Legal Issues

Ethics

Principles and values that determine appropriate behavior

Law

The rules and standards of society that control the conduct of its

members and set limitations for the fulfillment of natural instincts.

Types of Law

ConstitutionalFederalState

Statutes

Common or Case Law

Torts

IntentionalUnintentional

Intentional Torts

AssaultBatteryFalse ImprisonmentInvasion of PrivacyIntentional Infliction of Mental Distress

Nonintentional Torts

NegligenceOmission to do something which a “reasonable and prudent” person

would doMalpractice

Professional misconduct, lack of skill,evil practice, immoral conduct

Three Classifications of Medical Professional Liability Claims

Malfeasance a performance of a totally wrongful and unlawful act

Misfeasance a performance of a lawful act in an illegal or improper manner

Nonfeasance a failure to act when one should

Four Elements Proving Negligence.

Duty- person charged with negligence owed duty of care to the accuser.

Derelict- health care provider breached (failed to comply) duty of care to the patient.

Direct Cause- breach of duty was the direct cause of the patient’s injury

Damages- monetary awards sought by the plaintiffs (patient) in the lawsuit where there is a legally recognizable injury to a person.

Standard of Care Defines the “duty to the patient” and “breach of duty” Could be a local, regional or national standard Nurse Practice Act

Outlines in very general terms what a nurse may do. A nurse may not do any act which may be interpreted as the practice of medicine.

What defines the Standard of Care?

Hospital policy and protocolsDefinition of each health care provider -

specific for each stateSchoolsCertification and licensureCurrent literatureSpecial trainingProfessional organizations

Good Samaritan Act Some variation from state to state, but general

principles include:Care not grossly negligentCare does not have to be successfulRescuer has a duty to use “reasonable” careNo duty to undertake a rescue if the situation exposes the

rescuer to danger

Respondeat Superior

“Let the Master answer”May depend upon what type of duty

was deemed to be negligent:ProfessionalAdministrative

Categories of Negligence

TreatmentsCommunicationMedicationMonitoring & Observing

Patient Rights Be informed – diagnosis,

treatment options including outcomes and risks

Receive/Refuse Treatment Privacy and Confidentiality Respectful care, no matter what

the circumstance Patient’s personal possessions

must be cared for and secured

Informed ConsentProtects the patient from assault and batteryObtained by the MD, who is responsible for all

elements of this process.Nursing may witness the patient’s signatureIf the patient has any questions, hesitation or

does not understand the procedure, STOP and notify the MD

6 Elements of Informed Consent

Explanation of the procedureBenefits Discomforts & risks (possible complications)Description of alternative choices (including the

choice of no treatment). Offer to answer any questionsInstruction that the patient is free to change his

mind at any time

Emergency Consent

Life or Limb saving interventions should not be withheld in the absence of consent.

What defines “life or Limb”?

Consent for MinorsConsent of the Legal Guardian – (1985 – AAP

Committee on Bioethics - added with the assent of child)

Two Exceptions:Emancipated minorUnemancipated but who have decision-making

capacity (“mature minors'') or who are seeking treatment for certain medical conditions, such as sexually transmitted diseases, pregnancy, and drug or alcohol abuse.

Order of Consent:Incompetent Adult

Health-care SurrogateSpouseAdult childrenParentSiblingOther

Informed Refusal

Competent patients cannot be threatened or detained from leaving (false imprisonment).

If the patient wishes to leave AMA, the decision should be based upon a clear understanding of the medical consequences.

Documentation of circumstance is important if the patient leaves without informed refusal.

Telephone Information Do not diagnose Encourage the caller to come in for care You may give immediate lifesaving information. Check hospital policy Issues of confidentiality

Confidentiality

1996 – Health Insurance Portability and Privacy Act (HIPPA)“Right to know” Exceptions -

Confidentiality may be waived:

If the patient sues the physician for malpractice

If the patient signs a waiver to release information

Evidence Collection Chain of Custody Blood Alcohol Reporting to Authorities

Gunshot & Stab Wounds Violent injuries Abuse Animal bites Communicable diseases

Reportable Deaths Valuables

Documentation“If you didn’t write it, you didn’t do it”!Rules for documentation in the medical

record:Write legiblyDo not leave blank linesAll people giving care must be identifiedDraw a line through errors and initialDocument in chronological orderVerbal orders must be signed off by MDLate entries must be noted as such

CASES –Who is liable?

Three nurses in Colorado were charged with CRIMINALLY NEGLIGENT HOMICIDENewborn died after receiving 10 times the ordered

dose of Penicillin IV rather than IMPharmacist prepared incorrect doseNurses did not detect itNurse practitioner changed order from IM to IV

without consulting the physician

CASES –Who is liable?

Patient admitted with known suicide tendencies While on a temporary pass, sustained injuries that

needed him to be transferred to an orthopedic unit MD ordered 24hr attendants (patient observers) Attendant was not informed of the suicidal tendencies When the attendant was putting some of the patient’s

dessert in the refrigerator , the pt jumped out of the window to his death

CASES –Who is liable?

28 y.o woman was admitted for an ovarian cyst After surgery, and while she was coming out of

anesthesia, the surgeon left to prepare another pt. He called the circulating nurse away to assist him After the OR tech placed a dressing on the wound, he

noticed the patient’s legs were cool and her arms were dark blue.

CPR was initiated but pt. suffered severe brain damage

CASES –Who is liable?In 1974 a 16-year-old girl’s mother told her

physician that her daughter was retarded and had been raped. The mother gave her written permission for her minor child to have an abortion, which the physician performed. The physician did not know that in reality the girl was not retarded and had not been raped. She had conceived the child with her boyfriend.

Sixteen years later the patient examined her medical records and realized that she had undergone an abortion. She sued the physician, claiming that she had not given informed consent for the procedure.

CASES –Who is liable?

A physician performed outpatient, same-day surgery on a patient’s chin and nose and photographed her before and after surgery. The medical center later published the photographs in a brochure. The patient was not identified.

The patient filed suit against the physician and medical center for invasion of privacy, intentional infliction of emotional distress, and violation of the Patient’s Bill of Rights. She also alleged breach of an implied contract by the physician.

CASES –Who is liable? A patient entered the emergency room of a hospital

complaining of rectal bleeding and was admitted as a patient of her regular attending physician. Two diagnostic procedures were completed and three more were scheduled. The patient refused to sign consent forms for the three procedures, saying she didn’t want to be anesthetized. Her physician discussed these concerns with the patient and told her to sign the consent forms or sign herself out of the hospital. The physician told the patient he would release her from his services. At that time, the patient was given a list of other physicians she could contact. The patient selected another physician and discharged herself from the hospital. The patient charged the original physician with abandonment.

CASES –Who is liable? During a fight with his son, a Seattle man felt chest

discomfort and thought he was having a heart attack. At the hospital, he was given four drugs, including a narcotic pain medication. The suspected heart attack was diagnosed as a muscle strain, but while he was hospitalized the man agreed to surgery on his nose. The nose surgery turned out badly, and the man sued, claiming that he had been in a drug-induced state and could not make an intelligent decision about having the nose surgery. If he had not been competent, then the man had not actually consented to the surgery and the surgeon committed assault.

CASES –Who is liable?

A radiologist performed an arteriogram procedure which allegedly caused permanent injuries to the patient. The patient sued the radiologist for medical malpractice and breach of an express contract that he would not suffer any ill effects. The patient argued that the radiologist had stated the procedure would be routine and that he had nothing to worry about.

Strategies for Legal Protection

Know the Standards of Care that regulate your specific practice and maintain the level of expertise and competence that reflect the standards of practice

Adhere to Established policies and Procedures in the Facility

Follow established rules of documentation Liability Insurance Risk Management Education Legal Counsel (if needed)