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protection in litigation: Nurse Practice Act

state specific, list violations that can have disciplinary actions, school of nursing licensure, licensure requirements

Michigan Nurse Practice Act (5)

1. most important statutory law affecting nursing practice in state
2. defines practice
3. sets minimum educational requirements for licensure
4. determines titles & abbreviations
5. disciplinary action

protection in litigation: Credentialing (3)

1. accreditation:
a. state board of nursing legal accreditation for nursing schools
b. voluntary accreditation thru NLNAC, AACN
2. certification- voluntary:
a. specialty knowledge, experience, clinical judgment
3. Licensure:
a. legal document for entry level competence
b. #1 reason for losing license = etoh & drug abuse

unintentional torts (civil) - 2

1. Negligence
2. malpractice

unintentional tort: Negligence

perform an act that a reasonably prudent person in a similar circumstance would not do - or - fail to perform an act that a reasonable prudent person in a similar circumstance would do

unintentional tort: malpractice

1. NEGLIGENCE by professional personnel (insert "nurse" under negligence definition)

malpractice elements (4)

Lawyer has to prove
1. duty = reasonably prudent nurse would do (easy to prove)
2. breach of duty = failure to meet the standard of care (easy to prove)
3. causation = very difficult to prove. the breach use directly cause the injury
4. damages = actual harm & injury resulted for the patient

defendant

named in a legal case & you should have legal counsel (personal liability insurance attorney or the employing agency attorney)

fact witness

called to testify (important to have accurate medical documentation)

expert witness

called by defense or prosecution as a specialist

crime

1. wrong against a person and/or public
- state punishes
-felony = imprisonment > 1 year
-misdemeanor = imprisonment < 1 year, fines, paroles

tort

1. person to person wrong
- civil court, usually money fines, not imprisonment

intentional torts

assault/battery, defamation of character, invasion of privacy, false imprisonment, fraud

assault

threat or attempt to make bodily contact w/o persons permission

battery

assault that is carried out (action/intent), willful, angry, violent, neglectful touching of another person's body/clothes, attached or held by that person

defamation of character

- intentional tort
- make derogatory remarks that diminish reputation

slander

-intentional tort
oral defamation

libel

-intentional tort
written slander

false imprisonment

-intentional tort
-unjustified retention & prevention of movement by a person without consent
-reasonable restraint

fraud

-intentional tort
-purposeful & willful representations causes loss or harm to person
-outcome of a procedure

informed consent (2)

1. is obtained:
- on admission
- each specialized diagnostic procedure
- each medical surgical treatment
- experimental treatments
2. respons. of the person who will perform the diagnostic/treatment/procedure/research to explain & obtain signatures

nurses role in informed consent (6)

- nurses not responsible
- confirm consents are signed before procedures
- answer patient questions
- be part of a collaborative team
- sign forms as witness
- document refusals to sign & notify providers

invasion of privacy (3)

1. all information about patients is confidential & private (written, spoken, saved on a computer)
2. including all identifiers (ss#, phone #, address), reasons to seek care, past conditions
3. HIPPA

HIPPA (5)

- health insurance portability & accountability act (1996, 2000, 2002)
-healthcare workers must have HIPPA training
-patients sign to release medical records or health info
-privileged (protected) communication is not determine by state law. MI doesn't protect nurse patient privilege
-fines & jail if patient privacy is violated for $ gain

Nurses that are skilled in legal/ethical competence (7)

1. trusted - most important skill
2. advance the interests of their patients, focus on patients
3. accountable for their practice, can't delegate responsibility
4. patient advocates
5. mediate ethical conflicts
6. practice according to SOP, ethics code
7. use legal safeguard to reduce litigation

trust (9)

1. nurse has a specific purpose in caring for the patient (assessment, procedure, teaching)
2. provides comfortable environment
3. considers & protects privacy
4. considers & protect confidentiality
5. focuses on the patient, not the task
6. makes accurate observations
7. paces interventions
8. considers & protects personal space
9. considers & protects cultural issues

ethics (3)

1. systematic inquiry into the principles of right/wrong conduct, good/evil, virtue/vice as they relate to conduct
2. morals: personal/communal standard of right & wrong
3. ethical dilemma: 2 courses of actions that conflict

morals

personal/communal standard of right & wrong, standards of behavior (ex. one should not lie)
-rules of conduct to be used in situations where a decision about right & wrong need to be made
- are learned over time and are influenced by life experiences & cultures

ethical dilemma

2 courses of actions that conflict

3 types of ethics

1. metaethics = (beyond ethics) universal truths
2. normative ethics = (each person has their own) moral standards
3. applied ethics

metaethics

(beyond ethics) universal truths
- where & how ethic principles are developed

normative ethics

(each person has their own) moral standards
-focus on the moral standards that regulate behaviors

applied ethics

-focus on specific difficult issues, such as euthanasia, capital punishment, abortion & health disparities

bioethics

-focuses on responsible research, genetic enhancement, environmental ethics, sustainable healthcare issues
-application of ethical theories & principles to moral issues or problems in health care

clinical ethics

problems & concerns from caring for actual patients (bedside issues, ex. no MRI because insurance won't cover)

nursing ethics

cost containment issues that jeopardize patient welfare, EOL decisions, patient confidentiality breaches, incompetent/unethical/illegal practices by colleagues

kohlbergs moral development theory (3)

1. Preconventional =
-self-centered, responds to punishment. "won't hurt her is she doesn't know". do the right thing b/c you don't want the punishment & that's the only reason
- under 9 years old, adult criminals
2. conventional =
- personal reward, b/c it is the law. (don't do something b/c it's against the law)
- makes moral choices to please family/society (so you don't embarrass yourself)
- most adol/adults
3. Postconventional
- self sacrifice, own moral values, rare, high IQ

Gilligan theory (2)

1. male: justice oriented
2. female: goodness, caring
- 3 levels of development 1. orientation to individual survival 2. focus on goodness w/recognition of self-sacrifice 3. morality of caring & being responsible for others, as well as self

Ethical Theory: principle based approach (6)

1. Principle based approach
- Autonomy: self determination
- Nonmalficience: do no harm or prevent harm
- Beneficience: act in the best interest of the patient, not what's best for the nurse
- Justice: treat all fairly
- Fidelity: keep promises, confidentiality
- Veracity: to tell the truth

Resources for ethical conflicts (4)

1. ANA 2006 code of ethics
2. ICN 2006 code of ethics
3. AHA 2003 The Patient Care Partnership
- Patient Bill of Rights (1972)
4. ANA 2001 Bill of Rights for Nurses

3 approaches to Ethical decision making

1. Deontological: duty and role focused, one right answer, Judeo-Christian origins = never face an ethical dilemma (ex. abortion is never okay)
2. Teleological: outcome & result focuses, majority rule, end justifies the means (ex. abortion may reduce the number of unwanted kids)
3. Situational: humanistic, Judeo-christian origins, each case is unique

approach to Ethical decision making: Deontological

duty and role focused, one right answer, Judeo-Christian origins = never face an ethical dilemma (ex. abortion is never okay)

approach to Ethical decision making: Teleological

outcome & result focuses, majority rule, end justifies the means (ex. abortion may reduce the number of unwanted kids)

approach to Ethical decision making: Situational

humanistic, Judeo-christian origins, each case is unique

Ethical dilemma

2 or more clear moral principles that apply, each principle supports different actions

ethical distress

the nurse knows the right thing to do but personal or institutional factors make it difficult (retaliation, firing)

Addressing ethical problems

JACHO mandates that all accredited agencies have mechanisms for addressing ethical issues

How to avoid legal issues (3)

developing trusting nurse patient relationships, practice within your scope of practice, identify potential liabilities in your practice and prevent them

law

standard or rule of conduct established and enforced by the government

litigation

process of bringing & trying a lawsuit in a court

plaintiff

brings the suit

defendent

accused

reporting practices (2)

1. ANA 2001 code of ethics
-obligates the nurse to report unprofessional conduct
-incompetent, unethical, illegal
-impaired
2. current laws may not protect whistle blowers

Other legal issues (2)

1. contracts = nurse patient contract is implied & nurse may have an employment contract
2. collective bargaining = unions: state nurse association or trade organizations
-patient nurse ratios: are 18% higher in the most unionized cities as compared to cities with the lowest level of nurse unionization
-protection of nurses that report safety violations
- nurses who are union members enjoy 13% wage boost. nurses wages are higher in cities with a stronger union presence, for both union members & nonunion members

collective bargaining

participation in nursing union is increasing and may lead to improved patient outcomes b/c of increased job satisfaction among nurses & increased safety measures designed to protect both nurses & patients

Legal safeguard: competent practice

1. most important & best legal safeguard

Legal safeguard: competent practice & most frequent malpractice allegation (9)

1. failure to ensure safety
2. improper treatment
3. failure to monitor & report
4. medication errors
5. failure to follow agency procedure
6. documentation
7. equipment use
8. adverse incidents
9. HIV clients

legal safeguards: Patient education

negligence = failure to conduct or document learning needs/teaching
-document refusal of teaching by patient

legal safeguards: physician orders

State Nurse Practice Act determines who can write orders, know hospital policy, verbal or phone orders signed within 24 hours, nurse must question orders if contradicted or ambiguous.
- telephone orders only in emergency, repeat order back for confirmation, 2 nurses listen & both nurses sign the order

legal safeguard: documentation (3)

1. must be factual, accurate, complete, entered in a timely fashion
2. if it is not documented it was not done
3. avoid incriminating remarks
-document: time doctor was called, time of response or no response, subsequent nursing action (supervisor), patient noncompliance, family/SO noncompliance, nurses attempt to increase compliance

legal safeguard: understaffing

nurses are held to a professional standard of judgment
- if a nurse accepts the responsibility of the work & delegates responsibilities to others, the nurse cannot claim "overworked, understaffed" as a defense if a patients claims negligence

other legal safeguards: (3)

1. professional liability insurance
2. risk management programs: safety & QA
3. incident/variance/occurrence reports: anything occurs out the ordinary that harms or may harm patient, employees, visitors
- fill out incident form: identifies risks, quality improvement, not disciplinary actions (suppose to be trending info)
- document in medical records: do not mention in medical record that an incident from was filled out

JACHO 2008 Sentinel events

1. unexpected occurrence that results in death or serious injury that needs immediate investigation & response

top 10 Sentinel events

1. wrong surgery site
2. suicide
3. delay in treatment
4. foreign body retention
5. falls
6. op/post-op complications
7. medication errors
8. assault/rape/homicide
9. perinatal death
10. equipment

nursing & other legal issues (4)

1. patient bill of rights
2. good samaritan laws: (only lay people, not nurses)
- MI has good samaritan law
- in non-employed situations the nurses has no legal obligation to help another person = no duty to care, ethical responsibility?
3. wills: nurse ensure voluntary, sound mind & witness signature
4. placebos: ANA nurses have legal/ethical grounds for refusing to administer placebos

nursing student liability (5)

1. nursing students are held to the same standard of care as an RN
2. nursing students are considered a hospital employee
3. responsible to:
-notify instructor/staff changes in their patient
- familiar with the agencies policies & procedures
- duty to notify instructor is unprepared
4. nursing instructor may share student's responsibility
5. many nursing schools require students to have malpractice insurance

other laws directly affecting nursing

1. OSHA
2. National Practitioner Data Bank: list licensed professionals malpractice, adverse licensure action
3. Reporting obligations: abuse, communicable disease, neglect, abandonment
4. controlled substances
5. impaired nurses
6. title VII: discrimination/sexual harassment
7. American disability Act (ADA); reasonable accommodation

values

- attitudes, ideals or belief that an individual or a group holds & uses to guide behaviors
- usually expressed in terms of right & wrong, hierarchy of importance or how you should behave

ethics - principle based approach: autonomy

- self determination
- based on individual's values, adequate info, freedom from coercion, and reason & deliberation
ex. refusing treatment, giving consent for treatment or procedures, obtaining info re: results of tests, diagnosis & treatment options

ethics - principle based approach: nonmalficence

-do no harm or prevent harm
-foundation of the Hippocratic Oath
Ex. difficult in that some therapeutic interventions carry risks of harm for the patient but eventually produce a great good (ex. chemotherapy)

ethics - principle based approach: beneficence

act in the best interest of the patient, not what is in the best interest of the nurse.
- it may be for the good of the patient, but not what the patient wants. Ex. a babysitter at night, but patient doesn't think they need one.
- may conflict w/autonomy. Ex. patient needs treatment (beneficence), but they decide not to do it (autonomy)

ethics - principle based approach: justice

treat all fairly

ethics - principle based approach: fidelity

keep promises, confidentiality

ethics - principle based approach: veracity

to tell to the truth

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