103 terms

Kozier 4- Legal Aspects of Nursing

(legal) a written response made by the defendant
an attempt or threat to touch another person unjustifiably
the willful or negligent touching of a person (or the person's clothes or even something the person is carrying), which may or may not cause harm
Breach of duty
a standard of care that is expected in the specific situation but that the nurse did not observe; this is the failure to act as a reasonable, prudent nurse under the circumstances
Burden of proof
the duty of proving an assertion
a fact that must be proven that the harm occurred as a direct result of the nurse's failure to follow the standard of care and the nurse could have (or should have) known that failure to follow the standard of care could result in such harm
Civil action
deals with the relationship between individuals in society
Civil law
the body of law that deals with relationships among private individuals; also known as private law
Common law
the body of principles that evolves from court decisions
(legal) a document filed by the plaintiff
a written or verbal agreement between two or more people to do or not do some lawful act
Contract law
the enforcement of agreements among private individuals or the payment of compensation for failure to fulfill the agreement
Contractual obligations
duty of care established by the presence of an expressed or implied contract
Contractual relationships
vary among practice settings; may be as an independent or employer-employee relationship
the process of determining and maintaining competence in practice; includes licensure, registration, certification, and accreditation
an act committed in violation of public (criminal) law and punishable by a fine and/or imprisonment
Criminal action
deals with disputes between an individual and the society as a whole
Criminal law
deals with actions against the safety and welfare of the public
if malpractice caused the injury, the nurse is held liable for damages that may be compensated
(legal) outcome made by a judge
(legal) a communication that is false, or made with careless disregard for the truth, and results in injury to the reputation of another
(legal) person against whom the plaintiff files a complaint against
transferring to a competent individual the authority to perform a selected nursing task in a selected situation; the transfer of responsibility for the performance of an activity from one person to another while retaining accountability for the outcome
(legal) pretrial activities to gain all the facts of the situation
the nurse must have (or should have had) a relationship with the client that involves providing care and following an acceptable standard of care
Expert witness
one who has special training, experience, or skill in a relevant area and is allowed by the court to offer an opinion on some issue within that area of expertise
Express consent
an oral or written agreement
False imprisonment
the unlawful restraint or detention of another person against his or her wishes
a crime of a serious nature, such as murder, punishable by a term in prison
a link that must exist between the nurse's act and the injury suffered
Gross negligence
involves extreme lack of knowledge, skill, or decision making that the person clearly should have known would put others at risk for harm
the client or plaintiff must demonstrate some type of harm or injury (physical, financial or emotional) as a result of the breach of duty owed the client. The plaintiff will be asked to document physical injury, medical costs, loss of wages, "pain and suffering," and any other damages
Impaired nurse
a nurse whose practice has deteriorated because of chemical abuse
Implied consent
consent that is assumed in an emergency when consent cannot be obtained from the client or a relative
Implied contract
a contract that has not been explicitly agreed to by the parties but that the law nevertheless considers to exist
Informed consent
a client's agreement to accept a course of treatment or a procedure after receiving complete information, including the risks of treatment and facts relating to it, from the physician
(Harm) the client or plaintiff must demonstrate some type of harm or injury (physical, financial or emotional) as a result of the breach of duty owed the client. The plaintiff will be asked to document physical injury, medical costs, loss of wages, "pain and suffering," and any other damages
Interstate compact
Called the Nurse Licensure Compact (NLC) an agreement between two or more states. It is the mechanism to create mutual recognition among states.
Invasion of privacy
a direct wrong of a personal nature, it injures the feelings of the person and does not take into account the effect of reveled information on the standing of the person in the community
A rule made by humans that regulate social conduct in a formally prescribed and binding manner
the quality or state of being legally responsible for one's obligations and actions and to make financial restitution for wrongful acts
defamation by means of print, writing, or pictures
a legal permits granted to individuals to engage in the practice of a profession and to use a particular title
the action of a lawsuit
the negligent acts of persons engaged in professions or occupations in which highly technical or professional skills are employed
Mandated reporters
a role of the nurse in which he or she identifies and assesses cases of violence against others, and in every case the situation must be reported to the proper authorities
second degree murder
a legal offense usually punishable by a fine or a short-term jail sentence, or both
Mutual recognition model
a new regulatory model developed by the National Council of State Boards of Nursing (NCSBN), which allows for multistate licensure
failure to behave in a reasonable and prudent manner; an unintentional tort
a person claiming infringement of legal rights by one or more persons
Private law
(civil law) the body of law that deals with relationships between private individuals
Public law
refers to the body of law that deals with relationships between individuals and the government and governmental agencies
Res ipsa loquitur
the thing that speaks for itself; a legal doctrine that relates to negligence in which the harm cannot be traced to a specific health care provider or standard but does not normally occur unless there has been a negligent act
Respondeat superior
a legal term meaning "let the master answer"; the employer assumes responsibility for the conduct of the employee and can also be held responsible for malpractice by the employee
a privilege or fundamental power to which an individual is entitled unless it is revoked by law or given up voluntarily
defamation by the spoken word, stating unprivileged (not legally protected) or false words by which a reputation is damaged
Standards of care
detailed guidelines describing the minimal nursing care that can reasonably be expected to ensure high quality care in a defined situation (eg, a medical diagnosis or a diagnostic test). Become legal guidelines for nursing practice. Can be classified into internal and external standards.
Statutory law
a law enacted by any legislative body
an organized work stoppage by a group of employees to express a grievance, enforce a demand for changes in condition of employment, or solve a dispute with management
a civil wrong committed against a person or a person's property
Tort law
law that defines and enforces duties and rights among private individuals that are not based on contractual agreements
the period during which all the relevant facts are presented to a jury or judge
Unprofessional conduct
one of the grounds for action against the nurse's license; includes incompetence or gross negligence, conviction of practicing without a license, falsification of client records, and illegally obtaining, using or possessing controlled substances
the outcome made by a jury
The regulation of nursing is a function of which source and branch of law?
Legislation (statutory Law). Within this, state law, via the nurse practice acts. However, these acts must be consistent with constitutional and federal provisions
stare decisis
Latin: "To stand by things decided." Usually referred to as following precedent.
Homicide, manslaughter, and theft are examples of what segment and type of law?
Criminal law, which belongs to the larger body of public law.
Contract law and tort law are examples of what body of law?
Private law (civil law).
What are some examples of tort law applicable to nurses?
Negligence, malpractice, invasion of privacy, and assault and battery.
What is the major difference between civil and criminal law?
The potential outcome for the defendant. If found guilty in a civil action, defendant will have to pay a sum of money. If found guilty in a criminal action, defendant may pay money, be jailed, or executed, if a nurse, could lose his/her license.
What are the 5 steps of a lawsuit?
1. A complaint is filed by the plaintiff against the defendants.
2. A written response is made by the defendants.
3. Both parties engage in pretrail activities to obtain all the facts of the situation.
4. In the trial all relevant facts are presented to a jury or only to a judge.
5. Judge renders a decision, or jury renders a verdict. If outcome is unacceptable an appeal is made for another trial.
What us the legal purpose for defining the scope of nursing practice, licensing requirements, and standards of care?
Protection of the public.
True or False. Nurse practice acts differ from state to state.
True. (Although similar, the acts may differ in their scope of practice definition and in licensing and license renewal requirements.)
Where can one find their state's nurse practice acts?
At the specific state board of nursing's website.
What are the three criteria necessary for a profession or occupation to obtain the right to license its members?
1) There is a need to protect the public's safety or welfare.
2) The occupation is clearly delineated as a separate, distinct area of work.
3) A proper authority has been established to assume the obligations of the licensing process, for ex, in nursing, state boards of nursing.
Changes in what two areas have led to questions being raised about the state-based model of nursing licensure?
Health care delivery and telecommunications technology advances.
The advent of telehealth has resulted in the the National Council of State Boards of Nursing (NCSBN) responding with what development?
A new regulatory model, the mutual recognition model, which allows for multistate licesnsure.
The voluntary practice of validating that an individual nurse has met minimum standards of nursing competence in specialty areas. Certification programs are conducted by the American Nurses Association 9ANA) and by specialty nursing organizations.
Internal standards of care
include "the nurse's job description, education, and expertise as well as individual policies and procedures."
External standards of care
consist of: Nurse practice acts; Professional organizations (ie, ANA); Nursing specialty-practice organizations (ie, Emergency Nurses Association, Oncology Nursing Society); Federal organizations and federal guidelines (ie, The Joint Commission and Medicare.)
A lawful contract requires what four features?
1) promise or agreement for the performance of an action or restraint from certain actions
2) mutual understanding of the terms and meaning of the contract by all
3)a lawful purpose (the activity must be legal)
4) compensation in the form of something of value -in most cases, compensation is monetary
What legal concepts are implicit in the role of nurse as Provider of Service?
liability, standards of care, and contractual obligations
What are the three separate, interdependent legal roles of the nurse?
provider of service, employee or contractor for service, and citizen
collective bargaining
formalized decision-making process between represenatatives of management (employer) and representatives of labor (employee) to negotiate wages and conditions of employment, including work hours, working environment, and fringe benefits of employment (ie, vacation, sick leave, personal leave).
What are the three major elements of informed consent?
1) The consent must be given voluntarily.
2)The consent must be given by a client or individual with the capacity and competence to understand.
3) The client or individual must be given enough information to be the ultimate decision maker.
What percentage of American adults have basic or below basic health literacy?
competent adult
A person over 18 who is conscious and oriented.
What three groups of people cannot provide consent?
1) minors or adult who has the mental capacity of a child and who has an appointed guardian 2) persons who are unconscious or injured in such a way that they are unable to give consent 3)people with mental illnesses who have been judged by professionals to be incompetent.
True or False. After signing the consent form a patient cannot change their minds and cancel a procedure.
False. The right to refuse continues even after signing the consent. Nurse should notify health provider of the refusal and document it in the chart.
What is documented following an informed consent?
-client's concerns or questions -notifcation of health care provider -clients stated understanding -any teaching as a result of nurse-related questions -special circumstances, such as the use of an interpreter (document their full name and title).
What is the type of malpractice that results from ignoring a client's complaints?
Failure to observe and take appropriate action.
What four types of invasion must the client be protected from?
-Use of the client's name or likeness for profit, without consent.
-Unreasonable intrusion
-Public disclosure of private facts
-Putting a person in a false light
What identifying information is protected under HIPAA that may not be initially perceived as health information?
Social security number, name, address, phone number, website address, fingerprints, and age (if over 89).
What are four specif areas of HIPAA that pertain to nurses?
1) Electronic transfer of information 2) Standardized numbers 3) The security rule 4 ) The privacy rules
Unethical conduct
may be addressed in nurse practice acts. Unethical conduct includes violation of professional ethical codes, breach of confidentiality, fraud, or refusing to. care for clients of specific socioeconomic or cultural origins
The Healthcare Integrity and Protection Data Bank (HIPDB)
was created for the reporting of civil judgments or criminal convictions related to health care and licensure or certification actions.
The National Practitioner Data Bank (NPDB)
was established to identify incompetent and unprofessional health care practitioners.
What are the laws and strategies in place to protect nurses against litigation?
-Good Samaritan acts (protect nurses when assisting at the scene of an emergency)
-Providing safe, competent practice by following the nurse practice act and standards of practice
-Accurate and complete documentation
-Professional liability insurance
-Carrying out a physician's order
-The incident report
Good Samaritan Acts
laws designed to protect health care providers who provide assistance at the scene of an emergency against claims of malpractice unless it can be shown that there was a gross departure from the normal standard of care or willful wrongdoing on their part.
Guidelines for nurses who choose to render emergency care:
-Limit actions to those normally considered first aid, if possible
-Do not perform actions that you do not know how to do
-Offer assistance, but do not insist
-Have someone call or go for additional help
-Do not leave the scene until the injured person leaves or another qualified person takes over
-Do not accept any compensation
What are the categories of physicians orders that nurses must question to protect themselves legally?
1) Question any order that a client questions
2) Question any order if the client's condition has changed
3)Question and record verbal orders to avoid miscommunication
4) Question any order that is illegible, unclear, or incomplete
conscience clause
Instituted by many states and upheld by the supreme court. These are designed to protect nurses and hospitals. They give hospitals the right to deny admissions to abortion clients and give health personnel the right to refuse to participate in abortions. These statutes protect the agency and employee from discrimination or retaliation.