MISSISSIPPI UNIVERSITY FOR WOMEN RN/BSN OPTION
LEGAL ISSUES IN NURSING
OBJECTIVES:
1. Discuss the development of the legal status of the nurse.
2. Define malpractice and negligence.
3. Describe the four components required in a malpractice claim.
4. Discuss current law as it relates to informed consent, intentional torts, documentation and home care nursing versus hospital based nursing.
5. Identify strategies to prevent malpractice litigation.
REFERENCE:
Marquis,B.L. & Huston, C.J. Leadership Roles and Management Functions in Nursing. 4th ed. Lippincott: Philadelphia. Chapter 23.
When discussing legal issues in nursing it is imperative to review your state's Nurse Practice Act. The link below will take you to the Mississippi Board of Nursing. Once you are on the home page click on laws and regulations from the menu on the left. MSBN
Another useful link is the magazine Legal Eagle. You can view a sample issue. This magazine reports current cases and how they were decided. I encourage you to check this out. Legal Eagle
Historically nurses have not been named individually as defendants in malpractice cases because the nurse was not recognized as a person in the eyes of the law. The nurse was only viewed as an employee merely carrying out the orders of either the hospital or the physician.
Respondent superior:
A Latin term meaning that the master is responsible for the acts of his servants. Until recent times this was consistently applied to hold either the hospital or physician, whichever was the employer of the nurse or under whose control the nurse was working, liable for nursing acts. A great conflict in case law centered around the issue of exactly who was responsible for the acts of the nurse, the physician or the hospital.
Captain-of-the-ship doctrine:
This theory primarily applied in the operating room and imposed liability on the surgeon for the acts of any people working in the operating room. This theory removed the hospital from any responsibility for the acts of their own employees as long as they were acting under the control of the surgeon. This doctrine expanded from the operating room to post-op care as well.
Hospitals are now held liable for the acts of their employees when negligence is established. The concept of an individual being held liable for the acts of another is known as vicarious liability. If the nurse is successfully defended the hospital is also automatically defended. This legal principle makes it clear that it will always be to the hospital's benefit to vigorously defend the actions of its employees. In doing so, the hospital is also defending itself.
The individual should have primary legal accountability. All health care providers have a basic level of accountability for their actions. As nursing liability expanded so to did the employer's. This is called corporate liability. It means that the corporation has a duty, separate and distinct from its duty as an employer, to assure that patients receive safe, quality care. Corporate liability includes security of hospital premises, environmental hazards, the failure to establish and enforce appropriate policies, the need for adequate staffing and reasonable types and amounts of equipment.
As the nursing profession expanded and courts became more aware of what the professional practice of nursing involved in terms of knowledge and judgment, nurses have become more and more accountable legally for their actions
Malpractice versus Negligence:
These terms are often used interchangeable.
Negligence is a more general term referring to a deviation from the standard of care that a reasonable and prudent person would use in a particular set of circumstances.
Reasonable and prudent generally mean the average judgment, foresight, intelligence, and skill that would be expected of a person with similar training and experience.
Malpractice is a more specific type of negligence; deviations from a professional standard of care; nurses, doctors, lawyers etc. may be liable for malpractice.
In order to prove that malpractice or negligence has occurred four elements must be established --duty, breach of duty, causation, and damages.
1. Duty
This is the first element that must be proven in a malpractice case.
In nursing, duty is the easiest to prove, especially in a hospital setting. Since the nurse is an employee of the hospital, and the patient is a "captive audience", duty arises.
Duty in nursing usually involves standard of care for a nurse.
Nursing standards are established in a variety of ways:
External standards such as the Nurse Practice Act of a particular state, guidelines by JCAH, and guidelines in textbooks.
Internal standards such as job descriptions and policy and procedures of an institution, and continuing education.
Specific cases: Student nurse - the student nurse is held to the same standard as a graduate nurse for those activities that have been studied. Supervising nurse - any nurse who oversees another nurse may be responsible for that person's negligent act. This does not remove responsibility from the individual nurse but rather extends the liability to those in supervisory positions. Nurses in unsupervised roles i.e.. industrial nurse, school nurse, home health nurse - held to same standard as any other professional nurse but the most important duty may be to use valid judgments in determining the limitations of practice. Nurse practitioners and clinicians - The duty of the nurse acting in an expanded role will, of necessity, differ from that of the nurse working directly under supervision. Legal accountability increases to reflect the increase in duty.
2. Breach of duty - once the standard of care has been established and a legal duty is shown, the injured party must prove that a breach of this duty has occurred.
breach of duty often involves the matter of foreseeability. Forseeability is the legal requirement that the case must be judged on the unique facts as they were at the time of the occurrence, since it is always easier to state what should have been done in retrospect.
certain events may foreseeable cause a specific result. For example water spilled in a hospital corridor may result in a fall. Therefor the water should be removed as soon as it is seen by whoever sees it first.
Falls have resulted in the most malpractice suits against hospitals and nurses.
Sometimes an injury occurs through a nurse's failure to assess properly a patient's situation and take appropriate precautions.
3. Causation - proving causation, the third criterion of negligence can be difficult. Causation means that the injury must have been actually caused by the breach of duty. Legally, this concept is frequently divided into two subconcepts - cause in fact and proximate cause.
Cause in fact - the cause of the damage was the breach of duty. If it were not for the breach of duty, the injury would not have occurred.
Proximate cause -refers to legal cause - what the courts will consider as a basis for liability. This is much more difficult to understand and to prove. It encompasses the concept of foreseeability. The basic question is how far does the liability of the defendant extend for the consequences following the negligent activity? Ex. Proximate cause is sometimes a consideration in accident cases where the injury suffered in the accident is compounded by medical malpractice.
Because causation is the most difficult element of negligence to prove, courts have sometimes resorted to the theory of res ipsa loquitor to determine negligence if the injured party is unable to. Three conditions for the application of res ipsa loquitur are 1. the injury would ordinarily not occur unless someone were negligent, 2. the instrumentality causing the injury was within the exclusive control of the defendant and 3. the incident was not due to any voluntary action on the part of the plaintiff. Res ipsa loquitor means "the thing speaks for itself". An example of this would be if injury occurred to an unconscious patient. Therefore the individual could not actually prove that causation existed.
4. Damages - in order to recover damages in a malpractice action, actual damages must have occurred to the injured party. in most cases it is impossible to restore the patients to their original physical condition. Therefore financial damages are awarded. Patients may be unhappy and express dissatisfaction with their hospital care, but if they have not been damaged, there will be no recovery of damages. Compensatory damage include all expenses incurred as result of the injury such as medical bills and lost wages, pain and suffering and an award for any disfigurement or disability.
Good Samaritan Statutes:
These have been enacted in all states with the first being passed in California in 1959. The purpose of these statutes was to encourage people with knowledge and skill to render care at the scene of an accident without fear of being sued. The wording of these statutes vary from state to state so it is important for you to look up your individual state's Good Samaritan Law. Generally the scene of an accident is defined as being outside the place and course of employment and you may not charge for services. Generally the nurse or physician is not required to stop at the scene of an accident and there are no legal consequences. The nurse is held to a higher standard than a lay person obviously. The nurse must act as any reasonable nurse with the same education and experience. So this law does not protect you from being sued for negligence or malpractice. Once a Samaritan undertakes the care of a patient in an emergency situation they must continue that care until the patient can be turned over to someone with abilities equal to or above that of the samaritan i.e.. physician or paramedic. Samaritans cannot abandon patients. The first responsibility is to the patient and you have to be careful about accepting lay help if in your professional judgment it would injure or endanger the patient.
Torts - legal wrongs committed against a person or property, independent of a contract, that render the person who commits them liable for damages in a civil action. Professional negligence is considered to be an unintentional tort. Intentional torts are a direct invasion of someone's legal rights.
Intentional torts:
1. Assault and battery
Assault is the unjustifiable attempt to touch another person or the threat of doing so.
Battery is the actual carrying out of threatened physical contact.
Any unlawful or unconsented touching of a person provides a basis for a claim.
An element that must be proven is the absence of consent.
Examples of assault and battery:
1. performance of an operation without the patient's consent.
2. a nurse who has an adult, competent patient held down to administer an injection or forces oral administration.
3. a physician or hospital may be liable for assault if the hospitalized patient assaults someone else and there was knowledge that the patient was dangerous.
4. the hospital may be liable if an employee assaults a patient.
5. sexual assault as a basis for claim has increased in recent years.
2. Defamation of character
This occurs when one person discusses another in terms that diminish his or her reputation. Libel - written defamation, slander - oral defamation.
Specific financial injury does not have to be proven if the slanderous statement charges a contagious or STD, a crime involving moral turpitude, or a comment that prejudices a person in the profession, trade, or business in which he or she is engaged.
Nurses are named in defamation suits because they work in an environment where they are likely to be aware of sensitive information regarding patients.
Nurses must be extremely cautious about comments made about physicians.
Any hasty action or comment may subject the nurse to a defamation action.
Nurses may bring forth a defamation action if he/she feels their reputation has been injured.
Nurses have sued physicians for defamation.
Supplying references for employees may subject an employer to a charge of defamation.
3. Disclosure of confidential information
This occurs when a patient's problem is inappropriately discussed with any third party. Patients volunteer information based on trust that a nurse or physician will not violate confidence.
Duty to disclose - in some circumstances there is a duty to disclose. Instances where there is a duty to disclose
1. if the information relates to the contemplation of execution of a crime in the future
2. relates to the neglect or abuse of a child or vulnerable adult,
3. if the patient is mentally ill and dangerous to others.
HIPPA - Health Insurance Portability & Accountability Act of 1996 - HIPPA required Congress to enact privacy legislation that would address the following:
1. The ways that patient information can be used and released by members of the health care system.
2. The rights that patients have concerning their information an it's disclosure.
3. The responsibilities of providers and payers who use and release patient information
HIPPA stated that if Congress did not enact laws by August 1999, the Department of Health and Human Services would be required to write regulations that addressed the three areas above. Congress did not enact the privacy legislation and HHS promulgated the "Privacy Rule" in December 2000. The rule became effective April 14, 2001 and had to be implemented by April 14, 2003.
Covered Entities:
A covered entity is a person or organization required to have privacy policies and procedures under the HIPPA
Privacy Rule. The three classes of covered entities are:
1. Health care providers - anyone who delivers healthcare
2. Health plans - an organization like an insurance company that pays for healthcare
3. Clearinghouses - organizations that enable electronic claims to be changed from one format to another so
they can be processed.
Patient rights under HIPPA:
1. To receive a written notice of how an organization uses and releases their information
2. To view and receive a copy of their medical and billing records
3. To receive an accounting of certain releases of their information
4. To request special privacy protection
5. To request that records be amended if they believe they are incorrect
6. To file a complaint if they believe their privacy has been violated or if they think the organization is not
complying with the privacy violation
Under federal law if you knowingly and willfully use or disclose patient information, You may be subject to
criminal penalties up to and including........
10 years in prison and $250,000 in fines!!!! If in doubt - do not do it!!!
1. What if the patient asks to see his own record?
2. What if his pastor calls and asks how he is doing?
3. What if someone asks me what room the patient is in?
4. What about the church prayer list?
5. What if I need to call report to the home care agency that is following the patient?
6. What can I tell the officer guarding a prisoner patient?
4. Misrepresentation and fraud
If a physician misleads a patient to prevent discovery of a mistake in treatment, an action for deceit or fraud may be brought.
A hospital may be held liable for failing to disclose negligent acts to an injured party.
5. False imprisonment
Infringement on a person's freedom of movement.
Often involves psychiatric patients but may involve medical patients if they are not allowed to leave or they are physically restrained for this purpose.
INFORMED CONSENT
Informed consent has meant different things over the course of humankind. In Ancient Greece, physicians were considered all knowing and discussion with patients was discovered, except to obtain obedience. Manipulation and deceit was considered acceptable. It has only been in recent years that the fundamental right of self-determination has been recognized and requires the collaboration of the physician and patient. The Patient Bill of Rights adopted by most institutions requires the disclosure of the following elements to be considered informed consent.
Diagnosis
Proposed treatment and probability of success
Substantial risks and benefits of the proposed treatment
Alternatives to the proposed treatment
Substantial risks and benefits of alternative treatments
Risk of doing nothing
Who is responsible for obtaining informed consent?
What role does the nurse have in informed consent?
HOSPITAL BASED NURSING VS HOME CARE NURSING
In many ways the risk of liability are similar. The primary difference is the absence of control in the home care environment. This absence of control is often frustrating for the health care provider. Potential problems involve inappropriate referrals, lack of communication among health care providers who are geographically separated, auto accidents, providers injured by patients or accused of theft, and difficulty with supervision because of distance.
STRATEGIES TO PREVENT MALPRACTICE LITIGATION
RISK MANAGEMENT
Difference between risk management and quality management – QM emphasizes the prevention of client care problems whereas risk management attempts to analyze problems and minimize losses after a client error occurs.
If quality management was 100% effective there would be no need for risk management.
The risk management department has several functions, which include the following
1. define situations that place the system at some financial risk such as medication errors or client falls
2. determine the frequency of those situations that occurred
3. intervene and investigate identified events
4. identify potential risks or opportunities to improve care
Each individual nurse is a risk manager. The nurse has the responsibility to identify and report unusual occurrences and potential risks to the proper authority. One method of communicating risks is through incident reporting. Incident reports should be a nonpunitive means of communicating an incident that did or could have caused harm to clients, family members, visitors, or employees. These reports should be used to improve quality care and decrease risks.
References:
Fiesta, J. The Law & Liability a Guide for Nurses. 2nd ed. Hatfield, Karen (NMMC) HIPPA presentation to MUW faculty. May 13, 2003 Marquis,B. Management Decision Making For Nurses. 3rd ed. Wise, P. Leading and Managing in Nursing. 1st ed, Zimmermann, P. Nursing Management Secrets. Hanley& Belfus: Philadelphia. 2002
Faye Jordan, 2003
