Legal Aspects of Nursing Notes II

       CRIMES AFFECTING NURSES

I.   Crime

            - Act committed in violation of social law.

            a. Tort (fraud, negligence & malpractice)

                        - Legal wrong committed against a person, his rights & property.

1.    Fraud – misrepresentation of fact with intentions for it to be acted on by another person ( such as falsifying graduate nursing programs)

2.    Negligence

3.    Malpractice

Negligence                             versus                  Malpractice

Definition:                                                                    Definition:                                           

-  Unintentional failure of an individual                          - any professional misconduct which

   person to perform an act  or omission                        involves any conduct that exceeds

   to do something that a reasonable prudent               the limits of one’s professional stan-

   person would do or not do.                                          dards means going beyond  the context

-  Most common unintentional tort                                  or scope of allowed nursing practice

-  Failure to observe the protection of one’s       resulting to injurious or non-injurious

   interest, the degree of care, and vigilance      consequences.

   of circumstances.                                                      - stepping beyond one’s authority

 Example:                                                                    Example:

a.    Incorrect sponge counts                                     a.  prescribing drugs

b.    burns: heating pads ,solutions & steam   b. giving anesthesia

vaporizers                                                            c. doing surgery

 c.   failure to take & observe  appropriate                

       actions – forgetting to take vital signs to

       a newly post –operative client.

d.    Falls: side rails left down, baby left

       unattended

e. loss of or damage to a patient’s property

f. failure or ignore to report to the superiors or

     client’s family

g. mistaken identity, wrong medicine, dose & route

ELEMENTS OF NEGLIGENCE LAWSUIT  (B-R-O-D)            ELEMENTS OF MALPRACTICE(p-r-e)

B- breach of duty was the cause of the         P- professional SPECIFIC standards of care

     plaintiff’s injury                                                            is required

R- Real or actual proof injuries                       R- required obedience

      to the standards of care

O- owed specific nursing duty                        E- exceeds the limits of the standards of care

D- defendant breach the duty

                                                Intentional Torts

Assault                                                                                                            Battery

-Mental or physical threat                                           -physical harm through willful touching of

                                                                         person or clothing without consent.

Example                                                                      Example

a.  threatening or attempting to do                              a. actually touching or wounding a person in

     violence to another                                                    offensive manner

b. forcing a medication or treatment                         b. hitting or striking a client

    when the patient doesn’t want it                             c. immediately injecting a surgical needle

c. threatening children to take the medication               without informing the patient about

                                                                the said procedure

False Imprisonment

- occurs when the person is not allowed to leave a health care facility when there is no legal   

   justification to detain the client.

-  occurs when restraining devices are used without an appropriate clinical need.

- The intentional confinement without authorization by a person who physically constricts 

  another using force , the threat of force or confining structures and or clothing , even without    

  force or malicious intent to detain another without consent in a specified area constitutes  

  grounds or a charge  of false person from harming self or others if it is necessary to confine to 

  define one self , others or property or to effect a lawful arrest.

  Examples:

  a. A Hispanic American patient undergo TAHBSO and has no Medicare or HMO card nor

      nor any  petty cash to pay hospital bills. The nurse put the patient in a room until the

      relatives of the former  arrive to pay the bills.

  B. a Hong Kong OFW was suspected of having SARS. The ground duty nurse put the patient

       in a secluded room without doctors order and checked for other manifestations to confirm

       the presence of SARS. After 9 hours, it was just an ordinary cough and colds.

c.    A client was tested positive for HIV. Nurse  Hamilton learned that this is highly contagious 

      & communicable disease. The nurse locked the client inside a room.

                       Legal aspect regarding Restraints

Restraints are protective devices used to limit the physical activity of a client or to immobilize a client or an extremity.

Physical restraints:  restrict client movement through the application of a device.

Chemical restraints: Medications given to inhibit a specific behavior or movement.

Under Omnibus Budget Reconciliation Act: any client or patient has the right to be free from Physical (such as restraint jackets) and chemical (sedation, psychotropic drugs) restraints

Imposed for the purpose o discipline or convenience and should not be required to treat medical

or psychiatric symptoms.

            Lawful Requirements & Nursing Actions for Using Restraints

            According to (JCAHO) Joint Commission on ACCREDIATATION OF  

                                                 HEALTHCARE ORGANIZATIONS

1. RESTRAINTS SHOULD NOT BE USED PRN!!!
2. Informed consent and a Doctors order is needed to use restraints.
3. Doctors orders for restraints  should be renewed within a specific time frame

according to the agencies policies.

4. Restraints should not interfere with any treatments or affect the client’s health problems.
5. Document the following:

                       Reason for the restraints

                       Method of restraints

                       Date and time of application

                       Duration of use and clients response

                       Release from the restraints (every 30 minutes) with periodic exercise and

                       Circulatory, neurovascular and skin assessment

                       Evaluation of client’s response

     6.     DON’T ASK PERMISSION IF THE PATIENT HAS AN ALTERED LEVEL
             OF CONSCIOUSNESS!!!

     7.     If the client is unable to give consent to a restraint procedure, then consent of proxy

             must be obtained AFTER FULL DISCLOSURE OF ALL RISK AND BENEFITS.

      8.    Use a clove hitch knot so that restraint can be changed and release easily and ensure

             that there is enough slack on the straps to allow some movement o the body part.

      9.    Never secure restraints to bed rails or mattress. Secure restraints to parts of the bed or

             chair that will move with client & not constrict movement.

                                      ALTERNATIVES TO RESTRAINTS

1. Before restraints offer explanations, ask someone to stay with the client, use clocks, calendars, TV & radio ( to decrease disorientation) or any relaxation techniques.
2. Use LESS restrictive methods first. RESTRAINTS should always be the last.
3. Assign confuse and disoriented clients to rooms near the nurse’s station.
4. Maintain toileting routines & institute exercise and ambulation schedules  as the client

condition allows.

QUESTION:   Can I put restraints on a patient who is combative I there is no order for this?

                        Only in an EMERGENCY, for a limited time (no longer than 24 hours)

                        For the limited purpose of protecting the patient from injury – NOT FOR

                        CONVENIENCE OF Personnel. Notify the attending MD immediately, consult

                        with another staff member, obtain patients consent if possible, and get a co-

                        worker to witness the record. RESTRAINTS OF ANY DEGREE MAY CONSTI-

                        TUTE FALSE IMPRISONEMENT.  Freedom from any UNLAWFUL restraint is a

                        Basic human right protected by law. In July 1992 the FDA (Food and Drug Admi-

                        nistration) issued a warning that the use of restraints is – NO LONGER

                        REPRESENTS RESPONSIBLE PRIMARY MANAGEMENT of a client’s

                        behavioral problem. 

Legal Aspects of Nursing Notes I

Definition of Terms

Board of Registered Nursing

            Each state has a Board of Registered Nursing organized within the executive branch of the state government. Primary Responsibilities of the BRN include the administration of the Nurse Practice Act as applied to registered nurses.

Authorization to Practice Nursing

            To legally engage in the practice of nursing, an individual must hold on an active license issued by the state in which he or she intends to work.

Nurse Practice Act

            A series of statutes enacted by each state legislature to regulate the practice of nursing in that state. Topics that are included are the following a. scope of nursing, education, licensure, grounds for disciplinary actions & related topics.

a. Provides legal authority for nursing practice including delegation of nursing tasks.

            b. Many boards of nursing also provide decision and delegation checklist.

            c. Set educational requirements for the nurse distinguishing Nursing Practice

                from Medical Practice & defines the Scope of Nursing.

ANA (American Nurses Association) of 1980

            Incorporates the following elements that demonstrate in a nurse:

a.     Human dignity & uniqueness of individual regardless of health problems

& socio-economic status

b.    Maintain patients right for privacy & confidentiality

c.     Maintain competence through ongoing professional development & consultation.

Ethical Principles of Bio-ethics

 A philosophical field that applies ethical reasoning process for achieving clear &

convincing reasons to issues & dilemmas ( conflicting between two obligations)

1.     Autonomy: the right of the patient to make one’s own decision

- Example: Religious Practices & Cultural Beliefs (Blood   Transfusion & Organ Donation)

2.     Veracity: the intention to tell the truth

-          Never give false reassurance to another person

3.     Beneficence versus Non-malfeasance

a.     Beneficence : duty to do good

b.    Non-malfeasance: duty to avoid evil

4.     Confidentiality: social contract in keeping one’s privacy

Standards of Care

            Guidelines for determining whether nurses have performed duties in a appropriate manner & guidelines in which the nurse should practice

Patient’s Bill of Rights

Right for appropriate treatment that is most supportive & least restrictive

Right to individualized treatment plan, subject to review & treatment

Right to active participation in treatment with the risk and side effect of all medications and treatment

      Right to give and withhold consent/contracts

Contracts & Consent:  it is the meeting o the minds between two or more persons whereby one binds himself with respect to the other to give something or to render some service.

             

  Pre-requisites of a Valid Consent and Contract (OPEN- V)

O- Opportunity to ask questions (possible consequences of the procedure)

P- Physically & Mentally Competent & Mature (  18 years old & up )

E- Explained the Procedures & Treatment Specifically

N- Nothing should be misunderstood by the patient (the patient should not be

allowed to sign the informed consent if she / he is pre-medicated or under the influence of  alcohol or drugs or mentally incapacitated

V-Voluntary Made (absence of force, fraud, deceit or duress ( force)

      

  Exceptions to an Informed Consent   (MEMO-S)

M –Married & Mature Minors

E-    Emancipated minors (to release a child from the control of his parents)

       Emergency Cases

M-           Minors seeking birth control or pre-natal treatment

         O-     Over specific age (ex. 12 years old & above) may give consent for STD,

          HIV testing, AIDS treatment, drugs & alcohol treatment WITHOUT

            parents consent.

S-                Sexually abused minors & adolescents

Right to refuse Treatment

            1. Advance Directives: Legal, written or oral statements made by a

mentally competent person about treatment. In the event the person is unable to make these determinations, a surrogate decision-maker can do so, example: sudden serious illness.

                    Characteristics of Advance Directives

1.     allows clients to participate in choosing health care providers

(Choosing his / her own nurses & doctors)

2.     allows also in choosing the type of medical treatments the client

desires.

3.     Allows clients to consent or refuse treatments

The Patient Determination Act of 1990 (PSDA)

-          is a federal law that imposes on states and providers  of health care certain requirements concerning Advanced Directives as well as client’s right under law to to make decisions concerning medical care.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1990

            - Medical Screening of patients cannot be delayed until insurance coverage or the

              ability to pay has been determined. This is to assure that the patients are not

              denied care based on their ability to pay , patients must be medically screened &

stabilized before their ability to pay is determined. Failure of a Hospital to    comply may result in denial of Medicare funding.

Example: All women patients having labor contractions must be medically screened & stabilized before transfer to another facility. Whether it is obvious that the patient is in labor or not, the patient must be medically screened & examined before the decision is made to transfer the patient to another facility.

The emergency department does not have the right to refuse treatment to a patient before medically screening the patient.

- It does not address payment for services as part of the admission procedure. It

  only addresses medical screening & stabilization of patients before transport

  or the determination of ability to pay for services rendered.

a.     Living Will: legal document stating person does not wish to

have extra-ordinary life saving measures when not able to make decisions about his own care.

-applicable FOR LIFE SAVING TREATMENT ONLY.

 Example: CPR, antibiotics & dialysis will be used or not

b.    Durable Power of Attorney:  legal document giving designated

     person authority to make health care  decisions on the  

     client’s behalf when the client is unable to do so.

Right to obtain Advocacy Assistance

                        Patient Advocate: is a person who pleads for a cause or who acts on

                                                        the client’s behalf. Example: nurse

                        Goal of Advocacy: help client gain greater self-determination &

                                                        Encourage freedom o choices, increase sensitivity

                                                        & responsiveness of the health care, social, politi-

                                                        cal systems to the needs of the client.

                        Example: advocates for HIV client rights for proper treatment & job

                                         opportunities