NCLEX: Legal Aspects of Nursing

Legal Aspects of Nursing: Questions Most Frequently Asked by Nurses About Nursing and the Law

Focus topic:  Legal Aspects of Nursing

V. WHAT IS THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)?

Focus topic:  Legal Aspects of Nursing

A. Importance of this act for nurses: nurses need to be able to answer client questions regarding the national privacy standards. The principles of the law reinforce professional responsibility to avoid unintentional disclosure of information (e.g., in elevators and hallways).

Focus topic:  Legal Aspects of Nursing

B. Overview of HIPAA: The first-ever federal privacy standards to protect clients’ medical records and other health information provided to health plans, doctors, hospitals, clinics, nursing homes, pharmacies, and other health-care providers took effect on April 14, 2003. Developed by the Department of Health and Human Services (HHS), these new standards provide clients with access to their medical records and more control over how their personal health information is used and disclosed. The standards represent a uniform, federal floor of privacy protections for consumers across the country. State laws providing additional protections to consumers are not affected by this new rule.

Focus topic:  Legal Aspects of Nursing

C. Client protections: The new privacy regulations ensure a national floor of privacy protections for clients by limiting the ways that health plans, pharmacies, hospitals, and other covered entities can use clients’ personal medical information. The regulations protect medical records and other individually identifiable health information, whether it is on paper, in computers, or communicated orally. Key provisions and points related to these new standards include:

Focus topic:  Legal Aspects of Nursing

Legal Aspects of Nursing

 

1. Access to medical records. Clients generally should be able to see and obtain copies of their medical records within 30 days of request, and to request corrections if they identify errors and mistakes. The covered entities must consider the changes, but do not have to agree to the changes, and they may charge clients for the cost of copying and sending the records.

2. Notice of privacy practices. Covered entities must provide a notice to their clients stating how they may use personal medical information and their rights under the new privacy regulation. Clients also may ask covered entities to restrict the use or disclosure of their information beyond the practices included in the notice, as long as the restriction does not interfere with activities related to treatment, payment, or operations (e.g., family members may not be given information about a diagnosis without client permission).

3. Limits on use of personal medical information. The privacy rule sets limits on how covered entities may use individually identifiable health information. The client has a right to have access to accounting (i.e., the right to know who has been given access to their protected health information). The health-care facility must be able to produce a list describing people, companies, or agencies who have received protected information. In addition, clients must sign a specific authorization before a covered entity can release their medical information to a life insurer, a bank, or another outside business for purposes not related to their health care.

4. Prohibition on marketing. HIPAA sets new restrictions and limits on the use of client information for marketing purposes. Covered entities must first obtain an individual’s specific authorization before disclosing their client information for marketing. At the same time, the rule permits doctors and other covered entities to communicate freely with clients about treatment options and other health-related information, including disease-management programs.

5. Stronger state laws may remain in effect. The new federal privacy standards do not affect state laws that provide additional privacy protections for clients. The privacy rule sets a national “floor” of privacy standards that protect all Americans, but any state law that provides additional protections would continue to apply. When a state law requires a certain disclosure—such as reporting an infectious disease outbreak to the public health authorities—the federal privacy regulations would not preempt the state law.

6. Confidential communications. Under the privacy rule, a client can request that covered entities take reasonable steps to ensure that communications with the client are confidential. The client has the right to request that communications about protected health information remain anonymous if mailed.

7. “Minimum necessary” rule. It guides the provider to use only the minimum amount of information necessary to meet the client care needs. The actual diagnosis may not be needed. This would relate to the use of e-mail or faxes to communicate client information.

8. Telephone requests for personal health information. Inpatient confidentiality must be protected. The nurse may be able to verify whether a client is in the hospital, but only if the caller asks for the client by name; otherwise the caller should be directed to the client or family.

9. Complaints about violations of privacy. A health-care facility must identify the privacy officer and state how to contact the officer.

D. There are additional situations where medical information may be disclosed without authorization, such as:

Focus topic:  Legal Aspects of Nursing

  • For workers’ compensation or similar programs.
  • For public health activities (e.g., reporting births or deaths; injury or disability; abuse or neglect of children, elders and dependent adults; or reactions to medications), to prevent or control disease or injury.
  • To a health oversight agency, such as the State Department of Health Services.
  • In response to a court or administrative order, subpoena, warrant, or similar process.
  • To law enforcement officials in certain limited circumstances.
  • To a coroner, medical examiner, or funeral director.
  • To organizations that handle organ, eye, or tissue procurement or transplantation.
  • Public health: information may be used or disclosed to avert a serious threat to health or safety of an individual or the public (Tarasoff Principle/Duty to Warn).
  • Food and Drug Administration (FDA): health information relating to adverse events with respect to immunizations and/or health screening tests may be disclosed.
  • For members of the armed forces, health information may be disclosed as required by military command authorities.
  • To notify a person who may have been exposed to a disease or may be at risk for contracting or spreading a disease or condition.

VI. LIABILITY FOR MISTAKES—yours and others.

Focus topic:  Legal Aspects of Nursing

A. Is the hospital or the nurse liable for mistakes made by the nurse while following orders? Both the hospital and the nurse can be sued for damage if a mistake made by the nurse injures the client. The nurse is responsible for own actions. The hospital would be liable, based on the doctrine of respondeat superior.

Focus topic:  Legal Aspects of Nursing

B. Who is responsible if a nursing student or another staff nurse makes a mistake? The supervisor? The instructor? Ordinarily the instructor and/or supervisor would not be responsible unless the court thought the instructor and/or supervisor was negligent in supervising or in assigning a task beyond the capability of the person in question. No one is responsible for another’s negligence unless he or she contributed to or participated in that negligence. Each person is personally liable for his or her own negligent actions and failure to act as a reasonably prudent nurse.

Focus topic:  Legal Aspects of Nursing

C. Am I responsible for injury to a client by a staff member who was observed (but not reported) by me to be intoxicated while giving care? Yes, you may be responsible. You have a duty to take reasonable action to prevent a client’s injury.

Focus topic:  Legal Aspects of Nursing

VII. GOOD SAMARITAN ACT:

Focus topic:  Legal Aspects of Nursing

For what would I be liable if I voluntarily stopped to give care at the scene of an accident? You would be protected under the Good Samaritan Act and required to live up to reasonable and prudent nursing standards in those specific circumstances. You would not be treated by the law as if you were performing under professional standards of properly sterile conditions, with proper technical equipment.

VIII. LEAVING AGAINST MEDICAL ADVICE (AMA):

Focus topic:  Legal Aspects of Nursing

Would I or the hospital be liable if a client left “AMA,” refusing to sign the appropriate hospital forms? None of the involved parties would ordinarily be liable in this case as long as (a) the medical risks were explained, recorded, and witnessed, and (b) the client is a competent adult. The law permits clients to make decisions that may not be in their own best health interest. You cannot interfere with the right and exercise of the decision to accept or reject treatment.

IX. RESTRAINTS:

Focus topic:  Legal Aspects of Nursing

Can I put restraints on a client who is combative even if there is no order for this? Only in an emergency, for a limited time (not longer than 24 hours), for the limited purpose of protecting the client from injury—not for convenience of personnel. Notify attending physician immediately. Consult with another staff member, obtain client’s consent if possible, and get coworker to witness the record. Check frequently to ensure restraints do not impair circulation, cause pressure sores, or other injury. Remove restraints at the first opportunity, and use them only as a last resort after other reasonable means have not been effective (“right to least restrictive environment”). Restraints of any degree may constitute false imprisonment. Freedom from unlawful restraint is a basic human right protected by law.

The Joint Commission (formerly known as the Joint Commission on Accreditation of Healthcare Organizations [JCAHO]) has published standards to minimize injury and complications from the use of restraints:

  • Use alternatives to physical restraints whenever possible (e.g., offer explanations; ask someone to stay with client; use clocks, calendars, TV, and radio).
  • Use only under supervision of licensed health-care provider.
  • Use according to manufacturer’s direction to avoid strangulation or circulation impairment.
  • Provide frequent monitoring of client in restraints and allow regular, supervised restraint-free periods to prevent injury.
  • Obtain written order promptly from practitioner upon initiation of restraints and throughout duration of use.
  • Documentation must include: time applied and removed; type; medical reason (description of dangerous behavior) and alternatives tried before application of restraints; response.

A. Nursing responsibilities

  • Provide padding to protect skin, bony prominences, and intravenous lines.
  • Secure restraints to parts of bed or chair that will move with the client and not constrict movement. Never secure restraints to bed rails or mattress.
  • Use knots with hitches for easy removal, as required.
  • Maintain proper body alignment when securing restraints.
  • Remove restraints at least every 2 hours to allow for activities of daily living.

X. WILLS:

Focus topic:  Legal Aspects of Nursing

What do I do when a client asks me to be a witness to her or his will? There is no legal obligation to participate as a witness, but there is a moral and ethical obligation to do so. You should not, however, help draw up a will because this could be considered practicing law without a license. You would be witnessing that (a) the client is signing the document as her or his last will and testament; (b) at that time, to the best of your knowledge, the client (testator) was of sound mind, was lucid, and understood what the client was doing (i.e., the client must not be under the influence of drugs or alcohol or otherwise unable to know what she or he is doing); and (c) the testator was under no over coercion, as far as you could tell, but was acting freely, willingly, and under own impetus.

XI. DISCIPLINARY ACTION

Focus topic:  Legal Aspects of Nursing

A. For what reasons may the RN license be suspended or revoked?

  • Obtaining license by fraud (omission of information, false information).
  • Negligence and incompetence; assuming duties without adequate preparation.
  • Substance abuse.
  • Conviction of crime (state or federal).
  • Practicing medicine without a license.
  • Practicing nursing without a license (expired, suspended).
  • Allowing unlicensed person to practice nursing or medicine that places the client at risk.
  • Giving client care while under the influence of alcohol or other drugs
  • Habitually using drugs.
  • Discriminatory and prejudicial practices in giving client care (pertaining to race, skin color, religion, sex, age, or ethnic origin).
  • Falsifying a client’s record; failure to maintain a record for each client.
  • Breach in client confidentiality.
  • Physically or verbally abusing a client.
  • Abandoning a client.

B. What could happen to me if I am proven guilty of professional misconduct?

  • License may be revoked.
  • License may be suspended.
  • Behavior may be censured and reprimanded.
  • You may be placed on probation.

C. Who has the authority to carry out any of the aforementioned penalties? The State Board of Registered Nursing that granted your license.

D. I am the head nurse. One of my nursing aides has a history of failing to appear to work and not giving notice of or reason for absence. How should I handle this? An employee has the right to know hospital policies, what is expected of an employee, and what will happen if an employee does not meet the expectations stated in his or her job description or in hospital policies and procedures. As a head nurse, you must document behavior factually, clearly, and concisely, as well as any discussion and decision about future course of action. The employee must have the chance to read and sign this documentation. The head nurse then sends a copy to her or his supervisor.

XII. FLOATING:

Focus topic:  Legal Aspects of Nursing

Is a nurse hired to work in psychiatry obligated to cover in the intensive care unit (ICU) when the latter is understaffed? The issue is the hiring contract (implied or expressed). The contract is a composite of the mutual understanding by involved parties of rights and responsibilities, any written documents, and hospital policies. If the nurse was hired as a psychiatric nurse, he or she could legally refuse to go to the ICU. If the hospital intends to float personnel, such a policy should be clearly stated during the hiring process. Also at this time, the employer should determine the employee’s education, skills, and experience. On the other hand, if emergency staffing problems exist, a nurse should go to the ICU regardless of personal preference, but should request orientation and not assume responsibility beyond level of experience or education.

XIII. DISPENSING MEDICATION:

Focus topic:  Legal Aspects of Nursing

Can a nurse legally remove a drug from a pharmacy when the pharmacy is closed (during the night) if the physician insists that the nurse go to the pharmacy to get the specifically prescribed medication immediately? Within the legal boundaries of the Pharmacy Act, a nurse may remove one dose of a particular drug from the pharmacy for a particular client during an unanticipated emergency within a limited time and availability of resources. However, the hospital should have a written policy for the nurse to follow and should authorize a specific person to use the services of the pharmacy under certain circumstances.

XIV. ILLEGIBLE ORDERS:

Focus topic:  Legal Aspects of Nursing

What should I do if I cannot decipher the physician’s handwriting when she or he persists in leaving illegible orders? Talk to the physician regarding the dangers of your giving the wrong amount of the wrong medication via the wrong route at the wrong time. If that does not help, follow appropriate channels. Do not follow an order you cannot read. You will be liable for following orders you thought were written.

XV. HEROIC MEASURES:

Focus topic:  Legal Aspects of Nursing

The wife of a client who is terminally ill approaches me with the request that heroic measures not be used on her husband. She has not discussed this with him but knows that he feels the same way. Can I act on this request? No. The client is the only one who can legally make the decision as long as he or she is mentally competent.

XVI. MEDICATION:

Focus topic:  Legal Aspects of Nursing

A physician orders pain medication prn for a client. The client asks for the medication, but when I question her she says the pain “isn’t so bad.” If in my judgment the client’s pain is not severe, am I legally covered if I give half of the pain medication dosage ordered by the physician? A nurse cannot substitute his or her judgment for the physician’s judgment. If you alter the amount of medication prescribed by the physician without a specific order to do so, you may be liable for practicing medicine without a license.

XVII. MALFUNCTIONING EQUIPMENT:

Focus topic:  Legal Aspects of Nursing

At the end-of-shift report, the nurse going off duty tells me that the tracheal suctioning machine is malfunctioning and describes how she got it to work. Should I plan to use the machine in the evening shift and follow her suggestions about how to make it work? Do not plan to use equipment that you know is not functioning properly. You could be held liable because you could reasonably foresee that proper functioning of equipment would be needed for your client. You have been put on notice that there are defects. Report this to the supervisor or person responsible for maintaining equipment in proper working order.

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