Legal Issues in Nursing
and Health Care
Why is it important to understand the
legal issues that impact nursing
practice?

Nurses are constantly faced with the
challenge of making difficult decisions
regarding good and evil or life and death
 Nurses have a responsibility to:
– Understand the legal obligations when caring
for clients
– Understand the legal limits influencing daily
practice
– Protect the client’s rights
– Protect themselves from liability
Types of Law

Statutory Law
– Created by elected legislators (Congress, state
legislatures) - STATUTES
– Can be either criminal or civil
– Example: Nurse Practice Acts (NPA), Emergency
Medical Treatment and Active Labor Act (EMTALA)

Common Law
– Created by judicial bodies as a result of legal cases
– Examples: “Informed consent,” “abortion rights,”
client’s right to refuse treatment
Standards of Care

Standards of care are guidelines for nursing
practice, they delineate scope of practice,
function and role of the nurse. They are defined
in various ways:
– Nurse Practice Acts
– State Boards of Nursing of each state
– Federal/ state laws regulating hospitals and health
care institutions
– Professional and specialty nursing organizations
– Facility policies and procedures
Scope of Practice

Defined by:
– Nurse Practice Acts
– Code of Ethics
– Organization Standards
– Policy and Procedure Manuals
Federal Statutes

ADA (Americans with Disabilities Act) – is to end discrimination

Emergency Medical Treatment and Active Labor Act
(EMTALA) – is to prohibit refusal of care for indigent and uninsured
against qualified persons with disabilities by removing barriers that
prevent them from enjoying the same opportunities available to
persons without disabilities
patients seeking medical assistance in the ED

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Mental Health Parity Act
Patient Self Determination Act (PSDA)
– Advance Directives (“living will”, “DNR”, “durable power of attorney”)

Uniform Anatomical Gift Act – organ’s donation
HIPAA (Health Insurance Portability and Accountability Act)

Restraints

– to ensure confidentiality of the patient’s medical records
State Statutes

Licensure - regulated by each state. Licensed by State Board of
Nursing (minimum education requirements, successful completion of
licensure exam (NCLEX). Can be suspended or revoked)

Good Samaritan Laws (1998) - protects health professionals
stopping to help in emergencies

Public Health Law - laws created to promote health and reduce
health risks in communities (school immunizations, reporting
communicable diseases)

Uniform Determination of Death Act (1980)- has been adapted in
most states - changed standards for determining death

Physician-Assisted Suicide (1994) - Oregon passed the Oregon
Death with Dignity Act - first statue that permitted physician
assisted suicide
State Statutes

Nurse Practice Acts:
– Establish education requirements
– Distinguish between nursing and medical
practice
– Define the nurses scope of practice
– Define nursing practice more specifically

All nurses are responsible for knowing
their Nurse Practice Act
Reporting Statutes

Child Abuse Prevention and Treatment Act
and Reporting Statutes
– Mandate reporting specific health problems
and suspected or confirmed abuse
– Health professionals must report under
penalty of fine or imprisonment for failing to
do so:
 Infant and child abuse
 Dependent elder abuse
 Specified communicable diseases
Common Law Issues in Nursing
Practice

Consent
– A signed consent is required for all routine treatment, hazardous
procedures, some treatments, and research

Abortion Issues
– Includes a woman’s right to have an abortion

Student Nurses
– Student nurses are liable if their actions cause harm to patients (liability
is usually shared)

Malpractice Insurance
– Professional insurance, contract w/ nurse and insurance company if
nurse is sued for professional negligence or medical malpractice

Abandonment and Assignment Issues
– Short staffing - Inadequate staffing/ patient ratios
– Floating - Assignments to a department where the nurse does not
normally work
– Physician’s orders - Nursing judgment when carrying out physician
orders
What is Informed Consent?
In 1914, Justice Benjamin Cardozo stated, “
Every human being of adult years and
sound mind has a right to determine what
shell be done with his own body…”
(Schloendorff v. Society of N.Y. Hospital)
More about IC:
http://www.ama-assn.org/ama/pub/category/4608.html
Definition

Informed Consent (IC) is the duty of a
health care provider to discuss the risks
and benefits of a treatment or procedure
with a client prior to giving care
IC must include the following:
1.
2.
3.
4.
The
The
The
The
nature of the procedure
risks and hazards of the procedure
alternatives to the procedure
benefits of the procedure
When IC is Not Required

In case of emergency situation (for minor or
adult) A MINOR is defined as a person who has
not yet obtained the age at which she or he is
considered to have the rights and responsibilities
of an adult (Alabama , Nebraska and Wyoming –
19 y.o., all other states – 18 y.o.).

It is prudent to obtain the IC from the
adolescent in case if health care providers have
made a reasonable attempt to contact the child
parent
When IC is Not Required
Many states allow the evaluation and
treatment of a child for suspected physical
or sexual abuse without the informed
consent of a parent or guardian.
 Photographing and taking an X-Ray (Utah)
 In case of forensic examination (do not
force or restrain the child to perform
genital or rectal examination)

When a minor can consent for
care?
Care involving pregnancy, contraception,
or treatment of STD
 Drug and alcohol treatment
 In some states – emancipated children
can make their health care decisions by
themselves

Emancipation
Emancipation is the legal recognition that the
minor lives independently and is legally
responsible for his or her own support and
decision making.
Can occur through an official court proceeding
In some states, a minor can automatically
become emancipated by marrying, joining the
military, or becoming a parent before the age of
majority
 Some states do not officially recognized any
form of emancipation


Consents
A client’s signature implies that the client has
been thoroughly informed about the procedure.
 Consent must be witnessed appropriately
 Not considered informed if client is:

–
–
–
–
Confused
Unconscious
Mentally incompetent
Under the influence of sedatives, including
preoperative medications
Legal signatures on consents

Who can legally sign a consent:
–
–
–
–
–
–
–
–
–
Individuals of legal age - 18
Under legal age but have a valid marriage certificate
Emancipated minors (certain states)
A parent or legal guardian of a minor
A spouse or next of kin for an adult who is
unconscious or mentally incompetent
Conservators
Court ordered consent
Telephone consents
Emergency consents
Civil Law Issues in Nursing Practice

Tort - a civil wrong against an individual or property. May or
may not be on purpose . It violates another person’s right’s
– Intentional
 assault - attempt to threaten or harm another person (Ex: force
feeding)
 battery - intentional physical contact with a person without consent
( Ex: touching without the other person’s permission)
 invasion of privacy - right to confidentiality (Ex: release of client’s
medical information)
 defamation of character - ridiculing others, slander, may apply to
client or a colleague (Ex: attack the reputation of a colleague)
 false imprisonment - confined or held against a person’s will (Ex:
preventing a person from leaving the hospital voluntarily)
– Unintentional
 Negligence - an occasion when a person owes a duty to another
and, through failure to fulfill that duty, causes harm
 Malpractice - is professional negligence
For a court to recognize a claim of
malpractice or negligence, four legal
elements must be present
1.
2.
3.
4.
There must be a duty owed to the client by
nurse
The nurse must breach the duty
The breach of duty must be the cause of the
damage
There must be actual damage to the client
Risk Management

A system for ensuring appropriate nursing
care and identifying hazards before harm
is done to a client.
– Steps in risk management
 Identify possible risks
 Analyze those risks
 Act to reduce the risk
 Evaluate the steps taken
– Incident/occurrence reports
To Decrease Chance of Liability
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Caring, respectful attitude
Follow standards of care
Give competent care
Communicate with other health care workers
Develop a good therapeutic caring relationship (rapport)
Document, document, document (accurately, completely, timely,
factually, legibly)
Stay current with your knowledge of your practice
Know your clients
Confidentiality
Informed consent
Physician orders
Malpractice insurance