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Legal Issues in Nursing and Health Care


Legal Issues in Nursing and Health Care Why is it important to understand the legal issues that impact nursing practice? Nurses are constantly faced with the ... – PowerPoint PPT presentation

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Title: Legal Issues in Nursing and Health Care

Legal Issues in Nursing and Health Care
  • Why is it important to understand the legal
    issues that impact nursing practice?
  • Nurses are constantly faced with the challenge of
    making difficult decisions regarding good and
    evil or life and death

  • Nurses have a responsibility to
  • Understand the legal obligations when caring for
  • Understand the legal limits influencing daily
  • Protect the clients rights
  • Protect themselves from liability

Types of Law
  • Statutory Law
  • Created by elected legislators (Congress, state
    legislatures) - STATUTES
  • Can be either criminal or civil
  • Example Nurse Practice Acts (NPA), Emergency
    Medical Treatment and Active Labor Act (EMTALA)
  • Common Law
  • Created by judicial bodies as a result of legal
  • Examples Informed consent, abortion rights,
    clients right to refuse treatment

Standards of Care
  • Standards of care are guidelines for nursing
    practice, they delineate scope of practice,
    function and role of the nurse. They are defined
    in various ways
  • Nurse Practice Acts
  • State Boards of Nursing of each state
  • Federal/ state laws regulating hospitals and
    health care institutions
  • Professional and specialty nursing organizations
  • Facility policies and procedures

Scope of Practice
  • Defined by
  • Nurse Practice Acts
  • Code of Ethics
  • Organization Standards
  • Policy and Procedure Manuals

Federal Statutes
  • ADA (Americans with Disabilities Act) is to end
    discrimination against qualified persons with
    disabilities by removing barriers that prevent
    them from enjoying the same opportunities
    available to persons without disabilities
  • Emergency Medical Treatment and Active Labor Act
    (EMTALA) is to prohibit refusal of care for
    indigent and uninsured patients seeking medical
    assistance in the ED
  • Mental Health Parity Act
  • Patient Self Determination Act (PSDA)
  • Advance Directives (living will, DNR,
    durable power of attorney)
  • Uniform Anatomical Gift Act organs donation
  • HIPAA (Health Insurance Portability and
    Accountability Act) to ensure confidentiality
    of the patients medical records
  • Restraints

State Statutes
  • Licensure - regulated by each state. Licensed by
    State Board of Nursing (minimum education
    requirements, successful completion of licensure
    exam (NCLEX). Can be suspended or revoked)
  • Good Samaritan Laws (1998) - protects health
    professionals stopping to help in emergencies
  • Public Health Law - laws created to promote
    health and reduce health risks in communities
    (school immunizations, reporting communicable
  • Uniform Determination of Death Act (1980)- has
    been adapted in most states - changed standards
    for determining death
  • Physician-Assisted Suicide (1994) - Oregon passed
    the Oregon Death with Dignity Act - first statue
    that permitted physician assisted suicide

State Statutes
  • Nurse Practice Acts
  • Establish education requirements
  • Distinguish between nursing and medical practice
  • Define the nurses scope of practice
  • Define nursing practice more specifically
  • All nurses are responsible for knowing their
    Nurse Practice Act

Reporting Statutes
  • Child Abuse Prevention and Treatment Act and
    Reporting Statutes
  • Mandate reporting specific health problems and
    suspected or confirmed abuse
  • Health professionals must report under penalty of
    fine or imprisonment for failing to do so
  • Infant and child abuse
  • Dependent elder abuse
  • Specified communicable diseases

Common Law Issues in Nursing Practice
  • Consent
  • A signed consent is required for all routine
    treatment, hazardous procedures, some treatments,
    and research
  • Abortion Issues
  • Includes a womans right to have an abortion
  • Student Nurses
  • Student nurses are liable if their actions cause
    harm to patients (liability is usually shared)
  • Malpractice Insurance
  • Professional insurance, contract w/ nurse and
    insurance company if nurse is sued for
    professional negligence or medical malpractice
  • Abandonment and Assignment Issues
  • Short staffing - Inadequate staffing/ patient
  • Floating - Assignments to a department where the
    nurse does not normally work
  • Physicians orders - Nursing judgment when
    carrying out physician orders

What is Informed Consent?
  • In 1914, Justice Benjamin Cardozo stated, Every
    human being of adult years and sound mind has a
    right to determine what shell be done with his
    own body (Schloendorff v. Society of N.Y.
  • More about IC
  • http//

  • Informed Consent (IC) is the duty of a health
    care provider to discuss the risks and benefits
    of a treatment or procedure with a client prior
    to giving care

IC must include the following
  1. The nature of the procedure
  2. The risks and hazards of the procedure
  3. The alternatives to the procedure
  4. The benefits of the procedure

When IC is Not Required
  • In case of emergency situation (for minor or
    adult) A MINOR is defined as a person who has not
    yet obtained the age at which she or he is
    considered to have the rights and
    responsibilities of an adult (Alabama , Nebraska
    and Wyoming 19 y.o., all other states 18
  • It is prudent to obtain the IC from the
    adolescent in case if health care providers have
    made a reasonable attempt to contact the child

When IC is Not Required
  • Many states allow the evaluation and treatment of
    a child for suspected physical or sexual abuse
    without the informed consent of a parent or
  • Photographing and taking an X-Ray (Utah)
  • In case of forensic examination (do not force or
    restrain the child to perform genital or rectal

When a minor can consent for care?
  • Care involving pregnancy, contraception, or
    treatment of STD
  • Drug and alcohol treatment
  • In some states emancipated children can make
    their health care decisions by themselves

  • Emancipation is the legal recognition that the
    minor lives independently and is legally
    responsible for his or her own support and
    decision making.
  • Can occur through an official court proceeding
  • In some states, a minor can automatically become
    emancipated by marrying, joining the military, or
    becoming a parent before the age of majority
  • Some states do not officially recognized any form
    of emancipation

  • A clients signature implies that the client has
    been thoroughly informed about the procedure.
  • Consent must be witnessed appropriately
  • Not considered informed if client is
  • Confused
  • Unconscious
  • Mentally incompetent
  • Under the influence of sedatives, including
    preoperative medications

Legal signatures on consents
  • Who can legally sign a consent
  • Individuals of legal age - 18
  • Under legal age but have a valid marriage
  • Emancipated minors (certain states)
  • A parent or legal guardian of a minor
  • A spouse or next of kin for an adult who is
    unconscious or mentally incompetent
  • Conservators
  • Court ordered consent
  • Telephone consents
  • Emergency consents

Civil Law Issues in Nursing Practice
  • Tort - a civil wrong against an individual or
    property. May or may not be on purpose . It
    violates another persons rights
  • Intentional
  • assault - attempt to threaten or harm another
    person (Ex force feeding)
  • battery - intentional physical contact with a
    person without consent ( Ex touching without the
    other persons permission)
  • invasion of privacy - right to confidentiality
    (Ex release of clients medical information)
  • defamation of character - ridiculing others,
    slander, may apply to client or a colleague (Ex
    attack the reputation of a colleague)
  • false imprisonment - confined or held against a
    persons will (Ex preventing a person from
    leaving the hospital voluntarily)
  • Unintentional
  • Negligence - an occasion when a person owes a
    duty to another and, through failure to fulfill
    that duty, causes harm
  • Malpractice - is professional negligence

For a court to recognize a claim of malpractice
or negligence, four legal elements must be present
  1. There must be a duty owed to the client by nurse
  2. The nurse must breach the duty
  3. The breach of duty must be the cause of the
  4. There must be actual damage to the client

Risk Management
  • A system for ensuring appropriate nursing care
    and identifying hazards before harm is done to a
  • Steps in risk management
  • Identify possible risks
  • Analyze those risks
  • Act to reduce the risk
  • Evaluate the steps taken
  • Incident/occurrence reports

To Decrease Chance of Liability
  • Caring, respectful attitude
  • Follow standards of care
  • Give competent care
  • Communicate with other health care workers
  • Develop a good therapeutic caring relationship
  • Document, document, document (accurately,
    completely, timely, factually, legibly)
  • Stay current with your knowledge of your practice
  • Know your clients
  • Confidentiality
  • Informed consent
  • Physician orders
  • Malpractice insurance