Legal Issues in Health Care
Competency 4
1
Legal Issues In Health Care
Competency 4
Describe the components of healthcare employee and
healthcare liability when delivering client care.
• Define: liability, negligence, malpractice and scope of
practice.
• Discuss what a policy and procedure is.
• Describe how policy and procedures protect the worker and
client from harm.
Vocabulary List
Review terms (see instructor resource and course outline)
Law
Law can be defined as “those rules made by humans which
regulate social conduct in a formally binding manner”.
It provides a framework for establishing which healthcare
worker actions in the care of clients are legal.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Law
It differentiates the healthcare worker’s responsibilities from
those of other healthcare professionals.
It helps establish the boundaries for independent nursing
actions.
It assists in maintaining a standard of healthcare practice by
making healthcare workers accountable under the law.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Legal Actions
Two kinds of legal actions:
Civil or Criminal Actions
Civil actions deal with relationships among individuals in
society.
For example, a man may file a suit against a person who he
believes cheated him (Civil).
Ramon, P.R. & Niedringhaus, D. M. (2008).
Legal Actions
Two kinds of legal actions:
Civil or Criminal Actions
Criminal actions deal with disputes between and individual
and society.
For example, if a man shoots a person, society bring him to
trial (Criminal) .
Ramon, P.R. & Niedringhaus, D. M. (2008).
Legal Action Differences
• Major difference between criminal and civil law is the
potential outcome for the defendant.
• If found guilty in a civil action, such as malpractice, the
defendant will pay a sum of money.
• If found guilty in a criminal action, the defendant may lose
money, be jailed, or be executed.
• Healthcare workers and nurses can lose their license.
• The action in a lawsuit is called litigation, and lawyers who
participate in lawsuits may be referred to as litigators.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Legal Process-Civil
Civil litigation begins when the plaintiff (the complaining
party) contacts an attorney. If a legal basis is found for
litigation, a document called a complaint (statement by the
plaintiff) is written and filed in the appropriate court.
The complaint names the defendant (the person alleged
liable), states the facts involved in the case, defines the legal
issues raised, and outlines the damages (compensation
sought by the plaintiff.
Parker-Feliciano, K. (2006)
.
Legal Process-Civil
Once the defendant is served a summons (a court order that
notifies the defendant of the legal action), legal notices has
been given and the defendant hires an attorney to represent
his/her lawsuit.
The attorney will prepare and file an answer (a detailed
response to the charges outlined in the complaint) that will
either admit to or deny an or all of the allegations made in the
complaint.
Parker-Feliciano, K. (2006)
.
Civil Litigation Process
The next step in litigation is a phase called discovery (a
pretrial process allowing both sides to interview witnesses and
look at documents) before the trial.
Depositions (out-of-court statements made by a witness
under oath) may be taken, and interrogatories (written
questions that must be answered in writing) may be served on
the opposite party.
Parker-Feliciano, K. (2006)
.
Civil Litigation Process
At trial, evidence will be presented
and witnesses will be called to testify under oath.
Once the evidence has been presented, a verdict (a decision)
will be rendered based on the facts of the case, the evidence
and testimony presented, the credibility of the witnesses, and
the laws that pertain to the issue/issues.
If either party disagrees with the outcome of the lawsuit they
may file an appeal (request for a review of the decision).
Parker-Feliciano, K. (2006)
.
Criminal Legal Process
In a criminal trial, the defendant (person accused of the
crime) has been arrested for a crime against the People
(society). At trial, the People’s attorney and the defendant’s
attorney present their case.
The judge or jury if a jury trial then deliberate (decide) the guilt
or innocence of the defendant.
Parker-Feliciano, K. (2006)
.
Criminal Legal Process
If a verdict of not guilty is reached, the defendant is released
from custody.
If the verdict is guilty, the sentence (penalty) is decided based
on the severity of the crime, the defendant’s past criminal
record, and applicable laws.
Parker-Feliciano, K. (2006)
.
Civil Law-Tort
A tort is a civil wrong committed against a person or person’s
property.
Torts are usually litigated in court by civil action between
individuals.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Civil Law-Tort
The person or persons claimed to be responsible for the tort
are sued for damages.
Tort liability almost always is based on fault, that is,
something done incorrectly (an unreasonable act of
commission) or something should have been done but was
not (an unreasonable act of omission).
Ramon, P.R. & Niedringhaus, D. M. (2008).
Torts-Civil Law
Unintentional Torts
Negligence
Malpractice
Intentional Torts
Assault
Battery
False imprisonment
Invasion of privacy
False Communication
Defamation
Slander
Loss of Client Property
Negligence-Unintentional Tort
(Civil)
Negligence: misconduct or practice that is below the standard
of expected of an ordinary, reasonable, and prudent
practitioner/nurse/healthcare worker, which places another
person at risk for harm.
Giving the wrong medication, the wrong food, or even food at
the wrong consistency could be seen as negligence.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Negligence-Unintentional Tort
(Civil)
Missing or incorrectly doing one part of the care could be
construed as negligence.
Pay attention to individual patient needs.
Perform all your duties related to the patient as instructed.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Standards of Care
Standards of Care: Acts that are permitted to be performed
or prohibited from being performed.
Every healthcare provider is obligated to know and follow the
established standards of care; the legal test is what a
reasonable prudent (wise) healthcare worker of a similar
education and experience would have done under similar
circumstances.
Parker-Feliciano, K. (2006)
.
Standards of Care
The healthcare worker is held to the standards of care in the
state in which he or she practices.
Federal and state laws, rules, regulations, and other
professional agencies/organizations help define these
standards.
Parker-Feliciano, K. (2006)
.
Negligence-Civil Tort
Gross negligence involves extreme lack of knowledge, skill,
or decision-making.
The person clearly should have known that such behavior put
clients at risk for harm.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Malpractice-Unintentional Tort
(Civil)
Malpractice is negligence that occurred
while the person was performing as a professional.
Four elements must be present for a case of negligence or
malpractice to be proven:
1. Healthcare worker has a relationship with the client (duty).
2. Healthcare worker fails to uphold the appropriate standard of
care (breach).
3. The client has suffered harm, injury, or damage (harm).
4. The harm has to be a direct result of the healthcare worker’s
failure to provide appropriate care (causation).
Ramon, P.R. & Niedringhaus, D. M. (2008).
Negligent Actions
If a lawsuit is filed for a negligent act performed by a healthcare
worker, it will also name the healthcare worker’s employer (facility).
In addition, employers may be held liable (legally responsible) for
negligence if they fail to provide adequate human and material
resources for healthcare., to properly educate healthcare workers on
the use of new equipment or procedures, or to orient healthcare
workers to the facility.
Sometimes the harm cannot be traced to a specific healthcare
provider or standard but does not normally occur unless there has
been a negligent act.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Malpractice-Negligence
To defend against a negligence suit, the healthcare worker
must prove that one or more of the required elements is not
met.
There is also a limit to the amount of time that can pass
between recognition of harm and the bringing of a suit;
referred to as the statute of limitation.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Malpractice-Negligence
In some cases, an additional defense is “contributory or
comparative negligence” on the part of the injured person. In
these situations, the client was at least partly responsible for
his/her own injury.
Example, when clients choose not to follow healthcare advice,
such as remaining in bed while recovering from treatment, the
court may reduce any verdict against the healthcare worker by
an amount considered to be the plaintiff’s own fault.
Ramon, P.R. & Niedringhaus, D. M. (2008).
Malpractice
 A person who does NOT give care with same level of skill that
they learned in school can be found guilty of malpractice
when this leads to an injury or damage to the person.
 For example, when a nursing assistant does NOT wash his/her
hands between patients and some of the patients get a serious
infection, this nursing assistant can be found guilty of
malpractice.
 Nursing assistants should know how and when to wash their
hands. Hand washing is learned in school before one becomes
a nursing assistant and it is again taught again on a regular
basis when the nursing assistant takes an in-service class on
infection control. (Burke)
Negligence
 Negligence is when a person does NOT act the way they
should.
 For example, a nursing assistant is negligent when they
do NOT take vital signs when they should have.
 Criminal negligence occurs when a person is very reckless
with patients and residents.
 For example, a nursing assistant can be found guilty of
criminal negligence if their at-risk for falls patient falls
and dies after they were left alone for hours in a bath
tub.
(Burke)
Unprofessional Conduct
Abandonment is when a person leaves residents or patients
without the care that they need.
 A nursing assistant has abandoned the patients and
residents when he/she leaves his/her place of work and
goes home before the end of the shift without telling the
nurse or supervisor.
Unprofessional conduct is when a person does NOT follow
standards of practice even when NO harm or injury has
come to a patient or resident.
 For example, a nursing assistant who comes to work impaired
with alcohol or drugs is showing unprofessional conduct even
if none of the patients is harmed. (Burke)
Malpractice Situations
 To avoid malpractice, the healthcare worker must recognize
situations in which negligent actions are most likely to occur &
take measures to prevent them.
 A common malpractice situation involves medication errors.
 Another frequent malpractice action is attributed causing
burns in a client (too hot a heating pad, bathwater,
compresses). The elderly, comatose, and diabetic people are
particularly vulnerable to burns because of their decreased
sensitivity to pain and temperature.
(Ramont &
Niedringhaus, p. 29)
30
Ramon, P.R. & Niedringhaus, D. M. (2008).
Malpractice Examples
 Falls: clients often fall accidently, sometimes with a
resultant injury.
 Some falls can be prevented by raising the side rails on
cribs, beds, and stretchers for babies & small children, and
some adults. If the healthcare worker leaves the side rails
down or the baby unattended on the changing table, that
healthcare worker is guilty of malpractice if the client falls
and is injured as a direct result.
 Healthcare workers must follow the facility’s policy and
procedures about providing a safe client environment.
(Ramont & Niedringhaus, p. 29)
Ramon, P.R. & Niedringhaus, D. M. (2008).
Malpractice Situations
 In some instances, ignoring a client’s complaints can
constitute malpractice.
 This type of malpractice is termed failure to observe
and take appropriate action.
(Ramont & Niedringhaus, p. 29)
Ramon, P.R. & Niedringhaus, D. M. (2008).
Intentional Torts
Intentional Torts
 Assault
 Battery
 False Imprisonment
 Invasion of privacy
False Communication
 Defamation
 Slander
Loss of client property
Intentional Torts
Assault: an attempt or threat to touch another person
unjustifiable
Assault precedes battery;
 It is the act that cause the person to believe a battery is about
to occur.
Example: the person who threatens someone by making a
menacing gesture with a club or a closed fist is guilty of
assault.
 In healthcare, a healthcare worker who threatens a client with
an injections after the client refuses to take the medication
orally would be committing an assault.
(Ramont & Niedringhaus, p. 30)
Ramon, P.R. & Niedringhaus, D. M. (2008).
Intentional Tort
Battery: the willful touching of a person (or person’s clothes, or
even something the person is carrying) that may or may not
cause them harm.
 To be illegal, however, the touching must be wrong in some
way; it must be done without permission, be embarrassing, or
cause injury.
 Example if the healthcare worker followed through with his
threat & gave the injection without the client’s consent, he would
be committing battery.
 Even though the physician ordered the medication & even if
the client benefits from the administration of the medication,
the healthcare worker is still liable.
(Ramont & Niedringhaus, p. 30)
Ramon, P.R. & Niedringhaus, D. M. (2008).
Assault & Battery-Torts
The care provided to the client by a healthcare worker is with the
client’s permission or informed consent.
 Therefore, a patient should know and agree to what the
healthcare worker plans do before starting to provide that care.
 For example, the healthcare worker is assigned to do a warm foot
soak for the client. Despite the healthcare worker’s explanation of
reasons for the order, the client refuses.
 The healthcare worker cannot force the client to submit as doing
so would result in battery. Assault occurs if the healthcare worker
threatened the client that she/he would get others to assist if the
client continued to refuse.
(Hegner, Acello, Caldwell, p. 40)
Avoid Liability Pitfalls
 Inform the patient what you plan to do.
 Make sure the patient understands.
 Pause before starting the care to give the client an
opportunity to refuse.
 Report refusal of care to your supervisor & document the
facts.
 Never carry out a treatment on your own against the
patient’s wishes.
Coercion means forcing the client to do something against
his/her wishes. (Hegner, Acello, & Caldwell, p. 40)
Hegner, B.R., Acello, B., & Caldwell, E. (2004).
Avoid Liability Pitfalls
Refusal of a treatment creates a dilemma for the nursing assistant
when the patient is mentally confused.
In general a family member or other responsible person gives consent
for treatment. In this situation, it is presumed that the client would
agree if he/she were mentally able to do so.
The patient may refuse a procedure, such as a bath, but the legally
responsible person consented to the procedure, so you may
perform it.
Gaining the client’s cooperation and trust is best. The nursing assistant
may be able to perform the procedure if he/she waits awhile and
returns.
Avoid forcing the patient.
If one is unsure of how to handle refusals, check with the supervisor.
(Hegner, Acello, & Caldwell, p. 40)
Hegner, B.R., Acello, B., & Caldwell, E. (2004).
Intentional Tort
False Imprisonment: the “unlawful restraint or detention of
another person against his/her wishes.”
False imprisonment need not require force; the fear of force to
restrain or detain the individual is sufficient (Bernzweig, as cited
in Ramont & Niedringhaus, p. 30).
 False imprisonment accompanied by forceful restraint or
threat of restraint is battery.
(Ramont & Niedringhaus, p. 30)
Ramon, P.R. & Niedringhaus, D. M. (2008).
False Imprisonment-Restraints
Using physical restraints or threatening to do so, in order to
make a client cooperate can constitute false imprisonment.
Restraints may be in the form of physical devices or chemical
agents.
A physical restraint is any manual method or physical or
mechanical device, material, or equipment attached or
adjacent to the patient’s body that
 A patient cannot easily move
 Restricts a patient’s movement
 Does not allow the patient normal access to his/her body
False Imprisonment-Restraints
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Physical Restraints Examples
Wrist/arm & ankle/leg restraints
Vests
Jackets
Hand mitts
Geriatric chairs; cardiac chairs
Wheelchair safety belts & bars
Bed rails if they meet the definition listed
In general, many devices and practices meet the definition of
physical restraints if the patient does not have the physical or
mental ability to remove the device.
(Hegner, Acello, & Caldwell, p. 39)
Hegner, B.R., Acello, B., & Caldwell, E. (2004).
False Imprisonment-Restraints
Examples of other practices that constitute restraints:
 Tucking in, tying, or using Velcro to hold a sheer fabric or
clothing tightly so the patient’s movement is restricted.
 Using devices in conjunction with a chair (trays, tables, bars, or
belts)that the patient cannot move easily and that keep the
patient from rising.
 Placing the patient in a chair that prevents the patient from
rising.
 Placing a chair or bed so close to a wall that the wall prevents
the patient from rising or voluntarily getting out of bed.
(Hegner, Acello, & Caldwell, pp. 39-40)
Hegner, B.R., Acello, B., & Caldwell, E. (2004).
False Imprisonment-Restraints
According to the Minnesota Department of Health,
research shows multiple risks with the use of physical
restraints. Access the website for information about:
MDH: Safety without Restraints
The following are some risks with restraints:
Falls
Strangulation
Loss of Muscle Tone
Pressure Sores
Decreased Mobility
Agitation
Reduced Bone Mass
Stiffness
Frustration
Loss of Dignity
Incontinence
Constipation
False Imprisonment-Restraints
 Psychoactive medications are considered chemical
restraints because they affect the patient’s mobility.
 Sometimes it is necessary to support and restrain the
movements of patients.
 Support or restraints cannot be used without a
physician’s order.
 This order indicates the extent of the restraint or
support to be used, when it is used, and the reason
for it.
(Hegner, Acello, & Caldwell, p. 40)
Hegner, B.R., Acello, B., & Caldwell, E. (2004).
Alternatives to Restraints
1. Personal strengthening and rehabilitation program;
2. Use of "personal assistance" devices such as hearing aids, visual aids
and mobility device;
3. Use of positioning devices such as body and seat cushions, and
padded furniture;
4. Efforts to design a safer physical environment, including the
removal of obstacles that impede movement, placement of objects
and furniture in familiar places, lower beds and adequate lighting;
5. Regular attention to toileting and other physical and personal
needs, including thirst, hunger, the need for socialization, and the
need for activities adapted to current abilities and past interests;
(Minnesota Department of Health)
Alternatives to Restraints
6. Design of the physical environment to allow for close observation by
staff;
7. Efforts to increase staff awareness of residents' individual needs possibly including assignment of staff to specific residents, in an
effort to improve function and decrease difficult behaviors that
might otherwise require the use of restraints;
8. Design of resident living environments that are relaxing and
comfortable, minimize noise, offer soothing music and appropriate
lighting, and include massage, art or movement activities;
9. Use of bed and chair alarms to alert staff when a resident needs
assistance;
10. Use of door alarms for residents who may wander away.
(Minnesota Department of Health)
False Imprisonment-Tort
 Nurses may suggest under certain circumstances that a client
remain in the hospital room or bed, but the client must not be
detained against the client’s will.
 The client has a right to insist on leaving, even though it may be
detrimental to his/her health.
 The client can leave by signing an absence without authority (AWA)
or against medical advice (AMA) form.
 If you learn that a client wishes to leave without permission, inform
your supervisor who will take care of the situation.
 As with assault & battery, client competency is a factor in
determining whether there is a case of false imprisonment or a
situation of protecting a client from injury.
 Agencies have clear policies about the application of restraints to
guide healthcare workers in such dilemmas.
(Ramont & Niedringhaus, p. 30)
Ramon, P.R. & Niedringhaus, D. M. (2008).
Author:
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48
References
Burke, A. (2010). Legal aspects and ethics. Retrieved from
http://www.nursingassistanteducation.com/site/courses/eng/nae-liae-eng.php
Hegner, B.R., Acello, B., & Caldwell, E. (2004). Nursing assistant: A nursing process approach (9th ed.).
Clifton Park, NY: Thompson Delmar Publishing
Minnesota Department of Health. (2001, December). Safety without restraints: A new practice standard
for safe care. Retrieved from http://www.health.state.mn.us/divs/fpc/safety.htm
Parker-Feliciano, K. (2006). Legal and ethical aspects of nursing. In B.L. Christensen & E. O. Kockrow
(Eds.). Foundations and adult health nursing (5th ed.) (pp. 270-314). St. Louis, MO: Elsevier, Mosby
Ramon, P.R. & Niedringhaus, D. M. (2008). Infection control and asepsis. Fundamental nursing care
(2nd ed.) (pp. 149-176). Upper Saddle River, NJ: Person Prentice Hall