Legal Aspects of Nursing

Prepared by: John J. Teodoro PTRP, RN

Definition of Terms

Board of Registered Nursing

Each state has a Board of Registered Nursing organized within the executive branch
of the state government. Primary Responsibilities of the BRN include the administration of
the Nurse Practice Act as applied to registered nurses.

Authorization to Practice Nursing

To legally engage in the practice of nursing, an individual must hold on an active
license issued by the state in which he or she intends to work.

Nurse Practice Act

A series of statutes enacted by each state legislature to regulate the practice of
nursing in that state. Topics that are included are the following a. scope of nursing, education,
licensure, grounds for disciplinary actions & related topics.
a. Provides legal authority for nursing practice including delegation of nursing tasks.
b. Many boards of nursing also provide decision and delegation checklist.
c. Set educational requirements for the nurse distinguishing Nursing Practice
from Medical Practice & defines the Scope of Nursing.

ANA (American Nurses Association) of 1980

Incorporates the following elements that demonstrate in a nurse:
a. Human dignity & uniqueness of individual regardless of health problems
& socio-economic status
b. Maintain patients right for privacy & confidentiality
c. Maintain competence through ongoing professional development & consultation.

Ethical Principles of Bio-ethics

A philosophical field that applies ethical reasoning process for achieving clear &
convincing reasons to issues & dilemmas ( conflicting between two obligations)
1. Autonomy: the right of the patient to make one’s own decision
- Example: Religious Practices & Cultural Beliefs (Blood Transfusion &
Organ Donation)
2. Veracity: the intention to tell the truth
- Never give false reassurance to another person
3. Beneficence versus Non-malfeasance
a. Beneficence : duty to do good
b. Non-malfeasance: duty to avoid evil
4. Confidentiality: social contract in keeping one’s privacy

Standards of Care
 Guidelines for determining whether nurses have performed duties in a appropriate
manner & guidelines in which the nurse should practice

Patient’s Bill of Rights

Right for appropriate treatment that is most supportive & least restrictive
Right to individualized treatment plan, subject to review & treatment
Right to active participation in treatment with the risk and side effect of all medications
and treatment
Right to give and withhold consent/contracts
Contracts & Consent: it is the meeting o the minds between two or more persons
whereby one binds himself with respect to the other to give something or to render
some service.

Pre-requisites of a Valid Consent and Contract (OPEN- V)

O- Opportunity to ask questions (possible consequences of the procedure)

P- Physically & Mentally Competent & Mature ( 18 years old & up )
E- Explained the Procedures & Treatment Specifically
N- Nothing should be misunderstood by the patient (the patient should not be
allowed to sign the informed consent if she / he is pre-medicated or under the
influence of alcohol or drugs or mentally incapacitated
V-Voluntary Made (absence of force, fraud, deceit or duress ( force)

Exceptions to an Informed Consent (MEMO-S)

M –Married & Mature Minors
E- Emancipated minors (to release a child from the control of his parents)
Emergency Cases
M- Minors seeking birth control or pre-natal treatment
O- Over specific age (ex. 12 years old & above) may give consent for STD,
HIV testing, AIDS treatment, drugs & alcohol treatment WITHOUT
parents consent.
S- Sexually abused minors & adolescents

Right to refuse Treatment

1. Advance Directives: Legal, written or oral statements made by a

mentally competent person about treatment. In the event the person is unable
to make these determinations, a surrogate decision-maker can do so, example:
sudden serious illness.

Characteristics of Advance Directives

1. allows clients to participate in choosing health care providers

(Choosing his / her own nurses & doctors)
 2. allows also in choosing the type of medical treatments the client
desires.
3. Allows clients to consent or refuse treatments

The Patient Determination Act of 1990 (PSDA)

- is a federal law that imposes on states and providers of health care certain
requirements concerning Advanced Directives as well as client’s right under law to to
make decisions concerning medical care.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1990

- Medical Screening of patients cannot be delayed until insurance coverage or the

ability to pay has been determined. This is to assure that the patients are not
denied care based on their ability to pay , patients must be medically screened &
stabilized before their ability to pay is determined. Failure of a Hospital to comply may
result in denial of Medicare funding.

Example: All women patients having labor contractions must be medically screened &
stabilized before transfer to another facility. Whether it is obvious that the patient is in
labor or not, the patient must be medically screened & examined before the decision is
made to transfer the patient to another facility.
The emergency department does not have the right to refuse treatment to a patient before
medically screening the patient.

- It does not address payment for services as part of the admission procedure. It
only addresses medical screening & stabilization of patients before transport
or the determination of ability to pay for services rendered.

a. Living Will: legal document stating person does not wish to

have extra-ordinary life saving measures when not able
to make decisions about his own care.
-applicable FOR LIFE SAVING TREATMENT ONLY.
Example: CPR, antibiotics & dialysis will be used or not

b. Durable Power of Attorney: legal document giving designated

person authority to make health care decisions on the
client’s behalf when the client is unable to do so.

Right to obtain Advocacy Assistance

Patient Advocate: is a person who pleads for a cause or who acts on
the client’s behalf. Example: nurse
Goal of Advocacy: help client gain greater self-determination &
Encourage freedom o choices, increase sensitivity
& responsiveness of the health care, social, politi-
cal systems to the needs of the client.
 Example: advocates for HIV client rights for proper treatment & job
opportunities

CRIMES AFFECTING NURSES

I. Crime
- Act committed in violation of social law.

a. Tort (fraud, negligence & malpractice)

- Legal wrong committed against a person, his rights & property.

1. Fraud – misrepresentation of fact with intentions for it to be acted on by another

person ( such as falsifying graduate nursing programs)

2. Negligence
3. Malpractice

Negligence versus Malpractice

Definition: Definition:

- Unintentional failure of an individual - any professional misconduct which

person to perform an act or omission
to do something that a reasonable prudent
person would do or not do.
- Most common unintentional tort
- Failure to observe the protection of one’s
interest, the degree of care, and vigilance
of circumstances.
involves any conduct that exceeds
the limits of one’s professional stan-
dards means going beyond the context
or scope of allowed nursing practice
resulting to injurious or non-injurious
consequences.
- stepping beyond one’s authority

Example: Example:
a. Incorrect sponge counts a. prescribing drugs
b. burns: heating pads ,solutions & steam b. giving anesthesia
vaporizers c. doing surgery
c. failure to take & observe appropriate
actions – forgetting to take vital signs to
a newly post –operative client.
d. Falls: side rails left down, baby left
unattended
e. loss of or damage to a patient’s property
f. failure or ignore to report to the superiors or
client’s family
g. mistaken identity, wrong medicine, dose & route

ELEMENTS OF NEGLIGENCE LAWSUIT (B-R-O-D) ELEMENTS OF MALPRACTICE(p-r-e)

B- breach of duty was the cause of the P- professional SPECIFIC standards of care
 plaintiff’s injury is required
R- Real or actual proof injuries R- required obedience
to the standards of care
O- owed specific nursing duty E- exceeds the limits of the standards of care
D- defendant breach the duty

Intentional Torts
Assault Battery
-Mental or physical threat -physical harm through willful touching of
person or clothing without consent.
Example Example
a. threatening or attempting to do a. actually touching or wounding a
person in
violence to another offensive manner
b. forcing a medication or treatment b. hitting or striking a client
when the patient doesn’t want it c. immediately injecting a surgical
needle
c. threatening children to take the medication without informing the patient about
the said procedure

False Imprisonment

- occurs when the person is not allowed to leave a health care facility when there is no legal
justification to detain the client.
- occurs when restraining devices are used without an appropriate clinical need.
- The intentional confinement without authorization by a person who physically constricts
another using force , the threat of force or confining structures and or clothing , even without
force or malicious intent to detain another without consent in a specified area constitutes
grounds or a charge of false person from harming self or others if it is necessary to confine
to
define one self , others or property or to effect a lawful arrest.

Examples:

a. A Hispanic American patient undergo TAHBSO and has no Medicare or HMO card nor
nor any petty cash to pay hospital bills. The nurse put the patient in a room until the
relatives of the former arrive to pay the bills.

B. a Hong Kong OFW was suspected of having SARS. The ground duty nurse put the
patient
in a secluded room without doctors order and checked for other manifestations to
confirm
the presence of SARS. After 9 hours, it was just an ordinary cough and colds.

c. A client was tested positive for HIV. Nurse Hamilton learned that this is highly contagious
& communicable disease. The nurse locked the client inside a room.
 Legal aspect regarding Restraints

Restraints are protective devices used to limit the physical activity of a client or to immobilize
a client or an extremity.
Physical restraints: restrict client movement through the application of a device.
Chemical restraints: Medications given to inhibit a specific behavior or movement.

Under Omnibus Budget Reconciliation Act: any client or patient has the right to be free from
Physical (such as restraint jackets) and chemical (sedation, psychotropic drugs) restraints
Imposed for the purpose o discipline or convenience and should not be required to treat
medical
or psychiatric symptoms.

Lawful Requirements & Nursing Actions for Using Restraints

According to (JCAHO) Joint Commission on ACCREDIATATION OF
HEALTHCARE ORGANIZATIONS

1. RESTRAINTS SHOULD NOT BE USED PRN!!!

2. Informed consent and a Doctors order is needed to use restraints.
3. Doctors orders for restraints should be renewed within a specific time frame
according to the agencies policies.
4. Restraints should not interfere with any treatments or affect the client’s health
problems.
5. Document the following:
Reason for the restraints
Method of restraints
Date and time of application
Duration of use and clients response
Release from the restraints (every 30 minutes) with periodic exercise and
Circulatory, neurovascular and skin assessment
Evaluation of client’s response
6. DON’T ASK PERMISSION IF THE PATIENT HAS AN ALTERED LEVEL
OF CONSCIOUSNESS!!!
7. If the client is unable to give consent to a restraint procedure, then consent of proxy
must be obtained AFTER FULL DISCLOSURE OF ALL RISK AND BENEFITS.
8. Use a clove hitch knot so that restraint can be changed and release easily and
ensure
that there is enough slack on the straps to allow some movement o the body part.
9. Never secure restraints to bed rails or mattress. Secure restraints to parts of the bed
or
chair that will move with client & not constrict movement.
 ALTERNATIVES TO RESTRAINTS

1. Before restraints offer explanations, ask someone to stay with the client, use clocks,
calendars, TV & radio ( to decrease disorientation) or any relaxation techniques.
2. Use LESS restrictive methods first. RESTRAINTS should always be the last.
3. Assign confuse and disoriented clients to rooms near the nurse’s station.
4. Maintain toileting routines & institute exercise and ambulation schedules as the client
condition allows.

QUESTION: Can I put restraints on a patient who is combative I there is no order for this?
Only in an EMERGENCY, for a limited time (no longer than 24 hours)
For the limited purpose of protecting the patient from injury – NOT FOR
CONVENIENCE OF Personnel. Notify the attending MD immediately, consult
with another staff member, obtain patients consent if possible, and get a co-
worker to witness the record. RESTRAINTS OF ANY DEGREE MAY CONSTI-
TUTE FALSE IMPRISONEMENT. Freedom from any UNLAWFUL restraint is
a
Basic human right protected by law. In July 1992 the FDA (Food and Drug
Admi-
nistration) issued a warning that the use of restraints is – NO LONGER
REPRESENTS RESPONSIBLE PRIMARY MANAGEMENT of a client’s
behavioral problem.

Writing an Incident Report

- A tool used as a means of identifying and improving client care. They are usually made
immediately after its occurrence and validated immediately by co-workers.
- the real purpose is to provide accurate documentation of occurrences affecting the client as
to have basis for its intervention.
- it is usually made as a comprehensive & accurate report on any unexpected or unplanned
occurrence that affects or potentially affects his family or other members of the health
team.

The following are common situations that require an incident report:

MOST OF THEM ARE NEGLIGENT NURSING ACTS
a. Falls , Burns & medication error
b. Break in the aseptic technique
c. Incorrect sponge count during surgery
d. Failure to report the clients condition

Rules in Incident Report

Don’t use the word error or include lawful judgment or inflammatory words
Legal Rules on Documentation, Charting & MD’s Order

Documentation
- Legally required by accrediting agencies, state licensing laws and state nurse and medical
practice acts.
-required for insurers reimbursement
- legal documentation that signifies proper communication about the patients condition

Question: What should be written in the nurses notes?

All facts and information regarding the patients condition, treatment, care, progress
and
response to illness and treatment.
Document consent or refusal of treatment.

Question: How should data be recorded? Entries should:

1. State date and time given.
2. be written, signed & titled by caregiver or supervisor who observed action
3. follow chronological sequence
4. Be accurate, factual, objective, complete , precise and clear
5. Use universal abbreviations. Example: prn, b.c.
6. be legible; black pen
7. Have all spaces filled in, leave no blank spaces.
8. Avoid judgmental or evaluative statements such as “ uncooperative client”
9. Do not document for others or change documentation for other individuals

Question: Should I accept verbal phone orders from an MD?

Generally, NO. Specifically, follow your hospitals by laws, regulations and policies
regarding this. Failure to follow the hospital’s rules could be considered NEGLIGENCE.
In cases when verbal orders are deemed necessary the following outline may find
helpful
REGARDING TELEPHONE ORDERS:
1. date and time entry
2. repeat the order to the MD & record the order
3. sign the order, begin with t.o. ( telephone order), write the MD’s name & then
signature the order
4. if another nurse witnesses the order, that signature follows
5. The physician needs to countersign the order within the time frame according to
hospital or agency policy.

Question: Should I follow an MD’s order if I know it is wrong? ]

No. If you think a reasonable prudent nurse would not follow it; but first inform the MD
and record your decision. Report it to your supervisor.

Should I follow an MD’s order if I disagree with his or her judgment?

 Yes. Because the law does not allow you to substitute your nursing judgment for a
doctors medical judgment. Do record that you questioned the order and that the doctor
confirmed it before you carried it out. In order to be safe, check the agency policy manual of
your work.
Question: What can I do if the MD delegates a task to me for which I am not prepared?
Inform the MD of your lack of medication and experience in performing the task.
Refuse to do it. If you inform him or her and still carry out the task, both you and the MD
could be considered NEGLIGENT if the patient is harmed by it. If you do not tell the MD and
carry out the task, you are solely liable.

Liability for Mistakes

Question: Is the hospital or the nurse liable for the mistakes made by the nurse while
following orders? Both the nurse and hospital can be sued for damage if a mistake made by
the nurse injures the patient. The nurse is responsible for his or her own actions. The hospital
would be liable, based on the doctrine of Respond eat Superior.

Question: For what would I be liable if I voluntarily stopped to give care at the scene of an
accident? The GOOD SAMARITAN ACT – protects health practitioners against malpractice
claims resulting from assistance provided at the scene of an emergency ( UNLESS THERE
WAS WILLFUL DOING) as long as the level of care provided is the same way as any other
reasonably prudent person would give under similar circumstances. It also encouraged
health care professionals to assist in emergency situations without fear of being sued for the
care provided. These laws limit liability and offer legal immunity for people helping in an
emergency, providing they give reasonable care.

Organ Donation
Requirements:
a. Any person 18 years of age or older may become an organ donor by written consent.
b. Informed choice to donate an organ can take place with the use of a written document
signed by the client prior to death, a will, or a donor card or an advance directive.
c. In the absence of appropriate documentation, a family member or legal guardian may
authorize donation on the descendant’s organs.
d. In case of newborns, they must be full term already ( more than 200 grams)
Laws that Protect potential donors to Expedite acquisition:
1. National Organ Transplant Act: prohibit selling of organs
2. Uniform Anatomical Act: guidelines regarding who can donate, how donations are to
Be made, and who can receive donated organs.
3. Uniform Determination Death Act: Legal determination of brain death ( absence of
breathing movement, cranial nerve reflex, response to any painful stimuli and cerebral
blood flow and flat EEG.
Management of Donor
1. Maintain body temperature at GREATER than 96.8 F with room temperature at 70 -80 F
warming blankets, warmer for IV fluids.
2. Maintain greater than 100% PaO2 and suction/ turn & use (PEEP) positive End
expiratory pressure to prevent hypoxemia caused by airway obstruction & pulmonary
edema.
3. Maintain CVP (Central Venous Pressure) at 8 to 10 mm Hg and systolic blood pressure
at greater than 90 mm Hg to prevent Hypotension.
4. Maintain Fluid & Electrolyte balance due to volume depletion
5. Prevent infections due to invasive procedures.
Religions that have different views regarding organ donations
1. Russian Orthodox: permits all donations EXCEPT THE HEART.
2. Jehovah’s Witness: DOES NOT ALLOW organ donation and all organ to be
transplanted must be drained of blood first.
3. Judaism: They permit organ donation as long as with RABBINICAL CONSULTATION.
4. Islam: will NOT USE ORGAN STORED IN ORGAN BANKS.

Do not Resuscitate (DNR)

Factors in giving order of resuscitation:
1. Client’s will and advance directives
2. Disease Prognosis such as cancer or HIV
3. Client/s ability to cope
4. Whether CPR will be given or not
Reasons for refusing to perform resuscitation
1. Epidemic or widespread disease or debilitating condition & that CPR is not beneficial
2. CPR will aggravate or prolong the agony of the client
3. against cultural & religious suffering
4. Advance directives & Will

Voluntary Admission versus Involuntary Admissions

Voluntary Admissions:
Requirements & By Laws
a. Lawful or of legal age
b. If the client is too ill, a guardian is possible
c. Client agrees to accept the treatment
d. The client is free to sign him or herself out of the hospital- Has the right to demand &
receive RELEASE.

Involuntary Admissions
Requirements & By Laws
a. Deemed necessary for the following reasons & criteria:
1. Danger to self & others
2. need psychiatric or physical care
3. State laws have been determined legally by the state
b. The client who is involuntarily admitted does not lose his or her right of informed
consent.
 Question: What is the meaning of Conditional Release?
- usually requires outpatient treatment for a specified period of time to determine the
client’s compliance with medication protocol , ability to meet basic needs and
ability
to reintegrate to community.

Other Laws to be Remembered

Tarasoff Act- if there are manifestations that a patient has some suicidal tendencies, it is the
duty on the part of the nurse of a threatened suicide or possible harm or threat to others.
There must be the proper dissemination of information to other members of the health care
team.

Occupational Safety & Health Act- requires that an employer provide a safe work place for
employees according to regulations. Employees can confidentially report UNSAFE
WORKING CONDITIONS that violate regulations. A PERSON WHO DOES NOT REPORT
UNSAFE WORKING CONDITIONS CAN BE RETALIATED AGAINST BY THE EMPLOYER.

M’Naghten Rule (1832) - a person is guilty if:

a. person did not know the nature and quality of the act
b. Person could not distinguish right from wrong, if the person does not know what she /
he is doing or a person does not know it was wrong.

Irresistible Impulse Test (used together with M,Naghten Rule) – person knows right from
wrong, but:
a. Driven by impulse to commit criminal acts regardless of consequences.
b. Lack premeditation in sudden violent behavior.