Legal Aspects
Application to OB/Pediatrics
Tort Laws
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Tort laws offer remedies to
individuals harmed by the
unreasonable actions of others.
Tort claims are based on the legal
premise that individuals are liable for
their actions if they result in injury to
others.
There are two major categories of
torts in medical related cases:
intentional tort and negligence
tort.
Intentional Torts
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Intentional torts are usually offenses committed by a person who
attempts or intends to do harm. For intent to exist, the individual
must be aware that injury will result from the act. The RN has
knowledge that the act or omission of an act will cause injury to
the plaintiff.
This is different from “intent to injure”, which is a criminal matter.
The distinction is “intent to act without regard” as opposed to the
“intent to injure”.
Examples of Intentional Torts:
Assault: Threatening to harm resulting in fear.
Battery: Unlawful, unprivileged touching of another person.
Deceit: False statement or deceptive practice done with intent to
injure another.
False imprisonment: Unlawful restraint of a person, whether in
prison or otherwise.
Defamation: Wrongful act of injuring another’s reputation by making
false statements.
Invasion of privacy: Interference with person’s right to privacy.
Infliction of emotional distress: Intentionally or recklessly causing
emotional or mental suffering to others.
Negligence & Malpractice
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Negligence and malpractice are
used synonymously in litigation.
The difference is that “malpractice” is
a specific type of negligence.
Malpractice implies:
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a violation of professional duty or
a failure to meet the standard of care of
other prudent professionals in similar
circumstances or
failure to use the skills and knowledge
of other professionals in similar
circumstances.
Nursing Negligence
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The elements of negligence are:
(1) duty
(2) breach of duty
(3) causation
(4) injury and damages.
Without all four elements there will
be no malpractice claim in a court
of law.
Negligence Element 1: Duty
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The existence of a duty of care exists because of the
contractual relationship between the patient and the
doctor, the hospital, and other health care providers.
When the nurse-patient relationship is established, the
nurse has a duty to:
Possess the nursing knowledge required of a
reasonably competent RN engaged in the same specialty,
and
Possess the skills required of a reasonably competent
RN engaged in the same specialty, and
Exercise the care in the application of that knowledge
and skill to be expected of a reasonably competent RN in
the same specialty, and
Use the nursing judgment in the exercise of that care
required of a reasonably competent RN in the same
medical or health care specialty.
Generally, a health care professional does not have a
duty to someone who is not a patient.
Negligence Element 2: Breach of
Duty
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Breach of duty is the failure of the nurse to
follow the standards of care found in the
hospital’s unit policies and procedures,
authoritative nursing textbooks, Board of
Nursing (BON), and the nursing specialty
association guidelines/standards.
To prove that the RN beached his or her
duty expert witnesses and nursing
literature are used to show a deviation or
breach of the standard of care. It involves
showing what a reasonably competent
health care professional would have done
in a similar situation.
Negligence Element 3:
Damage
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This element relates to the
damage that was caused as a
result of the breach of duty. This
injury must an actual physical or
mental injury. Even in instances
where there is negligence,
damage suits will not be
successful unless there is
provable injury.
Negligence Element 4: Causation
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The breach in duty must be the cause of
harm to the patient. Causation is the key
word. Question: If this act had or had not
occurred would the results have been the
same?
Determination of proximate cause is a
factual one. This means that the evidence
must show that the results of misconduct
were reasonably foreseeable.
Proof of causation requires the testimony
of an expert witness. Most jurors are not
competent to draw their own conclusions
from the evidence without the aid of such
expert testimony.
Successful Malpractice Suit
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The recoverable damages are the same as
in other personal injury/wrongful death
actions caused by the negligence of
another. They include:
Actual damages – easily measured such
as medical expenses and lost wages
Compensatory damages – that what
makes a person whole. Loss of work, grief,
mental anguish, loss of wage earning
capacity, loss of consortium (spouse,
parent, child)
Punitive/Exemplary damages - to punish,
gross, negligence, and reckless disregard
for safety
Respondeat Superior:
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The legal concept of vicarious liability and
the doctrine of Respondeat Superior occur
when the servant (employee) commits a
tort or civil wrong within the scope of
employment and the master (employer) is
held liable, although the master may have
done nothing wrong.
For example, a hospital can be held liable
for the negligence of a nurse employed by
the hospital, even if the hospital itself has
not acted negligently.
The doctrine of Respondeat Superior
believes that employers are better able to
compensate injured parties than the
employees who work for them. Employers
can purchase insurance and spread the
risk over the entire business.
Medical Liability and
Insurance Improvement Act
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The state of Texas passed The Medical Liability and
Insurance Improvement Act in 1977. This act introduced
changes to malpractice lawsuits including pre-suit
notification, the use of expert reports, caps on damage
awards and a 2-year statute of limitations. Noneconomic
damages were limited to $500,000, plus cost-of-living
increases. These increases eventually raised the cap to
about $1.3 million. (Noneconomic damages include pain
and suffering, physical impairment, disfigurement, loss of
consortium or companionship, etc.)
The Texas Supreme Court in a 1988 ruling made the cap
unconstitutional. The size of awards for noneconomic
damages soon shot up, as did insurance premiums.
Texas legislated another cap on noneconomic liability
awards in 2003. $250,000 for physicians and $500,000
for institutions. Texans approved the amendment by a
51% to 49% margin. Soon after, liability insurers reduced
their premiums by as much as 33%.
Statute of Limitations
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Statute of limitations places a limit on time during
which lawsuit can be filed. Medical malpractice
lawsuit must be filed within 2 years and 75 days.
Exceptions to this are:
• Fraud: The patient was deliberately misled.
Evidence was covered up. The statue was
abused for physician’s benefit.
• Birth-related injury. In cases of birth-related
injury in which parents did not file lawsuit, the
injured individual may file suit on his/her own
behalf after adulthood is reached. At that time
they are subject to same statute of limitations.
Consequently, medical records of obstetric
patients should not be destroyed until the statute
has run out for the child.
Litigious Medical Areas: OB
& Pedi!
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Number of lawsuits filed per specialty:
 Obstetrics 20%
 Internal Medicine 18%
 Family Medicine 16%
 General Surgery 15%
 Orthopedic Surgery 14%
 Pediatrics 4%
Obstetrics leads in amount of damages paid by
specialty followed by pediatrics. Brain damaged
infants are the most expensive. The damages
awarded to pediatric cases are high because they
are multiplied over many years and have an
emotional component.
Good Samaritan Act
Nurses have immunity for damage caused when providing
emergency care if:
 Performed during an emergency unless actions are
willful/wanton negligent (therefore only covers ordinary
negligence); and
 Performed without charge/remuneration or with
expectation of remuneration.
 Does not apply to persons who regularly administer
emergency care in a hospital emergency room or to
admitting physician in case of a health care liability
claims.
 Unlicensed emergency medical service personnel are not
liable for emergency care regardless of remuneration
unless care is grossly negligent.
 State law and your level of training determine whether
you're legally protected when using your nursing skills in
an emergency. Texas Good Samaritan Act (Article 6701d, Vernon's
Civil Statutes ; Chapter 74, Civil Practice and Remedies Code Section
74.001)
Rights of OB/Pedi Patients
Confidentiality
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Minors are considered emancipated for the purposes of
consenting to medical treatment if he or she is married, has
obtained court emancipation, served in the armed forces, or is a
parent.
Adolescents in the labor & delivery area make all decisions for
themselves and their infant.
Legal exceptions to confidentiality include suspected child abuse
and the requirement to report certain kinds of sexually
transmitted diseases.
Third party access to the minor’s personal health is usually
controlled by the parents, making confidentiality between the
health care provider and the minor difficult.
Virtually every state permits a minor to seek treatment for
sexually transmitted diseases without parental consent. Any
minor, regardless of age, can receive confidential care and
treatment related to family planning at a federally funded family
planning clinic without parental consent.
http://www.cdc.gov/std/stats07/trends.htm
http://www.acog.org/from_home/publications/ethics/co390.pdf
Rights of OB/Pedi Patients
Refusal of Treatment
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Patients can refuse care at any time
Refusal is documented in chart and
patient signs AMA form.
The wellbeing of the fetus can
become the object of court order.
When parents refuse life-saving care
for their children the court may be
petitioned by the healthcare
providers.
Rights of OB/Pedi Patients
Informed Consent
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Without informed consent assault and
battery charges can result
Dissent in ages 13-17 can be legally
binding
Emergency treatment can be given to
children without the parent’s consent
Elements of informed consent:
 Competence
 Full disclosure: purpose, risks, benefits,
other treatment options.
 Understanding of information
 Voluntary consent
Rights of OB/Pedi Patients
Right to Live or Die
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The right to die is related to a person's wish that
caregivers allow death. For example, by not providing life
support or vital medication.
Living Wills and Do Not Resuscitate orders are legal
instruments that make a patient's treatment decisions
known ahead of time. This is not considered to be
euthanasia. Usually these patients make it their wish to
receive only palliative care to reduce pain and suffering.
Medical Durable Power of Attorney (or MDPOA)
designates an agent to make decisions in case of
incapacity. It is a most powerful instrument that does not
require interpretation on the part of health care providers
or even court-appointed guardians. The MDPOA takes
the job of interpretation out of the hands of strangers and
gives it to a person selected and trusted by the individual.
Pedi: “Wrongful Birth” suits based on failure to detect
severe abnormalities and “Wrongful Life” suits based on
resuscitation of micro-premies.
Rights of OB/Pedi Patients
Pediatric Patient’s Bill of Rights
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To ensure that all aspects of children's healthy care are
family-centered, psychosocially sound, and
developmentally appropriate. Health care systems and
practices are most effective when they are planned,
coordinated, delivered, and evaluated through meaningful
collaboration between families and professionals of all
disciplines. The Pediatric Bill of Rights, reproduced here
from the second edition, copyrighted in 1996.
In this facility you and your family have the right to:
• Respect and personal dignity
• Care that supports you and your family
• Information you can understand
• Quality health care
• Emotional support
• Care that respects your need to grow, play and learn
• Make choices and decisions
http://www.goodbeginnings-csmc.org/support/inhospital/PediatricBillRights.pdf
Emergency Medical Treatment
& Labor Act (EMTALA)
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In 1986, Congress enacted the Emergency Medical Treatment & Labor Act
(EMTALA) to ensure public access to emergency services regardless of
ability to pay. It imposes specific obligations on Medicare-participating
hospitals that offer emergency services to provide a medical screening
examination (MSE) when a request is made for examination or treatment
for an emergency medical condition (EMC), including active labor,
regardless of an individual's ability to pay. Hospitals are then required to
provide stabilizing treatment for patients with EMCs. If a hospital is unable
to stabilize a patient within its capability, or if the patient requests, an
appropriate transfer should be implemented.
Lungsford vs. Board of
Nurse Examiners
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Lungsford vs. Board of Nurse
Examiners 1983:
Sent patient with chest pain to a
hospital 24miles away. Did not
assess patient. Patient died in route.
Nurses have a legal duty to care for
patient and evaluate status
Nurses are increasingly being
named as individual defendants and
are absolutely being held
responsible for their actions!
Maintaining Expertise
Maintaining Expertise for
Registered Nurses
“… prevents malpractice suits”
 Continuing Education
 Membership in Prof. Organization.
(Association of Women’s Health, Obstetric,
and Neonatal Nurses (AWHONN)
American Nurses Association (ANA))
 Know the Standards for Prof. Nurses in
your area of practice
 Journals
 Specialty Certification (RNC)
Nurse Practice Act
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Legality:
Is the activity or task within the scope of the RN and
NOT prohibited by another law or rule?
Competency:
Can the nurse perform the activity or task and meet
the standards of safe nursing practice?
Safety:
Looking at the patient… is the activity/task safe and
appropriate to perform at this time?
Accountability:
The RN may perform the activity/task according to
acceptable and prevailing standards of safe nursing
care and prepare to accept accountability for his/her
nursing actions.
http://www.bne.state.tx.us/nursinglaw/npa.html
http://www.bne.state.tx.us/n
ursinglaw/pdfs/npa2007.pdf
The Nurse Practice Act – A “must-read” document for
every nurse.
It also covers topics such as:
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A nurse shall report to the board if the nurse has
reasonable cause to suspect that: …
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Duty of Liability Insurer to Report.
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The board shall suspend a nurse’s license or refuse
to issue a license to an applicant on proof that the
nurse or applicant has been initially convicted of: ….
Legal Aspects: Abortion
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There have been 3 major abortion laws passed in Texas since
Roe v Wade.
In 1987 3rd trimester abortions were banned, thus closing a
loophole left by this historic decision.
The next step after Roe v Wade was the establishment of
legislation in 1977 that protected the right of medical personnel
who refused to participate in abortion procedures or those who
did participate. Private hospitals or health care facilities were not
legally obligated to perform abortions unless the life of the
mother was immediately threatened.
Following in 1985 the Texas Abortion Facility Reporting and
Licensing Act stipulated that all abortion facilities must report the
following information about each patient in a yearly report: the
license status of the facility; patient's year of birth, race, marital status,
state and country of residence; type of abortion procedure; date abortion
was performed; post-operative status of patient and cause of death when
applicable; period of gestation at time of procedure; date of patient's last
menstrual cycle; number of previous live births to patient; number of
previous abortions performed on patient.
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All abortion facilities must be licensed. This includes physician's
offices where 51% or more of the abortions take place.
Abortion Stats in Texas
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The Centers for Disease Control (CDC) reports that
81,883 abortions took place in Texas during 2006.
Out of the 47 states that reported to the CDC,
Texas's 2006 abortion total places it at #3 on the
list.
The Centers for Disease Control (CDC) reports that
the 2006 abortion rate for Texas was 16.3. The
abortion rate is the number of abortions per 1,000
women aged 15-44 years.
Abortions in Texas by gestational age:
≤8
weeks
9-10
weeks
11-12
weeks
13-15
weeks
16-20
weeks
≥21
Unknown
weeks
70.9%
13.8%
7%
6.5%
1.2%
0.7%
0%
Legal Aspects: Early Discharge
Sooner than 48 hrs after vaginal delivery
 Minimal recovery after surgery
 Are new mothers able to care for themselves and their
infants?
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Exhaustion
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Complications (maternal & neonatal)
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Family support
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Primary caregiver
Solutions:
 Teach patients during pregnancy instead of at discharge
 Teach parents about post operative care before the
child’s surgery.
 Home visits and phone calls after early discharge
 Return visits for nursing assessment
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Legal Aspects: postdate pregnancy
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Increased risk with postdate pregnancy = increased liability for
obstetrician
What if the OB wants to induce and the patient refuses?
WILKES-BARRE - A judge late Wednesday afternoon gave a local hospital permission
to force a woman to deliver a baby via Caesarean section against her will.
Doctors warned the expectant mother that not having a C-section could kill her and/or
her child. But against doctor's orders, Amber Marlowe left the hospital. Hours later,
Wilkes-Barre General Hospital received legal permission to become guardian of the
fetus and perform the C-section if Marlowe returned to the hospital.
Marlowe never returned. She gave birth vaginally Thursday morning at Moses Taylor
Hospital in Scranton to a baby girl, her and her husband's seventh child. Court papers
said it was her seventh pregnancy in seven or eight years. The Marlowes said the
mother and infant are healthy.
Attorneys for General Hospital sought the highly unusual action through a lawsuit
because its doctors said Marlowe, who went to the hospital Tuesday night, adamantly
refused to deliver the fetus by C-section because of "religious" beliefs.
Her refusal came after warnings by doctors that a vaginal delivery could result in death
for the fetus because it was expected to weigh 13 pounds. They also were concerned
with complications Marlowe had in other pregnancies.
The hospital was acting to "preserve and protect the rights of (the fetus) regarding its
health and survival," the hospital's attorney, Mary G. Cummings, wrote in court papers.
Luzerne County Court of Common Pleas Judge Michael Conahan late Wednesday
afternoon approved the request.
Nursing Liability
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Recurring Causes:
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Errors in administration of treatments and medications
Failure to adequately supervise patients – patient falls
Foreign objects left in place
Burns to patients
Failure to observe and report changes in a patient’s condition
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Mistaken identity of patient
 Use of defective equipment
 Lack of adherence to aseptic
technique – preventable infections
 Improper orders – duty to defer
 Incomplete patient history - not
noting patient allergies.
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Charting tips
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Check that you have the correct chart before you
begin writing.
Make sure your documentation reflects the nursing
process and your professional capabilities.
Write legibly, initial and sign where indicated
Chart the time you gave a medication, the
administration route, and the patient's response.
Chart precautions or preventive measures used,
such as bed rails.
Record each phone call to a physician, including the
exact time, message, and response.
Chart patient care at the time you provide it.
If you remember an important point after you've
completed your documentation, chart the
information with a notation that it's a "late entry."
Include the date and time of the late entry.
Document often enough to tell the whole story.
Attorney Charting Tips: Facts Only
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Do not chart subjective opinions, just factsdocument only what you observe with all
your senses. Be specific: avoid being
general or vague.
Example: A pediatric patient pulled out the IV but the action was not witnessed.
Chart: “Found pt. with arm board at side and bed linens covered with blood. IV
line and IV catheter intact but hanging free on IV pole. No active bleeding from
IV site noted”
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Subjective opinions leave the nurse open
to credibility questions. A plaintiff attorney’s
best case scenario is when a nurse charts
with the mindset of criticizing preceding
shifts or making disparaging or hurtful
remarks regarding the institution and its
policies. This nurse may be construed as a
disgruntled employee and a witness who
lacks credibility.
Attorney Charting Tips: Bias?
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Eliminate bias. Don't use language that suggests a
negative attitude toward the patient, such as
obstinate, drunk, obnoxious, bizarre, or abusive.
The same goes for what you say out loud and then
document. Disparaging remarks, accusations,
arguments, or name-calling could lead to a
defamation of character or libel suit. In court, the
plaintiff's lawyer might say, "This nurse called my
client `rude, difficult, and uncooperative.' It's right
here in her own handwriting! No wonder she didn't
take good care of him." Remember, the patient has
a legal right to see his chart. If he spots a
derogatory reference, he'll be angry and more likely
to sue.
If a patient is difficult or uncooperative, document
the behavior objectively and let the jurors draw their
own conclusions.
Attorney Charting Tips: Watch
your language!
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Use neutral language. Using inappropriate
comments or language is unprofessional
and can cause legal problems. In one
case, an elderly patient developed
pressure ulcers, and his family complained
that he wasn't getting adequate care.
The patient later died, probably of natural
causes. Because his relatives were
dissatisfied with the patient's care, they
sued. The insurance company questioned
the abbreviation PBBB, which the
physician had written in the chart under
prognosis. After learning that this stood for
"pine box by bedside," the jury awarded the
family a significant sum.
Attorney Charting Tips: Accuracy
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Be accurate: being inaccurate diminishes the strength of
your case. Jurors do not look kindly upon errors and view
it as sloppiness on the part of the licensed person. If you
have poor handwriting print in block letters. This will
enhance the readability of your documentation. Do not
document entries that are boilerplate language such as:
“call bell within reach, verbalizes no complaints” when the
patient is in an obtunded or comatose state! This merely
provides fuel to the fire and demonstrates that the nurse
was sloppy and documented generic boilerplate
language. It is obvious that the patient was not properly
assessed.
Do not obliterate an entry. The obliteration of any entry
will only provide more ammunition for the plaintiff
attorney. The altering of the chart in any manner is
usually construed in favor of the plaintiff/patient who is
bringing the lawsuit. In some instances this may be
considered fraud and will subject the institution and you to
civil and criminal penalties
Attorney Charting Tips:
Assess and Communicate
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If you observe changes in the patient, do not just
chart them, but also notify the physician. The nurse
can be exposed to litigation when a physician is not
alerted of changes. Document your conversation
with the physician verbatim. Do not chart: “Called
Dr. Jones and reported VS”. You should chart: “Dr.
Jones notified by phone of BP 190/101. Telephone
order for (name of medication) received”. If you are
dealing with an irate or unresponsive physician
follow the chain of command immediately.
If you observe changes in the patient, document
them clearly. Then, document your actions. What
are you doing in response to the patient’s changing
needs? Then, as appropriate, re-assess and
document your follow-up. What are the results of
your actions? Assess, provide care, re-assess…
this is ongoing!
Summary
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One of the areas where
nurses are most
criticized is
documentation and
charting.
One of the greatest
areas of negligence is
not notifying physician;
keeping them informed
of changes in a timely
manner.
References

American College of Legal
Medicine (1995) Legal Medicine
(3rd Ed.) St. Louis: Mosby.

Nurse Legal Handbook (4th Ed.)
(2000) Springhouse, PA:
Springhouse Corporation