NCLEX: Legal Aspects of Nursing

 

I. DEFINITION OF TERMS

Focus topic: Legal Aspects of Nursing

A. Common law: accumulation of law as a result of judicial court decisions.

B. Civil law (private law): law that derives from legislative codes and deals with relations between private parties.

C. Public law: concerns relationships between an individual and the state. The thrust of public law is to attain what are deemed valid public goals, such as reporting child abuse.

D. Criminal law: concerns actions against the safety and welfare of the public, such as robbery. It is part of the public law.

E. Informed consent: implies that significant benefits and risks of any procedure, as well as alternative methods of treatment, have been explained; person has had time to ask questions and have these answered; person has agreed to the treatment voluntarily and is legally competent to give consent; and communication is in a language known to the client.
F. Reasonably prudent nurse: nurse must react as a reasonably prudent nurse trained in that specialty area would react. For example, if a nurse works with fetal monitors, she must know how to use the monitors, know how to read the strips, and know what actions to take based on the findings.

Legal Aspects of Nursing

II. NURSING LICENSURE

Focus topic: Legal Aspects of Nursing

—mandatory licensure required in order to practice nursing.

A. Nurse Practice Act: each state has one to protect nurses’ professional capacity, to set educational requirements, to distinguish between nursing and medical practice, to define scope of nursing practice, to legally control nursing through licensing, and to define standards of professional nursing.

B. American Nurses Association: “The practice of nursing means the performance for compensation of professional services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing theory as the basis for assessment, diagnosis, planning, intervention, and evaluation in the promotion and maintenance of health; the case finding and management of illness, injury, or infirmity; the restoration of optimum function; or the achievement of a dignified death. Nursing practice includes but is not limited to: administration, teaching, counseling, supervision, delegation, and evaluation of practice and execution of the medical regimen, including the administration of medications and treatments prescribed by any person authorized by state law to prescribe. Each registered nurse is directly accountable and responsible to the consumer for the quality of nursing care rendered.” (American Nurses Association: Nursing: Scope and Standards of Practice. American Nurses Association, Washington, DC, 2004).

C. Revoking a license: Board of Examiners in each state in the United States and each province in Canada has the power to revoke licenses for just cause, such as incompetence in nursing practice, conviction of crime, drug addiction, obtaining license through fraud, or hiding criminal history.

III. CRIMES AND TORTS

Focus topic: Legal Aspects of Nursing

A. Crime: an act committed in violation of societal law and punishable by fine or imprisonment. A crime does not have to be intended (as in giving a client an accidental overdose that proves to be lethal).

  • Felonies: crimes of a serious nature (e.g., murder) punishable by imprisonment of longer than 6 months.
  • Misdemeanors: crimes of a less serious nature (e.g., shoplifting), usually punishable by fines or short prison term or both.

B. Tort: a wrong committed by one individual against another or another’s property. Fraud, negligence, and malpractice are torts (e.g., losing a client’s hearing aid, or bathing the client in water that causes burns).

1. Fraud: misrepresentation of fact with intentions for it to be acted on by another person (e.g., falsifying college transcripts when applying for a graduate nursing program).

2. Negligence: “Omission to do something that a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs would do; or doing something which a reasonable and prudent person would not do” (Brent N: Nurses and the Law. Saunders, Philadelphia, 1997). Types of negligent acts related to:

  • Sponge counts: incorrect counts or failure to count.
  • Burns: heating pads, solutions, steam vaporizers.
  • Falls: side rails left down, infant left unattended.
  • Failure to observe and take appropriate action—forgetting to take vital signs and check dressing in a client who is newly postoperative.
  • Wrong medicine, wrong dose and concentration, wrong route, wrong client.
  • Mistaken identity—wrong client for surgery.
  • Failure to communicate—ignore, forget, fail to monitor, report, or document client’s status or to report complaints of client or family.
  • Loss of or damage to client’s property— dentures, jewelry, money.
  • Inappropriate use of equipment (e.g., excessive IV fluids via pump).

3. Malpractice: part of the law of negligence as applied to the professional person; any professional misconduct, unreasonable lack of skill, or lack of fidelity in professional duties, such as accidentally giving wrong medication or forgetting to give correct medication or instilling wrong strength of eye drops into the client’s eyes. Proof of intent to do harm is not required in acts of commission or omission.

IV. INVASION OF PRIVACY

Focus topic: Legal Aspects of Nursing

—compromising a person’s right to withhold self and own life from public scrutiny. Implications for nursing—avoid unnecessary discussion of client’s medical condition; client has a right to refuse to participate in clinical teaching; obtain consent before teaching conference.

V. LIBEL AND SLANDER

Focus topic: Legal Aspects of Nursing

—wrongful action of communication that damages person’s reputation by print, writing, or pictures (libel), or by spoken word using false words (slander). Implications for nursing—make comments about client only to another health team member caring for that client.

VI. PRIVILEGED COMMUNICATIONS

Focus topic: Legal Aspects of Nursing

— information relating to condition and treatment of client requires confidentiality and protection against invasion of privacy. This applies only to court proceedings. Selected person does not have to reveal in court a client’s communication to him or her. The purpose of privileged communication is to encourage
the client to communicate honestly with the treating practitioner. It is the client’s privilege at any time to permit the professional to release information.

Therefore, if the client asks the nurse to testify, the nurse must truthfully give all information. However, if the nurse is a witness against the client, without the client’s permission to release information, the nurse must keep the information confidential by invoking the privileged communication rule if the state law recognizes it and if it applies to the nurse.

VII. ASSAULT AND BATTERY

Focus topic: Legal Aspects of Nursing

—violating a person’s right to refuse physical contact with another.

A. Definitions

  • Assault—the attempt to touch another or the threat to do so and person fears and believes harm will result.
  • Battery—physical harm through willful touching of person or clothing, without consent.

B. Implications for nursing—need to obtain consent to treat, with special provisions when clients are underage, unconscious, or mentally ill.

VIII. GOOD SAMARITAN ACT

Focus topic: Legal Aspects of Nursing

—protects health practitioners against malpractice claims resulting from assistance provided at scene of an emergency (unless there was willful wrongdoing) as long as the level of care provided is the same as any other reasonably prudent person would give under similar circumstances.

IX. NURSES’ RESPONSIBILITIES TO THE LAW

Focus topic: Legal Aspects of Nursing

A. A nurse is liable for nursing acts, even if directed to do something by a physician.
B. A nurse is not responsible for the negligence of the employer (hospital).
C. A nurse is responsible for refusing to carry out an order for an activity believed to be injurious to the client.
D. A nurse cannot legally diagnose illness or prescribe treatment for a client. (This is the physician’s responsibility.)
E. A nurse is legally responsible when participating in a criminal act (such as assisting with criminal abortions or taking medications from client’s supply for own use).
F. A nurse should reveal client’s confidential information only to appropriate health-care team members.
G. A nurse is responsible for explaining nursing activities but not for commenting on medical activities in a way that may distress the client or the physician.
H. A nurse is responsible for recognizing and protecting the rights of clients to refuse treatment or medication, and for reporting their concerns and refusals to the physician or appropriate agency people.
I. A nurse must respect the dignity of each client and family.

X. ORGAN DONATION

Focus topic: Legal Aspects of Nursing

A. Legal aspects to protect potential donors and to expedite acquisition

  • Prohibits selling of organs (National Organ Transplant Act).
  • Guidelines regarding who can donate, how donations are to be made, and who can receive donated organs (Uniform Anatomical Gift Act).
  • Legal definition of brain death (Uniform Determination of Death Act)—absence of: breathing movement, cranial nerve reflex, response to any level of painful stimuli, and cerebral blood flow; and flat EEG.

B. Donor criteria

  • Contraindications for being organ donator: HIV-positive status and metastatic cancer.
  • Prospective donors of both organs and tissues: those with no neurological functions, but have cardiopulmonary functions.
  • Prospective donors of only tissues: those with no cardiopulmonary function (e.g., can donate corneas, eyes, saphenous veins, cartilage, bones, skin, heart valves).

C. Management of donor

  • Maintain body temperature at greater than 96.8°F with room temperature at 70° to 80°F, warming blankets, warmer for intravenous fluids.
  • Maintain greater than 100% PaO2 and suction/turn and use positive end-expiratory pressure (PEEP) to prevent hypoxemia caused by airway obstruction, pulmonary edema.
  • Maintain central venous pressure at 8 to 10 mm Hg and systolic blood pressure at greater than 90 mm Hg to prevent hypotension caused by complete dilation of systemic vasculature due to destruction of brain’s vasomotor center, cessation of antidiuretic hormone production, and decreased cardiac output. Give fluid bolus and vasopressors, and monitor sodium levels.
  • Maintain fluid and electrolyte balance due to volume depletion. Monitor for hyponatremia, hyperkalemia, and hypokalemia, and intake and output.
  • Prevent infections due to invasive procedures (e.g., tubes, catheters) by using aseptic technique.
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Legal Aspects of Nursing: Questions Most Frequently Asked by Nurses About Nursing and the Law

Focus topic: Legal Aspects of Nursing

I. TAKING ORDERS

A. Should I accept verbal phone orders from a physician? Generally, no. Specifically, follow your hospital’s bylaws, regulations, and policies regarding this.
Failure to follow the hospital’s rules could be considered negligence.
B. Should I follow a physician’s orders if (a) I know it is wrong, or (b) I disagree with his or her judgment? Regarding (a)—no, if you think a reasonable, prudent nurse would not follow it; but first inform the physician and record your decision. Report it to your supervisor. Regarding (b)—yes, because the law does not allow you to substitute your nursing judgment for a doctor’s medical judgment. Do record that you questioned the order and that the doctor confirmed it before you carried it out.
C. What can I do if the physician delegates a task to me for which I am not prepared? Inform the physician of your lack of education and experience in performing the task. Refuse to do it. If you inform the physician and still carry out the task, both you and the physician could be considered negligent if the
client is harmed by it. If you do not tell the physician and carry out the task, you are solely liable.

II. OBTAINING CLIENT’S CONSENT FOR MEDICAL AND SURGICAL PROCEDURES:

Is a nurse responsible for getting a consent for medical-surgical treatment? Obtaining consent requires explaining the procedure and risks involved, which is the physician’s responsibility. A nurse may accept responsibility for witnessing a consent. This carries with it little legal liability other than obtaining the correct signature and describing the client’s condition at time of signing.

III. CLIENT’S RECORDS (DOCUMENTATION)

A. What should be written in the nurse’s notes? All facts and information regarding a person’s condition, treatment, care, progress, and response to illness and treatment. Document consent or refusal of treatment. Purpose of record: factual documentation of care given to meet legal standards; used to refute unwarranted claims of negligence or malpractice.

B. How should data be recorded? Entries should:

  • State date and time given.
  • Be written, signed, and titled by caregiver or supervisor who observed action.
  • Follow chronological sequence.
  • Be accurate, factual, objective, complete, precise, and clear.
  • Be legible; use black pen.
  • Use universal abbreviations.
  • Have all spaces filled in on documentation forms; leave no blank spaces.

IV. CONFIDENTIAL INFORMATION

A. If called on the witness stand in court, do I have to reveal confidential information? It depends on your state, because each state has its own laws pertaining to this. Consult a lawyer. Inform the judge and ask for specific directions before relating in court information that was given to you within a confidential, professional relationship.

B. Am I justified in refusing (on the basis of “invasion of privacy”) to give information about the client to another health agency to which a client is being
transferred? No. You are responsible for providing continuity of care when the client is moved from one facility to another. Necessary and adequate information should be transferred between professional health-care workers. The client’s consent for this exchange of information should be obtained. Circumstances under which confidential information can be released include:

  • By authorization and consent of the client.
  • By order of the court.
  • By statutory mandate, as in reporting cases of communicable diseases or child, elder, or dependent adult abuse.
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