Lesson 1, Topic 1
In Progress

Legal Aspects of Nursing

May 1, 2021

Today’s health care system is dynamic and complex. It has undergone significant changes over the decades. Health care providers are guided by established laws, rules, regulations, and ethical principles. The rising cost of health care and growing consumer awareness have had an impact on the practice of nursing and the distribution and use of available health care resources. Additional challenges are presented by the rapid advances in technology and communication. Practice opportunities and settings for the licensed practical/vocational nurse (LPN/LVN) are changing with the focus on managed care, community health, and home health care.

Nursing practice of the LPN/LVN is guided by a combination of legal principles, established laws, moral standards, and ethical principles. Nurses must understand the legal standards and ethical principles that affect practice. Each state has laws that govern the scope and practice of nursing that are referred to as nurse practice acts. The law sets an obligatory minimum standard in any given situation. Ethical principles, which evolve out of society and culture, frequently impose an even higher duty. These legal standards and ethical principles serve as a support for all members of the health care system and help protect the rights of all members of society.

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

Box 2-1 Characteristics of Criminal and Civil Law

Criminal

•Conduct at issue is offensive to society in general.
•Conduct at issue is detrimental to society as a whole.
•The law involves public offenses (such as robbery, murder, assault).
•The law’s purpose is to punish for the crime and deter and prevent further crimes.

Civil

•Conduct at issue violates a person’s rights.
•Conduct at issue is detrimental to that individual.
•The law involves an offense that is against an individual.
•The law’s purpose is to make the aggrieved person whole again, to restore the person to where he or she was.

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.

Box 2-2 Busta v Columbus Hospital Corporation (1996)

While he was a postoperative patient at Columbus Hospital in Great Falls, Mr. Busta died from injuries sustained in a fall from his third-floor window; apparently, he had tried to climb down on an improvised rope. At trial, the nurse assigned to care for Mr. Busta testified that during her last evening visit with him, he had experienced an episode of tachycardia and hypertension. He had also behaved atypically, desiring isolation and refusing all nursing care and his prescribed medication, known to have adverse effects, including confusion, anxiety, and psychosis. The nurse did not report the symptoms and the change in behavior to the physician. She also testified that when she observed the patient at midnight, he appeared to be sleeping; she did not reassess his vital signs.

Mr. Busta’s surgeon testified that, because of the mind-altering adverse effects of the patient’s medication, he would have reassessed his patient if he had been notified of the changing signs and symptoms. Expert testimony opined that the nurse was negligent in failing to adequately monitor Mr. Busta on the evening and night before he died and in failing to report the constellation of signs and symptoms to the surgeon and that the hospital was negligent in failing to maintain a safe environment (evidence presented at trial showed that the hospital had not acted on a directive from The Joint Commission [TJC] to restrict the opening of windows in patients’ rooms).

The jury found that the negligence of Columbus Hospital combined with the patient’s contributory negligence caused the patient’s injuries and death; the jury apportioned 70% of the liability to the hospital and 30% to Mr. Busta. The jury found that Mr. Busta and his estate were damaged in the amount of $5000 and his heirs $800,000. On the basis of the jury’s apportioned liability, the district court entered a judgment in favor of Mr. Busta’s estate in the amount of $3500 and in favor of his heirs $560,000.

From Croke E: Nurses, negligence and malpractice. Am J Nurs 103(9):59-60, 2003.

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

Box 2-3 Common Legal Terminology

Abandonment of care
Wrongful termination of providing patient care

Assault
An intentional threat to cause bodily harm to another; does not have to include actual bodily contact

Battery
Unlawful touching of another person without informed consent

Competency
A legal presumption that a person who has reached the age of majority can make decisions for herself or himself unless proved otherwise (if she or he has been legally declared incompetent)

Defamation
Spoken or written statements made maliciously and intentionally that may injure the subject’s reputation

Harm
Injury to a person or the person’s property that gives rise to a basis for a legal action against the person who caused the damage

Libel
A malicious or untrue writing about another person that is brought to the attention of others

Malpractice
Failure to meet a legal duty, thus causing harm to another

Negligence
The commission (doing) of an act or the omission (not doing) of an act that a reasonably prudent person would have performed in a similar situation, thus causing harm to another person

Slander
Malicious or untrue spoken words about another person that are brought to the attention of others

Tort
A type of civil law that involves wrongs against a person or property; torts include negligence, assault, battery, defamation, fraud, false imprisonment, and invasion of privacy

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

Box 2-4 Common Breaches of the Standard of Care

Practice

•Failure to use proper judgment
•Failure to properly assess
•Failure to properly administer medication
•Failure to protect patients from burns
•Failure to properly maintain the airway
•Failure to restock crash cart
•Failure to honor advance directives
•Failure to take an accurate and thorough history
•Failure to provide a safe environment
•Failure to properly administer injections
•Failure to go through hierarchy to get the care needed
•Failure to detect that the patient has an allergy
•Failure to protect the patient from abuse
•Failure to prevent abuse, neglect, or injury by other patients
•Failure to obtain physician orders—practicing outside the scope of nursing practice by writing orders
•Failure to practice safely (by using drugs or alcohol while working)
•Failure to protect and prevent falls

Monitoring

•Failure to properly monitor
•Failure to recognize and report signs and symptoms of patient’s deteriorating condition
•Failure to properly use monitoring equipment
•Failure to protect against injuries from monitoring equipment
•Failure to detect or prevent decubitus ulcers
•Failure to monitor and detect polypharmacy effects on patient
•Failure to detect signs and symptoms of a medical condition in a timely and proper fashion
•Failure to detect signs and symptoms of drug toxicity
•Failure to properly use restraints

Communication

•Failure to document in a timely and proper fashion
•Failure to notify physician of laboratory values in a timely and proper fashion
•Failure to report child or elder abuse
•Failure to notify physician of a change in status
•Failure to communicate with other health care personnel about advance directives
•Failure to properly give discharge instructions
•Failure to document patient’s status or condition in a timely and proper fashion
•Failure to document communications between health care providers in a timely and proper fashion
•Failure to document the need for restraints in a timely and proper fashion
•Failure to properly document (precharting)

its website, to obtain a free copy of the state’s nurse practice act.
In addition to the boundaries made by the state’s nurse practice act, the employing institution often places limitations on practice. The institution has the right to establish policies and procedures for nursing

Box 2-5 Evidence of Nursing Standards

•Practice protocols, contracts, practice agreements, employment agreements, and personnel or employee manuals
•Agency policy and procedure manuals
•State nurse practice acts and regulations
•American Nurses Association Code for Nurses (2001)
•American Nurses Association Standards of Practice (1995)
•Accreditation criteria of The Joint Commission (formerly the Joint Commission on Accreditation of Healthcare Organizations [JCAHO])
•Other accreditation standards depending on the practice setting (e.g., National League for Nursing, National Association of Home Care)
•State and federal licensing laws and regulations that govern health care agencies; state, professional, and occupational legislation and regulations
•Nursing specialty standards of care and certification
•Nursing literature, textbooks, and journals
•Education, continuing education, staff development, and orientation
•Experience
•Expert nurse witness, other experts, and peers
•Customs and usual community practices

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

FIGURE 2-3 Sample consent form for a special procedure.

risks involved, any alternative treatments, and the consequences of refusing the treatment or procedure. The explanation of the procedure has to be in nontechnical terms and in a language the patient can understand. Failure to secure informed consent may result in civil liability for battery. Civil battery (also called technical battery) is the unlawful touching of a person; an intent to harm is not necessary. Consent must be freely given. Coercion negates the spirit of informed consent. Patients who seek treatment sign forms to indicate acceptance of care interventions. Additional consent for treatment may be needed for further invasive actions. Patients may withdraw or limit consent at any time. Consent may be communicated in a variety of ways. Patients may imply consent by their actions. Patients may verbalize their acceptance of treatment interventions. Invasive procedures may require a written consent document to be completed.

Consent must be provided by the appropriate per­son (Benak and Applegate, 2006). To provide consent, the patient must be at least 18 years of age. Minors under the age of 18 years may consent for treatment in the event they meet certain criteria including the following:

•Marriage
•Court-approved emancipation
•Living apart from parents or guardians for at least 60 days and independent of parental support
•Service in the armed forces

In some situations, a minor may consent for care, including treatment for sexually transmitted infections, drug and alcohol abuse, sexual assault, and family planning.

There must also be competence to consent for care. Competence requires that the patient be of sound mind to accept the treatment. In addition, consent cannot be obtained from one who is impaired or under the in­fluence of alcohol or drugs. In the event the patient is deemed incompetent to provide consent, a legal process exists for the determination of the individual legally eligible to provide the consent. In many cases, consent is provided by the spouse. In the absence of the spouse, this role may be passed to another legally identified individual.

It is the duty of the physician or nurse practitioner who is performing the procedure or treatment to provide the needed information to the patient. The nurse often has the responsibility to witness the patient signing the consent. In this case, the nurse’s responsibility is limited to the actual witnessing of the signature, not provision of information. The nurse does not discuss with the patient the elements of disclosure that the physician or the nurse practitioner are required to make. Involvement in providing this type of information to the patient potentially places the nurse in a position of liability. Answers to any unanswered questions that the patient has about the procedure are the responsibility of the health care provider who will perform the procedure.

Certain situations may require consent for treatment to be obtained over the telephone. Health care facilities have policies that govern telephonic consent. This type of consent is traditionally needed in management of emergency procedures.

Confidentiality

Nurses have a duty to protect information about a patient regardless of how the information is kept. Information should be accessed only on a need-to-know basis. For example, on a patient care unit only those health care personnel directly involved in an individual’s care should be able to access that patient’s information. Failure to maintain patient confidentiality risks legal liability and both civil and criminal filings may result. Employers consider violations of confidentiality an offense that justifies termination. The responsibility of maintaining confidentiality is not limited to the work shift. All matters committed to the nurse’s keeping are to be held in confidence. Securing the materials that contain confidential information is a responsibility of the nurse. These materials include not only the physical chart forms but the technological resources as well. When accessing computerized pat­ient files, the nurse must ensure the appropriate log-out information is entered to prevent others from viewing the records. Written notes and chart forms must be stored in restricted areas. Conversations discussing patients and their personal information should be held in private conference rooms. Discussions away from the patient care areas, such as the elevator or cafeteria, are problematic and should be avoided.

Medical Records

Laws govern the collection, maintenance, and disclosure of information in medical records. Each health care institution also has policies and procedures regarding patient medical records. Medical records are not public documents, and the information they contain must be kept secure. Any breach in the confidentiality of information kept in a patient’s medical record risks legal liability.

In a lawsuit, both parties are permitted to use the patient’s medical record to argue facts of the case. Entries made in the chart often show whether the standards of care were met in a given situation. It is essential that the employing institution’s policies and procedures regarding the patient’s medical record be followed. All entries in the medical record must be permanent, accurate, complete, and legible. Two current trends potentially affect patient confidentiality. Many smaller health care organizations are merging to form large corporations in an effort to save resources while continuing to provide services. Also, computer-based health care records are becoming common.

Together, these two trends have the potential to vastly expand the numbers of people with access to confidential patient information. Those implementing these trends are required to take federal HIPAA pri­vacy standards into consideration and prevent unauthorized disclosure of medical records and patient information.

Invasion of Privacy

The legal concept of invasion of privacy involves a person’s right to be left alone and remain anonymous if he or she chooses. Consent for treatment does not waive the right to privacy. Privacy-related concerns may include the physical exposure or disclosure of patient information to others. When providing care, the nurse should protect the patient from unnecessary exposure with the use of drapes and remember to close the door or use available signage to restrict admission to rooms during procedures as needed. Calls and inquiries concerning the patient should be handled with care. Providing information to callers can result in a breach in confidentiality. Calls should be referred to the charge nurse or available family members. Nurses frequently take notes during change of shift report. These notes should be closely monitored during the shift. Report sheets and communication tools should be destroyed at the end of the shift before the nurse leaves the worksite. Use of any patient information (name, photograph, specific facts regarding an illness, and so on) without authorization is a violation of the patient’s legal rights. Safeguard the patient’s right to privacy at all times.

Reporting Abuse

There are exceptions to the right to privacy. The law stipulates that the health care professional is required to report certain information to the appropriate authorities. The report should be given to a supervisor or directly to the police, according to agency policy. When acting in good faith to report mandated information (e.g., certain communicable diseases or gun­shot wounds), the health care professional is protected from liability.

In an effort to respond to the growing problem of child abuse, the federal Child Abuse Prevention Treatment Act of 1973 made the reporting of child abuse mandatory. Health care professionals are mandated reporters. Failure to report suspected cases to the appropriate authorities may result in fines or imprisonment. Facilities have procedures in place to assist the nurse when making reports. Withholding medical treatment to an infant born with serious life-threatening handicaps is a form of child abuse. Congress enacted the Child Abuse Amendments in 1984 to protect the rights of these handicapped newborns to proper treatment and care. These regulations make any institution that receives federal funds legally responsible to investigate the withholding of medical treatment to an infant. In general, withholding of lifesaving treatment and care is a form of passive euthanasia (letting a person die) and medical neglect. This act carries the risk of professional neglect (medical malpractice) charges.

Spousal and elder abuse may also be a hidden problem within a family. Populations at increased risk include women and older adults (see Life Span Considerations for Older Adults box). Most states have responded to the issue of spousal and elder abuse by enacting laws to protect victims. Fines, restraining orders that prohibit contact by the abusing person, and even imprisonment are some of the ways often attempted to protect the victims of abuse. Abuse is an underreported crime. Only a portion of abuse cases are ever reported. It is the responsibility of the nurse to know the signs of abuse and the procedures for reporting suspected cases.
Lifespan Considerations: Older Adults

Elder Abuse
Factors that put older adults at risk for physical, emotional, or financial abuse include the following:

•Declining physical health
•Declining mental ability
•Decreased strength and mobility
•Loss of independence
•Isolation
•Loss of loved ones, friends, and relatives

These factors often make the older adult feel helpless and frightened. Impaired communication, decreased hearing acuity, and anxiety make assessment of an older adult more difficult, but be sure nonetheless to watch for the signs of abuse.

Workplace violence is another form of abuse that occurs at times in the health care setting. This form of violence includes verbal abuse, emotional abuse, sexual harassment, physical assault, and threatening behavior. Health care institutions are implementing policies and procedures to promote a safe work environment, and education is an important component of the awareness and prevention measures. Strategies to provide adequate supervision, employ security personnel, monitor work areas, and facilitate reporting of incidents represent efforts to decrease the incidence of workplace violence.

How to Avoid a Lawsuit

The best defense against a lawsuit is to provide compassionate, competent nursing care. The nurse-patient relationship should be based on trust and respect. Open and honest communication is the key to build­ing a therapeutic relationship and often helps resolve

FIGURE 2-4 A patient-nurse relationship built on trust and open communication is the best way to prevent a lawsuit.

patient dissatisfaction before the patient resorts to legal action (Figure 2-4). Following the standards of care and the policies and procedures of the facility and adhering to the scope of practice for the LPN/LVN reduce the likelihood of lawsuit. Remaining current on practice developments and taking advantage of continuing education opportunities help to ensure competence.

Nurses may find themselves in settings outside of the worksite in which an individual is injured and needs assistance. Concerns may result about the responsibility of the nurse and the decision to offer assistance to a victim. Nurses are not required to offer assistance when they are acting as a “private citizen.” If the nurse chooses to offer help, liability may be limited under Good Samaritan laws. These statutes have been developed to provide immunity from liability in certain circumstances. The goal of this protection (except in cases of gross negligence) is to encourage assistance in emergencies that occur outside of a medical facility. State and

provincial laws vary, so it is important to know the Good Samaritan laws that apply. A reference with links to individual state positions on Good Samaritan laws can be found at www.heartsafeam.com/pages/faq_good_samaritan.
Proper documentation in the medical record is another important factor in assessment of liability. The medical record is thoroughly examined in the event of a lawsuit, and its use is permitted to demonstrate in court the level of care that was provided to the patient. An important legal presumption to remember is, “Care was not given if it was not charted.” Simply stating care was provided does not provide legal protection. Omissions in charting provide a great boost to the team bringing the lawsuit.

Insurance

Obtaining insurance is an important part of being a professional and protecting personal assets or garnishment of wages. The determination about carrying insurance is personal, but nurses must evaluate their personal level of vulnerability when making a decision.

Professional Liability Insurance

Employers carry insurance for their facilities. This coverage provides insurance to the employees. Still, many nurses choose to purchase individual coverage. Many experts support the decision to have professional liability insurance. A careful review of policy options before purchase is important to ensure that the terms of the policy meet the needs of the individual nurse. The two types of policies are:

•Claims made policy: This type of policy provides protection when the claim for nursing or negligence is made while the policy is in force (during the policy period or during extended coverage).
•Occurrence basis policy: This type of policy protects against claims made about events that occurred during the policy period or extended coverage period.

A “tail” agreement offers extended coverage for periods when a nurse is exposed to professional liabilities but no longer has a claims made policy.

Disciplinary Defense Insurance

Disciplinary defense insurance or license protection insurance provides the following in the event that a nurse is brought before the LPN/LVN Board of Nursing for disciplinary actions and problems with the license:

•A qualified nurse attorney or attorney to represent the nurse
•Wage loss reimbursement
•Travel, food, lodging reimbursement
•Legal fees paid or reimbursement for payment

The Disciplinary Process

If a nurse receives a letter from the Board of Nursing alleging breaches of the standards of care or infractions of patient safety practices, it is best to seek legal representation. Every state has a variation of the disciplinary process. The process plays on various levels, such as investigation of the allegations, meeting with investigators, hearings with the board, and appeals through the court system. Licensure issues fall under administrative law (Box 2-6).

Potential Sanctions Against a Nursing License

Any of the following may result from investigation of a claim by the State Board of Nursing regarding licensure issues or disciplinary actions:

•Dismissed charge
•Investigations agreement
•Letter of reprimand, formal or informal
•Probation with stipulations (e.g., education, fines, monitoring fees, worksite monitors, and evaluation