Bolam v Friern Hospital Management Committee. Module 4

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. doctors): theBolam test. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".

Mr Bolam was a voluntary patient at mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy. He was not given any muscle relaxant, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved.

It is important to note that at this time juries were still being used for tort cases in England and Wales, so the judge's role would be to sum up the law and then leave it for the jury to hold the defendant liable or not.

McNair J at the first instance noted that expert witnesses had confirmed, much medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, if he fails to do what a reasonable person would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression," said McNair J.

"I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: "I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century." That clearly would be wrong."

In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent in the way they carried out the treatment. That passage is quoted very frequently, and has served as the basic rule for professional negligence over the last fifty years.

It is important to remember that the "Bolam test" is just one stage in the fourfold test to determine negligence. 

First, it must be established that there is a duty of care (between a doctor and patient this can be taken for granted). 

Second, it must be shown that the duty of care has been breached. This is where the Bolam test is relevant, because falling below the standard of a responsible body of medical men means that person will be considered negligent. 

But in addition, third it must be shown that there was a causal link between the breach of duty and harm. 

And fourth, it must be shown that the harm was not too remote.

Tort. Module 4

Tort Liability Basics: Strict, Vicarious, and Joint Liability
Strict Liability 
Strict liability torts, which do not require a finding of intent or negligence, are primarily confined to ultrahazardous activities and product liability cases. An activity is ultrahazardous if it is so inherently dangerous that even the highest degree of care will not eliminate the risk of harm. If someone is injured because of such activity, the defendant is liable regardless of the level of care he or she exercised. In determining whether an activity is abnormally dangerous so as to give rise to strict liability, a court will consider the
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Restatement (Second) of Torts § 520.
Vicarious Liability Vicarious liability imposes liability on one person for a tortious act committed by another. There are a number of contexts in which this arises.
Respondeat Superior
 Under the doctrine of respondeat superior, an employer is liable for an employee's torts, including intentional torts, if the employee was acting within the scope of employment. To establish that the employee's conduct was within the scope of employment:
(1) the conduct must have occurred substantially within the time and space limits authorized by the employment;
(2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and
(3) the act must have been of a kind that the employee was hired to perform.

Independent Contractors
 In contrast, a defendant who engages an independent contractor is not liable to others for the acts or omissions of the independent contractor. An independent contractor is a person who performs services for another person under an express or implied agreement and who is not subject to the other's control, or right to control, over the manner and means of performing the services. However, this exception does not apply to ultrahazardous activities or nondelegable duties. A duty is nondelegable if a defendant is directed by a statute, ordinance, or safety order to provide certain safeguards or precautions or to maintain certain equipment in a specified condition.

Joint and Several Liability
 If two or more defendants are found liable for an indivisible injury, the defendants will be held jointly and severally liable. This means that each defendant is liable for the entire award regardless of the individual degree of fault. Because a so-called "deep pocket" defendant may be held liable for an entire damage award even if such a defendant is only fractionally liable, California has modified the doctrine of joint and several liability for personal injury cases. To apportion financial liability closer to the degree of fault, California does not apply several liability for non-economic damages.

Format of a Written Statement. Module 4

Format of a Written Statement

Important points

1. Written Statement is the response given by the defendant/respondent in a Civil Suit.
2. 
   
3. Format of a Written Statement is governed by Order VI (Pleading) and Order VIII (Written Statement) CPC. 
4. Heading/Title/Signature/Verification part is all same as in a Plaint.
5. The content/matter of the WS is written in points that correspond to the points mentioned in the Plaint. 
6. Each point in WS should accept or refute the allegations given in the same point of the plaint.
7. A WS may also contains new points, objections to jurisdiction, pre-emptory pleas, dialatory pleas, etc.
8. A WS must also raise any set-off or counter-claim if any.

---

In the Court of Civil Judge Class - I at Indore

Suit No. 1234 / 2009.

A. B. s/o B. C.
123, M G Road, Indore, MP                           .........................................  Plaintiff

Vs.

M. N. s/o O. P.
456, M G Road, Indore, MP                            .........................................  Respondent

Written Statement of the Respondent under Order 8 Rule 1
(or Written Statement on behalf of all the Respondents)

The respondent(s) respectfully state(s) as follows : -

(1) Para no. 1 of the plaint is admitted and needs no reply.
(2) Para no. 2 of the plaint is admitted and needs no reply.

(Facts constituting cause of action)
(3) Para no. 3 of the plaint is admitted and needs no reply.
(4) Para no. 4 of the plaint is admitted and needs no reply.
(5)  Para no. 5 of the plaint is denied and not admitted because the contract referred to by the plaintiff in Para no. 3 clearly specifies that the balance amount must be paid by 10/10/2008, failing which the agreement shall terminate and the buyer shall forfeit the initial deposit. However, the plaintiff never made the balance payment.
...
(Jurisdiction/Optional)
(10) The market value of the plot is more than 5,00,000/- and so this court has no jurisdiction to try this case.
(11) The plot is situated in Dewas, MP and so this court has no jurisdiction to try this case.

(12) The respondent therefore prays that the suit be dismissed with costs.

Place: ………………….                                                                            (Signature of the respondent)
Date: …………………..                                                                         


                                                                                                                    Advocate for Respondent

Verification

 I, ______, do hereby verify that the contents from paras 1 to 12 are correct and true to the best of my knowledge and personal belief and no part of it is false and nothing material has been concealed therein. Affirmed at Indore this 4th Day of September 2009.

(Signature)
Respondent

Plaint (Order VII). Format of a Plaint in a Civil Suit

Format of a Plaint in a Civil Suit Important points As per Order VI (Pleading) and Order VII (Plaint) CPC, Every plaint must contain the following things:
a) Name of the court
b) Name and details of the Parties
 c) If the plaintiff or the defendant is a minor/insane, a declaration to that effect
d) facts of the case -
e) facts constituting cause of action and when it arose
f) a statement about the value of the subject matter for the purpose of jurisdiction and court fees.
g) facts showing that the court has jurisdiction (territorial as well as pecuniary)
h) Relief prayed
i) Description of the set-off (if claimed)

Verification

Notary The heading or court is determined according to Section 15 to 20 of CPC. In MP, cases up to 25000/- are handled by Civil Judge Class II, cases upto 50,000/- are handled by Civil Judge Class I, and rest are handled by District Judge. In some states, they are called Court of Munsif. Although there is no special rule for this but general convention seems to be that, in the title of a suit, the word "Respondent" is used in Original civil suit while the word"Defendant" is used in applications made to - appellate court or supreme court.
 In the Court of Civil Judge Class - I at Indore
 Suit No. ………… / 20…….
A. B. s/o B. C. 123, A B Road, Indore, MP ......................................... Plaintiff
 Vs.
 M. N. s/o O. P. 456, A B Road, Indore, MP ......................................... Respondent

 Suit for Specific Performance of Contract to sell a residential plot The plaintiff respectfully states as follows : - Inducement:
(1) Plaintiff is a Govt. Servant working in Indore, MP. and so on
(2) Respondent is a property broker having an office at ...

 Material Facts of the case:
(3) The plaintiff agreed with the respondent on 10 Aug 2008 to purchase the Plot No 123 at Rani Bagh Colony, Indore. A copy of the contract is attached with the petition.
(4) The boundaries of the plot is as under: East: Road West: Plot number 124 North: Road South: Colony wall
(4) The total value of the plot to be paid by the plaintiff to the respondent, as agreed upon in the contract, is Rs. 40,000/-.
(5) The respondent accepted a payment of 10,000/- though Check No. 123 of SBI, Indore Branch at the time of making the contract and promised to do registry upon payment of remaining amount of 30,000/-
(5) The plaintiff tried to pay the remaining amount on several occasions by cash as well as check but the respondent refused to take the payment.
(6) The plaintiff also sent a notice about the same to the respondent on 10/10/2009.
(7) The plaintiff is ready to pay the remaining amount of Rs 30,000/- but the respondent is not willing to transfer the said plot. Cause of Action and Limitation
(8) The cause of action for the present suit first arose on 10/10/2009, when the respondent refused to convey the said property as per the terms of the agreement and hence, the suit filed today is within time. Valuation:
9 The suit is valued for the purpose of jurisdiction and court-fee at Rs. 30000/-. Jurisdiction:
(10) The plot is located in Indore, which is within this court's territorial jurisdiction.
 (11) The value of the contract is 40,000/- which is within this court's pecuniary jurisdiction. Relief Claimed: (12) The plaintiff, there fore prays that the court be pleased to order the respondent to perform his part of the contract by accepting the remaining payment and conveying the said plot to the plaintiff. the plaintiff be permitted to deposit the balance of consideration in this Hon'ble Court. the respondent be ordered to pay compensation for mental harrasment, loss of wages, and cost of this litigation.

 Place: …………………. (Signature of the plaintiff)
Date: ………………….. YYY Advocate

 Verification
 I, ______, do hereby solomnly verify that the contents from paras 1 to 4 are correct and true to the best of my knowledge and contents from para 5 to 12 are based on legal advice, which I believe to be correct.

Affirmed at Indore this 4th Day of September 2009.

 (Signature) Plaintiff

Professional Liability and Adjudicative Process

Medical malpractice law is emerging as a very important area of the law. Doctors being sued for negligence was said to be a common occurrence in the Western countries. With the era of globalisation and increased awareness of the people, it is now becoming common in India also. In this context, it is necessary to know the existing law with respect to medical malpractice.
There are various ways of approaching a problem of medical negligence. The approach of the complainant will be one and the approach of the Medical Practitioner to the complaint will accordingly have to be decided. There are various laws under which the complainant can approach the court. There is the Consumer Protection Act, the one that is most commonly used. Then there are remedies under the law of torts, a remedy under the Civil Law, for which knowledge of the Civil Procedure Code is essential; if the party happens to be the government, there is the option of suing it for violation of the Fundamental Right to life, 

Nursing Negligence

Nursing Negligence
http://www.rkmc.com/Nursing-Negligence.htm
In the health care field, the term malpractice originally encompassed only the negligent wrongs of a physician.  In the past, a distinct division existed between a nurse and a physician.  The nurse functioned within a much more defined framework.  Rather than diagnose patients, treat symptoms, or prescribe medication, it was sufficient for the nurse to wait for and then simply implement a physician’s order.  In years past it was virtually unprecedented for a nurse to criticize a physician’s order.

The role of the nurse, however, has changed.  Today, nurses commonly assume functions previously performed only by the physician.  In hospitals and clinics across the country, nurses have assumed the responsibilities such as the actual examination, diagnosis, and treatment of a patient, oftentimes without any direct supervision by a physician.

As nursing has matured into an increasingly advanced, sophisticated, specialized, and independent profession, the nurse’s role in providing patient care has also expanded – a reality that is particularly true in the face of the ever-increasing demand for cost-conscious health care.  As a result, liability for basic nursing negligence has shifted to its “professional” counterpart – malpractice liability.[1]  No other speciality relies more heavily on nurses to assess patients and evaluate treatment options than the field of obstetrical nursing, and the stakes for the patients and families involved could not be higher.

Professional Liability for Nursing Negligence

All nurses owe duties to the patients they serve.  According to the American Nurses Association, a nurse “promotes, advocates for, and strives to protect the health, safety, and rights of the patient.”[2]  Additionally, a nurse is both responsible and accountable for his or her individual nursing practice and will determine the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum patient care.[3]  In order to ensure that they are satisfying these ethical and legal responsibilities owed to their patients, modern obstetrical nurses play a prominent and important role in the evaluation of a woman as she progresses with her labor, and the ability of the fetus to successfully tolerate the labor.[4]  As the person with the greatest exposure to the patients, it is oftentimes ultimately the responsibility of the nurse to make crucial assessments of patient status and effectively communicate the status reports to the physician also charged with the care of the patient.  When there is a breakdown in this necessary line of communication, tragic results can follow.
Nurses with specialized training or extensive experience are held to a higher standard of care, corresponding to what a reasonable and prudent nurse with the same training or experience would have done in the same or substantially similar set of circumstances.[6]  Under this standard, an obstetrical nurse with vast experience and/or training will be presumed to recognize potential problems physician who restates the order or if the nurse relies on the physician’s assertion that the physician will take full responsibility employed by members of the nursing profession.  A nurse will be liable in tort if harm ensues because he or she does not have or use such knowledge, skill, care, or diligence.[7]

Chain of Command

A nurse that works for a hospital is legally obligated to be aware of these policies and procedures and to comply with the institution’s rules and regulations.[8] Procedures, rules, regulations, and by-laws of various health care institutions can be used to define the nursing standard of care.[9]  For example, a hospital ‘s procedure manual for nurses or a nurse’s job description may set forth in detail specific rules of conduct for nurses.   On occasion, a nurse may be confronted by a physician’s order which directly conflicts with written hospital policy.  If an order is not in accord with accepted medical standards, practices, customary procedures, hospital policies, or regulations, the nurse must defer, question, and even contravene the order.[10]

Nurses have a duty to advocate for the patient through the organizational chain of command when they believe that the physician is unresponsive to concerns about the patient’s condition or is making inappropriate patient care decisions.[11]  The chain of command is a specific course of action involving administrative and clinical lines of authority established to ensure effective conflict resolution in patient care situations.  A hypothetical example of such a policy may be as follows:

A nurse with concerns about patient care reports those concerns to the attending physician.  If after this conversation the concerns are not alleviated, the nurse will proceed to take the concerns to the following people in the following order until such concerns have been alleviated:

(1) Charge Nurse
(2) Nurse Manager or Administrative Supervisor
(3) Chief of the Department
(4) Chief of Staff
(5) Director of Hospital

A nurse is generally encouraged to call on or consult with nurse supervisors or with other physicians on the hospital staff concerning those matters, and when the patient’s condition reasonably requires it, the nurse has a duty to make those calls and or consultations when they are within the ordinary care and skill required by the relevant standard of conduct.[12]  When a nurse believes that executing an order would pose a clear risk of harm to the patient, he or she must not comply with the order.[13]  If after attempting clarification and confirmation, the order is not properly clarified, confirmed, or corrected, the nurse is obligated not to carry the order out.  If the physician insists that the nurse obey the order, despite being advised of potential problems, the nurse should delay executing the order and immediately report the matter to the nurse’s supervisor, and, if necessary, to another physician or another responsible hospital official.

If for example, a nurse is concerned that fetal monitoring strips indicate a fetus may be suffering some kind of distress, and after bringing his or her concerns to the attention of the attending physician the concerns remain unaddressed, the prudent nurse will bring those concerns to the attention of the Charge Nurse, and so forth, until those concerns have been properly and fully resolved.  The nurse who initiates the chain of command policy in such a situation is actively ensuring that his or her duty to act as an advocate for the patient has been satisfied.  Where no duty has been breached, malpractice liability cannot attach.

Conclusion

Nurses caring for patients have a responsibility to be an advocate for the patient. While not bearing responsibility for making medical decisions and judgments, the nurse bears significant accountability for intervening when it appears that decisions and judgments are not consistent with the standard of care. An effective communication policy that is well known by all nursing staff and physicians can, by its very existence, improve the quality of care delivered to patients, thereby improving patient outcomes and hopefully lessening the number of catastrophically injured infants.

Additional References

1.         Karen A. Ballard, Patient Safety: A Shared Responsibility, Online Journal of Issues in Nursing, Vol. #8 No. #3, Manuscript 4 (September 30, 2003) available at www.nursingworld.org/ojin/topic22/tpc22_4.html.
2.         Frank J. Cavico & Nancy M. Cavico, The Nursing Profession in the 1990's: Negligence and Malpractice Liability, 43 Clev. St. L. Rev. 557 (1995).

3.         Mary E. O’Keefe, Nursing Practice and the Law (Philadelphia: F.A. Davis Co. 2001).

[1]           See generally Rixey v. West Paces Ferry Hosp., Inc., 916 F.2d 608, 615 (11th Cir. 1990) (stating the appropriate cause of action  has now transformed into a malpractice action).  See also Lamb v. Candler Gen. Hosp., Inc., 413 S.E.2d 720, 722 (Ga. 1992); Ramage v. Cent. Ohio Emergency Serv., 592 N.E.2d 828, 833 (Ohio 1992).
[2]           American Nurses Association, Code of Ethics for Nurses with Interpretive Statements, (Washington, D.C.: American Nurses Publishing 2001).
[3]           American Nurses Association, Code of Ethics for Nurses with Interpretive Statements, (Washington, D.C.: American Nurses Publishing 2001).
[4]           Normal Pregnancy, Labor, And Delivery, The Merck Manual, available at http://www.merck.com/mrkshared/mmanual/section18/chapter249/249e.jsp.
[6]           See, e.g., Wheeler v. Yettie Kersting Mem. Hosp., 866 S.W.2d 32, 46-47 (Tx. Ct. App. 1993) (holding nurses liable for malpractice where they failed to correctly assess a pregnant patient, failed to use equipment to assess fetal heart tomes, and failed to provide the physician with an explanation as to why the patients records were incomplete).  See also Frank J. Cavico & Nancy M. Cavico, The Nursing Profession in the 1990's: Negligence and Malpractice Liability, 43 Clev. St. L. Rev. 557, 565 (1995).
[7]           See, e.g., Berdyck v. Shinde, 613 N.E.2d 1014, 1017, 1023 (Ohio 1993).  
[8]           See, e.g., St. Elizabeth Hosp. v. Graham, 883 S.W.2d 433, 437 (Tex. App. 1994) (noting nurses failed to comply with hospital’s policies and rules in failure to restrain case); Tobia v. Cooper Hosp. Univ. Med. Ctr., 643 A.2d 1, 4 (N.J. 1994) (holding nurses committed malpractice by not complying with hospital policy of not leaving patients unattended on emergency room stretchers with side rails down); Scribner v. Hillcrest Med. Ctr., 866 P.2d 437, 441 (Okla. Ct. App. 1992) (noting evidence clearly demonstrated that nurses were either ignorant of or failed to adhere to hospital policies concerning patient identification).
[9]           See Alvis v. Henderson Obstetrics, 592 N.E.2d 678, 682 (Ill. App. Ct. 1992) (noting nursing negligence when the nurses failed to detect a baby’s breech position in time for a doctor to perform a cesarean delivery despite the hospital policy requiring that its labor and delivery nurses be able to determine the presenting part of the baby by doing a vaginal exam).
[10]          See, e.g., Volger v. Dominguez, 624 N.E.2d 56, 63 (Ind. Ct. App. 1993) (“If a nurse . . . fails to . . . question a doctor’s order when [it is] not in accord with standard medical practice and the omission results in injury to the patient, the hospital will be liable for its [nurse] negligence.”); Czubinsky v. Doctors Hosp., 188 Cal. Rptr. 685, 686 (Cal. Ct. App. 1983) (holding the nurse liable for the injuries to the patient when the nurse chose to follow the physician’s orders and leave the patient while there was a specific hospital policy requiring that one member of the surgical team remain with a post-operative patient).
[11]          Mary E. O’Keefe, Nursing Practice and the Law 140-141(Philadelphia: F.A. Davis Co. 2001).  See generally Gladney v. Sneed, 742 So. 2d 642, 646 (La. Ct. App. 1999) (noting nurse testimony “that when a nurse sees that a necessary transfer has not been made, she must go to the ‘chain of command’ and ‘above the doctor’ to take action”).
[12]          Berdyck, 613 N.E.2d at 1024; Harris County Hosp. Dist. v. Estrada, 872 S.W.2d 759, 763 (Tex. App. 1993) (stating that if a drug order is contradicted because it contains abnormally high dosages, incompatible medications, or conflicts with the patient’s allergies or physical condition, the prudent nurse will refuse the order and immediately seek corroboration from the prescribing physician or other health care provider as indicated by hospital policy).
[13]          See, e.g., Koeniguer, 422 N.W.2d at 604 (applying “danger sign to the well-being of any patient” standard).

Nursing liability for Medical Negligence

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