INSTRUCTOR MANUAL for Legal, Ethical, and Political Issues in Nursing Second Edition by Dandry Aiken

Instructor Manual for Legal, Ethical, and Political Issues in Nursing Second Edition by Tonia Dandry Aiken

INTRODUCTION This Instructor’s Guide was designed for today’s faculty member who is trying to meet the learning needs of today’s students. Whereas each chapter of the text provides you with stimulating discussion points in the Afterthoughts section, the Instructor’s Guide has been expanded to include many interactive activities suitable for both ground and electronic delivery. Whether you are using this material as part of a dedicated course or within many courses, the content will come to life for the students when more activities are included in the course plan. For that reason, the Instructor’s Guide offers materials geared toward the content of each chapter of the text. Specifically, for each chapter, the Guide presents some practical teaching tips for teaching methods that work well with that chapter’s material. The tips are followed by specific case examples and discussion points, intended to illuminate and inspire discussion on the substance of that chapter.

Interspersed in Part I are “Off the Books” boxes, designed as suggestions for more untraditional ways to teach the materials. The Guide also features a test bank of multiplechoice and short-answer test questions geared toward the content of each chapter of the text.

This test bank was written with as many questions at the application and analysis level as possible, just like the NCLEX-RN. You’ll find that the answers aren’t always in the book but arise from your discussions and include clinical scenarios that should become familiar to students. The important point is to teach your students critical thinking and clinical reasoning, so if you find these questions to be difficult and not verbatim from the text, you are correct. The newer NCLEX-RN style of alternative items—Fill in the lank and Select all that apply—has been included as well. For more

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information on item writing, see Mary McDonald’s Systematic Assessment of Learning Outcomes—Developing Multiple-Choice Exams (2002, Jones & Bartlett) or the assessment course offered by the National Council of State Boards of Nursing at www.nclex.com Many of you have begun Web-enhanced or Web-based teaching. Part II of this Guide, which deals with the Web, is not meant to be a replacement for training in this area, but it does offer teaching tips to make this material practical while using the Web. Moreover, a common complaint by faculty now is that cheating and plagiarism are rampant. The brief information provided in Part III should help put you back in control of these behaviors.

The final sections, Part IV, “The Rights and Liabilities of Educators and Students,” and Part V, “Copyright Laws and the Educator,” have been updated to include the latest information to help you as faculty. Any instructor’s guide is just a boost for your thinking, after a long day in the clinical setting, when your creative juices are drained. Please use this one as a stimulant and make teaching Legal, Ethical, and Political Issues in Nursing fun for yourself and the students.

Julia W. Aucoin, DNS, RN, BC Assistant Professor University of North Carolina—Greensboro Consultant in Nursing Professional Development

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Part I: Chapter by Chapter Tips, Case Examples, and Test Questions Chapter 1—Nursing Practice

Tips for Active Learning 1.

Go to your State Board of Nursing Website and review the Nurse Practice Act. Look at what activities are allowed and which are not.

2.

Go to the National Council of State Boards of Nursing Website www.ncsbn.org to get an update on multistate regulation; check the status of your state.

3.

Go to your State Board of Nursing Website to explore discipline. What are the various penalties for infractions?

4.

Invite someone from the State Board of Nursing to come to class to discuss licensure, the Board of Nursing, mandatory continuing education requirements, administrative nursing proceedings, and the reasons licenses are revoked, suspended, or probated.

5.

Discuss specific examples of abandonment to ensure that students understand the concept fully. For example, a nurse accepted patients from the 7 a.m. to 3 p.m. shift, and the supervisor tells her she is going to have to stay the 3 p.m. to 11 p.m. shift because they do not have a replacement. If she decides to leave without a replacement, can an abandonment charge be made against her? If a nurse comes on duty and refuses to accept an assignment, can she be charged with abandonment?

6.

Have a risk manager or quality assurance speaker present to the students on quality assurance programs. Performance Improvement decreases potential risks and exposure for patients, visitors, and employees.

Case Example Facts: Nurse Welty has worked with Dr. Hart for a long time. Nurse Welty knows the patients with chronic conditions well and is familiar with Dr. Hart’s treatment methods.

Patient Zeal is a new patient of Dr. Hart, but she has a condition very similar to that of one of Dr. Hart’s long-time patients. Dr. Hart is very busy, so rather than making Patient Zeal wait, Nurse Welty writes out a prescription for a controlled substance. After all, Nurse Welty knows that is what Dr. Hart would do.

As it turns out, Patient Zeal works for a government oversight agency, and she thinks it is strange that Nurse Welty was able to write the prescription. Patient Zeal does some research into Nurse Welty’s license and takes action against Nurse Welty. Patient Zeal wants to ensure that other patients know the kind of lax rule-follower Nurse Welty is.

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Point/Counterpoint: What did Patient Zeal do to bring action against Nurse Welty under these circumstances?

Most states do not allow nurses to prescribe controlled substances. Patient Zeal could look into the state Nurse Practice Act. She could also research Nurse Welty’s license to determine whether or not Nurse Welty graduated from an ANA-accredited program. She could notify the ANA and the state Board of Nursing of Nurse Welty’s noncompliance and pursue the complaint process. Nurse Welty may have to endure an investigation and hearing process, during which Nurse Welty will be granted due process rights. Once adverse action is taken against Nurse Welty, it will be recorded in the National Practitioner Data Bank. This case also presents an opportunity to discuss the source of the state power to license nurses and the licensing process itself.

Off the Books In the beginning of the lesson on Chapter One, introduce a mystery word to your students – “SNIC-VU.” At the end of the lesson, ask students if they can see how the word is related to what they have learned in the chapter. If no one guesses, reveal that this word is a mnemonic device to recall the grounds for disciplinary action taken by a board of nursing: Substance Abuse, Negligence, Incompetence, Criminal Activity, Violation of the Nurse Practice Act, and Unprofessional Conduct.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 2—Standards of Care

Tips for Active Learning 1.

Ask students to interview nurses and ask what standards of care they follow.

Compare these to the text recommendations. Discuss the differences, and help students set a plan to follow the best standards.

2.

Hold a discussion about the standards that are used to support the curriculum in your school of nursing. (The accrediting agency will be pleased to find students who know the school’s standards.)

3.

Discuss other sources of standards such as www.guidelines.gov, evidence-based practice guidelines, the Cochrane Project, and www.ahrq.gov

4.

Have students write a book review of a volume on nursing care standards.

5.

Begin a discussion about breaches of standards that students have observed in their clinical experiences.

6.

Have students obtain the standards of care for the various clinical specialties that they will rotate through during the year.

7.

Have the students obtain the facility’s policies and procedures that set forth standards for, e.g., heating pads, skin care, and intake and output.

8.

Invite expert witnesses to present to your class on how they determine the standards of care, their sources for standards, and the significance of standards.

Case Example Facts: Patient Nancy James was admitted to Forest hospital on June 6 in active labor at 9:00 a.m. Nurse Elizabeth Coe, RN, was in charge of patient evaluation and monitoring.

James was taken to her floor at 10:00 a.m. (Dr. Grunner knew that she had fever 2 days prior to admission. He had ordered antibiotics by telephone to her local pharmacy for an upper respiratory infection.) At 10:30 a.m., vital signs were normal except T-101, station –2, and contractions mild to moderate lasting 1 minute every 5 minutes. Fetal heart rate (FHR) 150, variable and late decelerations noted.

At 11:30 a.m., her membranes ruptured, with meconium-stained amniotic fluid noted.

Decelerations lasted 5 minutes. The supervisor was notified. At 12:00 p.m., the nurse noted, T-102, variable to late decelerations, respirations-24, pulse-108, FHR-190. Dr. Grunner was notified, but no orders were noted. At 12:30 p.m., the nurse noted FHR-200, labor slowly progressing, T-103, R-24, P-120; Tylenol X was given, and the supervisor was notified.

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At 1:00 p.m., Dr. Grunner arrived and ordered an emergency Cc-section. At 2:30 p.m., the C-section was performed: Apgar 1, 5, viable male infant, cyanotic, nasal flaring, eyes deviated to the right. Mrs. James was placed on massive antibiotics and other drugs for sepsis and DIC. She was hospitalized for 3 weeks, and her son was hospitalized for 2 weeks in NICU. Her son, Brett, has cerebral palsy and is profoundly mentally and physically disabled.

Point/Counterpoint: Claims: Mrs. James may choose to bring a medical malpractice lawsuit against the nurse, the nursing supervisor, the doctor, and the hospital (under the theory of respondeat superior).

Duty: The nurse had a duty to properly care for and monitor her patient and to report to the physician Mrs. James’ deteriorating condition. The physician had a duty to examine and see the patient after being notified of the patient’s admission with fever as well as a duty to evaluate and treat in a timely manner a patient whose infant was in fetal distress.

Breach: The nurse breached the standard of care because she failed to notify the doctor at 10:30 a.m., when Mrs. James’ temperature and late decelerations were noted, or at 11:30 a.m., when she observed meconium-stained amniotic fluid with severe decelerations. At 12:30 p.m. FHR was 200, T-103, R-24, and P-120. The supervisor was notified of the increase in FHR; however, neither Nurse Coe nor the supervisor contacted the physician to let him know of this change in vital signs of T-103 or FHR of 200.

Dr. Grunner breached the standard of care by failing to evaluate and section in a timely way his patient with a raging sepsis and a fetus in distress. At 1:00 p.m., Dr. Grunner arrived and ordered an emergency C-section. He did not perform it, however, until 2:30 p.m. By that time, the child had experienced severe depression and fetal distress and, as a result, received extensive damages, both mentally and physically. Dr. Grunner failed to start Mrs. James on IV antibiotics until the emergency C-section was performed.

Causation: The failure to treat Mrs. James timely and properly caused severe damage in that she had to be hospitalized for overwhelming sepsis. The fetus was born with brain damage as a proximate result of hypoxia that occurred during labor and delivery.

Damages: The mother suffered pain and suffering, emotional distress, medical expenses for an extended stay in the ICU, medical expenses for caring for her child, and lost wages. The father suffered loss of consortium and emotional distress. He may also have a claim for lost wages if he had to take time off work to care for his wife and child. The infant suffered pain and suffering, brain damage, loss of quality of life, and extensive past, present, and future medical expenses.

Defenses: Defendants can argue that the child has a genetic defect that is not related to birth trauma or that he has a family history of cerebral palsy. They can argue that the damage occurred prior to the birth process or that the mother contributed to the damage by not seeking medical treatment sooner.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 3—The Law

Tips for Active Learning 1.

Have students select a legal drama on television and make note of every legal term used. Then check the text to define the terms.

2.

Have students search the Internet to find sources of legal consultation. Help them distinguish what is accurate and legitimate from what is not.

3.

Have students go to their State Board Nursing Website or newsletter to review disciplinary actions taken. Discuss disciplinary actions and the repercussions.

4.

Go to www.cms.gov and learn how to report Medicare fraud and abuse.

5.

Search the Internet for recent cases of nurses accused of assisting patients to die.

Discuss one of these cases and how this situation could have developed without being stopped.

6.

Have students check the law library or contact the local bar association or an attorney to learn what specific statute of limitation applies to medical malpractice, general negligence, breach of contract, and fraud actions. Does the law apply in the same manner to minors and interdicts?

7.

Have a nurse attorney or attorney present to your class on various types of law, e.g., contract, tort, common, and civil law.

8.

Obtain a law dictionary that provides common legal terms, Latin phrases, and definitions.

9.

Contact local attorneys and judges to arrange to have the class visit courtrooms and listen to oral arguments or see a trial.

Case Example Facts: Nurse Neal is not doing very well. She had been feeling very run down, so a few days ago she went to the lab to have some blood work done. The results returned a positive Hepatitis B test. Understandably, she is having a difficult time focusing on her work.

Nonetheless, Patient Parker needs an IV inserted, and Nurse Neal begins the process. She does not wear gloves because it is difficult for her to find a vein with them on. Nurse Neal promptly sticks herself with the needle before inserting it into Parker’s vein. Parker looks stricken and immediately notifies Nurse Neal’s supervisor.

A bit later that day, Nurse Neal is in an elevator talking to one of her lab technician friends about Patient Ives’ positive HIV test, when one of the hospital executives asks her to join

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him in his office. As it turns out, he wants to speak to Nurse Neal about some Dilaudid signed out under her name but not actually given to the patient for whom it was signed out.

Nurse Neal decides to consult an attorney.

Point/Counterpoint: Claims: The claims brought against Nurse Neal could include criminal and civil claims, negligence and intentional torts.

Parties: For the civil actions, Parker and Ives could be potential plaintiffs, and Nurse Neal and the hospital would be the defendant.

Criminal Versus Civil Claims: The civil claims differ from the criminal claims in that the civil claims must be proved by a preponderance of the evidence whereas any criminal claims must be proved beyond a reasonable doubt. The pretrial phase of the types of cases also differs as does the result. In criminal cases, depending on the severity of the crime and whether or not it is a felony or a misdemeanor, the defendant may face jail time or fines. In civil cases, the result is almost always monetary damages.

Off the Books Help students relate their past experience on the topic to what they will learn. At the beginning of the lesson, ask “What do you think are the most important things to learn about legal issues in nursing?” Use this as a starting point for setting learning objectives and/or expectations.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 4—Lobbying

Tips for Active Learning 1.

Schedule the class to attend “Nurses’ Day at the Legislature.”

2.

Ask students who have served as legislative pages or assistants to share their experiences.

3.

Have students individually choose a bill and write a letter to their legislator or representative in support of or opposition to the bill.

4.

Conduct a voter registration program on campus or in the community.

5.

Accompany a nursing lobbyist for a day.

6.

Track the progress of various health care bills.

7.

Review the voting record of legislators and representatives.

8.

Sit in the gallery during the American Nurses’ Association’s House of Delegates and report activities. Students who are already RNs may agree to serve as delegates.

9.

Review candidates’ profiles for local, state, or federal elections, and write a review of one candidate’s position on health care.

10.

Have an RN volunteer to serve on a community health board. This usually requires being a registered voter whose property taxes are current.

Case Example Facts: An RN is running for an elected position. She also works as a manager at the local hospital. She has told everyone on her unit that if they contribute to her campaign fund they will get the “better shifts.” You work as staff on the unit and do not feel that you should have to contribute to your RN manager’s war chest.

Point/Counterpoint: Discuss the legal implications of what the RN manager is doing.

Explore the ethical issues implicit in her actions as well.

Off the Books Have students design a bill that they think would benefit health care and explain the process by which it would become a law.

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Chapter 5—Ethics in Nursing Tips for Active Learning 1.

Attend a hospital Ethics Committee meeting or a long-term care facility’s Residents’ Council Meeting.

2.

Search the Internet for bioethics sites. Differentiate between clearinghouses for information and personal agendas.

3.

Propose an ethical dilemma of the future, and discuss.

4.

Cite an ethical dilemma (not a breach of standard) from clinical experiences, and discuss how it could have been addressed.

5.

Conduct a debate on a hot bioethics topic; for example cloning, stem cell research, or genetic manipulation.

6.

Invite the local organ procurement agency to discuss challenges in organ and tissue donation.

7.

Assist with a blood drive, from recruitment through aftercare, and listen carefully to participants’ thoughts.

8.

Conduct a discussion on the right to die with dignity. Use the ELNEC curriculum guide, found at www.aacn.nche.edu/elnec

9.

The easiest way to teach ethical decisionmaking is through example. Use your newspapers and journals to get current articles on, for example, right to die issues and cloning.

10.

Use the many books and resources in the market that provide specific clinical ethical dilemmas to promote class discussion.

Case Example Facts: Mr. Larry Freily suffered severe head injuries from a fight in a barroom. This wasn’t his first fight; in fact, his parents are not comfortable with him going to bars, although he is 38, because he is developmentally delayed. His nurse, Tina Mack, R.N., notices on his chart that he had a “bruised” frontal lobe and that the neurosurgeon performed a frontal lobectomy. In her 20 years as a neurosurgery nurse, she has never seen this procedure done for a “bruised” brain.

Point/Counterpoint: Discuss Nurse Mack’s ethical obligations in this situation: Notification is one issue to explore. Is Nurse Mack’s ethical duty to notify the patient’s family that she suspects the

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e

treatment was improper? Should she notify hospital administration or the Ethics Committee? Alternatively, should she approach the physician first with her questions?

Discuss the role of informed consent and autonomy in this situation: Suppose the patient’s father signed the consent form for the procedure. How does that change Nurse Mack’s ethical obligation? Where does her duty fall—with the hospital, the physician, the patient, the patient’s family?

Off the Books Hold a class debate on several ethical issues, such as assisted suicide or stem cell research. Divide the class into small teams, and assign each team one side of one issue. After giving the teams time to research and prepare arguments, hold formal debates in the classroom, with time for class discussion following each debate.

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Chapter 6—Intentional and Quasi-intentional Torts Tips for Active Learning 1.

Investigate restraint policies and practices in local facilities.

2.

Review informed consent forms. How do they help health care workers avoid situations of battery?

3.

Role-play this situation: You are assisting a patient to the bathroom, and he pulls away from you and falls. What will you do and say to this patient? What will you document?

4.

Investigate the issue of leaving health care facilities Against Medical Advice.

What must be discussed with the patient to prevent a potential lawsuit?

5.

Discuss the difference between intentional torts and negligence in medical malpractice claims.

6.

Have the students discuss each type of intentional tort and how it pertains to nursing. For example, false imprisonment can be claimed if the patient is restrained until the patient pays the bill.

7.

Have a guest nurse attorney or attorney discuss the common types of intentional torts that are seen in health care litigation.

Case Example Facts: In Smith City, Joe Nue has been hospitalized because he is losing weight and has no energy. Nurse Matthews has 10 patients to care for on her 7 a.m. to 3 p.m. shift. Joe Nue is one of her patients, and Joey Olde is one of her other patients. Joey Olde has just been diagnosed as being HIV-positive.

Nurse Matthews has been so busy that she has not had time to chart. However, she is starving and decides to run to the cafeteria to grab a sandwich. She sees her friend, another nurse, in the elevator and tells her that she has so many patients and that one was just diagnosed HIV-positive. Her friend asks who, and she says Joe Nue. Also in the elevator is Joe Nue’s neighbor, who is visiting his mother who had a heart attack. Joe Nue’s neighbor is horrified that Joe is HIV-positive and “informs” the neighborhood that Joe has AIDS and is being hospitalized for the disease. Joe’s neighbor places a banner on Joe’s front porch that says “Joe Nue has AIDS.” When Joe Nue is released from the hospital and sent home, he discovers the banner, is ostracized by his neighbors and coworkers, and loses his job because of his alleged HIV status.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e

Point/Counterpoint: Claims: Joe Nue may have claims against the nurse and the hospital for defamation and breach of confidentiality. This may also be an opportunity to discuss HIPAA and the Americans with Disabilities Act as well as ethical issues posed by confidentiality.

Duty: The nurse had a duty to her patients not to reveal confidential information and not to publicize harmful, untruthful information.

Breach: The nurse breached this duty by intentionally telling her coworker in a public place that Joe Nue is HIV-positive. Not only was it a breach of confidentiality, but the information was also false.

Damages: Joe Nue experienced emotional distress and pain and suffering, lost wages (past, present and future), and possibly incurred medical expenses if he requires mental health services.

Defenses: The nurse has few defenses at her disposal. Truth is an absolute defense to charges of defamation, but because this information was false, she cannot use that as a defense.

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Chapter 7—Common Areas of Negligence and Liability Tips for Active Learning 1.

Have the students find the legal brief column in one of the popular nursing journals and present a case for discussion.

2.

Interview a nurse manager about common errors reported as incidents on the clinical unit.

3.

If near a teaching hospital, have students attend grand rounds or a Mortality and Morbidity Conference to see how mistakes are processed and resolved.

4.

Check the State Board of Nursing for numbers of disciplinary cases that are specifically related to negligence. Invite someone from the State Board to discuss the common areas of negligence often reported.

5.

Invite a nurse attorney to discuss the types of cases that are brought by plaintiffs.

6.

Obtain copies of various cases that are discussed in nursing journals, legal journals, newspapers, and legal and ethical seminars, and make a chart of the most recurring causes of liability, e.g., communication or medication errors.

7.

Discuss with your students the common nursing actions or omissions that result in patient injuries.

8.

Obtain the policies and procedures from the facilities where the students are in clinical on: restraints, patient falls, medication errors, and burns. It is important that nursing students realize that a plaintiff’s medical malpractice attorney will obtain the policies and procedures of the institution and use these as standards.

Case Example Facts: On July 31, 62-year-old patient Shirlee Jumonville is admitted, following a left hip replacement, to Rehab Institute for gait training and lower extremity strengthening exercises.

• • •

At 8:00 p.m. Nurse Jones, RN, assists her to the bathroom because of her unsteady gait.

At 10:00 p.m., she is given Dalmane 30 mg, and the upper side rails are up. The physician orders state “upper rails up.” These orders are preprinted and signed and dated by the physician.

At 12:20 a.m., Nurse Jones again helps her to the bathroom. Nurse Jones heard a noise and found Ms. Jumonville trying to get out bed to go to the bathroom by attempting to climb out of bed alone.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e

•

At 3:45 a.m., the patient was found on the floor with severe pain in the right hip; X-rays reveal a fractured hip. The nurse had placed four (upper and lower) side rails up after the last bathroom trip.

During surgery to repair the hip, the patient suffered a stroke and is severely braindamaged. She is an administrator of a large company and can no longer work.

Point/Counterpoint: Claims: The patient and her husband may sue Nurse Jones and Rehab Institute for negligence.

Duty: The nurse and the hospital owed a duty to the patient to provide a safe environment, to follow physician orders, and to monitor her according to what her condition required.

Breach: The nurse failed to provide a safe environment by giving the patient Dalmane and placing all side rails up, even after she saw that the patient was willing to attempt climbing over them. She also failed to follow the physician orders appropriately and failed to notify the family that the patient needed someone to sit with her because she was attempting to get out of bed.

Causation: Nurse Jones’ failure to follow (a) the physician orders to keep only the upper side rails up and (b) the current standard of practice (all four rails are considered restraint and require an order and special monitoring) as well as her failure to otherwise maintain a safe environment caused the patient to fall out of bed. The fall resulted in a fractured hip, which led to the surgery that caused the stroke.

Damages: The patient suffered permanent injury and, therefore, has a claim for pain and suffering, emotional distress, medical expenses, lost wages, and loss of quality of life.

Her husband may make a claim for loss of consortium, mental anguish, and emotional distress.

Defenses: The nurse and hospital may try to claim that there was contributory negligence by the patient, who climbed out of bed without asking for assistance.

Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e

Off the Books Break students into small groups of three to six. Give out a set of index cards (mixed up randomly) to each group with the following statements: Improperly used equipment, resulting in air embolism Failure to administer the correct oxygen level Failure to attach a fetal monitor as ordered Burns to infant from formula heated in a microwave Failure to attend a patient having an asthma attack, resulting in brain damage Failure to notify physician of changes in signs and symptoms Failure to chart vital signs for hours in a labor room Failure to advise physician of jaundice Failure to notify physician of circulatory compromise in a casted leg Wrong medication given upon discharge Failure to give diazepam (Valium) as ordered Improper administration of potassium chloride Failure to recognize dehydration and electrolyte imbalance Failure to monitor intravenous therapy Failure to monitor fetal heart rate Negligent supervision of psychiatric patient who attempted suicide Negligent assignment and supervision of student nurse who did not take blood pressure for 6 hours Ask the teams to race to stack the cards into four sets of categories without consulting the book: Treatment, Communication, Medication, Monitoring/Supervising.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 8—Documentation and the Nurse

Tips for Active Learning 1.

Take one clinical case and have students practice documentation using all popular styles: CBE, narrative, FOCUS, PIE, SOAPIE, progress toward goal, and checklists with limited narrative.

2.

During clinical, have students conduct (or assist staff with) chart audits to determine the quality of documentation.

3.

Review common grammar, spelling, and handwriting principles and mistakes.

4.

Discuss the differences between “asleep” and “resting with eyes closed” and other euphemisms that staff use unnecessarily.

5.

Read passages from medical thriller novels to improve descriptive ability; then document descriptions of wounds and lesions found in clinical textbooks.

6.

Review documentation (with permission of Medical Records) and determine if there is enough information to be able to “remember” a case should it go to trial in 2 years. What else should be included?

7.

Go to www.cms.gov/hipaa and study details of the Health Insurance Portability and Accountability Act.

8.

Obtain various samples of incident reports/occurrence reports, and discuss the advantages and disadvantages of each report. Develop several scenarios, e.g., medication errors, patient falls, patient burns, and have the students fill out an incident report and evaluate the manner in which they have completed this report.

9.

Obtain copies of policies and procedures on telephone orders, verbal orders, and do not resuscitate orders in the facilities where nursing students are practicing, and discuss the similarities and differences.

10.

Discuss the pros and cons of computer charting. Obtain copies of such policies and procedures from facilities, and compare the various requirements.

11.

Explore the different requirements for documentation in home health and longterm care.

Case Example Facts: On February 17, Mr. Jim Allkinn was admitted for complaints of lower back pain.

He was involved in a motor vehicle crash 2 weeks earlier. Dr. Fray ordered Dilaudid 0.5 mg IV q 2 hours PRN for pain and Valium 2 mg q 2 hours PRN for anxiety. From noon

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on February 17 to 8:00 p.m., Mr. Allkinn received four injections of Dilaudid and Valium. Several nurses were involved in his care, but no one signed the nursing notes.

Later that night, Mr. Allkinn complained of pain and numbness in his right fingers, hand, and wrist, which was diagnosed as nerve injury and vasculitis. The unit was out of prefilled saline flush syringes. The medications had probably been pushed back to back without any saline flushing in between, causing crystallization and vessel and nerve damage. Documentation mentions nothing about saline flushing.

Mr. Allkinn filed a medical malpractice claim.

Point/Counterpoint: Claims: Mr. Allkinn may sue all the nurses involved in administering IVs drugs to him as well as the hospital for malpractice. The reason he can sue all the nurses is that none of them signed the notes, so it is unclear which nurse administered the IV drugs improperly.

Duty: The nurses had a duty to use proper IV drug administration technique and to document it appropriately.

Breach: At least one of the nurses failed to use appropriate drug administration technique—or the technique fell below the standard of care—and they all failed to document appropriately. The nurses cannot use their notes to defend themselves because the notes did not mention saline flushing, even if they did do it.

Causation: The poor IV drug administration directly caused the nerve injury.

Damages: Mr. Allkinn may claim damages for pain and suffering; mental anguish; emotional distress; past, present, and future loss of wages; and medical expenses.

Off the Books Provide students with sample documentation forms filled out. Ask them to make a list of the charting do’s and don’ts on each type of documentation.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 9—Electronic Documentation

Tips for Active Learning 1.

Examine the use of common nursing language in electronic documentation: NANDA, NIC, and NOC, among others. What is the status of achievement of standardization?

2.

List specific protective measures to prohibit viewing of electronic documentation.

3.

Discuss the pros and cons of a card to hold your health history.

4.

Discuss the advantages and disadvantages of a national database for all health information.

5.

Cite all the breaches in electronic access that have occurred in clinical experiences.

Case Example Facts: Theresa Nichols, RN, has been asked by a friend, whose ex-husband is in the hospital, to access his chart and see why he is being hospitalized. Her friend heard that he has HIV and Hepatitis C from drug use. Her friend wants to use this against him in a custody battle for their 5-year-old son.

Point/Counterpoint: Discuss the legal implications of Nichols accessing the chart, particularly confidentiality laws and HIPAA. Is the hospital liable for HIPAA violations as well if Nichols gives this information to her friend? Also explore the ethical issues that arise in the context of this scenario. Which ethical precepts would be involved in an analysis of this dilemma?

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Chapter 10—Risk Management Tips for Active Learning 1.

Practice completing an incident report and the corresponding documentation.

2.

Invite a risk manager to address the class to clarify exposure and other concepts.

3.

Using the Internet, discover how reporting of faulty medical devices and of adverse drug reactions improves patient care.

4.

Discuss a situation with known avoidable risks but little attention paid to improving the situation.

5.

Discuss a situation in which money has been spent but is not benefiting anyone, e.g., back supports worn but never fastened.

Case Example Facts: Tonya, the RN on duty for the 11:00 p.m. to 7:00 a.m. shift, has been accused of diverting drugs. It is true that whenever she is working there are numerous drug errors.

Tonya’s defense is that the other RN who works is diverting. After all, the nurse’s codes are taped to the back of the medication dispensing unit so that anyone can have access to them.

Risk Management has been called to assess the problem.

Point/Counterpoint: Discuss the legal implications for the nurses involved and for the hospital. What are the disciplinary implications? Is it just a nurse problem, or is it a facility or unit problem?

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 11—Informed Consent

Tips for Active Learning 1.

Check with area facilities about access to translated versions of informed consent.

2.

Observe a translator assist in obtaining informed consent, and discuss the experience.

3.

Investigate a facility’s “right site” or “X mark the spot” program to prevent wrong site surgeries.

4.

Role-play obtaining telephone consent when patients cannot be present.

5.

Invite the local organ procurement representative to discuss the delicate nature of consent for organ donation.

6.

Conduct a debate on the practice of witnesses to signature only. Should informed consent really entail more than just that?

Case Example Facts: • • • • • • •

Patient Janet Firth has diabetes and has had trouble with circulation.

A surgeon informs her that her right leg has to be amputated up to her knee.

Prior to surgery, a nurse sits down with her to explain the risks of, benefits of, and alternatives to surgery.

She ensures that Patient Firth understands the procedure and repeats that the surgeon is going to amputate her right leg up to her knee.

Patient Firth signs a form acknowledging the conversation, her understanding of it, and her consent to go forward with the procedure.

During surgery, the surgeon accidentally amputates Patient Firth’s left leg.

Upon realizing the mistake, he immediately amputates the right leg, only to find that an infection necessitates that he amputate her right leg past her knee and up to her thigh.

Point/Counterpoint: Informed Consent Issues Presented: The nurse seemingly secured proper and written informed consent from Patient Firth for amputation of her right leg up to her knee. Patient Firth was told about the material risks of the surgery, the benefits, and the alternative treatments, and the nurse ensured that Patient Firth understood what she was telling her.

However, the nurse was not the appropriate person to obtain informed consent from Patient Firth. It was the surgeon’s responsibility to inform her and to obtain consent.

Moreover, the nurse did not obtain informed consent for the procedure that actually took

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place. Patient Firth may have claims against her physician and nurse for assault, battery, and negligence, not to mention recklessness.

Defenses: It may be difficult to defend the amputation of the left leg, but emergency or life-threatening situation is a defense to lack of informed consent in the case of the more extensive amputation of her right leg.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 12—Facility Liability: Employment Issues

Tips for Active Learning 1.

Investigate what happens to exit interview data in area facilities.

2.

Compare benefits of facility employment versus agency contract work. Which would you choose?

3.

Obtain employment complaint statistics from Human Resources, and discuss.

4.

Role-play an appropriate response to inappropriate interview questions.

5.

Discuss the effects of mergers on local employment opportunities and benefits. Is there a monopoly?

6.

Investigate safety compliance policies and statistics, and look into OSHA requirements.

7.

Invite a compliance officer to present his or her role to students.

8.

Have the facility attorney or local nurse attorney present common employment issues and liability issues that affect hospitals.

9.

Have an attorney who specializes in employment issues and labor law discuss hiring, evaluation, termination, sexual harassment, and discrimination statutes that can affect their practice.

10.

Obtain a copy of the sexual harassment policies for the nursing school and the clinical facilities where the students are placed, and review the policy and procedure on sexual harassment.

Case Example Facts: Arthur Peoples, a 67-year-old male, was brought to the hospital by his daughter and admitted to the Emergency Department because of his altered mental status. The Emergency Department physician examined the patient and found a nonketotic, hyperosmolar coma. The patient also had low-grade temperature, urinary tract infection, and dehydration. The lab values showed serum glucose 1000 and white blood count of 12,000.

The physician ordered 20 units of regular insulin IV and two infusions with normal saline running at 200 mL/hr each. The nurse, Doreen Day, RN, agreed to float from the pediatric unit to cover the emergency room because it was short-staffed and she desired a transfer there. She hoped to demonstrate her skills so they would consider developing a pediatric section of the Emergency Department.

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Doreen gave 200 units of insulin instead of 20 units because she misread the order and was not familiar with giving adult doses. After administering the insulin, Mr. Peoples lost consciousness, became unresponsive, and had respiratory arrest. The staff conducted a resuscitation, but he expired. When his lab work came back, it was determined that his blood sugar was 32. His cause of death was hypoglycemia Point/Counterpoint: Claims: Mr. Peoples’ next of kin may sue Nurse Day and the hospital under malpractice and respondeat superior theories, respectively. They may also sue the supervising nurse who placed Nurse Day in the Emergency Department despite her lack of training and competence in treating adult patients.

Duty: The supervising nurse had a duty to appropriately supervise and staff the Emergency Department. Nurse Day had a duty to safely administer the appropriate drugs, per the doctor’s order. The hospital has an overall duty to its patients to keep them safe and to provide them with treatment that is equal to or above that required by the standard of care.

Breach: The supervising nurse breached her duty by pulling a pediatric nurse and placing her in the Emergency Department without the appropriate training or supervision. Nurse Day breached her duty by failing to follow the doctor’s order and failing to ask questions when she knew that she was unfamiliar with treating adult patients.

Causation: The breaches of duty by the supervising nurse and Nurse Day led to Mr. People’s death.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 13—Liability of the Nurse Manager

Tips for Active Learning 1.

Go www.nursingworld.org, the American Nurses’ Association Website to get the latest information on staffing issues.

2.

Interview a nurse manager to find out how current competency is known for staff.

How is licensure renewal verified?

3.

Interview a nurse manager to determine how standards, guidelines, and policies are set for the facility. What is the process; what are the resources; and how are resources reviewed?

Case Example Facts: • • • • • • • • •

Patient Porter is a physically frail 75-year-old man admitted to the hospital for chest pains.

Son Porter brings him in and tells Nurse Follow that Patient Porter is slightly confused and is prone to falls.

Nurse Follow is very hurried but escorts Patient Porter to his bed, puts the upper side rails up, and tells him she will return to check his vital signs.

Nurse Lead, who is Nurse Follow’s supervisor, is also on the floor. She is actually helping out with other patients because the unit is short-staffed.

Nurse Lead walks by Patient Porter’s room and sees him trying to struggle over the side rails of the bed. His son left to make a phone call.

Nurse Lead does not check his chart (she would have seen no fall assessment or notes about falls anyway) but quickly goes in and puts the side rails down so that Patient Porter can get out of bed.

She asks if he needs assistance to go to the restroom, and he replies, “No, what do you think I am, a baby?”

Nurse Lead leaves him and rushes off to the next patient.

Son Porter returns to his father’s room to find him lying on the floor outside of the restroom, with a fractured hip and shoulder.

Point/Counterpoint: Claims: Patient Porter and Son Porter may sue the nurses for malpractice and the hospital under the theory of respondeat superior.

Duty: The nurses had a duty to care for Patient Porter upon admission to the hospital.

Nurse Follow had a duty to document properly Patient Porter’s fall risk and to perform a fall assessment. Nurse Lead had a duty to ensure that those under her charge were performing fall assessments and documenting properly. She also had a duty to check Patient Porter’s chart and consider his condition before letting the side rails down and

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leaving him to ambulate to the restroom independently. Nurse Lead and the hospital had a duty to ensure that staffing issues were not affecting the care provided.

Breach: Nurse Follow failed to assess and document Patient Porter’s fall status. She also failed to note that Patient Porter may have required supervision. Nurse Lead failed to properly staff her floor or seek outside help to ensure appropriate staff-to-patient ratios.

She also failed to supervise her staff appropriately. As a practicing nurse, she directly breached her duty to care adequately for Patient Porter’s safety.

Causation: These nurses breached these duties, and the breaches directly caused Patient Porter to fall and injure himself. If they had performed their duties to the appropriate standard of care, he most likely would not have injured himself.

Damages: Patient Porter will have medical expenses, pain and suffering, emotional distress and, if he still works, lost wages present and future. His son may be able to seek damages as well.

Defenses: One possible defense would be contributory or comparative negligence. Patient Porter insisted on walking himself to the restroom, so he may have played a role in his own injuries.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 14—The Nurse and Medical Malpractice Lawsuit

Tips for Active Learning 1.

Review the Website or brochures of local plaintiffs’ attorney firms, and comment on medical malpractice as a specialty.

2.

Investigate the financial limits set by your state on malpractice claims. If none, what is the status of state legislation?

3.

Choose one case from the text, and investigate the standard of care that is applicable.

4.

Discuss previous concepts of documentation and ethics in nursing and relate these to lawsuit avoidance.

5.

Use a law search engine to search for recent cases and rulings (for example, www.findlaw.com).

6.

Obtain a statement from students as to how they will practice safety and competency as nurses.

7.

Obtain a copy of a case from law journals or reporters, and outline the parties, damages, and defenses.

8.

Invite a person who chairs prelitigation panels or is involved in the prelitigation process to speak to your class on how the process works.

9.

Contact the speaker’s bureau of the local bar association or nurse attorney organization for a speaker who litigates medical malpractice cases.

10.

Have local nurse attorneys or attorneys present a mock deposition or trial.

11.

Have the students attend a trial or hearing.

Case Example Facts: On January 31, patient Elizabeth D’Andrea, a 68-year-old widow, was admitted to Manor Nursing Home with a diagnosis of Alzheimer’s disease. She was capable of ambulating with a walker and assistance. Her medical history includes type II diabetes and coronary artery disease. On that day, her family requested that heel protectors be applied.

The physician’s history and physical indicated that Mrs. D’Andrea’s skin was warm and dry, with no lesions, burns, or marks. The admission assessment stated “Patient’s skin is warm and dry,” and the heel protectors were applied.

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When performing weekly skin assessment on February 7, the nurse’s notes read “Small reddened areas noted on right heel and the lower calf” (stage 1 decubitus). When performing weekly skin assessment on February 14, nurse’s notes stated “Large blisters and reddened areas noted on right heel and calf” (stage 3 decubitus).

On February 16, Mrs. D’Andrea was taken to the hospital because her toes were blackened and her heel and calf wounds had a very foul odor. Her diagnosis was gangrene of the right leg. On February 18, Mrs. D’Andrea’s leg was amputated below the knee. On February 28, Mrs. D’Andrea died as a result of overwhelming sepsis, the source being a gangrenous right leg.

Point/Counterpoint: Claims: Mrs. D’Andrea and her next of kin have a negligence claim against the long-term care facility and the nurses caring for her.

Duty: A duty was owed by the nursing staff to maintain Mrs. D’Andrea’s skin integrity.

As a known diabetic, special foot care and skin care should have been taken to prevent breakdown.

Breach: The nurses breached their duty by failing to assess the skin in a timely manner after placement of heel protectors, by failing to maintain the patient’s skin integrity, and by failing to notify the physician of decubitus so that a treatment could be ordered. The nurses also failed to appropriately document and detail the extent of the skin breakdown.

They should have followed hospital policy and procedure for documenting skin breakdown.

Causation: The failure to maintain the patient’s skin integrity led to gangrene of the right leg, which resulted in sepsis and death. These were foreseeable consequences of the failure to protect her skin integrity.

Damages: The patient suffered pain and suffering, emotional distress, disfigurement, and premature death.

Off the Books To introduce the stages of a malpractice claim to students, divide the class into small teams of three to six people. Give each team the litigation process steps, each listed on a different strip of paper (from prelitigation panels through appeal).

Ask the teams to take a few minutes to place the strips in the sequence in order of occurrence. Present the lesson, and then give the teams a chance to reorder the strips according to what they have learned.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 15—The Expert

Tips for Active Learning 1.

Role-play the skill of answering questions without volunteering information, giving minimal information as if in a deposition.

2.

Discuss who the students would like to see called as an expert from the nurses they have observed. What are the common characteristics?

3.

Discuss the practice of paying experts and reasonable pay scales. What do students think of professional experts?

4.

Discuss how students would feel about an expert critiquing their care and decisions, when the experts were not there to witness the situation.

Case Example Facts: You have been retained as an expert witness in a nursing negligence case. A child suffered severe brain damage as a result of medication error. The attorney has asked you what your fee will be to render a written report, have your deposition taken, and testify at trial. He tells you that if you render a favorable report he will give you a percentage of the settlement or jury award.

Point/Counterpoint: Discuss the ethical and legal issues that come into play with such a payment plan. Also, review how expert witnesses are generally paid and how they arrive at their testimony.

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Chapter 16—Professional Liability Insurance Tips for Active Learning 1.

Go to www.taana.org to see what current information is available on liability insurance.

2.

Using the Internet, nursing journals, and nursing associations, find the three top insurance carriers for liability insurance. Compare the three, and choose which carrier you would likely use upon graduation.

3.

Go to one of the popular nursing discussion sites, such as www.allnurses.com, and have students discuss liability insurance and disciplinary defense insurance in order to see what others are thinking.

4.

Have nursing students review their own insurance policy to determine the following: a. b. c. d. e. f. g. h.

Whether it is an occurrence or claims-made policy The types of injuries covered Exclusions Who is covered Limits of policy and deductibles Whether they have the right to select their own counsel Whether they have the right to consent to settlement or trial Cost of the policy in comparison with other policies.

Case Example Facts: Nurse Klue is worried. She has been accused of sexual harassment, and her lawyer has asked her questions about her insurance coverage. She has a number of insurancerelated documents in her file but no idea how to figure out what they mean. She is trying to find out what kind of policy she has, how much coverage she has, and when the policy kicks in. Her policy says that it covers her as an individual and that it provides $500,000 per incident and $1.5 million in the aggregate. It does specifically mention something about sexual harassment. Nurse Klue wants to settle the case because she is afraid of ruining her reputation by going to court.

Point/Counterpoint: Guiding Through the Policy: It appears that Nurse Klue holds a professional liability policy providing individual coverage. Such policies pay on behalf of a nurse in the event that monetary damages are awarded against her. In this case, however, the allegation is of sexual harassment, a common exclusion in professional liability policies. Her policy most likely sets sexual harassment out as an exclusion. If she does indeed owe damages in the end, her policy would not have to cover her. If the policy does not exclude sexual harassment, it would cover $500,000 for each incident or claim and up to $1.5 million

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total in a year for all claims combined. So, if Nurse Klue was sued again and the damages owed exceeded $1.5 million, the policy would cover only the $1.5 million in that year. It is also important to note that it is not Nurse Klue’s decision whether to settle the case.

Insurance company claims handlers, in consultation with insureds, generally make such decisions.

Off the Books Divide the students into small groups, and give each group two to three sample nursing liability policies. Ask each group to select a policy that appeals to the group members. Then ask each group to compare that policy and the others they received to the “Nursing Liability Policy Checklist” and to reassess which one they would select and why. Share the group results with the rest of the class.

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Chapter 17—The Nurse and the Contract Tips for Active Learning 1.

Investigate preferred provider arrangements and becoming a contracted provider.

2.

Discuss the continuing education brochure as a contract and what rights learners can exercise.

3.

Discuss the contract that nursing students have with their nursing program. How does this work? Can there be breach?

4.

Have the facility attorney or local nurse attorney present common employment and liability issues that affect the facility.

5.

Have an attorney who specializes in employment and labor law discuss hiring, evaluation, termination, sexual harassment, and discrimination status issues that can affect students’ practice.

Case Example Facts: Nurse Maude and University Hospital have entered into an employment contract.

University personnel handed Nurse Maude the agreement, which stated only the following: • • •

The amount of her salary Her duties and responsibilities as a nurse at University That any contractual disagreements will be handled through mediation.

Nurse Maude reviewed the contract, signed and dated it, and returned it to University personnel, who filed it in Nurse Maude’s file.

Point/Counterpoint: Contract Elements: The contract terms and offer of employment constitute the offer on behalf of the hospital. When Nurse Maude signed and returned the contract, it signified her acceptance of its terms. The consideration (or bargained-for exchange) in the contract was the salary and Nurse Maude’s assumption of job responsibilities.

The mediation clause is a method to resolve disputes without resorting to the courts.

Mediation tends to be a more private, less costly resolution, which offers “win-win” outcomes for employment disputes.

Contract Issues: There is no length-of-service term in the agreement, which may make it difficult to uphold legally. It does not have a University Hospital representative’s signature for validity. The contract also does not mention contract termination, which may cause a dispute eventually if one of the parties chooses to terminate the relationship.

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Chapter 18—Conflict Management and the Nurse

Tips for Active Learning 1.

Discuss common sources of conflict in clinical settings and the health care arena.

2.

Discuss the difference between professional relationships and friendships.

3.

Role-play assertive communication strategies.

4.

Role-play giving reports to other nurses.

5.

Role-play phoning a physician for orders for a change in condition.

6.

Discuss how it would feel to be told you could not go to court because, on employment admission, you had signed an agreement to arbitrate.

7.

Describe various types of “body language” and what they may signify.

8.

Role-play a discussion with a difficult physician.

9.

Role-play an attempt to resolve a conflict: a) with a patient, b) with a family, c) with a coworker, and d) with a manager.

Case Example Facts: An adult patient on your unit has been recently diagnosed with a brain tumor. She has been given 2 months to live. She divorced her husband 6 months ago after she underwent severe personality changes. Her ex-husband still loves her and thinks her decision to divorce him was because of the brain tumor.

You are caring for the patient, who has three estranged daughters who have come to take care of their mother. The ex-husband and his stepdaughters do not get along. Your patient has told you that she wants to see her ex-husband to make amends. The daughters tell you that he is not allowed.

The daughters have told the doctor that they want feeding and hydration removed as soon as possible. The patient’s boyfriend (of 1 month) is a paralegal and notary. He has the patient sign a power of attorney over to him, and he has notarized her signature.

You learn that if the patient dies within 2 weeks, the daughters will collect on a $500,000.00 insurance policy from their mother’s company. However, if she dies after the 2 weeks, they will only inherit $25,000.00 because of a clause in the policy that says that she will collect maximum benefits only up until 30 days after the date upon which medical leave began.

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The patient has told you that she wants everything done and will not give up. However, she is now semicomatose.

Point/Counterpoint: Explore the ethical and legal issues and conflicts presented in this scenario. In particular, discuss end-of-life decisionmaking and surrogate decisionmakers. Who has the power to make these decisions? What should occur next?

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Bonus Chapters Available to students at the URL address listed on page xxii of the textbook

Tips for Active Learning Licensed Practical Nurse Areas of Liability 1.

Role-play making assignments to LPNs and NAs.

2.

Review the Nurse Practice Act for LPNs.

3.

Discuss the role of LPNs in IV therapy in your state. Does it differ from that of the agency? How can that be?

4.

Investigate when taking the NCLEX-PN is an option for RN students or graduates.

5

Discuss the challenges of being a LPN who is enrolled in an RN program.

Entrepreneur: The Nursing Cycle of Success 1.

Invite a nurse entrepreneur to discuss contract negotiations.

2.

Discuss business opportunities that nurses can pursue.

3.

Develop a course on the "The Business of Health Care" to encourage entrepreneurial efforts.

4.

Discuss the components of a business plan.

5.

Discuss what types of insurance may be needed for a nurse in business.

6.

Critique yourself—what characteristics do you have for an intrapreneur or entrepreneur?

7.

Discuss why you want to own your own business.

9.

List the pros and cons of owning your own business.

Case Example Facts: The unit is short-staffed, and the RN on duty is an agency nurse. You are an LPN who has worked on the unit for 5 years. The RN has asked you to help out with her patients because she has “to get used to the unit.” She also asks you to perform several nursing duties that are to be done only by RNs according to the Nurse Practice Act. She tells you “Nobody will know, and we will both get out on time for a change.”

Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e

Point/Counterpoint: What should the LPN do? What are the legal and disciplinary implications?

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Instructor’s Guide for Legal, Ethical, and Political Issues in Nursing, 2/e Part II: Teaching Your Course Web-Enhanced Or Web-Based

With the introduction of the learning platform for facilitating learning, there are many interactive exercises that faculty can use to ensure that learning occurs. Although this Instructor’s Guide is accompanied by a test bank of NCLEX-RN–style questions, faculty will want to set up other activities to check that students have understood the assigned readings.

Matching Select 5 to 10 key chapter concepts and their meanings, interpretations, and applications.

Using test design software compatible with your learning platform, set up a matching exercise. It will randomize the responses on its own. Note: Such software often does not provide the one extra response generally included to prevent elimination for the last reply, but because this is an exercise and not a test, it will not matter.

Short Answer or Essay As faculty, we feel compelled to grade every reply. When short answers or essay questions are used for interactivity, we are looking for comprehension and thoughtfulness. Students can post responses to the discussion board and get feedback from their peers.

Chats Having used chats for introducing guest lecturers to the student, caution should be taken to keep groups small. Chats do offer a great way, however, to host a debate on a controversial issue, give a guest “speaker” an audience without travel for anyone, or encourage students to problem-solve a group project. By “small group,” it is

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recommended that 15 or fewer on a chat and as many as 35 at a time can be managed. As in class, some people listen more than talk.

E-mail Unless there is some reason to keep a response private, it is recommended that students post as many assignments as possible for others to see. This means reserving e-mail for faculty-student communication. The one exception is when students submit their political opinions about bills and how they asked the legislator to vote. Although this may be safe territory in some schools, it must be approached with caution in others.

Websites Each semester, check to be sure that each link is still active and appropriate. Remember there is a huge difference between www.whitehouse.gov and www.whitehouse.com.

With search engines, it is usually easy to find information, but copying the page link may not take you to the page. Occasionally you will need to take students to a main page and then provide directions to the specific content. If your learning platform allows, external links should be opened as a separate page so it can be closed without the learners losing their location in the class. The back button and the close button can be confusing when navigating a web course.

Confidentiality Remind students that under HIPAA, no personal health identifiers should be shared in any discussion, e-mail, or chat. The students should speak in very generic terms. As they are often on the same units, students often reply, “Oh, I remember him. How is he doing?” While discussing the case for learning purposes, students are not on the “need to

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know” priority list. Whenever the discussion deviates from the necessary clinical facts to engage in scholarly discussion, it has gone too far.

References 1.

Billings, D. (2002). Conversations in E-learning. Pohl Publishing, Pensacola, FL, 800.967.1479

2.

Teaching and Learning in Web-based Course Certification available online at http://www.nursing.iupui.edu/LifelongLearning/default.asp

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Part III: Preventing Cheating and Plagiarism This is an unfortunate but necessary section. Faculty members are often frustrated by students who share information during testing and project development. “Sharing” is the students’ word for cheating. Teachers have tried separating their desks and leaving backpacks at the front, but now there are PDAs beaming the information across the room and cell phones sending text messages, making it more challenging for today’s educator.

Cheating Cizek (2003) has a great guide to classroom cheating. Some of this advice includes rethinking the grading scheme. Have we put these students under so much pressure that they are no longer learning but overreacting to the test? Is the test meant to facilitate learning or to assess the application? Look at your grading scale to see if there is a balance between testing and other assessment strategies. In addition to practicing more NCLEX-RN–style questions (a necessary test preparation strategy), is there a good reason to give an examination in this course, or will other activities demonstrate learning and a resulting change in students’ legal and ethical behavior?

What happens in a course, such as Legal and Ethical Issues, is that when the emphasis is off testing and on learning, grades go up, and everyone earns an A or B. What will your colleagues think?

During testing, you can use software that provides different patterns of the same questions, such that her #1 is his #13. A faculty member once reported that a student complained that they weren’t all getting the same test. They were; the questions are just in a different order. With testing software that grades for you, the randomness is

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corrected in the computer, and grading is easy. Do you need to give weekly, unit, or twice-per-semester tests? Do you really want to grade that many essay examinations?

Another strategy that promotes both learning and assessment is group testing.

Provide a test to each student, but let students work in randomly assigned pairs. They can negotiate answers between them (learning), select separate answers if there is no agreement (independent thinking), and receive separate scores (assessment). Variations of scoring are used with weighting of the individual score versus the paired score. But you get the idea; be sure students are learning the material at the same time that faculty are measuring their scores.

A discussion about cheating on tests could take volumes, but just as creating a warm, supportive environment in the hospital is one strategy to avoid suits, creating a warm, supportive classroom environment is one strategy to avoid cheating. If students feel safe, if they have participated in learning the material, if their life doesn’t depend on this one test score, then cheating will dissipate. See Cizek’s work for more discussion.

Plagiarism Isn’t the Internet wonderful? Students can copy and paste sections of work with a keystroke. That’s not what teachers intended, nor is it plagiarism in students’ eyes. Many students believe that this is research and appropriate use. We need to teach them that any thoughts that are not their own must be attributed to someone. The problem is that many students still cannot differentiate their own thinking from someone else’s. They’ve been into group-think for a while now. We must teach them that they didn’t invent Orem’s Self-Care Theory; in fact, Dorothea Orem did and thus deserves credit by means of an appropriate citation. And therein lies the problem. The students often do not go to a

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library and touch the book or journal but take an excerpt from a pdf file or read an e-book to get information. Even this textbook has two bonus chapters available only on the Web. So what is the solution? Rough drafts! These drafts are not necessarily graded but reviewed and discussed in class so that everyone begins to learn that citations are meant to give due credit. It’s not a conspiracy by the American Psychological Association to make us use the latest version of the APA Manual of Style. As more students become computer-savvy, citations will become easier by using one of the reference manager software packages available through Thomson Learning. We should help students learn how to paraphrase and how to give credit for the work of others. Then we should help them develop their own ideas so that the paper reflects some of their independent thinking.

In a hurry, you can subscribe to www.plagiarism.com and run your papers through their screening device. You can also do a www.google.com search for phrasing that you think may come from someone else, such as “The treacherous political climate contributes to the instability created by the nursing shortage.” With electronic database searching capabilities, you can check references quickly. An APA workshop sponsored by the Student Nurses Association is always a lunchtime favorite. If you have one twice a semester, the students will get better, and it will take less time to grade those papers.

When all else fails for testing and papers and you’ve found a problem, be sure that there are policies and practices in place among the faculty members to handle the situation consistently and fairly. It is not helpful if no one on the faculty wants to take on the problem because it is considered such a time-waster. What kind of ethics are we modeling for our students if we turn away from blatant cheating and plagiarism? It may

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be painful, but it supports our responsibility of improving patient care one nurse at a time.

It really is not safe to employ a critical care nurse who cheats on the EKG interpretation test.

Reference Cizek, G. (2003). Detecting and preventing classroom cheating. Sage, Thousand Oaks, CA.

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Part IV: The Rights and Liabilities of Educators and Students Introduction In order to function at an optimum level, educators must have a clear understanding of the education program’s goals, priorities, and policies. Clear, ongoing communication on all work-related issues must occur among educators, students, school, and clinical facilities. To promote an effective relationship, a clear understanding of the educator’s rights, student’s rights, the program’s goals, and the role of the clinical institution is necessary.

Employment-at-Will: Federal Laws Affecting Educators and Students The employment-at-will concept describes a work relationship that can be terminated at any time and for any reason, if not prohibited by state or federal law. The employee can quit the job, or the employer may terminate the employee with or without cause. Both federal and state laws affect employers and employees and impose additional restrictions.

Federal legislation includes the following:

1.

The National Labor Relations Act prohibits any employer from discharging an employee for involvement in collective bargaining activities. This includes employees’ efforts to organize and assist in obtaining collective bargaining representation.

2.

The Americans with Disabilities Act prohibits discrimination in hiring or termination of an employee because of a physical or mental disability.

“Reasonable accommodations” must be provided.

3.

In 1967 the Age Discrimination in Employment Act was passed to prevent discrimination for those ages 40 through 70.

4.

The Vocational Rehabilitation Act was created to encourage employers who have federal contracts to employ and promote handicapped individuals.

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5.

The Vietnam Era Veterans Readjustment and Assistance Act of 1972 was passed to encourage government contractors to employ disabled veterans and qualified veterans of Vietnam.

6.

The 1964 Civil Rights Act created the Equal Employment Opportunity Commission (EEOC) to investigate complaints of discrimination and to correct violations via conciliation or court action. The EEOC is also authorized to bring individual lawsuits against discriminatory offenders.

7.

Title VII, amended by the Equal Employment Opportunity Act of 1972, remains the most comprehensive of discrimination laws. Under the law there can be no discrimination in hiring, firing, promotions, pay, or benefits. Title VII does not require employers to hire, fire, or promote unqualified employees nor does it prevent wage differentials based on merit, incentives, or seniority.

Title VII prohibits an employer from unlawful employment practices such as failure to hire and discharging or discrimination against an individual with regard to compensation, terms, conditions, or privilege of employment based on race, color, religion, sex, or national origin. Employers are also prohibited from limiting, segregating, or classifying employees or depriving persons of employment opportunities based on race, color, religion, sex, or national origin.

8.

The Equal Pay Act ensures equal pay for equal work and prohibits discrimination on the basis of sex. Job salaries that require equal skill, effort, responsibility, and similar circumstances must be equal unless payment is based on a seniority system, merit system, system based on quantity or quality of production, or a system producing a differential based on any other fact other than sex.

9.

Title IX says that no person will be subjected to discrimination on the basis of sex under any educational program or activity receiving federal financial assistance.

10.

United States Constitutional Amendments: • First Amendment guarantees freedom of speech.

• Fourth Amendment provides protection against unreasonable search and seizure.

• Fourteenth Amendment provides due process of law for denial of life, liberty, and property, and equal protection under the law.

• Tenth Amendment provides states the protection of the First, Fourth, and Fourteenth Amendments.

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Probationary Period The probationary period during a work relationship is a time when an employee’s rights are limited and termination with or without reason is a practice. The probationary period is generally defined as a specific time period or a period proper to an employee obtaining tenure or post-probationary rights. The probationary period is often a time for an employer or educational institution to evaluate and carefully examine an educator’s/employee’s “on the job” performance and for the employee to examine and evaluate the workplace. Even though employees may be represented by collective bargaining agreements, the probationary period is a time when personnel decisions made by employers are less subject to challenge and more easily defended.

Tenure Tenure is a permanent lifetime work appointment to a specific job. Tenure is obtained when an educator satisfactorily completes a probationary period or has attained a certain job level and cannot be fired except for cause. It is an earned right that protects educators.

The institution relinquishes the freedom or power to terminate the faculty member’s service. However, now many universities have instituted post-tenure review, a process to document continued contributions and competency.

If a tenured employee is disciplined or terminated, the employer must show “just cause” for terminating the employee. The employer must demonstrate employee misconduct that injures the employer’s business, and there must be no reasonable excuse for such conduct. Examples of “just cause” include incompetence, neglect of duty, and moral turpitude. Those employees covered by collective bargaining agreements are entitled to due process rights and can only be terminated and disciplined for just cause.

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Nontenured Educators Nontenured educators may be terminated for reasons that include but are not limited to the following: • • • •

Cause Financial reasons Conduct that is detrimental to the nursing program Inability to cooperate and maintain harmony among staff

Due Process Due process requires that the employee has notice; a full and complete hearing, including the opportunity to cross-examine (ask questions of the institution’s witnesses); the opportunity to present rebuttal evidence; and access to an appeals mechanism or oral or written argument. Often, arbitrators hear disputes under contracts. Arbitrators are nonpartisan third parties who render a decision after hearing a specific case. When arbitrators hear cases about just cause and discipline, they consider many factors.

The employee must have knowledge of the practice or policies of the institution as well as the type of conduct that warrants the discipline. The discipline must be appropriate and cannot be arbitrary, capricious, or discriminatory. The discipline must be the same for each employee with the same violation without regard to the individual’s identity. For example, if five or six school faculty members are late on numerous occasions and receive no disciplinary action, and the sixth faculty member is late only one time and is fired because of this one incident, a clear example of disparate treatment is evident. Disparate treatment or impact means that an employment practice discriminates and has a negative impact. In the example, the employer is clearly arbitrary, capricious, and discriminatory and did not meet the burden of just cause.

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Tenure Denied If an individual is denied tenure, she or he may request a review of the dispute. The proceeding will include a review of the institution’s rules and regulations and an evaluation of due process. If an individual wishes to dispute the findings of the internal review of the institution, he or she can go to court.

The courts will usually not substitute their judgment for that of an institution on the issue of tenure or professional competence. The court will review the institution proceeding to determine if it has been followed correctly, and the court will also look to the rules, regulations, and procedures that have been applied to other cases. The American Association of University Professors has many publications and resources to assist in these cases at www.aaup.org The employer maintains the right to discharge employees for cause if they falsify work records, commit a crime against the employer such as theft, exhibit disruptive conduct, fail to perform services, or are insubordinate.

Insubordination Insubordination is the intentional refusal of an employee to perform a reasonable assigned task. For an educator to be insubordinate, the assignment must be clear, unambiguous, and reasonable, and the educator must directly refuse to comply.

Grievance Procedure All educators are expected to report to work on time and be ready, willing, and able to work. When the employer is dissatisfied with the educator’s ability to meet this expectation, discipline may result.

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agreement, disputes about the working conditions or complaints may be initiated by the employees through the grievance procedure in their contracts. The grievance procedure must have time limits and specific involvement of management representatives in the grievance hearing. A union representative investigates the complaint. The grievance should be reduced to writing. Decisions by the employer should also be in writing within specific time periods.

The final step in the mechanism may be arbitration. Both the employer and the employee have an opportunity to argue their cases, refer to sections of the contract in dispute, and bring up previous decisions rendered. The arbitrator makes a decision, which must be followed by both the employer and the employee.

When reviewing cases of discipline, several issues are considered. All discipline must be timely, corrective, and not punitive. If there are improper practices or violations of work expectations, the employer has the right and responsibility to inform the involved educator in a clear, concise manner and to offer corrective discipline. If there is a very serious issue, such as an educator bringing a gun to the clinical setting and threatening a student, the employer must act quickly but judiciously.

Employers must provide clear job descriptions, goals, and expectations to their staff. Policy and procedure manuals must be accessible and accurate. Employees must familiarize themselves with expected policies and procedures.

For grievance or complaints made, at-will employees should follow the institution’s internal procedure. The procedure should be followed whereby the

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institution ultimately decides the outcome of these disputes. This is an internal procedure as opposed to the use of an arbitrator by collective bargaining employees.

Salary disputes and all disputes dealing with the terms and conditions of work can be brought to remedy through the grievance procedure. If there is not a satisfactory remedy, a claim may be brought to the courts.

Goals of Schools The mission of academic institutions is to accomplish a stated curriculum in an optimum learning environment for all students. The school's rules and regulations should offer clear parameters to students by which they will be graded and evaluated. State laws and state agencies often play a role in monitoring an institution’s ability to accomplish its goals in a prescribed fashion. In most states, state nursing boards review nursing programs. State laws must be followed for all terms and conditions of work, which are governed by labor law and employees’ compensation laws. Additionally, scholarship funding is often tied to accreditation by a nursing body. It is important to maintain accreditation in order to maintain quality and recruit students.

Academic Freedom The concept of academic freedom in the classroom is the First Amendment’s right of educators to investigate, examine, and reach conclusions in the classroom without limits set by the institution. Faculty cannot be penalized for exercising their First Amendment right of freedom of speech. However, there is a balance between achieving the curriculum and exercising academic freedom—the curriculum is a priority.

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Relationship with Clinical Facility The clinical aspect of nursing education requires a clear work relationship with the involved clinical facility. The goal is to provide hands-on learning experience for students in a safe environment. To enable an optimum learning experience, the clinical facility, faculty, and the academic institution should have, in writing, an agreement or contract describing the work relationship. This agreement or contract should describe all aspects of the work commitment and who is responsible for which students. The clinical institution’s policies and practices must be known, and the staff must be involved in the work agreement. The clinical facility must designate the type of experiences they can provide, and selection of patients should be done in consultation with the faculty. The academic institution is responsible for maintaining the safe practice of its students and supervising their actions. It is helpful to remember that, at all times, students and faculty are guests of the facility; they are not entitled but invited.

Clinical Institution’s Responsibilities • Patient care • Clear communication with the academic institution on all work-related issues • A safe work environment • Provide a teaching environment—not expect supplemental staff The clinical facility may be held liable for any negligence or malpractice committed on its premises by nursing students. There is typically a contract between the academic institution and the clinical facility that defines the relationship and responsibilities of each party. The contract usually defines the nursing student as a nonemployee and requires the students and faculty to maintain professional liability insurance. The contract also states who is responsible for supervising the student. Although facility personnel may provide

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resources and information to the student, faculty members monitor and supervise care and tasks rendered by students.

Students are not assigned to the clinical facility in order to supplement staffing.

They are present in order to learn how to practice as nurses. Institutions and faculty have an obligation in the contract to state clearly that patient care is the responsibility of the clinical facility. The clinical facility must make clear in the contract that faculty and students are not eligible for workers compensation benefits should they become injured while at the clinical site.

Academic Institution Responsibilities • • • • • •

Advise the students of acceptable protocol, policies, and procedures of the facility Supervise the students Communicate with the clinical facility Assign students to tasks they are safely and competently capable of doing Maintain nursing standards Promote patient confidentiality

Supervision Supervision of students by faculty is a critical aspect of maintaining safety in the clinical area. Nursing educators must also decide whether a student is exhibiting inappropriate behavior, which includes signs and symptoms of being under the influence of drugs and/or alcohol. The school must have established criteria in consultation with its counsel about the appropriate way to intervene with a student who is under the influence. Faculty must make a judgment about safety in the clinical setting.

In order to maintain nursing standards, faculty and students must be familiar with established goals of the nursing education program. These standards are established and evaluated by the accreditation bodies called the National League for Nursing Accrediting Commission (NLNAC) and the Commission on Collegiate Nursing Education (CCNE).

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The NLNAC and CCNE visit nursing institutions, review their goals and standards, and approve or disapprove accreditation of the institution. Legal accreditation is required and is often a parameter that defines nursing standards.

Liability Liability responsibilities are based upon acceptable and reasonable nursing standards.

Educators and students are accountable for their personal actions. The assignment of a student to a patient is a judgment call made by the faculty member that the student can safely and competently provide care to that patient. There must be considerable emphasis on evaluation and documentation of students’ demonstrated skills, knowledge of facts, interpersonal ability to deal with patients, and the knowledge of the student’s limitations.

Students must be reminded to ask for help when in doubt. Proper supervision of students is the responsibility of the faculty. Proper documentation of student skills and abilities must be maintained to indicate proficiency and competence.

Academic Institution Injuries Caused by Students or Faculty Automobile accidents traveling to and from clinical settings may be an area of liability for the academic institution. For example, suppose transportation is provided by a nursing school, and the school has been put on notice that the student driver or instructor is reckless and the school allows the driver to continue to drive. The school can be held liable if students in the vehicle are injured due to the driver’s negligence. The student or instructor is also liable for injuries and damage sustained by the student.

Injuries in the clinical setting to students, staff of the institution, and patients may also be the responsibility of the academic institution. Needle sticks are often treated by the clinical facility, but at the expense of the student or academic institution.

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Negligence Faculty and students are governed by state and federal medical malpractice laws, statutes, and case law. For example, if a faculty member injures a patient while administering an injection, the faculty member may be personally liable if considered negligent in rendering reasonable patient care under the circumstances. If a student injures a patient, the student can be held liable for negligence. The nursing instructor may be held liable if the student was not properly supervised or if the faculty improperly delegated a duty to a student who was not properly trained or prepared to care for that type of patient.

Sources of Student Nursing Malpractice The nurse practice acts generally allow the student to practice nursing without a license while they are learning to be nurses. However, the academic institution can be held liable for improper delegation if they know a nursing student is not prepared or capable of performing a specified task or treatment. Common causes of student nursing malpractice are: 1.

Failure to properly assist patients with ambulation. For example, a nursing student, assigned to a 75-year-old patient with Parkinson's disease who is confused, fails to use a walker or give assistance in ambulating. The patient falls and fractures her right hip.

2.

Improper administration of medication, anesthesia, or treatments. If a patient is harmed or injured due to improper administration, the student can be held personally liable. The academic institution and faculty may be held liable as a result of the student's actions.

The academic institution and faculty are responsible for assessing the ability and knowledge of the students and for properly supervising them. Using established guidelines for assessing students, faculty is responsible for assigning patients to students who have the knowledge and experience to provide safe care. The academic institution

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and faculty must be aware of state guidelines and the Nurse Practice Act for delegating care. The licensed party, the clinical educator, or school may be held liable if a state law is violated in an act of malpractice.

Ultimately, nursing students are responsible for their actions in the clinical area.

There is a duty on the part of the students to provide safe and reasonable care in activities they have studied and to refrain from any action or intervention they do not feel adequately prepared to deliver to a patient and to seek help when they are uncertain.

Students are obligated to perform tasks they feel they are qualified to perform and to meet a reasonable standard of care.

Standards of care can be found in the policy and procedure manuals of the academic institution and clinical facility. Any nursing care delivered by the student must conform to these standards. The student is responsible for any course and curriculum materials from the school up to the time of the act of malpractice. The student's mastery and knowledge of the course material should be documented objectively by the faculty.

The faculty can develop a check-off list that is signed and dated. This document can be used to protect the faculty if there is an allegation of improper delegation. With the documentation, the faculty can show that the student displayed the requisite knowledge and satisfactorily passed the check-off evaluation on objectives by means of test scores and performance evaluations.

The court will determine if the academic institution assigned a patient to a student on the basis of these objective measurements. If the student meets the evaluation criteria, the courts will judge the student's actions based on a reasonable level of performance expectation.

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Nursing Student Rights and Liabilities The rights of students are not as extensive as those of educators. Faculty members are entitled to a majority of their rights by virtue of being employees as well as by being licensed professional nurses. Students are assigned their rights primarily by statutes and constitutional law, e.g., the Fourteenth Amendment, which guarantees every citizen the right to due process. Educational institutions are expected to abide by due process in actions taken against students for discipline. Students often employ the grievance process for themselves when there has been an unfair action. The burden of proof is on the student to demonstrate unfair treatment or evaluation.

Academic Discipline The courts do not view the student as having the same extensive due process rights when the issue is academic discipline. The court is reluctant to substitute its judgment for that of the educator and institution in making a decision related to the student’s academic fitness. The courts see the institution as being an expert regarding academic issues. For the student to involve the courts on an issue of academic discipline or dismissal, the student has the burden to prove that the faculty and /or institution acted in an arbitrary or capricious manner or in bad faith. The courts have imposed an even lower standard of due process on issues of grading disputes, once again deferring to the academic expertise of the faculty.

When reviewing disputes between faculty and students, the following types of documentation may be used as evidence: • • •

School catalogue Attendance records Grading appeals procedures and policies

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• • • • • • • • • • •

Student papers and examinations School bylaws Handbooks Policy and procedure manuals Committee minutes Clinical evaluations Course outlines Independent student records School handbooks Course objectives Student evaluations It is important that student records reflect the positives and the negatives of the

students’ work, classroom participation, tests, and clinical performance. The file should also include information outlining the progress in achieving course objectives and anticipated behavioral performance. Anecdotal notes are private to the faculty but are admissible in court. If they are maintained on one student, they must be maintained on all who are supervised by the faculty member.

Courts generally try to maintain a hands-off approach in the student/faculty relationship. Allegations of violation of due process rights, bad faith and/or arbitrary or capricious decisions, criminal activity, or breach of contract are the primary issues that can entail intervention by the court. The court must first decide if it has jurisdiction over the issue. Generally, there must be a finding of state action for the courts to intervene.

State action is found if the institution involved is publicly supported (a municipal, state, or federal facility), if it accepts federal funding, or if the institution is licensed or accredited by the state.

If state action is found, and the court has jurisdiction, the court evaluates the case before it. The court distinguishes if the case is academic or disciplinary in nature and

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evaluates whether the due process standard has been met for the case at hand. If the court determines that the student was treated fairly, the finding is for the institution.

Admission Requirements As a nonstudent applying to an educational institution, the applicant has no relationship with the school at the time of application. No special rights exist for the applicant other than basic civil rights possessed by all citizens. Primarily, the school is not allowed to discriminate in its admissions policy. Discrimination generally includes sex, race, age, and national origin, but states may individually impose other definitions of discrimination. Admission requirements must be a reflection of the stated mission and philosophy of the institution. For public institutions, the state’s board of higher education can determine that students are required to function in a clinical health setting and must be able to deliver care in a manner that is safe for patients. In the past, visually and hearing impaired applicants have been denied admission to nursing programs with the explanation that they are unable to fully evaluate patients and are unable to deliver safe nursing care due to their sensory deficits.

However, with the passage of the Americans with Disabilities Act (ADA) “reasonable accommodation” may be required by institutions to allow disabled students to attend classes. Students must work with the campus office of disability services and declare the disability. It is not up to faculty to guess, nor must faculty take a student’s word. A plan established for all classes and faculty can be developed by disability services.

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Grading Problems—Breach of Contract Some courts have interpreted the academic institute bulletin or catalogue as a contract between the school and student. The catalogue or bulletin must state what the institutional policy is on grading and passing. Academic institutions have the right to set minimum grading requirements. The catalogue, handbook, and all applicable policies must be available to every student. Breach of contract is an issue that the court will determine by assessing whether the academic institution complied with its policies in the catalogue. If the procedure was not followed or was violated, there may be a finding of breach of contract. For example, a student admitted to a nursing program under the conditions set forth in the catalogue had to successfully pass each course with a “D” or better. The student was advised prior to the end of a term that she was failing a course and should resign from the program and request readmission for the following year. The student was granted readmission, but the school catalogue changed the grading requirement for a course credit to a “C” or better. The student had had two ”D” grades the past semester.

The student was told that she should resign again from the program. The court found that there was a contract that existed between the student and the academic institution, and the contract was the catalogue in effect at the academic institution. The court also found that schools have a right to change catalogues but that such changes do not cancel contracts previously existing as long as the students fulfill the obligations of the initial contract.

(The University of Texas Health Science Center at Houston, School of Nursing v. Babb, 646 S.W. 2d 502 [Tex 1982]). Many schools use a plan of introducing a catalogue change at least a year in advance.

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Arbitrary Treatment Arbitrary treatment can be found by the court if there are no clear criteria defined in the course catalogue or if the student is not informed by individual faculty as to what the grading requirements will be for a specific course. Students must receive a course description that outlines the grading criteria and process. Students have a right to expect that the criteria are the ones that will be used in making grading determinations. If a student can demonstrate that a grading process is not followed as stated, the court may find the faculty or academic institution guilty of arbitrary treatment. Documentation is crucial in defending such a claim.

Confidentiality Students are also entitled to expect confidentiality of their student records. The student can bring a claim of defamation if an educator intentionally gives a third party information that is false and cause damages to the student. Students may challenge performance evaluations and letters of reference that contain false information.

Evaluations made in good faith, with no malice, are not likely to be considered defamation by the courts. These records are protected under Family Educational Rights and Privacy Act (FERPA).

It is recommended that students’ medical files be kept separate and apart from their general student files to maintain confidentiality. Also, medical files should have access that is restricted to only a limited number of personnel. These files are now protected under HIPAA.

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Safe Environment Nursing students have the right to attend a school campus that is maintained in a safe manner. The courts have found that it is a reasonable expectation for students to have a certain degree of safety on institutional grounds or facilities. Institutions must also take steps necessary in order to promote physical safety on campus grounds. Steps may include installing adequate lighting, trimming bushes to prevent potential hiding places for attackers, and maintaining buildings in a reasonably secure fashion. Academic institutions have been held liable for negligence for inadequately informing students of a known or potential hazard. For example, an institution that failed to inform students that several student attacks had previously occurred in a dormitory was held liable when a student was attacked. The academic institution had prior notice, failed to prevent attacks, and gave no notice to students. (District of Columbia v. Doe, 524 A 2d 30 [D.C.1987]).

Crime reports are available through institutional effectiveness programs and campus security.

Nursing institutions are also obligated to assess the potential risks of crime against their students at clinical sites. A school may be found negligent if students are victims of a crime while performing clinical requirements if the institution had knowledge of crimes in the area where students are required to practice. Students are often told to travel in pairs, leave valuables in the car, and exercise appropriate caution.

OSHA Standard for Bloodborne Pathogens and the Health Care Provider Each July, modifications are made to regulations for patient and employee protection from bloodborne pathogens (most particularly human immunodeficiency virus and

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hepatitis B virus). These are reintroduced each year in mandatory employee annual training programs.

The standard requires employers to provide: • • •

Education to minimize the risk of potentially infectious substances in the workplace Appropriate personal protection equipment Safe disposal of potentially infectious or biohazard materials.

This standard also requires employers to offer a vaccine against hepatitis B virus

within 10 days of initial employment. Because students are generally classified as nonemployees, health care facilities have no obligation to provide this vaccination under the bloodborne pathogen standard. However, students have the right to reasonably expect the educational institutional to implement an appropriate policy regarding potential exposure to infectious materials in the clinical practice area.

Does a student's refusal to care for a patient with a specific disease constitute insubordination or failure to complete the clinical objectives for the course? The policy and procedure manual of the educational institution should outline the institution's policy on student refusal to care for patients with contagious diseases. It should also cover the policies on the use of universal precautions and such personal protective equipment as gloves, protective eyewear, gowns, aprons, surgical caps, and shoe covers. Additionally, students should be educated on the appropriate disposal of sharps and other contaminated wastes and handling linen and other supplies.

The policy on student refusal to care for specific patients, with specific particular illnesses, usually includes but is not limited to the following: • •

An investigation by the clinical faculty member to report the objective data or facts surrounding the incident The nature of the patient care assignment

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• • • • •

The student's reason for refusal to provide care Documentation of risk to the student vs. the benefits to the patient receiving care Documentation of the health care facility’s safeguards Documentation of outcome decisions Methods of reporting to the student the decisions made and methods to appeal the decision.

In such policies the educational institution has the responsibility to protect

students from unnecessary risks. An identifiable risk of exposure to potentially infectious materials that is not adequately addressed by the educational institution (e.g., failing to teach students appropriate standard precautions and the use of barrier precautions) may expose the educational institution to liability. If the clinical facility fails to provide adequate personal protective equipment, it may expose the educational institution to liability for the student's health status.

Although students are not employees, the contract between the health care and educational institutions that addresses placement of students in clinical practice areas should contain a provision that the health care institution must abide by all health and safety laws and regulations. Such a contract gives the educational institution and the student standing to require the health care institution to comply with safe workplace conditions in order to continue the placement of students in clinical practice areas.

References 1.

Creighton, Helen: Law Every Nurse Should Know, 5th ed. W.B. Saunders Company, Philadelphia, 1986.

2.

Creighton, Helen: Legal Implications of Policy and Procedure Manual - Part I. Nurse Management 18 (4) April 1987.

3.

Creighton, Helen: Sexual Harassment: Legal Implications - Part II, Nursing, Nurse Management 18 (7) July 1987.

4.

Department of Labor: Occupational Exposure to Bloodborne Pathogens - The Final Rule, 29 CFR 1910, 1030.

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5.

Dowel, Marsha: Sexual Harassment in Academia: Legal and Administrative Challenges. Journal of Nursing Education 31 (1) January 1990.

6.

Fiesta, Janine: The Law and Liability: A Guide for Nurses, 2nd ed. John Wiley & Sons, New York, 1988.

7.

Grant, Ann: Dealing with a Student Grievance. Nurse Educator 14 (6) NovemberDecember 1990.

8.

Lessner, Muriel: Avoiding Student-Faculty Litigation, Nurse Educator 15 (6) November-December 1990.

9.

Motacha, Linda: Developing Procedures for Students who Refuse to Care for a Client, Nurse Educator 14 (6) November-December 1989.

10.

Murphy, Ellen: Celebrating the Bill of Rights in the Year of Rust v. Sullivan, Nursing Outlook 39 (5) September-October 1991.

11.

Northrop, Cynthia E. & Kelly, Mary E: Legal Issues in Nursing. C.V. Mosby Company, St. Louis, 1987.

12.

OSHA-issued regulations that became effective in July 2003.

Resources American Association of Colleges of Nursing: www.aach.nche.edu American Association of University Professors: www.aaup.org Equal Employment Opportunity Commission: www.eeoc.gov (1-800-669-4000; TTY 1-800-669-6820) Federal Labor Relations Authority: www.flra.gov National Labor Relations Board: www.nlrb.gov National League for Nursing: www.nln.org U.S. Commission on Civil Rights: www.usccr.gov U.S. Department of Labor: www.dol.gov (1-866-4-USA-DOL; TTY 1-877-889-5627) U.S. Department of Justice, Office of the Attorney General: www.usdoj.gov (1-202-3531555)