOA takes the job of interpretation out of the hands of strangers and the job of interpretation out of the hands of strangers and gives it to a person selected and trusted by the individual.gives it to a person selected and trusted by the individual.

Pedi: “Wrongful Birth” suits based on failure to detect Pedi: “Wrongful Birth” suits based on failure to detect severe abnormalities and “Wrongful Life” suits based on severe abnormalities and “Wrongful Life” suits based on resuscitation of micro-premies. resuscitation of micro-premies.

Rights of OB/Pedi PatientsRights of OB/Pedi PatientsPediatric Patient’s Bill of RightsPediatric Patient’s Bill of Rights To ensure that all aspects of children's healthy care are To ensure that all aspects of children's healthy care are

family-centered, psychosocially sound, and family-centered, psychosocially sound, and developmentally appropriatedevelopmentally appropriate. Health care systems and . Health care systems and practices are most effective when they are planned, practices are most effective when they are planned, coordinated, delivered, and evaluated through meaningful coordinated, delivered, and evaluated through meaningful collaboration between families and professionals of all collaboration between families and professionals of all disciplines. The Pediatric Bill of Rights, reproduced here disciplines. The Pediatric Bill of Rights, reproduced here from the second edition, copyrighted in 1996. from the second edition, copyrighted in 1996.

In this facility you and your family have the right to:In this facility you and your family have the right to: • • Respect and personal dignityRespect and personal dignity • • Care that supports you and your familyCare that supports you and your family • • Information you can understandInformation you can understand • • Quality health careQuality health care • • Emotional supportEmotional support • • Care that respects your need to grow, play and learnCare that respects your need to grow, play and learn • • Make choices and decisionsMake choices and decisions

http://www.goodbeginnings-csmc.org/support/inhospital/PediatricBillRights.pdfhttp://www.goodbeginnings-csmc.org/support/inhospital/PediatricBillRights.pdf

Emergency Medical Treatment Emergency Medical Treatment & Labor Act (EMTALA)& Labor Act (EMTALA) In 1986, Congress enacted the Emergency Medical Treatment & Labor In 1986, Congress enacted the Emergency Medical Treatment & Labor

Act (EMTALA) to ensure public access to emergency services regardless Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. It imposes specific obligations on Medicare-participating of ability to pay. It imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, for an emergency medical condition (EMC), including active labor, regardless of an individual's ability to pay. Hospitals are then required to regardless of an individual's ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.appropriate transfer should be implemented.

Lungsford vs. Board of Lungsford vs. Board of Nurse Examiners Nurse Examiners Lungsford vs. Board of Nurse Lungsford vs. Board of Nurse

Examiners 1983:Examiners 1983: Sent patient with chest pain to a Sent patient with chest pain to a

hospital 24miles away. Did not hospital 24miles away. Did not assess patient. Patient died in route.assess patient. Patient died in route.

Nurses have a legal duty to care for Nurses have a legal duty to care for patient and evaluate statuspatient and evaluate status

Nurses are increasingly being Nurses are increasingly being named as individual defendants and named as individual defendants and are absolutely being held are absolutely being held responsible for their actions!responsible for their actions!

Maintaining ExpertiseMaintaining Expertise

Maintaining Expertise for Maintaining Expertise for Registered NursesRegistered Nurses“… “… prevents malpractice suits”prevents malpractice suits”Continuing EducationContinuing EducationMembership in Prof. Organization. Membership in Prof. Organization. (Association of Women’s Health, Obstetric, (Association of Women’s Health, Obstetric, and Neonatal Nurses (AWHONN) American and Neonatal Nurses (AWHONN) American Nurses Association (ANA))Nurses Association (ANA))Know the Standards for Prof. Nurses in your Know the Standards for Prof. Nurses in your area of practicearea of practiceJournalsJournalsSpecialty Certification (RNC)Specialty Certification (RNC)

Nurse Practice ActNurse Practice Act Legality:Legality:• Is the activity or task within the scope of the RN and Is the activity or task within the scope of the RN and

NOT prohibited by another law or rule?NOT prohibited by another law or rule? Competency:Competency:• Can the nurse perform the activity or task and meet Can the nurse perform the activity or task and meet

the standards of safe nursing practice?the standards of safe nursing practice? Safety:Safety:• Looking at the patient… is the activity/task safe and Looking at the patient… is the activity/task safe and

appropriate to perform at this time?appropriate to perform at this time? Accountability:Accountability:• The RN may perform the activity/task according to The RN may perform the activity/task according to

acceptable and prevailing standards of safe nursing acceptable and prevailing standards of safe nursing care and prepare to accept accountability for his/her care and prepare to accept accountability for his/her nursing actions.nursing actions.

http://www.bne.state.tx.us/nursinglaw/npa.htmlhttp://www.bne.state.tx.us/nursinglaw/npa.html

http://www.bne.state.tx.us/http://www.bne.state.tx.us/nursinglaw/pdfs/nursinglaw/pdfs/npa2007.pdfnpa2007.pdfThe Nurse Practice Act – A “must-read” document for The Nurse Practice Act – A “must-read” document for every nurse. every nurse.

It also covers topics such as: It also covers topics such as:

A nurse shall report to the board if the nurse has A nurse shall report to the board if the nurse has reasonable cause to suspect that: …reasonable cause to suspect that: …

Duty of Liability Insurer to Report.Duty of Liability Insurer to Report.

The board shall suspend a nurse’s license or refuse The board shall suspend a nurse’s license or refuse to issue a license to an applicant on proof that the to issue a license to an applicant on proof that the nurse or applicant has been initially convicted of: ….nurse or applicant has been initially convicted of: ….

Legal Aspects: AbortionLegal Aspects: Abortion There have been 3 major abortion laws passed in Texas since There have been 3 major abortion laws passed in Texas since

Roe v Wade. Roe v Wade. In 1987 3rd trimester abortions were banned, thus closing a In 1987 3rd trimester abortions were banned, thus closing a

loophole left by this historic decision. loophole left by this historic decision. The next step after Roe v Wade was the establishment of The next step after Roe v Wade was the establishment of

legislation in 1977 that protected legislation in 1977 that protected the right of medical personnel the right of medical personnel who refused to participate in abortion procedures or those who who refused to participate in abortion procedures or those who did participate.did participate. Private hospitals or health care facilities were not Private hospitals or health care facilities were not legally obligated to perform abortions unless the life of the legally obligated to perform abortions unless the life of the mother was immediately threatened. mother was immediately threatened.

Following in 1985 the Texas Abortion Facility Reporting and Following in 1985 the Texas Abortion Facility Reporting and Licensing Act stipulated that all abortion facilities must report the Licensing Act stipulated that all abortion facilities must report the following information about each patient in a yearly reportfollowing information about each patient in a yearly report : : the the license status of the facility; patient's year of birth, race, marital status, license status of the facility; patient's year of birth, race, marital status, state and country of residence; type of abortion procedure; date abortion state and country of residence; type of abortion procedure; date abortion was performed; post-operative status of patient and cause of death when was performed; post-operative status of patient and cause of death when applicable; period of gestation at time of procedure; date of patient's last applicable; period of gestation at time of procedure; date of patient's last menstrual cycle; number of previous live births to patient; number of menstrual cycle; number of previous live births to patient; number of previous abortions performed on patient. previous abortions performed on patient.

All abortion facilities must be licensed. This includes physician's All abortion facilities must be licensed. This includes physician's offices where 51% or more of the abortions take place.offices where 51% or more of the abortions take place.

Abortion Stats in TexasAbortion Stats in Texas The Centers for Disease Control (CDC) reports that The Centers for Disease Control (CDC) reports that

81,883 abortions took place in Texas during 2006.81,883 abortions took place in Texas during 2006. Out of the 47 states that reported to the CDC, Out of the 47 states that reported to the CDC,

Texas's 2006 abortion total places it at #3 on the Texas's 2006 abortion total places it at #3 on the list. list.

The Centers for Disease Control (CDC) reports that The Centers for Disease Control (CDC) reports that the 2006 abortion rate for Texas was 16.3. The the 2006 abortion rate for Texas was 16.3. The abortion rate is the number of abortions per 1,000 abortion rate is the number of abortions per 1,000 women aged 15-44 years.women aged 15-44 years.

Abortions in Texas by gestational age:Abortions in Texas by gestational age:

≤8 weeks

9-10 weeks

11-12 weeks

13-15 weeks

16-20 weeks

≥21 weeks

Unknown

70.9% 13.8% 7% 6.5% 1.2% 0.7% 0%

Legal Aspects: Early DischargeLegal Aspects: Early Discharge Sooner than 48 hrs after vaginal deliverySooner than 48 hrs after vaginal delivery Minimal recovery after surgeryMinimal recovery after surgery Are new mothers able to care for themselves and their infants?Are new mothers able to care for themselves and their infants?• ExhaustionExhaustion• Complications (maternal & neonatal)Complications (maternal & neonatal)• Family supportFamily support• Primary caregiverPrimary caregiver

Solutions:Solutions: TeachTeach patients during pregnancy instead of at discharge patients during pregnancy instead of at discharge TeachTeach parents about post operative care before the child’s parents about post operative care before the child’s

surgery.surgery. Home visits and phone calls after early dischargeHome visits and phone calls after early discharge Return visits for nursing assessment Return visits for nursing assessment

Legal Aspects: postdate pregnancyLegal Aspects: postdate pregnancy

Increased risk with postdate pregnancy = increased liability for Increased risk with postdate pregnancy = increased liability for obstetricianobstetrician

What if the OB wants to induce and the patient refuses?What if the OB wants to induce and the patient refuses?

WILKES-BARRE - A judge late Wednesday afternoon gave a local hospital permission WILKES-BARRE - A judge late Wednesday afternoon gave a local hospital permission to force a woman to deliver a baby via Caesarean section against her will.to force a woman to deliver a baby via Caesarean section against her will.

Doctors warned the expectant mother that not having a C-section could kill her and/or Doctors warned the expectant mother that not having a C-section could kill her and/or her child. But against doctor's orders, Amber Marlowe left the hospital. Hours later, her child. But against doctor's orders, Amber Marlowe left the hospital. Hours later, Wilkes-Barre General Hospital received legal permission to become guardian of the Wilkes-Barre General Hospital received legal permission to become guardian of the fetus and perform the C-section if Marlowe returned to the hospital.fetus and perform the C-section if Marlowe returned to the hospital.

Marlowe never returned. She gave birth vaginally Thursday morning at Moses Taylor Marlowe never returned. She gave birth vaginally Thursday morning at Moses Taylor Hospital in Scranton to a baby girl, her and her husband's seventh child. Court papers Hospital in Scranton to a baby girl, her and her husband's seventh child. Court papers said it was her seventh pregnancy in seven or eight years. The Marlowes said the said it was her seventh pregnancy in seven or eight years. The Marlowes said the mother and infant are healthy.mother and infant are healthy.

Attorneys for General Hospital sought the highly unusual action through a lawsuit Attorneys for General Hospital sought the highly unusual action through a lawsuit because its doctors said Marlowe, who went to the hospital Tuesday night, adamantly because its doctors said Marlowe, who went to the hospital Tuesday night, adamantly refused to deliver the fetus by C-section because of "religious" beliefs.refused to deliver the fetus by C-section because of "religious" beliefs.

Her refusal came after warnings by doctors that a vaginal delivery could result in death Her refusal came after warnings by doctors that a vaginal delivery could result in death for the fetus because it was expected to weigh 13 pounds. They also were concerned for the fetus because it was expected to weigh 13 pounds. They also were concerned with complications Marlowe had in other pregnancies.with complications Marlowe had in other pregnancies.

The hospital was acting to "preserve and protect the rights of (the fetus) regarding its The hospital was acting to "preserve and protect the rights of (the fetus) regarding its health and survival," the hospital's attorney, Mary G. Cummings, wrote in court papers.health and survival," the hospital's attorney, Mary G. Cummings, wrote in court papers.

Luzerne County Court of Common Pleas Judge Michael Conahan late Wednesday Luzerne County Court of Common Pleas Judge Michael Conahan late Wednesday afternoon approved the request.afternoon approved the request.

Nursing LiabilityNursing Liability

Recurring Causes: Recurring Causes: • Errors in administration of treatments and medicationsErrors in administration of treatments and medications• Failure to adequately supervise patients – patient fallsFailure to adequately supervise patients – patient falls• Foreign objects left in placeForeign objects left in place• Burns to patientsBurns to patients• Failure to observe and report changes in a patient’s conditionFailure to observe and report changes in a patient’s condition

Mistaken identity of patientMistaken identity of patient Use of defective equipmentUse of defective equipment Lack of adherence to aseptic Lack of adherence to aseptic

technique – preventable infectionstechnique – preventable infections Improper orders – duty to deferImproper orders – duty to defer Incomplete patient history - not Incomplete patient history - not

noting patient allergiesnoting patient allergies. .

Charting tipsCharting tips Check that you have the correct chart before you Check that you have the correct chart before you

begin writing.begin writing. Make sure your documentation reflects the nursing Make sure your documentation reflects the nursing

process and your professional capabilities.process and your professional capabilities. Write legibly, initial and sign where indicatedWrite legibly, initial and sign where indicated Chart the time you gave a medication, the Chart the time you gave a medication, the

administration route, and the patient's response.administration route, and the patient's response. Chart precautions or preventive measures used, Chart precautions or preventive measures used,

such as bed rails.such as bed rails. Record each phone call to a physician, including Record each phone call to a physician, including

the exact time, message, and response.the exact time, message, and response. Chart patient care at the time you provide it.Chart patient care at the time you provide it. If you remember an important point after you've If you remember an important point after you've

completed your documentation, chart the completed your documentation, chart the information with a notation that it's a "late entry." information with a notation that it's a "late entry." Include the date and time of the late entry.Include the date and time of the late entry.

Document often enough to tell the whole story.Document often enough to tell the whole story.

Attorney Charting Tips: Facts OnlyAttorney Charting Tips: Facts Only Do not chart subjective opinions, just facts- Do not chart subjective opinions, just facts-

document only what you observe with all document only what you observe with all your senses. Be specific: avoid being your senses. Be specific: avoid being general or vaguegeneral or vague. .

Example: A pediatric patient pulled out the IV but the action was not Example: A pediatric patient pulled out the IV but the action was not witnessed. Chart: “Found pt. with arm board at side and bed linens witnessed. Chart: “Found pt. with arm board at side and bed linens covered with blood. IV line and IV catheter intact but hanging free on IV covered with blood. IV line and IV catheter intact but hanging free on IV pole. No active bleeding from IV site noted” pole. No active bleeding from IV site noted”

Subjective opinions leave the nurse open Subjective opinions leave the nurse open to credibility questions. A plaintiff attorney’s to credibility questions. A plaintiff attorney’s best case scenario is when a nurse charts best case scenario is when a nurse charts with the mindset of criticizing preceding with the mindset of criticizing preceding shifts or making disparaging or hurtful shifts or making disparaging or hurtful remarks regarding the institution and its remarks regarding the institution and its policies. This nurse may be construed as a policies. This nurse may be construed as a disgruntled employee and a witness who disgruntled employee and a witness who lacks credibility. lacks credibility.

Attorney Charting Tips: Bias?Attorney Charting Tips: Bias? Eliminate bias. Don't use language that suggests a Eliminate bias. Don't use language that suggests a

negative attitude toward the patient, such as negative attitude toward the patient, such as obstinate, drunk, obnoxious, bizarre, or abusive. obstinate, drunk, obnoxious, bizarre, or abusive. The same goes for what you say out loud and then The same goes for what you say out loud and then document. Disparaging remarks, accusations, document. Disparaging remarks, accusations, arguments, or name-calling could lead to a arguments, or name-calling could lead to a defamation of character or libel suit. In court, the defamation of character or libel suit. In court, the plaintiff's lawyer might say, "This nurse called my plaintiff's lawyer might say, "This nurse called my client `rude, difficult, and uncooperative.' It's right client `rude, difficult, and uncooperative.' It's right here in her own handwriting! No wonder she didn't here in her own handwriting! No wonder she didn't take good care of him." Remember, the patient has take good care of him." Remember, the patient has a legal right to see his chart. If he spots a a legal right to see his chart. If he spots a derogatory reference, he'll be angry and more likely derogatory reference, he'll be angry and more likely to sue. to sue.

If a patient is difficult or uncooperative, document If a patient is difficult or uncooperative, document the behavior objectively and let the jurors draw their the behavior objectively and let the jurors draw their own conclusions. own conclusions.

Attorney Charting Tips: Watch Attorney Charting Tips: Watch your language!your language! Use neutral language. Using inappropriate Use neutral language. Using inappropriate

comments or language is unprofessional comments or language is unprofessional and can cause legal problems. In one and can cause legal problems. In one case, an elderly patient developed case, an elderly patient developed pressure ulcers, and his family complained pressure ulcers, and his family complained that he wasn't getting adequate care. that he wasn't getting adequate care.

The patient later died, probably of natural The patient later died, probably of natural causes. Because his relatives were causes. Because his relatives were dissatisfied with the patient's care, they dissatisfied with the patient's care, they sued. The insurance company questioned sued. The insurance company questioned the abbreviation PBBB, which the physician the abbreviation PBBB, which the physician had written in the chart under prognosis. had written in the chart under prognosis. After learning that this stood for "pine box After learning that this stood for "pine box by bedside," the jury awarded the family a by bedside," the jury awarded the family a significant sum. significant sum.

Attorney Charting Tips: AccuracyAttorney Charting Tips: Accuracy Be accurate: being inaccurate diminishes the strength of Be accurate: being inaccurate diminishes the strength of

your case. Jurors do not look kindly upon errors and view your case. Jurors do not look kindly upon errors and view it as sloppiness on the part of the licensed person. If you it as sloppiness on the part of the licensed person. If you have poor handwriting print in block letters. This will have poor handwriting print in block letters. This will enhance the readability of your documentation. Do not enhance the readability of your documentation. Do not document entries that are boilerplate language such as: document entries that are boilerplate language such as: “call bell within reach, verbalizes no complaints” when the “call bell within reach, verbalizes no complaints” when the patient is in an obtunded or comatose state! This merely patient is in an obtunded or comatose state! This merely provides fuel to the fire and demonstrates that the nurse provides fuel to the fire and demonstrates that the nurse was sloppy and documented generic boilerplate was sloppy and documented generic boilerplate language. It is obvious that the patient was not properly language. It is obvious that the patient was not properly assessed. assessed.

Do not obliterate an entry. The obliteration of any entry Do not obliterate an entry. The obliteration of any entry will only provide more ammunition for the plaintiff will only provide more ammunition for the plaintiff attorney. The altering of the chart in any manner is usually attorney. The altering of the chart in any manner is usually construed in favor of the plaintiff/patient who is bringing construed in favor of the plaintiff/patient who is bringing the lawsuit. In some instances this may be considered the lawsuit. In some instances this may be considered fraud and will subject the institution and you to civil and fraud and will subject the institution and you to civil and criminal penaltiescriminal penalties

Attorney Charting Tips: Attorney Charting Tips: Assess and CommunicateAssess and Communicate If you observe changes in the patient, do not just If you observe changes in the patient, do not just

chart them, but also notify the physician. The nurse chart them, but also notify the physician. The nurse can be exposed to litigation when a physician is not can be exposed to litigation when a physician is not alerted of changes. Document your conversation alerted of changes. Document your conversation with the physician verbatim. Do not chart: “Called with the physician verbatim. Do not chart: “Called Dr. Jones and reported VS”. You should chart: “Dr. Dr. Jones and reported VS”. You should chart: “Dr. Jones notified by phone of BP 190/101. Telephone Jones notified by phone of BP 190/101. Telephone order for (name of medication) received”. If you are order for (name of medication) received”. If you are dealing with an irate or unresponsive physician dealing with an irate or unresponsive physician follow the chain of command immediately. follow the chain of command immediately.

If you observe changes in the patient, document If you observe changes in the patient, document them clearly. Then, document your actions. What them clearly. Then, document your actions. What are you doing in response to the patient’s changing are you doing in response to the patient’s changing needs? Then, as appropriate, re-assess and needs? Then, as appropriate, re-assess and document your follow-up. What are the results of document your follow-up. What are the results of your actions? Assess, provide care, re-assess… your actions? Assess, provide care, re-assess… this is ongoing! this is ongoing!

SummarySummary

One of the areas where One of the areas where nurses are most nurses are most criticized is criticized is documentation and documentation and charting.charting.

One of the greatest One of the greatest areas of areas of negligencenegligence is is not notifying physician; not notifying physician; keeping them informed keeping them informed of changes in a timely of changes in a timely manner.manner.

ReferencesReferences

American College of Legal American College of Legal Medicine (1995) Legal Medicine Medicine (1995) Legal Medicine (3rd Ed.) St. Louis: Mosby. (3rd Ed.) St. Louis: Mosby.

Nurse Legal Handbook (4th Ed.) Nurse Legal Handbook (4th Ed.) (2000) Springhouse, PA: (2000) Springhouse, PA: Springhouse Corporation Springhouse Corporation