Nursing Practice

and the Law

Dr Beverley Brownell, RN, FNP, PhD

Objectives
1. Identify 3 major sources of laws.
2. Explain the differences between various
types of laws.
3. Differentiate between intentional
and an u
unintentional Tort..
3. Differentiate between negligence and
malpractice
4. Describe how nurse practice acts guide
nursing practice.
5. Discuss advance directives and how they
pertain to client’s rights.

Meaning of the Law

• For our particular purposes the law

means those rules that prescribe and
control social conduct in a formal and
legally binding manner (Bernzweig, 1996).
They are created in 3 ways:
• Statutory laws
• Common law
• Administrative law

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 Meaning of the Law
Statutory Laws
Definition: Laws written and enacted by
legislative bodies, such as state legislatures or
Congress i.e.
 Patient
P Self-Determination
lf D Act off 1990
1 0
 Americans with Disabilities Act
 Good Samaritan Act

Also includes laws that govern nursing practice

such as the state nurse practice acts.

Meaning of the Law

• Common law

• Develops within the court system as

judical decisions are made in various
cases, i.e. one case sets a precedent
for another.

Meaning of the Law

• Administrative law

• Established through authority given to

government agencies,
agencies i.e.
i e state boards
of nursing. These board have a duty
to meet the intent of laws or statues.

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 Sources of Law

• The Constitution – the U.S. constitution

is the foundation of American law.
• Statutes – created by localities, state
legislatures, and the U.S. Congress.
• Administrative Law – the Depart. of
health and Human Services, the Dept. of
Education are the federal agencies that
administer health-related laws.

Types of Law – Criminal Law

Developed to protect society from actions
that may threaten existence.
Felony
- serious, includes homicide, grand
larcenyy and nurse practice
p act violation
(practicing without a license)
Misdemeanor
- includes lesser offenses i.e.
traffic violations or shoplifting of
a small amount (misuse of
controlled substances)
Juvenile
– crimes carried out by individuals
younger than 18 years

Case Study
• You are working in a hospital where a well-known actor
is admitted with pheumocystic pneumonia which you
know is usually associated with AIDS. You are asked
by the physician to give an IV drug to sedate this
client while the physician does a procedure. The
client becomes oversedated,
oversedated has a respiratory arrest
and dies. You call your best friend to explain the
situation and you mention the actor’s name and that he
has AIDS. Your friend says that it is “illegal” for you
to be giving what he call “IV conscious sedation” and
you are in deep trouble. Where might you be able to
search to determine whether this is true? What type
of legal trouble might you have?

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Types of Law – Civil law
• Usually involve the violation of one
person’s rights against another’s rights.
Area that particularly affect nurses in
particular is tort law.
• Tort
T t
1. Quasi- Intentional tort – defamation
of character (slander & libel)
2. Intentional tort = Assault & Battery
3. Unintentional tort = Negligence &
Malpractice

Torts
• A tort = a civil wrong carried out by one
person against the person or property of
another (Black, 2004) i.e. nurses have a
duty to deliver care in such a manner
that the consumers of care are not
harmed.

• These legal duties of care may be

violated intentionally or unintentionally.

Examples of Torts
• 1. Failing to provide privacy during a
procedure
• 2. Medication error
• 3. Restraining a patient against his or her will
• 4. Telling the patient that he or she cannot
leave before paying the bill
• 5. Failing to report significant changes in a
patient’s condition
• 6. Patient falls
• *unintentional or intentional

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 Intentional Torts
• Usually involve situations of communication
where a person’s reputation, personal privacy,
or civil rights are violated. Defamation of
character = most common, includes:
Slander – one person discusses another in a
way that harms their reputation
Libel – written communication that harms
another’s reputation
Plaintiff must prove that nurse acted
maliciously, & wrote and spoke a lie.

Slander and Libel

• Characterized as intentional torts.
• Slander refers to the spoken word.
• Libel refers to the written word.
• Making a false statement about a client’s
diti th
condition thatt may result
lt iin an iinjury
j iis
considered slander.
• Making a written false statement about a
client’s condition that may result in an injury is
considered libel.

Slander and Libel

• Stating that a client who had blood
drawn for drug testing has a substance
abuse problem, when in fact the client
does not carry that diagnosis
diagnosis, could be
considered a slanderous statement.

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 Intentional Torts

• False Imprisonment
• Assault
A lt and
d B
Battery
tt

False imprisonment
- confining an individual against his or her
will by either physical (restraining) or
verbal (detaining) means i.e.,
Using restraints without appropriate consent
Restraining mentally handicapped individuals
who represent no threat
Detaining unwilling clients when they desire to
leave
Threatening clients with physical, emotional
action if they insist on leaving

Assault and battery

• Assault is threatening to do harm.
• Battery is touching another person
without his or her consent.
• “Iffy
you don’t stoppppushing
g that call bell,, I’ll
give you this injection with the biggest needle
that I can find: is an assaultive statement.
• Battery would occur if the injection were
given.
• Most medical treatments particularly,
surgery, would be battery if it were not for
informed consent from the client.

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 UnintentionalTorts
• Negligence = the unintentional tort of acting or failing
to act as an ordinary, reasonable, prudent person,
resulting in harm to the person to whom the duty of
care is owed (Black, 2004).
• Four requirements for negligence are:
1. A duty was owed to client
2. Professional duty violated, non-conformance to
standards of care
3. Failure to act by professional caused
the injuries
4. Actual harm or injury did occur.

Unintentional Torts
Malpractice - Represents professional
negligence.
Important principle to remember is referred
to as Respondeat superior, (‘let the master
answer’)) which holds that employers are liable
answer
for any negligence by their employees when
the employees were acting within the realm of
employment and when the alleged negligent
acts happened during employment (Aiken,
2004)

Malpractice – Case Study #1

• You are a nurse working in a hospital when the
physician tells you that you need to give an injection
of Vistaril (hydroxyzine pamoate). You made sure
that the order is documented and the medical comes
up from pharmacy which you check against the MAR
and find it correct
correct. You use at least two identifiers to
ensure the right pt and give the injection in the upper
outer quadrant of the buttocks and you document it.
A yr later you are being sued because the client says
that the injection caused sciatic nerve damage and his
whole leg is numb.

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 Questions
• 1. Is there a relationship?
• 2. Did you breach your duty?
• 3. Did the breach of duty cause the
injury?
• 4. Did injury or damage directly occur
as a result of the incident?

Case Study#2
• You are a nurse working on a surgical unit when you are
asked to float to pediatrics. Having no experience
with children a physician asks you to give digoxin to an
infant and writes an order for 2mL. To you this seems
a lot and you question the order with the head nurse.
She things that you are talking an oral dose and says
that this is normal. You give the medication by
injection and shortly afterwards the child codes.
When you attempt to use an Ambu bag, it is not on the
crash cart. The child eventually recovers; however, 21
years later, you receive notice that a young man is
suing you for giving him the wrong dose of digoxin
when he was an infant.

Case Study#3
• A nursing instructor on a clinical unit in a busy
metropolitan hospital instructed her students ot to
administer any medications unless she was present.
Andres, a second semester student, was unable to find
his nursing instructor, so he decided to administer
digoxin to his client without supervision. T’he dose
was 0.125mg. The unit dose came as digoxin 0.5
mg/mL. Andres gave the entire amount without
checking the dose or the client’s blood and potassium
levels. The client became toxic, and was transferred
to ICU. The family sued the hospital and the nursing
schol for malpractice. The nursing instructor was sued
under the principle of respondeat superior, even
though specific instructions had been given to the
student

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 Case Study#4
• Robin a new nurse on a medical-surgical floor is caring
for a 55 yr old male who is 2 dys post-op from a
lobectomy. The physician orders ambulation at least
twice a day. While Robin was attempting to ambulate
the patient in the morning, the patient became light-
headed and nauseated, so she instructed him to lie
down.
down Robin told the patient that they would try again
in the afternoon. On the 2nd attempt, Robin assessed
the patient who did not complain of any symptoms he
had previously experienced so Robin and the Nursing
Assistant (NA) took him for a walk. As they left the
room, the patient again complained of light-
headedness so they turned returned him to his bed.
The patient slipped, fell and fractured his arm on a
chair

Other Laws Relevant to

Nursing

Good Samaritan laws

Confidentiality (HIPAA)

Good Samaritan laws

• Developed to encourage physicians and
nurses to respond to emergencies.
• States that;
• When administering emergency care,
• nurses and d physicians
h i i are protectedd
• from civil liability providing they behave as an
ordinary, prudent, reasonable professional in
the same or similar circumstances (Prosser &
Keeton, 1984).
• However, if a payment is received for the
care, the law does not hold

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 Confidentiality
• Health Insurance Portability and
Accountability Act (HIPAA) of 1996
was passed as an effort to preserve
confidentiality and protect patient privacy
regarding health information and to improve
the portability and continuation of health-care
coverage.

Standards of
Practice

Nursing Standards

Established as guidelines for the

profession to ensure quality of care
Also used as criteria to determine
whether appropriate care has been
delivered

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 Types of Standards

Internal standards
Organizational standards
A t d state
Accepted t t andd national
ti l standards
t d d
Nurse Practice Acts
Patient Care Partnership – Patient Bill of
Rights

Informed Consent

Without informed consent many medical

procedures could be considered battery
Consent to treatment by y the client g
gives
the health care personnel the right to
deliver care without fear of prosecution

Informed Consent
The physician obtains the consent
Gives the client the information
States the risks and advantages
The nurse may be involved in the process
by gaining signatures on the appropriate
forms

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 Helpful Suggestions
• A mentally competent adult has
voluntarily given consent – client has
right to refuse care
• The client understands exactly what he
or she is consenting to
• The consent includes the risks,
alternative treatments, and outcomes
• The consent is written

Staying Out of
Court

Prevention

Keep yourself informed about new information

related to your area of practice
Insist that the health care institution keep
personnell informed
f d of
f all
ll changes
h in policies
l
and procedures and in the management of new
technological advances

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 Prevention
Follow the standards of care or practice
for your institution
D g
Delegate tasks and procedures
p to
appropriate personnel
Identify clients at risk for problems

Prevention
Establish and maintain a safe environment
Document precisely and carefully
Write detailed, factual and objective incident
reports
File incident reports with appropriate
personnel and departments
Recognize client behaviors that may cause
problems

Common Causes of
Negligence

Client falls
E
Equipment injuries
Failure to monitor
Failure to communicate
Medication errors
Medical errors

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 Avoiding Medication Errors

1. Right drug
2. Right dose
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3. Right route
4. Right time
5. Right client
6. Right reason
7. Right documentation

Appropriate Documentation
The adage “not documented, not done”
holds true in nursing.
According to the law, if something has
not been documented,, the responsible
p
party did not do whatever needed to be
done.

• If a nurse did not “do” something they

can be open to negligence or
malpractice charges.

Appropriate Documentation

Contemporaneous – document at time care was

given
Accurate – document exactly what was done
Truthful – document only what was done
Appropriate – document only what could be
discussed comfortably in a public setting.

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 Common Actions
Leading to Malpractice
Suits

The 6 Fs
Failure to appropriately assess a client
Failure to report changes in client
status
Failure to document in the client record
Failure to obtain informed consent
Failure to report a coworker’s negligence
Failure to provide adequate education

The 2 Big Bad Ones

Altering or falsifying a record

Vi l ti of
Violation f an internal
i t l or
external standard of practice

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 If a Problem Arises
When served with a complaint,
immediately contact legal counsel
Never sign any documents without
legal counsel
Notify your malpractice carrier if
covered; notify your institution
immediately
Keep all correspondence: written and
verbal

Professional Responsibilities
DNR orders – specific orders to health care
personnel not to initiate CPR measures.
Advance directives – Patient self-
determination act designed to address
questions re.
re life sustaining treatment in
life-sustaining
advance
The “living will” states an individual’s wishes
regarding the use of life-prolonging medical
treatment in the event that he/she is no
longer competent to make their own
informed tx decisions.

Professional Responsibilities
Health care surrogate- a family member or
close friend who has been chosen to make the
wishes of the client known to medical and
nursing personnel.

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 Conclusion

Nurses need to be aware of the

Nurse Practice Act in their states
Nurses need to familiarize
themselves with their institutions
institutions’
standards of care
Nurses need to understand the
most common causes of negligence
Nurses need to document
accurately and appropriately

The End

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