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					Legal Aspects of Nursing

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

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:
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
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,
consultwith another staff member, obtain patients consent if possible, and
get a co-worker to witness the record. RESTRAINTS OF ANY DEGREE
MAY CONSTITUTE 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.

Writing an Incident Report

- A tool used as a means of identifying and improving client care. They are
usually made
immediately after its occurrence and validated immediately by co-workers.
- the real purpose is to provide accurate documentation of occurrences
affecting the client as
to have basis for its intervention.
- it is usually made as a comprehensive & accurate report on any unexpected
or unplanned
occurrence that affects or potentially affects his family or other members of
the health team.

The following are common situations that require an incident report:
MOST OF THEM ARE NEGLIGENT NURSING ACTS
a. Falls , Burns & medication error
b. Break in the aseptic technique
c. Incorrect sponge count during surgery
d. Failure to report the clients condition

Rules in Incident Report
Don’t use the word error or include lawful judgment or inflammatory words
Legal Rules on Documentation, Charting & MD’s Order

Documentation
- Legally required by accrediting agencies, state licensing laws and state
nurse and medical
practice acts.
-required for insurers reimbursement
- legal documentation that signifies proper communication about the patients
condition

Question: What should be written in the nurses notes?
All facts and information regarding the patients condition, treatment, care,
progress and response to illness and treatment.
Document consent or refusal of treatment.

Question: How should data be recorded? Entries should:
1. State date and time given.
2. be written, signed & titled by caregiver or supervisor who observed action
3. follow chronological sequence
4. Be accurate, factual, objective, complete , precise and clear
5. Use universal abbreviations. Example: prn, b.c.
6. be legible; black pen
7. Have all spaces filled in, leave no blank spaces.
8. Avoid judgmental or evaluative statements such as “ uncooperative client”
9. Do not document for others or change documentation for other individuals

Question: Should I accept verbal phone orders from an MD?
Generally, NO. Specifically, follow your hospitals by laws, regulations and
policies regarding this. Failure to follow the hospital’s rules could be
considered NEGLIGENCE.
In cases when verbal orders are deemed necessary the following outline may
find helpful
REGARDING TELEPHONE ORDERS:
1. date and time entry
2. repeat the order to the MD & record the order
3. sign the order, begin with t.o. ( telephone order), write the MD’s name &
then signature the order
4. if another nurse witnesses the order, that signature follows
5. The physician needs to countersign the order within the time frame
according to hospital or agency policy.
Question: Should I follow an MD’s order if I know it is wrong? ]
No. If you think a reasonable prudent nurse would not follow it; but first
inform the MD and record your decision. Report it to your supervisor.

Should I follow an MD’s order if I disagree with his or her judgment?
Yes. Because the law does not allow you to substitute your nursing judgment
for a doctors medical judgment. Do record that you questioned the order and
that the doctor confirmed it before you carried it out. In order to be safe,
check the agency policy manual of your work.

Question: What can I do if the MD delegates a task to me for which I
am not prepared?
Inform the MD of your lack of medication and experience in performing the
task. Refuse to do it. If you inform him or her and still carry out the task,
both you and the MD could be considered NEGLIGENT if the patient is
harmed by it. If you do not tell the MD and carry out the task, you are solely
liable.

Liability for Mistakes
Question: Is the hospital or the nurse liable for the mistakes made by the
nurse while following orders? Both the nurse and hospital can be sued for
damage if a mistake made by the nurse injures the patient. The nurse is
responsible for his or her own actions. The hospital would be liable, based
on the doctrine of Respond eat Superior.

Question: For what would I be liable if I voluntarily stopped to give
care at the scene of an accident?

 The GOOD SAMARITAN ACT – protects health practitioners against
malpractice claims resulting from assistance provided at the scene of an
emergency ( UNLESS THERE WAS WILLFUL DOING) as long as the
level of care provided is the same way as any other reasonably prudent
person would give under similar circumstances. It also encouraged health
care professionals to assist in emergency situations without fear of being
sued for the care provided. These laws limit liability and offer legal
immunity for people helping in an emergency, providing they give
reasonable care.
Organ Donation
Requirements:

a. Any person 18 years of age or older may become an organ donor by
written consent.
b. Informed choice to donate an organ can take place with the use of a
written document signed by the client prior to death, a will, or a donor card
or an advance directive.
c. In the absence of appropriate documentation, a family member or legal
guardian may authorize donation on the descendant’s organs.
d. In case of newborns, they must be full term already ( more than 200
grams)

Laws that Protect potential donors to Expedite acquisition:

1. National Organ Transplant Act: prohibit selling of organs
2. Uniform Anatomical Act: guidelines regarding who can donate, how
donations are to
Be made, and who can receive donated organs.
3. Uniform Determination Death Act: Legal determination of brain death (
absence of
breathing movement, cranial nerve reflex, response to any painful stimuli
and cerebral
blood flow and flat EEG.

Management of Donor

1. Maintain body temperature at GREATER than 96.8 F with room
temperature at 70 -80 F warming blankets, warmer for IV fluids.
2. Maintain greater than 100% PaO2 and suction/ turn & use (PEEP)
positive End expiratory pressure to prevent hypoxemia caused by airway
obstruction & pulmonary edema.
3. Maintain CVP (Central Venous Pressure) at 8 to 10 mm Hg and systolic
blood pressure at greater than 90 mm Hg to prevent Hypotension.
4. Maintain Fluid & Electrolyte balance due to volume depletion
5. Prevent infections due to invasive procedures.

Religions that have different views regarding organ donations

1. Russian Orthodox: permits all donations EXCEPT THE HEART.
2. Jehovah’s Witness: DOES NOT ALLOW organ donation and all organ to
be
transplanted must be drained of blood first.
3. Judaism: They permit organ donation as long as with RABBINICAL
CONSULTATION.
4. Islam: will NOT USE ORGAN STORED IN ORGAN BANKS.

Do not Resuscitate (DNR)

Factors in giving order of resuscitation:
1. Client’s will and advance directives
2. Disease Prognosis such as cancer or HIV
3. Client/s ability to cope
4. Whether CPR will be given or not
Reasons for refusing to perform resuscitation
1. Epidemic or widespread disease or debilitating condition & that CPR is
not beneficial
2. CPR will aggravate or prolong the agony of the client
3. against cultural & religious suffering
4. Advance directives & Will


Voluntary Admission versus Involuntary Admissions

Voluntary Admissions:
Requirements & By Laws
a. Lawful or of legal age
b. If the client is too ill, a guardian is possible
c. Client agrees to accept the treatment
d. The client is free to sign him or herself out of the hospital- Has the right to
demand & receive RELEASE.

Involuntary Admissions
Requirements & By Laws
a. Deemed necessary for the following reasons & criteria:
1. Danger to self & others
2. need psychiatric or physical care
3. State laws have been determined legally by the state
b. The client who is involuntarily admitted does not lose his or her right of
informed consent.
Question: What is the meaning of Conditional Release?

- usually requires outpatient treatment for a specified period of time to
determine the
client’s compliance with medication protocol , ability to meet basic needs
and ability
to reintegrate to community.

Other Laws to be Remembered

Tarasoff Act- if there are manifestations that a patient has some suicidal
tendencies, it is the duty on the part of the nurse of a threatened suicide or
possible harm or threat to others. There must be the proper dissemination of
information to other members of the health care team.

Occupational Safety & Health Act- requires that an employer provide a
safe work place for employees according to regulations. Employees can
confidentially report UNSAFE WORKING CONDITIONS that violate
regulations. A PERSON WHO DOES NOT REPORT UNSAFE
WORKING CONDITIONS CAN BE RETALIATED AGAINST BY THE
EMPLOYER.

M’Naghten Rule (1832) - a person is guilty if:
a. person did not know the nature and quality of the act
b. Person could not distinguish right from wrong, if the person does not
know what she / he is doing or a person does not know it was wrong.

Irresistible Impulse Test (used together with M,Naghten Rule) – person
knows right from wrong, but:
a. Driven by impulse to commit criminal acts regardless of consequences.
b. Lack premeditation in sudden violent behavior.

				
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