LAW AND THE PROFESSIONAL NURSE NU 230 Introduction to Professional Nursing & Scholarship Learning Objectives • Discuss the functions and sources of law as they relate to nursing practice. • Describe civil proceedings including the nurse’s role as an expert witness. • Discuss the scope and standards of professional nursing practice. • Discuss the elements of malpractice and negligence. • Examine the functions of the state boards of nursing. • Apply the concept of professional accountability to professional and legal standards in relationship to informed consent, confidentiality, and privacy. • Examine the legal aspects of delegation. Introduction The professions of law and nursing are both devoted to helping client and society A harmonious interaction between the areas of law and nursing are necessary for achieving effective outcomes Advanced state of technology creates many legal, ethical, moral and financial issues for consumers and HC providers. Patients are more aware of their legal rights Laws serve as a guiding force – for guidance to occur laws must be developed for implementation to occur – laws must be enforced Introduction (cont.) • Laws evolve by accommodating to changes in society while adhering to the principles of the US Constitution • Three sources of law built on the Constitution Statutory law Administrative (or Regulatory) law Case law Note: while federal law is administered the same way in all states. However, states might vary on how it interprets and implements laws. Therefore the interpretation of legal issues for nurses varies state to state. Nurse Practice Acts • A nurse practice act has the goal of protecting the safety of the public who receive nursing care • Each state has statutes that govern the practice of nursing, while some differences exist state to state • Find your nurse practice act resource: https://www.ncsbn.org/npa.htm • Nurse practice acts define: who must be licensed, requirements for licensure, duties of the licensed nurse, grounds on which a license can be revoked or taken away Statutory Law • Statutory Laws Consist of the ever changing rules and regulations created by the US Congress, state legislators, local government, and constitutional law. The statutes are the rights, privileges, or immunities secured and protected for each citizen through the US Constitution • The process for creating legislation in complex. • Professional Organizations/Lobbyists ANA has focused on advocating for legislation focused on patient safety. Specialty professional organizations • Generally no action is taken on an a bill introduced to a legislative body unless there is a confluence of problems, solutions, and political circumstances to create a climate for passing legislation (Longest, 2002) Administrative Law (Regulations) • Once a bill becomes law, that law is subject to further refinement by federal or state agencies. • Enacted statutory laws state what Congress or the State legislators want to accomplish and what activities should accomplish the goal. • Federal or state agencies carry out that activity by developing regulations that further define the law and establish procedures for administering the law Examples: ◦ ◦ A state nurse practice act might provide that APRN develop a formulary of medications they may prescribe A state nurse practice act might require a criminal background check with fingerprinting ◦ Most states require fingerprints, while some do not (n=6) ◦ NCSBN E-Compact ◦ A state nurse practice act might require that RNs demonstrate continuing competence through the continuing education unit requirement ◦ DC requires 24 credits; VA requires 30 credits Case Law • Both civil and criminal • Established from court decisions – which can explain or interpret other laws • Defines legal rights and obligations • Example: nurse’s obligation to practice as a reasonably prudent nurse is a legal obligation stemming from actual court decisions https://www.nurse.com/blog/2017/04/19/courtcase-highlights-nurses-duty-to-follow-emtala/ Emergency Medical Treatment and Active Labor Act (EMTALA) • The Emergency Medical Treatment and Active Labor Act (EMTALA) was included in the COBRA legislation of 1986. • Combats the discriminatory practice of some hospitals transferring, discharging, or refusing to treat indigent patients coming to the ED because of the high cost associated with diagnosing and treating these patients with emergency medical conditions. • While the Act applies to all Medicare participating hospitals, it protects anyone coming to a hospital seeking emergency medical services, not just Medicare beneficiaries. • EMTALA imposes strict penalties including fines and exclusion from the Medicare program for violations. The Act imposes 3 primary requirements on Medicare participating hospitals that provide emergency medical services. 1. The hospital must provide an appropriate medical screening exam to anyone coming to the ED seeking medical care; 2. If the hospital determines that the individual has an emergency medical condition, It must treat and stabilize the emergency medical condition, or the hospital must transfer the individual; and 3. A hospital must not transfer an individual with an emergency medical condition that has not been stabilized unless several conditions are met that includes effecting an appropriate transfer. Classification & Enforcement of the Law • Civil Law Involves relationships between individuals, Individuals & the government Six categories: tort, contract, property, inheritance, family, & corporate law • Civil laws that commonly affect nurses include tort & contract law • Torts can be intentional or accidental Assault, Battery, False Imprisonment, Defamation of Character, Fraud, Invasion of Privacy Torts • Can be intentional or unintentional Assault Battery False Imprisonment Defamation of character Fraud Invasion of privacy Unintentional tort usually occurs when the nurse does not act within the reasonable standards of nursing care. A reasonable standard of care means that nurse must implement the type of care that a reasonably prudent nurse would use in similar circumstances. Trial Process for Civil Procedures • Nurses are most often involved in civil cases related to malpractice or negligence. • Patient brings the case against the healthcare facility or nurse, who becomes the defendant. Negligence & Malpractice • Negligence: failure to act as a reasonably prudent person would have acted in a specific situation • Malpractice: failure of a professional to use such care as a reasonably prudent member of the profession would use under similar circumstances, which leads to harm Form of negligence addressing negligent conduct • of professionals Situation dependent Form of negligence Malpractice defined most often by: State nurse practice act Institutional policies Federal guidelines The Joint Commission Standards Nurses as Expert Witnesses • Nurses as Expert Witnesses Complex knowledge “Standard of Care” Clarify points of knowledge using charts, models, & diagrams Classification & Enforcement of the Law • Criminal Law Criminal acts are classified as felonies & misdemeanors Society is the plaintiff A nurse selling or stealing drugs results in a criminal case Criminal cases have a higher standard of evidence Burden of proof is on the plaintiff Nursing Scope & Standards • Nurse’s duty is to function within the parameters of the scope of nursing practice • Scope of practice describes the who, what, where, when, why & how of nursing practice • Evidence of Standards of Care Used in Court in Nursing Negligence & Malpractice Decisions Standards of nursing practice = authoritative statements of the duties of all RNs Professional performance standards = expectations Evidence of Standards Statutes (Nurse Practice Act) Facility documents Agency regulations Accreditation standards Manufacturer’s instructions Nursing literature Expert testimony Malpractice and Negligence • Malpractice & Negligence are not intentional actions or inactions • Negligence – failure to act as a reasonably prudent person would have acted in a specific situation A finding of negligence occurs when the nurse owes a duty to a patient & breaches an ordinary standard of care known by laypersons A negligence lawsuit does not require an expert witness Malpractice • Malpractice – requires that the harm be foreseeable only by the nurse Malpractice is professional negligence Patient survived the harm Found to have a duty to care, breached the duty to care by not adhering to the expected standard of care, caused injury to the patient Wrongful death – patient did not survive Lawsuit requires an expert witness Damages are awarded • Nurses can be both negligent & guilty of malpractice (do carry Malpractice insurance) • Respondeat superior – healthcare organization/employer responsible too Avoid Malpractice & Negligence Manage Adhere Follow and know Work in Manage stress Adhere to standards of care Follow and know your institution’s policies & procedures Work in environments that encourage examination of incidents Change Change systems to lower the risk of malpractice Practice Always practice within the professional standards and statutory scope of your practice – know your Nurse Practice Act! Nursing Licensure History of Licensure Nightingale did not believe nurses should be recognized by a government body Early years of nursing education – apprentice models with varying lengths and quality of programs 1903 NC first state to allow nurses to “register” after completing an approved program 1923 all 48 states required “registration” but with great variation in requirements 1944 only 15 states used the State Board Exam 1950 - Nursing became the first profession to use the same licensing exam in all states 1978 National Council of State Boards of Nursing (NCSBN) was formed – to develop NCLEX National Council of State Boards of Nursing (NCSBN) • Intro to NCSBN (video) • Is an independent, not-for-profit organization through which boards of nursing act and counsel together on matters of common interest and concern affecting public health, safety and welfare, including the development of nursing licensure examinations. • https://www.youtube.com/watch?v=ivjsXfoViXA • (NCSBN) developed the Nurse Licensure Compact – statutory agreement between and among states to permit nurses who are residents of one state to have the privilege of practicing in another state without acquiring a license in a second state - subject to the provisions and laws of the other state NCSBN generates the initial licensure exam Function and Composition of BONs • The boards of nursing (BONs) that comprise NCSBN protect the public's health and welfare by assuring that safe and competent nursing care is provided by licensed nurses. BONs achieve this mission by outlining the standards for safe nursing care and issuing licenses to practice nursing. • 59 members • BON Guiding Principles https://www.ncsbn.org/1325.htm Boards of Nursing • Discipline of Nurses In legal terms, licensure is a privilege not a right • BONs have moved to bar from initial licensure persons who have been involved in potential or actual physical harm felonies • Individuals with a history of drug-related & psychiatric health problems seeking initial licensure in any state may be allowed to practice but are required to enter into an agreement • Endorsement requires verification that the nurse’s license has not been disciplined in another state Professional Accountability • Informed Consent • Privacy and Accountability • Delegation Informed Consent – Includes: 1. A brief but complete explanation of the patient diagnosis and proposed treatment or procedure 2. The name and qualifications of the person who will perform the procedure or treatment 3. Information related to available alternatives to the recommended treatment 4. Information related to possible complications of the treatment or procedure 5. An explanation related to the patient’s right to refuse treatment without having care discontinued Standards of Informed Consent • The medical standard— what is regarded as a material risk in the medical community • What a reasonable patient would need to know • What a particular patient needs to know Nurse’s Role in Informed Consent • Facilitating informed consent for patient care as a part of providing patient-centered care • Advocate for patient • Witness to patient signature • If there is a language barrier, an interpreter MUST be obtained • Patient’s health literacy impacts informed consent Board of Nursing Complaint Process: Investigation to Resolution Video • https://youtu.be/fzEwtCxaTmI (10-min. video clip) NCLEX-RN Test Plan https://www.ncsbn.org/testplans.htm NCLEX-RN Test - Related Content • Advance directives • Ethical practice • Advocacy • Informed consent • Client rights • Legal rights & • Confidentiality & information security • Delegation responsibilities • Safe use of equipment NCSBN Video New Nurses: Your License to Practice (8 minutes) https://www.ncsbn.org/8243.htm • • • • Nurse Practice Acts Professional responsibility Professional boundaries Nursing ethics Boards of Nursing - Disciplinary Categories Chapter 30 of Title 54.1 of the Code of Virginia • Substandard Nursing Practice, Unethical Actions, Poor Judgment • Destruction or alteration of patient records • Physical patient abuse • Failure to follow policy • Significant medication errors • Controlled substance violations or dependency • Impaired mental or physical incapacity • Inappropriate management decisions • Practicing beyond the scope of practice • Sexual misconduct • Patient or employer abandonment NCSBN Video • Substance Use Disorder in Nursing (13 minutes) https://www.ncsbn.org/333.htm • • • • • • The facts about substance use disorder Substance use disorder & nurses Identification & reporting Investigation & intervention for the nurse manager Treatment & alternative to discipline programs Recovery & return to practice NCSBN Video • Board of Nursing Complaint: Investigation to Resolution (video clip -10 min) https://www.ncsbn.org/426.htm Professional Accountability • Informed Consent • Privacy & Confidentiality • Delegation • Barriers to Delegation • Delegation Decision-Making Tree The NCSBN’s Delegating Effectively ANA Model of Professional Nursing Practice Regulation Conclusions • Prevention of legal problems • Communication is key • Nurses have inherent duties to be informed • Nurses are required to be competent
