Legal aspects of er nursing

Legal Aspects of ER NursingMary Corcoran RN, BSN, MICN, CNEArrowhead Regional Medical Center

Federal RegulationsCongress proposes laws that,

once enacted, become statues that are controlling throughout the nation

Most of these statues are often accompanied by federal funding◦eg: Medicare, or medicaid

Some are non-funded such as EMTALA and HIPAA (more on those later)

Federal RegulationsFederal regulatory agencies you

will deal with in ER are:◦Centers for Medicare and Medicaid

Services (CMS)- formerly called the Health Care Financing Administration

◦Occupational Safety and Health Administration (OSHA)

◦National Labor Relations Board (NLRB)

◦Food and Drug Administration (FDA)

State RegulationsA few common state regulatory

agencies you will see in ER are:◦State Licensing Boards◦State Health Departments◦Office of the Attorney General◦Child Protective Services

Office of Civil Rights (OCR)OCR requires hospitals to

communicate effectively with patients, family members, and visitors who are deaf or hard of hearing and to take reasonable steps to provide meaningful access to their programs for persons who have limited English proficiency.

OCR“Qualified Interpreter” means a

person who is able to interpret competently, accurately, and impartially both receptively and expressively, using any specialized terminology necessary for effective communication

*use of volunteers or family members as translators may not meet the required standards and may violate privacy laws

Medical Records

Written Records or patient care are kept to meet legal, regulatory, managed care, and billing requirements.

In the event of a malpractice lawsuit, the medical record is also used as evidence of the care provided

Medical RecordsCharting DO’s

◦Write Clearly and Legibly*◦Clearly demonstrate the chronology of

treatment Use “Late Entry” when appropriate

◦Every Entry must be dated, timed and signed

◦Dates must be complete (inc. year)◦Times must be in military time or state

am/pm◦Signatures must include status- RN,LVN etc

Medical RecordsCharting DON’Ts

◦Avoid vague statements such as “MD Aware” State the name of the physician

◦State personal opinion Only state what is ‘observed’

◦Falsify or Make-up information All charting must be accurate and factual

*Remember if you didn’t chart it you didn’t do it*

Electronic Medical Records (EMR)Federal Mandates state that all

hospitals should be charting on an EMR system by 2012

Goals of EMR charting are to ◦Improve pt health status ◦Reduce errors◦Improve pt safety

Check with your specific facility to orient to their specific charting system

HIPAA

Health insurance portability and Accountability Act

HIPAAwhy it exists?Developed in 1996, by congress

to address concerns about healthcare fraud and abuse, the portability or health insurance, and the potential for compromising patient privacy regarding personal medical information though the use of electronic media, and for collecting claims data, and payments

HIPAAwhat does it do?Privacy regulations require that covered entities protect personal health information (PHI) from disclosure

And that PHI access be limited to authorized entities with access restricted to the information necessary

HIPAAWhat happens if it’s violated?“knowingly” obtaining or disclosing PHI

can lead to fines up to $50,000 and 1 year in prison

Using false pretenses to commit offenses can allow for fines up to $100,000 and 5 years in prison

Committing offences with intent to sell, transfer or use PHI for commercial advantage, personal gain, or malicious harm can allow for fines of $250,000 and up to 10years in prison

HIPPAWHEN IS IT OK TO RELEASE INFO?Confusion and misinterpretation of the laws have resulted in the inappropriate withholding of information, it is ok to release information :

◦ When it is required by law for health oversight

◦ Law enforcement◦ Crime reporting◦ Military and veterans

activities◦ National security and

intelligence activities◦ Organ and tissue donation◦ Abuse and neglect reporting◦ Judicial and administrative

proceedings

o Public health surveillance

o Public health and safety

o Public benefits programs

o Treatmento Paymento Healthcare fraud

reportingo Health plan auditso Health care

operationso And certain research

purposes

HIPAA CASESAs of July 2007, the federal

government has secured a few other convictions. An employee at a doctor’s office in Texas, Liz Arlene Ramirez, pled guilty and was convicted of selling confidential medical information belonging to a Federal Bureau of Investigation Special Agent to someone she believed was working for a drug trafficker. She was sentenced to six months in prison.

HIPAA CASES A licensed practical nurse who pled guilty to wrongfully

disclosing a patient’s health information for personal gain faces a maximum penalty of 10 years imprisonment, a $250,000 fine or both. Andrea Smith, LPN, 25, of Trumann, Arkansas, and her husband, Justin Smith, were indicted on federal charges of conspiracy to violate and substantive violations of the Health Insurance Portability and Accountability Act (HIPAA) in December. At the time, Smith worked as a nurse at Northeast Arkansas Clinic, a multispecialty clinic in Jonesboro, Arkansas. Smith accessed a patient’s private medical information on November 28, 2006, according to the indictment. She then shared that information with her husband, who on that same day, called the patient. Justin Smith reportedly told the patient he intended to use the information against the patient in an upcoming legal proceeding.

HIPAA CASESFifteen employees were fired for

improperly accessing medical records of Nadya Suleman, the mother of octuplets, a Kaiser Permanente spokesman said Monday.-CNN

CONSENT

Usually done by physician staff (but witnessed by RN’s) consent should indicate that the pt understands the risks, benefits, and alternatives to proposed treatment

In the absence of consent treatment may be considered assault or battery, even if clinically appropriate

The consent should not have blanks or lack a date, complete forms are important

ConsentChildrenMust be obtained by parents,

legal guardian, or responsible adult (ie school official, or child welfare) acting with parental permission

Exceptions include emancipated minors, mature minors, and emergent situations

ConsentEmancipated minorsCriteria for emancipation:

◦Marital status◦Member of the armed forces◦Living apart from ones parents◦Financial independence◦Pregnancy/parenthood◦Court appointed

ConsentNon-emancipated minorsCertain treatments may be obtained

without consent (differs from state to state) examples:◦HIV/STD testing◦Pregnancy testing◦Vaccination◦Abortion◦Alcohol or chemical dependency ◦Mental health programs

*note that parental notification may violate privacy rights

ConsentImpliedRemoves liability for the

treatment of life, limb, or organ threatening conditions

In an emergency situation incapacitated person or minor may be treated under the assumption that a reasonable person would consent to care

Court orders for treatment may be obtained when time permits

ConsentRefusalParents can not refuse life, limb,

or organ saving treatment on behalf of their children for religious reasons

In 1944 the supreme court stated the parents can make martyrs of themselves but not of their children until they are of legal age to make decisions for themselves

ConsentAdultsAdults unable to make their own

decisions medically (aloc, mental illness, chemical) in absence of an emergency, consent must be obtained from:◦Next of kin◦Legal guardian◦Health care proxy◦Durable power of attorney◦Or court order

AMA (Against Medical Advise)Documentation of an AMA must

include a discussion and the pts understanding of the risks of leaving (“up to and including death”) before the formal discharge.

Pts who “elope”, or leave the ER without notifying the physician or RN, may need to be recalled- specific ER policy will guide you on this situation

Emergency Medical Treatment and Active Labor Act (EMTALA)

Enacted in 1985 the statute was intended to address patient “dumping” or “economic triage” in which uninsured patients were refused care or transferred to other facilities while clinically unstable

EMTALAStates that any patient who “comes to

the emergency department” requesting “examination or treatment for a medical condition” must be provided with “an appropriate medical screening examination” to determine if he/she is suffering from an “emergent medical condition”

If he/she is the hospital must treat the patient until stable or transfer the patient

EMTALATo transfer a patient the following criteria

must be met:◦ The transferring hospital has stabilized the patient

to the extent possible within it’s capacity◦ The patient requires the services of the receiving

facility◦ The medical benefits out-weigh the medical risks of

transfer◦ The risk/benefit analysis is documented in a

medical certificate by a physician◦ The receiving hospital has accepted the transfer

and has the facilities and personnel to provide the necessary treatment

◦ And the patient is escorted in transfer by all required equipment and personnel, as well as treatment records from the sending facility

EMTALATriage- the statute prohibits

examination and treatment delays caused by insurance inquires. As a result many legal authorities advise the ED to triage patients before registration, thus avoiding the appearance of determining payer status before performing treatment

Meaning we are not to provide care based on financial status or ability to pay

EMTALA

Hospitals with “specialized capabilities or facilities” such as burn units, shock-trauma units, NICU, etc may not refuse to accept a transfer if they have the capacity to treat the patient

EMTALA REPORTINGReceiving hospitals must also

report EMTALA violations when receiving patients transferred in unstable condition

EMTALA VIOLATONMonetary penalties very

depending on hospital bed size◦100+beds= $50,000 per violation◦100 or less= $25,000 per violation

A hospitals medicare funding may be revoked regardless of size (totaling millions of dollars in some cases)

EMTALA VIOLATION

Patients may sue hospitals directly for EMTALA violations, which are classified into 2 categories◦Failure to conduct an appropriate

medical screening examination◦Failure to stabilize the emergency

medical condition or provide an appropriate transfer

EMTALA-CAUTIONED’s must carefully screen for

emergency medical conditions on patients that are intoxicated or suffer from psychiatric illness

Intoxication may mask head injuries, which must be ruled out

A psych patient is considered stable for purposes of discharge under EMTALA when he/she is no longer considered to be a threat to him/herself or others

EMTALA Case Discussion & Questions

NegligenceNegligence is the failure to act in

a manner in which a reasonably prudent person would act in same or similar circumstances

Expert witness are generally not required in negligence lawsuits because reasonably intelligent lay-people are able to anticipate the consequences of negligent behavior

Malpractice

Unlike negligence Malpractice does require and expert witness because it pertains to professional standards

MalpracticeIn order to successfully prosecute

a medical or nursing malpractice claim, the plaintiff must establish 4 elements◦Duty◦Breach◦Proximate Cause◦Harm

Elements of Nursing MalpracticeDuty- In a provider-patient relationship the nurse

provides care as her professional standardsBreach of Duty-Departure from the standard of care,

failure to act as reasonably prudent nurse would act in same or similar circumstances

Substantial factor- The nurse’s departure from the standard of care was more likely than not a substantial factor in the patients injury

Proximate cause- The injury would not have occurred but for the departure form the standards of practice

Damages- Compensation for physical, emotional, and/or financial losses, as well as pain and suffering/ punitive damages are allowed in some jurisdictions for particularly egregious willful injuries

Common Nursing Malpractice Cases

Medication ErrorsFailure to Observe and Report

Failure to rescueFalls

What would you do?38yo woman presents to ER at

0345 with c/o cough and chest pain…