According to the Nurses Protection Group, you can be sued if:
You make a mistake while observing a patient - or if someone thinks you did.
Someone claims you made an error in reporting or recording patient care details.
A doctor claims you misunderstood his directions.
A patient, or even the relative of a patient, claims you did not provide adequate patient care or instruction.
You are off duty and you help someone with an injury or with any health matter at all.
You can also be sued if someone under your supervision makes a mistake. In addition, if the doctor or hospital is sued instead of you, either of them could then turn around and sue you. Once you are sued, you may be required to go to court. If the jury states that you did not provide "proper nursing procedures," you can be held personally liable.
You can also be held criminally responsible.
Litigious Areas of Nursing and the Nurse's Liability
http://allnurses.com/nursing-blogs/litigious-areas-nursing-337239.html
The areas of nursing most vulnerable today are anesthesia and midwifery. RNs in OB (L and D), those working solely in monitoring capacities (fetal heart, telemetry, etc.), and medication administration (including Long Term Care) are also included in highly litigious areas.
Of course, the Advanced Practice Nurse (APN) other than CRNA and CNM are subject to increased litigation, but the latter two more so.
And, the Neonatal Nurse Practitioner (NNP) seems to be at high risk secondary to "pain and suffering" issues.
But, nurses in general can be and often are, at risk.
Major reasons why more lawsuits are being made against nurses:
Our responsibilities have increased in complexity
Higher levels of Standards of Care (SOC)
Increased patient expectations
Pressure to increase productivity and increased patient load
Society has become highly litigious
Most common issues:
Failure to abide by the Nurse Practice Act
Failure to follow the SOC
Failure to adhere to policy/protocol/procedure
Failure to document, including lack of documentation, altered documentation, missing or "lost" documentation, incomplete documentation
Failure to recognize change in patient condition
Failure to appreciate the change in patient condition
Failure to report change in patient condition
Failure to follow up change in patient condition
Failure to communicate across the healthcare provider spectrum
Failure to monitor
Failure to act as patient advocate
Failure to provide a safe environment
Common Reasons for Errors:
Job overload (poor nurse-patient ratio)
Inexperience
Ignorance
Inadequate patient monitoring
Poor nursing judgment/critical thinking
Hesitation
Faulty communication
Ignoring patient complaints
Fatigue
Breaks in concentration
Flaws in the system
Inadequate staff training
The Nursing shortage
Ways to ensure safe practice and avoid litigation:
Be familiar with our individual Nurse Practice Act (NPA)
Adhere diligently within our Scope of Practice (SOP)
Know the SOC for our specialty area(s)
Question authority
Educate ourselves regarding evidenced-based practice
Stay abreast of changing trends in nursing through continuing education
Educate ourselves regarding medical-legal issues
Make sound, safe, and practical nursing judgments for all our patients
Finally, a kind word and non-defensive attitude with a patient turns away many a lawsuit
>>
Nursing Law & Liability
http://old.texarkanacollege.edu/~sdroske/ch8legal.htm
Catalano, chapter 8
At the end of this unit, you should be able to:
Discuss fundamental information on the laws that directly govern nursing, particularly the Nurse Practice Act.
Understand how nursing law is applied in court.
Describe the role of the state board of nursing.
Define standards of care and discuss how these standards may be used as evidence during malpractice litigation.
Discuss the legal significance of a nursing license
As the 21st century begins, health care restructuring and the need for cutting health care costs are having a tremendous effect of how nurses care for patients. Profound changes in the legal and ethical dimensions of nursing practice have occurred. Enormous ethical and legal challenges face nurses today as they strive to provide high-quality care in a time of shrinking health care budgets. In times like these, nurses need accurate and up-to-date information on nursing law and ethics.
Some of the challenges facing nurses today include:
Providing high quality care with less, as hospitals with declining operating budgets are forced to reduce nursing staffs. At the same time, nurses are responsible for managing larger patient loads than before.
Shorter hospital stays for patients. Nurses must provide more care and more effective patient teaching in a shorter amount of time.
Many hospitals are replacing some RNs with lower-paid, unlicensed assistive personnel (UAPs). Nurses are held legally responsible for the care provided by these UAPs, thus heightening nurses’ liability.
Courts of law continue to expand the definition of liability, holding nurses to higher standards. As nurses take on greater responsibility they become more accountable under the law.Even the most cnscientious and competent nurses have no guarantee that they won’t be named in a malpractice lawsuit.
Patients are aggressive in asserting their rights and many do not hesitate to sue if they feel they have cause. Nurses must be constantly vigilant when using restraints, giving medications, obtaining information, witnessing informed consent, providing patient teaching, and performing all nursing tasks.
Nurses must act quickly and make crucial decisions during high-pressure patient care situations. All the while, the nurse must keep in mind the necessity of avoiding malpractice liability. *
*This information is adapted from an excellent book, Nurses’ Legal Handbook, 3rd edition. Springhouse: 1996. ISBN 0-87434-849-8
Laws are rules to help protect people and keep society functioning.
As a nurse, you must understand and accept the legal responsibilities of your practice. The courts expect the nurse to obey the laws the affect his/her practice. Ignorance of the law is not a valid defense in any legal case.
Nurses must be familiar with their state’s nurse practice act and the role of the state board of nursing. They must also be familiar with the standards of care and how these standards may be used as evidence during malpractice litigation. Finally, nurses must know the significance of their nursing license and what to expect if disciplined for violating its provisions.
Two major sources for laws in U.S. are STATUTORY & COMMON.
Statutory Law
Statutory laws are:
legislated laws enacted by Congress (FEDERAL STATUTES)
state drafted laws (STATE STATUTES)
laws drafted by cities (CITY ORDINANCES, CODES, REGULATIONS)
Common Law
Different from statutory. Common law has evolved from decisions of previous legal cases that form a precedent.
Common law extends beyond scope of statutory.
(e.g. no statues require negligent person who caused injury to another to compensate that person.)
Court decisions have repeatedly ruled that the injured person be compensated.
Common laws involve negligence or malpractice.
Divisions of Law: Criminal & Civil
Criminal Law
Concerned with protecting society.
Violations are punished at federal, state, county, and city level.
Two classifications of CRIMINAL LAW:
Misdemeanor – minor offense
Felony – major offense
Nurses become involved under Criminal Law by
not renewing their license
illegal diversion of drugs
intentional or unintentional deaths
Civil Law
Nurses are more often involved in violations of civil law than of criminal law.
Most often involves nurses violation of individual’s rights
Terminology
Plaintiff: one bringing dispute to court
Defendant: one accused of crime
Answer: other side of the story
Burden of proof: rests with plaintiff
Criminal action: rendered when person is brought to trial and convicted
Expert Witness: one who testifies in malpractice cases to help establish a standard of care
Tort Law
A tort is a wrongful act committed against a person or his property
A tort is a violation of the civil law.
Person committing the tort is a tort-feasor and is liable for damages
Torts involve:
violation of person’s legal rights
violation of a standard of care that causes and injury
Unintentional Torts
Negligence is primary form of unintentional tort.
Negligence is the commission or omission of an act that a reasonable and prudent person would do in a similar situation or would not have done.
Medical Professional Liability (malpractice)
Malpractice is a type of negligence for which professionals can be sued.
Because of their profession, nurses are held to a higher standard of conduct than lay persons.
R.N. is charged with utilizing the degree and skill and judgment commensurate with his education, experience and position. (e.g. reasonable & prudent to put up side rails)
4 Elements Required for Claim of Negligence:
Duty was owed to client (professional relationship)
Breach of Duty – professional violated duty and failed to conform to standard of care
Causality – failure to act by professional was proximate cause of the resulting injury
Damages – actual injuries resulted from breach of duty
Examples of Nurse malpractice:
failure to question Dr’s orders if not clear
leaving objects in patient during surgery
failing to assess
failing to obtain informed consent
failing to report change in patient’s condition
failing to do patient teaching
failing to report incompetence of a peer
failing to take action for patient’s safety
(eg: not putting the side rails up on a bed of a sedated or confused patient)
"Professional negligence" is the same as malpractice.
If nurse is found guilty:
may have to compensate monetarily
may have to pay medical expenses
may have to pay out-of-pocket expenses
may have to pay wages lost by patient
may have to pay punitive damages (if acted in a willful manner)
Intentional Torts
A willful act that violates another person’s rights or property.
Differs from malpractice in that the nurse must intend to bring about the consequences of the act
nurse’s act must be intended to interfere with the client or his property
the act must be a substantial factor in bringing about the injury or consequences
Common intentional torts are:
Assault
Battery
False imprisonment
Intentional infliction of emotional distress
It is not necessary to prove that the injury occurred NOR is an expert witness required.
May fall under criminal law if gross violation of standard of care.
Assault: threat or attempt to touch or do bodily harm to another person
Battery: actual harmful or unwarranted contact with another person without his or her consent. (e.g. restraints or injection without consent)
False imprisonment: occurs when a client is confined or restrained with intent to prevent him from leaving the hospital (e.g. restraints, detaining against his will, threats or medications)
Intentional Infliction of Emotional Distress a common tort
(e.g. mother who wanted to view her stillborn baby and was haded the baby in a gallon jug of formaldehyde)
Quasi-Intentional Tort
Mixture of unintentional & intentional torts
A voluntary act directly causing injury or distress without intent to injure or to cause distress.
Usually involves situations of communication and often violate a person’s reputation, personal privacy, or civil rights
Defamation of Character
Most common of quasi-intentional torts harming a person’s good name
Injures a person’s reputation
Slander: spoken
(eg: saying something about a person that is not true and that damages his/her reputation)
Libel: written
Invasion of privacy
Violation of a person’s right to protection against unreasonable and unwarranted interference with one’s personal life
To prove invasion has occurred, client must show:
Nurse intruded on client’s seclusion & privacy
Intrusion is objectionable to a reasonable & prudent person
Act intrudes on private or published facts or pictures of a private nature
Public disclosure of private information was made
Examples of Invasion of Privacy
Use of client’s name or picture for sole advantage of health care provider
Intruding into the client’s private affairs without permission
Giving out private client information over the telephone
Publishing information that misrepresents the client’s condition
Exception: child abuse or rape. Nurse is legally bound to report evidence of child abuse and would be acting appropriately if she/he gave information beyond the client’s right to privacy. Rape must be reported to the police.
3. Breach of Confidentiality
When a client’s trust and confidence are violated by public revelation of confidential of privileged communication without the client’s consent
Privileged client information can be disclosed only upon authorization by the client
Disclosure of information to family members is not acceptable unless authority is given by the client.
Nurses who overhear privileged communication or information are held to the same standards as a physician with regard to that information.
Facing a Lawsuit
There is a higher probability now than ever before that a nurse will be involved in a malpractice action sometime in her career. Knowledge of the litigation process increases the nurse’s understanding of how his/her conduct might be evaluated before the courts.
Statute of Limitations
A malpractice suit against a nurse for negligence must be filed within a specified time.
1-6 years is usual range with most common duration being 2 years.
The Complaint
Begins the litigation process
Describes the incident that initiated the claim of negligence against the nurse
Specific allegations including the amount of money sought are stated.
Plaintiff: usually a client or family member of a client alleged to be injured
Defendant: person or entity being sued as nurse, physician, &/or hospital
First notice of a lawsuit occurs when the defendant is officially notified or served with the complaint.
Due process is the right of all defendants.
The Answer
Defendant must respond in writing to the allegations within a specific time frame
This response is "the answer"
If insured, the insurer will assign a lawyer to represent the defendant nurse
The Discovery
Uncovering of all information relevant to the malpractice suit
Interrogatories: a series of questions that the plaintiff’s lawyer deems important
Requests for production of documents (medical records, care plans, etc)
The Deposition
If false testimony is given, can be charged with perjury
Formal legal process involving the taking of testimony under oath by court report (p 182)
Deposition testimony is reduced to a written document called an "affadavit".
The Trial
May take place years after complaint is filed
"Voire dire" process or jury selection
Opening statements
Plaintiff’s side presented first
Each witness or party subject to direct examination, cross examination, and re-direct examination
Direct examination: open ended questions by the attorney ("tell me about")
Cross examination: opposing lawyer asks questions to elicit short answers
Closing comments
Jury or judge for deliberaton
Decision or ruling made about the case can be appealed if either party is not satisfied.
Possible Defenses to a Malpractice Suit
Contributory Negligence Laws
Clients are not allowed to receive money for injuries if they contributed to that injury in any manner. (e.g. if nurse forgets to raise the bedrail but instructs the client to turn on the call light, then client, in part, contributed to his own injury and cannot receive compensation)
Comparative Negligence Laws
The award is based on the determination of the percentage of fault of both parties.
If the client is 50% or more at fault, no award will be made.
Assumption of Risk
If informed consent is signed, then the client is assumed to have been informed
If the complication is named in the list of complications on the consent form, then client usually has no grounds to sue.
Good Samaritan Statutes
Protect health care providers in emergency or disaster situations IF care is given according to established guidelines and within the scope of practice of that professional.
Some limitations exist:
Professional is protected only for those acts within that person’s level of education. (eg a nurse could be sued if she performed surgery or did a trach on an accident victim. These actions would be beyond her scope of practice.)
Informed Consent
Voluntary permission by a client to carry out a procedure on the client
The person performing the procedure has the responsibility to obtain th einformed consent.
Often, the physician gives the nurse the consent form and says "Get the client to sign this". Informed consent can be given only after the client receives sufficient information of the procedure, risks involved, outcome hoped for and consequences of not having treatment.
The physician should provide most of this information. The nurse can reinforce the physician teaching, but should not be the only source of information for the informed consent.
Exceptions to informed consent:
In emergency situations when the client is unable to give consent
In situations where the health provider feels that it may be medically contraindicated to disclose the risk and hazards because it may result in serious ill effects.
Delegation versus Supervision
Delegation: assigning or designating a competent individual the responsibility of carrying out a specific group of nursing tasks in the provision of care for certain clients.
The person authorized to perform tasks is acting in the place of the RN and may be carrying out tasks that generally fall under the RN’s scope of practice.
Supervision: the initial direction and periodic evaluation of a person performing an assigned task to ensure that he or she is meeting the standards of care.
Although delegation almost always requires supervision, it is possible to have supervision without delegation.
When RNs delegate tasks, they are legally responsible for supervising that person to ensure that the care given meets the standards of care.
Legally, the power to delegate is restricted to professionals who are licensed and governed by a statutory practice act.
RNs are considered professionals and can delegate independent nursing functions to other personnel. LPNs/LVNs do not have delegatory authority.
Patient Self-Determination Act of 1990
Purpose was to encourage people to discuss and document their wishes concerning the type of treatment and care they want so it will ease the burden on their families and providers when it comes time to make a decision.
Two Types of Advanced Directives
Living Will: States what health care a client will accept or refuse when client is no longer competent to make such decisions.
Medical Durable Power of Attorney (Health care proxy): Designates another person to make health care decisions for a person if the client becomes incompetent or unable to make such decisions. Each state outlines its own requirements for executing and revoking the medical durable power of attorney and living wills. (e.g. Nancy Cruzan: U.S. Supreme Court stated that a living will would have been sufficient evidence of Nancy’s wishes to sustain or to remove her feeding tube. Burden of proof was put on Nancy’s family to show that she would not have wanted to continue living in this manner.)
The Nurse’s Role in Advance Directives
Must know the laws of the state pertaining to advance directives and client’s rights
Must know the policies and procedures of the institution
Not all clients can make decisions to formulate advance directives
Discrimination must be prevented against clients and their families based on their decisions regarding their advance directives.
Do Not Resuscitate (DNR) Orders
Although DNR orders may be included in an advance directive, DNR orders are legally separate from advance directives.
For the nurse to be legally protected, there must be a WRITTEN physician’s order for a "no code" or DNR in the client’s chart.
The nurse must be familiar her his/her particular hospital’s policy concerning DNR orders.
The nurse must also know whether there is any law that regulates who should authorize a DNR order for a client who is unable to make this decision.
Nurses may face legal dilemmas when dealing with confusing or conflicting DNR orders.
(eg: it may be difficult to interpret a DNR order when it ahs been restricted, for instance, "do not resuscitate except for medications and defibrillation? or "no CPR or intubation")
Lack of proper documentation in the medical records indicating how the DNR decision was reached can be an important and crucial issue if a medical malpractice case is involved and it is disputed whether or not the client or family actually gave consent for a DNR order.
It is important that nurses not stigmatize patients who have DNR orders. (eg the practice of placing "dots" over the patient’s bed or on the wristband to identify a DNR patient)
It would be extremely unprofessional to give "less than the best" care because "the client is going to die anyway". This abandonment can jeopardize care of the DNR client.
Do not resuscitate orders must be followed regardless of the nurse’s personal values.
Standards of Care
Nurses are professionals and are therefore held to a higher standard of care.
Standards of Care: the yardstick to measure the actions of a nurse involved in a malpractice suit.
What action would be taken by a reasonable person who was placed in the same or similar situation.
Nurses are judged against the standards that are established within the nurse’s profession and specialty area of practice.
ANA as well as specialty groups within nursing publish standards of care.
External Standards
Guidelines developed by various nursing specialty practice groups
Federal agency regulations
Nursing standards developed by ANA, State Nurse Practice Act
Criteria from accrediting agencies as the JCAHO
Internal Standards
Standards in specific hospital policy and procedure manuals that relate to the nurse in the particular institution (as job description)
National criteria have replaced the locality rule standard. Nurses are held to both the local and the national standard.
Standards are merely guidelines.
In a negligence lawsuit, expert witnesses (persons who are experts in nursing) would be subpoenaed to testify and describe standards of care to the judge and/or jury.
Nurses are held to these professional standards of care when they are on duty, no matter what. (tired, sick, understaffed, etc.)
This is also true of nursing STUDENTS!! Students are accountable for any actions they perform.
(students need malpractice insurance, too)
Nurse Practice Act (NPA)
Defines nursing practice and establishes standards for nurses in each state
Each state has a nurse practice act that protects the public by defining the legal scope of nursing practice. The state nurse practice act is the most important law affecting a nurse’s practice. As a nurse, you will be expected to care for your patients within defined practice limits. If you give care beyond those limits, you become vulnerable to charges of violating the state nurse practice act.
Most NPA’s tend to have similar wording based on ANA’s model published in 1988.
The NPA includes:
scope of practice
requirements for licensure and entry into practice
create & empower a state board of nursing to oversee the practice of nursing
disciplinary actions and revocation of a nursing license
declaratory order
Nurse Practice Acts tend to be broadly worded. Understanding your state’s nurse practice act will help you stay within the legal limits of nursing practice.
Sometimes the NPA is difficult to interpret. This is partly because the NPA is a statutory law. Any amendment to a NPA must be made through a slow legislative process. Because this legal process is so slow, amendments to the NPA lag far behind the progress of changes in nursing.
1. Scope of practice:
The NPA defines the scope of nursing practice with respect to the medical profession, as well as how
nursing practice relates to supervising unlicensed assistive personnel.
Medical practice vs. nursing practice: It is sometimes difficult to determine exactly where
medical practice begins and nursing practice ends. But not knowing exactly where nursing practice
begins and ends can create some legal risks.
Law forbids non-MDs from practicing medicine (any act of diagnosis, prescription, surgery, or
treatment). But there is sometimes overlap between nursing and medical practice. The courts are often
called upon to decide if a specific action constitutes medical practice. (eg area of midwifery)
Some court decisions have concluded that the doctor need not be present during patient care if he has
delegated a task to a nurse by means of a "standing order". Standing orders usually allow nurses to
perform tasks that involve overlap of nursing and medical practice -- especially in areas such as ICU,
CCU, ER
Nursing practice and unlicensed assistive personnel (UAP): Skyrocketing health care costs have
forced hospitals to use more unlicensed assistive personnel to help with patient care.
Unfortunately, educational requirements and on-the-job responsibilities for UAPs are not uniformly
defined by statues. RNs may not clearly understand what UAPs under their supervision may or
may not legally do. Nurses are responsible for the education, training, and supervision of UAPs
who participate in direct patient care. If you supervise UAPs, they are essentially practicing on
YOUR license. Nurses can limit their liability by encouraging their supervisors to establish policies
that clearly delineate the repsonsiblities of RNs, LPNs, and UAPs. The nurse who establishes a
solid working relationship with his/her UAPs, and who communicates openly and clearly with
them, is less likely to get into potentially litigious situations.
Licensing laws help you to avoid liabilities by defining the scope of your professional nursing
practice. If a nurse is named in a malpractice lawsuit, state licensing laws will be used as partial
evidence to determine whether the nurse acted within the legal limits of his/her profession.
Nurse Practice Acts tend to be broadly worded. Understanding your state’s nurse practice act will help
you stay within the legal limits of nursing practice.
Sometimes the NPA is difficult to interpret. This is partly because the NPA is a statutory law. Any
amendment to a NPA must be made through a slow legislative process. Because this legal process is so
slow, amendments to the NPA lag far behind the progress of changes in nursing.
2. Requirements for Nursing licensure:
NPA contains licensing laws.
These establish qualifications for obtaining and maintaining a nursing license.(educational qualifications;
license-application procedures & fees; authorization to use the title "RN" or "LVN"; grounds for license
denial revocation, or suspension; license-renewal procedures)
Most state NPAs allow nursing students to provide patient care, provided no fee is involved.
Failing to renew your nursing license on time consititutes practicing nursing without a license and is
punishable by a fine and/or suspension of the license, and /or imprisonment.
3. State Boards of Nursing
In every state and Canadian province, the nurse practice act creates a state or provincial board of
nursing. The NPA authorizes this board to administer and enforce rules and regulations concerning the
nursing profession and specifies the makeup of the board (the number of members and their educational
and professional requirements). Usually the board is made up of practicing RNs. Some states may
include hospital administrators and consumers, also.
The board of nurse examiners is bound by the provisions of the Nurse Practice Act.
The nurse practice act is the law… the board can’t change or waive any of its provisions.
4. Disciplinary action
The state board of nursing can take disciplinary action against a nurse for any violation of the state's
nurse practice act. The board of nursing has authority to discipline a nurse if she endangers a patient's
health, safety, or welfare. Depending on the severity of the violation, a state board may formally
reprimand a nurse, place her on probation, refuse to renew her license, or suspend, or even revoke, her
license. Other disciplinary action may include imposing a probationary period or fine and restricting the
nurse's scope of practice.
The most common punishable violations are:
conviction of a crime involving "moral turpitude", if the offense bears dierectly on whether the
person is fit to be licensed as a nurse.
use of fraud in obtaining a nursing license
incompetence due to negligence or physical/psychological impairments
alcohol or drug abuse
unprofessional conduct
5. Declaratory order
A person who is enrolled or planning to enroll in an educational program that prepares the person for
initial licensure as an R.N., and who has reason to believe that he/she may be ineligible for the license,
may petition the board for a declaratory order as to the person's elibibility for a license. The board will
investigate the petition and the person's eligibility for licensure.
The most common cause for ineligibility is conviction of a crime.
Texas State Board of Nurse Examiners
http://www.bne.state.tx.us
7600 Burnet Rd., Suite 440
Austin, TX 78757
(512) 452-0645
Arkansas State Board of Nursing
http://www.ark.org/nurse/index.html
University Tower Building
Suite 800
1123 South Unversity
Little Rock, AR 72204-1619
(501) 686-2700
As nurse’s role expands, so does the legal accountability of the role itself
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