LEGAL ISSUES IN HEALTH AND NURSING
PRACTICE
INTRODUCTION
 Legal issues are those that are decided by law
 Law may be defined as:
 “A rule of conduct or action prescribed or formally
recognized as binding or enforced by a controlling
authority”
 Laws are put in place to ensure that behavior that
would threaten public safety is controlled after all
other measures to change that behavior have failed
INTRODUCTION
 Ethics are the principles of conduct governing one's
relationships with others (basic beliefs about right and
wrong)
 Legal and ethical issues are often discussed together
because they go hand in hand, with one supporting
the other.
CLASSIFICATION OF LAWS
 Law is divided into civil and criminal components.
 Both statutory law and common law may be
subdivided in this way.
Criminal Law
 Criminal law addresses the general welfare of the public.
 A violation of criminal law is called a crime, and it is
prosecuted by the government.
 On
conviction, a crime may be punishable by
imprisonment, a loss of privilege (such as a license), a fine,
or any combination of these.
 The punishment is intended to discipline the violator and
deter further such actions by this person as well as
discourage others from committing the crime.
Criminal Law
 A crime may be classified as either a misdemeanor
(misbehavior) or as a felony (lawbreaking).
 A misdemeanor is a lesser violation of the law and is
punishable by a fine or an imprisonment of less than a
year.
 A felony represents a more serious violation of the law
and carries heavier fines and longer periods of
imprisonment, and in the most serious of cases,
perhaps even death
Civil Law
 Civil law regulates conduct between private individuals and
businesses and is enforced through the courts as damages
or money compensation.
 A tort is a violation of a civil law in which another person is
wronged.
 Private individuals or groups may bring a legal action
(lawsuit) to court for breach (breaking) of civil law.
 Nurses may find themselves involved with both civil and
criminal laws, either separately or within the same
situation.
LAW AND THE NURSES
Criminal Law and Nursing
 A violation of any law governing the practice of any
licensed profession may be a crime
 A violation of a professional practice act may be
prosecuted as a crime even if no actual harm occurred
to the patient
 Some violations of criminal law are not prosecuted in
court but even when not prosecuted in court, criminal
action could result in the loss of a job and a license to
practice nursing
Criminal Law and Nursing
 Examples include:
 Diagnosing diseases and prescribe medication: to give a
medication without an order is a violation of the law and
is a crime, even if doing so does not harm the client
 Violation of laws related to the care and distribution of
controlled substances is also a crime.
 Altering or changing narcotic records is a crime even if
no diversion of drugs occurred.
Criminal Law and Nursing
 Nurses can also commit crimes while in the role of caring
for patients. These legal actions may be based on such
charges as reckless endangerment and/or criminal
negligence
 Examples include:
 Leaving hospital at midnight knowing that the nurse for the
next shift had not yet arrived might be considered reckless
endangerment
 To leave incapacitated patients without a nurse is abandoning
them and is considered reckless because it shows a lack of
appropriate regard for the well-being of the patients
Criminal Law and Nursing
 Errors that result in the serious injury or death of a patient
are investigated and may be prosecuted and tried by the
criminal courts.
 A license to practice nursing may be temporarily
withdrawn while such charges are investigated and tried.
 If the individual is found innocent, the license then may be
restored. If the individual is convicted of the crime, the
nursing license may be withdrawn, in addition to
sentencing and other penalties
Criminal Law and Nursing
 Nurses who commit felonies such as theft, abuse, or
deliberate harm in which a patient is a victim are
usually charged under both criminal laws and the laws
regulating nursing practice
 Nurses who commit felonies outside of the care setting
can be prosecuted under criminal law and under the
law regulating nursing practice if the felony reflects on
their fitness to practice nursing ( For example, an
individual prosecuted for selling narcotics usually will
have action taken under the Nurse Practice Act as well)
Civil Law and Nursing
 Civil law relates to legal disputes between private parties.
 Malpractice actions brought in health care situations
involve civil law.
 Torts
 Torts are civil wrongs committed by one person against
another person or a person's property
 The wrong may be physical, psychological or emotional harm,
harm to livelihood, or harm to reputation
Civil Law and Nursing
 The action that causes a civil wrong may be either
intentional or unintentional
 An intentional tort is one in which the outcome was
planned, although the person involved may not have
believed that the intended outcome would be harmful to
the other person.

Example: Preventing a patient from leaving against medical
advice may be based on concern for the patient, but it is illegal
and to do so is an intentional tort
Civil Law and Nursing
 The action that causes a civil wrong may be either
intentional or unintentional
 An unintentional tort is a wrong committed against
another person or property that was not intended to
happen. The most common cause of an unintentional
tort is negligence

Example: Giving a patient his breakfast on the morning of his
abdominal surgery without recording it and not knowing he is
schedule for surgery
Negligence
 Negligence is a general term that refers to conduct that
does not show due care
 If harm is caused by negligence, it is termed an
unintentional tort and damages may be recovered
 All negligence has the following four Essential
Characteristics:
 Harm must have occurred to an individual
 The negligent person must have been in a situation
where he or she had a duty toward the person harmed
Negligence
 All
negligence
Characteristics:
has
the
following
four
Essential
 The person must be found to have failed to fulfill his or her
duty. This is called “breach of duty” and may include:


Commission of an inappropriate action: doing what should not have
been done
Omission of a necessary or appropriate action: failing to do what
should have been done (This is also referred to as failing to act as a
reasonably prudent/careful person). A reasonably prudent person in
this context means someone who demonstrates careful and
thoughtful action.
 The harm must be shown to have been caused by the breach
of duty
Malpractice
 Malpractice is a term used to identify a specific type of
negligence.
 It refers to the negligence of a specially trained or
educated person in the performance of his or her job.
 Malpractice is the term used to describe negligence by
nurses and doctors and other health care professionals
in the performance of their duties
Malpractice
 Malpractice is a professional negligence
 Liability resulting from improper practice based on
standards of care required by that profession
Malpractice
 Applying
the Four Essential
negligence to Malpractice:
Characteristics
of
 Duty of a professional toward an individual : The
professional person must have had a professional duty
toward the person receiving the care
 Breach of duty by the professional: The nurse was
performing the professional activities of a nurse for the
person needing the care (in either a paid or volunteer
capacity)
Malpractice
 Applying
the Four Essential
negligence to Malpractice:
Characteristics
of
 Harm to an individual : The harm that occurred to this
person or to the property must be based on a failure to
act as a prudent professional and in accordance with
professional standards in the situation
 Breach of duty as the cause of harm: Malpractice is
present only if a breach of duty was the cause of the
harm
Malpractice
 The presence of harm is often clear (a fractured hip,
surgical instrument in the abdomen of a patient). No one
will dispute that this is harm.
 Malpractice is present only if a breach of duty was the
cause of the harm.
 The cause of a fractured hip might be the person's own
responsibility, not the responsibility of the nurse or the
doctor, but in the case of a surgical instrument left in an
abdomen of a patient after surgery and causes harm and
infection or even death, there is no way that the instrument
could be in the abdomen if the surgical team had not
placed it there.
Malpractice
 When the harm is so clear and the responsibility for
the harm so straightforward that it does not need to be
proved in court, the legal term “the thing speaks for
itself” is used and Expert Witnesses would not be
needed to make this determination.
 Always remember that a breach of duty may be either
the omission of a correct action or the commission of
an incorrect action.
Liability
 A liability is an obligation or debt that can be enforced by
law.
 In the case of malpractice, a person found guilty of any tort
(whether intentional or unintentional) is considered legally
liable, or legally responsible, for the outcome, and usually
is required to pay for damages to the other person.
 These may include actual costs of care, legal services, loss
of earnings (present and future), and compensation for
emotional and physical stress suffered.
Liability
 Personal Liability
 As an educated professional, you are always legally
responsible or liable for your actions,
 “ I will take responsibility for that” means nothing and
unwise
 The physician or supervisor giving the directions may be
liable also if harm results, but that would not remove
your personal liability
** Refer to Example Case One: Personal Liability
Liability
 Employer Liability
 The most common situation in which a person or
organization is held responsible for the actions of
another is in the employer–employee relationship
 In many instances, an employer can be held responsible
for torts committed by an employee
Liability
 Employer Liability
 The law holds the employer responsible for hiring
qualified persons, so if a nurse, as an employee of a
hospital, is guilty of malpractice, the hospital also may
be named in the suit.
 It is important to understand that this does not remove
any responsibility from the individual nurse, but it
extends responsibility to the employer in addition to the
nurse.
** Refer to Example Case two: Employer
Responsibility for a Staff Nurse
Liability
 Supervisory Liability
 In the role of clinical leader, charge nurse, unit manager,
supervisor, or any other role that involves delegation,
supervision, or direction of other people, the nurse is
potentially liable for the actions of others
 The supervising nurse is responsible for exercising good
judgment in a supervisory role, including making
appropriate decisions about assignments and delegation
of tasks.
Liability
 Supervisory Liability
 If an error occurs and the supervising nurse is shown to have
exercised sound judgment in all decisions made in that
capacity, the supervising nurse may not be held liable for the
error of a subordinate.
 If poor judgment was used in assigning an inadequately
prepared person to an important task or oversight was
inadequate, the supervisory nurse might be liable for
resulting harm.
 The extent of the subordinate's responsibility would depend
on his or her level of education and training.
Liability
 Supervisory Liability
 People with limited education or training might not be
liable for some errors; the more education subordinates
have, the more likely they will be liable
** Refer to Example Case Three: Supervisory
Responsibility for an Educated Staff Member
And
** Refer to Example Case Four: Supervisory
Responsibility for a Staff Member with Limited
Education
Liability
 Liability Insurance
 Liability insurance transfers the legal and any settlement
costs related to a suit from the individual to an
insurance company, which spreads the risks to a large
group of policy holders.
Liability
 Institutional and Individual Insurance
 Many hospitals and other institutional employers carry
liability insurance that covers both the institution and
its employees.
 Some hospitals may limit the coverage that their policies
provide for individual employees in an effort to hold
down costs.