Ethical and Bioethical Issues in Nursing and Health Care: Reframing the

Anatomy of Malpractice
Dr. Cyruz Polero Tuppal
RN, RM, RT, MSN, MASPED, DMS, DNS

Estimated Deaths Due to Medical Error

Source The Philadelphia Inquirer

How Hazardous Is Health Care?

(Modified from Leape)

Dangerous (>1/1000)
100000

Regulated

Ultra-Safe (<1/100K)

Total lives lost per year

HealthCare

10000 1000 100 10 1

1 10 100 1000

Driving

Scheduled Airlines Mountain Climbing Bungee Jumping

Chemical Manufacturing Chartered Flights
10000 100000

European Railroads Nuclear Power

1000000 10000000

Numbers of encounter for each fatality

Why Do So Many

Mistakes Occur?

Human Error
Extensively studied in other industries Cognitive psychologists divide errors into: Errors occurring in automatic mode Slips Occur during fatigue, interruptions, anxiety Errors occurring in problem solving mode Mistakes Occur due to incomplete knowledge and the tendency to apply rules to simplify problem solving

Why is NURSING so susceptible?

Lack of awareness to the problem Culture of Silence Blame and shame mentality System constraints Staffing problems Fatigue Knowledge requirements Communication and continuity of care

Bioethical Questions in Health Care

Should health professionals tell everything about their patients health status? Is it ethical to withhold the truth from dying patients? Should there be a limit to truth telling?
Is it morally justified for a medical practitioner to carry medical treatment that would save a patients life but goes against his/her religious convictions? When should life-sustaining medical treatments like breathing machines or feeding tubes be started, continued or stopped?

Continue
What should family members and health care professionals do if a patient refuses treatment that promises to be medically helpful? Who should make health care decisions for patients when they are unable to communicate or decide for themselves? What should patients do when they do not understand what health professionals are saying and feel that they are not offered to participate in their health care decisions?
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Continue
Is it ethical to deceive (not tell the truth) patients for their own good? Should the basis to distribute health care be on the willingness and ability to pay of the potential recipients?

CASE ANALYSIS
A young man named James was injured late at night in a car accident. Because the hospital in the rural area where the accident occurred could not care for him properly, he was flown to a tertiary hospital in a nearby city. Because of head injuries, James was in a coma and had very difficult time breathing. The physician in the emergency room supplied a respirator. He also installed a nasogastric tube to provide nutrition and hydration.
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CASE ANALYSIS
His family-a wife and three childrendid not hear of the accident until after James had been admitted to the emergency room. It took them another day to drive to the hospital. When they arrived, James sister who had come much earlier had informed the physician that she was the legally appointed proxy for James by reason of a Durable Power of Attorney (DPA) which James had signed only two weeks before the accident.
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CASE ANALYSIS
James sister asked the physician to remove both the respirator and the artificial hydration and nutrition because James had stated when he handed her the DPA that he never wanted his life prolonged by mechanical devices. The physician on the other hand offered a medical prognosis which held some hope for James recovery. In fact, one physician said: I have seen people in worse condition walk out of here.
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CASE ANALYSIS

Who has the right to decide about James treatment? The physician or his sister?

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Somera Case
This is where a nurse failed to question a doctors order and is often cited as proof of nurses independent accountability. In 1929,in Manila Lorenza Somera (a nurse), was found guilty of manslaughter, sentenced to a year in prison, and fined one thousand pesos
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Somera Case
For following a physicians orders. (Somera assisted a physician in a tonsillectomy. The physician ordered an injection of cocaine to be prepared. Somera prepared it, the physician administered it, and the patient died. The drug he meant to ask was procaine.)

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Somera Case
She was found guilty(while the doctor was acquitted) because when the doctors said cocaine, she did not question his orders.

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Ethics in Nursing
It is not enough for todays nurses to be technically competent but they also have to be morally and ethically grounded

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Ethics of Nursing
Ethics is a field of knowledge that has developed over many years.
In the West - Greek philosophers who lived a long time ago. We call this the Western Philosophical Tradition (WPT). In the Eastern - Confucius thought, Taoism, Buddhism for example.
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Ethics of Nursing
Nursing Ethics is the discipline of
evaluating the merits, risks, and social concerns of activities in the field of nursing Some people define nursing ethics as part of bioethics since the same knowledge base is often used. Others in nursing define nursing ethics as separate from Bioethics since the usual applied ethics does not help nurses deal with the ethical issues that they often face. That is one reason why Caring Ethics and Feminist Ethics have developed.
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Code of Ethics for Nursing Students Code of Academic and Clinical Conduct The code of Academic and Clinical conduct is based on an understanding that to practice nursing as a student is an agreement to uphold the trust with which society has placed in us

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A CODE FOR NURSING STUDENTS

Advocate the rights of all clients Maintain client confidentiality

Take appropriate action to ensure the safety of clients, self , and others
Provide care for the client in a timely, compassionate and professional manner
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A CODE FOR NURSING STUDENTS

Communicate client care in a truthful Promote excellence in nursing by encouraging lifelong learning and professional development

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A CODE FOR NURSING STUDENTS

Treat others with respect and promote environment that respects human rights, values, a choice of cultural and spiritual beliefs

Collaborate in every reasonable manner with the academic faculty and clinical staff to ensure the highest quality of client care Use every opportunity to improve faculty and clinical staff understanding of the learning needs of nursing students
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A CODE FOR NURSING STUDENTS

Encourage faculty, clinical staff, and peers to mentor nursing students Refrain from performing any technique or procedure for which the student has not been adequately trained Refrain from any deliberate action or omission of care in the academic or clinical setting that creates unnecessary risk of injury to client, self or others
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A CODE FOR NURSING STUDENTS

Assist in ensuring that there is full disclosure and that consent is obtained from clients regarding any form of treatment or research

Abstain from the use of alcoholic beverages or any substances in the academic and clinical setting that impair judgment

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Principles of Health Care Ethics

Beneficence: means doing or promoting good in such a manner as to safeguard and promote the interest and well being of patients and clients

To promote goodness, kindness, and charity To abstain from injuring others and to help others further their well-being by removing them from harm Common bioethical conflict results from an imbalance between the demands of beneficence and those of the health 26 care delivery system

Principles of Health Care Ethics

Nonmaleficence means to avoid doing harm, to remove from harm, and to prevent harm
Harm can be physical and so include pain, disability, discomfort and death but it can also be psychological and thus include mental stress

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Principles of Health Care Ethics

Autonomy and consent: Principles of self determination The cardinal principles of autonomy
The right to full disclosure- the right to know The right to privacy The right to receive care and treatment

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Principles of Health Care Ethics

Autonomy and consent: Principle of respect for the person Unconditional intrinsic value for all People are free to form judgments and actions as long as they do not infringe on others Concepts of freedom and informed consent are grounded in this principle
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Principles of Health Care Ethics

Justice: The principle of fairness is the basis for the obligation to treat all clients equally and fairly Principle of Egalitarianism

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Principles of Health Care Ethics

Veracity: telling the truth. Clients prefer to receive accurate information about their conditions and prognosis even when the outlook is bleak
Principle of truth-telling Consumers expect accurate and precise information For trust to develop between providers and patients, there must be truthful communication The challenge is to mesh the need for truthful communication with the need to protect

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Principles of Health Care Ethics

Privacy:
To ensure that the patients body is appropriate covered To establish a culture of privacy to ensure that personal information of patients is kept as private as possible

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Principles of Health Care Ethics

Confidentiality: To preserving the human dignity of patients Discussing clients outside the clinical setting, telling friends or family about clients, or even discussing clients in the elevator with other workers violates client confidentiality and must be a voided
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Principles of Health Care Ethics

Responsibility: A nurse, who neglects to give a patient pain relief can be said to have caused that patient harm Proving negligence (i.e. that the nurse is legally responsible) It is not only human beings who can cause something to happen, since conditions (e.g. staff shortages, poor equipment, inadequate resources, and so forth) may also cause accidents or result in a patient being injured
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Principles of Health Care Ethics

Accountability
Is about justifying actions, explaining why something was (or was not) done The purpose of calling people to account for their actions is therefore to establish whether they had good enough reasons for acting in the way they did
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Principles of Health Care Ethics

FIDELITY
The professionals faithfulness or loyalty to agreements & responsibilities accepted as part of the practice of the profession

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Be competent in your practice

The nurses are always responsible for their behaviours Has to refuse to perform procedures for which they havent been prepared Ignorance isnt a legal defence. Neither will lack of sleep or overwork be accepted as a legal reason for carelessness about safety measures 37 or mistakes

The ICN- Code of Ethics for Nurses (2006)

Nurses have four fundamental responsibilities:
To promote health To prevent illness To restore health To alleviate suffering

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The ICN Code of Ethics

Nursing care is respectful of and unrestricted by considerations of age, color, creed, culture, disability or illness, gender, sexual orientation, nationality, politics, race or social status

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NURSES AND PEOPLE

The nurse shares with society the responsibility for initiating and supporting action to meet the health and social needs of the public, in particular those of vulnerable populations The nurse also shares responsibility to sustain and protect the natural environment from depletion, pollution, degradation and destruction
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NURSES AND THE PROFESSION

The nurse is active in developing a core of research-based professional knowledge

The nurse, acting through the professional organization, participates in creating and maintaining safe, equitable social and economic working conditions in nursing
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Ethical Issues/Problems/ Dilemmas

Ethical Issues/Problems/ DilemmasDefinition and Types

Ethical issues/problems/dilemmas are situations in which there are conflicting moral claims. In some of these situations people: Do not know what the ethically right thing to do is. Do not agree about the ethically right thing to do. Can find no satisfactory solution or there are two equally unsatisfactory solutions. Know what the ethically right thing to do is, but do not want to act on this.

Ethical Issues- Underlying Values and Their Sources

Why do we define some events as ethical issues or problems?

Ethical Issues- Underlying Values and Their Sources

The definition of the human being, the person, the family Our cultural values that have developed over time and have been influenced by philosophy and religion. These may differ in the east and the west because of the different sources that have shaped our ethics. The ideals, developed in the 17th and 18th centuries called the Age of Enlightenment and the Age of Reason, influenced the West and especially the USA in its values and definitions. Emphasis on individual rights. Less emphasis on obligations. Certain values are perquisite to ethical principles.

Developments in science and technology that have changed certain events When is the fetus a person? Impact of Reproductive Technology in general. Information about the fetus- malformed, gender. With knowledge comes responsibility. Use of genetic knowledge/ information/screening. Will this knowledge change our understanding of what it is to be human? Will it erase the notion of the sanctity of human life? When is a person terminally ill? When is a person dead?

Ethical Theories or Way of Thinking About Ethical Problems/ Issues/Dilemmas How you decide what is the ethically right thing to do will depend on how you ethically define the situation and which values and ethical principles you use.

Virtue Ethics Virtue Ethics Asks about the character of the person. What characteristics of character make the Good Nurse? Compassion (What does it mean to be compassionate in a specific situation?)

2.

Principle Based Ethics Asks: What is the ethically right action to take in a given situation?
Autonomy- Adult competent patients right to decide Do No Harm- very old medical/nursing ethical principle. Meaning of Harm? Do Good- Meaning of Good? Justice fair distribution of burdens/benefits in society. How decide? Rule of Truth Telling. Should we always tell the truth? What is Truth? Rule of Promise Keeping- Is there anything that might justify not keeping a promise we have made? Act is ethical if it brings about the Greatest Good. This does NOT say the act must bring about good for EVERYONE What do we do ethically if one of these principles/rules conflicts with another principle? Which ethical principle would you allow to determine the ethically right choice?

Caring Ethics
3. Asks: What ethically should the nature of this relationship be? What do we mean by caring? Must every relationship be caring? Must every encounter that a nurse has with a patient be caring? Do all patients want a caring relationship with a nurse or is this an idea that comes from nursing? How can we have caring relationships with patients if we have a shortage of nurses?

Feminist Ethics
4. Asks: How does this situation that requires an ethical response affect women? This ethics privileges women. Nursing has turned more to caring Ethics than to Feminist Ethics.

Caring and Feminist Ethics

5. Both new and in need of more development but important to include in our thinking.

3. Clinical Ethical Issues

Many of our ethical issues arise when dealing with the beginning of human life or the end of human life and the use of technology but there are other ethical. Often they are viewed as clinical problems but not ethical problems.

How should a nurse allocate her/his time and effort when caring for 8 acutely ill patients? Time and effort are resources. What should a health professional do when he/she sees a colleague engaging in an unethical act? Because of the familys wish, his terminal ill status has not been told the patient but the nurse is sure he knows he is dying. What should the nurse do ethically when this patient directly asks her about his condition?

 Is lying to a patient ever ethical? What constitutes a lie? Is a placebo a lie? Ethically, what should the nurse do when she/he does not like the patient and realizes that she/he is not responding to this patient? Should patients be involved in the decisions about their own medical treatment? What if the patient is a teenager? An old person? A hospitalized mental patient? Should the nurse follow a doctors order if she/he thinks there is a potential problem with the order?

 Two ethical principles are Do No Harm and Do Good. What do we mean by Harm and Good? Health professionals have 2 basic ethical obligations: (1) to extend life (sanctity of human life) & (2) to lessen pain and suffering (do no harm). Can they do both in this situation when morphine may shorten patients life?

Issues of Justice
How to allocate burdens and benefits in a fair and just way? Who should receive what when not all can have what he/she needs to live? Should more money be spent on prevention than on acute care and especially on terminal care? How ethically justify spending money on futile medical care? What about life styles?

How can we justify futile treatment when by definition this treatment will not benefit the patient? Is there any futile nursing care? Is all nursing care beneficial? Policy/law- what policy/law should a society have to be ethical? What is the best balance between personal individual choice and the common good?

4. Research Ethics
Informed consent is the cornerstone of present day health care in the west, based on the value of individual autonomy and, on the basis of this information, the right to agree or refuse to participate in research or to undergo the treatment being proposed.

Informed Consent
Treatment- We assume that treatment is for the benefit of the patient. Clinical trials are complex and can be for both treatment and research. Research may or may not be for the benefit of the patient. May be beneficial for science and future patients.

Is informed consent possible? How can we communicate complex ideas to people so they understand? How much information is enough? Can giving too much information be a problem? How can a researcher, with a vested interest in doing this research project, really obtain informed consent?

Should a clinical nurse conduct research on patients for whom she is their clinical nurse? Conflict of interest? What about research on prisoners who receive money from research participation?

How can we judge the risk/benefit ratio? Physical risk, psychological risk, social risk? Vulnerable populations- mentally ill, mentally retarded, very elderly infirmed person, children- If someone else makes the decision for the vulnerable person to participate in research, this is no longer autonomy but it is acting in the best interest of the patient.

Should well children ever be asked to participate in research as a control group when there is some risk to them? What sort and how much risk? Might the age of the patient make a difference such as an 8 year old or a 16 year old?

4. Allocation of Resources
In the USA they spend much of their health care dollar on aggressive end-of-life technology care while many people. This is obviously an ethical problem in resource allocation. Examples of Macro- allocation while the example of the nurse organizing her/his time and effort to care for 8 acutely patients is an example of Micro- allocation issues. Both are important ethical questions.

 Every government must decide how much of the budget will go for education, transportation, health care, etc. Within each category that the government is responsible for, decision must be made. How much health services money for prevention, curative care, end-of-life care including aggressive treatment and comfort care, building hospitals, community clinics, etc.

 One can define such decisions as political but in essence they are ethical issues. For the first time in human history, societies have many older people. Older people use more health services than other age groups. Decisions that are made in various societies will be ethical decisions based on definitions and values.

 According to WHO information, Long Term Care (LTC) is a major health and social problem for both developed and developing countries. This will increase. But monies are still allocated for diseases such as malaria, TB, etc. and not for LTC.

5. Policy Ethical Issues

Difficult to separate out resource allocation from policy.

Policy goes beyond allocation of resources to include:

Who gets to make what sorts of decisions about which concerns in society? Do you ask question about this or take it for granted? Problem of the elasticity of expertise. Because I am an expert in one field, I and others assume I can make decisions about other items I know little or nothing about.

Examples of policy issues that are ethical More money for boys sports than girls sports in schools supported by tax monies. Why? What assumptions? What biases? What values? What facts? Medical research using only male human subjects. Heart research is good example- (1) assumed that women did not have heart disease, or (2) possible to take findings from research with only male subjects and extrapolate to females since no differences. Does the nurse practice act (law) protect nurses so that they can act ethically? Should nurses report colleagues who are engaged in unethical acts? This is called WHISTLE

BLOWING.

Informal non-policy, political institutional culture ethical issues

The clinical nurse has multiple ethical obligations with the primary one being to the patient. To whom does the nursing leadership in a hospital have primary ethical obligation towards? Clinical nurses, physicians, the hospital, the patient? If there is a conflict between nurses and doctors and the nurses are ethically right, whom should the nursing administration support? Why might that happen or not happen?

What professional rights do nurses have in a health care institution? What professional obligations do nurses have in health care institutions? Do nurses assume responsibility for their professional actions? Should they? What are the factors that help or hinder this?

The Professional Organization

Should membership in a professional organization be obligatory or left up to the individual? The Code of Ethics for Nurses. Why have a code? What does it say? What purpose does it serve? Professional organization as Labor Union? Issues? Is it ethical for nurses to strike? If no, why? If yes, why?

Does National Nursing Associations like the PNA take political positions about issues in society? Should your? Does the International Congress of Nurses take political positions? Should it? What political issues in society do not have influence or effect on the health status of the population? What does the answer to this question mean ethically?

Future Implications
Scientific research over the past two decades has resulted in rapidly developing technology, greatly altering health care and medical and nursing practice

Research has forced health care providers to address such issues as:
Who should receive the benefits of technology What are the long-term results of life-supporting and life-extending procedures What kind of future generations we are preparing

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Future Implications
Having addressed these issues, can we say that our decisions are ethical? What will be the ultimate cost in consumer health? What will be the actual cost to society?

Where do nursing responsibilities lie?

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Future Implications
To ensure the best possible consumer health care in the future, physicians and nurses will have to forge a closer, more collegial relationship Such a relationship will demand a high order of ethical and professional obligation
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Moral Decision Making Model

From Ethics in Nursing Practice
By Sara T. Fry, Megan-Jane Johnstone, 2002, p,. 58

Access the Situation

Evaluate moral outcomes

Identify moral problems

Implement moral plan of action

Set moral goals and plan moral action

Accessed at http://books.google.com/books?id=oFgK7pJO3UAC&pg=PA58&lpg=PA58&dq=moral+ decision+making+models+nursing&source=web&ots=Kkxg4BNpcF&sig=IQAGuVhYF9 obQX-RXkPX3QalpzU&hl=en&sa=X&oi=book_result&resnum=1&ct=result

Nurses.
I am not

at the Court:

Guilty your

Honor!

Case Briefs/Digests

This information is not intended to serve as legal or medical advice or represent the standard of care for the practice of nursing. If legal, medical or other professional advice is required, the services of a professional should be sought. C.P.T.

Case No. 1
A nursing student's negligence resulted in the fall and injury of patient during transfer. A nursing student at this students level had the training and should have been able to care for this patient. The student nurse testified she had received training to assist patients with ambulation and transfer. The nursing students preceptor testified the patient needed someone close with her at a safe distance at all times to ambulate. The healthcare facility was held to the same legal standard of care for a student nurses error or omission as for the same error or omission by a licensed professional nurse.

Case No. 2
The physician wanted his patient to receive skilled nursing care. He wrote an order for the home health nurses to repack her hip decubitus wound with antiseptic gauze. Instead, the nurses showed home health aides how to re-pack the wound and left them on their own to do wound care. Wound healing was delayed more than a year, and the nurses were ruled negligent.

Case No. 3
A nurse cannot reassure parents their infant will be all right without fully assessing the childs condition and obtaining a physicians examination. Based on the nurses reassurances, the parents did not wait to see the physician, and the child died. The hospital was ordered to pay nearly two million dollars for negligence.

Case No. 4
The thirty-five year-old patient, pregnant for the first time, came to the clinic for a prenatal visit at thirtythree or thirty-four weeks. She was seen in the clinic only by a student nurse. The patient reportedly told the student nurse she had noticed a reduction in fetal movement over the previous few days. The student nurse conducted a comprehensive exam. She documented elevated blood pressure, proteinuria, pitting edema fro m the mid-calf down and the fact the fetus was in breech presentation. The student nurse also charted that she was unable to detect a fetal heart rate

Case No. 5
The parents of a child with cerebral palsy who suffered catastrophic brain injuries at birth obtained a $4,400,000 jury verdict in the Court of Common Pleas, York County, South Carolina. The lawsuit pointed squarely at the decision made at the hospital to assign only a student nurse to care for the mother during her labor. The medical experts reviewed the fetal monitor strips and testified at trial that there were clear signs of fetal distress which would have prompted a fully trained and competent labor and delivery nurse to call in the obstetrician.
Wilson v. Piedmont Medical Center, 2009 WL 1740411 (Ct. Comm. Pl. York Co., South Carolina, February 13 ,2009).

Case No. 5
The patient was to undergo fundoplication surgery to repair an esophageal hernia. The procedure involves insertion of an esophageal dilator, which at this hospital is done by the anesthesia team at the surgeons direction. In this case the dilator was to be inserted by an RN in train ing to become a certified registered nurse anesthetist (CRNA).

Case No. 5
The RN introduced herself to the patient right before the procedure. She introduced herself by her first name only and said only that she was a registered nurse who would be working with the nurse anesthetist and anesthesiologist. She referred to the nurse anesthetist by her first and last names and to the anesthesiologist by the title Doctor and his last name. The RN tore the lining of the esophagus attempting to insert the dilator. The patients abdomen had to be opened intraoperatively to repair the damage and that more-invasive-than-expected turn of events led to serious complications.
Luettke v. St. Vincent Mercy Med. Ctr., 2006 WL 2105049 (Ohio App., July 28, 2006).

Case No. 6 Student Nurse: Errors And Omissions Are Professional Malpractice.
According to the record in the Court of Appeals of Michigan, a student nurse administered nystatin to a patient through an intravenous line rather than giving it orally and the patient soon died as a direct result. The family sued the hospital where it happened and the board of regents of the university where the student nurse was enrolled. The circuit court dismissed the familys lawsuit on the grounds the family s attorneys did not file an expert witness report as required by state law.
Dennis v. Specialty Select Hosp.-Flint, 2005 WL 2402454 (Mich. App., September 29, 2005).

Case no. 7 Nurse As Witness: Court OKs Testimony As Lay Witness

A nurse slipped and fell on the floor while visiting a nursing home. She filed a personal injury lawsuit against the nursing home. She claimed residual disability from a torn meniscus and bursitis in her shoulder. A Nurse Is Not A Medical Expert. In an opinion that has not yet been released for publication, the California Court of Appeal ruled the nurse could not testify as an expert in orthopedics in support of her allegation of a torn meniscus. The court discounted the nurses twenty years work experience in the emergency room. But that was not the end of her case. Lay persons, that is, persons who do not qualify as medical experts, can testify about pain and suffering and limitation of activities, often the heart of the legal damages in personal injury cases.
Hurd v. Windsor Garden Convalescent Hospital, 2002 WL 1558600 (Cal. App., July 16, 2002).

Case No. 8
Courts often give surgical patients the benefit of the res ipsa loquitur rule because a patient in the operating room is unconscious and unaware of what is going on, and only medical personnel who are potential medical malpractice defendants are with the patient. Res ipsa loquitur translates as "The thing speaks for itself."

Case No. 9
The telling fact which swayed the Court of Appeals of Indiana not to apply res ipsa loquitur in favor of the patient, but to rule in favor of the hospital, was a med/surg staff nurses chart note of her nursing physical assessment of the patient. The nurse noted a burn on the patients thigh as one of the multiple traumas from the industrial mishap which brought the patient to the hospital in the first place, among other things, for the orthopedic ankle surgery in which he allegedly sustained a burn from the bovie pad.

Case No. 10
The patients attorneys were unable, or did not think it necessary, to produce expert medical testimony that the patients thigh burn was the type consistent with an electrical burn from a bovie pad. The patients case rested entirely on the patients testimony that he noticed the burn a day or two after surgery. This was not sufficient for the court to invoke the rule of res ipsa loquitur for the patients benefit, and he lost his case.
Slease vs. Hughbanks, 684 N.E. 2d 496 (Ind. App., 1997).

Case No. 9
The experienced labor and delivery nurse, the lawsuit alleged, could plainly see from the fetal monitor that the fetus was in deep distress. When the baby appeared with a nuchal cord and the resident still d id not know what to do, it was clearly time for the nurse to take decisive action. The nurse was faulted for failing to summon a more experienced resident physician or the staff obstetrician or a nursing supervisor when it was obvious to the nurse that the first-year residents incompetence was posing a grave threat to the patient. Baby Doe v. (Confidential) Hospital, 2007 WL 1576360 (Sup. Ct. King Co., Washington, January 30, 2007).

S I T U A T I O N 10

A heated IV bag was placed under the armpit of the sixty-six year-old patient for about two hours during hip-replacement surgery. After the procedure the patient had a very uncomfortable burn wound which required more than a year of treatment with topical steroid creams. The patient's lawyer argued there was no plausible explanation for the injury other than negligence by the hospital's certified registered nurse anesthetist who used the IV bag to position the patient.

S I T U A T I O N

The jury in the Circuit Court, Dade County, Florida awarded the patient $350,000. Rodriguez v. Palm Springs General Hosp., 2007 WL 4247300 (Cir. Ct. Dade County, Florida, November 21, 2007).

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S I T U A T I O N 11

The patient had just had orbital decompression surgery. The post-surgical orders included an ice pack to control postoperative swelling. A nurse filled a surgical glove with ice and secured the ice pack in place over the operative eye with a Velcro strap. When the surgeon later removed the strap and the ice pack and checked the patient's vision he found total blindness in the eye. The patient's medical experts related the damage to the eye to excessive pressure from the Velcro strap on the ice pack. It was not, the experts said, a complication of the surgery itself.

S I T U A T I O N 11

The Court of Appeals of Texas ruled the patient had grounds to sue the hospital for the nurse's negligence. Baylor Univ. Med. Center v. Rosa,-S.W. 3d--, 2007 WL 4282433 (Tex. App., December 7, 2007).

S I T U A T I O N 12

The Court of Appeal of Louisiana dismissed a university-affiliated facility and its staff physicians from the patient's parents' lawsuit, ruling that the child's injuries were solely the result of negligence by the medical and nursing staff at the community general hospital where she first presented in the emergency department.

S I T U A T I O N

The seven year-old was brought in to the E.R. with persistent abdominal pain with diarrhea, vomiting and resulting dehydration which had not resolved with antibiotics prescribed to her as an outpatient. She had high fever, low blood pressure, rapid heart rate and minimal urine output indicating possible renal failure. Her BUN and creatinine levels increased even with IV fluids.

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S I T U A T I O N 13

Eventually she was transferred to the pediatric intensive care unit at a teaching hospital. She was already in shock. She had fluid in her lungs and thirty minutes after being intubated she coded. She is now in a persistent vegetative state. Nursing Negligence The court believed the child belonged in pediatric intensive care from the start and the court faulted the nursing care on the first hospital's med/surg unit, where the child never belonged in the first place.

S I T U A T I O N 13

An abrupt drop in the child's blood pressure should have been recognized by the med/surg nurses as an ominous sign that had to be communicated promptly to a physician, given the child's clinical picture on admission, the court said. No actual harm had occurred when the child's blood pressure dropped, the court said. However, failure of the nurses to communicate with a physician was the starting point of a series of events leading eventually to a situation where the child could not be hydrated rapidly enough to reverse renal failure, shock, respiratory distress, cardiac arrest and irreversible hypoxic brain damage. Franklin v. Tulane University Hosp.,--So. 2d--, 2007 WL 4304428 (La. App., November 21, 2007).

S I T U A T I O N 13

The first hospital deviated from the standard of care in that the child should have been admitted to a pediatric intensive care unit.

The hospital did not have this level of care. The emergency room physician had enough clinical information, that is, the child's tachycardia, elevated BUN and elevated creatinine to realize that the child required intensive care.
Then, once the child was admitted to the hospital's general med/surg floor there was an abrupt change in blood pressure noted by the nursing staff on the floor.

S I T U A T I O N 13

The blood pressure drop, a major change in health status, was not communicated to any physician. That omission by the hospital's nursing staff represented a potential beginning of the child's impending clinical deterioration. There was delay getting the child hydrated to prevent septic shock. When the child did arrive in the intensive care unit at a tertiary care facility they could not hydrate her fast enough to prevent her from coding.

S I T U A T I O N 14

The seventy year-old patient had had prostate surgery ten years earlier. At that time an artificial urinary sphincter was implanted. He was admitted again to the same hospital where he had had the prostate surgery, this time for surgical correction of a small-bowel obstruction. As routine post-operative care a nurse inserted a Foley catheter. In the process of inserting the catheter the patient's artificial urinary sphincter was damaged.

The patient now requires an indwelling urinary catheter.

S I T U A T I O N 14

The patient claimed he warned the nurse he "had a pump down there" but to no avail. Pertinent Records Absent From the Chart The court record revealed that the hospital records pertaining specifically to the catheterization were missing from the chart.

The nurse, who could not be identified, was not named as a defendant in the lawsuit, nor could the nurse be located to testify in court one way or the other about his or her actions.

S I T U A T I O N 14

Prior Hospital Chart Should Have Been Reviewed

The patient's attorneys argued to the jury that the hospital staff should have made themselves aware of his condition by taking a complete medical history and by reviewing any and all prior treatment records at the hospital.
Once his caregivers were aware of his condition, a urology consult should have been obtained before attempting urinary catheterization, the lawsuit claimed.

S I T U A T I O N 14

The jury in the Circuit Court, Lake County, Florida awarded the patient almost $500,000. The hospital was ruled 55% at fault for the nurse's negligence and the treating physician, associated with an independent medical practice group, was ruled 45% to blame. Jacobs v. Leesburg Regional Medical Center, 2007 WL 1976951 (Cir. Ct. Lake Co., Florida, March 30, 2007).

Case No. 15
A one-year-old boy died in a hospital in Batangas City after a nursing student inadvertently injected him with a chemical compound meant to be infused through an intravenous drip. The negligence of the clinical instructor is the most glaring misgiving that this event exposes.

Case No. 16
A 5-month-old infant has been in the neonatal intensive care unit (ICU) since birth. The registered (ICU) nurse notices that she experiences a drop in her potassium level. After notifying the on-call resident and receiving an order for potassium chloride, the registered nurse administers 10 times the prescribed dose intravenously. Staff efforts to resuscitate the infant fail and she dies 1 week later. The hospital investigates the matter and finds that in addition to the dose being administered incorrectly, potassium chloride was not on the hospital's list of medications that could be administered intravenously by nursing staff. The nurse's conduct was clinically incompetent.

Definition of Law Law is the sum total of rules and regulations by which the society is governed. The law exists to regulate all persons. Functions of the Law in Nursing It tells us about which nursing actions in the care of clients are legal It distinguishes the responsibilities of the nurse from those of other healthcare providers It helps establish the boundaries of independent nursing action It assists in maintaining a standard of nursing practice by making nurses 110 accountable to their actions

Major Focus of the R.N. ___________________________

1. 2. Protect your clients rights Protect yourself from legal liability

How to Protect yourself ___________________________

1. 2. 3. 4. Know laws affecting nursing practice. Follow nurse practice act rules & regulations. Deliver safe, competent nursing care. Develop & use critical thinking abilities & skills.

Sources of Law ___________________________

1. 2. Statutory Law Regulatory Law

3.

Common Law

Statutory Law ___________________________

1. Created by legislative Bodies

Types of Statutory Law ___________________________

1. Criminal Laws written to prevent harm to society & provide punishment for crimes a. Felony a crime of a serious nature: rape, theft, kidnap, murder b. Misdemeanor a lesser crime

Types of Statutory Law ___________________________

2. Civil Law protect the rights of the individual in our society; encourage fair & equitable treatment among people a. Two types of Torts (Civil Wrongs) 1. Intentional Torts 2. Unintentional Torts

Intentional Torts
1. 2. 3. Assault Battery Invasion of Privacy a. publishing photos without consent b. disclosing confidential information 4. Defamation of Character a. Malice b. Slander c. Libel 5. False Imprisonment

Unintentional Torts
1. Negligence conduct that falls below the standard of care:

Failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.
(Potter & Perry, 2006)

Unintentional Tort __________________________

2. Malpractice is professional negligence a. It involves substandard care & the following four criteria: 1. The nurse (defendant) owed a duty to the patient (plaintiff.) 2. The nurse did not carry out that duty. 3. The client was injured. 4. The nurses failure to carry out the duty are both the actual and proximate causes of the injury ( Potter & Perry, 2005)

A Malpractice Case Won by the Plaintiff When:

____________________________________ 1. It is determined that the standard of care that any reasonable and prudent nurse in a similar setting with the same credentials would deliver, has been violated or omitted. 2. Nurse violated policy &/or procedure(s).

Ways to Avoid Being Liable for Negligence

______________________________
1. 2. 3. 4. Follow standards of care. Follow agencys policies & procedures. Deliver competent nursing care. Your best defense is thorough documentation of your assessments, interventions, and evaluations of your client(s). Communicate abnormal changes in client condition to the doctor, lead nurse, etc. Develop empathetic rapport with clients and be supportive of your clients.

5.

6.

Ways to Avoid Being Liable for Negligence

____________________________________ 7. Be and act concerned about your clients welfare. 8. Protect your clients from common causes of injury medication errors and falls. 9. Communicate with your clients. Explain your nursing care, and tests and procedures. Explain procedures before and as you are doing them. Document this communication with your client.

Your Role as a Student Nurse ___________________________

1. You must perform as a professional nurse. You are held to the same standards of safe and competent care as the registered nurse. You must be directly supervised during skilled procedures giving meds., setting up meds., doing dressing changes and other invasive procedures, etc.

2.

Regulatory Law Or Administrative Law

____________________________________ 1. Defined as laws made an administrative body. Example: Nurse Practice Act, rules & regulations for registered nurse practice.

Common Law ___________________________

1. 2. 3. Laws created by judicial (court) decisions. Common law is made through decisions made on individual court cases. Examples : Informed Consent Right to Refuse Treatment

Standards of Care ___________________________

1. Nurse Practice Act a. defines scope of practice and education requirements. Board of Nursing (BON) a. defines RN responsibilities, develops guidelines for safe delegation, defines rules & regulations for RN practice

2.

Standards of Care ___________________________

3. Nursing Professional Organizations a. Philippine Nurses Association (PNA) Developed standards of nursing practice, policy statements, & similar resolutions Joint Commissions on Accreditation of Healthcare Organizations (JCAHO) a. Mandates that hospitals, etc. must have standardized nursing policies & procedures

4.

Standards of Care ___________________________

5. Written Institutional Policy & Procedure Manuals a. Each health care institution will write their own standardized policies and procedures for employees to follow.

Guidelines for Quality Charting ___________________________

1. Be factual and objective. 2. Record subjective data using quotation marks. 3. Be accurate and careful. 4. Be thorough and complete. 5. Keep charting updated. 6. Be organized and logical. 7. Use the nursing process assessment, nursing diagnosis, planning, interventions, and evaluation.

Documentation Problems Seen in Malpractice Cases

____________________________________

1. Not charting the correct time events occur. 2. Failing to record verbal orders or to get them signed by the doctor. 3. Charting actions in advance to save time. 4. Documenting incorrect data.

Legal Issues ___________________________

1. Good Samaritan Law 2. Confidentiality 3. Informed Consent doctor gives the patient the information 4. Physician Orders 5. Change in Patients Status 6. Do Not Resuscitate Orders (DNR) 7. Incident Reports or Quality Assurance Reports

Stages of a Lawsuit
Arrest - what is an arrest, and when can an arrest occur? Booking & Bail - information about the processing that occurs after an arrest and how bail works. Arraignment - the defendant's first appearance in a courtroom. Plea Bargain - learn more about what goes into a plea bargain. Preliminary Hearing - in a preliminary hearing, a judge determines whether there is enough evidence to support a trial.

Stages of a Lawsuit
Pre-Trial Motions - pre-trial motions establish whether a trial should take place and, if so, what the boundaries at trial will be. Trial - at trial, a jury will consider whether the evidence proves the defendant's guilt "beyond a reasonable doubt". Sentencing - the stage of a criminal case where a judge determines the appropriate punishment. Alternative Sentences - punishment for criminal behavior doesn't always have to include prison time. Appeals - a criminal case isn't over after sentencing. The defendant can appeal a conviction to a higher court.

What constitute nursing malpractice?

First, the patient must establish that there was a nurse-patient relationship. Second, the patient must establish the scope of the duty that was owed by the nurse Third, the patient must establish that there was a departure from good and accepted practice. Fourth, there must be a causal relationship between the act or acts that departed from accepted nursing care and the patients injury.
Giordano, K. (2003) Examining Nursing Malpractice: A Defense Attorneys Perspectives. Retrieved from http://ccn.aacnjournals.org/content/23/2/104.full.pdf

The six behavioral categories for measuring the occurrence of nursing malpractice
1. Documented medication errors, where the nurse does not properly administer medication to a patient for any reason (e.g., incorrect dose, route, time); 2. Failure to follow physician orders or established protocols or policies; 3. Improper use of equipment or technology; 4. Failure to remove foreign objects from the patient; 5. Failure to provide sufficient monitoring and assessment of the patient; and 6. Failure to communicate, notify, and/or report key nursing information in a proper and timely manner.
Weld, K., & Bibb, S.. (2009). Concept Analysis: Malpractice and ModernDay Nursing Practice. Nursing Forum, 44(1), 2-10. Retrieved November 14, 2011, from ProQuest Medical Library. (Document ID: 1658385801).

Legal Basis for Nursing

RA 9173 ARTICLE VIII Penal and Miscellaneous Provisions Sec. 35. Prohibitions in the Practice of Nursing. - A fine of not less than Fifty thousand pesos (P50,000.00) nor more than One hundred thousand pesos (P100,000.00) or imprisonment of not less than one (1) year nor more than six (6) years, or both, upon the discretion of the court, shall be imposed upon:

Legal Basis for Nursing

(1) without a certificate of registration/professional license and professional identification card or special temporary permit or without having been declared exempt from examination in accordance with the provision of this Act; (2) who uses as his/her own certificate of registration/professional license and professional identification card or special temporary permit of another; or

Legal Basis for Nursing

(3) who uses an invalid certificate of registration/professional license, a suspended or revoked certificate of registration/professional license, or an expired or cancelled special/temporary permits; or (4) who gives any false evidence to the Board in order to obtain a certificate of registration/professional license, a professional identification card or special permit; or

Legal Basis for Nursing

(5) who falsely poses or advertises as a registered and licensed nurse or uses any other means that tend to convey the impression that he/she is a registered and licensed nurse; or (6) who appends B.S.N./R.N. (Bachelor of Science in Nursing/Registered Nurse) or any similar appendage to his/her name without having been conferred said degree or registration; or (7) who, as a registered and licensed nurse, abets or assists the illegal practice of a person who is not lawfully qualified to practice nursing.

Physicians and nurses need to accept the notion that error is an inevitable accompaniment of the human condition, even among conscientious professionals with high standards. Errors must be accepted as evidence of system flaws not character flaws.

Leape, 1994

Dura Lex Sed Lex Ignorantia Legis Non Excusat

Dr. Cyruz P. Tuppal drcyruztuppal@gmail.com +6329064394289