Uploaded by Bob Burkowitz

Week 12 Law and Prof Nurse

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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
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