Chapter 08

Chapter 8
Legal Issues in
Nursing and Health Care
Copyright © 2014 by Mosby, an imprint of Elsevier Inc.

 Statutory law
 Definition
• Laws written and enacted by legislative bodies
• Violations are criminal offenses and are punishable by fines
or imprisonment
Sources of Law and
Nursing Practice
Copyright © 2014 by Mosby, an imprint of Elsevier Inc. 2

 Federal statutes related to nursing and health
care
 Have a major effect on nursing care—mandate a
minimum standard of care in all settings that receive
federal funds (Medicare, Medicaid)
• The Federal False Claims Act—makes it an offense to
submit a false claim to the government for payment of health
care services
 “Whistle-blower” reports false or fraudulent claim
Sources of Law and
Nursing Practice (cont'd)

 Emergency Medical Treatment and Active Labor Law
(EMTALA)
• Prohibits refusal of care for indigent and uninsured patients
seeking medical assistance in emergency departments
• Prohibits transfer of unstable patients, including women in
active labor, from one facility to another
• Applicable to nonemergency facilities (i.e., urgent care
clinics)
 Americans with Disabilities Act of 1990 (ADA):
prohibits discrimination against persons with
disabilities by removing barriers that might prevent
the same opportunities available to persons without
disabilities
Statutory Law

 Patient Self-Determination Act of 1990: requires
federally funded hospitals (Medicare, Medicaid) to
inform adult patients in writing about their right to
make treatment choices and to ask patients if they
have a living will or durable power of attorney
 Health Insurance Portability and Accountability Act of
1996 (Public Law No. 104-191) (HIPAA): ensures
confidentiality of a patient’s medical records; sets
guidelines for maintaining the privacy of health data
 The Patient Safety and Quality Improvement Act:
allows certain disclosures of patient safety data
Statutory Law (cont'd)

 State statutes
 Nurse practice act and board of nursing rules and
regulations
• Define scope and limitations of nursing practice
• Vary from state to state, but common elements include:
 Definition of the term registered nurse
 Description of professional nursing functions
 Standards of competent performance
 Behaviors that represent misconduct or prohibited practices
 Grounds for disciplinary action
 Fines and penalties for violations
• Each nurse should own a copy and should understand the
content

 Violations of the nurse practice act or rules and
regulations
• Licensing boards have the authority to hear and decide
cases against nurses
• Penalties that may be imposed:
 Issuing a formal reprimand
 Establishing a period of probation
 Levying fines
 Limiting, suspending, or revoking the nurse’s license

 Nurse/patient ratio and mandatory overtime
statutes
 California first to enact a law in January 2004 that
mandates the establishment of minimum
nurse/patient ratios in acute care facilities (e.g.,
critical care units, step-down and medical-surgical
units, maternity departments)
 Research indicates that improved nurse/patient ratios
are associated with lower “failure-to-rescue” rates and
lower inpatient mortality rates

 Reporting statutes
 Child Abuse Prevention and Treatment Act and
reporting statutes
• Laws mandating reporting of specific health problems and
suspected or confirmed abuse
• Health professionals must report the following under penalty
of fine or imprisonment for failing to do so:
 Infant and child abuse
 Dependent elder abuse
 Specified communicable diseases
• Most laws grant immunity from suit within the context of the
mandatory reporting statute

 Institutional licensing laws
 All facilities that provide health care services must
comply with licensing laws
 Generally contained within the law are:
• Minimum standards for maintenance of the physical plant
• Basic operational aspects for major departments—nursing,
dietary, clinical labs, and pharmacy
• Essential aspects of patient rights and informed consent
process
• Copies of licensing laws can be obtained from the state
health department

1. A nurse is checking orders at the front desk when
a visitor asks the room number of his father. The
nurse leaves the chart open while looking up the
room number on the computer, allowing the
visitor to read the patient’s recent x-ray film
report. Which law would protect this client from
others having access to his or her medical
information?
A. Health Insurance Portability and Accountability Act of
1996
B. Patient Self-Determination Act of 1990
C. Emergency Medical Treatment and Active Labor Law
D. Americans With Disabilities Act of 1990

 Should be used along with Standards of Quality
Practice to guide nurses
American Nurses Association
(ANA) Standards of Professional
Performance

 Created through cases heard and decided in
federal and state appellate courts—also known
as decisional or judge-made law
Common Law

 Nursing case law
 Body of written opinions about nursing practice
 Importance cannot be overstated in establishing the
current standard of practice
 One important case established “affirmative duty”—
the duty that nurses exercise independent judgment
to prevent harm to patients
 Nurses should review case law and journals
dedicated to legal issues in nursing practice
 Common law and case law provide courts with
guidelines for deciding future cases
Common Law (cont'd)

 Negligence and malpractice
 Negligence: failure to act in a reasonable and prudent
manner
 Malpractice: special type of negligence; that is, the
failure of a professional, a person with specialized
education and training, to act in a reasonable and
prudent manner
Civil Law

 Elements essential to prove negligence or
malpractice
 Nurse owed patient a special duty of care based on
the establishment of a nurse-patient relationship
 Nurse breached duty to the patient or client
 The patient suffered actual harm or damage
 Proximate cause or a causal connection has been
established between the standard of care provided by
the nurse and the patient’s injury
Civil Law (cont'd)

 Most frequent allegations of nursing negligence
 Failure to ensure patient safety
 Improper treatment or negligent performance of
treatment
 Failure to monitor patient and report significant
findings
 Medication errors
 Failure to follow agency’s policies and procedures
Civil Law (cont'd)

 Negligence and the doctrine of res ipsa loquitur
 Applies when the negligent act clearly lies within the
range of a jury’s common knowledge and experience
to determine the standard of care—“the thing that
speaks for itself”
 Expert nurse witness not required to help establish
the standard of care
 For example, studies confirm that approximately 1000
to 2500 foreign bodies annually(instruments, needles,
sponges) are inadvertently left in the patient after
surgery
Civil Law (cont'd)

 Gross negligence
 Reckless act that reflects a conscious disregard for
the patient’s welfare
 Court may award special damages meant to punish
the nurse for the outrageous conduct; these are
referred to as punitive damages
Civil Law (cont'd)

 Claims of negligence and student nurses
 Because the student is not yet a licensed
professional, faculty member or licensed nurse is
named to supervise
• Dennis v Specialty Select Hospital—Flint, Mich., 2005
 Found that a nursing student’s mistake was not “ordinary
negligence” but “professional malpractice”; the student should
have possessed the requisite knowledge and clinical judgment
Civil Law (cont'd)

 Criminal negligence
 Constitutes a crime—the act is deemed so reckless
that it results in serious injury or death to the patient
 Consequences in addition to criminal charges
• Loss of job and livelihood
• Suspension or revocation of license
• Out-of-pocket fines levied by the nursing board
• Significant attorney’s fees
• Malpractice insurance may not cover costs in all cases
• Conservative estimates suggest that as many as 98,000
patients die each year as a result of negligence and
malpractice of health care providers
Criminal Law

2. While assisting in the labor room, a nurse is
helping to stimulate a newborn infant who has
a low Apgar score. The nurse stumbles,
allowing the baby to fall to the floor, resulting
in the infant’s death. This situation is referred
to as:
A. Criminal negligence
B. Sentinel event
C. res ipsa loquitur
D. A negligent act

 Defenses against claims of negligence
 In no case may a nurse use the defense “following physician’s
orders”
 Emergency situations: nursing care rendered in a life-threatening
emergency may breach the standard of care required under
normal circumstances
 Governmental immunity: individual health care workers
employed in federal or state facilities are shielded from personal
responsibility for damages in malpractice cases
 Good Samaritan immunity: limits a nurse’s liability or shields the
nurse from malpractice for rendering emergency assistance
outside the employment setting
 ANA Code of Ethics and American Medical Association’s Code
of Medical Ethics: the central role of nurses is to prevent patient
harm
Criminal Law (cont'd)

 Establish time limits within which a person may
initiate a lawsuit
 Time limits vary depending on state laws and a
variety of case circumstances
Statutes of Limitation
in Malpractice Cases

 When errors occur in practice, studies confirm
that telling the patient and family about the
mistake results in less severe ramifications for
clinicians and facilities
 In 2001 TJC established a safety standard
requiring institutions to have a process in place
to disclose unanticipated outcomes to patients
Transparency and Disclosure
of Error

 All nurses purchase malpractice insurance
 More states recognize nurse malpractice as a
legitimate claim in a civil suit
 Functions for RNs and advanced practice nurses
are expanding
 Increasing floating and cross-training mandates
 Nurses have increasing responsibility for
supervising subordinate staff
Reasons for
Malpractice Insurance

 Some employers may fail to initiate an adequate
defense for nurses
 Insurance coverage limits that are lower than the
actual judgment made against the nurse in a
lawsuit
Reasons for
Malpractice Insurance (cont'd)

 Asserts that every person is responsible for the
wrong or injury done to another as the result of
carelessness
 Personal liability
 Requires nurse to assume responsibility for patient
harm or injury that is a result of negligent acts
 Nurse cannot be relieved of liability by another
professional, such as a physician or nurse manager
 Damages can be levied against current assets and
future earnings
Liability

 Personal liability with floating and cross-training
 Nurses should be cognizant of state statutes and
case law services outside their usual practice area
 In no case is a nurse permitted to render services if
the requisite knowledge to act competently is lacking
 Nurses have a legal duty to refuse specific tasks that
they cannot perform safely and competently but
should consider negotiation and compromise with the
supervisor
Liability (cont'd)

 Personal liability for team leaders and managers
 Held to the standard of care of a reasonably prudent
supervisor
 Team leaders and managers have been held
negligent for issues surrounding:
• Triage of staff and equipment
• Supervision of subordinates
• Delegation of patient care tasks
• Reporting of team member performance deficits
• Supporting or invoking the chain of command process when
indicated
Liability (cont'd)

 Nurse managers and administrators held liable for:
• Inadequate training
• Failure to periodically reevaluate staff competencies
• Failure to discipline or terminate unsafe workers
• Negligence in developing appropriate policies and
procedures
• Failure to uphold institutional licensing laws and state and
federal statutes
Liability (cont'd)

 RNs functioning in the role of team leader or in any
supervisory capacity should review the following:
• Detailed job description, including responsibilities when
asked to supervise in an unfamiliar area or floor
• Job descriptions for team members
• Formal period of training and mentoring in the role
• Validated proof of competencies
• Guidelines for personal patient care assignments
• Chain of command
 Nurse managers and administrators should be aware
of case law regarding incompetent charge nurses and
team leaders
Liability (cont'd)

 Personal liability in delegation and supervision of
team members
 Nurses must be absolutely clear about the lawfulness
of patient care assignments
 Determine whether it is reasonable and prudent to
delegate a task on the basis of knowledge of the
worker, patient status, and current work setting
conditions
 Employer liability: vicarious liability
Liability (cont'd)

 Defenses against claims of vicarious liability
 Borrowed servant and “captain of the ship” doctrines
 Employer also may be liable for negligent conduct of
nurses within the scope of their employment
 Based on the legal principle of respondeat superior
(let the master answer)—adequate numbers of
qualified nursing staff
Liability (cont'd)

 Corporate liability
 Health care corporation can be held to a specified
standard of care
 Health care facilities have been found corporately
liable for failing to have adequate numbers of qualified
nursing staff
 TJC has developed standards related to orientation,
training, and education of agency staff
Liability (cont'd)

 Risk management systems
 Track incidents and accidents in the facility
 Assist in the development of policies and procedures
to improve practice
 Provide knowledge about federal and state laws,
licensing laws, and health care case law
Reducing Legal Liability

 Incident reports or unusual occurrence reports
 Nurses legally bound to report critical incidents to the manager
 Critical incidents that result in patient injury or death may lead to
a malpractice claim
 Know appropriate procedures for completing and filing the
incident report
 Describe events objectively; avoid subjective comments or
personal opinions
 Never note in the medical record that an incident report was
completed or filed
 Never photocopy the incident report
 Physician’s order for an incident report should not be written in
the chart
 Report every unusual occurrence or incident
Reducing Legal Liability (cont'd)

 Definition
 Direct violation of a person’s legal rights
 Plaintiff does not have to prove that the nurse
breached a special duty or was negligent
 Consequences include fines and punitive damages,
but may rise to the level of criminal acts
Intentional Torts in
Nursing Practice

 Assault and battery
 Assault is causing a person to fear that he or she will
be touched without consent
 Battery is the unauthorized touching or the actual
harmful or offensive touching of a person and may
rise to the level of a crime
 Nurse should ask patient’s permission before initiating
any procedure and document permission granted

 Defamation of character
 Libel is defamation caused by written word; nurses
subject to libel for subjective comments written in the
medical record
 Slander is defamation caused by spoken word;
nurses subject to slander when they repeat subjective
comments about patients in public places

 False imprisonment
 Unlawful restraint or detention of another person
against his or her wishes
 Nurse has no authority to detain a patient even if
there is likelihood of harm or injury

 Invasion of privacy
 Person’s private affairs (including health history and
status) are made public without consent
 Nurse has a legal and ethical duty to maintain patient
confidentiality
 Intentional infliction of emotional distress
 Nurse’s behavior is so outrageous that it leads to the
patient’s emotional shock

 Crime is an offense against society that is
defined through written criminal statutes or
codes
 Punishable by fines, imprisonment, or the death
penalty in some states
 An increasing number of nurses are being charged
with criminal acts
The Nurse and Criminal Law

 Misdemeanor offenses
 Minor criminal offenses
 Common offenses nurses are charged with
• Illegal practice of medicine
• Failing to report child abuse
• Falsification of medical records
• Assault and battery and physical abuse of patients
(cont'd)

 Felony acts
 Major criminal offenses
 Common offenses
• Drug trafficking
• Fraud in billing services for Medicare patients
• Theft, rape, murder
(cont'd)

 Advance directives
 Statutes grant adults the right to refuse extraordinary
medical treatment when no hope of recovery
 Patient’s wishes are made known through execution
of a formal document known as the living will
 Medical and physician directives
• Document that lists desire of patient in a particular scenario
• If properly executed, provides physician with immunity from
claims of negligence in the patient’s death
The Law and Patient Rights

 “Do not resuscitate” orders
• Written by physician on the basis of directives by the patient
• Nurses have absolute duty to respect patient’s DNR orders
• A lawfully executed DRN order must be followed
 Durable power of attorney for health care: document
that authorizes patient to name the person who will
make the day-to-day and end-of-life decisions when
he or she becomes decisionally incompetent
(cont'd)

 Informed consent
 Physician or advanced practice nurse has duty to
disclose information so patient can make intelligent
choices
 Mandated by federal statute and state law
 Information that must be disclosed:
• Nature of the therapy or procedure
• Expected benefits and outcomes
• Potential risks
• Alternative therapies
• Risks of not having the procedure
(cont'd)

 The provider cannot delegate the duty to the RN
 If nurse has reason to believe that patient has not
given informed consent, the provider should be
immediately notified
 In no case should the nurse attempt to convey
information required for informed consent
(cont'd)

 The right to refuse treatment
 An adult of sound mind has a right to refuse any
treatment that has previously been agreed to
 Nurse must notify provider if patient refuses treatment
 Provider should give patient information about the
consequences, risks, and benefits of refusing
treatment and explore available alternatives
(cont'd)

 Leaving against medical advice (AMA)
• Nurse must act promptly to notify the provider
• Nurse must clearly articulate the danger inherent in leaving
• Value of AMA document will depend a great deal on the
nurse’s charting, which should note that leaving the facility
could result in the following:
 Aggravated current condition and complicated future care
 Permanent physical or mental impairment or disability
 Complications leading to death
 Nurses have been charged with offenses, including
assault, battery, and false imprisonment, when they
unlawfully detain patients
(cont'd)

 The use of physical restraints
 Any restraint—chemical or physical—is imprisonment
 Use least restrictive restraint and only when all other
strategies have been exhausted
 Physical and chemical restraint use and seclusion
governed by federal and state statutes and
accrediting bodies
 Charges of assault and battery, and false
imprisonment can be leveled against nurses who use
restraints improperly
(cont'd)

 Nurses may lawfully apply restraints in an emergency
when, in their judgment, no other strategies are
effective in protecting the patient from harm
 Careful nursing documentation is essential when
restraints are applied
(cont'd)

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Editor's Notes