Medical law is constantly changing & new laws are constantly being made.
If conflicts arise relating to the legal issues, the nurse should consult with supervisors and with legal counsel.
As the trend toward increased community-based care continuous, nurses will face greater liability and increased potential for malpractice lawsuits.
Decision-making must include knowledge of both the ethical and legal implications.
What are ethical principals?
Abstract concepts, grounded in a moral foundation, which serve as guidelines for practice. Ethical issues in community-based nursing practice center on the rights of the client.
Rights include: Truth about condition, prognosis & treatment, right to refuse treatment, right to confidentiality and right to impartial access to care.
Responsibilities the nurse must fulfill include caring, confidentiality, accountability, advocacy and honesty.
Accountability is a moral obligation that directs the nurse to act to protect the client’s human dignity and right to self-determination, and to provide an acceptable level of competent care.
Code for Nurses defines accountability as "being answerable to someone for something one has done.
Advocacy is to act in the best interest to ensure safe care.
Code for Nurses reflect the values & standards of the nursing profession & guide the nurse’s behavior toward clients. These codes prescribe behavior & actions for the nurse based on a set of moral principals.
Code of Ethics & statements of the client’s rights act as a guide to help nurses decide right from wrong.
Accountability and confidentiality have parallel legal concepts.
Legal Duties and Rights
Nurses have a legal duty to provide quality care.
A legal duty is an obligation owed by one party to another (duty of care to avoid causing harm.
– are laws that are written & enacted by elected legislatures.
– is developed through actual cases (court).
– refers to the failure to adhere to one’s legal duty (a.k.a. breach of duty). It is failure to perform an act required by law or performing an unlawful act. Example: Failing to provide instruction on insulin administration to a newly diagnosed patient who is insulin dependent.
If a breach causes injury, the person who committed the breach is liable for that injury (liability is usually financially related).
A breach of professional duty can be either called malpractice or negligence.
Malpractice – refers to misconduct or failure to meet standards of care.
Negligence – refers to doing an act that a prudent person would not, or omitting a duty (act) that a prudent person would have fulfilled.
Malpractice and negligence are both torts (or civil wrongs)
Clients have certain legal rights, such as the right to receive reasonable nursing care from their nurses, the right to have their medical records kept confidential by the nurses who treat them, and the rights to be informed of the risks of a medical treatment in advance or decline that treatment.
When your duty is unclear, ask yourself:
Do I have a duty to act, or to refrain from acting, in a given situation?
Does the client have any rights in this situation?
What are behaviors can you practice as a nurse that can help you avoid a malpractice suit?
Being friendly & develop rapport with the client & family.
Use body language that conveys interest & concern.
Show respect to client & family.
Know & follow nursing standards of care.
Know & follow agency procedures & policies.
Listen to concerns & respond to complaints.
Communicate with the MD & Supervisor regularly, and report changes.
Document!!! Especially activities and observations.
If a mistake occurs, correct it and report it
State Licensing Statues and Standard of Care
A standard of care – is a written statement that describes rules, actions, or conditions that direct client care
A failure to identify appropriate diagnoses that guide health promotion, reduce illness, and promote rehabilitation of the client would be a deviation from the standard of care.
Standards of care for community health nursing are as follows:
II: Data Collection
VII: Quality Assurance & Professional Development
VIII: Interdisciplinary Collaboration
When an incident occurs with a client (for example a client refuses to accept treatment), the nurse must follow the agency’s policy in reporting the incident. This provides a safer environment for the client & averts liability should the client be injured as a result of the incident.
Nurses should not accept assignments for which they are not qualified. Be sure to seek the help of supervisors when they are called onto perform a procedure for which they are unprepared. There may be a need for additional training & experience under the supervision of a more experienced nurse.
The liability that the nurse assumes when supervising and delegating tasks to others depends on state law.
Nurses have a duty to provide safe & competent care and are accountable for their actions and their clinical judgements. The ANA Code for Nurses makes it clear that "neither physician’s order nor employing agency’s policies relieve the nurse" of those responsibilities.
Client Safety in Community-Based Settings
An area for potential liability is client falls.
Failure to act to prevent falls in the home may result in a lawsuit alleging negligence on the part of the nurse. A major cause of injury & a primary reason for loss of independent living in the elderly.
The nurse is responsible for identifying clients who are at risk for falls related to age, disease, medications, environmental hazards & psychological changes (depression, fear, memory loss, and confusion).
Care plans should include interventions such as removing throw rugs, a system for someone to have daily contact with the client and installing safety equipment. The nurse could be held liable if there is a failure to provide safety equipment & the client suffers (as in is injured), it would also be considered a violation of nursing standard of care & negligence.
The nurse must know how to safely use medical devices & is responsible for detecting medical complications with these devices, determine if they are functioning properly & providing teaching (safe & proper use) of such devices.
Safe Medical Act of 1990 -
requires that, it is a legal duty to report any information about any death, serious illness or injury related to the use of a medical device. It should be reported to the FDA (Food & Drug Administration) within 10 days of the occurrence or it can result in civil fines starting at $15,000 per violation.
Communication, Privacy, and Client Confidentiality
Proper communication is essential to quality care.
Honest and open communication contributes to trust & the client’s confidence in nursing care.
Nurses optimize care & decrease opportunities for lawsuits when they give clear explanations & instructions, attend to client & family psychological response to treatments, demonstrate confidence & understanding of feelings & beliefs.
Nurses must be nonjudgmental, it is required by law not to discriminate against clients because of their race, ethnic background, religion, age or national origin.
The nurse must be careful not to make derogatory remarks about clients or their living conditions to other persons. If such statements lower the reputation of the client they constitute a form of defamation called slander.
A nurse who suspects that abuse is occurring may have a duty to report it to the appropriate authorities.
Privacy issues are an important area of concern & is a culture-specific concept that defines one’s personal responsibility to others in determining & regulating behavior that is regarded as intrusive.
Knowledge of a client’s background cannot be shared without their permission, or it would constitute invasion of privacy. Invasion of privacy can also be alleged if the nurse permits unauthorized persons to be present during physical exam or allows photographs to be taken without the clients permission.
Confidentiality is the nondisclosure of certain information except to another authorized person.
Some clients need additional protection: those treated for mental or substance abuse problems, infected with HIV, doctor-patient communications, medical records and documents concerning treatment for mental health, alcohol or substance problems.
A new & growing area of concern is the use of fax machines and cellular phones.
Some authorities argue that written, informed consent should be obtained from the client before sending information by cellular phone or fax.
Permission to perform a specific test or procedure obtained from a client – after they have received sufficient information about the risks, benefits & alternatives of the tests or procedure.
Required before most invasive procedures & before admitting a client to research study.
Must be written so that the client understands, signed, dated & have at least one witness.
Must always be obtained when the client is fully competent.
Depending on the state, doctors and nurses can be held liable if informed consent is not obtained.
Nurses have a duty not to abandon their clients at a time when the client is in need of nursing care.
The community-based nurse has a legal duty not to abandon the client and to make suitable arrangements for the client’s continuing care.
Example: Allowing a comatose client to remain disconnected from a respirator for more than 30 seconds.
Leaving the client after noticing rare PVCs on the cardiac monitor.
And failing to initiate CPR where indicated.
Documentation of Care
Is the primary means of determining the quality of care provided to the client & a way of knowing if nursing standards are met.
Document assessments, observations, interventions & client response to nursing actions.
To be credible it must be written on the chart in a timely manner & must be consistent with agency policies.
Communications with doctors (verbal orders & telephone conversations) should be written promptly & completely.
Documentation is the best evidence that calls were made & conversations took place.
Document detailed records of client & family teaching.
Clear, concise records of client’s needs allow reimbursement for skilled nursing care and other services.
The Client Self-Determination Act (December 1991) – refers to a law that requires community health agencies to provide information & education about advance directives to clients & the community. And to document whether a client has advanced directives or not. The nurse must comply with the directives to the extent required by law.
Advance directives – give the client the right to choose or to refuse specific life-sustaining treatments such as CPR, IV fluids, ventilators and feeding tubes.
The nurse should make sure the client has enough information to make an informed decision & makes the decision freely without undue influence from others. It is the nurse’s responsibility to document these decisions.
Nurses are ethically & legally bound to know & protect the client’s rights.
Where a client has not made advance directives & then becomes unable to make decisions about their care, decisions about care must be made by a surrogate decision-maker whom the client has given a durable power of attorney or been appointed as legal guardian
Study exercise. Can you define the following terms?