Lesson 1, Topic 1
In Progress

Chapter 2: Legal and Ethical Aspects of Nursing

March 28, 2021

Legal Aspects of Nursing

The legal relationship that exists between the nurse and the patient is influenced by the existing laws, rules, and regulations that govern nursing practice. Acting outside the established scope of practice or failing to meet the established standard of care has the potential to result in injury to the patient and give rise to legal liability and the potential loss or sanction of the nursing license. Nurses must be aware of their scope of nursing practice and the standards of care that constitute professional duties.

Many legal issues are related to health care, and health care–related litigation that involves nurses is common (Figures 2-1 and 2-2). Today’s patients are more educated, are more aware of their rights, and have higher expectations regarding the care they receive. To practice safely, the nurse must have a familiarity with common legal issues in nursing.

Overview of the Legal System

The legal system is a complex set of rules and regulations that has developed in response to the needs of society. Laws prescribe proper behavior in society; they sanction acceptable behavior and prohibit unacceptable behavior. Nurses must have a basic understanding of the legal system, which serves both to mandate and to protect. The law assigns fundamental legal duties and also provides protection for all members of the health care system.

The two primary categories of law are criminal and civil (Box 2-1). Matters related to criminal law are those that involve the needs of the public. Cases that concern matters of criminal law are charged by agents that

represent either the federal or the state government. Civil cases are between individuals. The charges involved in a civil matter are brought by an individual or agency. An important note is that some degree of overlap may exist with the cases. For example, a criminal matter may result in individuals filing a civil lawsuit. The penalties that result from the cases also differ. Criminal cases are resolved with a finding of guilt or innocence. The penalty may involve fines, incar­ceration, or a combination of the two. Civil matters conclude with a determination of accountability or innocence. Monetary settlements are assigned based on the type of liability assessed. Civil law and criminal law are both established in one of two ways: (1) federal, state, and local governments develop statutory law; and (2) common law, or case law, evolves in response to specific legal questions that come before the court and usually follows precedent (previous rulings on an issue).

 

Negligence

Negligence refers to the absence of due care. Nurses and unlicensed assistive personnel may be charged with negligence. Professional level accountability and judgment are not required elements to establish negligence (see Figure 2-1). Negligence refers to the failure to act in a manner demonstrating the care and knowledge any prudent individual would. Examples of negligence may include medication errors, patient falls, use of restraints, and equipment injuries (Motacki and Burke, 2011). An example of negligence can be found in Box 2-2.

 

Malpractice

Malpractice refers to professional negligence. Nursing responsibilities include both actions taken and those omitted. The concept of malpractice must contain four key elements. Each of the elements must be present for liability to be established.

 

1.Duty: refers the established relationship between the patient and the nurse.
2.Breach of duty: failure to perform the duty in a reasonable, prudent manner.
3.Harm has occurred; this does not have to be physical injury.
4.The breach of duty was the proximate cause of the harm; the occurrence of harm depended directly on the occurrence of the breach.

If the court finds that malpractice has occurred, the nurse is subject to legal punishment or restitution as the court determines. The best way to avoid being charged with malpractice is to practice within the rules and regulations, the standards of care, and the employing agency’s policies and procedures. The nurse-patient relationship is also very important; strive to maintain a positive relationship. A poor nurse-patient relationship has been identified as a leading factor in whether a patient seeks legal action.

Overview of the Legal Process

Civil litigation involves the legal exchange between individuals as opposed to legal concerns that involve a criminal matter, which would involve the state or federal government bringing charges. Most legal suits in health care involve civil litigation. The process for filing a claim begins when an individual believes that a breach of duty has taken place and resulted in pain, suffering, or injury. At that time, the plaintiff (the complaining party) typically seeks legal representation. In some states, a prelitigation panel may meet to ascertain the validity of the suit being proposed. If this process results in a finding that litigation in this case has a legal basis, the plaintiff writes a statement called a complaint and files it in the appropriate court. The complaint names the defendant (the person alleged to be liable [legally responsible]), states the facts involved in the case, defines the legal issues the case raises, and outlines the damages (compensation that the plaintiff is seeking). The defendant is served a summons (a court order that notifies the defendant of the legal action), which constitutes the necessary legal notice, and the defendant usually hires an attorney to represent him or her in the lawsuit. The defendant is asked to provide a response to the charges. This response is either an admission of guilt or a denial of allegations listed in the complaint.

Discovery is the next step in the process. Discovery allows both sides of the case to review documents and interview witnesses. The witnesses may be the defendant being named in the suit or individuals who have facts about the case. Witnesses are required to undergo questioning by the attorneys. This process is referred to as the deposition. Witnesses are under oath. The statements made are recorded. This transcript becomes a part of the evidence.

Other tools also serve the process of discovery. The interrogatory is a written question that one party sends to the other party, to which an answer is legally required. A Request for Production of Documents and Things is a formal request by the agents filing the charges for all items that are deemed to be related to the case at hand. In a health care–related case, these items may include policies and procedures, standards of care, medical records, assignment sheets, personnel files, equipment maintenance records, birth certificates, marriage certificates, medical bills, and other documents pertinent to the issues at hand. A fourth discovery technique is the admission of facts. This tool requests the party to admit or deny certain statements to streamline the factual presentation of the case.

Once the evidence has been presented, the court renders a verdict (a decision) based on the facts of the case, the evidence and testimony presented, the credibility of the witnesses, and the laws that pertain to the issue. Either party has the right, in case of

disagreement with the outcome of the lawsuit, to file an appeal (request a review of the decision) asking that a higher court review the decision. The outcome of litigation is never certain.

In a criminal trial, the question is whether the defendant (the person accused of the crime) is answerable for a crime against the People (because criminal law concerns crimes against society rather than individuals). At trial, the People’s attorney and the defendant’s attorney present their cases. The judge or the jury (if a jury trial) then deliberate (consider and decide) the guilt or innocence of the defendant. If the judge or jury reaches a verdict of not guilty, the defendant is free to go. If the verdict is guilty, the judge passes a sentence (penalty) based on the severity of the crime, the defendant’s past criminal record, and applicable laws. The defendant who receives a guilty verdict may appeal if there has been an error either: (1) in the process in which the conviction was obtained; or (2) by the court during the proceedings. See Box 2-3 for common legal terminology.
Legal Relationships

Legal liability for alleged harm may be solely held or shared between multiple parties. The patient or family may choose to pursue charges against the facility, nursing personnel, medical staff, or ancillary departments. Each may be charged separately or in a group. In the past, nurses did not hold legal liability for alleged harm suffered by a patient while receiving medical care, but rather the physician or the hospital did, and sometimes both. As nurses gained recognition for their expertise and gained more autonomy, dissatisfied patients (and their attorneys) began to look at nurses as potential defendants and to seek to hold nurses accountable under the law. Accountability (being responsible for one’s own actions) is a concept that gives rise to a legal duty, and thus, liability (legal responsibility), in nursing. Indeed, the nurse today is not immune from liability in the practice of nursing. An analysis of statistics shows sharp increases in the amount of litigation against nurses by patients. A variety of reasons is at the root for the increases (see Figure 2-2). Nurses are facing increased responsibilities in the health care arena. The technological advances require more knowledge and competence. Staffing shortages and budgetary constraints may also play a role. High levels of patient acuity and an emphasis on early discharge may result in the need for more comprehensive referrals and improved dis­charge teaching. Flaws in either may result in litigation. Finally, insurance experts believe that some responsibility may rest with the large payout to litigants. Legal findings against nurses can be categorized. The most common areas of litigation against nurses involve performance failures in the following areas: standards of care, use of equipment, documentation, and patient advocacy (Reising and Allen, 2007).

When a nurse accepts a patient care assignment, the nurse-patient relationship is initiated. This relationship, beyond its more personal human component, has a legal basis: the duty to provide professional care. A failure to provide care to the expected level of expertise gives rise to legal liability (see the discussion on standards of care in the next section). In the nurse-patient relationship, the nurse accepts the role of advocate for the patient. An advocate is one who defends or pleads a cause or issue on behalf of another. A nurse advocate has a legal and ethical obligation to safeguard the patient’s interests.

A landmark case that addressed nursing liability was Darling v Charleston Community Memorial Hospital. In this case, an 18-year-old man fractured his leg and had a cast applied in the hospital. He was admitted to a room, and the nurses caring for the patient noticed that the toes on his casted leg were edematous and discolored. The patient reported decreased feeling in his toes to the nursing staff. Over the next few days, gangrene developed, and the man’s leg had to be amputated. The Illinois Supreme Court heard the case and held that the nurses were liable, along with the physician, because the nursing staff had failed to adhere to the standards of care. This case established a precedent that almost every state has adopted.

Regulation of Practice

Standards of care define acts whose performance is required, permitted, or prohibited. These standards of care derive from federal and state laws, rules, and regulations and codes that govern other professional agencies and organizations such as the American Nurses Association (ANA) and the Canadian Nurses Association (CNA). These organizations regularly evaluate existing standards and revise them as needed. Standards of care coupled with the scope of nursing practice give direction to the practicing nurse. They define the obligations of the nurse, including those activities that are obligation and those that are prohibited. Failure to adhere to these standards gives rise to legal liability. Ignorance of the requirements and limitations does not absolve liability.

Nursing liability falls into several areas: practice, monitoring, and communication. Box 2-4 shows common breaches of the standards of care. The legal test is the comparison with the hypothetical actions under similar circumstances of a reasonably prudent (careful, wise) nurse of similar education and experience. The standards of care follow those laws of the individual state. In reality, application of the standards is not always easy. Nursing shortages in some states have led to a need for individual nurses to take on increased responsibilities and work more hours. Personnel cutbacks often leave units short staffed, and nurses feel pressure to take on expanded duties; this raises their risk for liability considerably. In addition, special challenges face entry-level licensed nurses when they enter the workforce. Orientation programs often fail to adequately cover all the skills needed to be a competent practitioner. It is the nurse’s responsibility to seek additional instruction and supervision when faced with an unfamiliar practice or procedure. Remember that it is not possible for the nurse to meet every single patient’s needs.

The laws that formally define and limit the scope of nursing practice are called nurse practice acts. All state, provincial, and territorial legislatures in the United States and Canada have adopted nurse practice acts, although the specifics they contain often vary. It is the nurse’s responsibility to know the nurse practice act that is in effect for the geographic region. One can write to the board of nursing in a given state, or access

activities within the confines of the state’s nurse practice act. When a question comes before the court regarding whether the standard of care was met in a particular situation, the court uses a variety of resources to answer the question (Box 2-5).

Legal Issues

Many legal issues affect the LPN/LVN and influence the level of care delivered to the patient. Statutory and common law both play important roles in defining the rights and responsibilities of the patient and the nursing professionals. The patient has a right to expect the nurse to act in the patient’s best interest by providing care that meets and is consistent with the established legal standards and principles.

Patients’ Rights

Patients have expectations regarding the health care services they receive. In 1972, the American Hospital Association (AHA) developed the Patient’s Bill of Rights. Since its inception, the Patient’s Bill of Rights has undergone revisions; the modified version of 2003 is called The Patient Care Partnership: Understand­ing Expectations, Rights, and Responsibilities (see Box 1-1). The AHA encourages health care institutions to adapt the template bill of rights to their particular environments. This involves considering the cultural, religious, linguistic, and educational backgrounds of the population the institution serves. In 1980, the Mental Health Patient’s Bill of Rights and the Pregnant Patient’s Bill of Rights were adopted into law. The goal of the AHA is to promote the public’s understanding of their rights and responsibilities as consumers of health care. Failure of the nurse to embrace the outlined rights of the patient can promote breeches in the relationship between the nurse and the patient.

The Joint Commission is an independent accrediting agency responsible for accrediting and certifying more than 19,000 facilities in the United States. The Joint Commission has developed a brochure titled Know Your Rights, which is a statement on the rights and responsibilities of patients. The Patient Self-Determination Act (included in the Omnibus Budget Reconciliation Act of 1990, U.S. Code vol. 42, sec. 1395cc[a][1]) regulates any institution that receives federal funding. The Patient Self-Determination Act requires that institutions maintain written policies and procedures regarding advance directives (including the use of life support if the patient is incapaci­tated), the right to accept or refuse treatment, and the right to participate fully in health care–related decisions.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA), which took effect in 2003, established the duty of the health care provider to protect the confidentiality of all health information. Health care providers who maintain and transmit health care information must provide reasonable and appropriate administrative, technical, and physical safeguards on a patient’s health information. The law sets rules and limits on who has permission to look at and receive health information, and assigns penalties for wrongful disclosure of individually identifiable health information. All health care providers must be knowledgeable about the HIPAA standards and protect the privacy rights of patients and residents (www.hhs.gov/ocr/hipaa).

Health care institutions are obligated to uphold the patient’s rights to (1) access to health care without any prejudice, (2) treatment with respect and dignity at all times, (3) privacy and confidentiality, (4) personal safety, and (5) complete information about one’s own condition and treatment.

Patients’ responsibilities to the health care institution include (1) providing accurate information about themselves, (2) giving information regarding their known conditions, and (3) participating in decision making regarding treatment and care.

Informed Consent

The Patient Care Partnership establishes the patient’s right to make decisions regarding his or her health care. The doctrine of informed consent refers to full disclosure of the facts the patient needs to make an intelligent (informed) decision before any invasive treatment or procedure is performed (Figure 2-3). The patient has the right to accept or reject the proposed care but only after understanding fully what is being proposed—that is, the benefits of the treatment, the