Legal/Ethical 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

IntentionalNonintentional

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

Determination of Negligence or Malpractice

Duty to the patientBreach of DutyProximate CauseInjury

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

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

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”?

Individuals Who Cannot Give Informed Consent :Minors (with exceptions)Mentally incompetent people (mentally retarded,

senile, insane) Individuals under influence of drugs or alcohol People who speak a foreign language and may not

fully comprehend English

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 -

Evidence Collection Chain of Custody Blood Alcohol Reporting to Authorities

Gunshot & Stab Wounds Violent injuries Abuse Animal bites Communicable diseases

Reportable Deaths Valuables

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

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)