Exam 3 - Law & Liability

What is statutory law?
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Terms in this set (100)
What is statutory law?
Consists of laws written and enacted by Congress; the state; and other governmental entities such as cities, counties and townships.
What are statutes?
Laws passed by a government's legislature and signed by its chief executive. Laws that govern the nursing profession are statutory laws.
What are ordinances?
Local or municipal law
What is common law?
Laws based on past judicial judgments made in similar cases. Usually extends beyond scope of statutory law. Example: it isn't part of the statutory law that says when a doctor is negligent, that the injured should get money, but precedent has been set repeatedly that they do. Common law or case law develops over a long period of time. Generally, common law deals with matters outside the scope of laws enacted by the legislature.
What is precedent?
Decision previously issued by a court that is used as the basis for a decision in another case with similar circumstances
What are criminal laws?
Law concerned with violation of criminal statutes or laws. Concerned with providing protection for all members of society. When someone is accused of violating a criminal law, the government at the county, city, state or federal level imposes the punishment appropriate. Involves a wide range of malfeasance, from minor traffic violations to murder. Criminal law is either a felony or a misdemeanor.
What is crime?
violation of a criminal law
What is a common way that nurses can become involved in the criminal system?
The most common way is to fail to renew your nursing license; this is practicing without a license and is a crime in all states. Another way is to become involved with the illegal diversion of drugs, particularly narcotics, from the hospital. This is more serious and can lead to imprisonment. Intentional or unintentional deaths of pts and assisted suicide cases have also led to criminal action against nurses.
What is malfeasance?
Performance of an illegal act
What are misdemeanors?
Less serious crime than a felony; punishable by a fine of less than $1000 or a jail term of less than 1 year
What are felonies?Serious crime that may be punished by a fine of more than $1000, more than 1 year in jail or prison, death or a combination of thereof.What is a criminal action?Process by which a person charged with a crime is accused, tried, and punished.What is civil law?law concerned with the violation of the rights of one individual by another; it includes contract law, treaty law, tax law, and tort law.Who is the plaintiff?an individual who charges another individual in a court of law with a violation of the individual's rights; the party who files the complain in a lawsuitWhat is the "answer" to a complaint?Document filed in the court by the defendant in response to the complaintWhat is the burden of proof?requirement that the plaintiff submit sufficient evidence to prove a defendant's guiltWhat is a tort?a violation of the civil law that violates a person's rights and causes injury or harm to the individual. Civil wrong independent of an action in contract that results from a breach of a legal duty; a tort can be classified as unintentional, intentional or quasi-intentional. Can involve different types of actions, including a direct violation of a person's legal rights or a violation of a standard of care that cause injury to a person.What is a tortfeasor?person who commits a tortWhat is liable?obligated or held accountable by lawWhat are damages?money awarded to a plaintiff by a court in a lawsuit that covers the actual costs incurred by the plaintiffWhat is an unintentional tort?a wrong occurring to a person or that person's property even though it was not intended; negligenceWhat is negligence?failure to perform at an expected level of functioning or the performance of an inappropriate function resulting in damages to another party; not doing what a reasonable and prudent person would do in a similar situationWhat are the four elements that are required for a person to make a claim of negligence?1) a duty was owed to the client (professional relationship) 2) the professional violated the duty and failed to conform to the standard of care (breach of duty) 3) The professional's failure to act was the proximate cause of the resulting injuries (causality) 4) Actual injuries resulted from the breach of duty (damages)What is omission?failure to fulfill a duty or carry out a procedure recognized as a standard of care; often forms the basis for claims of malpracticeWhat is nonfeasance?failure to perform a legally required dutyWhat is malpractice?negligent acts by a licensed professional based on either omission of an expected action or commission of an inappropriate action resulting in damages to another party; not doing what a reasonable and prudent professional of the same rank would have done in the same situation. It is more serious than negligence because it indicates professional misconduct or unreasonable lack of skill in performing professional duties.What are common actions that nurses can find themselves getting sued for malpractice for?leaving foreign object inside a pt. Failing to follow hospital standard or protocol. Not using equipment in accordance with the manufacturer's recommendations. Failing to listen and to respond to a client's complaints. Not properly documenting phone conversations and orders from physicians. Failing to question physician orders when indicated (too large medication dosages, inappropriate diets). Failing to clarify poorly written or illegible physician orders. Failing to assess and observe a pt. Failing to get informed consent. Failing to report a change in a pts condition. Failing to report another health care workers incompetency or negligence. Failing to take actions to provide safety to pts such as not cleaning up a liquid spill on the fall that causes a patient to fall. Failing to provide the pt with sufficient and appropriate education before discharge.What is duty?obligation to act created by a statute, contract, or voluntary agreementWhat is proximate cause?Nearest cause; the element in a direct cause and effect relationship between what is done by the professional and what happens to the client. For example, when a nurse fails to raise the side rails on the bed for a pt who just got a narcotic, and the pt falls out of bed and breaks a hip as a result.What is an expert witness?An individual with knowledge beyond the ordinary person, resulting from special education or training, who testifies during a trialWhat is incompetency?Inability of an individual to manage personal affairs because of mental or physical conditions; the inability of a professional to carry out professional activities at the expected level of functioning because of a lack of knowledge or skill or because of drug or alcohol abuseWhat are out of pocket expenses?Amount the client is responsible for paying for a health care service.What happens if the nurse if found liable for malpractice?May be required to provide money to the pt for general damages that were a direct result of the injury, including pain, suffering, disability, and disfigurement. Also, the nurse is usually required to pay for special damages that resulted from the injury such as all involved medical expenses, out of pocket costs, and wages lost by the pt when they were in the hospital. Optional damages, including those for emotional distress, mental suffering, and counseling expenses that were an outgrowth of the initial injury , may be added to the total settlement. If the pt is able to provide that the nurse acted with conscious disregard for the pt safety or acted in a malicious, willful, or wanton manner, an additional assessment of punitive or exemplary damages may be added to award.What is an intentional tort?a willful act that violates another person's rights or property and may or may not cause physical injury. Most common intentional torts are assault, *battery*, false imprisonment, abandonment, and intentional infliction of emotional distress. With intentional torts, the injured person does not have to prove that an injury has occurred, nor is the opinion of an expert witness needed.What are the three ways that an intentional tort can be distinguished from malpractice and acts of negligence?1) the nurse must intend to bring the consequence of the act 2) the nurses act must be intended to interfere with the pt or the pts property 3) the act must be a substantial factor in bringing about the injury or consequences.What is assault?an overt threat to violate the person's right to self determination or to an overt threat of bodily harm coupled with an apparent, present ability to cause the body harm. The actual production of harm is "battery"What is battery?Non consensual touching of another personal that does not necessarily cause harm or injryWhat is a common example of assault and battery in the nursing world?Restraining a client against their will and administering an injection against their wishes.What is false imprisonment?An intentional tort committed by illegally confining or restricting a client against their will. Mentally impaired pts can be detained against their will only if they are at risk for injuring themselves or others. The use of threats or medications that interfere with the pts ability to leave the facility can be considered false imprisonment.What is intentional infliction of emotional distress?A common intentional tort. To prove this, the following three elements are needed: 1) the conduct exceeds what is usually accepted by society 2) the health care provider's conduct is intended to cause mental distress 3) The conduct actually does produce mental distress. If the nurse is charged with assault, battery, or false imprisonment is also at risk for being charged with this.What is abandonment?Leaving a client without the client's permission; terminating the professional relationship without providing for appropriate continued or follow up care by another equally qualified professional. The nurse-client relationship continues until it is terminated by mutual consent of both parties. From an ethical standpoint, the issue of abandonment falls under the umbrella of beneficence. From a legal view, it is considered an intentional tort, breach of contract, or in some cases in which injury occurs, malpractice. The key words are *without adequate notice* so if the pt knows the nurse's shift ends at 7, the pt has adequate notice. The growing practice of emergency client diversion, occurring when facilities can no longer safely care for emergency pts because of lack of space or staffing, can potentially fall under the legal definition of abandonment.When is abandonment the hospital's problem and not the nurses?It is not uncommon for nurses to be approached by a supervisor telling them "everyone else called in you have to work a double or you could be charged with client abandonment". In this case, it is the hospital's responsibility and not the nurses.If a nursing staff goes on strike, is it considered abandonment?If there is adequate notice about the strike and if the facility has had time to make arrangements for care or discharge of pts , no client abandonment takes place.What is a quasi-intentional tort?a violation of a person's reputation or personal privacy. A mixture of unintentional and intentional torts. It has the elements of violation and causation without the element of intent. Usually involves situations of communication and often violates a person's reputation, personal privacy or civil rights.What is defamation of character?Communication of information that is false or detrimental o a person's reputation. It is the most common quasi-intentional tort. Defamation injures a person's reputation by diminishing the esteem, respect, good will, or confidence that others have for the person. It includes slander and libel. To win a defamation lawsuit against the nurse, the pt must prove that the nurse acted maliciously, abused the principle of privileged communication, and wrote or spoke a lie. Medical records are primary sources of defamation of character; discussion of a pt in a public area can lead to lawsuits if negative comments are overheard.What is slander?oral defamation of characterWhat is libel?written defamation of characterWhat is privileged communication?information imparted by a client to a physician, lawyer, or clergyman that is protected from disclosure in a court of law. Communication between a client and a nurse is not legally protected, but nurses can participate in privileged communication when they overhear information imparted by the client to the physician. Nurses who overhear privileged info are held to the same standards as a physician with regard to the info. Privileged info can only be disclosed if it is authorized by the pt.What is invasion of privacy?Type of quasi-intentional tort that involves (1) an act that intrudes into the seclusion of the client, (2) intrusion that is objectionable to a reasonable person, (3) an act that intrudes into private facts or published as facts or pictures of a private nature, and (4) public disclosure of private information. Examples: using pt's name or picture for the sole advantage of the health care provider, intruding into the pts affairs without permission, giving out private pt info over the phone, and publishing info that misrepresents the pts condition.What is confidentiality?Right of the client to expect the communication with a professional to remain unshared with any other person unless a medical reason exists or unless the safety of the public is threatened.What is charting?Process of recording (written or computer generated) specific information about the client in the chart or medical recordWhat is the statue of limitations?Specific time period in which a lawsuit must be filed or a crime must be prosecuted; most nursing or medical lawsuits have a 2 year statute of limitations from the time of discovery of the incident.What is a legal complaint?Document filed by a plaintiff against a defendant claiming infringement of the plaintiffs legal rights. Written complaint describes the incidence that initiated the claim of negligence against the nurse. Specific allegations, including amount of money sought for damages are also stated. The plaintiff, who is usually a pt or a family member of the pt, is the alleged injured party and the defendant is the person or entity being sued. The first notice of a lawsuit occurs when the defendant is officially notified or served with the complaint.What is due process?Right to have specific procedures or processes followed before the deprivation of life, liberty, or property; the guarantee of privileges under the 5th and 14th amendment to the U.S. ConstitutionWhat is the "answer" to being served?The defendant must respond to the allegations stated within the complaint wihtin a specific time frame. The written response by the defendant is the "answer". If the nurse has liability insurance, the insurer will assign a lawyer to represent the defendant nurse. In the answer, the nurse can outline specific defenses to the claims against them.What is "discovery"?After the complain and answer are filed, the discovery phase beings. The purpose is to uncover all info relevant to the malpractice suit and the incident in question. The nurse may be required to answer a series of questions that relate to the nurse's educational background and emotional state, the incident that led to the lawsuit, and any other pertinent info. The plaintiffs lawyer may seek for production of documents r/t the lawsuit including medical records, incident reports, card file, the institutions policy/procedure manual, and nurse's job description. Plaintiff is also required to disclose info as part of the discovery process including the plaintiff's past medical hx.What are interrogatories?Written questions directed to a party in a lawsuit by the opposing side as part of the discovery processWhat is a deposition?sworn statement by a witness that is made outside the courtroom; sworn depositions may be admitted as evidence in court when the individual is unable to be presentWhat is hearsay?evidence not based on personal knowledge of the witness and usually not allowed in courtsWhat is testimony?oral statement of a witness under oathWhat is impeaching the witness?If a witness during the trial changes testimony from that given at the deposition, the deposition can be used to contradict the testimony. This can create doubt about that witness's credibility and weaken other areas in the witness's testimony.What is an affidavit?written, sworn statementWhat is perjury?crime committed by giving false testimony while under oathWhat is a trial?legal proceedings during which all relevant facts are presented to a jury or judge for legal decisionWhat is jurisdiction?authority of a court to hear and decide lawsuitsWhat are subpoenas?court document that requires an individual to appear in court and provide testimony; individuals who do not honor the subpoena can be held in contempt of court and jailed or finedWhat is a summary judgement?decision by a judge in cases in which no facts are in disputeWhat is an appellant?person who seeks an appealWhat is compensatory damages?awards that cover the actual cost of injuries and economic losses caused by the injury in a law suit including all medical expenses r/t the injury and any lost wages or income that resulted from extended hospitalization or recovery period. Also called "actual damages"What are general damages?monetary awards in a lawsuit for injuries for which an exact dollar amount cannot be calculated including pain and suffering, loss of companionship, shortened life span, loss of reputation, and wrongful death.What are punitive damages?Money awarded in a law suit in addition to compensatory and general damages when the actions that caused the injury to the pt were judged to be willing, malicious or demonstrated an extreme measure of incompetence and gross negligence. The primary purpose is to "punish" the plaintiff and deter them from ever acting in the same way again. Also called "exemplary damages"What are treble damages?A provision in the laws of some states that allows the judge, in certain instances, to tripple the actual damage award amount as an additional form of punitive damages in a law suitWhat are normal damages?Money awarded when the law requires a judge and jury to find a defendant guilty but no real harm happened to the plaintiff. The award is usually very small, generally in the amount of $10.00What are special damages?Money awarded to the plaintiff for out of pocket expenses r/t the trial. It would cover expenses of taking a taxi back and forth to the courthouse, use of special assistive equipment, and secial home health care providers and other expenses that are not covered under actual damagesWhat is an appeal?request to a higher court to review a decision in the hopes of changing the ruling of a lower courtWhat is contributory negligence?Plaintiff's are not allowed to receive money for injuries if they contributed to those injuries in any manner. Example: nurse forgets to raise the bed rail after injecting narcotic pain med, but instructed the pt to use the call light to get out of bed and the pt didn't. Since he didn't use the call light and contributed to his own injury, he doesn't get compensation.What is comparative negligence?The awards for compensation are based on the determination of the percentage of fault by both parties. Example: if $100,000 is awarded it may be determined that the nurse was 75% responsible and the pt was 25% responsible so the pt would get $75,000. In general, if the pt is 50% responsible or more, they don't get anything.What is the assumption of risk defense?when the pt signs the informed consent form for a particular treatment, procedure, or surgery, it is implied that they are aware of the possible complications . Under this defense, if one of those listed or named complications occurs, the pt has no grounds for a lawsuit. Example: common complicaiton from hip replacement is some loss of moility and ROM of the affected leg. Even if the pt, after having a hip replaced, is able to walk only using a walker, they don't have a case.What is the good Samaritan act?Law that protects health care providers from being charged with contributory negligence when they provide emergency care to people in need of immediate treatmentWhat are exceptions to the Good Samaritan Act?If a person chokes on a piece of meat and the nurse does the Heimlich maneuver and it doesn't work but then the nurse performs a tracheostomy, the pt survives but can sue the nurse because tracheotomies are not a normal part of the nurses education.Can you sue a place for an unavoidable accident?If someone is walking the hall and trips over her own bathrobe and breaks an ankle, but there are no puddles on the floor or obstacles in the hall and the client was alert and oriented, there was no fault and cannot be a lawsuit.What is defense of the fact?Based on the claim that the actions of the nurse followed the standards of care that even if the actions were in violation of the standard of care, the actions were not the direct cause of injury. Example: a nurse wraps a dressing too tightly on a client's foot after surgery. Later the client loses his eyesight and blames the loss of vision on the nurse's improper dressing on his foot.What is mediation?legal process that allows each party to present their case as a mediator, who is an independent third party trained in dispute resolution. The mediator listens to each side individually, and the one sided session is called a "caucus". Their role is to find common ground between the parties and encourage resolution. They do not act as a decision maker but encourages the parties to come to a "meeting of the minds"What is arbitration?Neutral third party who assesses facts independently of the judicial system. Can be binding or non-bindingWhat is informed consent?It is the voluntary permission by a pt or their designated proxy to carry out a procedure on the pt. Nurses can become involved when they provide the info but are not performing the procedure. The person who is performing the procedure has the responsibility to obtain the informed consent. Informed consent can only be given by a pt after the client receives sufficnet info on: treatment proposed, material risk involved (potential complications), acceptable alternative treatments, outcome hoped for, and consequences of not having treatment. Physicians should provide this info and nurses can reinforce the info but shouldn't be the primary sourceWhat are exceptions to informed consent?1) Emergency situations in which the pt is unconscious, incompetent, or otherwise unable to give consent 2) Situations in which the healthcare provider feels that it may be medically contraindicated to disclose the risk and hazards because it may result in illness, severe emotional distress, serious psychological damage, or failure on the part of the pt to receive lifesaving treatment.What is the patient self-determination act?Federal law that requires all federally funded institutions to inform pts of their right to prepare advance directives. They are meant to encourage people to discuss and document their wishes concerning the type of treatment and care they want in advance so that it will ease the burden on their families and providers when it comes time to make such as decision. There are two types of advance directives; a living will and a medical durable power of attorneyWhat is the medical durable power of attorney?aka health-care proxy - designates another person to make health care decisions for a person if the pt becomes incompetent or unable to make such decisions.What is a living will?signed legal document in which individuals make known their wishes about the care they are to receive if they should become incompetent at a future date; usually specifies what types of treatments are permitted and what types are to be withheldWhat is the nurses role in advance directives?Laws vary from state to state so know your state laws. Nurses must inform pts of their right to formulate advance directives and must realize that not all pts can make such decisions. Establish trust/rapport with pt and family to help them make decisions that are in the pts best interest. Teach about advance directives and document all critical decisions/discussions/basis for evaluation process. Essential to prevent discrimination against the pt and their families based on their choices regarding their advance directives. Nurses must also determine if the pt had been coerced into making directive decisions against their will and should be involved in ethics committees at hospitals to help feel comfortableWhat are do not resuscitate orders?They are legally separate from advance directives, for the healthcare provider to be protected, there should be a written order for a "no code" or a DNR order in the pt chart. Nurses should know whether there are any laws that regulate who authorizes a DNR for an incompetent pt who is no longer able to make this decision. The ANA's position statement stresses the need for nurses to talk with pts and their families about the DNR so they are fully informed when they make the decision. It includes talking about the benefits and burdens of prolonged treatments, what comfort measures are possible, the effects of symptom palliation, and understanding that aggressive life sustaining technology will be withdrawn if they don't meet the goals/ wishes of pt/family.What are standards of care?written or established criteria for nursing care that all nurses are expected to meet. Usually includes objective factors (the actions to be performed) and subjective factors (the nurse's emotional and mental state). External standards include nursing standards developed by the ANA, the state nurse practice act, criteria from the joint commission, guidelines developed by nursing specialty practice groups, and federal agency regulations. Internal standards include nursing standards defined in specific hospital policy and procedure manuals that relate to the nurse in the particular institution. The job description and employment contract are examples of internal standards.What is the locality rule standards of care?legal process that holds an individual nurse accountable both to what is an acceptable standard within their local community and to national standards as developed by nurses throughout the nation through the American Nurses Association, national practice groups, and health care agenciesWhat are nurse clinicians?Registered nurses with advanced skills in a particular area of nursing practice; if certified by a professional organization, a nurse clinician may also be a nurse practitioner, but more often this designation refers to nurses in advanced practice roles such as nurse specialists.What can a nurse do to prevent a lawsuit?Effective communication - miscommunication is leading cause of health care related errors leading to injury, death, and lawsuits; utilize SBAR properly Medical records - they are the single most frequently used piece of objective evidence in a malpractice suit so make sure your charting is accurate and complete. Rapport with clients - establish rapport and treat pts and their family with respect and let them know that the nurse cares about them. Nursing skills - stay current Knowledge of the client - recognize lawsuit prone clients; including constant dissatisfaction with care given, constant complaints about all aspects of care, and negative comments about the nurses. Being direct, solving problems with the pt and helping them be involved in their care can defuse the negative behavior.What is the client's chart?Legal document that contains all the pertinent information about a client who is in a hospital or clinic; usually includes medical and nursing history, medical and nursing diagnosis, lab results, notes about the patient's progress, physician orders and personal data.What is a claims-made policy?Type of malpractice insurance that protects only against claims made during the time the policy is in effectWhat is an occurrence policy?a type of malpractice insurance that protects against all claims that occurred during the policy period regardless of when the claim is madeWhat is the federal claims tort act?Statute that allows the government to be sued for negligence of its employees in the performance of their duties; many states have similar lawsWhat is a disciplinary hearing?Held to review the charges of the nurse's unprofessional conduct. It is less formal than the trial and the nurse is allowed to present evidence and be represented by legal counsel. License revocation is a serious consequence because it removes the nurse's right to practice. Drug abuse, administering medication without a prescription, practicing without a valid license, and any singular act of unprofessional or unethical conduct can constitute grounds for losing a nurse license.