Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Legal and Legislative Issues

Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins

Legal and Legislative Issues


The primary purpose of law and legislation is to

protect the patient and the nurse.

The primary purpose of law and legislation is to

protect the patient and the nurse.


Types of LawTypes of Law

• Criminal law

• Civil law

• Administrative law


Two Types of NegligenceTwo Types of Negligence

• Ordinary negligence

• Professional negligence (also called malpractice)


Nurses Are at Increased Legal Liability in the 21st Century Owing to:Nurses Are at Increased Legal Liability in the 21st Century Owing to:

• More authority and independence in decision making.

• Increased legal accountability for decision making.

• Doing more things that used to be in the realm of medical practice.

• Making more money.

• More of them carrying malpractice insurance.


Nurses need malpractice insurance because of their expanded roles, but they also incur a greater likelihood of being sued if they have malpractice insurance, since injured parties will always seek damages from as many individuals with financial resources as possible.

Need for Malpractice InsuranceNeed for Malpractice Insurance


Standard of CareStandard of Care

• A minimal level of expertise that may be delivered to a patient

• The conduct of a reasonably prudent nurse in similar circumstances


MalpracticeMalpractice

The failure of a person with professional training to act in a reasonable and prudent manner—also called professional negligence.


Five Components Necessary for Professional Negligence to OccurFive Components Necessary for Professional Negligence to Occur

• A standard of care is in place. (Nurse-patient relationship)

• There is a failure to meet the standard of care.

• Foreseeability of harm must exist.

• There must be a provable correlation between care and harm.

• Actual patient injury must occur.


Being ignorant is not a justifiable excuse, but not having all the information in a situation may impede one’s ability to foresee harm.

Professional Negligence


Under Ordinary Circumstances:Under Ordinary Circumstances:

The question of whether a nurse acted with reasonable and prudent care is determined by the testimony of expert nursing witnesses.


Being Sued for MalpracticeBeing Sued for Malpractice

• “Just following physician orders” is NOT a defense for malpractice.

• Nurses have an independent responsibility to take appropriate steps to safeguard patients.


Civil Cases (Typically Including Malpractice)Civil Cases (Typically Including Malpractice)

• One individual sues another monetarily to compensate for a perceived loss.

• Burden of proof required to be found guilty is a preponderance of the evidence.


Legal TermsLegal Terms

• Stare decisis

• Liability

• Tort

• Respondeat superior

• Res ipsa loquitur

• Vicarious liability

• Product liability


Stare DecisisStare Decisis

Means “to let the decision stand” (to use precedents).


Respondeat Superior Respondeat Superior

Means “the master is responsible for the acts of his servants.”


Res Ipsa LoquiturRes Ipsa Loquitur

• Means “the thing speaks for itself.”

• Harm is obviously the result of negligence.


Intentional TortsIntentional Torts

• Assault and battery

• False imprisonment

• Invasion of privacy

• Defamation of character


The use of physical restraints has led to claims of false

imprisonment.

The use of physical restraints has led to claims of false

imprisonment.

False Imprisonment


Frequent Causes of Claims Against NursesFrequent Causes of Claims Against Nurses

• Inadequate charting.

• Inadequate communication with physician or supervisors about changes in patient conditions.

• Leaving potentially harmful items within patient reach.

• Unattended patient falls.

• Inaccurate counting of operative instruments and sponges.

• Misidentifying patients for medications, surgeries, tests.


The Board of Registered Nursing Protects Citizens by:The Board of Registered Nursing Protects Citizens by:

• RN licensing

• Monitoring of RN educational standards

• RN continuing education

• Disciplining RNs


RN LicensureRN Licensure

• Boundaries for practice are defined in the Nurse Practice Act of each state.

• Remember that nursing licensure is a privilege and not a right.

• Since the first mandatory Nurse Practice Act passed in New York in 1938, nursing has been legislated, directed, and controlled to some extent.


Nurse Practice ActNurse Practice Act

• The Nurse Practice Act is a legal instrument that defines what the functions of nursing shall be and sets standards for licensure.

• It grants a nurse the authority to carry out those functions.

• Each state has its own Nurse Practice Act, but all must be consistent with provisions or statutes established at the federal level.


NYS Nurse Practice ActNYS Nurse Practice Act

The practice of the profession of nursing as a registered professional nurse is defined as diagnosing and treating human responses to actual or potential health problems through such services as casefinding, health teaching, health counseling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens prescribed by a licensed physician, dentist or other licensed health care provider legally authorized under this title and in accordance with the commissioner's regulations. A nursing regimen shall be consistent with and shall not vary any existing medical regimen.

NYS Education Law Article 139, Nursing


Types of ConsentTypes of Consent

• Informed consent

• Implied consent

• Express consent


Informed ConsentInformed Consent

• Obtained only after the patient receives full disclosure of all pertinent information regarding the surgery or procedure and only if the patient understands the potential benefits and risks associated with doing so.


Implied ConsentImplied Consent

• Situations in which the patient presents needing care, usually an emergency situation and is unable to consent.

• The physician describes the circumstances in the medical record, indicates the patient is unable to sign and certifies that it is an emergency and the procedure must be done to protect the health of the patient. It usually requires that a second physician make an independent concurring judgment and documents that in the record.


Express ConsentExpress Consent

• Nurses seek expressed consent form the patient when witnessing a patient sign a standard consent form. The role of the nurse is to ensure that the patient t has received informed consent and if, not, seek remedy.


Medical RecordsMedical Records

Although the patient owns the information in the medical record, the actual record belongs to the facility that originally made the record and is storing it.


The Patient Self-Determination Act (PSDA) (1991)The Patient Self-Determination Act (PSDA) (1991)

Requires health care organizations that receive federal funding to provide education for staff and patients on issues concerning treatment and end-of-life issues.


Health Insurance Portability and Accountability Act (HIPAA) of 1996Health Insurance Portability and Accountability Act (HIPAA) of 1996

Protects the privacy of health information and improves the portability and continuity of health insurance coverage.


Good Samaritan ImmunityGood Samaritan Immunity

Generally, a nurse is not liable for injury that occurs as a result of emergency treatment, provided that:

• Care is provided at the scene of the emergency.

• The care is not grossly negligent.

Documents

Copyright © 2009 Wolters Kluwer Health | Lippincott Williams & Wilkins Legal and Legislative Issues