The nurse's action was appropriate. Under the Emergency Medical Treatment and Active Labor Act (EMTALA), all patients presenting to an emergency department must receive a medical screening exam and stabilizing treatment, regardless of ability to pay. By contacting her supervisor and the medical chief of staff, the nurse ensured the patient would receive the emergency care she required by law. Sending an unstable patient elsewhere could violate EMTALA and put the patient's health at risk.
<<Instructor: Review each bulleted item while referring to the following notes.>>
Law is a binding practice, rule, or code of conduct that guides a community or society and is enforced by a controlling authority. The basic function of laws is to protect society by establishing acceptable patterns of behaviors. Nurses can use legal principles from the various sources of law to guide their actions, to minimize the possibility of lawsuits, and to promote defensible decisions. The legal framework that governs nursing practice consists of laws, regulations, and standards of practice. The common theme under this framework is that the nurse is legally responsible for his or her own actions, and this legal responsibility cannot be delegated.
U.S. Constitution: The U.S. Constitution establishes three branches of government: executive, legislative, and judicial. Each branch has specified powers that are designed to equalize power among the three and to provide a system of checks and balances.
Statutory law: A statute is a law passed by a federal Congress or by a state legislative body. Congress passes laws for the benefit of society as a whole, whereas states use their police power to pass laws to ensure the general health, safety, and welfare of their citizens. The Nurse Practice Act (NPA) is an example of statutory law. The legislative body of each state passes regulation (laws) that govern the profession of nursing, known as Nurse Practice Acts.
Administrative law refers to the laws that govern the activities of administrative agencies. Administrative agencies are created at the federal level by Congress and at the state level by its legislative bodies. As applied to nursing, within each state’s Nurse Practice Act, the state legislative body created a Board of Nursing to enforce the NPA. The Board of Nursing creates rules and regulations that are necessary to ensure compliance with its statutory mission—regulate the practice of nursing.
Common (judicial) law: A compilation of laws made by judges or courts is known as common law. Also referred to as case law, common law is based on common customs and traditions. It comes from legal principles and guidelines that judges use to determine the outcome of legal cases.
Bill of Rights: The first ten Amendments to the U.S. Constitution are known as the Bill of Rights. The Bill of Rights clearly identifies, and in many ways limits, the role of government in individuals’ lives.
Emergency Medical Treatment and Active Labor Act: This requires healthcare facilities to provide emergency medical treatment to patients who seek healthcare in the emergency department, regardless of their ability to pay, legal status, or citizenship status. The obligation is for the medical facility to provide medical screening to determine if an emergency exists and to stabilize the patient before transferring him or her to another healthcare facility.
Americans with Disabilities Act Amendments Act of 2008: This provides protection against discrimination of individuals with disabilities. A person has a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities (EEOC, updated 2012). In general, the ADA provides that employers must provide reasonable accommodations within the work setting to allow employees with disabilities to perform their jobs.
<<Instructor: Review each bulleted item while referring to the following notes.>>
Patient Self-Determination Act : This recognizes the patient’s right to make decisions regarding his or her own healthcare, based on the information provided to him or her by the healthcare provider, regarding the medical or surgical treatment options available, the benefits, risks, and alternatives.
HIPAA was passed by Congress to
Protect health insurance benefits for workers who lose or change their jobs
Protect coverage to persons with preexisting medical conditions
Establish standards to protect the privacy of personal health information
The privacy regulations will be especially important in your practice. Nurses and other healthcare providers must protect the patient’s right to privacy by not sharing patient information with unauthorized individuals. Under HIPAA rules, healthcare agencies and their employees must take steps to ensure the confidentiality of the patient information and medical records. In addition, HIPAA allows for patients to see, make corrections to, and obtain copies of their medical records.
<<Instructor: Select the most appropriate answer to this question using your clicker.>>
<<Instructor: The correct answer is D.>>
<<Instructor: Review each bulleted item while referring to the following notes.>>
Mandatory reporting laws: The law in various states requires healthcare workers to report communicable diseases. You also have a duty to report physical, sexual, or emotional abuse or neglect of children, older adults, or the mentally ill, whether you suspect it or have actual evidence of it. The intent is to protect people who cannot protect themselves and to protect society against the spread of communicable diseases. Mandatory reporting laws also protect you when reporting abuse. In most instances, the identity of the reporter is kept confidential.
Good Samaritan laws: These laws are designed to protect from liability those who provide emergency care to someone who has been injured.
Nurse practice acts: These are statutory laws passed by each state’s legislative body that define the practice of nursing. Nurse practice acts are designed to
Protect patients or society
Define the scope of nursing practice
Identify the minimum level of nursing care that must be provided to clients
<<Instructor: Review with the students the meaning of “standard of care.”>>
An important element of malpractice lawsuits or disciplinary actions is whether the nurse complied with applicable standards of practice.
In malpractice, attorneys look to several sources of information to identify the standards of care and to determine what a reasonable and prudent (careful) nurse would have done in the same or a similar situation. These sources include the NPA, job descriptions, hospital policies and procedures, textbooks, professional standards and guidelines developed by professional organizations, and the nursing code of ethics.
Institutional polices and procedures: Institutional policies and procedures usually are more specific and detailed than standards set by professional organizations. They describe care that is reasonable, appropriate, and expected in the context of that facility. You must be familiar with these policies and procedures because they can be used as evidence of a violation of a standard of care if you failed to follow them.
Nursing codes of ethics: This describes the standards of professional responsibility for nurses and provides insight into ethical and acceptable behavior. It describes nurses’ obligations for safe, compassionate, nondiscriminatory, and quality care, while defining commitments to self, the patient, the employer, and the profession.
Patient care partnership: The PCP brochure is available in eight languages that explain in detail to patients that during hospitalization, they should expect high-quality care, a clean and safe environment, involvement in care, protection of privacy, help when leaving the hospital, and help with billing claims.
ANA Nurses’ Bill of Rights: The Nurse’s Bill of Rights is a policy statement adopted by the American Nurses Association (ANA) to identify the seven conditions nurses should expect from their workplace that are necessary for sound professional practice. It provides a framework for employers to understand what nurses need for a safe work environment and to support nurses as they address such issues as unsafe staffing, workplace violence, and mandatory overtime.
<<Instructor: Select the most appropriate answer to this question using your clicker.>>
<<Instructor: The correct answer is B.>>
<<Instructor: Review each bulleted item while referring to the following notes.>>
Federal or state government prosecutes: Criminal law deals with wrongs or offenses against society. It may result in prosecution (legal action) by the state or federal government for engaging in behavior that constitutes a crime. A crime is a violation of a law as defined by a legislative body. The legislature also specifies the punishments for the crime. State-level criminal laws vary from state to state.
Felonies: These involve crimes punishable by more than one year in jail (e.g., murder, assisted suicide, rape/sexual assault, stealing drugs and equipment, felony abuse). A person convicted of a felony loses the right to vote, hold public office, serve on a jury, and possess firearms. The person may also lose any professional license.
Misdemeanor: Misdemeanors involve less than a year in jail. They include crimes such as assault, battery, and petty theft. You may also lose your nursing license if you are convicted of a misdemeanor that involves crimes against persons or that can cause harm to others.
<<Instructor: Review with the students each bulleted item.>>
In a tort, which is a civil wrong against another person, the law provides for remedies that are monetary; in contrast with criminal law, in which the offender can face jail time.
The plaintiff in a civil lawsuit is the alleged wronged person and not the state, as in a criminal case.
<<Instructor: Review each bulleted item while referring to the following notes.>>
Contract law: Involves a written or oral agreement between two parties in which one party accepts an offer made by the other party to perform (or not perform) certain acts in exchange for something of value. A breach of contract occurs if either party does not comply with the terms of the agreement. An example would be an employment contract.
Tort law: This deals with wrongs done to one person by another person that does not involve contracts. A tort is a civil wrong and there are three types of tort: quasi-intentional torts, intentional torts, and nonintentional torts.
<<Instructor: Review each bulleted item while referring to the following notes.>>
Defamation of character: All four of the following essential elements of defamation of character must be present. The communication (written or oral) about the person
Was false
Was made to another person or persons
Caused the defamed person to experience shame and ridicule and had a negative impact on the person’s reputation
Was made as a statement of fact rather than as an opinion
Slander: This is the spoken or verbal form of defamation of character. A person is not guilty of defamation of character if the statement made about the other person is true or if the person has the protection of a “privilege,” such as reporting possible child abuse.
Libel: This is the written or published form of defamation of character.
<<Instructor: Review each bulleted item while referring to the following notes.>>
Intentional torts
Assault and battery: An assault occurs when a nurse intentionally places a patient in immediate fear of personal violence or offensive contact. An assault must include words expressing an intention to cause harm and some type of action. Battery is committed when (1) an offensive or harmful physical contact is made with the patient without his or her consent, or (2) there is unauthorized touching of a person’s body by another person. An assault and battery occurs when there is the intent to cause a person fear, combined with an offensive or harmful contact.
False imprisonment: This is the restraining of a person without proper legal authorization. It includes any type of unjustified restriction on a person’s freedom of movement. Nurses may be accused of false imprisonment when they restrain patients without their permission or when patients are involuntarily committed to mental health units. False imprisonment can involve the use of physical restraints (e.g., vest or wrist restraints) or chemical restraints (e.g., sedative or narcotic medications). You may restrain patients who pose a threat or harm to themselves or others for safety. However, you must immediately obtain the proper authorization to continue the restraint.
Fraud: This is the false representation of significant facts by words or by conduct. It can occur through making false statements, falsifying documentation, or concealing information that should have been disclosed. It is intentionally misleading or deceiving another person to act (or not act) for the personal gain of the one committing the fraud.
Invasion of privacy: This violates a person’s right to be left alone. The law recognizes that a person’s personal life should not be opened up for public scrutiny and the person has the right to freedom from unwanted interference in his or her private affairs.
<<Instructor: Select the most appropriate answer to this question using your clicker.>>
<<Instructor: The correct answer is B.>>
<<Instructor: Review this definition with the students.>>
Negligence is the failure to use ordinary or reasonable care or the failure to act in a reasonable and prudent (careful) manner. In many cases, an expert witness is used to determine the nurse’s adherence to or deviation from standards of practice.
<<Instructor: Review this definition with the students.>>
Malpractice: To win and recover damages (money) in a malpractice lawsuit, the plaintiff must prove four elements (duty, breach of duty, causation, and damages) by a “preponderance of the evidence,” in other words, with enough evidence to tip the scale in his or her favor.
Existence of a duty: Duty. The nurse-patient relationship creates this legal obligation. A duty forms when the patient is assigned to the nurse or seeks treatment from the nurse, or when the nurse observes another person doing something that could harm the patient.
Breach of a duty: A breach of duty occurs when the nurse fails to meet standards of care. Attorneys look to several sources of information to identify the standards of care and to determine what a reasonable and prudent (careful) nurse would have done in the situation.
Causation: The breach of duty or deviation from acceptable standards of care by the nurse must be the direct and proximate cause of the injury suffered by the patient. Causation is usually established based on the testimony of experts, such as physicians, advanced practice nurses, or other healthcare professionals, who can clearly show the connection between the nurse’s action or omission and the resulting injury to the patient.
Damages: In civil cases, the remedy for the harm the patient suffered is money. The judge or jury will award the plaintiff money to compensate him or her for pain and suffering, lost wages, additional medical bills, and other losses. In some cases, the plaintiff may be awarded punitive damages for grossly negligent or wrongful behavior by the healthcare provider.
<<Instructor: Review each bulleted item while referring to the following notes.>>
Failure to assess and diagnose: As the first step in the nursing process, the failure to conduct an adequate assessment can lead to numerous breaches of duty. Failure to analyze the data and make correct nursing diagnoses can lead to incorrect or no actions.
Failure to plan: The American Nurses Association standards specifically require nurses to formulate a plan of care. The plan of care may be written or unwritten, depending on state regulations. Many agencies require nurses to complete nursing care plans or patient care tools as a means of measuring patient outcomes and progress. The plan of care should be consistent with standards of treatments acceptable for the given diagnosis or problem.
Failure to evaluate: The duty to evaluate requires an ongoing cycle of the following
Observing for changes after interventions and treatments. You must know the expected outcomes and side effects of medications and treatments so you can accurately interpret and document anticipated and adverse responses.
Recognizing significance of the change, documenting or reporting symptoms to the appropriate person. If a change is significant, you have a legal duty to report the change to the appropriate provider and to document this change in the appropriate medical record.
<<Instructor: Review each of these bulleted items with the students.>>
Remember the adage, “If it was not documented, it was not done.” Documentation is one of the most effective risk management tools. Learn and practice proper documentation.
The most effective methods to practice within acceptable standards is to use the nursing process, which is the decision-making framework for nurses. It guides critical thinking by basing the nurse’s actions on the assessment of the patient. This prevents improper care and nursing actions.
The nurse should always follow guidelines of practice for all areas, including medication administration, equipment safety, and so on.
<<Instructor: Review each of these bulleted items with the students.>>
Many errors in practice are based on improper delegation. This is an essential element of practice for the nurse, who cannot be everywhere. The nurse must know the elements of delegation and implement them accordingly.
It is the nurse’s responsibility to remain current in practice, through continuing education, in-services, and additional training as needed.
The nurse must practice under the legal and ethical framework governing nursing practice.
<<Instructor: Discuss this scenario with the students.>>
