Professional Documents
Culture Documents
c h a p t e r
Learning Objectives
Good Samaritan laws
incident report
intentional tort
invasion of privacy
laws
liability insurance
libel
living will
malpractice
misdemeanor
negligence
nurse practice act
plaintiff
reciprocity
restraints
risk management
slander
statute of limitations
statutory laws
teleology
tort
truth telling
unintentional tort
whistle-blowing
of laws: constitutional, statutory, administrative, common, criminal, and civil (Table 3-1).
Constitutional Law
LAWS
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TABLE 3.1
TYPES OF LAWS
CATEGORY
PURPOSE
EXAMPLES
Constitutional Law
Statutory Law
Administrative Law
Common Law
Criminal Law
Civil Law
Statutory Laws
Statutory laws (laws enacted by federal, state, or local
legislatures) sometimes are identified as public acts, codes,
or ordinances. For example, the legislative branch of state
governments assumes responsibility for enacting statutes
that ensure the competence of those who provide health
care. A nurse practice act (statute that legally defines the
unique role of the nurse and differentiates it from that
of other health care practitioners, such as physicians) is
one example of a statutory law (Box 3-1). Although each
states nurse practice act is unique, all generally contain
common elements:
Administrative Laws
Administrative laws (legal provisions through which
federal, state, and local agencies maintain self-regulation)
affect the power to manage governmental agencies. Some
administrative laws give federal and state governments
the legal authority to ensure the health and safety of their
citizens. The state board of nursing is an example of an
administrative agency that enforces administrative law.
BOX 3-1
The practice of nursing means the performance of services provided for purposes of nursing diagnosis and treatment of human responses to actual or
potential health problems consistent with educational preparation. Knowledge and skill are the basis for assessment, analysis, planning, intervention,
and evaluation used in the promotion and maintenance of health and nursing management of illness, injury, infirmity, restoration of optional function,
or death with dignity. Practice is based on understanding the human condition across the human lifespan and understanding the relationship of the
individual within the environment. This practice includes execution of the
medical regime including the administration of medications and treatments
prescribed by any person authorized by state law to so prescribe.
From Oklahoma Nursing Practice Act, 2001. Oklahoma Statutes, Title 59, Chapter 12,
Section 567.1 et seq. http://www.ncsbn.org/public/regulation/nursing_practice_acts.htm.
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Common Law
Common law (decisions based on prior cases of a similar nature) is also known as judicial law. It is based on a
principle referred to as stare decisis (let the decision
stand), in which prior outcomes serve as guidelines for
decisions in other jurisdictions dealing with comparable
circumstances. Common law refers to litigation that falls
outside the realm of constitutional, statutory, and administrative laws.
Criminal Laws
Criminal laws (penal codes that protect the safety of all
citizens from people who pose a threat to the public good)
are used to prosecute those who commit crimes. The state
represents the people when prosecuting those accused
of crimes. Crimes are either misdemeanors or felonies.
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A misdemeanor is a minor criminal offense. An example is shoplifting. If a person is convicted of a misdemeanor, a small fine, a short period of incarceration, or
both may be levied. The fine is paid to the state.
A felony is a serious criminal offense. Examples
include murder, falsifying medical records, insurance
fraud, and stealing narcotics. Conviction is punishable
by a lengthy prison term or even execution. The state
generally prohibits felons from obtaining an occupational license, and the state will revoke such a license if
its holder is convicted of a felony.
Civil Laws
Civil laws (statutes that protect personal freedoms and
rights) apply to disputes that arise between individual citizens. Some examples include laws that protect the right
to be left alone, freedom from threats of injury, freedom
from offensive contact, and freedom from character
attacks. In civil cases, the plaintiff (person claiming
injury) brings charges against the defendant (person
charged with violating the law). The case is referred to as
a tort (litigation in which one person asserts that an
injury, which may be physical, emotional, or financial,
occurred as a consequence of another persons actions or
failure to act). A tort implies that a person breached his
or her duty to another person. A duty is an expected
action based on moral or legal obligations.
It does not take the same quality or quantity of evidence to be convicted in a civil lawsuit as in a criminal
case. If a defendant is found guilty of a tort, he or she is
required to pay the plaintiff restitution for damages.
Torts are classified as intentional or unintentional.
Intentional Torts
Intentional torts are lawsuits in which a plaintiff
charges that a defendant committed a deliberately aggressive act. Examples include assault, battery, false imprisonment, invasion of privacy, and defamation.
ASSAULT. Assault is an act in which there is a threat or
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Sometimes nonconsensual physical contact can be justified. For example, health professionals can use physical
force to subdue clients with mental illness or those under
the influence of alcohol or drugs if their actions endanger
their own safety or that of others. Documentation must
show, however, that the situation required the degree of
restraint used. Excessive force is never appropriate when
less would have been effective. When recording information about such situations, nurses must describe the
behavior and the clients response when lesser forms of
restraint were used first.
To protect health care workers from being charged
with battery, adult clients are asked to sign a general permission for care and treatment at the time of admission
(Fig. 3-1) and additional written consent forms for tests,
procedures, or surgery. The physician must provide the
following information when seeking consent for specific
types of treatment:
mation harms a persons reputation) is unlawful. Examples include slander (character attack uttered orally in
the presence of others) and libel (damaging statements
written and read by others). Injury is considered to occur
because the derogatory remarks attack a persons character and good name.
If a client accuses a nurse of defamation of character,
the client must prove that there was malice, misuse of
privileged information, and spoken or written untruths.
Nurses are at risk for defamation of character suits if they
make negative comments in public areas like elevators or
cafeteria, or assert opinions regarding a clients character
in the medical record. To avoid accusations of defamation, nurses must avoid making or writing negative comments about clients, physicians, or other coworkers.
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FIGURE 3.1 Consent for treatment form. (From Timby, B. K., & Smith, N. E. [2003]. Introductory medicalsurgical nursing [8th ed.]. Philadelphia: Lippincott Williams & Wilkins, p. 34.)
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FIGURE 3.2 Release form for discharging oneself against medical advice.
Unintentional Torts
Unintentional torts are situations that result in an
injury, although the person responsible did not mean to
cause harm. The two types of unintentional torts involve
allegations of negligence and malpractice.
NEGLIGENCE. Negligence (harm that results because a
which differs from simple negligence. It holds professionals to a higher standard of accountability. Rather than
being held accountable for acting as an ordinary, reason-
BOX 3-2
DutyAn obligation existed to provide care for the person who claims to
have been injured or harmed.
Breach of DutyThe nurse failed to provide appropriate care, or the care provided was given negligently; that is, in a way that conflicts with how others with
similar education would have acted given the same set of circumstances.
CausationThe professionals action, or lack of it, caused the plaintiff harm.
InjuryPhysical, psychological, or financial harm occurred.
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Stan
da
Care rdized
P
Critic lan
Path al
w
Prac ay
t
Guid ice
eline
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Standards
of Practice
(ANA, JCAHO,
specialty
organizations)
Hospital Policy
and
Procedure
Manual
Expert
Witness
Smiling
Introducing yourself
Calling the client by the name he or she prefers
Touching the client appropriately to demonstrate
concern
Responding quickly to the call light
Telling the client how long you will be gone, if you
need to leave the unit; informing the client who will
care for him or her in your absence; alerting the
client when you return
Spending time with the client other than while performing required care
Patient's
Bill of
Rights
Previous
Court
Rulings
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PROFESSIONAL LIABILITY
Liability Insurance
Liability insurance (a contract between a person or corporation and a company willing to provide legal services
and financial assistance when the policyholder is involved
in a malpractice lawsuit) is a necessity for all nurses.
Although many agencies that employ nurses have liability insurance with an umbrella clause that includes its
employees, nurses should obtain their own personal liability insurance. The advantage is that the nurse involved
in a lawsuit will have a separate attorney working on his
or her sole behalf. Because the damages sought in malpractice lawsuits are so costly, attorneys hired by health
care facilities sometimes are more committed to defending
the facility against liability and negative publicity, rather
than defending an employed nurse whom they also are
being paid to represent.
Student nurses are held accountable for their actions
during clinical practice and should also carry liability
insurance. Liability insurance is available through the
National Federation for Licensed Practical Nurses, the
National Student Nurses Association, the American
Nurses Association (ANA), and other private insurance
companies.
Reducing Liability
It is unrealistic to think that lawsuits can be avoided completely, but some avenues protect nurses and other health
care workers from being sued or provide a foundation for
a sound legal defense. Examples include Good Samaritan
laws, statutes of limitations, principles regarding assumption of risk, appropriate documentation, risk management, incident reports, and anecdotal records.
Statute of Limitations
Each state establishes a statute of limitations (designated time within which a person can file a lawsuit). The
length of time varies among states and generally is calculated from when the incident occurred. When the injured
party is a minor, however, the statute of limitations sometimes does not commence until the victim reaches adulthood. Once the time period expires, an injured party can
no longer sue, even if his or her claim is legitimate.
Assumption of Risk
If a client is forewarned of a potential hazard to his or her
safety and chooses to ignore the warning, the court may
hold the client responsible. For example, if a hospitalized
client objects to having the side rails up or lowers the
rails independently, the nurse or healthcare facility may
not be held fully accountable if an injury occurs. It is
essential that the nurse document that he or she warned
the client and that the client disregarded the warning.
The same recommendation applies when nurses caution
clients about ambulating only with assistance.
Documentation
A major component to limiting liability is accurate, thorough documentation. Nurses are held responsible or liable
for information that they either include or exclude in
reports and documentation. Each healthcare setting requires accurate and complete documentation. The medical record is a legal document and is used as evidence in
court. Records must be timely, objective, accurate, complete, and legible (see Chapter 9). The quality of the documentation, including neatness and spelling, can influence
a jurys decision.
Risk Management
Risk management (process of identifying and reducing
the costs of anticipated losses) is a concept originally
developed by insurance companies. Health care institutions have now adopted risk management as well. In doing
so, they employ risk managers to review all the problems
that occur in the workplace, identify common elements,
and then develop methods to reduce their risk. A primary
tool of risk management is the incident report.
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Incident Reports
An incident report is a written account of an unusual
event involving a client, employee, or visitor that has the
potential for being injurious (Fig. 3-4). It is kept separate
from the medical record. Incident reports serve two purposes: to determine how to prevent hazardous situations,
and to serve as a reference in case of future litigation.
Incident reports must include five important pieces:
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and Services, the National Federation for Licensed Practical Nurses, and the International Council of Nurses
are examples of organizations that have composed codes
of ethics. Box 3-4 is the ANAs current code of ethics.
Because of rapidly changing technology, no code of ethics
is ever specific enough to provide guidelines for each and
every dilemma that nurses may face.
Ethical Dilemmas
Anecdotal Records
Ethical Theories
Malpractice Litigation
A successful outcome in a malpractice lawsuit depends on
many variables, such as the physical evidence and the
expertise of ones lawyer. The appearance, demeanor, and
conduct of the nurse defendant inside and outside the
courtroom, however, can help or damage the case. The
suggestions in Box 3-3 may be helpful if a nurse becomes
involved in malpractice litigation.
ETHICS
Codes of Ethics
A code of ethics (a list of written statements describing
ideal behavior) serves as a model for personal conduct.
The National Association for Practical Nurse Education
Teleologic Theory
Teleology is ethical theory based on final outcomes. It is
also known as utilitarianism, because the ultimate ethical test for any decision is based on what is best for the
most people. Stated from a different perspective, teleologists believe the end justifies the means. Therefore, the
choice that benefits many people justifies the harm that
may come to a few. A teleologist would argue that selective abortion (destroying some fetuses in a multiple pregnancy) is ethically correct because it is done to ensure
the full-term birth of the remaining healthy fetuses. In
other words, terminating the life of a fetus is justified in
some situations but may not be justified in all cases.
Teleologists analyze ethical dilemmas on a case-bycase basis. They propose that an action is not good or bad
in and of itself. Instead, the consequences determine if
the action is good or bad. The primary consideration is a
desirable outcome for those most affected.
Deontologic Theory
Deontology is ethical study based on duty or moral obligations. It proposes that the outcome is not the primary
issuerather, decisions must be based on the ultimate
morality of the act itself. In other words, certain actions
are always right or wrong regardless of extenuating circumstances. Deontologists would argue that destroying
any fetus is wrong, whether it is done to save others or not,
because killing is always immoral. Deontology proposes
that health care providers have a moral duty to maintain
and preserve life. Therefore, it is immoral for a nurse to
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BOX 3-3
Legal Advice
BOX 3-4
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BOX 3-5
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Ethical Decision-Making
It is sometimes impossible or impractical to analyze ethical issues from a teleologic or deontologic point of view.
Most nurses do not exclusively use the principles from
one ethical theory. Rather, ethical decisions are often the
result of the nurses values. Values are a persons most
meaningful beliefs and the basis on which he or she makes
most decisions about right or wrong. Values have common
characteristics. They are:
best interest.
Preserve and support the Patients Bill of Rights.
Work cooperatively with the client and other health
practitioners.
Follow written policies, codes of ethics, and laws.
Follow your conscience.
Ethics Committees
Ethical decisions are complex, especially when they
affect the lives of clients. Because making a judgment for
another is a weighty responsibility, many health care
agencies have established ethics committees. These committees are composed of professionals and nonprofessionals representing a broad cross-section of people within the
community with varying viewpoints. Their diversity
encourages healthy debate about ethics issues. Ethics com-
Truth Telling
Truth telling proposes that all clients have the right to
complete and accurate information. It implies that physicians and nurses have a duty to tell clients the truth about
matters concerning their health. Health care personnel
demonstrate respect for this right by explaining to the
client the status of his or her health problem, benefits and
risks of treatment, alternative forms of treatment, and
consequences if the treatment is not administered.
It is the physicians duty to inform clients. Conflict
occurs when the client has not been given full information, when the facts have been misrepresented, or when
the client misunderstands the information. In some cases,
physicians are reluctant to talk honestly with clients or
present the proposed treatment in a biased manner. Often
the nurse is forced to choose between remaining silent in
allegiance to the physician or providing truthful information to the client. Either action may have frustrating
consequences.
Confidentiality
Confidentiality, or safeguarding a persons health information from public disclosure, is the foundation for developing trust. Nurses must not divulge health information
to unauthorized individuals without the clients written
permission. Even giving medical information to a clients
health insurance company requires a signed release.
Consequently, nurses must use discretion when sharing information verbally so that others do not hear it
indiscriminately. Now that vast information about clients
is stored on computers, the duty to protect confidentiality
extends to safeguarding written and electronic data.
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T/C
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Code Status
A clients code status refers to the manner in which
nurses and other healthcare personnel are required to
manage the care of the client at the time of cardiac or respiratory arrest. Without a written order from the physician to the contrary, the client is designated as a full code.
A full code means that all measures to resuscitate the
client are used.
After a discussion with the physician, some clients may
indicate that they do not want any resuscitative efforts,
that is, no code or do not resuscitate (DNR), or they
may select a combination of interventions that constitute
less than a full code. Some clients specify using just chemicals (drugs) to facilitate resuscitation, but refuse cardiac
defibrillation or endotracheal intubation for mechanical
ventilation. For anything less than a full code, the physician must write an order to that effect in the clients medical record.
Whistle-Blowing
Whistle-blowing (reporting incompetent or unethical
practices), as the name implies, calls attention to an unsafe
or potentially harmful situation. In most circumstances, it
occurs in the institution where the reporting person is
employed. For instance, a nurse may report another nurse
or physician who cares for clients while under the influence of alcohol or a controlled substance.
Whenever a problem is identified, the first step is to
report the situation to an immediate supervisor. If the
supervisor takes no action, the nurse faces an ethical
dilemma about what further steps to take. It may become
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