Catanduanes State University

COLLEGE OF HEALTH SCIENCES

Department of Nursing
Virac, Catanduanes

PROJECT IN NCM 107

(Nursing Leadership and
Management)

Submitted by:
KEISHA FERREZE ANN A. QUIŇONES
RLP-BSN4

Submitted to:
JANET B. LIM
Subject Professor
 LEGAL ASPECTS OF NURSING
According to the American Nurses Association (ANA), “the Standards of
Professional Nursing Practice are authoritative statements of the duties that all registered
nurses, regardless of role, population or specialty are expected to perform competently”.
The ANA further states that the standards can change as the dynamics of professional
nursing evolve and that specific clinical circumstances or conditions might affect the
application of the standards at any given time.
The legal aspects of nursing have an impact on the manner in which care is
delivered to patients by nurses. Legal concerns shape the environment in which nursing
is practiced and determine how documents are kept or shared. Ultimately, nurses and the
nursing care they provide are judged based on a legal definition for the standard of care
for nurses. Written “standards of care” and “guidelines” are available as resources for
determining how nursing care is to be delivered and the quality of care. However, the
legal definition of the standard of care for nurses is not a “guideline” or a “policy” set by
any one individual or institution. Rather, it is the embodiment of collective knowledge for
what is required of the average nurse and sets the minimum criteria for proficiency.

History of the Standard of Care for Nurses

Ordinary Negligence
In previous decades, prior to the growth of professional nursing practice, nurses
were judged by the same standard of care as the ordinary man or woman. A nurse was
not considered a professional who delivered specialized care. Often, if nursing notes were
written, they were not considered part of the medical record.
Over time, the scope of nursing practice has expanded, technologies have
changed, and nurses have elected higher levels of education. With these changes, there
was a change in the manner in which the standard of care for nurses was viewed, that
respected nursing special body of knowledge and expertise. With the growing body of
nursing knowledge comes more responsibility, not just in the use of advanced technology
but also in the manner in which nursing care is delivered.
The legal notion of the standard of care for nurses, much like the Constitution, is a
living concept. It is broad and allows room for interpretation and expansion as the practice
of nursing and the environment of nursing practice evolve and change. Guidelines and
policies, on the other hand, are static and provide more specific information regarding the
delivery of certain aspects of nursing care as interpreted by individual institutions or
organizations.

Nursing Malpractice
In 1975, nurses were finally identified as professionals worthy of the protection of
the law afforded to other medical professionals, when statutory protection was afforded
to nurses who might be sued on the basis of nursing practice. Since July 9, 1975, a
negligence claim against a nurse has been characterized as malpractice. This meant that
nurses were identified as providing specialized care and treatment based upon the
principles of nursing. A nurse's knowledge and the delivery of nursing care were no longer
compared to the standard of an ordinary man or woman.
In the past, physicians or other health care professionals could offer their opinions
on the standard of care for nurses. No longer can physicians testify about the standard of
care for nurses. Only a nurse is considered to have the special body of knowledge,
education/training, and experience to provide testimony regarding what the average
nurse would do, under the same or similar circumstances, for a patient presenting in the
same or similar manner.

Protection Afforded By Statutes

Protection for nurses is afforded by statutes in each individual state. Individual
states determine and interpret the laws. Additionally, the state courts interpret statutes
and produce written opinions explaining the interpretation of the law.
In some states, nurses are protected under statutes governing the “statute of
limitation.” The statute of limitation is the period of time following an alleged injury during
which a plaintiff (injured party) may bring his or her claim. If a nurse is subject only to
ordinary negligence, the statute of limitation may be lengthened significantly. Generally,
the statute of limitation for medical actions is 2 years from the date of the incident alleged
to be the cause of the injury, although this may vary in pediatric or wrongful death cases.
Statutes of limitation also vary from state to state.
As stated previously, nurses are protected by laws allowing only nurses to testify
regarding what a nurse would do in a similar situation with a similar patient. However, as
nursing practice expands and advanced practice nurses become more specialized and
are nationally certified, there is a shift toward a national standard of care for nurses in
advanced practice.

LEGAL DEFINITION OF THE NURSING STANDARD OF CARE

The legal definition of the standard of care for nurses is a broad statement. It is
unlikely to be found in the state statutes, public health codes, or nurse practice acts.
Rather, the standard of care is established by the average reasonable nurse, practicing
in the same or similar circumstances and delivering care to the same or similar patient.
Hospital/facility policies or other guidelines do not necessarily define the standard of care
for nurses as it might be defined in the legal environment. An institution's guidelines are
generally more specific about the care and treatments provided in that particular
institution.
Nurses are considered to have a general nursing knowledge rather than thought
of as specialists, such as physicians might be. It is important for nurses to understand
that the standard of care for nurses is only that of the reasonable, ordinary nurse and it is
the standard of care at the time of the incident that is applicable. Additionally, if testimony
about nursing is to be provided, it must be from a nurse with experience in the area of
nursing in question. For example, a wound care nurse would be held to the standard of a
reasonable wound care nurse, practicing under the same or similar circumstances, in the
year the incident occurred.
More specifically for a wound care nurse, the standard of care would be that of an
average nurse practicing in the area of wound care and delivering nursing care to a same
or similar patient under the same or similar circumstances. There is a trend toward a
national standard of care for those nurses whose credentials indicate that they are
certified by a national association of nurses.
Advanced Practice Nursing
In cases of advanced practice nurses such as a certified RN anesthetist (CRNA)
or nurse practitioner (NP), the standard of care would be for a CRNA or NP. In general,
advanced practice nursing requires specific qualifications including an advanced degree
in a specific area of expertise. Advanced practice nursing may also require certification
by a national association and specific licensing by the state through the board of nursing.
The state boards of nursing may define the nursing scope of practice through statutes.
The legal standard of care for an advanced practice nurse would be that of an
average and reasonable advanced practice nurse. Specifically, the legal definition of the
standard of care would be that of an average and reasonable advanced practice nurse,
practicing in his or her area of expertise and caring for a same or similar patient under the
same or similar circumstances. Nurse practitioners may practice in dependent or
independent roles in many different settings. If the NP is associated with an institution, he
or she should evaluate the employment contract to determine if he or she is classified as
an employee or an independent contractor. Employee status will impact decisions
regarding whether to purchase individual malpractice insurance.

Nursing Malpractice
Malpractice is negligence, misconduct, or breach of duty by a professional that
results in injury/damage to a patient. Common malpractice claims arise against nurses
when nurses fail to:
 Assess and monitor.
 Follow standards of care.
 Use equipment in a responsible manner.
 Communicate.
 Document.
 Act as a patient advocate and follow the chain of command.

Elements of Malpractice
To prove malpractice, all 4 of the following elements must be proven by the plaintiff:
the nurse had a duty to the patient, the nurse breached the duty, a patient injury occurred,
and there was a causal relationship between the breach of duty and the patient injury.
Therefore, in determining if malpractice has occurred, these 4 elements must be carefully
considered. First, did the nurse have a duty to the patient? This means that the nurse was
actively engaged in providing nursing care to the patient. Second, was there a breach of
that duty? In other words, did the nurse commit an act or omission in the act of taking
care of the patient and did that act or omission result in harm to the patient?
The third element is “proximate cause.” The question here is whether the action or
omission caused any harm to the patient. If the action did not result in harm or injury,
there was no malpractice. Finally, the fourth element is damage. What harm occurred as
a result of the action of omission during the delivery of nursing care? A nurse might have
a duty to a patient and commit an action or omission during the course of nursing care,
and it might not constitute malpractice if the action or omission did not result in harm to
the patient.
Minimizing the Risk of Malpractice
Nurses should be cognizant of legal risks in providing care. The following actions
can help minimize a nurse's risk of being sued for malpractice:
 Know and follow your state's nurse practice act and your facility's policies and
procedures.
 Stay up to date in your field of practice.
 Assess your patients in accordance with policy and their physicians' orders and,
more frequently, if indicated by your nursing judgment.
 Promptly report abnormal assessments, including laboratory data, and document
what was reported and any follow-up.
 Follow up on assessments or care delegated to others.
 Communicate openly and factually with patients and their families and other health
care providers.
 Document all nursing care factually and thoroughly and ensure that the
documentation reflects the nursing process; never chart ahead of time.
 Promptly report and file appropriate incident reports for deviations in care.

OTHER IMPORTANT LEGAL CONSIDERATIONS

Federal and State Statutes and Regulations
In addition to nursing malpractice, there are multiple federal and state laws and
regulations that impact the practice of nursing and may impose liability. The following
discussion presents a brief overview of some of these: state/federal statutes governing
privacy, the use/disclosure of a patient's protected information, peer review for negligent
or unprofessional conduct, patients' rights to make decisions about their medical care,
conditions of participation for Medicare/Medicaid reimbursement, requirements for
reporting suspected/actual elder or child abuse, and professional practice acts and
licensure.

What is the Privacy Act?

The Privacy Act (1974) regulates the collection, use, maintenance, and distribution
of personally identifiable information about individuals that is kept in the record systems
of federal agencies. This act impacts all health care providers and health care plans that
transmit health care information in electronic form. It has been described as a consumer
protection act.

Health Care Quality Improvement Act

The Health Care Quality Improvement Act (1986) encourages hospitals, state
licensing boards, and professional societies to identify and take corrective action for
health care workers who may be found by peer review to be engaged in negligent or
unprofessional conduct. This act encourages peer review, and, if performed correctly, it
might provide immunity from civil liability. Many states encourage “peer review” and
internal investigations of incidents that have resulted in harm to patients and provide
statutory protection of peer review activities within an organization. In addition,
hospitals/facilities and personnel have a strong interest in providing quality care and
preventing future harm to their patients through such review activities.
Patient Self-Determination Act
The federal Patient Self-Determination Act (PSDA, 1990) mandates that
individuals receiving medical care must be given written information about their rights
under state law to make decisions about medical care, including the right to accept or
refuse medical or surgical treatment. The law applies to all health care facilities providing
services and receiving federal reimbursement, including nursing homes, home health
agencies, clinics, and hospitals. The essence of the legislation was to empower the public
with the right to make end-of-life decisions. The PSDA defines the rights of competent
patients to make binding, legally enforceable decisions about their health care
preferences that are to be followed should they later become unable to express their
wishes. This includes assigning a patient care advocate for medical decision making and
endorsing a witnessed and notarized living will for end-of-life decisions. Many state
legislatures have added additional legal steps and actions that need to be taken for end-
of-life decisions that may vary greatly from state to state.

Professional Practice Acts and Licensure

For each group of health care professionals, licensed by the state, laws and
regulations are in place that define the scope of practice and outline the oversight
authority vested in their professional regulatory boards. Most states have a nurse practice
act that serves as a general guideline regarding the practice of nursing and licensure
requirements. Generally, the scope of nursing practice is defined for licensed practical
nurses, RNs, and advanced practice nurses. The scope of practice of an individual
practitioner is an important consideration because practicing outside of the scope of
nursing can open the individual to civil liability and censorship by the board of nursing.
The scope of practice of nurses can also be further defined by hospital policies
and procedures. The policies and procedures of individual organizations should show
evidence of compliance with licensing board requirements and legislative requirements,
as well as with guidelines established by such agencies as The Joint Commission.
National and state nurse associations are other resources that provide guidelines for the
practice of nursing.

THE PHILIPPINE NURSING LAW

Brief History of the Philippine Nursing Law

The first law that had to do with the practice of nursing was contained in Act
No.2493 in 1915, which regulated the practice of medicine. This act provided for the
examination and registration of nurses in the Philippine Islands.

During that time, the applicants need to be only twenty years old, of good physical
health and good moral character. Graduates of intermediate courses of the public school
could enter the school of nursing, which was then giving only two years, and a half of
instruction. These graduates were called first class nurses. Those who desired to be
second-class nurses filed an application with the district health officer in the district where
they resided.

In 1919 Act 2808 was passed- this is known as the First True Nursing Law. It
created among others a board of examiners for nurses. However, it was in 1920 that the
first board examination in the Philippines was given.
 On June 19, 1953, the Philippine Nursing Law or R.A. 877 was passed. This act
regulated the practice of nursing in the Philippines. One of the landmarks in the history of
the nursing profession in the Philippines is the Presidential Proclamation of a Nurses'
Week.

Under Proclamation No. 539 dated October 17, 1958 the President of the
Philippines designated the last week of October every year beginning in 1958 as Nurses'
Week.

On June 18, 1966, Republic Act 4704 amended certain portions of R.A. 877. The
following were included among the salient changes:
a. The scope of nursing practice was broadened to circumscribe the whole
management of the care of patients and the acts constituting professional practice
of nursing were spelled out to include such services as reporting, recording and
evaluation of a patient’s case, execution of nursing procedures and techniques,
direction and education to secure physical and mental care and the application
and execution of physician’s orders concerning treatment and medication.
b. The minimum age required of applicants for admission to the nurse’s examination
was lowered from 21 to 18 years of age, but no candidate who passed the
examination was permitted to practice the profession until he or she reached the
age of 21.

Republic Act 7164, introduced by Senator Heherson Alvarez, codified and revised
all the laws regulating the practice of nursing in the Philippines. It was known as the
Philippine Nursing Act of 1991.

In October 21, 2002, Republic Act No. 9173 otherwise known as “The Philippine
Nursing Act of 2002” replaced R.A. 7164.

There are laws governing the practice of Nursing, one of which is House Bill No.
4955, AN ACT PUNISHING THE MALPRACTICE OF ANY MEDICAL PRACTITIONER
IN THE PHILIPPINES AND FOR OTHER PURPOSES