Local and Global Issues in
Nursing (NRSG 485)
LEGAL ISSUES IN HEALTH AND
NURSING PRACTICE
LEGAL ISSUES COMMON IN NURSING PRACTICE
• Some legal issues recur frequently in nursing
practice.
• It is important for the nurse to understand
these particular issues as they relate to
individual practice.
1. Duty to Report or Seek Medical Care for a
Patient
• A nurse who cares for a patient has a legal duty to ensure
that the patient receives safe and competent care.
• This duty requires that the nurse maintains an appropriate
standard of care and take action to obtain an appropriate
standard of care from other professionals when necessary
• If a nurse identifies that a patient needs the attention of a
physician and fails to make every effort to obtain that
attention, the nurse has breached a duty of care to the
patient.
• Refer to Example Case Five Failure to Seek Medical Care
for a Patient
2. Nursing Responsibility for Medical Orders
• The nurse has a responsibility to critically examine
medical orders that are written for a patient. Although
the nurse is not responsible for the medical order itself,
the nurse's education provides a background to
identify obvious discrepancies or problems.
• For example in one reported case two doctors left
conflicting orders, which the charge nurse then
transcribed. The court ruled that the nurse had a duty
to understand the patient's plan of care and to
communicate with the doctors who had written the
conflicting orders.
2. Nursing Responsibility for Medical Orders
• Another area of important nursing responsibility is in
relationship to telephone orders.
• Although written orders are better, there are situations
when telephone orders are essential to timely care. In
these instances, there should be clear guidelines as to how
orders are documented and verified.
• The preferred method is for the nurse to speak directly to
the prescriber, write down the order as received, and then
read it back to the prescriber for verification. The
prescriber must then review and sign the order as soon as
practical.
• Example Case Six: Obtaining Telephone Order
3. Confidentiality and Right to Privacy
• Confidentiality and the right to privacy with respect to
one's personal life are basic rights,
• All information regarding a patient belongs to that
patient.
• The law demands major efforts of all health care
providers in regard to protecting patient privacy.
• A nurse who gives out information without
authorization from the patient or from the legally
responsible guardian can be held liable for any harm
that results.
3. Confidentiality and Right to Privacy
• Only those professional persons involved in the patient's
care who have a need to know about the patient are
allowed routine access to the record.
• A physician who is not involved in the patient's care or who
does not have an administrative responsibility relative to
that care is not allowed routine access.
• Persons not involved in care may be allowed access to the
record only by specific written authorization of the patient
or by court order.
• The nurse must be very careful about what information you
share verbally and with whom.
3. Confidentiality and Right to Privacy
• Lawyers, family members, media representatives, or the
police sometimes have the right to request access to
patient records or specific patient information without
having consent from the patient or a legal court order to
view the records or be given information.
• If you are ever approached for patient information by
someone who claim to have authority, your best course of
action is to refer that individual to appropriate
administrative personnel, who can determine the validity of
the request.
• Refer to Example Case seven Breach of Confidentiality
4. Defamation of Character
• Defamation of Character occurs when information about a
person’s reputation is shared with another person about a
third party, the person sharing the information may be
liable for defamation of character.
• There are two types of Defamation of Character:
– Libel: is a written defamation
– Slander: is a verbal defamation which is also called smearing
• Defamation of character involves communication that is
malicious and false.
• Sometimes such comments are made in the heat of anger..
4. Defamation of Character
• Statements written in a patient's chart which has
severe and critical opinion can be considered as Libel,
• Severely critical opinions may be stated as fact.
• An example of such a statement might be, “The patient
is lying,” or “The patient is rude and domineering.”
• Patients may charge that comments in the chart
adversely affected their care by prejudicing other staff
against them.
4. Defamation of Character
• Libel and slander may also be charged when
written comments or verbal statements are made
regarding another health care provider.
• Thoughtless or angry comments that undermine
the abilities of a physician or that might cause a
patient to lose trust in a physician can be slander.
• Defamation of character also may be charged by
a health care provider who believes that
statements made by another professional are
false, malicious, and have caused harm.
4. Defamation of Character
• Critical points for nurses to consider
– The careful nurse avoids discussing patients
personal issues with others
– The careful nurse considers any comments about
other health care providers before making them.
– The smart nurse will chart only objective
information regarding patients and give opinion in
professional terms and well documented with
fact.
4. Defamation of Character
• Critical points for nurses to consider
– The smart nurse must make sure to use accepted
mechanisms for confidentially reporting inappropriate
care or errors and do not make critical statements to
uninvolved third parties.
– Criticism reported without malice and in good faith,
through the appropriate channels, is protected from
legal action for defamation.
• Refer to Example Case Eight Accurate and
Responsible Documentation
5. Privileged Communication
• Privileged
communication
refers
to
information that is shared by a client with
certain professionals such as doctors and
nurses but that does not need to be revealed,
even in a court of law.
• This professional is said to possess “privilege”,
that is, he has the privilege of not revealing
information.
5. Privileged Communication
• Certain types of communication (between client and
lawyers, between patient and doctor, or between an
individual and a member of the clergy) are considered
privileged.
• Not all nurse–patient relationship communications are
privileged. But some are potentially privileged.
• Privilege is a limited concept that only a court can
determine whether privilege exists in any specific case.
6. Informed Consent
• Every person has the right either to consent or to
refuse health care treatment.
• The law requires that a person give voluntary &
informed consent.
• Voluntary means that no coercion exists
• Informed means that a person
understands the choices being offered.
clearly
6. Informed Consent
• Consent for Medical Treatment
– Consent for medical treatment is the responsibility
of the medical provider (i.e. physician, dentist,
nurse practitioner).
– Information to be shared with the client includes:
•
•
•
•
•
A description of the procedure
Any alternatives for treatment
The risks involved in the procedure
The probable results, including problems of recovery
Anything else generally disclosed to patients
6. Informed Consent
• Consent for Medical Treatment
– This consent may be either verbal or written and indicates a
patient has decided to go ahead with the procedure based on a
clear understanding of the options.
– Written consent usually is preferred in health care to ensure that
a record of consent exists, although a signature alone does not
prove that the consent was informed.
– A blanket consent for “any procedures deemed necessary”
usually is not considered adequate consent for specific
procedures.
– The form should state the specific proposed medical procedure
or test.
6. Informed Consent
• Consent for Medical Treatment
– The courts do not accept the patient's medical condition alone
as a valid reason for withholding complete and accurate
information when seeking consent.
– Currently, there are no clear guidelines as to what constitutes
complete information. What constitutes adequate information
about various alternative approaches to treatment is often
unclear.
– Is it always necessary to discuss a treatment the physician does
not believe is a good choice? Must all risks be discussed? Courts
have generally supported the idea that commonly accepted
alternatives and usual risks need to be disclosed, but that
marginal or unusual treatments and rare or unexpected risks do
not have to be discussed.
6. Informed Consent
• Consent for Medical Treatment
– The law places the responsibility for obtaining consent for
medical treatment on the provider who will perform the
procedure. It is that person's responsibility to provide
appropriate information, and he or she is liable if the
patient charges that appropriate information was not
given.
– A nurse may present a form for a patient to sign, and the
nurse may sign the form as a witness to the signature. This
does not transfer the legal responsibility for informed
consent for medical care to the nurse. If the patient does
not seem well informed, the nurse should notify the
provider so that further information can be provided to the
patient.
6. Informed Consent
• Consent for Medical Treatment
– Although the nurse would not be liable legally for
the lack of informed consent, the nurse has ethical
obligations to assist the patient in exercising his or
her rights and to assist the provider in providing
appropriate care.
6. Informed Consent
• Consent for Nursing Measures/Procedures
– Nurses must obtain a patient's consent for nursing measures/
procedures undertaken.
– This does not mean that exhaustive explanations need to be
given in each situation, because courts have held that patients
can be expected to have some understanding of usual care.
– Consent for nursing measures may be verbal or implied.
– The nurse should remember that the patient is free to refuse any
aspect of care offered.
– Like the physician, the nurse is responsible for making sure that
the patient is informed before making a decision.
6. Informed Consent
• Competence to Give Consent
– Competence to Give Consent is the person's ability to make
judgments based on rational understanding
– Dementia, developmental disabilities, head injuries, strokes, and
illnesses creating loss of consciousness are common causes of
an inability to make judgments.
– Determining competence is a complex issue. The patient's
illness, age, or condition alone does not determine competence.
– Legal competence is ultimately determined by the court.
– The general tendency of the courts has been to encourage
whatever decision-making ability an individual has and to
restrict personal decision making as little as possible.
6. Informed Consent
• Competence to Give Consent
– When a person is determined legally to be incompetent, a
legal guardian is appointed and consent is obtained from
the legal guardian.
– Health care providers often encounter patients for whom
no legal determination of competence has been made, but
who do not seem able to make an informed decision such
as:
• The very confused elderly person
• The drunk or intoxicated person
• The unconscious person
6. Informed Consent
• Competence to Give Consent
– There are usually institutional guidelines to follow in
determining that a person cannot give his or her own consent.
The guidelines may require examination by a physician and
documentation of the patient's condition. More than one
physician may be required to examine the patient.
– Competence may change from day to day, as a person's physical
illness changes.
– An individual may be competent to make some decisions, such
as “I don't like rice and I won't eat it!” but incompetent to make
others; for example, decisions regarding financial matters.
6. Informed Consent
• Withdrawing Consent
– Consent may be withdrawn after it was given. People have the
right to change their minds.
– As a nurse, you have an obligation to notify the physician if the
patient refuses a medical procedure or treatment.
– When individuals are participating in any type of research
protocol for care, they are free to withdraw from the research
study at any time.
– When caring for individuals who are part of a research process,
you have obligations to protect the patient's right to make
decisions, even if they are contrary to the interests of the
researcher. You would have an obligation to inform the
researcher of the patient's decision.
6. Informed Consent
• Consent and Minors
– The parent or legal guardian usually provides consent for care of
a minor. You also should obtain the minor's consent when he or
she is able to give it.
– Minors who live apart from their parents and are financially
independent, or who are married, are termed emancipated
minors (released, liberated). In most cases (but not all),
emancipated minors can give consent to their own treatment.
– Be sure of the law in your country if you practice in an area
where this is a concern.
– Most institutions have developed policies to guide employees in
making correct decisions in this and other areas dealing with
consent.
7. Advance Directives
• Advance directives are legal documents stating the
wishes of individuals regarding health care in situations
in which they are no longer capable of giving personal
informed consent.
• These documents are completed in advance of the
situation in which they might be needed, and they
direct the actions of others.
• There are several types of advance directives, such as a
living will and a durable power of attorney for health
care
7. Advance Directives
• The Living Will
– A living will or directive to physicians provides
information on preferences regarding end-of-life
issues such as types of care to provide and whether to
use various resuscitation measures.
– The basis of a living will is an if–then plan.
– Most commonly, they declare that if “I am terminally
ill and not expected to recover,” then “I want this care
given and do not want that care given.”
7. Advance Directives
• The Living Will
– The IF condition may also include that the person is in a
persistent vegetative state and not expected to recover
function and capacity.
– The condition stated as the if must be diagnosed by a
physician.
– Living wills or directives to the physician may address
other aspects of care in addition to resuscitation efforts.
For example, they may indicate whether the individual
wants to be tube fed if he or she is in a persistent
vegetative state, whether surgery should be used in
certain instances, or whether IV fluids or ventilator support
should be used.
7. Advance Directives
• Durable Power of Attorney for Health Care
– A durable power of attorney for health care is a
document that legally designates a substitutionary
decision maker, should the person be
incapacitated.
– This document may also be referred to as
designating a health care proxy.
7. Advance Directives
• Physician Orders for Life-Sustaining Treatments
(POLST)
– Limitations on resuscitation in the event of a cardiac or
respiratory arrest may take many forms.
– These orders are generally referred to as Physician Orders
for Life-Sustaining Treatments (POLST).
– The most comprehensive is that the order reads “Do not
resuscitate” (DNR) which means that no resuscitation
efforts of any kind are to be made.
– There would be no cardiopulmonary resuscitation (CPR),
no resuscitative drugs, and no mechanical ventilation
7. Advance Directives
• Physician Orders for Life-Sustaining Treatments (POLST)
– This is often the choice of the person who has a life-threatening
disease and for whom resuscitation would only serve to prolong
illness and discomfort.
– In some instances, the person may request a limited
resuscitation effort, such as CPR and medications but no
mechanical ventilation.
– An important understanding for nurses is that in the absence of
a written order from a physician, other care providers are
obligated to initiate resuscitation if an arrest occurs.
– All care providers must understand that a DNR order does not
limit other types of care that will be provided.
7. Advance Directives
• Physician Orders for Life-Sustaining Treatments
(POLST)
– Treatment of wounds to promote healing, pain
management, resolution of other physical problems (such
as nausea or constipation), antibiotic administration to
control treatable infections, and oxygen to ease breathing
are all examples of care that will still be appropriate. Even
radiation therapy might be determined appropriate to
reduce tumor growth and increase comfort.
– In some instances, an additional order may be written that
specifies “comfort care only.” This order again occurs after
consultation with the patient as able and family as
appropriate.
7. Advance Directives
• Physician
Orders
Treatments (POLST)
for
Life-Sustaining
– When this order is written, treatment of infections
and other problems may not be initiated. The
focus becomes maximum comfort in the face of
impending death. The patient for whom comfort
care only is ordered should receive the same
concerted focus on end-of-life care that would
occur in a hospice setting.
7. Advance Directives
• Physician Orders for Life-Sustaining Treatments (POLST)
– Nurses sometimes find themselves in situations in which they
believe that the patient's condition is futile and that a DNR or
comfort-care-only order would be appropriate, but the
physician has not made this determination or, having made this
determination, has not consulted with the family regarding a
DNR order. Such situations can be difficult for nurses because
they have no decision-making authority, and yet they are the
ones who legally must carry out the resuscitation. Much
depends on the nurse–physician working relationships and their
ability to discuss difficult issues together. Some care facilities
encourage care conferences where these matters can be raised
for discussion. Nurses can be effective advocates for increased
communication and discussion of these difficult issues.
8. Emergency Care
• Care in emergencies has many legal ramifications;
therefore, the judgment that an emergency exists is
important.
• Certain actions may be legal in emergencies and not
legal in nonemergency situations.
• In emergencies, the standard procedures for obtaining
consent may be impossible to follow.
• In emergencies, personnel must sometimes take on
responsibilities that they would not undertake in a
nonemergency situation.
8. Emergency Care
• Critical thinking on the part of all health care professionals
is essential when differentiating an emergency from a
nonemergency.
• Most facilities that provide emergency care have policies
and procedures designed to ensure adequate support for
claiming that an emergency exists. Thus, the policy will
often state that at least two physicians in the emergency
department must examine the patient and agree that the
emergency requires immediate action, without waiting for
consent. This ensures maximum legal protection for the
physician and the institution
8. Emergency Care
• Consent in Emergencies
– If a true emergency exists, consent for care is
considered to be implied. The law holds that if a
reasonable person were aware that the situation was
life threatening, he or she would give consent for care.
– An exception to this is made if the person has
explicitly rejected such care in advance; an example is
a Jehovah's Witness carrying a card stating his
personal religion, and that he does not wish to receive
blood or blood products.
8. Emergency Care
• Consent in Emergencies
– This is one reason why emergency department
nurses should check a patient's wallet for
identification and information related to care.
– Checking a patient's wallet should be done with
another person, and a careful inventory of
contents documented and signed by both. There
should be little concern about liability in taking
emergency action if this is completed.
8. Emergency Care
• Protocols and Emergencies
– Most health care agencies have established protocols for
nursing action in a variety of emergency or even urgent
situations. These provide directions for nursing action that
would usually be a physician's order.
– Example:
• If the patient's blood pressure drops precipitously, the protocol might
indicate that the nurse would start an IV infusion with a specified fluid
to maintain circulating volume and to provide IV access for emergency
drugs.
• The administration of oxygen to a person suffering acute respiratory
distress is another situation frequently covered by a protocol. When
emergencies occur, nurses are protected from a charge of practicing
outside the scope of the RN by following the protocol that was
approved by the medical staff.
9. Fraud
• Fraud is deliberate deception for the purpose of
personal gain and is usually prosecuted as a
crime.
• It may also serve as the basis of a civil suit.
Situations of fraud in nursing are not common.
• One example would be trying to obtain a better
position by giving incorrect information to a
prospective employer.
9. Fraud
• Individuals also may commit fraud by trying to
cover up a nursing error to avoid legal action.
• Courts tend to be harsher in decisions
regarding fraud than in cases involving simple
malpractice, because fraud represents a
deliberate attempt to mislead others for one's
own gain and could result in harm to those
assigned to that individual's care.
10. Assault and Battery
• Assault is saying or doing something to make a person
genuinely afraid that he or she will be touched without
consent.
• Battery involves touching a person when that
individual has not consented to the action.
• Neither of these terms implies that harm was done;
harm may or may not occur.
• For an assault to occur, the person must be afraid of
what might happen because the individual appears to
have the power to carry out the threat.
10. Assault and Battery
• Example of an assault: “If you don't take this
medication, I will have to put you in restraints”.
• For battery to occur, the touching must occur without
consent.
• Remember that consent may be implied rather than
specifically stated. Therefore, if the patient extends an
arm for an injection, he cannot later charge battery,
saying that he was not asked. But if the patient agreed
because of a threat (assault), the touching still would
be considered battery because the consent was not
freely given.
10. Assault and Battery
• Assault and battery are crimes under the law. However,
most of these cases in health care are instituted as civil
suits by the injured party, rather than as criminal cases by
government authorities.
• Assault and battery are most commonly treated as criminal
cases when they involve suspected abuse of a patient.
• Individuals who have difficulty with impulse control and
anger may become frustrated with a patient and threaten,
push, shove, or otherwise harm the individual.
10. Assault and Battery
• Another situation is when a confused patient hits or pinches a
nurse. While a nurse has a right to a safe work environment, that is
not justification for hitting a confused patient in response
• Most jurisdictions have laws requiring that anyone who knows of
abuse to an individual, whether a child, a developmentally delayed
adult, or an elderly person, report that abuse to the proper
authorities.
• Within an institution, there should be policies and procedures for
this type of reporting. Appropriate authorities must conduct a
careful investigation to ensure protection of the rights of the person
accused.
11. False Imprisonment
• False Imprisonment is Making a person stay in a place against his
wishes
• The person may be forced to stay either by physical or verbal
means.
• It is easy to understand why restraining a patient or confining a
patient to a locked room could constitute false imprisonment, if
proper procedures were not first carried out.
• Again, false imprisonment is a crime, but when it occurs in health
care it is most often the basis of a civil suit rather than a criminal
case.
• The law is less clear about keeping a patient confined by
nonphysical means.
11. False Imprisonment
• Removing patients' clothing for the express purpose of
preventing them from leaving, could make a nurse liable for
false imprisonment.
• Threatening to keep people confined with statements such
as, “If you don't stay in your bed, I'll sedate you” can also
constitute false imprisonment.
• If people need to be confined for their own safety or wellbeing, it is best to help them understand and agree to that
course of action.
• Any time patients pose a danger to themselves or others,
the law requires that the least restrictive means available
be used to protect patients and others.
11. False Imprisonment
• Health care providers are obligated to document the
behavior of concern, problem-solve alternative actions, and
then try those alternative actions before resorting to any
type of restraint.
• Documentation of this entire process is essential. Nurses
who determine the need for restraints must obtain a
physician's order as soon as possible. Be sure to follow the
policies of the facility.
• In a conventional care setting, you cannot restrain or
confine responsible adults against their wishes. All persons
have the right to make decisions for themselves, regardless
of the consequences.
11. False Imprisonment
• The patient with a severe heart condition who defies orders
and walks to the bathroom has that right.
• You protect yourself by recording your efforts to teach the
patient the need for restrictions and by reporting the
patient's behavior to your supervisor and the physician.
• In the same context, the patient cannot be forced to
remain in a hospital. The patient has the right to leave a
health care institution regardless of medical advice to the
contrary.
• While this might not be in the best interests of the person's
health, the patient has the right to decide to leave against
medical advice.
11. False Imprisonment
• Again, document your efforts in the record and follow
applicable policies to protect the facility, the physician, and
yourself from liability.
• False imprisonment suits are a special concern in the care
of the psychiatric patient. Particular laws relate to this
situation.
• In the psychiatric setting, you may have patients who have
voluntarily sought admission. The same restrictions on
restraint or confinement that apply to patients in the
general care setting apply to these patients.
11. False Imprisonment
• Other patients in the psychiatric setting may have been
committed involuntarily according to the laws of the
state. Specific measures may be used to confine the
involuntarily committed patient.
• Laws in terms of situation, type of restraint allowed,
and the length of time restraining may be used often
define these measures.
• If you work in a psychiatric setting, review specific
policies regarding restraint to protect patients and to
assist staff in functioning within the legal limits.
12. Medication Errors
• Medication errors are one of the most common causes
of adverse outcomes for hospitalized patients
• The Institution of Medicine (IOM) has estimated that
1.5 million preventable adverse drug events occur in
health care each year
• Adverse drug events have many different sources,
including:
– Inappropriate medication for the condition being treated
12. Medication Errors
• Adverse drug events have many different sources,
including:
–
–
–
–
–
Incorrect dosage or frequency of administration of medication
Wrong route of administration
Failure to recognize drug interactions
Lack of monitoring for drug side effects
Inadequate communication among members of the health care
team and the patient.
• Many health care team members may be responsible for
the errors that lead to adverse events, and many team
members can prevent errors.
12. Medication Errors
• Although individuals must exercise extraordinary care
and follow procedures carefully, systems for
medication administration also need to be carefully
scrutinized.
• Some medication errors result from:
– Drugs with similar names
– Look-alike medication containers
– Poor systems for communication, in which handwriting
problems may contribute to lack of clarity
– Verbal orders have such a potential for error that most
systems are set up to avoid them as much as possible.
12. Medication Errors
• Nurses are legally responsible for ensuring that the five
rights of drug administration are followed.
• Most hospitals require the use to two identifiers (such
as the patient's name, number, telephone number, or
Social Security number).
• The ordered treatment or medication must be matched
to the patient using the identification band information
such as name and ID number and compared to the
same information transcribed in the patient record or
medication administration record (MAR).
12. Medication Errors
• Other errors occur because of the use of dangerous
abbreviations, and most health care facilities now have lists
of abbreviations that must be used. For example, “I.U.” for
international unit may be confused with “I.V.” for
intravenous; thus international unit must be written out.
• The IOM and the Institute for Safe Medication Practice have
identified specific actions that can be taken to reduce
medication errors:
– Engaging patients and families in all efforts. Patients and their
family caregivers can be taught what medications they are
receiving and taught to monitor what they are given. They need
to feel free to ask questions, check on what they receive and
keep their own careful records.
12. Medication Errors
• The IOM and the Institute for Safe Medication Practice have
identified specific actions that can be taken to reduce
medication errors:
– The use of effective information technology and improved
labeling and packaging of medications are major strategies to
decrease medication errors.
– Computerized medication systems and computerized order
entry are designed to diminish the chance of these medication
errors.
• When medication errors do occur, the health care
professionals involved should institute corrective action
immediately and communicate with the patient and family.