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Legal aspects of er nursing



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  • Jail patients-ama
  • Weekend at Bernies, Psych ptvsneuropt transfer, ER ortho case-armc, chino valley abdominal pain female, L&D case on pg21. EMTALA panel discussion on scene.
  • Case on page 25


  • 1. Legal Aspects of ER Nursing
    Mary Corcoran RN, BSN, MICN, CNE
    Arrowhead Regional Medical Center
  • 2. Federal Regulations
    Congress 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)
  • 3. Federal Regulations
    Federal 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)
  • 4. State Regulations
    A 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
  • 5. 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.
  • 6. 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
  • 7. 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
  • 8. Medical Records
    Charting 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
  • 9. Medical Records
    Charting 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*
  • 10. 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
  • 11. HIPAA
    Health insurance portability and Accountability Act
  • 12. 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
  • 13. 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
  • 14. 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
  • 15. 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
    • Public health surveillance
    • 16. Public health and safety
    • 17. Public benefits programs
    • 18. Treatment
    • 19. Payment
    • 20. Healthcare fraud reporting
    • 21. Health plan audits
    • 22. Health care operations
    • 23. And certain research purposes
    As 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.
    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.
    Fifteen employees were fired for improperly accessing medical records of NadyaSuleman, the mother of octuplets, a Kaiser Permanente spokesman said Monday.-CNN
  • 26. 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
  • 27. ConsentChildren
    Must 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
  • 28. ConsentEmancipated minors
    Criteria for emancipation:
    Marital status
    Member of the armed forces
    Living apart from ones parents
    Financial independence
    Court appointed
  • 29. ConsentNon-emancipated minors
    Certain treatments may be obtained without consent (differs from state to state) examples:
    HIV/STD testing
    Pregnancy testing
    Alcohol or chemical dependency
    Mental health programs
    *note that parental notification may violate privacy rights
  • 30. ConsentImplied
    Removes 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
  • 31. ConsentRefusal
    Parents 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
  • 32. ConsentAdults
    Adults 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
  • 33. 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
  • 34. 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
  • 35. EMTALA
    States 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
  • 36. EMTALA
    To 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
  • 37. EMTALA
    Triage- 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
  • 38. 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
    Receiving hospitals must also report EMTALA violations when receiving patients transferred in unstable condition
    Monetary 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)
    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
    ED’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
  • 43. EMTALA Case Discussion & Questions
  • 44. Negligence
    Negligence 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
  • 45. Malpractice
    Unlike negligence Malpractice does require and expert witness because it pertains to professional standards
  • 46. Malpractice
    In order to successfully prosecute a medical or nursing malpractice claim, the plaintiff must establish 4 elements
    Proximate Cause
  • 47. Elements of Nursing Malpractice
    Duty- In a provider-patient relationship the nurse provides care as her professional standards
    Breach 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
  • 48. Common Nursing Malpractice Cases
    Medication Errors
    Failure to Observe and Report
    Failure to rescue
  • 49. What would you do?
    38yo woman presents to ER at 0345 with c/o cough and chest pain…