Chapter 5

Legal and Ethical Issues

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Objectives

Examine nurse practice acts Examine various legal concepts Analyze key aspects of employment law Analyze selected ethical principles and their

application Analyze decision making when legal and

ethical issues overlap

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Nurse Practice Acts

Single most important piece of legislation for nurses

Define categories of nurses Set educational and examination

requirements Establishes a state board of nursing, which

develops and implements rules and regulations

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Multistate Licensure

RNs may be licensed in one state and practice in another state within the compact

The state where the patient or client resides is the state that regulates the nurse’s practice.

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Negligence and Malpractice

Negligence equates with carelessness Malpractice or professional negligence

concerns professional actions Both concern actions taken as well as actions

omitted Both are nonintentional

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Elements of Malpractice

Duty owed the patient Breach of this duty owed the patient Forseeability Causation Injury Damages

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Duty Owed the Patient

Established through a valid employment contract with the healthcare facility

Based on standards of care or the minimum requirement for acceptable practice

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Breach of Duty Owed the Patient

Synonymous with failing to uphold the standard of care owed the patient

Generally shown at court through the testimony of expert witnesses

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Foreseeability

Concept that certain events may reasonably be expected to cause specific results

Based on education and prior knowledge Common areas of potential liability include

medication errors, patient falls, and failure to enact physician orders

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Causation and Injury

What the nurse did or failed to do must directly cause the patient's subsequent harm

The harm or injury that occurs must be physical

Pain and suffering are allowable harms when they accompany a physical injury

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Damages

The patient must be able to prove injury so that damages may be assessed

Purpose of damages is to compensate the injured party for the harm that was done

Thus immediate and future medical costs can be assessed

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Preventing Malpractice Lawsuits

Nurse managers should: Ensure that employees meet or exceed standards

of care Review standards periodically so that standards

can be revised Review randomly selected patient records for

evidence that standards are being met Perform scheduled evaluations of staff

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Liability

Personal liability: individual responsibility and accountability for actions or omissions

Vicarious liability: employer’s accountability for the negligence of employees

Corporate liability: institution responsibility and accountability for maintaining an environment that ensures quality healthcare delivery for consumers

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Malpractice Concerns for Nurse Managers

These include: Assignment, delegation, and supervision Duty to orient, educate, and evaluate Failure to warn Staffing issues Protective and reporting laws

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Assignment, Delegation, and Supervision

Supervision is the active process of directing, guiding, and influencing the outcome of an individual’s performance of an activity.

Delegation is the transfer of responsibility, but not of accountability, for the performance of an activity.

Assignment is the transfer of the responsibility and the accountability for the performance of an activity.

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Duty to Orient, Educate, and Evaluate

Nurse mangers are responsible for the daily evaluation of safe and competent nursing care delivery

Key is reasonableness and should be determined on a case-by-case basis

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Failure to Warn

This involves warning subsequent potential employers of staff incompetencies or impairment.

Provided by using qualified privilege, which is communication made in good faith between persons or entities with a need to know

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Staffing Issues

Three areas to consider: Maintaining adequate numbers of staff Floating staff from unit to unit Using temporary staff to augment current staff

numbers

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Maintaining Adequate Staff

Accreditation standards mandate adequate staffing with qualified personnel

Applies to both numbers of staff and staffing mix

Adequate staffing is based on: Numbers of patients Care acuity scores Numbers and classification of nursing staff

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Guidelines

Nurse managers in times of inadequate staffing should: Alert agency administration of concerns Reassign staff as appropriate Approve overtime for adequate coverage Restrict new admissions

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Floating Staff to Alternate Units

One means to ensure that every area of the facility is adequately staffed

Consider staff expertise, patient care delivery systems, and patient care requirements before deciding which staff to float

Cross-train staff during times of adequate staffing

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Agency or Temporary Staff

Has become more important because of the principle of apparent agency.

Patients can infer that the agency staff are working directly for the institution. Thus it is imperative that the agency or temporary nurse can deliver safe and competent nursing care.

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Protective and Reporting Laws

Ensure the safety or rights of specific classes of individuals

Examples include the mandatory reporting for suspected child and elder abuse and reporting of certain categories of diseases or injuries

Includes the mandatory reporting of incompetent practitioners

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Informed Consent

Authorization by the patient or the patient’s legal representative to do something to the patient

Based on legal capacity, voluntary action, and comprehension

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Selected Informed Consent Issues

Research issues are impacted by the federally enacted HIPAA laws

Research issues vary in regard to de-identified information and protected health information

Issues also arise in relationship to a patient's health literacy

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Privacy and Confidentiality

Privacy: the patient’s right to protection against unreasonable interference with reputation or right to be left alone

Confidentiality: right to privacy of the medical record

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Incident Reports

Serve to alert the facility to risk management and quality assurance issues

May often be viewed by all parties to a lawsuit

Include pertinent patient observations and care given the patient, avoiding any language of liability

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Employment Laws

Nurse managers need to be familiar with several of these federal laws, including Equal Employment Opportunity Laws Americans with Disabilities Act of 1990 Occupational Health and Safety Laws Family and Medical Leave Act of 1993 Whistleblower laws

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Equal Employment Opportunity Laws

Prohibit discrimination based on gender, age, race, religion, handicap, pregnancy, and national origin

Title VII of the amended Civil Rights Act of 1964 governs these equal employment opportunities

Amended Civil Rights Act of 1991 governs sexual harassment in the workplace

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Americans with Disabilities Act of 1990

Provides protection to persons with disabilities

Disability is defined as: Physical or mental impairment that substantially

limits one or more of the major life activities of an individual

The fact that there is a record of such impairment to the individual is regarded as establishing that the individual has the impairment.

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Occupational Safety and Health Act

Ensures that healthful and safe working conditions exist in the workplace setting

Newer aspects that the rules address include: Violence and bullying in the workplace Safe patient handling Ergonomic issues common in the healthcare

industry

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Family and Medical Leave Act of 1993

Balances the demands of the workplace with the demands of the family, allowing employed individuals to take leaves for medical reasons

Includes care for: the birth or adoption of a child care of a spouse, child, or parent with serious

health problems healthcare needs of the employed individual

himself or herself

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Whistleblower Laws

Enacted to protect healthcare professionals who are terminated in retaliation for: Speaking out against unsafe practices Reporting violations of federal laws Filing lawsuits against employers

Best known case is the Winkler County Nurses Lawsuit

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Ethics

Concern the individual within society and the “why” of actions as opposed to what was done or not done

Provide no right or wrong answers; rather there are better or less desirable actions

Often encountered in conjunction with legal concerns

Example: Theresa Schiavo case

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Ethical Principles

Autonomy: personal freedom Beneficence: duty to do good Nonmalefience: do no harm Veracity: truth telling Justice: fairness Paternalism: assisting with decision making Fidelity: keeping one’s promises Respect for others: dignity of the person

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Professional Codes of Ethics

Formal statements that articulate values and beliefs of a given profession

Serve the following functions: Inform the public of the minimum standards of

conduct for members of the profession Outline ethical considerations of the profession Provide guidelines for ethical practice by members

of the profession Guide the discipline’s self-regulation

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Moral Distress

Occurs when faced with situations in which two ethical principles compete

Experienced in clinical settings when nurses cannot provide what they perceive is the best care or outcome for a given patient

Examples include disagreements regarding patient interventions and limited patient care resources

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Ethics Committees

Provide long- and short-term assistance by: Providing structure and guidelines for potential

problems Serving as open forums for discussion Functioning as patient advocates by placing the

patient at the core of the committee discussions

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Future Ethical Issues

Issues to be considered: Development of nurses as leaders in healthcare

delivery Rights of patients to refuse healthcare

interventions Ability to be patient advocates in today’s

healthcare structure Others?

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Tips for Incorporating Legal and Ethical Issues

In conclusion, Read and comply with provisions of the state

nurse practice act Apply legal concepts in all healthcare settings Understand and abide by state and federal

employment laws Implement the provisions of the Code of Ethics If legal and ethical issues are contradictory, legal

aspects take precedence.

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