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Chapter 45 Legal Issues
Fundamentals Of Nursing - Theory (NUR 200)
Bradley University
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Worksheet: Chapter 45: Legal Issues
- Define law. a. The concept of law can be described as a binding practice, rule, or code of conduct that guides appropriate actions and defensible decisions of an individual or a group. Laws protect society by establishing acceptable patterns of behaviors and are enforceable by a controlling authority.
- Define liability. a. Liability means that the person is financially or legally responsible for something. Nurses are legally responsible for their own actions and this responsibility cannot be delegated —this is the basis for liability in nursing practice.
- Define malpractice. a. Malpractice is one source of legal liability. It means that a professional person has failed to act in a reasonable and prudent manner. If someone is harmed, the professional may be held liable.
- What are the sources and types of law? a. Constitutional Law i. A constitution is a system of fundamental laws and principles that prescribes the nature, functions, and limits of a government. 1. The U. Constitution is the superior law of the land and applies to all states throughout the United States. The U. Constitution limits the powers of the federal government and gives each state the power to govern itself and to pass laws to promote the health, welfare, order, and security of its citizens (police power). 2. Each state has a similar structure that likewise establishes the governing system for the state, its cities, and municipalities. Thus, all state and federal laws must be consistent with the U. Constitution. Any law that conflicts with the U. Constitution is considered invalid or void. If you would like to see a transcript of the Constitution, b. Statutory Law i. A statute is a law passed by Congress or by a state legislative body. Congress passes laws for the benefit of society as a whole, whereas states use their police power to pass laws to ensure the general health, safety, and welfare of their citizens. Nurse practice acts (NPAs) are examples of statutory law. NPAs, passed by the legislative body of each state, are regulations that govern the profession of nursing. c. Administrative Law i. Formally defined, administrative law refers to the laws that govern the activities of administrative agencies. Federal administrative agencies are created by Congress and state administrative agencies are created by each state’s legislative bodies. As applied to nursing, within each state’s NPA, the legislative body created a board of nursing to enforce the NPA. The board of nursing creates rules and regulations that define and expand on the provisions in the NPA necessary to ensure compliance with its statutory mission—to regulate the practice of nursing.
d. Common Law i. A compilation of laws made by judges or courts is known as common law. Also referred to as case law, common law is based on common customs and traditions. It comes from legal principles and guidelines that judges use to determine the outcome of legal cases 5. What laws and regulations guide nursing practice? a. Federal Law i. Bill of Rights- identifies, and in many ways limits, the role of government in individuals’ lives. protecting patients’ privacy rights is a fundamental role of the professional nurse that is derived from the Fourth Amendment
- What is one thing the nurse can do to protect a patient’s property? a. make arrangements for care of their belongings, ask, ii. HIPAA- protects health insurance benefits for workers who lose/change jobs, protects coverage for those with preexisting medical conditions, establish standards to protect privacy of personal health info.
- How can the nurse ensure confidentiality? a. don't share patient info with unauthorized individuals iii. HITECH- healthcare agencies are required to notify clients of breaches without unreasonable delay and in no more than 60 days
- How does social media affect this? a. don’t post anything about patient. iv. EMTALA- The Emergency Medical Treatment and Active Labor Act- have to provide emergency medical treatment to patients (including those in labor) who seek healthcare in the emergency department (ED), regardless of their ability to pay, legal status, or citizenship status
- How would this affect a patient who does not have health insurance or the ability to pay? a. v. PDSA- Patient Self Determination Act- client has right to make decisions regarding their own care.
- What is a living will?- gives directions about a person’s wishes regarding life-prolonging treatments if the person becomes unable to make those decisions. The individual must be alert and oriented (competent) when this legal document is drafted.
- What is a POA? - Power of attorney- identifies a person (called the surrogate decision maker) who will make healthcare decisions in the event the patient is unable to do so. The surrogate has the right to make the medical decisions for as long as the person is not able to do so for himself vi. ADA- Americans with Disabilities Act
- Define disability. - a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having an impairment b. State Laws
b. Meet the established character criteria c. Undergo a criminal background check and fingerprinting d. Pass the NCLEX-RN or -PN exam e. Pay an application fee f. Meet additional state requirements (e., a jurisprudence examination in Texas) 8. Define Scope of Practice. a. Nurse practice acts vary slightly state by state. However, in most states, the licensed practical nurse (LPN) scope of practice is limited in assessment privileges and interpretation of clinical data. Typically, LPN/LVNs do not have authority to alter nursing care plans. You must know the requirements of your state because they determine the legal limits of your practice. The following landmark case should make clear that no one, including an employer or provider, can increase a nurse’s legal scope of practice. b. True/False: A nurse who practices outside of the scope of practice can be charged with violation of the nurse practice act. 9. What constitutes unprofessional conduct or conduce derogatory to the standards of nursing? a. Nurses whose actions may be injurious to patients or coworkers or negatively affect the health safety and welfare of the general public exemplify unprofessional conduct not in accordance with standards of nursing practice Share at least 5 examples: b. Acting outside your scope of practice c. Inaccurately recording, falsifying, altering or destroying a patient or agency records or directing others to perform these behaviors d. Failure to document nursing interventions and nursing practice implementation in a timely, accurate, thorough, and clear manner; this includes failing to document a late entry within a reasonable time period e. Failure to communicate information regarding the client’s status to individuals who have a need to know in a timely manner f. Causing intentional or careless physical abuse or harm to a client, including unreasonable use of restraint, isolation, or medication; threatening or frightening patients; verbal abuse; sexual abuse, misconduct, profane language, derogatory names, or exploitation 10. Define credentialing, accreditation, and certification. Provide examples of each. a. Credentialing: i. Many healthcare disciplines, including nursing, use a voluntary form of self- regulation called credentialing. In the legal sense, credentialing includes accreditation and certification. Having credentials implies that the person or agency has met higher standards than the minimum b. Accreditation: i. Most nursing boards require that a nursing program be accredited by an agency recognized by the Department of Education (e., Accreditation Commission for Education in Nursing [ACEN] or the Commission on Collegiate Nursing Education [CCNE]). This helps to ensure students receive education that meets the minimum standard for quality client care. Similarly, The Joint Commission
accredits healthcare facilities that meet established standards focused on safe, appropriate, and quality client care. c. Certification: i. Another form of credentialing is certification. Through certification and licensing, the board identifies nurses who are qualified for advanced practice (e., clinical nurse specialists, midwives, and nurse practitioners) or for certification in a subspecialty, such as emergency nursing or pediatric nursing. In some states, the board establishes the criteria for certification, including (1) educational preparation, (2) clinical experience, and (3) certification by other professional organizations. In other states, the nurse may obtain an advanced practice license only if she is first certified by a national organization, such as the American Nurses Credentialing Corporation or a specialty organization. 11. Define criminal law. a. Criminal law deals with wrongs or offenses against society. It may result in prosecution (legal action) by the state or federal government for engaging in behavior that constitutes a crime. 12. Define felony. a. A felony is a crime punishable by more than 1 year in jail (e., murder, assisted suicide, rape/sexual assault, stealing drugs and equipment, felony abuse). A person convicted of a felony loses the right to vote, hold public office, serve on a jury, and possess firearms for a time period specified by the state. The person may also lose any professional license. 13. Define misdemeanor. a. A misdemeanor, compared with a felony, is a minor charge. Misdemeanors usually involve less than a year in jail. They include crimes such as assault, battery, and petty theft. You may also have a disciplinary action against your nursing license if you are convicted of a misdemeanor that involves crimes against persons, that can cause harm to others, or substance abuse. 14. Question: Are nursing errors crimes? Can a nurse be charged with a crime for making an error? a. In the past, these cases have been dealt with under civil law and by the board of nursing. Now state prosecutors are beginning to bring felony and misdemeanor charges against these nurses. The American Association of Nurse Attorneys (2011) advocates against criminalizing practice errors. Such actions are not only demoralizing to the profession but also counterproductive to eradicating a culture of blame and creating one that promotes ownership and correction of practice errors. 15. What is civil law? Contract law? Tort law? a. Civil Law: civil law involves a dispute between individuals or entities. A settlement in civil law often results in the guilty party paying monetary damages. The two types of civil law are contract law and tort law. b. Contract Law: Contract law involves a written or oral agreement between two parties in which one party accepts an offer made by the other party to perform (or not perform) certain acts in exchange for something of value. A breach of contract occurs if either party does not comply with the terms of the agreement. i. An example would be an employment contract.
i. Negligence is the failure to use ordinary or reasonable care or the failure to act in a reasonable and prudent (careful) manner. b. Malpractice i. Malpractice has a similar definition but applies only to professionals, such as nurses and providers. It is defined as the failure of a professional person to act in a reasonable and prudent manner c. Liability i. Duty
- The nurse–patient relationship creates this legal obligation. A duty forms when the patient is assigned to the nurse or seeks treatment from the nurse, or when the nurse observes another person doing something that could harm the patient. ii. Breach of Duty
- A breach of duty occurs when the nurse fails to meet standards of care. iii. Causation
- The breach of duty or deviation from acceptable standards of care by the nurse must be the direct and proximate cause of the injury suffered by the patient. Causation is usually established based on the testimony of experts iv. Damages
- In civil cases, the remedy for the harm the patient suffered is money. The judge or jury will award the plaintiff money to compensate him for pain and suffering, lost wages, additional medical bills, and other losses. In some cases, the plaintiff may be awarded punitive damages (additional money) for grossly negligent or egregious behavior by the healthcare provider.
- How is negligence different form malpractice? a. Negligence is a wrong committed against an individual by one who has failed to use ordinary care. Malpractice is a subset of negligence: a wrong committed against an individual by a licensed professional.
- Define plaintiff. a. The person bringing the lawsuit
- Define defendant. a. the person who must defend against the lawsuit
- Identify the phases of the trial process. a. Pleading and Pretrial Motions b. Discovery Phase c. Alternative Dispute Resolution d. Trial Process e. Appeal
- How is arbitration different from mediation? a. Arbitration involves a third party making a decision after formally hearing the evidence and information from both parties. Unlike mediation, the arbitration decision may be binding on the parties. Mediation is the attempt to resolve the dispute using a neutral
third party. The primary role of the mediator is to help the parties focus on the issues and to facilitate communication to identify what is needed to reach a resolution. 24. What are the most common malpractice claims? Share at least 5. a. Failure to respond b. Failure to educate c. Failure to follow standards of care and institutional policies and procedures d. Failure to communicate e. Failure to document f. Failure to act as an advocate 25. How does the use of the nursing process provide legally safe nursing cares? a. The concept of providing legally safe, quality actions began to emerge in the education of nursing students and as expectations for practicing nurses. The nursing process is viewed as a critical-thinking tool that if correctly used will minimize errors in client care. It seamlessly aligns with the “Thinking, Caring, Doing” model that is designed to provide a holistic approach to client care. 26. What is a medication error? a. Medication errors are among the most common healthcare errors. To administer medications accurately, you must know the rationale for administering the drug, safe dosage ranges, side effects of the medications, and relevant information to teach the patient about the medication. 27. What is a treatment error? 28. What is meant by “document what happened.” a. Remember the old adage “If it isn’t documented, it wasn’t done.” If you are ever required to appear in court, the patient record may be the only proof you have of the care you provided. It is unlawful to make false entries or destroy entries in medical records, but do carefully document in detail all care you provide. 29. What is an incident report? a. incident report (also called variance report or occurrence report). These reports are used, in part, for quality improvement in the agency and should not be used to discipline staff members or be placed in employees’ files. The goal is to prevent the incident from occurring again. 30. Why is charting essential? a. A basic principle of charting is that a third person should be able to read your documentation and form a mental picture of your client and the care provided during your shift. 31. What is an informed consent? List the 4 requirements of an informed consent. a. Informed consent is the client’s permission to receive any and all types of care with full knowledge of the risks, benefits, costs, and alternatives. i. Completeness ii. Clarity and Comprehension iii. Voluntariness iv. Competence 32. How does the nurse maintain patient safety? How is this connected to the legal requirements? 33. Provide an example of how the nurse can maintain confidentiality and privacy for the patient.
h. Medication-centered problems i. Personal life interferes with job 43. What is drug diversion? 44. What are some safeguards for nurses? List 2 with details. a. Safe Harbor Laws i. Safe harbor laws, found in the nurse practice act or other state laws, provide for exceptions to certain laws. They protect you from being suspended, terminated, disciplined, or discriminated against for refusing to do (or not do) something you believe would be harmful to a client. Under these laws, you also have a right to ask for peer review of either the situation or directives that you believe would violate the nursing practice act. You must follow the guidelines required under the safe harbor provisions. b. Professional Liability Insurance i. If you are sued for malpractice, the insurance company pays for the attorney’s fees and for any judgment or settlement, up to the policy limits. You should carefully review your insurance policy because most insurance policies have exclusions (items not covered by the policy). If the patient’s claim arises out of excluded activities, the insurance company will not pay for the costs of litigation and damages. 45. What are YOUR responsibilities as a nursing student? List at least 4.
a. Prepare carefully for each clinical experience.
b. Never attempt a procedure or make a judgment about which you feel unsure. If you lack the theoretical or practical knowledge for an assignment, notify your clinical instructor immediately.
c. Notify your instructor or a staff nurse if your patient’s condition changes significantly.
d. Unless otherwise arranged, take instructions only from your clinical instructor.
Chapter 45 Legal Issues
Course: Fundamentals Of Nursing - Theory (NUR 200)
University: Bradley University
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