Chapter 3: 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”
(2010, p. 2). 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 (ANA, 2010). In
2010, ANA endorsed WOC nursing as a specialty practice (Wound, Ostomy and Continence Nurses Society, 2010). Therefore, it
is important for WOC nurses to be aware of the standards and scope of practice as a foundational guide to excellence in practice
and to recognize the legal implications of standards and definitions of the scope of practice.

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.

Federal and state laws also impact the manner in which nursing is practiced. Health care is one of the most regulated sectors of
commerce, and much of the regulation of the industry comes from federal and state laws. Other regulatory requirements are
imposed by various government-sponsored programs, such as Medicare, or are self-imposed to conform to various other
government and private initiatives. Due to the potential for civil and criminal liabilities and sanctions in regard to health care,
nurses should be familiar with key statutes and regulations regarding the delivery of patient care (Carroll, 2006).

This chapter is meant to provide an overview of the legal standard of care for nurses and its impact upon nursing practice.
Nursing malpractice is described and suggestions are provided for minimizing risks for malpractice suits. The chapter also
includes an overview of laws that affect the practice of nursing.

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 (Chase v. Sabin, 1994). 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 Michigan, the Revised
Judicature Act of 1961 states that a civil action for malpractice may be maintained against any person professing or holding
himself or herself out to be a member of a state licensed profession.

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, some states, such as Michigan, still maintain a local standard of care for nurses. As a
result, the nursing standard of care in Michigan is that of a reasonable nurse in the same or similar situation, with the same or
similar patient, in Michigan. 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 (Reising &
Allen, 2007). According to Reising and Allen, 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 (Reising, 2012). 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.

In the following case, examples of malpractice related to wound care are presented. An 80-year-old patient was admitted to a
nursing unit, and a wound was identified on her right heel. Although care was provided for the wound on her heel, the nurse
failed to complete a head-to-toe skin assessment and assess the patient's risk for pressure ulcer development. As a result, a large
pressure ulcer developed on the sacrum. When this wound was finally identified, it was a stage IV pressure ulcer and took several
months of additional treatment for healing, including nursing home care.

An analysis of the case would be as follows: Did the nurse have a duty? Yes. She was actively engaged in delivering nursing care
to the patient. Did the nurse breach the duty? Yes. The nurse failed to completely assess the patient and, as a result, a sacral ulcer
developed. Was the nurse's failure to completely assess the patient a cause of harm to the patient? Yes. At admission, the patient
did not have skin breakdown on the sacrum. The wound was discovered upon transfer to another facility.

Finally, was there damage? Yes. A wound developed on the sacrum, and damage included the economic costs for additional
hospital and nursing home care, a decline in mobility, and emotional distress.

In fact, this was an actual case that resulted in a settlement. The key point is to protect your patients and yourself by
implementing the complete nursing process and thorough documentation.

Minimizing the risk of malpractice

Nurses should be cognizant of legal risks in providing care. Reising (2012) suggests that 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.

What to do if you are sued?

How a lawsuit for medical malpractice is initiated may differ in each state. However, whether you are served with a complaint or
a letter of intent to sue, your first response should be to contact your supervisor or employer and/or legal department: They will
help you determine insurance coverage. Never speak to a representative of the plaintiff (ie, the person who is bringing the
lawsuit).

After you have contacted the legal department, you will be assigned an attorney to guide you through the case. Do not discuss the
case with anyone other than your employer or legal representative. An attorney will contact you for an interview and will likely
provide you with a copy of the medical records in question for review. The nurse is a key partner in the defense of the case, and
the nurse's knowledge of the medical record is very valuable.

If a lawsuit results in a judgment against a nurse, the state may require that the judgment be reported to the state board of nursing.
Sometimes, there is an investigation by the board of nursing into the facts of the case, necessitating legal representation of the
nurse during the investigation. However, most actions do not result in specific judgments against nurses.

Many nurses ask whether they should carry their own malpractice insurance in addition to that provided by their employer. First,
it is important to understand the amount of insurance coverage that the employer provides and what is covered. A staff nurse
working in an institution such as a hospital is unlikely to need additional coverage, unless he or she practices outside of the
hospital (eg, works at first aid stations at baseball tournaments; works at camps not affiliated with the hospital). However, a nurse
with an independent practice or who is identified as an independent contractor may require individual coverage.

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.

The Health Insurance Portability and Accountability Act

Congress enacted the Health Insurance Portability and Accountability Act (HIPAA, 1996) to limit the ability of an employer to
deny health insurance coverage to employees with preexisting medical conditions. The law also directed the US Department of
Health and Human Services (USDHHS) to develop privacy rules, including, but not limited to, the use of electronic medical
records. In recent years, this has expanded to include other considerations for electronic transmission of health care information.

Among other things, HIPAA gives individuals the right to obtain their own medical records and request amendments to their
medical records (USDHHS, n.d.-a) and allows the individual to learn where the records have been disclosed (USDHHS, n.d.-b).

HIPAA provides that individuals must be provided with medical records within 30 days of a request. It also prohibits release of
personal health information without permission. Generally, a HIPAA-compliant, signed authorization must be presented in order
to obtain medical records. An individual who believes his or her health care information has been inappropriately exchanged may
file a complaint with the provider or USDHHS Office for Civil Rights. The provider can be liable for both civil and criminal
penalties. Recently, the rule has been expanded to hold individuals liable to the consumer. This becomes especially important
when the manner and number of ways that information is exchanged across the Internet are considered.

As health care and technology rapidly grow and expand, new issues will occur. Interpretation of statutes will be challenged and
can change, laws will be revised, and new legislation can be introduced. There are significant penalties for failure to meet HIPAA
requirements. Previously, penalties were limited to the institution. Recently, new federal laws have been enacted that allow
individuals to be held accountable for breaches of the Privacy Act. Therefore, nurses need to keep up with the changes that affect
their nursing practice. Resources for information regarding legal/regulatory updates include the professional journals and nursing
organizations. In addition, in a hospital-based practice, the departments for risk management, quality, and/or legal affairs can help
the nurse keep abreast of changes.

Social networking

Social networking can have a significant impact on health care practice. Society has become adept at using computers, cell
phones, Facebook, and Twitter for exchange of information. However, the ease of exchange of information does not exempt the
health care provider from obtaining a HIPAA-compliant consent form. There have been cases of practitioners sharing an
interesting case or sharing health care information over social networking sites. Without the patient's consent, it is not appropriate
to share information, especially when the information is not shared on a secured network and is out there for the world to see.
This can result in civil and criminal penalties. Therefore, it is important to be aware that a HIPAA-compliant authorization must
be obtained for any exchange of health care information.

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 (Crego, 1999). 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.

Medicare Conditions of Participation 42CFR s 482 et seq

There are distinct requirements that must be met for a provider to participate in the Medicare program (ie, conditions of
participation [COP]). These COP are found in various codes of federal regulations (C.F.R.). They include COP for hospitals,
COP 42 C.F.R., 482 (2008); home health care agencies, COP 42 C.F.R., 484 (n.d.); comprehensive rehabilitation facilities, COP
42 C.F.R., 485 (n.d.); and requirements for long-term care facilities (Legal Information Institute, n.d.).

In addition, the Office of the Inspector General (2000) published its Compliance Program Guidelines to reduce the incidence of
pressure ulcers and malnutrition in long-term care facilities. These are especially important issues for WOC nurses who provide
or oversee care in these facilities. With an increasingly aging population, these regulations are important, especially because a
condition of payment for services by Medicare and Medicaid requires adherence to the Compliance Program Guidelines.
Moreover, failure to comply may result in criminal and civil liability as well as monetary penalties.

Elder abuse and neglect

Elder abuse has become a growing problem. Various states have mandatory requirements for reporting elder abuse and neglect.
To encourage reporting, many states have enacted immunity provisions protecting individuals who report abuse and/or neglect
from civil liabilities. Also, some states, in addition to having mandatory reporting requirements, include penalties for individuals
who fail to comply. Nurses are often observers of abuse or neglect and should be aware of reporting requirements.

The National Center on Elder Abuse (NCEA, n.d.), directed by the US Administration on Aging, is committed to helping
national, state, and local partners to be fully prepared to ensure that older Americans live with dignity, integrity, and
independence and without abuse, neglect, and exploitation. The NCEA is a resource for policy makers, social services, health
care practitioners, the justice system, researchers, advocates, and families. A visit to the Web site (http://www.ncea.aoa.gov)
provides phone numbers for each state where abuse can be reported.

Reporting child abuse

WOC nurses are in a unique position to identify and report suspected child abuse. Children who are chronically ill or require
wound care and/or ostomy care are at risk for abuse. Since the early 1970s, federal and state legislation has been enacted to
protect children from abuse. Those who report abuse are generally protected from liability.

Although federal statutes have been enacted regarding prevention of child abuse, it is largely the states that administer these laws
and take action. For example, according to the Child Protection Law (1975), the state of Michigan requires reporting
of any suspected abuse and does not allow a health care practitioner to make a medical judgment as to the cause of the abuse.
Rather, any suspected child abuse must be reported orally and a written report provided within 72 hours. Information may be
provided to the investigators in the written report regarding the suspected cause of abuse or neglect.

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.

Conclusion

In this chapter, a general overview of the legal aspects of nursing has been presented. The legal definition of the standard of care
for nurses is defined as that of what a reasonable and prudent nurse would do when caring for a same or similar patient in the
same or similar circumstances. The reason for having such a general definition is to allow for changes in the manner in which
nursing is practiced. Guidelines and hospital policies and procedures are more specific but may change from year to year. As a
result, the nursing care provided to a same or similar patient under the same or similar circumstance in one year is likely to be
different from care in previous or later years. For specific legal issues or questions, nurses are encouraged to seek guidance from
their facility's legal or risk management departments whose personnel are versed in local laws and regulatory requirements.