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Chapter

Legal Aspects of Nursing

Kozier & Erb's Fundamentals of Nursing, 8e Berman, Snyder, Kozier, Erb Copyright 2008 by Pearson Education, Inc.

Question 1
A primary care providers orders indicate that a surgical consent form needs to be signed. Since the nurse was not present when the primary care provider discussed the surgical procedure, which statement best illustrates the nurse fulfilling the client advocate role? The doctor has asked that you sign this consent form. Do you have any questions about the procedure? What were you told about the procedure you are going to have? Remember that you can change your mind and cancel the procedure.
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1.
2. 3. 4.

Rationales 1
1. Nurse is not assessing if client has received enough information to give consent. 2. Is a way to assess clients knowledge but not the best way because it is a closed-ended question. 3. Correct. The nurse is assessing the clients level of knowledge as a result of the discussion with the primary care provider. 4. While this statement is true, the nurse should first verify if the client received enough information to give consent.
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Question 2
Although the client refused the procedure, the nurse insisted and inserted a nasogastric tube in the right nostril. The administrator of the hospital decides to settle the lawsuit because the nurse is most likely to be found guilty of which of the following? An unintentional tort. Assault. Invasion of privacy. Battery.
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1. 2. 3. 4.

Rationales 2
1. This situation is an intentional tort. 2. Assault is the attempt or threat to touch another person unjustifiably or without permission. 3. Invasion of privacy injures the feelings of the person. 4. Correct. Battery is the willful touching of a person without permission.
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Question 3
A nursing student is employed and working as an unlicensed assistive personnel (UAP) on a busy surgical unit. The nurses know that the UAP is enrolled in a nursing program and will be graduating soon. A nurse asks the UAP if he has performed a urinary catheterization on clients while in the nursing program. When the UAP says Yes, the nurse asks him to help her out by doing a urinary catheterization on a postsurgical client. What is the best response by the UAP? 1. 2. 3. 4. Let me get permission from the client first. Sure. Which client is it? I cant do it unless you supervise me. I cant do it. Is there something else I can help you with?

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Rationales 3
1. 2. 3. 4. Incorrect. Incorrect. Incorrect. Correct. A sterile, invasive procedure which places the client at significant risk for infection is generally outside the scope of practice of a UAP. Even though the UAP is a nursing student, the agency job description should be followed. The job description is the standard of care in this situation.
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Question 4
The nurses partner/spouse undergoes exploratory surgery at the hospital where the nurse is employed. Which of the following practices is most appropriate? Because the nurse is an employee, access to the chart is allowed. The relationship with the client provides the nurse special access to the chart. Access to the chart requires a signed release form. The nurse can ask the surgeon to discuss the outcome of the surgery.

1.

2.
3. 4.

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Rationales 4
1. The nurse has open access to information regarding assigned clients only. 2. The nurse has open access to information regarding assigned clients only. 3. Correct. The only person entitled to information without written consent is the client and those providing direct care. 4. The nurse has open access to information regarding assigned clients only.
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Question 5
Which of the following nursing actions could result in malpractice? Learns about a new piece of equipment. Forgets to complete the assessment of a client. Follows up on clients complaints. Charts clients drug allergies. Questions physician about an illegible order.
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1. 2. 3. 4. 5.

Rationales 5
1. Meets the standards of practice. 2. Correct. Standards of practice requires a complete assessment. 3. Meets the standards of practice. 4. Meets the standards of practice. 5. Meets the standards of practice.

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Sources of Law
Sources of Law

Constitution

Legislation (Statutes)

Administrative Law

Common Law

Nurse Practice Acts

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Common Law
Laws evolving from court decisions Stare decisis to stand by things decided or following precedent; to arrive at a ruling in a particular case, the court applies the same rules and principles applied in previous, similar cases

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Types of Laws
1. Public Law body of law that deals with relationships between individuals and government and governmental agencies
Criminal Law deals with actions against the safety and welfare of the public (homicide, manslaughter, and theft) 2. Private Law or Civil Law body of law that deals with relationships among private individuals Contract Law and Tort Law
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Selected Categories of Laws Affecting Nurses


Category
Constitutional Statutory Criminal

Examples
Due process Equal protection Nurse practice acts Good Samaritan acts Homicide, manslaughter Active euthanasia Sexual assault Nurse and client Nurse and employer Negligence/malpractice Libel and slander Invasion of privacy
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Contracts Torts

Civil Judicial Process


Complaint document filed by person (plaintiff), who claims legal rights infringed on by defendants Answer written response Discovery pretrial activities to obtain all facts Trial presented to judge Decision jury renders verdict
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Nurse Practice Acts (NPA)


Define and describe scope of nursing practice Control practice through licensing Where can you find our states Nurse Practice Act?

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Standards of Care

Internal Standards Job description Education Expertise Institutional policies and procedures

External Standards Nurse practice acts Professional organizations Nursing specialtypractice organizations Federal organizations and federal guidelines

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Licensure Models
State-based
Separate license required for each state Challenged by changes in health care delivery

Mutual recognition
New regulatory model developed by NCSBN Allows for multistate licensure State legislatures initiate and establish a compact (NLC)
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Legal Roles of Nurses


Contractual relationships Nurse Practitioner has independent relationship with client Respondeat Superior nurse functions within policies of employing agency; employer assumes responsibility for conduct of employee (held responsible for malpractice by employee)
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Informed Consent
Purpose
Provides client with complete information prior to obtaining agreement by client to accept a course of treatment Based upon principle of autonomy

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Informed Consent
Essential elements
Consent must be voluntary Consent must be given by client or individual with capacity to understand

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Informed Consent
Express consent oral or written agreement; more invasive the procedure the need for written consent Implied Consent individuals nonverbal behavior indicates agreement

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Informed Consent
Except in specific circumstances, the following individuals cannot provide informed consent
a minor, person 18 years or younger the unconscious or person injured in such as way that they are unable to consent a mentally ill person judged by professionals to be incompetent

a parent, legal guardian, or representative provides or refuses consent for these individuals

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Informed Consent
Important to consider the problem of illiteracy and other language barriers The consent must be read to the client or an interpreter appropriately used to be certain client understands If questions or unclear understanding of procedure, health care provider must clarify (not nurse)
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The Americans with Disabilities Act (ADA)


Prohibits discrimination on the basis of disability Purpose
Provide national mandate Provide enforceable standards Ensures government role in enforcing

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Good Samaritan Acts


Protect health care providers providing assistance at an emergency scene against claims of malpractice
Canada, B.C. The Good Samaritan Volunteer Firefighter Assistance Act

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Good Samaritan Acts


1. 2. 3. 4. 5. 6. Guidelines for nurses who choose to render emergency care include: Limit actions to those normally considered first aid if possible Do not perform actions which the nurse does not know how to perform Offer assistance but do not insist Have someone call or go for additional help Do not leave the scene until the injured person leaves or another qualified person take over Do not accept compensation
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The Impaired Nurse


Functions diminished due to
Chemical dependency on drugs Alcoholism Mental illness

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Diversion or Peer Assistance Programs


State boards of nursing Institutional policies Diversion programs require
Counseling Participation in support groups Periodic progress reports

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Selected Nursing Legal Responsibilities


Informed consent Delegation Violence, abuse, neglect ADA Controlled substances Impaired nurse Sexual harassment Abortions Death and related issues
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Crimes
An act committed in violation of public (criminal) law Punishable by a fine or imprisonment Does not have to be intended in order to be a crime Example, accidentally administering an additional and lethal dose of a narcotic to relieve discomfort (medication error)
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Crimes
Felony
Serious nature (e.g., murder) Punishable by term in prison

Misdemeanor
Less serious Punishable by a fine or short-term jail sentence, or both

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Examples of Crime
A nurse who administers an additional and lethal dose of a narcotic may be charged with second-degree murder or manslaughter A nurse who slaps a clients face could be charged with a misdemeanor

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Tort
Civil wrong against a person or a persons property Based on fault
Something done incorrectly Something omitted

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Negligence
Type of tort (unintentional) Misconduct or practice that is below the standard expected of an ordinary, reasonable, and prudent person Places another person at risk for harm Applies to anyone

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Malpractice
Negligence that occurred while the person was performing as a professional
Applies to physicians, dentists, lawyers, and generally includes nurses professional negligence

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Elements of Malpractice
Duty relationship with client in providing care Breach of duty failure to act as reasonable, prudent nurse Forseeability link between nurses act and injury suffered Causation proof that harm occurred Harm or injury demonstrate harm/injury Damages liability for damages

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Categories of Negligence that Result in Malpractice


Failure to follow standards of care Failure to use equipment in a responsible manner Failure to communicate Failure to document Failure to assess and monitor Failure to act as a patient advocate
From Nurses, Negligence, and Malpractice, by E.M. Croke, 2003, American Journal of Nursing, 103(9), pp. 54-63.

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Torts
Intentional Act done on purpose or with intent No harm need be caused Unintentional Negligence, malpractice Do not require intent Require element of harm

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Intentional Torts
Assault and battery assault (precedes battery; act that causes the battery to occur) & battery (willful touching of person that may cause harm) False imprisonment unjustifiable detention of person Invasion of privacy direct wrong of personal nature Defamation
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Intentional Torts
Assault Attempt or threat to touch unjustifiably Battery Willful touching that may or may not cause harm

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Intentional Torts
False imprisonment
Unjustifiable detention without legal warrant

Invasion of privacy
Direct wrong of a personal nature

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Intentional Torts
Defamation
Communications that are false

Slander Libel

Defamation by spoken word Defamation by means of print, writing, or pictures

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Unintentional Torts
Negligence Malpractice

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Health Insurance Portability & Accountability Act of 1996 (HIPAA)


Includes four specific areas 1. Electronic transfer of information among organizations 2. Standardized numbers for identifying providers, employers, and health plans 3. Security rule 4. Privacy rule
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Impact of HIPAA
Name cannot be posted near or on a room door Charts must be kept in a secure, nonpublic location Printed copies of protected health information should not be left unattended in a printer or fax machine Access to protected health information is limited to those authorized to obtain the information

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Impact of HIPAA
Password is needed to access a clients electronic information A notice informing clients of their rights about privacy and their health information should be posted or provided Voice levels should be lowered to minimize disclosure of information Need to stay current with HIPAA regulations
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Professional Liability Insurance


Necessary due to increasing numbers of malpractice lawsuits Nurses advised to carry own insurance Insurance covers costs up to face value of policy

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Incident Reports
Agency record of an incident or unusual occurrence (also called unusual occurrence report) Make all the facts available to agency personnel Contribute to statistical data about incidents Help health personnel prevent future incidents Filed according to agency policy

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Information Included on Incident Reports


Identification of the client by name, initials, and hospital or identification number Date, time, and place of the incident Description of the facts of the incident (no conclusions or blame) Incorporation of the clients account of the incident in quotes
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Information Included on Incident Reports


Identification of all witnesses Identification of any equipment by number and any medication by name and dosage

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Minimizing Chance of Liability


Function within scope of education, job description and nurse practice act Follow procedures and policies Build and maintain good rapport Always check the clients identity Observe and monitor Accurately communicate and record significant changes
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Minimizing Chance of Liability


Promptly and accurately document all assessments and care Be alert when implementing nursing interventions Perform procedures correctly and appropriately Administer the right medication, in the right dose, via the right routes, at the right time, to the right client
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Minimizing Chance of Liability


Delegate appropriately Protect clients from injury Report all incidents Always check any order that is questioned Know own strengths and weaknesses Maintain clinical competence

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Resources
Audio Glossary Americans with Disabilities Act Home Page This site defines the ADA and its impact upon society. National Council of State Boards of Nursing This site defines nursing's scope of practice. Legal Eagle Eye Newsletter for the Nursing Profession This newsletter examines legal cases brought before a jury. Peer Assistance Network for Nurses The Illinois Nurses Association offers assistance for nurses who are suffering from addiction.
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Resources
AARP: Medical Error and Patient Injury: Costly and Often Preventable This site details evidence of patient injury in health care. American Academy of Pediatrics AAP's policy statement on prevention of medication errors in the pediatric inpatient setting. National Council of State Boards of Nursing The National Council of State Boards of Nursing defines criteria for delegation to unlicensed assistive personnel.

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