Legal & Ethical Issues in Nursing, 6th edition by Ginny Wacker Guido Solution Manual

Legal & Ethical Issues in Nursing, 6th edition

BY Ginny Wacker Guido

Email: Richard@qwconsultancy.com

Chapter 1 Legal Concepts and the Judicial Process Objectives 1.

Define the term law and describe four sources from which law is derived, including constitutional, statutory, administrative, and judicial (decisional) law.

2.

Compare and contrast the doctrines of precedent (stare decisis) and res judicata.

3.

Define and give an application of both jurisdiction and landmark decision.

4.

List four ways in which laws can be changed.

5.

Define classifications of law, including common, civil, criminal, public, and private law.

6.

Distinguish between substantive and procedural law, and state why each is important to professional nursing practice.

7.

Discuss due process and equal protection law.

8.

Differentiate between questions of law and questions of fact in trial settings, and give an example of both.

9.

List two types of jurisdictions, giving the definition and an example of each.

10.

Explain the functions of the trial courts, appellate courts, and supreme courts at both the state and federal levels.

11.

Describe statutes of limitation, their significance, and their purpose.

Introduction: The disciplines of law and professional nursing have been officially integrated since the first mandatory nurse practice act was passed by the New York legislature in 1938. The nursing profession has continuously relied on statutory law for its right to exist on a licensure basis and on court decisions for interpretation of these statutes. Professional practitioners must know, understand, and apply legal decisions and doctrines in their everyday nursing practice. This chapter presents an overview of the legal system, sources and types of laws, and the role of the American court system.

I.

Definition of Law A. The word law is from Anglo-Saxon term lagu: fixed or laid down B. A set of rules or principles governing society and subdivided into: constitutional, judicial, and legislative law 1. Dynamic and fluid, reflecting the ever-changing needs and expectations of society, created by people and existing to regulate all persons 2. All three branches of government have the authority and right to create laws

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II.

Definition of Law

Sources of Law A. Constitutional law 1. System of fundamental laws or principles for the governance of a nation, society, corporation, or other aggregate of individuals; basis of a governing system

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2. Highest form of statutory law: statutory laws govern existing conditions, constitutional law protects the law from frequent fluctuations in public opinion, therefore governing for future as well as present 3. First three articles enumerate the powers of the three branches of the federal government: Congress, executive branch, judicial branch 4. U.S. Constitution places limits on the federal government through the Bill of Rights (the first 10 amendments of the Constitution) 5. Federal constitutional law is the supreme law of the land and prevails over state and local law 6. The federal government derives positive grants of power from the U.S. Constitution 7. State governments possess plenary powers subject only to limitations by their individual state constitutions, the U.S Constitution, and limitations necessary for operation of the federal system

B. Statutory laws 1. Made by the legislative branch of government (Congress, state legislative bodies, city councils); designed to declare, command, or prohibit, and referred to as statutes 2. Compiled into codes, collections of statutes, or city ordinances 3. Police power is a term often used to describe states’ inherent power to legislate and govern to maintain public order, health, safety, and welfare 4. Statutory laws affecting nursing: nursing licensure laws (also known as nurse practice acts or nursing practice acts), statutes of limitations, protective and reporting laws, natural death acts, and informed consent laws

C. Administrative laws 1. Enacted by administrative agencies: specific governing bodies composed of persons with qualifications and experience and charged by the legislature with implementing particular legislation (e.g., state boards of nursing are predominantly composed of registered nurses) 2. Administrative agencies create rules and regulations that enforce statutory laws, and conduct investigations and hearings to enforce the law 3. Procedural acts: may also govern administrative bodies delineating how the agency promulgates rules and regulations; provide for comments from the public before the rules and regulations are enforceable 4. Agency has authority to determine how rules and regulations are enforced; decisions may be appealed through the state court system 5. Courts then review agencies’ actions:

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a) Was the delegation of power to the specific administrative agency constitutional and proper? b) Did the specific administrative agency follow proper procedures in enforcing the statutory law? c) Is there a substantial basis for the decision? d) Did the administrative agency act in a nondiscriminatory and nonarbitrary manner? e) Was the issue under review included in the delegation to the agency?

D. Attorney general’s opinions 1. When national or state attorney generals are requested to give an interpretation of the law; binding until a subsequent statute, regulation, or court order amends the attorney general’s opinion; type of administrative law 2. Attorney general’s opinion provides guidelines based on both statutory and common law principles when statutes are written in vague terms 3. A board of nursing may request a state attorney general’s opinion to ensure compliance of the nurse practice act 4. Opinions may be formal or informal; the greater the liability risk, the more likely it is a formal opinion

E. Judicial laws 1. Made by the courts, interpret legal issues that are in dispute 2. Judicial law may be made by a single justice—with or without a jury—or by a panel of justices 3. In deciding cases the court interprets statutes and regulations or decides which of two conflicting statutes or regulations apply to a given fact situation 4. Courts decide whether the statute violates a constitution (state or federal) 5. Two constitutional doctrines guide decision-making role of courts: doctrine of precedent (stare decisis) and res judicata a) Stare decisis means “to let the decision stand,” applied in cases with similar fact patterns previously decided by court system, and court arrives at similar decision in current case b) Previous case must be within the jurisdiction of the court hearing current case c) Court may depart from previous decision and set a landmark decision when societal needs have changed, technology has advanced, or adhering to precedent will further harm already injured person .

d) Res judicata means “a thing or matter settled by judgment” and is employed in duplication of litigation and seemingly apparent contradiction in decisions

F. All laws are subject to change 1. Constitutional laws may be amended 2. Statutory laws may be amended, repealed, or expanded by future legislative action 3. Administrative bodies may be dissolved, expanded, or redefined 4. Judicial or decisional laws may be modified or completely altered by new court decisions

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Constitutional Law

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United States Constitution

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Statutory Laws

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Administrative Laws

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Attorney General’s Opinion

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Judicial Laws

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All Laws Are Subject to Change

III. Classifications (Types) of Law A. Common law 1. Law derived from principles rather than rules and regulations; based on justice, reason, and common sense 2. Federal courts and 49 state courts follow the common law of England 3. After the American Revolution, individual states adopted various parts of the common law; differences in interpretation and enforcement still exist to this day

B. Civil law 1. Civil law: area of the law concerned with the rights and duties of private persons and citizens; administered between citizens (private persons) and enforced through the courts as damages or money compensation 2. No fine or imprisonment is assessed in civil law, and injured parties usually collect money damages from individuals who have harmed them 3. Court may decide that an action be performed rather than allow money damages .

4. Civil law specialties: contract law, labor law, patent law, and tort law 5. Tort law most relevant to nursing: compensation to those wrongfully injured by others’ actions; used in malpractice claims that name specific health care providers

C. Public law 1. Branch of law concerned with the state in its political capacity; relationship of a person to the state is at the crux of public law

D. Criminal law 1. Refers to conduct that is offensive or harmful to society as a whole; example of public law 2. Crime: an act that is expressly forbidden or prohibited by statute or by common law principles and viewed as an offense against the state rather than against individuals 3. State, city, or administrative body brings the legal action against the offender 4. Examples of crimes: minor traffic violations, theft, arson, and unlawfully taking another’s life 5. Punishment ranges from simple fines to imprisonment to execution 6. Classified as either misdemeanors (lesser criminal actions generally enforced through monetary fines) or felonies (more serious criminal actions, usually involving fines of greater than $1,000, and punishment by prison terms of greater than one year) 7. Same action by a given individual may be basis for both a civil lawsuit and a criminal action; e.g., a nurse removes a ventilator-dependent patient from a ventilator and the patient subsequently dies, the state board of nursing may revoke the nurse’s license to practice nursing (a criminal action) and the family may file a wrongful death suit (a civil suit) against the nurse a) Criminal cases: court considers the intent of the defendant as well as the actual action b) Civil cases: court considers only the action performed and the standard of evidence is less stringent 8. The number of criminal cases against nurses appears to be increasing (backdating of records, narcotics/medication diversion, mistreatment of patients, falsifying records, substandard nursing care, practicing without a license, driving under the influence of alcohol, identity theft, administration of drugs that cause or hasten a patient’s death)

E. Substantive law 1. Defines the substance of the law, may be further classified into civil, administrative, and criminal laws, and concerns the specific wrong, harm, or duty that caused the lawsuit or action to be brought against an individual

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2. Lawsuits brought to remedy violations of these laws must prove the existence of the elements that comprise the actual claims

F. Procedural law 1. Governs the procedure or rules to create, implement, or enforce substantive law 2. Concerns the process and rights of the individual charged with violating substantive law 3. Procedural issues: admissibility of evidence, the time frame for initiating lawsuits, and the qualifications of expert witnesses

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Common Law

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Civil Law

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Public Law

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Criminal Law

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Substantive Law

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Procedural Law

IV. Due Process of Law and Equal Protection of the Law A. Due process of law 1. Clause of the U.S. Constitution intended to prevent a person from being deprived of “life, liberty, or property” by actions of state or local government; difficult to define 2. Applies only to state actions and not to actions of private citizens 3. Founded on the fundamental principle of justice rather than a rule of law 4. Due process is violated if laws do not operate equally among all persons

B. Equal protection of the law 1. Restricts state actions and has no reference to private actions 2. The concept has become the source of many civil rights 3. Laws need not affect every man, woman, and child alike, but reasonable classifications of persons must be treated similarly 4. Thus, states may not enforce rules and regulations based solely on classifications as determined by race, religion, and/or gender

C. Rational basis test .

1. Used to determine whether equal protection of the law has been achieved, states that persons in the same classes must be treated alike 2. Legitimate governmental interests exist in making distinction between those persons who fall within the class and those persons who fall outside the class

D. Difference between due process and equal protection 1. Due process emphasizes fairness between state and individual 2. Equal protection emphasizes disparity in treatment by a state between classes of individuals whose situations arguably are indistinguishable

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V.

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Due Process of Law

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Equal Protection of the Law

The Judicial Process A. Questions of law or fact 1. Facts are determined by evidence presented by both sides in a legal controversy a) Questions of fact present the dispute that the jury answers b) Nursing questions of fact typically concern professional practice standards and whether these practice standards have set the standard of care for individual patients 2. The fact-finder has the responsibility of weighing admissible evidence as presented and to decide where the facts of the case really lie a) Jurors are fact finders in trials by jury and the final authority on the credibility of witnesses and thus determine the facts that are admissible b) Trial without a jury: judge serves as both the fact-finder and the determiner of questions of law 3. Questions of law involve the application or interpretation of laws and are determined by the judge in the court a) Judge may rule that a particular provision in a nurse’s contract was against public policy and is therefore nonenforceable, or that a provision is reasonable and enforceable b) Federal and state statutes, rules and regulations, prior court decisions, new technology, and societal needs: determine the law as it applies to a specific trial

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Questions of Fact

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Questions of Law

VI. Jurisdiction of the Courts A. Jurisdiction 1. Power and authority of a court to hear and determine a judicial proceeding 2. Subject matter jurisdiction (res jurisdiction) a) Refers to the court’s competency to hear and to determine a given case within a particular class of cases (e.g., probate, family, or criminal) b) May be determined by the amount or value of the claim (e.g., pled-damage figure up to $1,000, or between $1,000 and $5,000) 3. Personal jurisdiction (in personam jurisdiction) a) Legal power of a court to render a judgment against a party or parties to the action or proceeding b) A court situated in the county of the defendant’s or the plaintiff’s residence can have personal jurisdiction over the parties to the lawsuit 4. Territorial jurisdiction a) Any court possesses jurisdiction over matters only to the extent granted it by the constitution or legislation of the sovereignty on behalf of which it functions; courts may be either state or federal in origin b) Determines the scope of federal and state court power c) Determined by the U.S. Constitution’s Fourteenth Amendment; federal court jurisdiction determined by the Fifth Amendment d) U.S. Supreme Court has jurisdiction over all of the United States and its territories 5. Overlapping or concurrent jurisdiction a) When more than one court is qualified to hear a given dispute; frequently occurs in cases with multiple defendants and in cases that involve parties residing in different states b) If there is no mandatory court of jurisdiction: attorneys representing the party filing the lawsuit advise on which is the optimal court in which to file the lawsuit; based on shorter length of time to trial, more favorable damage awards, and shorter distances for witnesses to travel .

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Jurisdiction

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Overlapping or Concurrent Jurisdiction

VII. State Courts A. Trial courts 1. Court of original jurisdiction 2. Applicable law is determined, evidence is evaluated to ascertain facts, and judge or jury functioning under the guidance of a judge applies the law to the admissible facts 3. Judge may find evidence inadmissible or insufficient and dismiss a case or overrule a jury decision 4. State courts operate on a three-tier system; trial courts sometimes called inferior courts and usually are the original court

B. State appellate courts 1. Side that loses the case at trial level may decide to pursue the case at the appellate level if there are procedural or legal grounds on which to base an appeal 2. In a three-tier system, state appellate courts or courts of intermediate appeal do not rehear the entire trial, but base decisions on record of trial hearing; no witnesses, new evidence, or jurors.

3. Intermediate court may concur, reverse, remand, or order new trial

C. State supreme courts 1. Highest court of appeal in state, hears appeals from the intermediate appellate courts, adopts rules of procedure for the state to license attorneys 2. Final authority for state issues, unless a federal issue or constitutional right is involved 3. State supreme court may hear cases directly from the trial level; e.g., if the trial court case concerned the interpretation of the state constitution or a state statute

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State Courts

VIII. Federal Courts .

A. District courts 1. Federal court system mimics the majority of state court systems 2. Currently 94 district courts: at least one district court in each state as well as the District of Columbia, and federal specialty courts (e.g., Tax Court, Court of Federal Claims, Court of Veterans Appeals, and the Court of International Trade) 3. Hear cases involving a federal question or diversity of citizenship

B. Courts of appeal 1. Currently 13 courts of appeal, not including the U.S. Court of Appeals for the Armed Forces; frequently called U.S. circuit courts 2. Located in 13 areas (or circuits) of the country 3. Serve to correct potential errors that have been made in the decisions of the trial courts

C. Supreme Court 1. Highest level of the federal court system and its decisions are binding in all state and federal courts 2. Nine-justice court hears appeals from the U.S. courts of appeal and from various state supreme courts when state court decisions involve federal laws or constitutional questions 3. Ensures the uniformity of decisions: reviews cases for previous decisions on constitutional issues or for different conclusions reached by multiple lower courts 4. Rare for lawsuits involving nurses as primary defendants to be heard in the federal court system; exceptions are nurses working in the military or veterans’ hospitals or other federally funded health care centers

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Federal Courts

IX. Statutes of Limitations A. Procedural law time frames 1. Time intervals during which a case must be filed or the injured party is barred from bringing the lawsuit 2. Set by the individual state legislatures; most states currently allow 1 to 2 years for the filing of a personal injury lawsuit

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3. Begin measuring time when injured party actually discovered injury; treatment for the same condition must have been continuous and not sporadic for this time frame to apply 4. In disease cases, statute of limitations may be less strictly applied, because it may be some time before the patient becomes aware of the possible malpractice event 5. Discovery rule: generally patients have 2 years from the time that they knew or should have known of the injury to file a personal injury lawsuit; time frames have been altered by some state law and range from 6 months to 10 years 6. Different statute of limitations for minors; many states have become more restrictive and have opted to disallow the right of a minor to bring suit upon reaching adulthood 7. Purpose of statutes of limitations: suppress fraudulent claims after the facts concerning them have become obscure from lapse of time, defective memory, or death or removal of witnesses

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Statutes of Limitations

Chapter 2 Anatomy of a Lawsuit Objectives 1. List and explain the purpose of the six procedural steps in the trial process.

2. Examine alternate means of resolving controversies, including alternative dispute resolution, mediation, arbitration, and prelitigation panels.

3. Distinguish between traditional depositions, court reporter–recorded depositions, and the more modern videotaped depositions, stating the advantages and challenges of each of these methods.

4. Distinguish between lay and expert witnesses and their roles in the trial process.

5. Examine levels of evidence and state which level is most appropriate in criminal and civil court cases.

6. Enumerate the trial process, including the purposes and steps of the various stages in the process.

7. Discuss some of the ethical issues facing the expert witness.

Introduction: The ultimate goal of any court system is to resolve, in an orderly and just process, controversies that exist between two or more parties. To reach this .

conclusion, the trial process has evolved. This chapter presents all aspects of the trial process, from initiation of the complaint to appeals, and highlights nursing’s role, with special emphasis on the role of the expert witness. Alternate means of resolving controversies and conflicts, including alternative dispute resolution, mediation, arbitration, and prelitigation panels, also are discussed.

I.

The Trial Process A. Step one: initiation of the lawsuit 1. Plaintiff initiates the lawsuit and believes they may have a valid cause of action against another individual 2. Defendant: the answering party or parties a) Attorneys execute intentions of their clients although parties to the suit are always referenced as though they are the ones controlling and instigating the proper motions, claims, forms, and defenses b) In medical malpractice suits, a single plaintiff typically sues multiple defendants: physicians, health care institution’s board of directors, and nurses 3. Complaint: outlines the names of the parties to the suit, allegations of the breaches of standards of care, injuries or damages, and demand for an award; filed in a court with jurisdiction to hear the case 4. Depending on state, demand for damages may be a specified amount or left to be determined based on evidence 5. Court serves the defendant(s) with a summons to appear before the court at a specified time; called a service in both state and federal court systems a) Each defendant should notify their liability insurance carrier for representation by one of the retained attorneys or procure a personal attorney; defendant nurses should never assume that other defendants will respond on their behalf b) Nurses should also notify the health care institution’s administrative staff of the lawsuit c) Nurse-defendants should not discuss impending suit with anyone except their and the health care institution’s attorneys to reduce the risk of being misquoted d) A default judgment is entered if defendant does not appear and they will automatically lose lawsuit whether liable or not

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6. Alternative dispute resolution (ADR): any means of settling disputes outside of the courtroom setting a) Mediation: experts in the discipline help each side see the other side’s position; frequently helpful in contract disputes, but rarely in medical malpractice b) Arbitration: attorneys question parties and any witnesses, testimony is given under oath, arbitrator’s judgments are legally binding; much like a mini trial and more formal than mediation 7. Prelitigation panels: made of medical and legal experts who review evidence concerning the injury, its cause, and the extent of the injury to ensure that there is an actual controversy or fact question before the case is presented at court

B. Step two: pleadings and pretrial motions 1. Pleadings: written documents setting forth the contentions of the parties, are statements of facts as perceived by the opposing sides to the lawsuit a) Pleadings give the basis of the legal claim to opposing parties and prevent unfair surprise to either side b) Defendants’ original pleadings set forth objections to the plaintiff’s complaint 2. Motion to dismiss: filed by defendants when they believe that there is no valid cause of action on which a claim may be made 3. Counterclaim: filed by defendant if there is a cause of action the defendant has against the plaintiff (e.g., actions that may have contributed to purported negligence like failure to keep follow-up appointments) 4. Amended pleadings: correct or add new material to original pleadings 5. Supplemental pleadings: add to the statement of facts already before the court (e.g., bring a third party into the suit) 6. Motions: formal requests by one of the parties asking the court to grant its request a) May include the need for a speedy trial date owing to the elderly status of the plaintiff or a major witness, the need for a later trial date owing to the length of time needed to obtain necessary documents, or the need for additional documents b) Supported with a brief: legal argument for granting the motion; argued before the judge

C. Step three: pretrial discovery of evidence 1. Right of discovery permits 1) witnesses to be questioned by opposing side before trial, finding of relevant written materials, and 3) possible additional examinations of the plaintiff 2. Interrogatories are written questionnaires mailed to opposing parties that ask specific questions concerning the facts of the case; completed with client’s attorneys .

3. Depositions are witnesses’ sworn statements made outside the court; a witness is questioned by the opposing attorney so that potential testimony can be discovered before the trial a) A crucial part of the discovery phase, conducted under oath, with a court reporter present recording b) Deposing attorneys may object to questions asked c) Health care providers should be careful not to give too much information and help opposing council pursue the case; opposing council may not know pertinent information to ask d) Deposing parties may choose to be videotaped, especially if their pleasing personality may help their case or they will not be present for the actual trial because they are outside the jurisdiction of the court or unavailable 4. Both sides may obtain and examine copies of the medical records, business records, xray films, and the like through a request to produce documents 5. Court may also require a physical or mental examination of a party through a request for an independent medical examination of the plaintiff 6. During discovery phase both sides determine strategy and obtain evidence 7. Pretrial conference or hearing: final phase of pretrial discovery when the judge and the representing attorneys agree on the issues to be decided and settle procedural matters a) May result in a finalization of a settlement (not synonymous with admission of guilt or liability) b) Reasons may include the expense of the trial process, lengthy delays in reaching a trial date, emotional and physical drain on an already injured plaintiff, uncertainty of the jury trial process, the nature of the harm complained of and its potential ability to shock a jury, or that the defendants have no adequate means of defending prior actions

D. Step four: the trial 1. If jury has been requested or is mandated by law, trial begins with attorneys from both sides selecting a jury: voir dire 2. Opening statements indicate for the jury what each side intends to show by the evidence it presents 3. Witnesses are questioned first by the attorney calling the witness and then crossexamined by the opposing side to discredit or negate their testimony, and then asked additional questions by original attorney to reestablish credibility 4. Standard of proof is the level of evidence necessary to convince the judge and/or jury that a given proposition is true and to minimize the risk of an erroneous decision .

a) Preponderance of the evidence: the standard of truth in civil cases based on the probable truth or accuracy of the evidence presented, not the amount of evidence; this level of evidence remains subjective b) Clear and convincing evidence: intermediate standard of proof, proof that a fact is highly probable, often the highest level of proof in a civil case c) Beyond a reasonable doubt: highest level of evidence and standard required in criminal cases 5. Plaintiff’s side presents testimony of witnesses and then rests their case; it has attempted to meet the burden of proof and has legally established its cause of action, defendants’ attorney then presents case 6. If one side believes that the other failed to provide sufficient facts, they may motion for a directed verdict; usually overruled and attorneys make their final arguments and judge instructs the jury to deliberate and reach a verdict 7. Judge may elect to disregard verdict and determine ultimate verdict

E. Step five: appeals 1. Appellate court reviews the case based on (1) the trial record, (2) written summaries of the principles of law applied, and, in many states, (3) short oral arguments by the representing attorneys 2. Depending on outcome at the intermediate appellate level, case may be appealed to state supreme court 3. Once decided at highest level, the judgment typically becomes final

F. Step six: execution of judgment 1. Lawsuits involving nurses result in one of two conclusions: a) Awarding of money damages against the nurse-defendant or an injunction requiring nurse-defendant to perform or restrain a certain action or a restraining order b) Dismissal of all causes of action against the nurse-defendant 2. Defendant may be fined or imprisoned if injunction is not fulfilled 3. For a default judgment or money damages award, defendant’s earnings may be garnished or property confiscated and sold to pay award

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Anatomy of a Lawsuit

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Step 1: Initiation of the Lawsuit

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Defendant’s Response to Summons

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Alternative Dispute Resolution (ADR)

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Prelitigation Panels

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Step 2: Pleadings and Pretrial Motions

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Step 3: Pretrial Discovery of Evidence

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Pretrial Conference

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Step 4: the Trial

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The Trial—Standard of Proof

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Step 5: Appeals

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Step 6: Execution of Judgment

Expert and Lay Witnesses A. Lay witness 1. Establishes facts at the trial level, stating for the judge and jury exactly what transpired without making conclusions or forming opinions 2. May include patients, patient’s family members, nurses not named in the lawsuit, and other interdisciplinary staff members

B. Expert witness 1. Explains highly specialized technology or skilled nursing care to the jurors 2. Required when conclusions by a jury depend on facts and scientific information that is more than common knowledge 3. Minimum credential for a nurse expert witness is current licensure to practice professional nursing within a state or territory. Other criteria include: a) Total lack of involvement with the defendants b) Clinical expertise in the area of nursing at issue c) Certification in the clinical area d) Recent continuing or formal education relevant to the specialty of nursing at issue e) Ideally a graduate degree and authored publications in nursing 4. It is the role of the trial judge to decide whether expert witness possesses adequate skills, knowledge, education, and experience 5. When first considered for becoming an expert witness, guidelines to consider are: a) Is the case of interest? Is case in their area of expertise? .

b) All sent materials should be reviewed and determinations made about whether the standard of care has been breached c) Decide on a fee schedule before proceeding d) Know the time frame for discovery and trial 6. Expert witness may also serve as a legal consultant whose name is not revealed to the opposing side and whose reports or comments are not disclosed 7. Testimony is generally in the form of opinions and answers to hypothetical questions, contrary to what is allowed from lay witnesses 8. Expert witness nurse is prepared by attorney; legal doctrine or state procedural rules that pertain to the individual case are discussed and the following is reviewed: a) Facility or area where incident occurred b) State nurse practice act and any relevant rules that the board of nursing may have promulgated c) Relevant nursing literature d) Applicable nursing process of the institution during time of occurrence e) All written records pertaining to incident f) Supportive management records and/or patient’s classification acuity records g) Support functions provided by the institution for nursing

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Lay Witness

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Expert Witness

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Expert Witness Criteria

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Consideration for Becoming an Expert Witness

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Expert Witness Testimony

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Ethical Dilemma for the Expert Witness

Chapter 3 Introduction to Ethics

Objectives

1. Distinguish law from ethics.

2. Define and apply to nursing practice the ethical principles of autonomy, beneficence, nonmaleficence, veracity, fidelity, justice, paternalism, and respect for others.

3. Discuss the importance and role of hospital ethics committees and ethics grand rounds

Introduction: Nurses, in all practice arenas, continue to be confronted with the interplay between ethical and legal concepts, often asking themselves if the legal rights of the patients have been fully protected while also being sensitive to individuals’ ethical rights. Nurses often find themselves trapped in the midst of ethical dilemmas among physicians, patients, family members, and even their own peer group.

This chapter explores the distinction between law and ethics, describes the various ethical theories and principles employed in health care settings, and highlights the importance of institutional ethics committees.

I. .

Definition of Ethics and Values

A.

Ethics: the branch of philosophy concerned with evaluating human action 1.Derived from the Greek word “ethos” meaning character, customs, or habitual uses 2.Encompasses a process of determining right conduct from wrong conduct 3.Involves the principles or assumptions underpinning the way individuals or groups ought to conduct themselves 4.Concerned with motives and attitudes and the relationship of these attitudes to the individual 5.Morals are personal principles that are acquired from life experiences: family and peer relationships, religion, culture, law 6.Morals are appropriate for routine decisions, but not adequate for resolving complex issues arising in clinical settings 7.Ethics is a system or philosophy of conduct and principles, whereas morals give the boundaries for acceptable behavior; thus ethics provides structure for placing conduct into action 8.Values (personal, professional, societal) are personal beliefs about truths and worth of thoughts, objects, or behavior—a code of conduct for living, which may include: honesty, hard work, truthfulness, sincerity 9.Ethics may change as an individual matures or encounters new environments and cultures 10.Understanding one’s ethics and values is the first step in understanding the ethics and values of others and in assuring the delivery of appropriate nursing care 11.Individual and health care values may change over time as mainstream societal values change

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Definition of Ethics

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Definition of Morals

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Definition of Values

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Ethics and Nursing

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Distinction Between Ethics and the Law A. The legal system is founded on rules and regulations that guide society in a formal and binding manner 1.Ethical values are subject to philosophical, moral, and individual interpretation; both providers and recipients have a system of rights and values 2.Law is the general foundation that gives continuing guidance to health care providers, and gives patients certain rights regardless of providers’ personal views and value system 3.Patient treatment wishes may be overridden by state interests (e.g., mandatory immunization statutes, fluoridation of water, and cases concerning Jehovah’s Witnesses) B. Areas transecting both ethics and law: issues relating to death and dying, genetics and genomics, abuse of others, and futility of health care treatments

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III.

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Distinction Between Ethics and the Law

Ethical Theories A. Ethics involves systematizing, defending, and recommending concepts of appropriate and acceptable behaviors B. Nonnormative Ethics 1.Descriptive ethics: uses scientific techniques to understand how individuals reason and act a.Individuals use descriptive ethics to better understand the norms and attitudes that are expressed in professional codes, institutional mission statements, and public policies b.Health care context: descriptive ethics help describe the attitudes and norms that underlie patients’ informed consent and surrogate decision making

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D.

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2.Metaethics: seeks to understand the nature of statements, attitudes, and concepts (e.g., questioning “What is goodness?”) a.Attempts to analyze the meaning, justification, and inferences of moral concepts and statements, investigating where ethical principles originate and what they mean b.Explores whether moral values are external truths that exist in an “other-worldly” realm or are merely aspects of human conventions; asks why one should act in a moralistic manner rather than how one should act to be of moral character Normative theories 1.Concern norms or standards of behavior and values, and the application of these norms or standards to everyday life 2.Involve questions and dilemmas requiring a choice of action 3.Arrive at standards that regulate right and wrong conduct 4.Universally applicable; assume that there is but one ultimate criterion of moral conduct Deontological theories 1.Derive norms and rules from the duties human beings owe one another by virtue of commitments that are made and roles that are assumed 2.Deontological ethics look to the intention of the action; not the consequence 3.Greatest strength of this theory is its emphasis on the dignity of human beings 4.Virtue ethics: places less emphasis on learning rules and regulations and more emphasis on the development of good or appropriate character and habitually performing in this quality character mode a.E.g., because a person has mastered the concept of benevolence, he or she will continue to act in a benevolent manner toward other persons b.Virtues: wisdom, courage, temperance, justice, fortitude, generosity, self-respect, good-temper, and sincerity 5.Duty ethics: based on the premise that there are some obvious obligations that one has as a human being, such as the duty to not commit murder and a duty to tell the truth

E.

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a.Duties to self: avoiding wronging others, treating people as equals, and promoting the good of others b.Prima facie duties (W.D. Ross); fidelity, reparation, gratitude, justice, beneficence, self-improvement, nonmaleficence 6.Situation ethics: takes into account the unique characteristics of each individual, the caring relationship between the person and the caregiver, and determines the most humanistic course of action given the circumstances; e.g., when a nurse has cared for a particular patient over a long time; also called love ethics 7.Act deontology: based on the personal moral values of the person making the ethical decision 8.Rule deontology: based on the belief that certain standards for ethical decisions transcend the individual’s moral values; e.g., “all human life has value” and “one should always tell the truth” Teleological theories 1.Derive norms or rules for conduct from the consequences of actions; often referred to as utilitarianism 2.Applied ethics: branch of ethics that concerns the analysis of specific, controversial moral issues such as abortion, euthanasia, genetic manipulation of fetuses, and the status of unused frozen embryos 3.Principlism: attempts to resolve conflicts by applying principles more so than ethical theories; used often in professional decision making a.Principles encompass basic premises from which rules are developed b.Moral norms that nurses both demand and strive to implement daily in clinical practice settings c.Ethical principles considered in most traditional view of principlism: respect for autonomy, nonmaleficence, beneficence, and justice 4.Relational ethics: views the relational commitments that individuals have to each other; ethics of care and caring a.Emerging ethical framework to help care deliverers apply ethical principles in clinical situations b.Redirects the issue of rights and responsibilities of the autonomous individual into the context of the

environment in which these decisions are made and creating a more“practical action–oriented” ethics c.Components of relational ethics: engagement, mutual respect, embodiment, and environment d.Engages all parties to a potential dilemma, creating continued dialogue and consideration of all possible and realistic outcomes

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Ethical Theories

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Nonnormative Ethics

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Normative Theories

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Deontological Theories

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Teleological Theories

IV.

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Ethical Principles A. Autonomy 1.Autonomy: personal freedom and self-determination; the right to choose what will happen to one’s own person a.E.g., legal doctrine of informed consent b.Involves health care deliverers’ respect for patients’ rights to make decisions affecting care and treatment regardless of personal opinion c.Not an absolute right; e.g., a person’s right to endanger others in the case of communicable diseases d.To make an autonomous choice the individual must have the capacity to fully comprehend and the needed information with which to make an informed choice e.Components of autonomy: liberty, selfdetermination, independence, and agency f.Respects that individuals deciding not to follow specific recommended medical options is based on patient’s need to follow his or her own value system

and ethics and in effect are preserving their agency and independence B.

C.

D.

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Beneficence 1.Beneficence: the actions one takes should promote good; it is the basic obligation to assist others 2.“Good” can be defined in multiple ways (e.g., allowing a patient to die without advanced life support) 3.The subjectivity of the concept of “good” complicates this principle 4.Health care providers are cautioned to promote what is good as seen through the eyes of the patient and his or her family Nonmaleficence 1.Nonmaleficence: one should do no harm, including the inflicting of pain and suffering on others, and one should not impose risks of harm a.Detriment-benefit analysis: focus of the projected treatment or procedure rests on the consequences of the benefits to the patient and not on the harm that occurs at the time of the intervention (e.g., weighing the discomfort of a shot against the benefit of relief felt by the patient due to the medication) b.Concept of double effect: used to ethically support interventions that could have some harmful effects Veracity 1.Veracity: concerns truth telling and incorporates the concept that individuals should always tell the whole truth 2.Followed when one completely answers patients’ questions, giving as much detail as patient can understand, and being honest when information is not available or unknown 3.Difficulty arises when family members or other health care professionals are demanding information that would enable autonomous decision making to be withheld; interest in hiding information may center on the perception that patient would forgo needed and appropriate medical care if he or she knew the entire truth 4.Possible violations of the principle of veracity include telling a falsehood, omission of critical and relevant facts, omission of alternative options, or the cloaking of the truth

E.

F.

G.

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in medical jargon such that full understanding by the patient and family is impeded Fidelity 1.Fidelity: keeping one’s promises or commitments; not promising what cannot be delivered or controlled; core value in nurse-patient relationship 2.Arises during emergencies when procedures must be implemented rapidly and family members cannot be fully informed about their loved one’s condition 3.Also when nurses assure patients that they will be kept pain free following a surgical procedure, as complications may arise that prevent adequate pain medications, such as a hemodynamic instability Paternalism 1.Paternalism (aka parentialism): completely making the final decisions for others, and thus seen as an undesirable or negative ethical principle 2.Allows no collaboration in the decision-making process, but totally removes the decision from the patient or the patient’s family members 3.Seen as an appropriate principle when used to assist in decision making with competent patients who lack the expertise or ability to fully comprehend the data needed to make decisions; in this case paternalism becomes shared decision making, allowing patient to make a more appropriate and informed decision 4.Also viewed as part of the advocacy role of nurses; especially when patients inquire as to what the health care providers would do in the same situation themselves Justice 1.Justice: people should be treated fairly and equally; giving to each person what he or she deserves or giving each person his or her due 2.Fairness: refers to the ability to judge without reference to one’s feelings or interests, allowing for equal treatment; ability to make judgments that are specific and concrete to a particular case or set of circumstances 3.Justice arises in times of short supplies or when there is competition for resources or benefits (e.g., when two equally deserving patients are awaiting an organ transplant,

H.

when there is only one intensive care bed available for multiple individuals) 4.Distributive justice or social justice: refers to the extent to which society ensures that benefits and burdens are distributed among society’s members in ways that are fair and just 5.Retributive or correctional justice: extent to which punishments are fair and just; often cited when disciplinary outcomes appear to be very different for similar infractions of rules 6.Compensatory justice: refers to the extent that people are fairly compensated for their injuries by those who have injured them with just compensation proportional to the loss that has been inflicted on an individual Respect for others 1.Acknowledges the right of individuals to make decisions and to live or die based on those decisions 2.Highest principle incorporating all other principles 3.Core value underlying Americans with Disabilities Act and other anti-discrimination statutes

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V.

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Ethical Principles

Ethics Committee A. Ethics committees 1.Goals: a.Promote the rights of patients b.Promote shared decision making between patients and their health care providers c.Promote fair and equitable policies and procedures that maximize the likelihood of achieving appropriate and acceptable quality patient-centered care d.Enhance the ethical tenor of health care professions and health care institutions

B.

C.

2.Provide structure and guidelines for potential problems, serve as an open forum for discussion, and function as a true patient advocate 3.Committee should be composed of nurses, physicians, clergy, clinical social workers, nutritional experts, pharmacists, administrative personnel, and legal experts 4.Patients and their families may also be invited to committee deliberations Three structures of ethics committees 1.Autonomy model: facilitates decision making for the competent patient 2.Patient benefit model: uses substituted judgment and facilitates decision making for the incompetent patient 3.Social justice model: considers broad social issues and is accountable to the institution Implementing Ethics 1.Joint Commission for the Accreditation of Healthcare Organizations mandates ethics committees or other vehicles for addressing ethical concerns 2.Policies must include a means for resolving conflicts in decision making and a description of the respective roles of physicians, nurses, and family members in decisions involving do-not-resuscitate orders or the withholding of treatment 3.Alternatives to ethics committees a.Ethical rounds allow staff members to become familiar with ethical issues and their resolution b.Bioethics consultant or pastoral staff care member is employed

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Ethics Committees

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Ethics Committees Goals

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Three Structures of Ethics Committees

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Implementing Ethics

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Allowable Alternatives to Ethics Committees

Chapter 4 Application of Ethics in Nursing Practice Objectives 1.

Examine professional codes of ethics.

2.

Analyze and apply decision-making models in resolving ethical dilemmas, with specific application of the MORAL model.

3.

Analyze the role of advocacy from an ethical perspective.

4.

Describe moral distress, its effect on nurses in practice settings, and ways of coping with moral distress.

5.

Discuss therapeutic jurisprudence and its place in ethical decision making.

6.

Evaluate slippery slope arguments in the application of ethical decision-making models.

7.

Examine the role of health policy as it relates to resolving ethical dilemmas in nursing practice.

.

Introduction: Understanding ethical theories and principles is the first step in applying these concepts in nursing practice settings. As previously noted, the more familiar one is with ethical theories and principles, the more confident and prepared the individual becomes in applying these concepts and the more assistance one can give colleagues as they encounter ethical situations and issues. Additionally, knowledge of decision-making models to assist in resolving complex ethical dilemmas, how the nurse can employ the advocacy role, situations when moral distress may occur, and how therapeutic jurisprudence may begin to lessen the impact of future dilemmas is important in resolving ethical dilemmas.

I.

Professional Codes of Ethics A. Enumerates standards of integrity, professionalism, and ethical norms 1. Professional codes of ethics inform the public of the minimum standards acceptable for conduct by members of the discipline and assist the public in understanding a discipline’s professional responsibilities 2. Outline the major ethical considerations of the profession 3. Provide guidelines for professional practice and the discipline’s self-regulation

B. The Code of Ethics for Nurses with Interpretive Statements 1. National code of ethics published by the American Nurses Association (ANA) 2. Gives direction for those entering the nursing profession about their ethical accountability, sets a nursing standard for ethical practice, and informs the consumer about nursing’s ethical standards

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Professional Code of Ethics

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The Code of Ethics for Nurses with Interpretive Statements

Ethical Decision-Making Frameworks

A. Influence ability to respond to ethical dilemma: 1. Nurse’s perception of his or her level of influence within the health care setting 2. Level of clinical expertise and competence 3. Degree of ethical concern 4. Past experience with ethics education

B. Questions to reflect on in ethical decision making 1. Who should make the choice?

2. What are the possible options or courses of action?

3. What are the available alternatives?

4. What are the consequences, both desirable and undesirable, of all possible options?

5. Which rules, obligations, and values should direct choices?

6. What are the desired goals and outcomes?

C. MORAL model 1. M Massage the dilemma: identify and define issues in the dilemma and consider the opinions and value systems of the major players 2. O Outline the options: examine all options fully, including the less realistic and conflicting ones; make pros and cons for all options 3. R Resolve the dilemma: using basic ethical principles, decide the best option based on the views of all those concerned in the dilemma 4. A Act by applying the chosen option 5. L Look back and evaluate the entire process: including the ability of all those involved to follow through on final option

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What Influences Your Ability to Respond to an Ethical Dilemma?

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Ethical Decision-Making Questions

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MORAL Model

III. Advocacy As a Nursing Role A. Advocacy has its roots in the legal profession and concerns the active support of a cause or issue that has importance .

B. Nurses advocate for the legal rights of patients and for the ethical concerns of patients and peers C. Three models of advocacy employed in clinical practice settings: 1. Rights protection model (or autonomy model): nurses advocate for the legal and ethical rights of the patient; actions taken promote the patient’s best interest 2. Values-based decision model: nurse assists the patient by discussing his or her needs and desires and helps the patient make choices that are most consistent with the patient’s values, lifestyle, and desires 3. Respect for persons model (patient-advocate model): centers on inherent human dignity and the respect that is owed all persons

D. American jurisprudence system repeatedly enacts the role of nurses as patient advocates through multiple court decisions (Baby Doe v. (Confidential) Hospital (2007)) PowerPoint Lecture Slides •

Advocacy As a Nursing Role

IV. Moral Distress A. Moral stress occurs when faced with situations in which two ethical principles compete B. Three categories of moral distress: 1. Moral distress: involved individual knows the ethical course of action to take, but individual cannot implement the action because of institutional obstacle 2. Moral uncertainty: characterized by an uneasy feeling wherein the individual questions the right course of action 3. Moral dilemma: characterized by conflicting but morally justifiable courses of action

C. Examples of moral distress: 1. Financial pressures 2. Limited patient care resources 3. Disagreements among family members 4. Limitations provided by health care providers 5. When actions nurses perform violate their personal beliefs .

6. Lack of education in nursing ethics

D. Effects of moral distress 1. Initial moral distress: nurses experience frustration, anger, and anxiety as a result of being prevented from doing what they see as the correct course of action.

2. Reactive moral distress: negative feelings when the nurse is unable to act on their initial distress. Signs and symptoms include powerlessness, guilt, loss of self-worth, depression, and more. May cause moral outrage and burnout and inability to effectively care for patients.

E. Strategies to address moral distress in clinical practice include: 1. Empowering nurses to voice their ethical concerns 2. Educating nurses about moral distress and allowing discussions on the subject 3. Identifying and addressing impediments to delivery of quality nursing care 4. Incorporating conflict resolution and meditation techniques so nurses can bring their concern to closure 5. Allowing nurses to serve on institution ethics committees 6. Opening communication 7. Encouraging and rewarding collaborative teamwork

F. Personal strategies to combat moral distress: 1. Self-care 2. Assertiveness 3. Collective action 4. Reexamination of nursing ethical values

G. Moral distress can serve to energize a person with a feeling of accomplishment of professional goals and increased awareness of his or her own beliefs and ability to handle ethical issues more effectively in the future PowerPoint Lecture Slides

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Moral Distress—When Two Ethical Principles Compete

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Potential Causes of Moral Distress

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Initial Moral Distress

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Reactive Moral Distress

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Empower Nurses to Voice their Ethical Concerns

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Personal Strategies to Combat Moral Distress

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A Benefit of Moral Distress

V.

Therapeutic Jurisprudence A. Interdisciplinary study of law as a social force 1. Aims to understand law’s impact on an individual’s emotional life and psychological well-being 2. Similar to ethical behavior, therapeutic jurisprudence challenges nurses to consider the outcome of one’s actions 3. Acknowledges the fact that “well-being” is one of the many goals of the legal system and begins to ensure that this goal is integrated when applying legal remedies and processes

B. Terri Schiavo’s Case 1. A long legal battle to allow the patient to die ensued when she ended up in a persistent vegetative state following cardiac arrest 2. Principle of therapeutic jurisprudence would have been in reinforcing one of the basic principles of American law and ethical thought: Self-determination and the right of autonomy for the individual involved are paramount and take precedence over what others may have wanted 3. Schiavo case inspired many individuals to seek additional information about durable powers of attorney of health care, living wills, and other legislative documents that preserve the autonomy rights of individuals should catastrophe befall them

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Therapeutic Jurisprudence

VI. Slippery Slope Arguments A. An argument that suggests that an action will initiate a chain of events culminating in an undesirable event later in time without establishing the relevant contingencies 1. Basis for a slippery slope argument has little justification; tends to be more speculative, and presumes no gray areas 2. E.g., arguing that voluntary euthanasia will lead to active euthanasia of patients who do not want to voluntarily end their lives .

3. Useful because they force health care professionals to think carefully about the full scope of specific aspects of selected health care interventions and possibilities 4. Using decision-making models to arrive at ethical solutions assists nurses in avoiding or balancing a slippery slope argument

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Slippery Slope Argument

VII. Health Policy A. Resolving ethical dilemmas: 1. Health policy concerns the choices that a society or a part of that society makes in regard to the health and welfare of its citizens 2. Outlines priorities and the expected roles of individuals within a society, building consensus and informing the citizens of that society

B. Aspects of policy 1. Generality: it addresses more than one person and more than one set of circumstances 2. Normativity: it formalizes judgments about what course of action is better among alternatives and the rules by which those alternatives will be determined 3. Scale: policies apply at different levels of an organization or society 4. Policies can supersede policies on lesser levels 5. Policy is always determined by someone

C. Policy is generated: 1. By the workplace; revolving around issues of the workplace 2. Governmental agencies on local, state, or federal level 3. Community groups 4. Efforts of professional organizations at local or national levels 5. Nurses are an important part of policy development and implementation in all spheres

D. Framework to address policy and the need for new or additional policy in the clinical setting: 1. What is the problem?

2. Where is the process? .

3. How many are affected?

4. What possible solutions could be proposed?

5. What are the ethical arguments involved?

6. At what level is the problem most effectively addressed?

7. Who is in a position to make a policy decision?

8. What are the obstacles to policy interventions?

9. What resources are available?

10. How can I get involved?

11. Framework assists nurses individually and collectively to better educate and empower their patients and themselves to address health care issues effectively

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Health Policy

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Aspects of Policy

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Ways Policy Is Generated

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Framework to Address Policy Needs

Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

Chapter 5 Standards of Care Objectives 1.

Define standards of care from a legal and a nursing perspective.

2.

Compare and contrast internal versus external standards of care.

3.

Discuss the concept of the reasonably prudent nurse in defining standards of care.

4.

Differentiate national versus local standards of care.

5.

Describe the importance of standards of care to the individual nurse.

6.

Discuss some of the ethical issues that arise concerning standards of care.

Introduction: Standards of care are implemented daily in all aspects of health care delivery and in all practice settings, forming the basis for quality, competent health care delivery. Standards of care are the criteria for determining whether less-than-adequate care was delivered to health care consumers. Increasingly standards of care are the critical aspect that determines the outcome of lawsuits in multiple clinical settings.

This chapter explores the foundations of standards of care, describing how they are derived and defined within courts of law.

I. .

Definition of Standards of Care

A. Standards of care: the level of quality considered adequate by a given profession 1. Describe the minimal requirements that define the acceptable level of care that ensures that no harm comes to the patient 2. Purpose of standards of care is to protect and safeguard the public as a whole; evolved to help health care recipients avoid substandard health care and give guidance to health care providers 3. Standards are authoritative statements promulgated by a profession by which the quality of practice, service, or education can be evaluated

B. Standards of care may easily be differentiated from 1. Objectives: goals that give direction to what must be accomplished 2. Philosophies: state why an action is performed 3. Guidelines: describe recommended courses of action

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II.

Definition of Standards of Care

Establishment of Nursing Standards of Care A. Internal standards 1. Include the professional nurse’s job description, level of education, and expertise as well as an institution’s policies and procedures 2. Set by the role and education of the nurse or by the individual institution 3. In court cases, policies and procedures are presented and evaluated to determine whether a nurse defendant has met standards of care 4. Nurses are required to follow the institution policies and procedures, and are not required by courts to do more than the policy requires 5. Courts expect nurses and health care providers to use their professional judgment before merely following written policy and procedures; along with the institution’s policies and procedures, it is also necessary to take into consideration the circumstances and options available to the patients’ caregivers at the time of the incident 6. Policy and procedure manuals may be introduced as criteria for the acceptable standard of care; they need not be in writing to be considered legally enforceable

B. External Standards .

1. Set by the state boards of nursing, professional organizations, specialty nursing organizations, current nursing literature, federal organizations, and federal guidelines 2. External standards transcend individual practitioners and single institutions; synonymous with national standards

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Internal Standards

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External Standards

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Reasonable Prudence in Standard of Care

III. National and Local Standards of Care A. National Standards: based on reasonableness and are the average degree of skill, care, and diligence exercised by members of the same profession 1. In areas of specialty practice, courts are almost universally holding health care providers to a national standard of care 2. All areas of health care have access to the same information and educational opportunities via educational programs, educational videos, ability to transport specialists across the nation, and the ability to consult with professionals worldwide 3. All patients have the right to quality health care, whether hospitalized in a smaller community or a larger, university institution

B. Specialists and National Standards 1. Specialists should be held to the same standard as an average member of that speciality 2. Not merely to the local standards of the skills and abilities of specialists practicing in a particular city

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National Standards

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Specialists and National Standards

IV. Importance of Standards of Care to the Individual Nurse A. Standards of care are referenced in malpractice cases against nurses to show that they breached the duty of care owed the patient 1. Duty of care: defined as the applicable standard of care .

2. Courts consider what a reasonable, prudent nurse with the same experience and education would do under similar conditions in the same community 3. A nurse is not bound to do exactly what another nurse would do, only to select one approach among several that exists at the time and is reasonable

B. Error in judgment rule 1. Allows the court to evaluate the standards of care given a patient even if there was an honest error in judgment 2. Includes errors in diagnosis

C. Two Schools of Thought Doctrine: 1. Supports the nurse who chooses among alternative means of delivering quality health care 2. Were standards of care met in the chosen mode of treatment?

3. If yes, courts support the quality of care as delivered, even though other nurses would choose a different course of action

D. Standards of care can be used to determine whether nurses have violated criminal or civil codes PowerPoint Lecture Slides

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Importance of Standards of Care to the Individual Nurse

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Error in Judgment Rule

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Two Schools of Thought Doctrine

Ethical Issues and Standards of Care A. Standards of care are characterized as average, prudent, cautious, and reasonable 1. Health care professionals are not all-knowing but act in a manner in which a professional generally acts 2. Standards of care are not frozen but fluid and dynamic

B. The ethical objective of policy and procedure manuals is to protect patients and advance their welfare 1. One should avoid the temptation to deviate from standards of care by taking a “shortcut” or quicker, albeit riskier, route of implementing interventions

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2. Standards of care should be based on national standards, such as those created and published by one’s professional organization 3. Professionals must be patient advocates, performing in a manner that places the patient’s needs first and foremost

C. Role of the expert witness in addressing standards of care: 1. How does one proceed if the record clearly shows that interventions were inappropriate or that the minimal standard of care may not have been implemented?

2. What obligations does the expert witness have to disclose such findings to the attorney representing the defendants?

3. How does one begin to explain unexpected outcomes in a way that does not create liability or prejudice a patient who should be compensated for untoward outcomes?

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Standards of Care Evolve

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Ethical Issues and Standards of Care

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Ethical Issues or the Expert Witness and Standards of Care

Chapter 6 Tort Law Learning Outcomes: 1.

Distinguish negligence from malpractice.

2.

List the six elements of malpractice and give examples of each element in professional nursing practice.

3.

Define the three tests currently used by courts in establishing causein-fact.

4.

Analyze the doctrine of res ipsa loquitur and give an example of when the doctrine would apply to professional nursing practice.

5.

Compare and contrast the locality rule to a national standard.

6.

List ways to avoid or lessen the potential of future malpractice cases.

7.

Define and differentiate between intentional and quasi-intentional torts.

8.

List the more commonly occurring intentional torts in health care settings and give an example of each.

.

9.

List the more commonly occurring quasi-intentional torts in health care settings and give an example of each.

10. Discuss some of the ethical issues involved in nursing and tort law.

Introduction: Health care providers should be acutely aware of potential legal claims that may be filed against them. Much of this concern involves unknowns about the legal process and civil liability. Although most cases filed against nurse-defendants concern negligence and malpractice, nurses may be held equally accountable for intentional and quasi-intentional actions. Health care providers and the general public frequently interchange the terms malpractice and negligence.

While the distinction is technical, nurses should be able to distinguish between the two terms and apply both to the provision of quality nursing care. This chapter discusses the elements of negligence and malpractice, intentional torts and quasi-intentional torts, and presents guidelines for nurses practicing in all settings for preventing potential lawsuits in this area of the law.

I.

Definition of Torts A. Tort: a civil wrong committed against a person or the person’s property by actions performed or actions omitted B. Tort law is based on fault; accountable person either failed to meet his or her responsibility or performed an action below the allowable standard of care C. Most commonly seen classification of law in the health care setting

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Definition of Torts

II.

Negligence Versus Malpractice A. Negligence—conduct lacking due care 1. Equates with carelessness 2. Deviation from the standard of care that a reasonable person would use in a particular set of circumstances

B. Malpractice (professional negligence) addresses a professional standard of care as well as the professional status of the caregiver 1. Tortfeasor (person committing the civil wrong) must be a professional (nurse, doctor, lawyer) 2. Wrong must result in injury, unnecessary suffering, or death 3. Proceeds from ignorance, carelessness, want of proper professional skill, disregard of established rules and principles, neglect, or a malicious or criminal intent

C. Same acts may form the basis for either negligence or malpractice depending on whether the person is a nonprofessional or a professional D. Six elements that assist in determining whether an action is negligence or malpractice are: 1. Injury is treatment-related or caused by dereliction of professional skill 2. Expert evidence is required to determine whether the appropriate standard of care was breached 3. The act or omissions involved an assessment of the patient’s condition 4. The incident occurred in the context of the health care provider–patient relationship or was within the scope of activities a hospital or other care facility is licensed to perform 5. The injury occurred because the patient sought treatment 6. The act of omission was unintentional

E. Most common categories of malpractice and negligence among nurses 1. Failure to follow standards of care 2. Failure to use equipment in a responsible manner 3. Failure to communicate, document, assess, and monitor 4. Failure to act as a patient advocate

F. Distinction between malpractice and negligence is important

.

1. Public has the right to expect a higher standard of care from a professional than from a nonprofessional 2. Higher rewards are given in cases of malpractice

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Negligence

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Malpractice

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Six Elements of Negligence and Malpractice

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Malpractice vs. Negligence

III. Elements of Malpractice or Negligence A. Plaintiff must prove: 1. Duty owed the patient 2. Breach of the duty owed the patient 3. Foreseeability 4. Causation 5. Injury 6. Damages

B. Duty owed the patient 1. Duty of care is owed to others and involves how one conducts oneself a) It must be first shown that a duty was indeed owed to a given patient (the basis of which is formed by the patient-provider relationship) b) The scope of that duty must be proven (determined by expert testimony, published standards, and common sense)

C. Breach of duty owed the patient 1. Involves showing deviation from standard of care owed the patient 2. E.g., something was done that should not have been done, or nothing was done that should have been done

D. Foreseeability 1. Concept that certain events may reasonably be expected to cause specific results, e.g., omission of insulin to a known diabetic

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2. Most commonly occurring injuries are due to lack of foresight, common sense, and adherence to standards of care 3. Major areas of negligence lawsuits involve falls and medication errors

E. Causation 1. Injury must have occurred directly as a result of the breach of duty owed the patient 2. Cause-in-fact: the breach of duty owed caused the injury

F. Tests for causation 1. “But for” test answers the question if the act or omission is a direct cause of the injury or harm sustained; would the injury have occurred “but for” the act of omission?

2. Substantial factor test aids in pinpointing liability when several causes occur to bring about a given injury a) Used not to determine certainty but to establish a causal link between actions and injury. b) Was the defendant’s act or omission a substantial factor in causing the ultimate harm or injury? If yes, there is a cause-in-fact.

3. Alternate causes approach addresses the problem in which two or more persons have been accused of negligence; the burden of proof shifts to the defendants to show who actually caused the harm or injury

G. Proximate cause 1. Attempts to determine how far the liability of the defendant extends for consequences following negligent activity 2. Proximate cause builds on foreseeability 3. Fairly clear when result is directly related; becomes less clear when intervening variables are present 4. Intervening forces may combine with the original negligent action to cause injury to the patient 5. Health care provider is frequently liable for intervening forces when they are foreseeable

H. Injury 1. Injury (or harm) must be demonstrated by the plaintiff in the form of some type of physical, financial, or emotional injury as a result from the breach of duty owed the patient 2. Emotional injuries and pain and suffering are generally actionable only when they accompany physical injuries .

3. Negligent actions coupled with pain and suffering may provoke the court to find that psychological harm is sufficient to sustain a cause of action against defendants

I. Damages 1. Damages are compensation that attempts to restore the injured party to their original position so far as is financially possible 2. Goal is not to punish the defendants but to assist the injured party 3. General damages: inherent to the injury itself and include pain and suffering (past, present, future), permanent disability, disfigurement because of injury 4. Special damages: account for all losses and expenses incurred as a result of the injury, i.e., medical bills and lost wages (sometimes general and special damages are lumped into one category called compensatory damages) 5. Emotional damages: may be compensated if there is apparent physical harm as well 6. Punitive or exemplary damages: awarded if there is malicious, willful, or wanton misconduct; usually considerable and awarded to deter similar conduct in the future

J. Guidelines: Avoiding negligent torts 1. Treat patients and their families with respect and honesty 2. Use your nursing knowledge to make appropriate nursing diagnoses and to implement necessary nursing interventions 3. Remember that the first line of duty is to the patient 4. Remain current and up-to-date on your skills and education 5. Base your nursing care on the nursing process model 6. Document completely every step of the nursing care plan and the patient’s responses to interventions 7. Respect the patient’s right to education about the illness and teach the patient and family about future issues prior to discharge 8. Delegate patient care wisely 9. Know and adhere to your hospital’s policies and procedures 10. Keep your malpractice liability insurance current and know the limits of coverage

K. With multiple defendants courts apportion the harm caused to the plaintiff according to each defendant’s portion or percentage of actual harm PowerPoint Lecture Slides •

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Plaintiff Must Prove

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Duty Owed the Patient

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Breach of Duty Owed the Patient

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Foreseeability

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Causation

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Tests for Causation

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Proximate Cause

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Injury or Harm

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Damages

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Avoiding Negligent Torts

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Cases with Multiple Defendants

IV. Doctrine of Res Ipsa Loquitur A. Res ipsa loquitur allows a negligence cause of action without requiring that all six elements of malpractice or negligence be proven 1. Jury may find the defendant negligent without any showing of expert testimony 2. Doctrine used when plaintiffs are injured in such a way that they cannot prove how the injury occurred or who was responsible for its occurrence; proving the facts of the case would be an insurmountable burden 3. The nature of the incident and the circumstances surrounding it must lead reasonably to the belief that, in the absence of negligence, injury would not have occurred 4. The instrument that caused the injury must be shown to have been under the management and control of the alleged wrongdoer 5. Normally applied in medical and nursing malpractice cases in which the injured party is unconscious, was in surgery, or was an infant

B. Three elements for res ipsa loquitur to apply 1. Accident must be the kind that ordinarily does not occur in the absence of negligence 2. Accident must be caused by an agency or instrumentality within exclusive control of the defendant 3. Accident must not have been due to any voluntary action or contribution on the part of the plaintiff

C. Different ways res ipsa loquitur is applied by state: 1. Expanded the applications .

2. Limited the application of the doctrine, especially in areas where more than common knowledge is needed to ensure the jury’s understanding of the facts (e.g., in the area of secondary infections) 3. Rejected application of the doctrine, noting that malpractice must be shown and not presumed

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Doctrine of Res Ipsa Loquitur

Locality Rule A. A professional standard of practicing in a given geographic area B. Arose because of wide variations that once existed in patient care in urban and rural settings C. Health care providers are decreasingly able to defend the acceptance of a lower standard of care in rural areas due to 1. Mass media 2. National conferences 3. Improved transportation

D. Professional organizations and state nurse practice acts have enacted standards of nursing practice that have created acceptable standards for patients nationally and across jurisdictions E. Standards for accreditation of health care facilities should be the same no matter the location of facilities; locality rule is abolished in 29 states PowerPoint Lecture Slides •

Locality Rule

VI. Avoiding Malpractice Claims A. Increasing numbers of nurses are being sued along with physicians or hospitals B. Nurses may be able to limit their potential liability:

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1. Patients and families treated well and apprised of all facets of treatment and prognosis are less likely to sue 2. Nurses should know relevant law and legal doctrines and combine these concepts with the biological, psychological, and social sciences that form the basis of all rational nursing decisions; incorporate law into everyday practice 3. Stay within area of individual competence and become a lifelong learner; upgrade skills consistently 4. Join and become active in professional organizations and take advantage of educational programs as well as the opportunity to augment nurse’s voice especially through updated nurse practice acts 5. Recognize the concept of the suit-prone patient, and show empathy and concern; psychological makeup of this person breeds resentment and dissatisfaction and they are more apt to initiate a lawsuit. They tend to be: a) Immature b) Overly dependent c) Hostile d) Uncooperative e) Unable to be self-critical f) Shift blame to others g) Project fear, insecurity, and anxiety 6. Nurses’ personality traits and behaviors that may trigger lawsuits; suit-prone nurses: a) Have difficulty establishing close relationships with others b) Are insecure and shift blame to others c) Tend to be insensitive to patients’ complaints or fail to take complaints seriously d) Have a tendency to be aloof and more concerned with mechanics than meaningful human interaction with patients e) Inappropriately delegate responsibilities to peers to avoid personal contact with patients f) Nurses need counseling and education to change these behaviors 7. Nurses should consider liability insurance 8. Help educate consumers that all health care entails some risks and that at some point they need to take responsibility for these risks while remaining a patient advocate .

9. Involve patient in discharge planning issues; many malpractice claims that arise today involve patient education and discharge planning issues

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Avoiding Malpractice Claims

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The Suit-prone Patient

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The Suit-prone Nurse

VII. Patient Education and Tort Law A. High number of suits filed for injuries sustained in outpatient and home setting 1. Acute care settings and outpatient settings are developing more formalized discharge instructions 2. Remember to evaluate the patients’ and families’ understanding of the content 3. Retain a copy of the signed discharge instruction form for the medical record; chart what was taught, how it was evaluated, and what printed information was given

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Patient Education and Tort Law

VIII. Definition of Intentional Torts A. Intentional torts share three elements 1. There must be a volitional or willful act by the defendant 2. The person so acting must intend to bring about the consequences or appear to have intended to bring about the consequences 3. There must be causation; the act must be a substantial factor in bringing about the injury of consequence

B. Intentional torts differ from negligence 1. Nurse must have intended an action; e.g., held a patient to deliver injection 2. Must be a volitional or willful action against the injured person. In intentional torts, there cannot be the omission of a duty owed as with negligence. In the preceding example, the nurse held the patient so that the injection could be given or the nasogastric tube inserted .

3. Injured party need not show that damages were incurred

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Definition of Intentional Torts

IX. Intentional Torts A. Assault 1. Assault: any action that places another person in apprehension of being touched in a manner that is offensive, insulting, or physically injurious without consent or authority; nurse may also be plaintiff 2. Requires patient’s knowledge and a present ability to commit harm

B. Battery 1. Battery is the common intentional tort within the practice of nursing and medicine 2. Liability for an unwarranted contact is based on the individual’s right to be free from nonconsensual invasions of the person 3. A single touch, however fleeting and faint, is sufficient for the tort to have occurred; the touching, not the manner of the touch that creates the tort 4. No harm, injury, or pain need befall the patient 5. Patient need not be aware of the battery for the tort to have occurred 6. Causation is an important factor; nurse may be liable for direct or indirect contact 7. Nurse may commit a battery by the unwarranted touching of the patient’s clothes or of an article held by the patient; anything that is connected with the patient’s person is viewed as part of the person 8. Lack of consent generally heralds the potential for an assault and battery lawsuit

C. False imprisonment 1. False imprisonment: the unjustifiable detention of a person without legal warrant; e.g., a) When patient is confined or restrained to bed or room b) When a nurse refuses to give patient purse, car keys, or clothing or admit family to see patient unless patient stays in bed c) When patient is detained who wishes to leave against medical advice 2. Patient must be aware of the detention to qualify as false imprisonment

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3. Detainment justified: cases of mentally ill patients and patients who are deemed a threat to society or who have a contagious disease

D. Conversion of property 1. Conversion of property: arises when the health care practitioner interferes with the right to possession of the patient’s property, either by intermeddling or by dispossessing the person of the property, e.g., searching patient’s suitcase and removing prescription drugs 2. Practitioner may be free from liability if there is adequate justification for the action, e.g., taking car keys from disoriented person

E. Trespass to land 1. Trespass to land: tort of unlawful interference with another’s possession of land may occur either intentionally or as a result of a negligent action 2. Occurs when a person intrudes onto another’s property, fails to leave the property when requested to do so, throws or places something on the property, or causes a third person to enter the property 3. Institutions and health care facilities, including their respective parking areas, are private property and people do not have an absolute right to remain on the property

F. Intentional infliction of emotional distress 1. Intentional affliction of emotional distress: includes several types of outrageous conduct that causes severe emotional distress 2. Three conditions must be met to prove this tort a) Practitioner’s conduct goes beyond behavior that is usually tolerated by society b) Conduct is calculated to cause mental distress c) Conduct actually causes the mental distress

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X.

Intentional Torts

Quasi-intentional Torts A. Quasi-intentional torts: when intent is lacking but there is a volitional action and direct causation 1. More than mere negligence is involved 2. Damages are not an issue

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B. Invasion of privacy 1. Invasion of privacy: tort that includes the protection of personality as well as the protection against interference with one’s right to be left alone 2. Law recognizes the patient’s right against: a) Appropriation or usage of the plaintiff’s name or picture for defendant’s sole advantage b) Intrusion by the defendant on the patient’s seclusion or affairs c) Publication by the defendant of facts that place the patient in a false light d) Public disclosure of private facts about the patient by hospital staff or medical personnel 3. Elements of invasion of privacy include: a) An act that must intrude or pry into the seclusion of the patient b) Intrusion that is objectionable to the reasonable person c) An act or intrusion that intrudes or pries into private facts or publishes facts and pictures of a private nature d) Public disclosure of private information 4. Information concerning the patient is confidential and may not be disclosed without authorization 5. Authorization may be either by patient waiver or pursuant to a valid reporting statute 6. Nurses are cautioned about releasing information concerning current patients over the telephone 7. Family members may not be privileged to patient information

C. Defamation 1. Defamation: comprised of the torts of slander and libel, concerns wrongful injury to another’s reputation 2. It involves written or oral communications to someone other than the person defamed of matters concerning a living person’s reputation 3. Five elements are necessary to prove the quasi-intentional tort of defamation: a) Defamatory language that would adversely affect one’s reputation b) Defamatory language concerning a living person c) Publication to a third party or to several persons but not necessarily the world at large

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d) Damage to the person’s reputation as seen by adverse, derogatory, or unpleasant opinion against the person defamed e) Fault on the part of the defendant in writing or telling another the defamatory language

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Quasi-intentional Torts

XI. Defenses A. Specific instances and circumstances where a health care provider may commit an intentional or quasi-intentional tort and incur no legal liability

XII. Ethical Issues and Tort Laws A. Duty owed to the patient is a premise on which tort law is based; exceptions based on religious beliefs and concerns for personal health B. Health care providers have greater ethical standards because: 1. The ability of the health care professionals to provide care is greater than that of the public, thus increasing the obligation to provide care 2. Health care professionals have assumed the risk of care for these individuals based on their choice of a profession dedicated to the care of the sick 3. Members of the profession should be available in times of emergency as the profession is part of a social contract with the public; consistent with the Code of Ethics for Nurses

C. Medication errors in health care facilities and at home 1. Compel health care providers to enhance patient education (e.g., possible adverse reactions with over-the-counter medications and herbal remedies, and systematic measures to better assess medication compliance in the home setting) 2. Ethically nurses must disclose their own medication errors—even the smallest error

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Ethical Issues and Tort Law

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Medication Errors in Health Care Facilities and at Home

Chapter 7 Nursing Liability: Defenses Objectives 1.

Define the term defense and give examples of defenses that may be used against intentional, quasi-intentional, and negligence torts.

2.

Review the concept of statute of limitations, including the importance this statute has in the health care field.

3.

Examine Good Samaritan laws and their relevance for health care deliverers.

4.

Define and explain products liability and collective and alternative liability defenses.

Introduction: Health care providers are acutely aware of potential legal claims that may be filed against them. Much of this concern involves unknowns about the legal process and the extent of one’s civil liability. Concern may also surface about possible defenses to lawsuits that are filed.

This chapter explores possible legal defenses to nursing liability and how such defenses may lessen the individual practitioner’s potential legal liability. The chapter concludes with a discussion of products liability and collective and alternative liability.

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Defenses Against Liability

A. An “argument in support or justification” B. Based on statutory law, common law, and/or the doctrine of precedent; also classified according to the cause of action filed against them PowerPoint Lecture Slides

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Defenses Against Liability

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Defenses May Overlap

Defenses Against Intentional Torts A. Consent 1. Consent may be oral, implied by law, or apparent 2. An example of apparent consent is if patient extends arm for a shot 3. Implied consent a) An immediate decision is required to prevent loss of life or limb b) The person is incapable of giving or denying consent c) There is no reason to believe that consent would not be given if the patient were capable of such d) A reasonable person in the same or similar circumstances would give consent

B. Self-defense and defense of others 1. Self-defense and defense of others may be justifiable to protect oneself and others in the area from harm 2. Only reasonable force may be used: defined as that which is necessary to prevent injury to oneself or to defend others in the situation

C. Necessity 1. Necessity, similar to self-defense, allows the nurse to interfere with the patient’s property rights to avoid threatened injury 2. A defense of necessity does not allow the nurse the right to search the patient’s property 3. Defense of necessity mandates that the patient’s property must be the threatening factor

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Defenses Against Intentional Torts

III. Defenses Against Quasi-intentional Torts A. Consent 1. May be a defense against the quasi-intentional torts of defamation and invasion of privacy 2. An example is if a nurse discovers drugs while removing clothing from an injured patient to examine extent of injuries 3. The consent does not need to be formal or well thought out

B. Truth 1. Truth is a valid defense against defamatory statements 2. Entire statement must be true, not just parts of the statement 3. May also lead to other torts such as invasion of privacy because in proving the truth of a defamatory statement, a nurse may unwillingly make public facts concerning a patient

C. Privilege 1. Privilege is a disclosure that might ordinarily be defamatory under different circumstances, but such disclosure may be allowable to protect or further public or private interests recognized by law 2. Examples of privilege include the mandate to report persons with certain diagnoses or diseases or those suspected of abusing others

D. Disclosure statutes 1. Disclosure statutes mandate the reporting of certain types of health-related information to protect the public at large 2. Reporting laws require health care providers to be familiar not only with the types of information that must be disclosed, but also with the governmental agency requiring the information 3. A judge may also mandate that certain information be disclosed by issuing a subpoena 4. Examples of information required by reporting statutes are: a) Vital statistics (births and deaths) b) Communicable diseases to protect the public

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c) Administration of vaccines, as well as any resulting illness, disability, or deaths due to vaccine d) Suspected child abuse and neglect; abuse encompasses physical, mental, and sexual assaults, as well as psychological, emotional, and medical neglect

E. Access laws 1. Group of statutory disclosure laws permits access to patient records and information without securing permission of the individual patient 2. Must know which given individuals or agencies may be allowed such access 3. Workers’ compensation statutes usually allow for access to medical records once a claim has been filed 4. Seldom involve staff and mid-management nurses

F. Qualified privilege 1. A defense of qualified privilege prevails when the person making the allegedly defamatory statements has a legal duty to do so 2. For example, when a nurse manager reports, in good faith, on the professional performance of a staff nurse 3. When the quality of medical care is at issue, the reputation rights of health care professionals must concede to the greater social need 4. Liability will not be imposed, even if the communications are false, as long as there is no malice and the communications are made in good faith a) The communications must be made through appropriate channels to persons needing the information b) Liability may be granted for untruthful communications released with malice c) The communications should employ objective and observable behavioral terms rather than judgmental descriptions

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Defenses Against Quasi-intentional Torts

IV. Defenses Against Nonintentional Torts A. Release 1. A release may be signed during the process of settling a claim to prevent any and all future claims arising from the same incident; prohibiting future suits

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2. In medical malpractice claims, a release is frequently a part of the out-of-court settlement 3. Exculpatory contracts are signed to limit the amount of damages one receives in a suit or to prevent a future lawsuit based on the individual health care giver’s actions; signed before care is given, they seldom serve as a successful defense

B. Contributory and comparative negligence 1. Contributory and comparative negligence both serve as defenses and in essence hold injured parties accountable for their fault in the injury 2. Fault by the plaintiff may occur for: a) Failure to follow prescribed treatments b) If incorrect treatment is given based on the patient’s false information to the physician/primary health care provider c) For extended delays in seeking appropriate medical care 3. Contributory negligence rule: recognized today by only five states; patients who had any part in the adverse consequences are barred from any compensation, even if their contribution was as small as one percent 4. Pure comparative negligence: the plaintiff is allowed to recover the portion of the injury attributable to the defendant’s negligence, even if the plaintiff was 99 percent at fault 5. Modified comparative negligence: the plaintiff whose negligence is found to exceed that of the defendant is barred from recovery

C. Assumption of the risk 1. Assumption of the risk states that plaintiffs are partially responsible for consequences if they understood the risks involved when they proceeded with the action 2. “Healthcare facilities do not have to protect patients from risks which patients who are aware of their surroundings and mentally capable should realistically anticipate and avoid on their own”

D. Unavoidable accident 1. When nothing other than the accident could have caused the person’s injury 2. For example, a staff member slips and falls in a patient’s room; there is nothing on the floor that could have caused the accident, and no one is at fault

E. Assumption of the risk—defense of the fact 1. Defense used when there is no indication, direct or otherwise, that the health care provider’s actions were the cause of the patient’s injury or untoward outcome

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2. For example, the patient who receives an injection in the left arm and then begins to experience numbness and tingling in the right leg

F. Immunity 1. Good Samaritan laws a) Enacted to encourage medical personnel and people trained in first aid to stop at accident scenes without fear of incurring liability b) Encourage helping strangers in need of assistance, even when the health care provider is under no duty to render such aid c) Vary greatly from state to state d) A Good Samaritan is one who compassionately and voluntarily renders personal assistance to others in need 2. Three elements of a Good Samaritan defense a) Care rendered was performed as the result of an emergency b) Initial emergency or injury was not caused by the person invoking the defense c) Emergency care was not administered in a grossly negligent or reckless manner d) Malpractice suits against Good Samaritans are relatively rare 3. Good Samaritan laws vary greatly by state a) Who is covered as part of the protected class? b) Where does the coverage extend? c) What is covered?

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Defenses Against Nonintentional Torts

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Good Samaritan Laws

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Three Elements for a Good Samaritan Defense

Statute of Limitations A. Specify time limits for initiating a claim 1. Typically 1–2 years after becoming aware of injury 2. Some states calculate statute of limitations from when minors come of age

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Statutes of Limitations

VI. Products Liability A. Liability of a manufacturer, processor, or nonmanufacturing seller 1. When injury to a person or person’s property by a given product occurs 2. Resulting from a manufacturing defect, design defect, or failure to warn (marketing defect) 3. Includes the manufacturer of component parts, the assembling manufacturer, the wholesaler and the retail store owner (here the health care institution) 4. Injured may sue the maker, the seller, and/or the distributor 5. Theories of recovery for products liability suits depending on jurisdiction: negligence, breach-of-warranty of fitness, consumer protection claims, or strict liability 6. Mixture of tort (civil action against a person and violation of duty owed) and contract law (expressed or implied warranties) 7. The warranties (from contract law) form the basis for finding liability without fault (from tort law) for injuries caused by the use of products

B. Issues of products liability cases 1. Plaintiff must prove that there has been a sale of a product rather than the mere delivery of a service 2. Defining products as opposed to services; e.g., debate around blood transfusions and whether they are products or services of a hospital 3. Products considered unavoidably unsafe a) Benefits must greatly outweigh its risks b) Risks cannot be eliminated c) No safer product exists as an alternative d) Manufacturer is liable for injuries only if there was a failure to adequately warn of the risks e) Prescription drugs are usually considered unavoidably unsafe 4. Learned intermediary rule a) Manufacturer of a prescription drug or medical device does not have the responsibility for warning the patient of potential dangers

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b) Manufacturer must warn health care providers c) Doctors and nurses are responsible for knowing the potential dangers and including warning in their instructions to patients

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Products Liability

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Products Considered Unavoidably Unsafe

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Learned Intermediary Rule

VII. Collective and Alternative Liability A. Collective Liability 1. Stems from cooperation by several manufacturers in a wrongful activity that by nature requires the participation of more than one wrongdoer 2. All the wrongdoers’ actions result in an inadequate industry-wide standard of safety

B. Alternative liability 1. Applies when two or more manufacturers commit separate wrongful or unreasonable acts, only one of which injures the plaintiff, but the plaintiff cannot identify the actual case-in-fact defendant

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Collective and Alternative Liability

VIII. Caveats in Products Liability Lawsuits A. Issues influencing whether a products liability action will succeed 1. States often follow strict liability in medical or health-related causes of actions. Not to allow a strict liability cause of action would place an unfair burden on the plaintiff.

Even so, compensation has been denied persons injured in health care settings 2. Defendant must be a commercial supplier or be determined to be a commercial supplier for a products liability cause of action to exist in most jurisdictions 3. The cause of action must be based on a sold product and not a service, or no action will exist under products liability.

4. If the defendant successfully defends against a products liability cause of action, the plaintiff may still be able to prove negligence. .

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Caveats in Product Liability Lawsuits

IX. Selected Ethical Issues A. Ethical issues arising when considering defenses of providers and manufacturers 1. Health care providers must consider their obligations to deliver quality care and respect the rights of their patients as they protect themselves and others from possible harm by disclosing possible abuse, preventing injuries, and providing emergency care at accident scenes.

2. Courts and legal analysts struggle to protect the consumer while recognizing that manufacturers and producers of pharmaceutical agents and medical devices cannot predict the effectiveness and safety of a product or medication for every individual.

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Ethical Issues

Chapter 8 Informed Consent and Patient Self-Determination Objectives 1.

Define informed consent, comparing and contrasting informed consent with consent.

2.

Describe means of obtaining informed consent, including expressed, implied, oral, written, complete, and partial.

3.

Compare and contrast standards of informed consent.

4.

Describe four exceptions to informed consent.

5.

Describe who has responsibility for obtaining informed consent.

6.

Describe types of consent forms in use in health care settings.

7.

Analyze whose signature must be obtained to ensure informed consent.

8.

Describe one’s right to refuse consent for medical care.

9.

Describe the patient’s right to either consent to or deny consent for research.

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10. Discuss the issue of health care literacy as it pertains to informed consent.

11. Discuss the various issues that arise with informed consent and genetic testing.

12. Describe advance directives, including living wills, natural death acts, and durable power of attorney for health care and do-not-resuscitate directives.

13. Discuss the purpose of the Physician Orders for Life-Sustaining Treatment and its implementation.

14. Discuss legal issues surrounding physician-assisted suicide.

15.

Analyze selected ethical issues surrounding informed consent and patient self-determination.

Introduction: In the past, informed consent was a matter concerning the patient and the physician, a concept capable of being delegated to the nurse as the physician thought best. Too often, the consent was automatic and uninformed, with patients and their loved ones asking far too few questions. Fortunately, this trend has changed, and nurses must understand the concept of informed consent to ensure that patient consent is truly valid and informed. Extensions of the concept of informed consent are patients’ rights in research, genetic testing, and .

patient self-determination. This chapter explores the essential characteristics of consent, the power to consent, and the multiple documents that assist individuals with decision making at the end of life.

I.

Role of Consent A. Definition of consent 1. Consent in health care situations is based on informed consent 2. The health care provider has the legal duty to disclose needed material facts in terms that patients can reasonably understand 3. Available alternatives to the proposed treatment and risks and dangers to each alternative should be described 4. Failure to disclose the above does not negate consent, but it does place potential liability on the practitioner for negligence

B. The right to consent and the right to refuse consent 1. Based on the common law right of persons to be free from harmful or offensive touching of their bodies 2. Means that the practitioner must actively seek consent 3. Intended to prevent battery 4. Based on a person’s right to control what is done to their body 5. Without consent given, practitioners may be sued for battery 6. Without informed consent, practitioners are vulnerable to malpractice suits

C. Informed refusal 1. Important corollary to informed consent 2. Demands that a patient be fully informed of risks or complications that may occur if they do not consent to a recommended therapy or diagnostic screening test

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The Role of Consent

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The Right to Consent

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Informed Refusal

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Inclusions in Informed Consent A. Patients must receive the following in terms they can comprehend: 1. A brief but complete explanation of the treatment or procedure to be performed 2. The name and qualifications of the person to perform the procedure and, if others will assist, the names and qualifications of those assistants 3. An explanation of any serious harm that may occur during the procedure, including death if that is a realistic outcome. Pain and discomforting side effects both during and following the procedure should also be discussed.

4. An explanation of alternative therapies to the procedure of treatment, including the risk of doing nothing at all.

5.

An explanation that the patient can refuse the therapy or procedure without having alternative care or support discontinued.

6.

The fact that patients can still refuse, even after the procedure or therapy has begun.

For example, all radiation treatments need not be completed.

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Inclusions in Informed Consent

III. Forms of Informed Consent A. Expressed consent—given by direct words, written or oral B. Implied consent 1. Inferred by patient’s conduct; e.g., holding out arm for a shot 2. Legally presumed in emergency situations 3. When a primary caregiver of a patient who is a minor gives consent

C. Emergency consent 1. Patients must not be able to make their wishes known 2. A delay in providing care would result in the loss of life or limb 3. Provider must have no reason to believe that consent would not be given were the patient able to deny consent 4. Caregiver not required to obtain consent from the patient when the patient is mentally incompetent to make medical decisions .

D. A signed consent form takes precedence over any oral statements that an individual may have made E. Consent may be partial or complete PowerPoint Lecture Slides • •

Forms of Informed Consent Emergency Consent

IV. Standards of Informed Consent A. Standards of disclosure 1. Physician-based standards or professional practice standards require the primary health care provider to disclose the risks, benefits, and alternatives to a treatment in the same manner that other “reasonable prudent practitioners” would employ 2. Patient-based standards or materiality standards hold the practitioner responsible for disclosing information on the risks, benefits, and alternatives to a treatment that other “reasonable patients” would need in order to make an informed decision.

3. Shared medical decision making a) A process in which the provider gives the patient relevant information about all treatment alternatives and the patient shares relevant personal information. b) Both parties then come to a mutual decision regarding the appropriate course of therapy or treatment plan c) Improves patient autonomy and comprehension d) Can reduce unwanted medical procedures and services e) Increases communication and potentially trust between providers and patients

B. To bring a successful malpractice suit based on informed consent, the plaintiff must be able to show, by a preponderance of the evidence, all of the following: 1. A duty on the part of the health care provider to know of a risk or alternative treatment 2. A duty on the part of the health care provider to disclose the risk or alternative treatment 3. A breach of the duty to disclose.

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4. If the health care occurs in a state where the reasonable patient standard is used, a reasonable person in the plaintiff’s position would not have consented to the treatment if he or she had known of the outstanding risk.

5. The undisclosed risk caused the harm, or the harm would not have occurred if an alternative treatment plan was selected.

6. The plaintiff suffered injuries for which damages can be assessed

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Standards of Disclosure Consent-based Malpractice Suits

Exceptions to Informed Consent A. Emergency situations B. Therapeutic privilege or therapeutic exception 1. Allows primary health care providers to withhold information based on sound medical judgment that the patient is too emotionally or mentally unable to fully understand and that revealing the information would potentially harm the individual 2. Detrimental nature of the information must be more than fear that the information would lead to the patient’s refusal 3. Based on actual danger or patient incompetence, not merely on the principle of beneficence 4. Not favored by the courts, as it is a form of intentional nondisclosure 5. Must fully disclose withheld information after the risks of patient harm have abated

C. Patient may initiate a waiver of the right to full disclosure if they do not want to know about potential risks D. Prior patient knowledge 1. Means the risks and benefits were explained to the patient the first time the patient consented to the procedure 2. Liability does not exist for nondisclosure of risks that are public or common knowledge or that the patient had previously experienced

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Exceptions to Informed Consent

VI. Accountability for Obtaining Informed Consent A. Individual hospitals have no responsibility for obtaining informed consent unless: 1. The primary health care provider is an employee or agent of the hospital 2. The hospital knew or should have known of the lack of informed consent and took no action 3. The physician has the legal responsibility to communicate with the patient about the benefits, risks and alternatives of the proposed procedure and to obtain the patient’s consent 4. The physician may delegate to a nurse the task of properly completing the consent form and obtaining the patient’s signature 5. Institutional policy and procedure can also make nurses accountable for verifying that informed consent has been given

B. Nurse’s role in obtaining consent 1. Most nursing interventions rely on oral expressed consent or implied consent that may be readily inferred through the patient’s actions 2. The doctrine of informed consent means is that nurses must continually communicate with a patient, explaining procedures and obtaining the patient’s permission 3. Know the state laws on allowing the patient to refuse life-sustaining treatment 4. Most hospitals have begun to prohibit primary care practitioners from delegating the accountability for obtaining informed consent to nurses 5. Nurses have legal duty if patients wish to revoke their prior consent, if it becomes obvious that a patient’s already-signed informed consent form does not meet the legal standards of informed consent, or if oral comments of the patient do not concur with their paperwork

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Accountability for Obtaining Informed Consent Nurse’s Role in Obtaining Consent

VII. Consent Forms A. Blanket consent form 1. Required prior to admission and is sufficient for routine and customary care 2. It is needed only for insurance coverage and assignment of benefits .

B. Specific consent form 1. Provides information, such as name and description of the procedure to be performed 2. This form typically contains a section stating that the person who signed the form was told about the medical condition, risks, alternatives, and benefits of the proposed procedure, and all questions have been answered

C. Detailed consent form 1. Lists the procedure, consequences, risks, and alternatives 2. Many states now mandate this kind of form through statutory medical disclosure panels

D. Most detailed consent forms have the following elements: 1. A signature of the competent patient or legal representative 2. Name and full description of the proposed procedure 3. Name of person or persons to perform procedure 4. Description of risks and alternatives of the proposed procedure, including no treatment 5. Description of probable consequences of the proposed procedure 6. Signature of one or two witnesses according to state law

E. Nurses should remember: 1. Witnesses are not required to make consent valid; they merely attest to the competency of the patient signing the form and the genuineness of the signature—not that they had all the information to make an informed choice 2. Consent may be withdrawn at any time 3. Consent forms are not conclusive and can face challenges such as: a) Technical language precluded reasonable patients from understanding what they actually signed b) The signature was not voluntary, but coerced or forced c) The signer was incompetent due to impairment by medications previously received 4. If consent forms are be absent or the form doesn’t address the performed procedure nurses must inform the physician or hospital administrative staff 5. Handwritten notations on a consent form may be binding 6. Consent forms are considered to be valid until withdrawn by the patient or condition changes .

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Types of Consent Forms Used Elements of a Consent Form Nurses Should Remember

VIII. Who Must Consent A. The wrong signature makes informed consent invalid B. Competent adult 1. If the patient is an adult according to state law, only that adult can give or refuse consent 2. The court has not declared the person to be incompetent 3. The person is generally able to understand the consequences of their actions 4. Exceptions to legal adult’s right to give or refuse informed consent are: a) A court-appointed guardian b) A person with a valid, written power of attorney

C. Incompetent Adult 1. The legal guardian or representative is the person legally responsible for giving or refusing consent for the incompetent adult 2. These people have a narrower range of permissible choices than if they were deciding for themselves 3. Guardians are typically selected from family because the law holds that they hold the patient’s interests at heart

D. Minors 1. Children under 18 are recognized as minors 2. Parental or guardian consent is necessary for them unless: a) The emergency doctrine applies b) The child is an emancipated or mature minor c) There is a court order to proceed with the therapy d) The law recognizes the minor as having the ability to consent to the therapy 3. In loco parentis—ability of a person or the state to stand in the place of parents; allowed in some states .

4. In the case of divorce either parent may give consent unless one parent has sole custody or is in total abrogation of parental rights 5. Emancipated minors: persons under the legal age who are no longer under their parents’ control and regulation and who are managing their own financial affairs 6. The mature minor: a teenager between the ages of 14 and 17 who is able to understand the nature and consequences of the proposed therapy, and who independently makes his or her own decisions on a daily basis 7. If doubt exists regarding consent, a court order is sought unless a true emergency exists 8. Court orders may be needed for minors if parents refuse to consent to needed treatment

E. Selected therapies minors may consent to with informing their parents: 1. The diagnosis and treatment of infectious, contagious, or communicable diseases 2. The diagnosis and treatment of drug dependency, drug addiction, or any condition directly related to drug usage 3. Obtaining birth control services and devices (laws vary by state) 4. Treatment during a pregnancy as long as the care concerns the pregnancy (varies by state) 5. Medical care for their children (varies by state)

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Who Must Consent Emancipated Minors Mature Minors Minors and Informed Consent

IX. Right to Refuse Consent A. Right of refusal 1. If persons have the right to consent, they also have the right to refuse to give consent 2. Right to refuse continues even after primary consent is given 3. Patients or their guardians need only to notify the health care giver that they no longer wish to continue with the therapy 4. In some limited circumstances, the danger of stopping therapy poses too great a harm for the patient, and the law allows its continuance .

5. Right extends to the refusal to consent for lifesaving treatment in most states 6. The right for such refusal may be based on the common law right of freedom from bodily invasion or the constitutional rights of privacy and religious freedom

B. Limitations on Refusal of Therapy 1. Preservation of life if the patient does not have an incurable or terminal disease 2. Protection of minor dependents 3. Protection of the public’s health 4. Courts balance individual rights against societal rights

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X.

The Right to Refusal

Law Enforcement A. Criteria for cooperating with law enforcement officials: 1. The suspect must be under formal arrest 2. There must be a likelihood that blood drawn will produce evidence for criminal prosecution 3. A delay in drawing blood would lead to destruction of the evidence.

4. The test is reasonable and not medically contraindicated 5. The test is performed in a reasonable manner 6. State law may supersede the law enforcer’s request

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Law Enforcement and Consent

XI. Informed Consent in Human Experimentation A. Selecting research subjects 1. Using vulnerable groups of people for research poses many potential problems because of the ease with which the subjects can be coerced and denied access to informed consent 2. Especially true of the mentally disabled, children, pregnant women, prisoners, and economically or educationally disadvantaged persons Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

3. Whenever medical research is being conducted, the investigator must disclose the research to the subject and obtain informed consent

B. Federal guidelines—Department of Health and Human Services (HHS)— for valid informed consent are: 1. Risks to subjects are minimized 2. Risks to subjects are reasonable in relation to anticipated benefits, if any, to the subjects and to the importance of the knowledge that may reasonably be expected to result 3. Selection of subjects is equitable 4. Informed consent will be sought from each prospective subject or the subject’s legally authorized representative 5. Informed consent will be appropriately documented 6. Where appropriate, the research plan makes adequate provision for monitoring the data collected to ensure the safety of the subjects 7. Where appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data

C. Basic elements of information that must be included to meet the standards of informed consent 1. A statement that study involves research, an explanation of that research, expected duration of participation, descriptions of procedures to follow, and identification of procedures that are experimental 2. Description of any reasonably foreseeable risks or discomforts to the subject 3. Description of any benefits to the subjects or others 4. Disclosure of appropriate alternative procedures or courses of treatment, if any, that may be advantageous 5. Statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained 6. For minimal research, an explanation as to any compensations and explanation as to whether any medical treatments are available if injury occurs and if so, what they consist of 7. An explanation of whom to contact for answers to pertinent questions about the research and research subjects’ rights and whom to contact in the event of a researchrelated injury to the subject 8. Statement that participation was voluntary and refusal to participate involves no penalties or loss of benefits. Subject may discontinue participation at any time without penalty or loss of benefit. .

D. One or more of the following elements should be provided to the subjects 1. A statement that the particular treatment or procedure may involve risks to the subject, which are currently unforeseeable 2. Anticipated circumstances under which the subject’s participation may be terminated by the investigator without regard to the subject’s consent 3. Any additional costs to the subject that may result from participation in the research 4. The consequences of a subject’s decision to withdraw from the research and procedures for orderly termination of participation by the subject 5. Statement that any significant new findings developed during the course of the research that may relate to the subject’s willingness to continue participation will be provided to the subject 6. The approximate number of subjects involved in the study 7. Information must be presented in language that is understandable by the subject or subject’s legal representative

E. The Privacy Rule 1. Created in 2003, addresses safeguards for research 2. Demographic items constituting the protected health information (PHI) must be removed before researchers are permitted to use patient records 3. De-identified information: health information that cannot be linked to an individual 4. Without obtaining individual patient permission, de-identified data may contain the following demographics: a) Gender b) Age c) Three-digit zip code 5. Patients do not have to sign permission forms after they have been discharged, researchers are allowed to submit a waiver based on two conditions: a) The use and/or disclosure of PHI involves minimal risk to the subject’s privacy b) The research cannot be practically done without this waiver

F. Federal guidelines for protecting children 1. The research does not involve greater than minimal risk 2. The research involves greater than minimal risk, but presents the prospect of direct benefit to the individual subjects .

3. The research involves greater than minimum risk and no prospect of direct benefit to the individual subject, but is likely to yield generalizable knowledge about the subject’s disorder or condition 4. The research is not otherwise approvable, which presents an opportunity to understand, prevent, or alleviate a serious problem affecting the health or welfare of children

G. Proposals involving new investigational drugs or devices must meet Food and Drug Administration (FDA) regulations PowerPoint Lecture Slides • • • • • •

Consent and Medical Research Guidelines for Informed Consent in Human Experimentation Information for Research Subjects One of More of the Following Should be Provided the Subject The Privacy Rule Additional Federal Research Regulations

XII. Health Literacy A. Health literacy or medical literacy 1. Concerns the degree to which individuals have the capacity to obtain, process, and understand basic health information and services needed to make appropriate health decisions 2. Functional health literacy: the ability to read, understand, and act on health information as well as the ability to comprehend information on prescription bottles, printed health care instructions, etc.

3. Comprehending medical jargon is difficult for well-educated Americans; it is estimated that only 12 percent of adults are considered proficient in health literacy 4. Health literacy can be low for individuals whose first language is not English, who are unable to read at greater than a second grade level, or who have vision or cognitive problems caused by aging 5. Difficulties may include following instructions printed on medication labels (both prescription and over-the-counter), interpreting hospital consent forms, and even understanding diagnoses, treatment options, and discharge instructions 6. Poor health literacy may be a stronger predictor of one’s health than income, level of education, employment status, race, culture, and age

B. Nurses play a significant role in health literacy .

1. Address awareness of the problem (many patients hide the fact that they cannot read) 2. Ensure that the information and words nurses use to communicate with patients are at a level they can comprehend

C. Means of insuring comprehension include 1. Audiovisual presentations 2. Short instructional periods 3. Follow-up phone calls 4. Ensuring patients know whom to call with questions 5. Developing of standards of communication within the institution

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Health Literacy Nurses and Health Literacy

XIII. Genetic Testing A. Questions of informed consent, discrimination against less than perfect genes, and the issue of confidentiality B. Elements when seeking informed for genetic testing 1. Nature of the disorder and how the condition may affect the individual; patient may chose to not treat the disorder 2. Efficacy of the test; patient should be informed about accuracy of the test as well as probability of developing the condition 3. Decisions that will follow if test is positive 4. Support services 5. Disclosure and confidentiality issues. Does patient want to share results with other family members who may be at risk?

C. Genetic testing options 1. Some states require screening newborns for carrier information for cystic fibrosis, Tay-Sachs disease, and the sickle-cell trait 2. States may allow parents the right to refuse the test for cause, such as religious grounds .

3. The majority of states ensure that parents are informed about the testing before taking a blood sample 4. Genetic testing available for prenatal diagnosis when there is a risk of bearing a child associated with intellectual or developmental disabilities or physical deterioration; most common genetic disorder in this classification is trisomy 21 or Down syndrome 5. DNA testing for identification in legal cases involving paternity and criminal investigations

D. Considerations with genetic testing 1. Is it treatable, and what does the treatment entail?

2. Consider the reliability of the test 3. Will decisions be made based on the outcome of the genetic test?

4. Consider the effect that disclosure might entail; e.g., will an insurance carrier have access to the test result?

E. HIPAA provides some protection against discrimination in insurance coverage 1. Prevents using genetic information to determine insurance eligibility and prevents the limitation or denial of benefits using a preexisting exclusion clause 2. It does not prevent insurers from charging higher premiums to those with genetic mutations or requiring genetic testing

F. The Genetic Information Nondiscrimination Act of 2008 (GINA) 1. Passed to protect Americans from being treated unfairly because of differences in their DNA that may ultimately affect their health status 2. Law was proposed to protect against discrimination that might keep individuals from obtaining genetic tests 3. GINA II (2011) bars the use of genetic information in employment decision making, restricts deliberate acquisition of genetic information, requires that genetic information be maintained as a confidential medical record, and places strict limitation on disclosure of genetic information

G. Patient education in genetic testing 1. Advocacy role of the nurse is extremely important during genetic testing and following positive test results 2. Nurses will be asked many questions by frightened and concerned parents and patients, and they must first understand genetic testing, its limitations, and its potential for enhanced health care

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3. Nurses must incorporate all members of the interdisciplinary health care team, specialists in genetics, social workers, mental health practitioners, religious counselors, ethicists, and staff nurses

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Genetic Testing Informed Consent and Genetic Testing Protections from Genetic Test Results Discrimination Nurses and Genetic Testing

XIV. Patient Self-Determination A. The issue of consent 1. Patient self-determination involves the right of individuals to decide what will or will not happen to their bodies 2. Before one can discuss the patient’s right to die or to forgo life-sustaining procedures, one must consider the issue of informed consent 3. State may override a person’s right to refusal when: a) Protecting third parties, especially minor children b) Preserving life, especially that of minors and incompetents c) Protecting society from the spread of disease 4. Competent adults have the right to forgo treatment even if the refusal is certain death 5. Typically desires are shared orally and courts are reluctant to enforce generalities 6. Incompetent adults do not have the rights of competent adults and the best interest standard allows a person to determine what one thinks would be in the best interest and then pursue that plan of care 7. Substituted judgment is the subjective determination of how, if a person were capable of making his or her opinions and wishes known, he or she would have chosen the right to refuse

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Self-Determination Substituted Judgment

XV. Living Wills .

A. Directives from competent individuals to medical personnel and family members regarding the treatment they wish to receive when they can no longer make the decision for themselves 1. Language in a living will is broad and vague 2. There is no legal enforcement of the living will 3. There is no protection for the practitioner against criminal or civil liability

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Living Wills

XVI. Natural Death Acts A. Living wills with statutory enforcement 1. Written, legally recognized living wills 2. Vary from state to state 3. Withhold or withdraw life-sustaining treatment from patients if they are ever in a terminal state 4. Generally persons over 18 years of age, of sound mind, and who understand the purpose of the document may sign a natural death act with two witnesses a) Related to the patient by blood or marriage b) Entitled to any portion of the estate of the patient by will or intestacy c) Directly financially responsible for the patient’s medical care d) An attending physician, employee, or employee facility in which the declaration is a patient e) The person who, at the request of the patient, signed the declaration because the patient was unable to sign f)

States may incorporate some and not all of these restrictions

B. Validity of natural death act 1. Some states provide no suggestion as to content of the document, other states have suggestions, and still other states have mandatory forms 2. Once signed and witnessed, most natural death acts are effective until revoked. Some state require they be reexecuted every 5 to 10 years. Sometimes a patient may not benefit from the natural death act during the course of pregnancy

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3. It is advisable for the declarant to review, redate, and re-sign the natural death act every year or so 4. The natural death act may be revoked by physical destruction or defacement, by a written revocation, or by an oral statement 5. A natural death act is effective only when the person becomes qualified—diagnosed with a terminal condition. Medication/procedures to reduce suffering are exempt

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Natural Death Acts

XVII.

Durable Power of Attorney for Health Care (DPAHC)

A. Definition of DPAHC or the medical durable power of attorney (MDPA) 1. Allows patients to appoint a surrogate or proxy to make health care decisions for them in the event that they are incompetent to do so 2. It is a common-law concept that allows one person to speak for another 3. Best form of substituted judgment available for an otherwise incompetent patient 4. The surrogate has full authority to act as the principal would have acted 5. Agent has authority to enforce patient’s treatment plans by filing lawsuits or legal action, as well as the right to forgo treatment, change treatment, or consent to additional treatment

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Durable Power of Attorney

XVIII.

Third-Generation Advance Directives

A. Medical or physician directive 1. Allows for a directive that lists a variety of treatments and lets patients decide what they would want, depending on their condition at the time 2. Legal worth comparable to the living will 3. Five Wishes directive and the Lifecare Advance Directive are other legal documents that present what an individual would want if unable to verbalize wishes

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Medical or Physician Directive

XIX. Uniform Rights of the Terminally Ill Act A. Details of the Act: 1. Provides alternative ways in which a terminally ill patient’s desires regarding the use of life-sustaining procedures can be legally implemented 2. Limited to treatment that is merely life prolonging and to patients whose terminal condition is incurable and irreversible, whose death will occur soon, and who are unable to participate in treatment decisions 3. Patients in a persistent vegetative state are not qualified 4. Majority of states have not yet signed this act

B. Physician orders for life-sustaining treatment 1. Formerly known as an Emergency Medical Service No Cardiopulmonary Resuscitation (EMS–No CPR) 2. Intended for use by any person 18 years of age or older who has a serious health condition 3. Form contains information on the person’s end-of-life directives 4. Developed for emergency medical service (EMS) personnel to provide initial responders with written physician orders 5. Portable and may be used from one setting to another; it is easy to complete; and because it is brightly colored, it is easy to recognize 6. Person should also complete an advance directive; POLST outlines preferences while an advance directive provides more details; both: a) Are designed to assist persons with making their final wishes known b) Encourage open and frank conversations with health care providers, family, and friends c) Encourage communication to take place when the patient is competent to understand the ramifications of alternative options

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Uniform Rights of the Terminally Ill Act Physician Orders for Life-Sustaining Treatment POLST and Advance Directive

XX. Patient Self-Determination Act of 1990 .

A. Details of act: 1. Mandates that patients must be queried about the existence of advance directives and that such advance directives be made available to them if they wish a) Patients who are informed of their rights are more likely to take advantage of them b) If patients are more actively involved in decisions about their medical care, that care will be more responsive to their needs c) Patients may choose care that is less costly 2. The most challenging aspect of preparing an advance directive is assisting patients in identifying their preferences for treatment 3. Preferences change over time and the willingness to undergo aggressive treatment depends largely on perception of the likely outcome of that treatment

B. Advance directives are most important for: 1. Patients for whom a legally designated surrogate does not exist or might not be respected; as in the case of a gay or transgender patient who chooses a long-term mate rather than a parent or sibling 2. Patients with unusual or highly specific preferences 3. Patients and families for whom the existence of a document will reduce anxiety

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Patient Self-Determination Act of 1990 Directives are Challenging Standards in Life-Threatening Situations Individuals Who Should Consider End-of-Life Directives

XXI. Do-Not-Resuscitate Directives A. Details of do-not-resuscitate directives 1. Recognize that patients and surrogate decision makers need the ability to state their preferences for or against resuscitative measures 2. Physician will then follow hospital policy in attaching such orders to the patient record 3. If it is not known whether a valid do-not-resuscitate order has been written, the legal standard of care is to immediately begin resuscitation

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Do-not-Resuscitate Directives

XXII.

Mature Minors and the Right to Die

A. Courts continue to debate the rights of minors in medical decision making 1. Stakes are extraordinarily high in these cases, and legal authorities continue to contend that these issues must be addressed 2. There are various standards adopted by state legislatures and state courts concerning mature minors and their right to decide issues that concern their welfare 3. The question remains, whose voice would have the most weight with the courts—that of the mature minors or that of the parents?

4. Lowering the age or adopting a uniform best interest approach will reinforce the same court debates occurring now since minors younger than the age of competency will still likely seek the right to consent

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Minors and the Right to Die

XXIII.

Hospice Care

A. Hospice Center 1. Some terminally ill patients prevent the need for natural death acts by entering hospice centers, where a patient is cared for until death occurs.

2. Patients receive care without the fear that they will be resuscitated or placed on lifesupport systems when death occurs 3. Typically competent patients seek hospice care

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Hospice Care

XXIV.

Assisted Suicide

A. The Oregon Death with Dignity Act (DWDA) 1. Individual must be a competent and terminally ill adult .

2. Patient must make an oral or written request for the prescription, signed, dated, and witnessed by two individuals who attest to patient’s competency and that no coercion has taken place 3. Must be followed by second request at the end of 15 days 4. Attending physician must determine if patient is making an informed and voluntary request 5. If physician believes that patient may suffer from psychiatric or psychological disorder or depression that could cause impaired judgment, patient will be referred to counseling and no medication to end life shall be prescribed until patient is determined to be sound

B. Physician-assisted suicide is most commonly sought due to: 1. Loss of autonomy 2. Decreasing ability to participate in activities that made life enjoyable 3. Loss of dignity 4. Fear of inadequate pain control

C. Opposition 1. Most states prohibit assisted suicide 2. Opposed by the American Medical Association 3. The American Nurses Association (ANA) opposes the movement and opposes nurses’ participation in either assisted suicide or active euthanasia because they violate the ethical traditions embodied in the Code of Ethics for Nurses

D. Model State Act to Authorize and Regulate Physician-Assisted Suicide 1. Has not been adopted by any state 2. Developed to prevent potential managed care abuses with physician-assisted suicide 3. The patient must be competent 4. The patient must be fully informed 5. The choice must be voluntary 6. The choice must be enduring, stated to physician on at least two occasions that are two weeks apart

E. The End-of-Life Competency Statements (AACN, 1999) 1. Developed as terminal objectives for undergraduate nursing students 2. Apply to all nurse professionals

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Assisted Suicide Criteria for Physician-Assisted Suicide Model State Act to Authorize Physician-Assisted Suicide Nursing and End-of-Life Objectives

XXV.

Ethical Issues

A. Informed consent with adolescents 1. The AMA has advocated for health care providers to involve adolescents in their decision-making process 2. Parents generally have the legal right to either consent or not consent for their child

B. Other ethical issues 1. What is the best interest test for persons who are incompetent to either consent to or refuse medical interventions?

2. How do health care providers begin to determine the level of comprehension needed to assure that informed consent is truly informed?

3. Advanced directives being prepared long before the directive becomes effective 4. Is the need for legal measures regarding physician-assisted death necessary or are there four last resort options during the final stage of life: a) Right to intensive pain and symptom management b) Right to forgo life-sustaining therapy c) Voluntary stopping eating and drinking d) Sedation to unconsciousness

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Ethical Issues Definition of Standards of Care

Chapter 9 Documentation and Confidentiality Objectives 1.

Discuss purposes of the medical record.

2.

Define and describe basic information to be included in the medical record.

3.

List and give examples of guidelines for accurate documentation.

4.

Analyze the concepts of: a. Alteration of records b. Retention of records c. Ownership of the medical record d. Access to medical records e. Computerized charting

5.

Describe important aspects of incident reports.

6.

Compare and contrast charting by exception to traditional charting.

7.

Define confidentiality and relate that concept to: a. Substance abuse conferences b. AIDS/HIV conferences

Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

c. Access laws d. Child/elder abuse conferences e. Electronic mail and Internet service 8.

Define and analyze applications of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

9.

Describe reporting and access laws, including the common-law duty to disclose and limitations to disclosure.

10. Analyze some of the ethical issues involved in documentation and patient confidentiality.

Introduction: A major responsibility of all health care providers is that they keep accurate and complete patient medical records. Much of what is collected and recorded remains sensitive information. Understanding the need for clear and concise records and knowing which portions of the record may be discovered and introduced during trials enables nurses to be proficient recorders of patient care in all health care settings. The newer areas of confidentiality concern computer documents, electronic resources, and the multiple applications of the Health Insurance Portability and Accountability Act of 1996. This chapter presents guidelines for documentation in patient records and incident reports, and presents pointers for assuring patient confidentiality.

I.

Medical Records A. Purpose of medical records 1. Assist in planning and evaluating patient care and recommending patient’s continuing treatment

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2. Document the course of the patient’s care, including responses to treatment, and communications among health care providers responsible for the patient’s care 3. Protect the legal interests of the patient, health care facility, and health care providers 4. Provide data for use in continuing education and in research

B. Mandated by federal governmental and nongovernmental agencies C. Contents of the records 1. Personal data such as name, date of birth, etc.

2. Financial data such as health insurance, patient employer, person responsible for the bill 3. Medical data—history of signs and symptoms, diagnosis, treatments, signed consent forms, nurses’ notes, etc. a) Nurses’ documentation of care should reflect the individual patient status, i.e., patient needs, problems, limitations, etc. No pertinent information should be overlooked or forgotten. b) Documentation should show continuity of care, interventions made, and responses from patient c) Notes should be concise, clear, timely, and complete

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II.

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Medical Records

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Contents of Records

Effective Documentation A. Based on case law and court rulings B. Make an entry for every observation 1. If no mention of change in patient’s condition is made, jury can infer that no observation was made 2. If care is not documented, then the care is presumed not to have occurred

C. Follow up as needed 1. Merely charting changes may not be adequate and is not a substitute for quality nursing care 2. Nurses need to report their observations and lack of intervention to nursing supervisor .

D. Read nurse’s notes before giving care 1. Reading notes can help determine whether there has been a change in the patient’s condition 2. Physicians too should read the notes

E. Always make an entry, even if it is late 1. Entries should be timely and as close to the happening as possible 2. Late entry is superior to no entry 3. Never cram information into a small space as it is perceived as an attempt to cover up information 4. If one must chart after the fact it is more important to note all pertinent data rather than chronological order of the chart 5. Use military time for accuracy 6. Most states require that a chart be complete 30–60 days after the patient’s discharge; after that no change can be made.

F. Make the chart entry after the event G. Use clear and objective language H. Be realistic and factual 1. Chart exactly what happened to the patient to prevent a lawsuit for attempted concealment or minimization of an injury 2. Chart a realistic picture of patients—especially if they are difficult to care for or abusive 3. Be objective, avoid blame; use quotation marks when necessary

I. Chart only your own observations 1. Do not chart for another nurse unless absolutely necessary 2. Charting for others or cosigning notes makes the charting nurse potentially liable for care, observations, or omissions as charted 3. Chart only what is observed and assessed

J. Chart patient’s refusal of care 1. Chart given patient education about patient refusal 2. Include patient education about the consequences of that refusal

K. Clearly chart all patient education .

1. Document any education and evaluation 2. Chart that patient has retained the information

L. Correct charting errors 1.

If there are errors in part of the record, the jury could find that errors might just as easily exist elsewhere as well

2. Records should never be so altered that original data are completely removed from the record 3. Note time, date, and explanation of correction 4. Sign the correction 5. Nurses are discouraged from using the word “error” when correcting a chart for fear that it be interpreted as the entire entry is in error 6. Never obliterate an entire entry; tape a new entry over the erroneous entry 7. No one may alter the nurse’s notes

M. Markers for suspicious alterations: 1. Crowded writing in margins/existing entries 2. Change in slant or pressure 3. Use of different pen 4. Additions of different dates, writing in different ink 5. Differences between pages as to folds, stains, tears, etc.

6. Use of forms not in use at the purported time of entry 7. Use of later years (2004 for 2003)

N. Never alter a record at someone else’s request 1. Seasoned malpractice or personal injury attorneys will be able to see that the record has been altered, alerting them that something irregular has happened 2. No one has the right to ask another person to alter a chart on their behalf

O. Identify yourself after every entry 1. Nurses must identify themselves by full name and title

P. Use standardized checklists or flow sheets 1. Prevents routine care from being omitted from the chart and ensures that frequent observations are both performed and charted 2. Legally valid and prevent the need for long chart entries Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

Q. Leave no room for liability 1. Chart all lines in sequence; no additional entries squeezed in later 2. The patient record is not the appropriate place to record employee complaints

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Effective Documentation

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Correct Charting Errors

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Charting Protocol

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Liability and Charting

III. Electronic Medical Record (Computerized Charting) A. Increases accuracy and promptness of charting B. Nursing information systems (NIS) 1. Allow for accuracy at all stages of the nursing process, from assessment to evaluation 2. Many systems do not allow for omissions in data

C. Patient care improvements 1. Necessary test and laboratory results can be instantly available 2. Medication errors are reduced 3. Eliminates issues of illegible writing, misspellings, unapproved abbreviations, and time needed for hand writing entries 4. Documentation is readily available to retrieve, review, and amend 5. Data can be viewed and edited by all members of the health care team 6. More integrated clinical decision making 7. Increased patient–provider communications 8. Increased communication between providers

D. Potential liability issues 1. Transition from paper copies to electronic records may create documentation gaps 2. Failure to use the system consistently may create incomplete, incorrect, or missing data gaps 3. Inadequate or incomplete training concerning how to properly use the system may create error pathways Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

4. Failure by the institution to implement procedures to avoid errors may open health care providers and the institution to additional liability 5. More extensive documentation of clinical decision making may create more discoverable evidence for patients convinced that there is a cause of action for malpractice or negligence 6. Temptation to “copy and paste” patient history data instead of completing new patient histories and assessing new signs and symptoms may increase the risk of missing important data needed for competent and appropriate care 7. Loss of records following a “crash” of the system unless a second server and adequate backup of the electronic record are implemented and maintained

E. Increased privacy and confidentiality 1. There are fewer points of access into the system 2. Each person’s access can be restricted to a limited scope of information 3. A person can be “locked out” if there are violations 4. The information sought through individual access codes can be monitored, making misuse easier to detect 5. Passwords are changed on a regular basis 6. Access to the system is terminated when the employee resigns his or her employment status 7. Confidentiality statements are signed by users to acknowledge their awareness of legal and institution requirements for usage

F. Privacy protection 1. Security measures regarding patient data and privacy are covered under HIPAA 2. The alteration, damage, or destruction of information contained in a computer used by the U.S. government is a federal offense 3. It is a crime to traffic passwords 4. Tampering with computerized medical records warrants punishment without a showing of monetary loss or any showing of incorrect or harmful treatment

G. Other concerns 1. Computers can be altered, destroyed, or rendered inaccessible by viruses or sabotage 2. Technology can render storage systems obsolete before the records stored are needed

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Electronic Medical Record

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Privacy Protection

IV. Charting by Exception A. Combines standards, flow sheets, and bedside access to chart form 1. Documentation of only significant or abnormal findings 2. Previously entered standardized or expected results are not re-entered into the chart 3. Relies upon printed guidelines, flow sheets, critical pathways, and graphic records to show patient’s progress or lack thereof

B. Institutionalizing charting by exception 1. Institutions can personalize charting by exception to fit their own needs 2. Standards that are uniformly used by health care personnel must be established 3. Establish normal findings and expected outcomes so that all significant data are considered when assessing patient outcomes

C. Issues of charting by exception 1. Legal perils (i.e., not enough information is provided to alert practitioners to potential problems) 2. Could compromise a patient’s care, as the missing data also fail to alert other health care providers to potential problems and complications 3. Impossible to show attentiveness of the nursing staff to patients 4. May not assist nurses in being able to defend themselves, because they cannot recreate what was done and not done for a patient 5. Institutions are cautioned to ensure that this system of charting is well developed before its implementation and that quality controls are added

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V.

Charting by Exception Issues with Charting by Exception Traditional Charting

Alteration of Records A. Minor errors 1. Misspelling, notations of laboratory data, etc.

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2. Typically corrected by the person making the entry 3. Error should be marked with single line and correction made, timed, dated, and signed 4. Never erase or obliterate

B. Substantive errors 1. Incorrect test data, omitted progress notes, incorrect orders, etc.

2. Only administrative staff or primary health care provider should correct these errors 3. All persons misled by the error should be contacted and advised of the correct information 4. Correction includes adding new material with explanation, who made the addition, date, and time

C. Addendum 1. Proof of an error 2. The further in time the charting occurs, the more suspicious a reviewer can be about the provider’s purpose

D. Patient requests modification 1. Done by adding a letter of explanation regarding the modification 2. Staff may add their own letters of support

E. Liability 1. Alteration of medical records without justification places the credibility of the entire record in question 2. Deliberate alteration of a medical record may result in licensure revocation

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Alteration of Records Addendums Liability and Record Alteration

VI. Retention of Records A. The obligation of a health care facility to maintain and protect patient records

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1. Time frame usually coincides with state statutes of limitations for medical negligent causes of action and varies according to state law 2. Majority of states preserve the record for the period of time in which suits may be filed or for 5 to 10 years 3. Omnia praesumuntur contra spoliatorem (all things are presumed against a despoiler)—courts tend to presume negligence in cases of lost or incomplete records; also called spoilage of evidence 4. A patient can sue a health care provider for spoilage of the evidence when: a) The provider, who may or may not be a defendant or potential defendant, knows that malpractice litigation is pending or probable b) The provider intentionally tampers with or destroys evidence to try to disrupt the patient’s legal case c) The patient’s malpractice case is compromised d) The patient suffers a monetary loss

B. Destruction of medical records 1. May be performed to protect confidentiality and should be done completely 2. If a patient requests destruction of the medical record prior to the retention interval lapsing, preference is to seal the record to prevent its discovery

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Retention of Records Spoilage of Evidence

VII. Ownership of the Record A. The chart is the business record of the institution 1. The health care facility is the rightful owner of the entire record 2. Physicians own the chart records of patients they see in their office

B. A patient has the right to a copy of the original record 1. Patient may be charged for a copy 2. Psychiatric records may be excluded depending on state law 3. Patient has the right to access and examine materials that cannot be copied (e.g., pathology slides)

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Ownership of the Record

VIII. Access to Medical Records A. Patient access to medical records 1. Helps dispel feelings that the physician was lying and reassures patients that their care was based on actual medical findings 2. Most states require that the record be completed prior to the patient’s right of access, and statutes have been enacted to establish procedures for such patient access

B. Patient may authorize the right of access to others 1. Including insurance carriers, legal representation, and outside professionals acting on behalf of the patient 2. A facility must allow access within 30 days of the request 3. Request must be in writing

C. Incompetent patients 1. A guardian of an incompetent patient stands in the place of the patient and can authorize access 2. If there is no court-appointed guardian, hospitals may rely on the authorization of the next of kin or the person responsible for authorization and payment of the medical treatment 3. Access may be denied to a spouse if such disclosure would cause a danger to the patient, spouse, or other person

D. Minors 1. Access to charts of minors presents a recurring problem, especially in the event of treatment for sexually transmitted diseases, pregnancy, or substance abuse 2. If minors are authorized under state law to consent to their own care, then parents will not have a right to access the record 3. If the minor relies on their parents for payment of care, then the parents may have the right to access the record or of disclosure from the primary health care provider (even in cases of mature minors)

E. In the event of death 1. The next of kin or the executor of the estate may authorize access to the record

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2. If spouse is deceased, it is advisable to obtain the authorization of all adult children rather than just one

F. Access through law 1. Include subpoenas of records of a party if the party’s mental or physical condition is relevant to the lawsuit 2. Subpoenas of records for suspected billing fraud by the health care provider 3. When there is a statutory duty of disclosure

G. Patient’s right to privacy and confidentiality 1. Encourage candor by the patient and optimize proper medical treatment and diagnosis 2. Allows nurses to be truthful and open in their assessments and recording of patient care 3. Health care providers involved in the direct care of the patient have access to the record 4. Administrators and staff have access for auditing, billing, quality assurance purposes, and defending potential claims 5. A general release for medical records does not authorize the provider to divulge the fact of substance abuse treatment 6. HIPAA has greatly limited this right of access without prior patient consent; for research

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Access to Medical Records Patient’s Right to Privacy and Confidentiality

IX. Incident Reports A. Incident, variance, situational, or unusual occurrence report forms 1. Designed to be part of the overall risk management/quality assurance effort of any health-oriented institution 2. Federal and state standards dictate the establishment of an incident reporting system 3. Devised to: a) Augment and improve quality of patient care b) Enhance the hospital’s in-service educational offerings .

c) Alert hospital administrative staff to potential problem areas d) Minimize injuries from the incident e) Decrease the likelihood of similar incidents 4. May serve to aid the hospital attorney in planning defense strategy and in deciding whether a case should be litigated or settled out of court

B. Confidentiality of incident reports 1. Because of their confidential status in most states, nurses traditionally have been instructed to be candid in their remarks 2. Hospitals usually decline to divulge these reports because disclosure makes them virtually useless 3. The right to discover incident reports varies by courts; plaintiff must show need for their right to report

C. Protection of confidentiality 1. Be labeled as such and be noted as confidential 2. A privilege log should be maintained by the risk management or legal department listing and identify in general terms all incident or occurrence reports as they are received 3. Be transmitted to an appropriate committee, considered by the committee, and acted on by the committee in regular course of operations 4. Have bylaws that define the scope of responsibility and specify that the committee’s deliberations and conclusions will be confidential 5. Have the committee be mandated to meet and actually meet on a regular basis to consider and make recommendations to hospital management

D. Recommendations for nurses filing incident reports 1. Nurses should always fill out the forms as though they are discoverable 2. No language that admits liability should be included, and there should be no mention of the incident report form having been completed in the patient’s chart 3. The ideal incident report is a check-off list, with a limited area for a brief, written description of the occurrence 4. Nurses must include in the chart relevant documentation concerning the underlying event that mandated completion of an incident report 5. For an incident report to be considered privileged under the attorney-client privilege, it should be completed and forwarded directly to the hospital attorney or in-house representative

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X.

Incident Reports Purpose of Incident Reports Confidentiality of Incident Reports Protection of Confidentiality Limiting Liability

Electronic Transfer of Medical Records A. Electronic transfer regulations 1. Medical information should be electronically transferred only if urgently needed and must be accompanied by a signed release form 2. Before sending the material, it is advisable that a verification of correct sending information be performed and recorded 3. A cover sheet must accompany all medical electronic transfers and should note what an unintended receiver should do with the sent materials 4. Patient materials should be handled only by authorized individuals and the original should be immediately returned to the patient record

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Electronic Transfer Regulations

XI. Confidentiality of Medical Records A. Importance of confidentiality of medical records 1. Promotes candor by patients and health care providers that optimizes medical and nursing treatment 2. Violation of a patient’s right of confidentiality opens the health care provider to a potential lawsuit.

B. Health Insurance Portability and Accountability Act of 1997 (HIPAA) 1. Mandates a centralized electronic database containing all health records for every patient in the United States as a means of administrative simplification 2. Act provides for: a) The portability of health care coverage .

b) An antifraud and abuse program c) The streamlining of the transfer of patient information between insurers and providers d) Tax incentives toward the acquisition of health insurance and accelerated benefits e) The establishment of the federal government as a national health care regulator 3. Before HIPAA, federal law did not protect patient confidentiality in medical records 4. HIPAA has strongly enforced comprehensive standards facilitating the transmission of medical data, administrative records, and financial records 5. HIPAA rule applies to covered entities: a) Health plans such as Medicare and Medicaid b) Commercial health plans (e.g., Blue Cross and Blue Shield, Veteran’s Administration health program) c) Covered entities are covered only if they transmit protected health information electronically 6. Entities not covered include: a) Health plans with less than 50 people b) Self-administered plans c) Law enforcement officials d) Schools e) Employers

C. Protected Health Information (PHI) 1. Includes 18 individually identifiable health information indicators related to past, present, and future physical or mental health or condition, or the past, present, future payment 2. PHI includes the following: a) Name of individual or initials b) Addresses (street, e-mail, or Internet) c) Dates (birth and date of service) d) Telephone/fax e) Social Security number or other personal identification numbers

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f) Medical record numbers g) Health plan account numbers h) License or certificate numbers i) Medical device identifiers j) Biometric identifiers, i.e., fingerprints/photographs k) Any other identifying characteristic or code 3. Information may be disclosed to assist health care 4. A covered entity may be a relative or close friend relevant to the person’s care or payment, which allows obtaining needed medications, etc., for the individual 5. PHI may also notify family/friend responsible for patient about serious injury or death 6. Covered entity may disclose PHI for the purpose of locating a suspect, fugitive, material witness, or missing person; descriptive information may be disclosed in this instance, e.g., height, weight, scars, etc.

7. Disclosure is required with reporting contagious diseases, certain chronic illnesses, or gunshot/knife wounds 8. Notice of Privacy Practices—explains how PHI will be used and alerts patients to the process for complaints if they feel their privacy has been violated 9. PHI can be shared for treatment, payment, and limited operations (TPO) purposes; providers sharing information must have relationship with patient

D. Patient rights 1. The right to request restrictions on the use of sharing of PHI 2. The right to request alternate communications (if reasonable) 3. The right to obtain a list of disclosures for purposes other than PTO or for which special authorization has been obtained

E. Authorization requirements 1. If a disclosure of PHI is not PTO and/or is not required by law, a valid authorization must be obtained and requires: 2. A description of the information to be used or disclosed 3. Identification of the person(s) or class of persons authorized to make the requested disclosure 4. The name or other specific identification of the person(s) to whom the covered entity makes the requested disclosure

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5. A description of each purpose of the requested use or disclosure (noting that the statement “at the request of the individual” is sufficient) 6. An expiration date or an expiration event that related to the individual or the purpose of the use or disclosure (e.g., end of study) 7. Signature of the individual or personal representative and date 8. If authorization is valid, it should be accepted by the covered authority 9. There is no requirement that authorization must only be on individual covered entity’s form 10. Violators of PHI may incur fines or penalties

F. Electronic mail and the internet 1. Electronic mail is an area of potential liability for health care providers 2. Safety measures such as encryption or electronic lock and key system may help, but security is not perfect and privacy not guaranteed 3. Internet messages have no greater security than a phone call; messages can be intercepted and read 4. Health Information Technology for Economic and Clinical Health Act (HITECH Act) 1990 addresses the privacy and security concerns associated with electronic transmission of health information a) Requires HIPAA-covered entities to report data breaches affecting 500 or more individuals to the Department of Health and Human Services and the media as well as to notify the affected individuals b) Extends the complete Privacy and Security Provisions of HIPAA to business associates of covered entities c) Implemented notification requirements if a breach of unsecured PHI occurs and new rules for the accounting of disclosures of a patient’s PHI

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Importance of Confidentiality The Health Insurance Portability Act of 1996 Protected Data Covered Entities Protected Health Information Notice of Privacy Practices Patient Rights and PHI Authorization for PHI

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Electronic Mail and the Internet

XII. Reporting and Access Laws A. Reporting laws require that information be given to federal and state governmental agencies 1. The law compels disclosure of medical information in contexts other than discovery or testimony 2. Examples are vital statistics, child abuse, elder abuse, public health concerns, and wounds 3. Some statutes do not mandate reporting but allow access to medical records without patient permission, e.g., workers’ compensation, state records laws, and the federal Freedom of Information Act

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Reporting Laws

XIII. Common-Law Duty to Disclose A. Medical information concerning public safety 1. Contagious diseases; there is a duty to warn others of risks, unless forbidden by statute 2. Duty to warn of threats to an identified person, e.g., a psychiatric patient threatening to kill his girlfriend 3. Terrorist attacks 4. Legal questions surround duty to inform those affected by knowledge of a genetic disease

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Common-Law Duty to Disclose

XIV. Limitations to Disclosure A. Substance and alcohol abuse confidentiality

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1. Information may be released with patient’s consent in written form and must contain many details specifying their wishes including exactly what should be disclosed and to who and when consent will expire 2. Substance abuse treatment programs that are subject to HIPAA must comply with these standards

B. HIV/AIDS confidentiality 1. HIV/AIDS present unique challenges to maintain confidentiality while meeting obligations to disclose medical information 2. Confidentiality is at the heart of HIV and AIDS testing; many will not consent to testing without assured confidentiality 3. That AIDS/HIV is not transmitted through casual contact limits the need for disclosure of information 4. With increased life expectancy for AIDS/HIV patients, postpositive blood screens have strengthened the case for confidentiality 5. States have adopted a variety of legislative and administrative approaches to confidentiality and disclosure of information regarding AIDS and HIV a) All 50 states require reporting AIDS cases without patient’s consent to the Centers for Disease Control and Prevention or the state health department for epidemiological purposes b) The states are divided on whether the reporting is anonymous or entails more descriptive demographics c) Most states have adopted statutes maintaining the strict confidentiality of AIDS-related information, while some states have passed statutes permitting disclosure of AIDS testing to certain persons or under certain circumstances 5. There is limited movement towards mandatory testing for mothers and newborns 6. Some states mandate the offering of testing to patients 7. Some states notify all sexual and needle-sharing contacts while others have chosen a more limited means of notifying contacts 8. Standards of care are constantly evolving in patients with AIDS, so issues of liability often depend on when the care of the patient actually occurred 9. Almost uniformly courts have upheld privacy rights when test results have been disclosed without the patient’s consent

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Limitations to Disclosure Disclosure and HIV

XV. Selected Ethical Concerns A. Mandatory HIV testing 1. Traditionally, screening may be ethically justified under the following circumstances: a) An important health issue is at stake b) Acceptable treatment modalities exist and are accessible to the general public c) Accurate diagnostic procedures are available d) Tests are cost effective in terms of containing or preventing the spread of disease e) Fundamental ethical rights are not transgressed by screening f) The overall benefits of screening outweigh the harms 2. Are the fundamental ethical rights of confidentiality, autonomy, and informed consent transgressed through mandatory HIV testing?

3. The Harm Principle and the mandatory testing of newborns

B. Can one make an argument that individuals have an obligation to undergo genetic testing for the sake of their offspring or others who may be harmed in the future?

C. Confidentiality vs. the duty to warn D. Whose rights take precedence, the individual’s or the health care provider’s?

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Ethical Questions Harm Principle and Beneficence Duty to Warn

Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

Chapter 10 Professional Liability Insurance Objectives 1.

List elements common to all professional liability insurance policies.

2.

Differentiate types of professional liability insurance policies available commercially to professional nurses.

3.

Identify issues to be considered when deciding between individual coverage, group coverage, and employer-sponsored coverage.

4.

Compare and contrast the various arguments that arise when deciding

about having individual coverage.

Introduction: With the advent of the malpractice crisis of the 1970s, health care providers rapidly became acutely aware of the vast scope of potential lawsuits that could be filed naming them as defendants, either individually or collectively. This malpractice scare served to alert health care providers of their unique vulnerability. Lawsuits could be filed by any health care consumer or employer at almost any time. The majority of physicians quickly acquired and increased their liability coverage. For multiple reasons, nurses, like their physician counterparts, should not be without professional liability insurance. This chapter explores issues that nurses should consider and investigate when choosing a policy that will give them the best protection should a subsequent lawsuit be filed against them.

I. .

Professional Liability Insurance

A. Professional liability insurance protection 1. Protects nurses against lawsuits arising from errors/omissions and neglect, real or alleged, from delivering nursing care in clinical settings 2. Professional liability insurance benefits pay for: a) Expert legal advice and representation b) Court costs and settlements, including appeals c) Reimbursement to the nurse for lost wages

II.

Insurance Policies A. Insuring policy or insuring agreement 1. A formal contract between the insurance carrier and an individual or corporation.

2. For a stated premium (fee per year), the insurance policy will provide the insured party (policyholder) with a specific dollar amount of protection when specific injuries are caused by the person(s) insured by the policy 3. The conditions of the coverage and the extent of coverage are detailed in the policy itself

B. Common elements of all professional liability policies: 1. Provide payment for lawyer representing insured nurse in event of claim/lawsuit 2. Specify the limits of legal liability 3. Pay settlements or jury awards but not moral obligations nurse may feel they owe

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Professional Liability Insurance

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Insurance Policies

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Professional Liability Policies

III. Types of Policies A. Occurrence-based policies (claims-made insurance coverage) 1. Cover the nurse for any injuries arising out of incidents that occur during the policy period 2. True even if a lawsuit is filed after the policy has expired .

3. Preferred by most nurses because lawsuits may not be filed immediately

B. Claims-made policies 1. Provide coverage only if claim for an injury is filed with the courts and is reported to the insurance company during the active policy period or during an uninterrupted extension of that policy period (requiring the purchase of a policy tail) 2. A policy tail converts the original policy so that the policy includes a clause(s) that the policyholder wishes to add to the current language of the policy 3. Claims-made coverage is adequate if the policy is continuously renewed and kept active or if a policy tail is purchased for extended coverage

C. Individual, group, or employer-sponsored coverage is the broadest type of coverage and is specific to the individual policyholder 1. Individual is tailored to meet the needs of the individual nurse 2. Group insures a group of similarly licensed professionals—advantageous to private clinics or businesses 3. Employer-sponsored coverage is obtained by institutions and is the narrowest coverage for individual nurses who must show they are practicing within the scope of their employment as well as professional nursing practice; favored by the institution as the coverage is written specifically for its major concerns

D. Certificate of insurance 1. A verification that the institution does have an active policy 2. Should be supplied to nurses with specifications of the institution’s policy 3. Assists the nurse in knowing what type of coverage they need to secure in an individual policy

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Types of Policies

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Occurrence-Based Policies

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Claims-Made Policies

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Individual, Group, and Employer-Sponsored Coverage

IV. Declarations A. Declarations .

1. The first part of a policy 2. Under this section are the policyholder’s name, address, covered professional occupation (e.g., general staff nurse), and covered time period 3. Most policies cover a calendar year; exact dates will be listed, as will the company’s limits of liability coverage and state requirements for information 4. If Good Samaritan activities are covered by the policy, the limits of liability coverage will be included in this section

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V.

Declarations

Coverage Agreements A. Coverage agreements 1. Outline the types of claims that will be covered by a given policy 2. There is generally language that speaks to medical injury 3. This section also includes injury arising out of Good Samaritan or volunteer activities

B. Coverage extensions 1. Included in some policies 2. Outline additional protections that a policy affords the policyholder 3. May include license protection, including representation before a board of nursing during a disciplinary hearing or proceeding or legal representation at a deposition hearing

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Coverage Agreements

VI. Limits and Deductibles A. Limits of liability 1. Usually have language about two separate dollar figures (e.g., $500,000 each claim, $1,000,000 aggregate) 2. These figures indicate what the insurance company will pay during a given policy period .

3. All claims arising from the same incident or occurrence are considered a single claim for purposes of the insurance coverage

B. Deductibles 1. Include any amounts that the insurance carrier deducts from the total amount available to pay for plaintiff damages 2. Some policies deduct the amount paid for the nurse’s legal defense from the total limits of liability

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Limits of Liability

VII. Additional Clauses in Insurance Policies A. Exclusions 1. Items not covered in the insurance policy 2. Describe circumstances or activities that will prevent coverage of the insured party

B. Reservations of rights 1. General title where exclusions may be covered in policy 2. Insurance company may reserve the right to deny coverage once the facts are known 3. If restricted activity is discovered, the insured nurse must reimburse the insurance company for incurred expenses 4. Some companies insist that the insured nurse pay all expenses.

5. Common examples of excluded activities include: a) Criminal actions b) Incidents occurring while the insured was under the influence of drugs or alcohol c) Physical assault, sexual abuse, molestations, habitual neglect, etc., whether intentional, negligent, inadvertent, or committed with the belief the other party was consenting d) Actions that violate state nursing practice acts e) Transmission of AIDS/HIV from health care provider to a patient f) Any claims or suits resulting from the practice of a profession that does not appear on the certificate’s declaration .

6. More insurance policies are covering damages that are awarded as punitive damages

C. Defense costs 1. Include all reasonable and necessary costs incurred in the investigation, defense, and negotiation of any covered claim or suit 2. Covered injuries typically include: a) Personal (bodily) injury b) Mental anguish c) Property damage d) Personal injury to patient e) Economic damages

D. Supplementary payments 1. Include provisions for additional payments to the insured party 2. Most policies supplement lost earnings, reasonable expenses incurred, the cost of appeal bonds, and costs of litigation charged against the insured

E. Conditions or coverage conditions 1. Outline the insured nurse’s duties to the insurance carrier in the event a claim or lawsuit is filed, provisions for cancellation of the policy, prohibition of the assignment of the policy, and subrogation of rights 2. Prompt notification of an impending lawsuit to one’s insurance carrier is critical

F. Policyholder usually denied the right to choose their council 1. Most policies allow the insurance carrier to settle without the policyholder’s consent 2. Included in the policy is a clause that the insurance company will proceed in good faith in reaching a fair decision in lawsuits that are filed against an insured

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Exclusions

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Defense Costs

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Supplementary Payments

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Right to Choose Council

VIII. Licensure Protection A. Licensure protection coverage 1. Boards of nursing may revoke, probate, or suspend one’s nursing license 2. Growing trend for nurses is to seek liability insurance that includes licensure protection coverage 3. Not all claims against nurses involve malpractice issues; complaints may be forwarded to the board of nursing for unprofessional conduct, misconduct, substance abuse, sexual misconduct, and fraud, among other possible reasons for the complaint

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Licensure Protection

IX. Individual versus Employer Liability Coverage A. Employer’s insurance policy 1. Most often do not adequately protect nurses monetarily, nor provide adequate representation by legal counsel 2. May cover employees only while they are performing work as hospital employees 3. Volunteer services may not be covered 4. School nurses and community or home health care nurses may not be covered at all in most medical insurance policies 5. Designed to meet the needs of the large institution 6. Hospital may also bring an indemnity claim against the nurse for monetary contributions from the nurse or nurses whose actions or failure to act caused the original patient injury 7. Most hospital insurance policies do not have supplementary payments for the nursedefendant

B. Individual coverage augments the employer’s policy 1. When looking at hospital policy nurses should take into consideration the following factors: a) Type of nursing that they normally perform (staff vs. charge vs. supervision) b) Dollar amount of the average awards in their particular geographic area c) Unit or type of nursing care they normally provide .

d) Propensity for lawsuits against nurses in that geographic area

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Licensure Protection

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Employer’s Insurance Policy

X.

Reasons to Purchase Individual Liability Insurance A. Nurses need liability insurance for several reasons: 1. Defending against a lawsuit is costly 2. Lacking coverage can lead to garnishment of wages, the inability to obtain loans and/or mortgages, and bad credit ratings, loss of personal assets, including bank accounts, individual property, as well as one’s home 3. Nurses who have individual professional liability insurance are not sued more frequently 4. Professional liability insurance can be relatively inexpensive; cost varies according to type of nursing and geographic region 5. The assurance of adequate protection should a lawsuit be filed; any nurse could be sued for acting below the acceptable standard of care if an untoward happening occurs and they are in the direct line of causation 6. Having one’s own professional liability insurance does not automatically trigger an employee indemnity lawsuit 7. The fact that professionals assume accountability for their own actions or omissions is an additional reason for acquiring such liability coverage 8. Nurses should know that governmental, religious, or charitable institutions no longer have the immunity they had in the past 9. Malpractice insurance premiums are currently a tax-deductible business expense

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Argument for Individual Coverage

XI. Arguments for Having Professional Liability Insurance A. Heightened legal accountability

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1. Many in-hospital attorneys tell nurses that they are more lawsuit prone if they have an individual insurance policy; this is not true 2. Nurses’ roles are expanding in both autonomy and advocacy, leading to increased potential for being named in lawsuits

B. More nurses named to increase revenue for injured clients 1. Amount of economic liability against individual defendants, particularly physicians and health care corporations, has been limited 2. The idea that monetary award will be greater if the nurse is insured is false; juries cannot be informed about insurance coverage while deciding the case

C. No specialty is immune to lawsuits 1. Specialties where more lawsuits are filed: obstetrics, critical care, and emergency nursing 2. Most malpractice cases involving nurses occur in acute care facilities and involve nonspecialized RNs

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Arguments for Professional Liability Insurance

Chapter 11: Nurse Practice Acts, Licensure, and the Scope of Practice Objectives 1.

Define licensure, including mandatory, permissive, and institutional licensure and the advantages and disadvantages of each.

2.

Describe the process for creating state boards of nursing and their authority, including limitations on their authority.

3.

Describe the process of how state nursing acts define the professional scope of practice.

4.

Describe entry into practice in relationship to state nurse practice acts.

5.

Analyze the impact of education on nursing practice issues.

6.

Describe the legal ramifications of complementary and alternative medicine, including the medical use of cannabis (marijuana).

7.

Discuss the status and future of nurse licensure compacts.

8.

Analyze some of the ethical issues surrounding licensure, certification, and scope of practice.

Introduction: Throughout the years, an elaborate system of licensure and credentials for health care providers has evolved to ensure that only qualified individuals deliver health care. Both licenses and credentials have as their primary purpose the protection of the public at large. Through proper issuance of .

licenses and credentials, qualified health care providers are distinguished from unqualified persons. The first group is given a license to practice, whereas the latter group is prohibited from harming society in a health care role. This chapter outlines the relationship between state nurse practice acts, entry into professional practice, educational issues, and the scope of practice issues. The chapter also discusses complementary and alternative medicine (CAM), medical cannabis, and nurse compact licensure.

I.

Credentials A. Proof of qualifications of individual or organization B. Two types of credentials are used in health care that affect nursing: licensure and certification

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II.

Credentials

Professional Licensure A. A legal process 1. Government agency grants permission to qualified entity to perform designated skills and services in a jurisdiction in which such practice would be illegal without a license

B. State licensure statutes 1. Measure minimum competency of person licensed

C. Nurse practice acts 1. Define scope of practice 2. Each state has at least one, some have separate acts for registered nurses and licensed practical nurses

D. State boards of nursing 1. Agency defined by state nurse practice act that licenses nurses, approves schools of nursing, and ensures enforcement of act 2. Specific act sets number of members, qualification for members, terms, whether members are appointed or elected .

3. Board govern themselves, have executive director 4. Authority is legislative, quasi-judicial, and administrative 5. May concern only professional nurses, or incorporate practical licensed nurses too

E. Mandatory licensure 1. Requires licensure before practice 2. Required for RNs in all states 3. Exceptions (differ state to state): emergency conditions, supervised nursing students during course of study, graduate nurses with temporary permit to practice while licensure is processed, unpaid persons, caretakers performing religious services, during transportation through a given state, nurses employed by federal government working outside the state they are licensed in

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Professional Licensure

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State Licensure Statutes

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State Boards of Nursing

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Role of Nursing Boards

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Boards are Empowered by the Law

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Mandatory Licensure

III. Permissive licensure A. Permissive licensure defined 1. Regulates use of the title but does not protect nursing actions 2. Initial registration acts of early 1900s; beginning in late 1930s, all states moved to mandatory licensure

B. Institutional licensure 1. Alternative to individual licensure 2. State government agency licenses to health care facilities for them to operate, holds the facility responsible for maintaining safety standards 3. Gives facilities the right to decide who is qualified to perform what tasks, awards licenses as facility deems appropriate 4. Institutions regulate themselves; process is implemented but not controlled by state monitoring agencies or national organizations .

5. Advocates point to flexibility of practice, ability to be responsive to changing needs, cost-effectiveness 6. Concerns of loss of professional integrity, employers and regulators as the same body

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Permissive Licensure

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Institutional Licensure

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Institutional vs. Individual

IV. Nurse Practice Acts A. Nurse practice acts 1. Originated to protect the public at large, define the practice of nursing, give guidance within the scope of practice issues, and set standards for the nursing profession 2. The practice act affects all facets of nursing practice 3. The nurse practice act is the law, and state boards of nursing cannot grant exceptions or waive its provisions 4. 1901, state nurses associations adopted proposals for passage of laws to control nursing practice 5. Enacted in all states by 1952; broadened over years 6. ANA published model act in 1980, another in 1990; National Council of State Boards of Nursing (NCSBN) published model acts, revised in 2011 7. This latest model nurse practice act incorporated the advanced nurse practitioner as well as the registered nurse 8. Worded in general terms; does not list specific actions, because legislation can lag behind changing practices 9.

Nurses must incorporate the nurse practice act with their educational background, previous work experience, institutional policies, and technological advancements

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Nurse Practice Acts

V.

Elements of Nurse Practice Acts A. Definition of professional nursing 1. Varies somewhat state to state 2. Most based on ANA's definition: nursing encompasses caring for the ill, promoting health and the prevention of illness, advocating for individuals, families, and/or populations 3. Advanced nurse practitioners incorporated in nurse practice acts

B. Requirements for licensure 1. Academic and clinical performance criteria validated by transcripts from approved schools 2. Passing licensing examination: standardized national tests administered by states 3. Personal qualities: citizenship or visa permits, physical and mental health fitness, minimal age requirements, language fluency requirements, moral character references 4. Fees: processing, administration, temporary license fees

C. Exemptions 1. Some previously mentioned 2. Grandfather/grandmother clause: exemption to apply for licensure without all requirements for persons working within profession before a deadline date 3. Baccalaureate of Science (BSN) reaffirmed as goal nursing requirement in 1995, some states endorse legislation that specify time frame for associate degree or diploma nurses to achieve BSN 4. Baccalaureate of Science (BSN); research and publications show evidence that nursing education affects patient safety 5. 2003, National Advisory Council on Nursing Education and Practice advised that at least 2/3 of nursing workforce should have at least BSN by 2010 6. Most recent data: approximately 47.2% of nurses have BSN 7. Institute of Medicine goal: 80% should have BSN by 2020

D. Licensure across jurisdictions 1. Reciprocity—agreement by two or more states granting recognition of each other's equivalent licensure 2. Endorsement—allows a state to grant licensure on an individual basis to a nurse licensed in another state with similar qualifications/requirements

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3. Licensure by examination—required when petitioned; state does not grant by reciprocity or endorsement 4. Licensure by waiver—if candidate meets some requirements but not others, that portion demonstrated may be waived for the candidate, while they must demonstrate other requirements 5. Temporary licenses—allow practice while permanent licensure is pending, or for limited period of time 6. Foreign nursing graduates—must meet requirements and pass exam, have occupational visa, demonstrate proficient English, earn a certificate from Commission on Graduates of Foreign Nursing Schools

E. Disciplinary action and due process requirements 1. Disciplinary actions include private or public reprimand, probation, suspension of licensure, refusal to renew licensure, revocation of licensure, imposition of a fine, requiring additional continuing education course 2. Violations that lead to disciplinary action: crime involving moral turpitude, fraudulently obtaining licensure, violation of nurse practice act, habitual use of alcohol or drugs, unprofessional conduct, revocation of licensure in another jurisdiction, physical or mental impairment affecting patient care, sexual relations with a patient 3. During suspension or probation, board may order substance abuse or other counseling, supervision for specific techniques, educational programs 4. Initiating disciplinary process: written complaint filed, screened and investigation initiated, board hearing scheduled 5. Nurses have the right to adequate notice of the alleged misconduct, an opportunity to present information concerning the alleged misconduct, and the right to appeal the board’s act 6. If investigation regards drugs, Drug Enforcement Authority may become involved, conduct own investigation 7. Failure of board to meet due process of law may result in reversal of board's decision 8. Licensed health care providers must report misconduct of a licensed professional to board of nursing

F. More common reasons for the state board of nursing to investigate a nurse:

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1.

Negligent or substandard care provided a patient

2.

Sexual relations with a patient

3.

Abusive behavior, either physical or oral

4.

Substance abuse and/or diversion of narcotics

5.

Physical or mental impairment

6.

Fraud, usually committed in the application process

G. Penalties for practicing without a license 1. Most states charge a fine or imprisonment a) Fines range from $50–$500 b) Imprisonment does not exceed 60 days 2. Civil suits may also be filed by those harmed

PowerPoint Lecture Slides •

Definition of Professional Nursing

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Requirements for Licensure

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Exemptions

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Licensure Across Jurisdiction

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Temporary Licenses

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Foreign Nursing Graduates

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Disciplinary Actions

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Violations Leading to Disciplinary Actions

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During Suspension or Probation

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Initiating Disciplinary Process

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Due Process Rights of Nurses

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Common Reasons for Investigation

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Obligation to Report Misconduct

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Penalties for Practicing without a License

VI. Diversion Programs A. Voluntary rehabilitation programs for drugs, alcohol, or psychological disorders 1. Sometimes referred to as peer assistance programs, diversion programs entail attendance at Alcoholics Anonymous, Narcotics Anonymous, or counseling sessions; voluntary submission of urine samples for substance abuse testing; and special provisions by employers 2. Alternatives to traditional disciplinary actions; nurses can return to work after successful completion Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

3. Allow state to protect public and comply with Americans with Disabilities Act (1990) 4. Facilities that allow diversion program nurses to work comply with specific guidelines

PowerPoint Lecture Slides •

Diversion Programs

VII. Articulation with Medical Practice Acts A. Medical practice acts 1. Define physicians' jobs as acts of diagnosis, prescription, treatment, and surgery 2. Include delegation of tasks to qualified and skilled persons

B. Articulation of medical practice acts with nursing practice acts shows how professions work together 1. Delegatory language, standing orders, and protocols increase nurses' functions, cause overlap between professional roles 2. Some specific laws make some functions common to both professions 3. Joint statements between disciplines or medicine and nursing for use until states broaden definition of nursing in practice act

PowerPoint Lecture Slides •

Medical Practice Acts

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Medical and Nurse Practice Acts

VIII. Scope of Practice Issues A. Scope of practice 1. Permissible boundaries of practice for health professional defined by statute, rule, or combination of both 2. Issues arise from (1) negligent act or (2) standard of care owed to the patient is increased because of a medical or nursing action 3. Standards of care issues common with nurses in expanded roles; with expertise in an area of medicine, nurses are held to higher standards 4. Hospital or institutional policy and procedure manuals can help prevent scope of practice issues: .

a) More specific instructions; may be more restrictive than nurse practice act; cannot extend it b) Must be up to date, ideally developed jointly by medical and nursing committees, be reflective of community standards c) Mandate that nurses remain current in their practice 5. 1996, Joint Commission addresses issues concerning a nurse's right to refuse patient assignments, requires employers to establish policies to address requests 6. Courts generally uphold nurse's right to refuse based on religious beliefs (e.g., abortion) but not to argue against policies

PowerPoint Lecture Slides •

Scope of Practice

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Standards and Expanding Roles

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Nurse’s Right to Refuse Assignments

IX. Updating Nurse Practice Acts A. Changing legal provisions 1. Amendments add to nurse practice act or its regulation, usually giving legal permission to perform actions 2. Redefinitions involve rewriting of definition of nursing, automatically change the force of the entire act 3. Institutional policies and procedures mandate that nurses remain current in their practice 4. Sunset laws: call for review of the act at a fixed time

B. Professional organizations may lobby for changes in act C. State board of nursing may enact new rules to make sure act meets community standards PowerPoint Lecture Slides •

X. .

Updating Nurse Practice Acts

Continuing Education for Practicing Nurses

A. Importance of continuing education B. Means of ensuring that nurses remain current in their practice C. Debate for and against mandatory continuing education D. Currently, argument is to develop mechanisms to ensure continuing competency, rather than accruing class hours PowerPoint Lecture Slides •

Continuing Education

XI. Reporting Professional Violations of the Nurse Practice Act A. Reporting professional violations 1. Mandatory reporting is meant to protect public's health, not as a substitute for employer-based discipline 2. Failure to report violators is grounds for disciplinary action 3. Nurses who report are protected from defamation lawsuits 4. Internal reports made directly through chain of command should be factual and in writing, as complete as possible, and list other witnesses 5. Administrative personnel have a duty to act on violations 6. If violator quits job, must be reported to state board to ensure violator does not change places of employment without seeking help or changing actions 7. Reports to the state board of nursing should be made with electronic notification on secure sites 8. Most are confidential reports, but reporting nurse may be contacted for more information

B. Certification 1. Indicates level of competence above minimum criteria for licensure 2. Offered by many specialty nursing organizations, ANA, professional organizations

PowerPoint Lecture Slides

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Reporting Professional Violations

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Certification

XII. Complementary and Alternative Medicine A. CAM defined 1. Modalities that are not generally used by health care providers to treat illnesses 2. Embraces wellness model, becoming more popular in United States 3. Most common: dietary supplements, herbal remedies, mediation, yoga, diet-based therapy, massage, progressive relaxation, visualization

B. Office of Alternative Medicine 1. Established in 1992 by the National Institutes of Health to promote research

C. Practicing CAM 1. States have wide range of legal standards of nursing practice of CAM therapies 2. Nurse may be charged with practicing therapy that is not legally authorized 3. Some specific therapies require specific licensure 4. Patients must be fully informed, a consent form may be required, and documentation is important

PowerPoint Lecture Slides •

Complimentary and Alternative Medicine

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CAM therapies

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Practicing CAM

XIII. Medicinal Use of Cannabis (Marijuana) A. Legality of cannabis 1. 19 states and Washington, DC have legislative guidelines for legal possession of medical marijuana 2. Any possession is illegal under federal law 3. Majority of cases for cancer, AIDS, glaucoma 4. Positive effects: reduction in nausea, increased appetite, reduced eye pressure, controls muscle spasms 5. Nurses must inform patients that consumption is illegal under federal law, so that they may understand the risks and benefits

Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

PowerPoint Lecture Slides •

Legality of Medicinal Cannabis

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Medical Use of Cannabis

XIV. Mutual Recognition Compacts A. Practice of mutual recognition compacts 1. No longer limited to geographic boundaries because of telecommunication technologies 2. 1998 telehealth defined by ANA as removal of time and distance barriers for delivery of health care services 3. May mean providing services in states in which professional is not licensed

B. Nurse licensure compact 1. Many states have mutual recognition of licensure 2. Interstate compacts exist for other issues that transcend state lines as old as 1900s 3. Nurse must comply with practice act of state in which he or she is working (remote state if not home state) 4. More challenging for nurses to stay up to date with changes in practice acts 5. Either home state or remote state may take disciplinary action; may incur multiple disciplinary proceedings for one incident 6. Coordinated Licensure Information System (CLIS), information involving legal action is accessible to each nurse license compact state, available in one setting

PowerPoint Lecture Slides • Telehealth • Mutual Recognition of Licensure • Nurse Licensure compact • Regulation of Nurses in Remote State

XV. Some Ethical Concerns .

A. Code of Ethics for Nurses (2001) by ANA describes nurses' multiple obligations, assists in addressing ethical issues B. CAM therapies 1. Potential for adverse reactions when mixed with other medicine or because vitamins and herbs are not regulated by the FDA, risk of mega-dosages 2. Use can cause clash in health care values between provider and patient

C. Right to refuse care based on religious reasons or health risks to the nurse PowerPoint Lecture Slides •

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Ethical Issues

Chapter 12 Advanced Nursing Practice Roles Objectives 1.

Outline the roles of advanced practice nurses, including nurse anesthetists, nurse midwives, advanced nurse practitioners, clinical nurse specialists, clinical nurse leaders, and doctorate of nursing practice.

2.

Describe some of the legal constraints to advanced professional practice encountered by nurses educationally and clinically competent to perform these roles, including the following: a. scope of practice issues b. reimbursement issues c. malpractice issues d. standards of care e. prescriptive authority f. hospital or admitting privileges

3.

Analyze means to overcome these legal constraints.

4.

Compare and contrast the current status of advanced nursing practice with that role in the future.

5. .

Analyze selected ethical issues that may arise with advanced practice

roles.

Introduction: Advanced nursing practice roles have expanded within the past few years so that there are six currently recognized advanced practice roles: nurse anesthetist, nurse midwife, advanced nurse practitioner, clinical nurse specialist, clinical nurse leader, and doctor of nursing practice. As these roles continue to evolve and expand, there is improvement of the quality of health care in a nation that is cost-conscious, yet demanding of access and quality care. Nurses who work within these roles face multiple legal issues, especially in a world that is continuing to become more technologically advanced and complex. This chapter explores advanced practice roles, legal aspects related to the roles, and challenges that confront practitioners within the roles.

I.

Historical Overview of Advanced Nursing Practice Roles A. Nursing in early United States history 1. Women were fulfilling the role of autonomous nursing practitioners and midwives 2. During the late 1800s, physicians usurped the autonomous health care deliverer status that prevails today 3. Accomplished through state medical practice acts and the strong organizational structure of the American Medical Association

B. Advanced practice roles 1. Originated in the late 1960s, when a shortage of physicians led to new initiatives 2. Today, advanced nursing practice encompasses six distinct practice roles

C. Nurse anesthetist 1. Oldest expanded role in nursing 2. The need for administering anesthesia expanded in the late 1800s and schools of nurse anesthesia opened 3. Nurse anesthetists are registered nurses who have: a) Completed a formal program of clinical education in planning anesthesia care .

b) Administered anesthetic agents c) Monitored the anesthetized patient 4. Nurse anesthesia was the first expanded role in nursing to seek recognition via certification and education 5. All states require certification through the American Association of Nurse Anesthetists 6. To write the certification examination, applicants must have completed a master’s program

D. Nurse midwifery 1. Originated in early 1800s when it was becoming recognized as a legal profession through state legislative enactments 2. Before this it was unrecognized by the U.S. legal system 3. The first midwifery education program was started in 1952 by the Maternity Association of New York City 4. Midwifery is legal in all 50 states 5. Midwifery may be found in: a) Nurse practice acts b) Medical practice acts c) Rules and regulations specific to nurse midwives d) Allied health laws e) Public health laws f) Combination of any of these 6. Midwifery involves the independent management of essentially normal gynecological care of women as well as the care of normal newborns; midwives provide: a) Family planning and birth control counseling b) Normal gynecological services c) Holistic, continuous care d) Education of women through the childbearing period e) Primary care of women’s health needs 7. Midwives work in acute care settings

E. Advanced Nurse Practitioners .

1. Refers to all registered nurses (RNs) and began in 1965 2. Goals of ANP movement were to prepare nurses with master’s and doctorate degrees for independent expert practice, teaching, and clinical research and to expand use of nursing skills in health assessment and maintenance (mainly in rural areas) 3. ANP has client caseload much as a practicing physician carries a client caseload 4. ANPs are nurses who have specialized in one or more practice specialties 5. Most ANPs provide primary care to low-risk patients and many serve as the primary health care provider 6. ANPs may work independently, in a peer relationship with physicians, or dependently under the physicians’ standing or direct orders 7. Depending on the state nurse practice act, the ANP may independently diagnose, treat, and prescribe for a given patient or may be limited to managing the care of the patient as a delegated role 8. Legal challenges for this role have included scope-of-practice issues

F. Clinical Nurse Specialist 1. First program started in 1954, and developed for the purpose of improving the quality of nursing care along with significant advances in technology 2. A master’s level nurse prepared as a specialist in a clinical area 3. Specialty may be defined in terms of a population (pediatrics, gerontology), a setting (critical care, home health care), a disease or medical subspeciality (diabetes, oncology), a type of care (rehabilitative, psychiatric and mental health), or a type of problem (pain, wound care) 4. The specialization allowed the nurses with advanced nursing degrees to work directly with patients, family, and staff (as opposed to administrative setting) and to be proficient in teaching, research methodology, and consultation 5. CNS’s roles include those of case manager, coach, systems coordinator, and gatekeeper 6. Roles may be independent, collaborative, or supervised, depending on the state nurse practice act

G. Roles of ANP and CNS are starting to blend; a more general title may soon be used H. Clinical Nurse Leader 1. Evolved as a direct result of the continuing nursing shortage at the end of the twentieth century

.

2. In 2000 the American Association of Colleges of Nursing (AACN) envisioned a new role for a nurse who “designs, implements, and evaluates client care by coordinating, delegating, and supervising the care provided by the health care team, including licensed nurses, technicians, and other health professionals” 3. The AACN challenged the nursing professions to produce quality graduates who: a) Are prepared for clinical leadership in all health care settings b) Are prepared to implement outcome-based practice and quality improvement strategies c) Will remain in and contribute to the professions, practicing at their full scope of education and ability d) Will create and manage microsystems of care that will be responsive to the health care needs of individuals and families 4. CNLs are educated at the master’s degree level, and prepared as an advanced generalist; these competencies include: a) Patient and caregiver advocate b) Team manager c) Information manager d) Systems manager/risk anticipator e) Clinician f) Outcome manager g) Educator

I. Doctor of nursing practice (DNP) 1. Practice-focused doctoral program designed to prepare experts in specialized advanced nursing practice 2. Programs focus in practice that is innovative and evidence-based, reflecting the application of research findings to clinical practice 3. Generally includes an advanced practice role as a nurse practitioner, nurse anesthetist, nurse midwife, or clinical nurse specialist, leadership, and application of clinical research, and nurses who specialize as nursing educators and health administrators 4. A doctoral level makes it similar to other professional practice doctorates such as are awarded to graduates in medicine, pharmacy, dentistry, physical therapy, and psychology

PowerPoint Lecture Slides .

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Nursing in Early U.S. History

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Advanced Practice Roles

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Nurse Anesthetist

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Nurse Midwifery

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Advanced Nurse Practitioners

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Clinical Nurse Specialist

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Clinical Nurse Leader

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Doctorate of Nursing Practice

II.

Legal Liability of Expanded Nursing Roles A. Professionals practicing in expanded nursing roles have dual legal responsibilities 1. They are licensed to practice by the state board of nursing and are accountable for its rules and regulations 2. They have acquired advanced standing under the delegatory language of the state medical practice act or have acquired advanced standing under the state nurse practice act, public health laws, or other state laws, and are accountable for this independent or interdependent role

PowerPoint Lecture Slides •

Legal Liability for Expanded Nursing Roles

III. Scope of Practice Issues A. Scope of practice 1. Refers to the permissible boundaries of practice for a health professional, as defined by statute, rule, or a combination of statute and rule, which define the actions and duties of nurses in these roles 2. Physicians were the first professionals to define their scope of practice and defined medicine to include curing, diagnosing, treating, and prescribing 3. Physicians ensured that it was illegal for anyone not licensed as a physician to perform acts included in the definition 4. Nurses gained control of their profession in the early 1900s; during the 1930s autonomous practice was defined as:

.

a) Supervision of patients b) Observation of symptoms and reactions of patients c) Accurate recording of patients’ information 5. With the advent of advanced nursing practice, it became apparent that such a definition of scope of practice would prevent independent practice, and several courses of action were undertaken to remedy the situation 6. Increasing the nurse’s scope of practice was done by amending or altering state nurse practice acts 7.

Currently all 50 states have enacted legislation regarding the ANP’s scope of practice

8. A second means of expanding the legal scope of practice is through court decisions that define the nature of the advanced nurse practitioner’s role 9. A third way to expand the advanced practice nurses’ scope of practice is through federal enactments

B. Three main issues that ANPs have continually included in their lobbying efforts: 1. Elimination of restrictions that allow nurses to practice only in certain geographic settings 2. Elimination of requirements that make nurses dependent on physician supervision or collaboration 3. Establishment of requirements that the same services should always result in the same payments by insurers and third-party payers

C. Reimbursement Issues 1. Medicare Reimbursement Reform Bill in 1997: made Medicare reimbursement for ANPs and CNS widespread geographically and in more clinical settings a) Continued the devaluation of nursing work by reinforcing reimbursement 85% that of physicians b) Leading many APNs to continue to bill using a physician’s name for reimbursement rather than directly billing for third-party reimbursement 2. This legislation also defines “collaborative” by state nurse practice acts, rather than restrictive language of the federal government

D. Malpractice Issues 1. Lawsuits ask whether action of ANP was: a) Generic to nursing and thus within the nursing scope of practice

.

b) A medical activity that is permitted by law as germane to the advanced practice nurse’s scope of practice c) A medical activity not within the scope of practice of the advanced practice nurse d) A nursing activity that overlaps with a medical activity 2. Standards of care remain unclear when a nursing function overlaps with a medical function 3. Recent cases naming CNMs: failure to obtain a complete history, delay in referring the patient for a timely cesarean section, failure to refer when CNM’s scope of practice was exceeded, failure to follow the American College of Obstetrics and Gynecology standards, and failure to monitor a patient receiving Pitocin 4. Recent cases naming APRNs: issues surrounding obstetrical care, reporting of child abuse, abuse of an infant, misdiagnoses or delay in correct diagnoses, and failure to adequately screen patients

PowerPoint Lecture Slides •

Physician’s Scope of Practice

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Nurse’s Scope of Practice

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Increasing Nurse’s Scope of Practice

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ANPs Continue to Lobby for:

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Reimbursement Issues

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Malpractice Issues

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Liability of Performing Medical Functions

IV. Standards of Care A. Standards of care for nurses in expanded roles 1. Nurses in expanded roles are held to the medical standard of care 2. Because their responsibilities lie in area of medical expertise, the standard of care is to be based on the skill and care normally expected of those with like education and expertise 3. Standards of care for ANPS is heavily debated; some courts uphold a separate standard of care for ANPS, others hold them to the same standard as that of a primary care physician .

V.

Prescriptive Authority A. Legal issues of ANP prescriptive authority 1. Central to independent practice by ANPs 2. Extent of professional decision making allowed and the range of drugs 3. Majority of states require some degree of physician involvement or delegation

PowerPoint Lecture Slides •

Prescriptive Authority

VI. Admitting (Hospital) Privileges A. Admitting privileges 1. Granted by individual facilities 2. Privileges vary from allowing the practitioner to visit patients to permitting direct admission and entries in the medical record 3. ANP practice limited by lack of admitting or hospital privileges 4. 43% of ANPs in the United States have hospital privileges; half of those have admitting privileges

B. Arguments to grant admitting privileges to ANPs 1. The quality, efficiency, patient satisfaction, and cost-effectiveness of APN care is equal to, and in some cases superior to the care provided by physicians 2. Institute of Medicine recommends that APNs be able to admit patients 3. The prevailing practice is that ANPs admit patients under the name of a supervising physician; this decreases their autonomy while ensuring that only physicians are credentialed by the institution

PowerPoint Lecture Slides

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Admitting Privileges

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Arguments for ANPs Possessing Admitting Privileges

VII. Direct Access to Patient Populations A. Direct access to alternative providers 1. Curtailed by medicine, regulators, and accreditors, including state health departments and The Joint Commission 2. Physicians are the traditional gatekeepers of the health care delivery system

B. Managed care corporations and the medical or healthcare home 1. Team-based health care delivery system emerging as a model for coordinated and integrated care 2. Retains the physician as the gatekeeper, but negotiations for advanced practice nurses in these corporations are advancing in some areas of the country

PowerPoint Lecture Slides •

Direct Access to Patient Populations

VIII. Statute of Limitations A. Statute of limitations 1. Actions must be heard within a prescribed number of years or be barred from ever being heard 2. Most states impose a 1- to 2-year limitation on medical malpractice suits 3. Whatever the jurisdiction, there seems to be the same statute of limitations for all health care providers in the state

PowerPoint Lecture Slides •

Statute of Limitations

IX. Ethical Perspectives and Advanced Nursing Practice A. Decisions require a significant degree of balancing principles 1. For example: balancing the person’s autonomy rights while advocating for specific treatment modalities for a patient who elects no treatment 2. Advocates for equal use of scarce resources for patients who are underinsured, respecting their right as persons to have adequate and appropriate health care treatment .

B. Fidelity to the patient and imposed cost constraints C. Distributing scarce time among patients PowerPoint Lecture Slides •

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Ethical Issues

Chapter 13 Corporate Liability Issues and Employment Laws Objectives 1.

Describe the doctrines of respondeat superior, borrowed and dual servant, ostensible authority, corporate negligence, and direct corporate liability.

2.

Define and discuss the role of the individual contractor in the health care delivery system.

3.

Describe the impact of indemnification from a corporate perspective.

4.

Describe selected federal and state employment laws that affect the delivery of health care in the United States.

Introduction: Whenever a nurse is employed by another, be it a hospital, clinic, or physician, the employing entity accepts varying amounts of potential liability for the nurse-employee. The nurse becomes the employer’s representative and, because of the special legal status, conveys potential liability to the employer. Never, though, does the nurse convey all liability to the employer. Each individual is ultimately responsible for his or her actions.

This chapter discusses theories of corporate liability, including vicarious liability, respondeat superior, borrowed and dual servant doctrines, ostensible authority, and the role of the independent contractor. A variety of federal and state employment laws that affect corporate liability are .

discussed in detail in the chapter, and it concludes with some ethical issues that may arise in this area of the law.

I.

Theories of Vicarious Liability A. Vicarious liability (substituted liability) 1. Describes the instance in which one party is responsible for the actions of another 2. Includes the employer, but never to the extent that personal and individual liability is lost 3. It is not a shift in liability, but an extension of liability

B. Respondeat superior 1. Common law principle of substituted liability based on a master-servant relationship 2. Similar elements between employer and nurse are: a) The employer controls the actions of the employee b) Substituted liability applies only to actions within the scope and course of employment

C. Scope and course of employment 1. The rationale for respondeat superior is that employers stand to reap the benefits of the employees’ activities, but they must also bear the burden of the employees’ errors 2. Employers have an obligation to see that those they hire perform in a safe and competent manner 3. There are two hurdles that the injured party must pass before the principle of respondeat superior is allowed a) The injured party must show that the employer had control over the employee b) The negligent act must have occurred within the course and scope of the employee’s employment 4. Most activities undertaken by employees will be held foreseeable by the courts 5. Other factors consistently analyzed by courts include: a) Usual place of employment b) Whether the act’s purpose, in whole or in part, was in furtherance of the employer’s business

.

c) The extent to which the act was similar to or different from authorized acts of the employer d) The extent to which the act was a departure from the employer’s customary methods e) The extent to which the employer should have expected such an act to occur 6. Actions outside the course and scope of employment include: a) The rendering of voluntary health services, such as at an accident or community health drive b) Performing actions reserved for physicians or APNs is not in the scope of employment for staff nurses, unless a true emergency exists 7. Health care facilities may also incur liability for actions performed by nurses in supervisory roles 8. The supervisor’s liability is more frequently incurred because of a failure to perform supervisory functions in a competent manner as a nursing supervisor should 9. The doctrine of respondeat superior applies equally to acts of omission as well as commission

D. Borrowed servant and dual servant doctrines 1.

The borrowed servant doctrine is a special application of the doctrine of respondeat superior

2.

While in the general employment of another, the borrowed servant is subject to the right to direct and control the details of the individual’s activities

3.

They apply when an employer lends completely the services or skills of an employee to another employer

4.

The key to the doctrine is the right and manner of control

5.

The employer-hospital would not be liable for negligent or intentional tort of the nurse while the nurse is under the direct control and supervision of the directing physician

6.

The directing physician becomes liable under the doctrine.

7.

The borrowed servant doctrine applies to situations within the operating arena or to cardiopulmonary resuscitation; was known as the captain of the ship doctrine

8.

Dual servant doctrine allows for vicarious liability to flow to both the employerhospital and to the physician

9.

A dual servant is one who can be shown to be serving both entities at the same time

PowerPoint Lecture Slides .

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Vicarious Liability

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Respondeat superior

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Borrowed Servant Doctrine

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Dual Servant Doctrine

II.

Corporate Liability A. Corporate liability doctrine 1.

The doctrine that holds the institution liable for its responsibilities to patients

2.

Corporations must ensure that competent and qualified practitioners deliver quality health care to consumers

B. Negligent hiring and retention doctrine 1.

Often used by injured parties when respondeat superior cannot be applied to the specific fact situation

2.

Employer can still be held liable if employee was incompetent or if the employer knew or should have known that the employee was incompetent or unsafe

3.

Negligent hiring and retention is based on the master-servant relationship

4.

It is the hospital’s obligation to monitor all personnel within the facility

5.

Under this doctrine institutions must: a) Periodically review staff competency b) Investigate physicians’ and advanced practice nurses’ credentials before allowing them admitting privileges. c) Terminate unqualified practitioners or make available to these practitioners the education and skills needed to competently deliver quality health care to patients.

PowerPoint Lecture Slides •

Corporate Liability Doctrine

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Negligent Hiring and Retention Doctrine

III. Ostensible Authority A. Ostensible authority (also known as agency by estoppel)

.

1.

An application of agency law

2.

Allows a principal to be liable for acts and omissions by independent contractors working within the principal’s place of business or at the direction of the principal, and a third party misinterprets the relationship as employer-employee

3.

The courts employ four criteria to establish ostensible authority: a) Subjectivism b) Inherent function c) Reliance d) Control

B. Subjectivism 1.

Refers to the extent that third parties view the person as a hospital employee

2.

It is subject to the third parties’ interpretation of the relationship

3.

If the urgent care provider is an independent contractor working in the hospital facility, the court looks to the subjective interpretation of a patient in perceiving that the physician is indeed a hospital employee

C. Inherent function 1.

The courts determine whether the independent contractor is furthering the primary function of the corporation

2.

Or if the individual’s role can easily be seen as distinguishable from the corporation’s primary function

D. Reliance 1.

Involves the faith that the patient places in the hospital’s judgment

E. Control 1.

To determine who had the greater control, the independent contractor or the hospital will ascertain the following factors: a) To what extent the employer determines the details of the work and work setting b) Whether the work is supervised by the employer or the independent contractor is free to perform the work in the manner he or she sees fit c) Who supplies the instruments, equipment, and supplies needed to perform the work d) Where the work is performed e) What method of payment is used

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PowerPoint Lecture Slides •

Ostensible Authority

IV. Theories of Independent Liabilities A. Independent contractor status 1.

An independent contractor is one who arranges with another to perform a service for him but who is not under the control or right to control of the second person

2.

Typically in nursing an independent contractor status applies to a private-duty nurse and selected advanced practitioner roles

3.

Provisions in the independent contract should include: a) Termination b) Length of contract c) Dispute resolution d) Relationship of the parties e) Duties and responsibilities of the independent contractor f) Payment schedule g) Professional liability insurance

4.

In theory, being an independent contractor makes the nurse solely liable for negligent or intentional torts and should relieve hospital or employer of liability

B. Personal liability 1.

Makes each individual responsible for his or her own actions

2.

One cannot negate one’s responsibility merely because a second or third party also has responsibility

3.

Neither will the law impose liability on the competent practitioner

C. Indemnification 1.

Allows the employer to recover from the individual personally responsible any damages paid under the doctrine of respondeat superior for the negligent act

2.

The key to applying this principle is twofold: a) The employer is at fault in a liability suit only because of the employee’s negligence b) The employer incurs monetary damages because of the employee’s negligence

.

PowerPoint Lecture Slides •

Independent Contractor

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Indemnification

V.

Employment Laws A. Laws regulating employment 1.

Federal and individual state governments have enacted a cadre of laws regulating employment

2.

Nurses must be familiar with these laws to be effective and legally correct

PowerPoint Lecture Slides •

Employment Laws

VI. Equal Employment Opportunity Laws A. Employment discrimination laws

.

1.

Employment discrimination laws are enforced by the Equal Employment Opportunity Commission (EEOC)

2.

Seek to prevent discrimination based on: a) Gender b) Age c) Race d) Religion e) Handicap f) Physical disability g) Pregnancy h) National origin i) Sexual orientation j) New discrimination involving the mandating of specific languages that may or may not be spoken in health care settings

3.

Discrimination results in biases in hiring, promotion, job assignment, termination, compensation, and various types of harassment

4.

The Civil Rights Act of 1964 is the most significant legislation affecting equal employment opportunities today

5.

An amended version was signed into law in 1991 broadening the issue of sexual harassment in the workplace

6.

The Civil Rights Act is enforced by the EEOC

7.

The primary activity of the EEOC is processing complaints of employment discrimination: a) Investigation b) Conciliation c) Litigation

8.

For a legitimate discriminatory lawsuit to go forward, these four questions must be answered “yes”: a) Does the employee belong to a minority group? b) Was the employee performing the job at a level that met the employer’s legitimate expectations? c) Did the employee suffer an adverse employment action? d) Did other employees, nonmembers of the same minority group, not suffer similar adverse employment action?

9.

Exceptions to Title VII of the Civil Rights act include: a) It is lawful to make employment decisions on the basis of national origin, religion, and gender (never race or color) if such decisions are necessary for the normal operation of the business b) Promotions and layoffs may be based on bona fide seniority or merit systems

10. Persons who have resigned due to intolerable conditions caused by illegal acts of discrimination may file a claim of constructive discharge 11. To claim constructive discharge, the employee must show that the employer deliberately created intolerable working conditions with the intention of forcing the employee to quit

PowerPoint Lecture Slides

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Equal Employment Opportunity Laws

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Civil Rights Act of 1964

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Equal Employment Opportunity Commission

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Proving Discrimination

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Exceptions to Title VII

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Constructive Discharge

VII. Federal Torts Claims A. The Federal Tort Claims Act of 1946 1.

Was enacted to allow patients and persons with claims against federal workers to be able to sue the U.S. government

2.

Prior to this the government was immune

3.

It is the sole remedy available to a patient injured by a federal employee providing health care

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Federal Torts Claims

VIII. Age Discrimination in Employment A. The Age Discrimination in Employment Act of 1967 1.

Meant that it became illegal for employers, unions, and employment agencies to discriminate against older men and women—over the age of 40

2.

Practices prohibited under this act include: a) Placing older nurses in positions that are being phased out as a means of easing the worker out of a job b) Forcing older workers to waive their rights as part of a termination program

3.

Four criteria for a successful age discrimination lawsuit are: a) Be 40 to 70 years old. b) Perform job responsibilities according to the employer’s expectations. c) Be discharged. d) Be replaced by a substantially younger person.

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Age Discrimination in Employment Act of 1967

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Showing Age Discrimination

IX. Rehabilitation Act Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

A. The Rehabilitation Act of 1973 1.

Promotes and expands employment opportunities in the public and private sectors for handicapped individuals through the elimination of discrimination and affirmative action programs

2.

Employers covered by the act include agencies of the federal government and employers receiving federal contracts or financial assistance

3.

The EEOC enforces the act against federal employees

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X.

Rehabilitation Act of 1973

Affirmative Action A. Affirmative action defined 1.

Enhances employment opportunities of protected groups of people

B. United States Fair Labor Standards Act of 1938 (FLSA) 1.

Establishes a national minimum wage and time and a half for overtime in certain job classifications, and prohibits child labor abuse

C. The Equal Pay Act of 1963 makes it illegal to pay lower wages to employees of one gender when the jobs: 1.

Require equal skill in experience, training, education, and ability

2.

Require equal effort in mental or physical exertion

3.

Are of equal responsibility and accountability

4.

Are performed under similar working conditions

5.

Courts have held that unequal pay may be legal if based on seniority, merit, incentive systems, and a factor other than gender

PowerPoint Lecture Slides

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Affirmative Action

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United States Fair Labor Standards Act of 1938

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Equal Pay Act of 1963

XI. Occupational Safety and Health Act A. Occupational Safety and Health Act of 1970 (OSHA) 1.

Was enacted to assure that healthful and safe working conditions would exist in the workplace

2.

Among other provisions the law requires: a) Isolation procedures b) The placarding of areas containing ionizing radiation c) Proper grounding of electrical equipment d) Protective storage of flammable and combustible liquids e) (Recently added) gloving of all personnel when handling bodily fluids

3.

The statute provides that if no federal standard has been established, state statutes prevail

4.

Nurse managers should know the relevant OSHA laws for the institution and their specific area

5.

Frequent reviews of updates to OSHA law are necessary

6.

Violence in the workplace is an issue that OSHA continues to address in its rules a) It is the greatest hidden health hazard and a safety threat in the workplace, and nurses are most at risk of assault at work

7.

In 1996, the OSHA developed guidelines to protect health care workers and consumers

8.

OSHA law guarantees all workers a right to a safe and healthful workplace. This is done through use of: a) Written policy b) Employee education and training c) Proper staffing levels d) Follow-up of incident reports

B. Employers are responsible for adherence to OSHA standards 1.

Employers may be penalized if they do not reduce the potential for workplace violence

2.

Factors known to contribute to assault are: a) Inadequate staffing b) Invasion of personal space

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c) Seclusion or restraint activities d) Acts of experienced staff members 3.

Employers must participate in or initiate regular workplace assessments, identifying unsafe areas and potential hazards

4.

Employers must work with management to make necessary changes, monitor incidents, and determine whether control measures are effective; possible actions include: a) Scheduling experienced clinicians on each shift b) Educating staff to deal with escalating violence c) Enforcing wearing of proper identification by staff members d) Developing a buddy system when working with patients or family members who are known to react violently

5.

Be alert for potential violence and suspicious behavior and report it immediately

6.

Assess patients for their potential for violence, especially if they have a history of violent behavior

7.

Be supportive of colleagues who encounter workplace violence

8.

Ensure that they report all incidents and receive treatment and counseling

9.

Encourage co-workers to address violence in their personal lives and conflict in the workplace

10. An issue now being addressed is safe patient handling, which also prevents injury to health care workers 11. In 2012, OSHA announced that it initiated a 3-year National Emphasis Program (NEP) for nursing and residential care facilities in order to focus on the workplace hazards that are the most common in the health care industry 12. It is hoped that federal laws will require mechanical lifting equipment and frictionreducing devices for all health care workers

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Occupational Safety and Health Act of 1970

XII. Employment-at-Will and Wrongful Discharge A. Employment relationships

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1.

Historically the employment relationship has been considered an “at-will” relationship

2.

Employees are free to take or not to take a job at will; employers are free to hire, retain, or discharge employees

3.

There is a growing trend to restrict application of the at-will employment rule.

4.

Three exceptions to the broad doctrine of employment-at-will are: a) The public policy exception (this involves cases in which an employee is discharged in direct conflict with established public policy) b) Implied contracts and the concept of wrongful discharge c) The “good faith and fair dealing” exception

B. Public policy exception 1.

Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge of those crimes is essential in the effective implementation of that policy

2.

An employer may not discharge an employee if it would violate the state’s public policy doctrine or a state or federal statute

3.

A form of criminal exposure is whistle-blowing

4.

A whistle-blower is someone who believes that the public interest overrides the interest of the organization he or she serves, and who publicly exposes the organization for its involvement in corrupt, illegal, fraudulent, or harmful activity a) Most whistle-blowing is internal, reporting misconduct within an agency. b) External whistleblowers report misconduct to outside entities c) The employee does not have to cite a reference in reporting what is or is believed to be illegal conduct d) When reporting violations, whistleblowers must remember that protections and regulations vary by state

5.

The United States False Claim Act of 1986 protects individuals who are whistleblowers

6.

Allows a private citizen to file a civil lawsuit in the name of the U.S. Government to recoup money the government has paid for a false claim, such as a fraudulent Medicare claim

7.

Consult an attorney or union representative before taking action

8.

In order to prevail in a successful whistleblower retaliation case, these criteria must be met: a) The whistleblower must disclose or threaten to disclose an allegation in writing and under oath to the appropriate state or federal agency

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b) The allegation must be about an activity, policy, or practice of the employer that is or was a violation of a state or federal law, rule, or regulation c) The employee must have given the employer written notification and a reasonable time to correct the problem/issue d) The employee must have suffered retaliation in the form of some actual harm

C. Wrongful discharge exception 1.

Involves situations in which there is an implied contract

2.

Employees have the right to have the employer’s job performance expectations known to them and any unsatisfactory job performance pointed out, and the right to make corrections before being subject to discipline

D. “Good faith and fair dealing” exception 1.

The purpose of this exception is to prevent unfair or malicious terminations.

2.

Courts use this exception sparingly

3.

States also do not favor this exception, and today only 11 states recognize breach of such implied contracts

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Employment-at-Will

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Restriction to At-Will Employment Rule

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Whistle-blowing Exception

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Wrongful Discharge Exception

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“Good Faith and Fair Dealing Exception”

XIII. Collective Bargaining A. Collective Bargaining Act of 1974

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1.

Is the joining of employees for the purpose of increasing their ability to influence the employer and improve working conditions

2.

The employer is referred to as management and the employee as labor

3.

Persons involved in the hiring, firing, scheduling, disciplining, or evaluating of employees are considered management

4.

Management may not be included in a collective bargaining unit and is not protected under the Collective Bargaining Act

5.

Collective bargaining is a power strategy based on the premise of increased power in numbers and it assists in the following areas: a) Basic economic issues as salary, shift differentials, overtime pay, length of the work day, vacation and sick time, lunch breaks, health insurance, and severance pay b) Unfair or arbitrary treatment in scheduling, staffing, rotating shifts, on-call assignments, transfers, seniority rights, and posting of job openings c) Maintenance and promotion of professional practices such as acceptable standard of care, other quality of care issues, and adequate staffing ratios

B. Three issues against collective bargaining 1.

Charges of unprofessionalism

2.

Unethical behavior, especially when faced with a divisive strike situation

3.

Imperiled job security because of the concept of a closed shop in which everyone must join the union (Most health care unions are open shops—nurses can chose whether to join or not)

C. The National Labor Relations Act (NLRA) 1.

Protects collective bargaining

2.

NLRA Board oversees the act and those who come under its auspices

3.

Ensures that employees can choose freely whether they want to be represented by a particular bargaining unit

4.

Serves to prevent or remedy any violation of the labor laws

D. The American Nurse Association (ANA) 1.

Collective bargaining became a reality for nurses with enactment of the EmployeeManagement Cooperative

2.

The American Nurses Association has long supported the right of nurses to bargain collectively and represents the interests of nurses within the individual states

3.

Two reasons for their support are: a) Collective bargaining allows for achieving the basic elements of professional status b) Collective bargaining allows a mechanism for nurses to resolve conflicts within the workplace setting, thereby enhancing quality of care to patients

E. Organizing labor organizations 1.

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First, an organizing council is formed

2.

Employers are not permitted to ban discussion about unions or retaliate against a worker trying to organize a union

3.

Employers are obligated to provide names and addresses of workers who may be eligible

4.

Workers can only distribute union information in nonwork areas such as the cafeteria

5.

Members of the union have a right to enter the workplace if the workplace is open to the public

6.

There can be no threats or intimidations of workers, nor bribes to employees to discourage unionization

F. Union support 1.

Support of a union is usually done with authorization cards, signed by workers who wish to join

2.

If 30% of the work force has signed for an election, the regional office of the NLRB is called

G. The NLRB works to ensure a fair election for both sides; the rules include: 1.

If either side violates the election rules, it is grounds to question the validity of the election process

2.

The election (choice between union or no union) is done by secret ballot

3.

If no choice receives the majority, then a run-off election may be held

4.

If the election is unsuccessful, a second election may take place

5.

If the employer engaged in objectionable conduct, a rerun election is ordered

6.

If more than 50% of workers vote for a union, the organization is “certified” and the employer is required to bargain with the organization—this is called the contract negotiation period

H. Contract Negotiation Period 1.

Occurs when both sides appoint spokespeople and good-faith bargaining is mandated

2.

Mandatory subjects of bargaining include: a) Wages and fringe benefits b) Grievance procedures c) Health and safety d) Nondiscrimination clauses e) No-strike clauses

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f) Length of contract g) Management rights h) Discipline i) Seniority j) Union security 3.

An arbitrator is a neutral party whose purpose is to be fair to both sides—may be necessary during contract negotiation period

4.

The arbitrator’s solution and recommendations are binding to both sides

5.

If both sides cannot agree, work stoppages by employees and lockouts by management can occur

6.

With 10 days’ notice the union can go on strike; this is something both sides want to avoid

7.

Once a contract is ratified, collective bargaining does not end but enters the enforcement stage

8.

Grievances can be brought by either management or employees

I. To prevent unionization—typically formed when there are disagreements with management—it is suggested that management: 1.

Provide opportunity for participation in organization decision making

2.

Maintain salaries in relationship with the education required and the responsibility given

3.

Treat professionals as true professionals, affording them respect, trust, and value

4.

Develop, implement, and refine a grievance procedure

5.

Conduct timely and regular surveys and meetings to allow staff an opportunity to express their feelings and views

J. Once a contract has been accepted nurses should:

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1.

Know and understand contract provisions

2.

Treat all persons being supervised with equal respect and consideration (union and nonunion)

3.

Should an issue arise, perform as a professional, be nondefensive, do not crumble under pressure

4.

Admit wrong statements/decisions and negotiate a better solution to the problem.

5.

Ask for assistance from upper management if necessary

6.

Continue to expand personal knowledge of management principles through either formal education or continuing education and practice of those principles

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Collective Bargaining

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Criticisms of Collective Bargaining

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National Labor Relations Act

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ANA Supports Collective Bargaining

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Organizing Labor

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Elections to Unionize

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Contract Negotiation Period

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Management Can Prevent Unionization

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After Contract Acceptance

XIV. Case Law and the National Labor Relations Act A. The Sixth Circuit Court 1.

The Sixth Circuit Court held that staff nurses, including licensed practice nurses (LPNs) at a nursing home facility, were supervisors under the definition of the NLRB and therefore were not entitled to the act’s protections

2.

This is important because it treats the health care profession like other professions

3.

Interns, residents, salaried physicians, and nurses can be classified as supervisors in the future

4.

Court cases continue to confuse the issue regarding the status of nurses as supervisors or nonsupervisors

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Case Law and the National Labor Relations Act

XV. Family and Medical Leave Act A. The Family and Medical Leave Act of 1993 1.

Balances the demands of the workplace with the demands of the family

Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

2.

Allows employed individuals to take leaves for medical reasons, e.g., birth of a child; provides job security; and is gender-neutral

3.

It was passed due to: a) Large number of single-parent and two-parent households in which the single parent or both parents are employed full-time, placing job security and parenting at odds b) Aging population of the United States and the demands that aging parents place on their working children

4.

To be eligible under this law, the facility must employ at least 50 persons within a 75mile radius for each working day during each of 20 or more calendar days in the current or preceding years

5.

Employee must also have worked for at least 12 months and at least 1,250 hours during the preceding 12-month period

6.

The act does not distinguish between family leave and medical leave per se, it merely speaks of leave

7.

Individuals who take advantage of the Leave Act are entitled to reinstatement of the same or an equivalent position upon return

8.

An employee can be denied reinstatement if the employee would have lost his or her position during the leave; employer must prove that the position would have been eliminated during employee leave

B. The act does not distinguish between family leave and medical leave per se, it merely speaks of leave; family leave: 1.

Is available due to an addition to the family, either birth or adoption; must be taken within 12 months of the addition

2.

Intermittent leave may be taken, if agreeable to both the employer and employee

3.

Employee may take up to 12 weeks without pay

4.

Employee may elect, or employer require, that employee use all or part of any paid vacation, personal leave, or family leave as part of the 12 weeks of family leave provided under the act

5.

Employee must give employer 30 days’ notice prior to the date that the leave begins, or such notice that is practical

C. Medical leave may be taken for employee to care for spouse, child, parent, or self; its regulations are as follows:

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1.

The amount of medical leave is 12 weeks during any 12-month period

2.

It may be taken intermittently or on reduced leave schedule

3.

Employee can elect or employer require that employee use vacation, personal, or medical or sick leave as part of the 12 weeks’ leave

4.

Sick leave may be used for medical leave, but not as part of family leave available under the act

5.

Employee must give employer 30 days’ notice prior to the date that the leave begins, unless it is impractical. Then notice should be given as soon as possible

6.

An amendment added in 2009 allows leave to care for a member of the Armed Forces who is undergoing medical treatment, recuperation, or therapy

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Family and Medical Leave Act of 1993

XVI. Workers’ Compensation Laws A. Workers’ compensation is a form of insurance that provides compensation for medical care when employees are injured during work 1.

In exchange the employee forfeits the right to sue his or her employer for negligence

2.

All states have some kind of workers’ compensation law

3.

Most coverage under the law is provided by private insurance companies

4.

Mental stress caused by duties, responsibilities, and other work-related factors is not covered, but mental stress from a traumatic incident is

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Workers’ Compensation

XVII. Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act A. Patient Protection and Affordable Care Act (PPACA) 1.

Citing a need for health insurance reform and a need to insure the millions of uninsured Americans, the PPACA provides for the phased implementation over 4 years of a comprehensive system of mandated health insurance

2.

Reforms include: a) Eliminate precondition screenings

.

b) Premium loading fees and structures c) Policy cancellation when illnesses appear imminent d) Annual and lifetime coverage gaps

B. Health Care and Education Reconciliation Act 1.

Enacted to amend the earlier act as it related to the federal budgetary resolutions and deficit

2.

Increases tax credits to buy insurance

3.

Lowers penalties for not buying health insurance

4.

Closed the Medicare Part D “donut hole” provision

5.

Requires physicians who treat Medicare patients to be reimbursed at a full rate of payment

C. Nurses and the health care delivery system are projected to be affected in many ways: 1.

Facilities will be required to post notices advising employees of their rights

2.

Nursing facilities will be required to have compliance and ethics training programs

3.

Programs will encourage employees to report violations without fear of retribution

4.

Requires continuing training standards for nonlicensed personnel caring for dementia patients

5.

Provides a greater opportunity for advanced practice nurses due to greater demand for nursing generalists

6.

Pre-existing conditions will demand that nurses have in-depth knowledge of illnesses

7.

Patient education will be enhanced

8.

Creation of opportunities for additional health care educators and patient advocates

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Patient Protection and Affordable Care Act

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Health Care and Education Reconciliation Act

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Affects of Reform

XVIII.

Ethical Concerns in this Area of the Law

A. Ethical Consideration 1.

Procedures for restraining and testing employees suspected of substance abuse

Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

2.

All employees are deserving of ethical consideration, including respect, justice, and fair play

B. Discrimination 1.

Federal government placed ethics into law with the passage of the Civil Rights Act of 1964; however, case law evidences the fact that discrimination persists today

2.

Issue can be approached through in-depth diversity education that promotes ethical behavior; benefits include: a) Promotion of intercultural relationships b) Improvement of teamwork c) Ability to meet patient needs and achieve positive outcomes d) Recognition of different thinking styles (promotes creative decision making and problem solving) e) Acceptance of others

C. Employment-at-will 1.

Employment-at-will and the ability of employers to dismiss employees for cause or for no cause

2.

Issue concerns employees when supervisor may not like the individual or the employer may want to bring in someone to whom he or she owes favors

3.

Employers can only dismiss with cause, such as for incompetent work performance or disregard of patient safety issues

D. Patients’ dependency on nurses 1.

Patients’ dependency on nurses for the patient’s mobility hinders the patients’ freedom and autonomy

2.

May infringe on the patients’ well-being and cause the patient to feel undignified

3.

Nurses may give preference to patients who are lighter and easier to transfer

4.

If the nurse perceives the movement as a personal risk to the nurse’s well-being, a time burden, or less of a priority, the patient could have a delayed movement

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Ethical Issues

Chapter 14 Federal Laws: The Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991 Objectives 1.

Describe the conditions within the United States that caused both the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991 to be written and implemented.

2.

Describe the various sections of the two acts, necessary definitions, and intended purposes.

3.

Describe how the acts affect the health care delivery system in terms of consumers and providers.

4.

Analyze the ever-expanding number of cases filed under both of these acts.

5.

Describe selected ethical issues that arise in the context of these two federal laws.

Introduction: The Americans with Disabilities Act (ADA) of 1990 and the Civil Rights Act of 1991 were both signed into legislation during the term of President George H. W. Bush.

Both of these acts have significant implications for health care delivery. The ADA affects health care providers as well as consumers, with various sections of the act addressing hiring and retention of providers as well as access to health care. The act was significantly changed in subsequent legislation. The Civil Rights Act of 1991 also affects both health care providers and consumers. This chapter explores these two pieces of federal legislation, defining the purposes of the acts and their application .

through case law, and concludes with future projections concerning these areas of the law for nurses.

I.

The Americans with Disabilities Act (ADA) A. Background of the Act 1. One of the most significant pieces of legislation since the Civil Rights Act of 1964 2. Seen by its sponsors as “the Emancipation Act of disabled persons” 3. Providing comprehensive protections to Americans with disabilities 4. Act necessitated by the discrimination faced by individuals with HIV/AIDS 5. Combines two legal concepts: disability and equality 6. Aim was to “provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities”

B. Provisions of the act 1. Americans with Disabilities Amendments Act of 2008 clarified and reiterated who is covered by the law’s civil rights protections a) Revised the definition of “disability” to more broadly encompass impairments that substantially limit a major life activity 2. Language also states that mitigating measures have no bearing in determining whether a disability qualifies under the law 3. Clarify coverage of impairments that are episodic or in remission that substantially limit a major life activity when active, such as epilepsy or post-traumatic stress disorder 4. Defines a “covered entity” as an employer, employment agency, or labor organization, or joint labor-management committee 5. Applies to all employers who have 15 or more employees.

6. While not excluding religious organizations, it authorizes them to give preference to their own members and to require that applicants and employees conform to their religious tenets

C. Definitions in the act 1. The ADA as of 2008 defines disability broadly a) Physical or mental impairment that substantially limits one or more major life activities of such individual

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b) A record of such an impairment; or c) Being regarded as having such as impairment 2. Major life events “include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” 3. “Major life activity also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions” a) Only one major life event must be limited to be considered a disability b) Determination of whether an impairment substantially limits a major life event is made without regard to any adaptations made (e.g., behavior changes, equipment, technology, etc.)

4. Definition of disability was broadened to be as inclusive a possible, while disallowing from the definition of disability impairments that are transitory and minor (expected duration of 6 months or less without being episodic) 5. A record of impairment: refers to someone who has a history of, or has been classified as having, a mental or physical disability; intended to ensure that the covered entities do not discriminate 6. Clarifies the definition of employees “regarded as” being disabled if they can show that they were subject to an action prohibited by the ADA, such as failure to hire based on impairment 7. Reasonable accommodations: the employer’s responsibilities to provide the necessary structure, reassignment, and equipment modifications or devices or interpreters that would allow the disabled person to perform the job 8. Essential job functions a) Based on employer’s judgment, job description, and amount of time performing the given function b) Purpose is to ensure that qualified disabled applicants will not be discriminated against because of nonessential job functions they are not able to perform

D. Exclusion from the definition of disability 1. Gender and sexuality identities: lesbian, gay, bisexual, transgender, or transsexual 2. Compulsive gambling, kleptomania, pyromania, illegal drug use, pedophilia, exhibitionism, etc., also are not considered disabilities under the ADA

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3. Employers may hold alcoholics to the same performance standards as other employees

PowerPoint Lecture Slides

II.

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Americans with Disabilities Act of 1990

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Definition of Disability

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A Record of Impairment

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Reasonable Accommodations

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Exclusions from the Definition of Disability

Provisions of the Act

A. The ADA is closely related to the Civil Rights Act of 1964 and incorporates the antidiscrimination principles established in Section 504 of the Rehabilitation Act of 1973 B. Title I 1. Prohibits employment discrimination, adopting the remedies and procedures provided by Title VII of the Civil Rights Act of 1964 2. Incorporates the concepts of reasonable accommodation and undue hardship that were established in parts of the Rehabilitation Act 3. Aims to ensure that people with disabilities are not excluded from job opportunities unless they are unqualified 4. The employer: a) May not ask about disabilities (depending on job) b) May make inquiries into the ability of applicant c) May require a medical exam after job has been offered d) May require drug testing 5. Undue hardship defense to ADA a) Used if the accommodation requested is extremely expensive or difficult to implement b) Based on cost, numbers of employees, and type of business enterprise 6. Public safety defense and health and safety defense to ADA

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a) Employer must show that reasonable accommodation cannot prevent potential compromised safety and health hazards to others in the workplace b) E.g., employees with contagious disease may not work during an active phase of the illness

C. Title II 1. Prohibits discrimination against disabled individuals by any state or local government entity without regard to the receipt of federal funds 2. Includes comprehensive provisions designed to ensure access to use of public transportation by disabled persons

D. Title III 1. Prohibits discrimination by public accommodations against individuals on the basis of disability in the full and equal enjoyment of the entity’s goods, services, facilities, privileges, advantages, or accommodations 2. Mandates the removal of architectural and structural barriers and the provision of auxiliary aids and services 3. New structures must be designed to be readily accessible and usable for individuals with disabilities 4. Includes provisions on discrimination in transportation services provided by private entities

E. Title IV 1. Ensures that individuals with speech and hearing impairments have meaningful access to and use of telephone services 2. Requires common carriers engaged in intrastate and interstate communications to provide telecommunications relay services

F. Title V 1. Contains miscellaneous provisions, including some construction clauses 2. ADA does not invalidate or limit other federal or state laws 3. Allows insurance carriers to continue classifying risks in the manner consistent with state laws 4. Prohibits retaliation against persons who file discrimination charges under the act or assist others who file such charges

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Provisions of the ADA

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Title I

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Title II

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Title III

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Title IV

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Title V

III. Lawsuits Under the ADA A. Disability Discrimination 1. Protected class is composed of employees or applicants for employment who meet three discrete provisions: a) The individual must have a disability in the sense that he or she has a “physical or mental impairment.” b) The impairment must be such that it “substantially limits one or more of the major life activities” of the individual. c) The qualified person must still be able to perform “the essential function of the employment position” sought or in which the individual is currently employed 2. Once a disability is shown, then one can examine the concept of discrimination

B. Defining disability and proving discrimination 1. Early challenges to the ADA concerned HIV and AIDS patients, disease states that many saw as the impetus for the act; cases presented such issues as mandatory HIV testing, whether the ADA prohibited discrimination against HIV-infected persons, or whether the asymptomatic HIV-infected person was qualified under the ADA 2. 1998 Supreme Court decision held that a patient’s positive HIV status was a disability under the ADA, even when the HIV-positive person was asymptomatic; addressed by 2008 amendment including disabilities in remission 3. Court cases have continued to challenge the definition of a qualified individual with a disability 4. Courts across the country have found that a variety of conditions do not constitute a disability, e.g., lifting disability, depression, sleep apnea, anxiety, allergies, pregnancy 5. Courts have found that a physical or mental impairment that is correctable by medication or other measures does not substantially limit a major life activity 6. A false subjective perception of a disability can be grounds for a disability discrimination lawsuit 7. The same condition may or may not qualify in a court as a disability

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8. Courts examine how individuals with disabilities accommodate their disability; i.e., does a health care worker threaten patients’ safety 9. The perception of a disability is equally important to having a disability from a legal perspective; i.e., a nurse discharged for having a perceived disability sues for disability discrimination 10. A nurse cannot refuse to participate in an interactive process that would result in alternative employment and be successful in a disability discrimination lawsuit 11. Court cases involving disability discrimination in health care settings may be filed by patients or patients’ families rather than health care providers 12. The ADA prohibits an employer from discriminating against an employee because of a disability affecting an individual with whom the employee is known to have an association or relationship

C. Reasonable Accommodation 1. Failure to offer reasonable accommodation is disability discrimination for which an employee can successfully bring a lawsuit 2. Employer must first know of the person’s disability and be given an opportunity to accommodate the employee 3. Includes but not limited to: a) Job restructuring b) Part-time or modified work schedules c) Offering of lower pay positions for which the individual is qualified d) Reassignment or transfers to other departments that have vacant positions e) Acquisition or modification of equipment or devices f) Educational materials or policies g) The provision of qualified readers or interpreters 4. The court must decide what constitutes reasonable accommodation 5. In order to be successful in a case based on reasonable accommodation, the nurse must participate in the interactive process concerning what would constitute reasonable accommodation 6. The employer has the legal obligation to reach out and communicate as openly as possible with employees who have come forward and asked for assistance to accommodate their disability-related needs 7. Employer has no legal obligation to (1) create a new position for such an employee, (2) give a position to a disabled employee for which the employee is not qualified, or (3) train an employee for a position for which an employee is not qualified

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8. Employer must give the disabled employee preference over an outside applicant for a position for which the employee is qualified

D. Essential job functions 1. Functions that a person must be able to perform in order to be qualified for the employment position, not qualifications that would be ideal to possess 2. Courts have been involved in deciding what constitutes essential job functions 3. Once persons can perform all the essential functions of a position, then they can be considered qualified individuals with disabilities

E. Cases under Titles III and IV 1. Title III a) Parker v. Metropolitan Life Insurance Company (1997) b) Filed under Title III of the ADA; defined the purpose of the ADA c) The court found that Title III’s prohibitions do not apply to employersponsored benefit plans d) It stated, “the purpose of the ADA was to prevent discrimination among nondisabled and disabled persons, not to ensure equal treatment for people with different disabilities” 2. Title IV a) A deaf patient recovered damages for pain and suffering for the time frame in which he was refused the accommodation that he requested and instead was communicated with by handwritten notes b) The ADA requires hospitals to take reasonable steps to ensure that communications with members of the public who have disabilities are as effective as communications with others who do not have disabilities c) Additionally, the facility should give primary consideration to the requests of the disabled individual d) Federal courts have been unwilling to order a hospital to change its practices unless a particular patient could prove that the change will have a beneficial impact on the quality of care he or she will actually receive in the future at the same hospital e) A hearing-impaired patient can successfully sue only if the hospital has been deliberately indifferent to the patient’s need for interpretive services

F. Enforcement of the ADA 1. Done primarily through the Equal Employment Opportunity Commission 2. Complaints are filed with this commission and trials by jury may be a second option .

3. The Department of Justice oversees Title III violations 4. Enforcement ensures one of the primary purposes of the act—that no one, either disabled or able-bodied, will be given a greater advantage in employment opportunities, public services, transportation, and communications

PowerPoint Lecture Slides •

Disability Discrimination

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Defining Disability and Proving Discrimination

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Reasonable Accommodations

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Essential Job Functions

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Enforcement of the ADA

IV. ADA Summary A. Vision of disability 1. Represents an expansive vision of the capabilities of disabled individuals 2. Societal costs of discrimination against and isolation of disabled individuals far outweigh the economic costs of accommodation

B. Scope 1. Scope is vast 2. Over time the act can be expected to create major changes in the areas of employment, transportation, communications, access to public services and public accommodations, and in all other areas where the disabled have been subject to discrimination, isolation, and segregation

PowerPoint Lecture Slides •

V.

ADA Summary

Civil Rights Act of 1991 A. Background of the act 1. Rooted in heightened visibility of sexual harassment 2. The Clarence Thomas Supreme Court confirmation hearings of 1991 pushed sexual harassment to the top of the national agenda

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B. Definition of sexual harassment 1. The act identifies two types of sexual harassment 2. Overall, it is the “unwelcome sexual conduct that is a term of employment”

C. Quid pro quo sexual harassment 1. Occurs when submission to or rejection of the sexual conduct is used as a basis for employment decisions affecting the individual 2. Employers are strictly liable for the conduct of supervisory personnel in quid pro quo harassment suits 3. To show quid pro quo sexual harassment, it must be shown that a) The employee was subjected to unwelcome harassment in the form of sexual advances or requests for sexual favors b) The harassment complained of was based on sexual advances for sexual favors c) The employee’s submission to the unwelcome advances was an expressed or implied condition for receiving job benefits, or the employee’s refusal to submit to the supervisor’s sexual demands resulted in tangible job detriments d) The individual is a member of a protected class (an employee in a lower position in the power chain of command)

D. Hostile work environment 1. Sexual harassment accounts for the majority of cases brought under the act 2. In this case there are no tangible job benefits or detriments 3. The employee is subject to sexual remarks, innuendos, and physical acts 4. The employer is not strictly liable in such a suit, but becomes so if a complaint is filed with the employer or when the harassment is so pervasive that knowledge can be inferred 5. Elements that must be shown in this type of case include: a) Establishing that the harassment unreasonably interfered with work performance b) Establishing that the harassment would affect a reasonable person’s work environment 6. A “reasonable woman standard” developed in the courts early on acknowledged “the cumulative, corrosive effect of their work environment over time” and “the impact of the stress inflicted on her by the continuing presence of the harassing behavior”

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7. In hostile work environment sexual harassment cases, the conduct need not be directed at the individual who files the complaint; observing or knowing of the behavior may affect psychological well-being 8. The conduct/behavior complained of must be unwelcome and the victim’s perspective is what is relevant 9. Employees who feel sexually harassed should notify superiors or the employer directly 10. The employer has a duty to investigate the report, document the investigation, maintain confidentiality, and report back to the initiating complainant 11. Employer should speak with alleged victim, harasser, and witnesses and consider what action to take, and communicate results with all parties 12. Termination of alleged harasser is not mandatory and other remedial action may be taken, such as transfer 13. Some action must be taken if potential lawsuit is to be avoided 14. An employer has the responsibility to combat sexual harassment on the job regardless of who initiates the conduct: supervisors, co-workers, clients, or, in the instance of healthcare facilities, the patients

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Civil Rights Act of 1991

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Definition of Sexual Harassment

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Quid Pro Quo

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Hostile Work Environment

VI. Ethical Concerns A. Justice and fairness 1. How far must companies and health care institutions extend themselves to accommodate employees with special needs?

2. Should there be a clause that protects the disabled worker but only to the extent economically feasible?

B. Value people with disabilities 1. Differences should be embraced, not feared and excluded 2. Challenges the societal impulse to focus on what is perceived as the person’s disabilities

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C. Terminating employment 1. What effect will this decision have on family members who rely on the employee’s salary for their sustenance?

2. What effect will the decision have on the self-worth and morale of the worker him- or herself? What effect will terminating this employee have on other employees?

3. Needs to be weighed with the possible ethical harm that may occur if the employee is allowed to continue to work within the institution

D. Respect for all persons: health care institutions should allow equal opportunities PowerPoint Lecture Slides •

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Ethical Issues

Chapter 15 Nursing Management and the Nurse-Manager Objectives

1.

Analyze the concept of corporate liability, including the nursemanager’s role in preventing such liability.

2.

Define three separate issues concerning staffing from the aspect of the nurse-manager’s legal liability.

3.

Describe the goals of risk management.

4.

Define and describe principles and terms used in contract law.

5.

Describe the four elements of a valid contract.

6.

Define the statute of frauds and its relationship to contract law.

7.

Define types of contracts and give examples of when each type would be used.

8.

Identify and analyze three remedies for breach of contract law.

9.

Describe the purpose of alternative dispute resolution and give four means by which resolution may be performed.

10.

Describe how contracts may arise after employment.

11.

Identify some of the ethical concerns in the area of corporate and contract law.

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Introduction: As the role of the professional nurse expands to include increased expertise, specialization, autonomy, and accountability, nurses in management roles must develop additional understanding of a changing legal climate. This chapter explains key concepts underlying nursing management, including corporate liability issues, supervision of others, the temporary reassignment of nurses to units other than those with which they have primary expertise, and the role of agency nurses within health care settings. Additionally, nurses may undertake to practice in more independent settings and in independent roles. As nurses undertake employment opportunities that are more independent of hospital settings, understanding and knowing aspects of contract law become more imperative. Thus, this chapter also explores contract law, defining the various aspects of formal and informal contracts, and the chapter concludes with a discussion of the legal issues involved in contract law.

I.

Liability A. Liability from the perspective of a nurse-manager involves concepts such as: 1. Personal liability 2. Vicarious liability 3. Corporate liability

B. Corporate Liability 1. Corporate liability involves several aspects, and many of its facets have evolved through case law 2. Courts have applied doctrine where: a) Nurses have failed to serve as patient advocates b) Institutions have failed to act when a physician is incompetent or impaired c) Institutions have not conducted a criminal background check on physician

C. Nurse-managers play a key role in assisting the institution to avoid corporate liability; the nurse-manager: .

1. Is normally delegated the responsibility to ensure that staff remain competent and qualified 2. Ensures that personnel within his or her supervision have current licensure 3. Alerts corporate management if staffing levels are dangerously low, or an incorrect mix 4. Reports incompetent, illegal, or unethical practices to the proper persons or agencies

PowerPoint Lecture Slides

II.

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Liability

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Corporate Liability

Causes of Malpractice for Nurse-Managers A. Nurse-manager malpractice includes: 1. Negligent hiring 2. Negligent retention of incompetent or impaired employees 3. Inappropriate assigning of staff 4. Failure to supervise and educate staff 5. Failure to warn employees of potential problems with previously employed staff

B. Duty to Orient, Educate, and Evaluate 1. Nurse-managers have a duty to orient, educate, and evaluate 2. Respond to all allegations, whether by patients, staff, or other health care personnel, of questionable nursing care 3. Thoroughly investigate, recommending alternative methods for correcting situations 4. Include follow-up evaluations in nurses’ records

C. Failure to Warn 1. Failure to warn potential employers of staff incompetence or impairment is a new area of potential liability for nurse-managers 2. Information about suspected addictions, violent behavior, and incompetency of staff members is of vital importance to subsequent employers

D. Hiring Practices 1. Nurse-managers participate in the hiring of new employees

Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

2. Must be conversant with effective hiring practices and be careful of potential pitfalls 3. One pitfall is representations made about the position during the interview that may later lead to a breach of express or implied contract claims; they occur in: a) Prehiring interviews b) Contract negotiations c) Letters offering the position to an individual d) Employee handbooks 4. Representations may be made about: a) Future wages b) Benefit increases c) Terms of employment d) Cause-for-termination standards 5. Employee handbooks frequently create enforceable rights about specific disciplinary procedures 6. Hired staff should sign a form indicating that they understand the contents of the handbook 7. Oral comments made during the interview may be seen as binding on the employer; thus, during oral negotiations, the nurse-manager should: a) Avoid making promises about career opportunities. b) Use words such as “possible, “ “potential,” and “maybe” when describing career opportunities. c) Refrain from predicting future pay raises or benefits, and refer to past pay raises as merely a guide. d) Use words such as “now” and presently” when referring to benefits. e) Note that all employee benefit plans are subject to change.

PowerPoint Lecture Slides

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Nurse-manager Malpractice

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Duty to Orient, Educate, and Evaluate

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Failure to Warn

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Hiring Practices

III. Staffing Issues A. Adequate Numbers of Staff 1. Accreditation standards mandate that health care institutions must provide adequate staffing with qualified personnel 2. This includes not only numbers of staff, but also the legal status of the staff member and the staffing mix 3. The American Nurses Association (ANA) developed an understanding of the factors that contribute to the working conditions of nurses; their discussion included: a) Safe staffing levels b) Nurses’ educational degrees and level of experience c) Organizational resources d) And the work environment itself 4. The ANA panel concluded with three different models to address adequate staffing: a) Implement nurse staffing plans (with input from nurses, assuring that nurseto-patient ratios were based on patient need and other relevant factors). b) Have legislators mandate specific ratios. c) Require health care institutions to disclose staffing rations to the public or a regulatory body.

5. To ensure adequate numbers of nurses, many states are moving toward the concept of safe staffing 6.

Adequate and safe staffing will be assured if these criteria are met: a) The maintenance of the quality of patient care b) The quality of the organizational outcomes c) The quality of nurses’ work life

7. Courts look at professional judgment vs. rules; staffing problems never cancel the institution’s obligation to maintain a reasonable standard of care 8. Although the institution is ultimately accountable for staffing issues, nurse-managers may incur some liability due to their position 9. First, nurse-managers should have: a) Done what they could to alleviate the circumstance, e.g., approved overtime for adequate coverage

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b) Reassigned personnel among those areas they supervise c) Restricted new admissions to the area d) Listened to staff members about their competencies and which patients required special care e) Solicited information from staff members 10. If nurse-managers can show they acted appropriately, used sound judgment, and alerted supervisors, then the institution becomes potentially solely liable for staffing issues 11. Nurse-managers have a legal duty to notify the chief operating officer either directly or indirectly when understaffing endangers patient welfare 12. Guidelines for short-staffing issues include alerting hospital administrators and upper-level managers about concerns 13. Appropriate measures to alleviate short staffing include closing certain units, restricting elective surgeries, procuring additional temporary staff, and hiring new staff

B. Mandatory Overtime 1. If a hospital has no bargaining contracts, the employment is considered to be at-will employment; employee can be terminated at any time; nurse must work mandatory overtime to alleviate short staffing 2. Is seen as demoralizing, leading to increased absenteeism, burnout, and staff turnover 3. It is dangerous to patients because mistakes and oversights occur when a nurse is overworked and tired 4. Many states now prohibit it; protects them from disciplinary action for refusing to work overtime; describes a normal work schedule as 12 hours or less

C. Understaffing 1. Staff nurses also have responsibilities to ensure that understaffing does not persist; they should: a) Discuss issues and concerns with nurse-manager b) Fill out Assignment Under Protest forms c) Document specific problems related to the understaffing d) Document in a factual manner e) List positive actions that can be implemented to alleviate the shortage—longterm and short-term f) Work together with management in a constructive and positive manner to resolve chronic understaffing issues .

D. Float Staff 1. Staff members who are rotated from unit to unit 2. Has the responsibility to float in times of need 3. Units that are temporarily overstaffed usually float staff to units less well staffed 4. This can increase potential liability for nurse-managers by either placing a nurse with less familiarity in a situation or leaving an area understaffed 5. Also, it can create problems because nurses will be caring for patients that they may not be fully qualified for 6. Before floating staff from one area to another, the nurse-manager should consider: a) Staff expertise b) Patient care delivery systems c) Patient care requirements d) Nurses should be floated to a unit as comparable to their own as possible 7. Staff nurses need to be aware of patient abandonment 8. The nurses floated must negotiate before accepting the float assignment; they must accept responsibility for patient care 9. Reasons a nurse should refuse assignments include a lack of specific skill or competency and a lack of proper orientation so that patient safety is compromised 10. Open communication and cross training can alleviate potential liability for staffing issues

E. Agency Personnel 1. The use of agency (or temporary) personnel has increased liability concerns among nurse-managers 2. Ostensible authority and the borrowed servant doctrine may be employed by courts in deciding cases involving agency staff

F. Ostensible authority 1. Refers to doctrine whereby a principal becomes accountable for the actions of his agent 2. It is created when a person (agent) holds himself out as acting on behalf of the principal 3. Patient does not know if nurse works for hospital or other agency

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4. At law, lack of actual authority is no defense; if it appears to the patient that the employee is part of the institution, the law will consider the worker as an employee for the purpose of corporate and vicarious liability 5. The borrowed servant doctrine may also be employed by courts in deciding cases involving agency staff 6. The special master (hospital) must have complete control and direction of the servant (nurse) and the general master (employment agency) must have the exclusive right to discharge the employee 7. Nurse-managers should stress when using an agency/temporary personnel that they are given a brief orientation to institution policies and procedures 8. Also, be made aware of resource materials and documentation within the institution 9. A mentor/resource person should be assigned to the agency nurse

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Staffing Issues

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Mandatory Overtime

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Float Staff

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Agency Personnel

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Ostensible Authority and Agency Personnel

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Borrowed Servant Doctrine and Agency Personnel

IV. Policies and Procedures A. Risk Management 1. Is a process that identifies, analyzes, and treats potential hazards within a given setting 2. Steps of the risk management and nursing process are similar; assess, plan, intervene, evaluate 3. The object of risk management is to identify potential hazards and to eliminate them before anyone is harmed or disabled 4. Written policies and procedures fall within the scope of risk management activities and are a requirement of the Joint Commission 5. Such documents set the standards of care for the institution and direct practice

B. Factors that shape a successful risk management program include: 1. Visibility and accessibility of the risk management department staff .

2. Risk management guidelines that are clearly stated 3. Addressing multiple issues that may arise within a given institution and can be implemented by various levels of staff 4. Policies and procedures should be frequently reviewed by nurse-managers for compliance and timeliness

PowerPoint Lecture Slides

V.

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Risk Management

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Elements of a Successful Risk Management Program

Contract Principles A. Contract 1. Is a legally binding agreement made between two or more persons to do or to refrain from doing certain actions; must have four essential features: a) Promises or agreements must be made between two or more persons or entities for the performance of an action or restraint from certain actions b) All parties to the contract must have a mutual understanding of the terms and meaning of the contract. c) Compensation in the form of something of value in exchange for the action or inaction must be expressed by the contract terms d) The contract must fulfill a lawful purpose; there can be no enforceable contract for illegal acts or fraud 2. Contracts serve to provide one or more parties with a legal remedy if another party does not comply to the terms of the contract 3. Serve to minimize misunderstandings and offer a means for parties of the contract to resolve any disputes that may arise

B. Legal Elements of a Contract 1. Legally, contracts have four elements: offer, acceptance, consideration, consent

C. Offer 1. The person or the entity extends an offer to someone hired, or person who the contractual relationship is with 2. The person extending the offer is the offeror; the person to whom the contract is extended is the offeree

D. Acceptance .

1. The actual acceptance of or agreeing to the terms and conditions of the contract creates the contract 2. Acceptance may be in written form or verbal 3. The statute of frauds is the legal principle that a contract does not need to be written to be enforceable, with the exception of: a) Marriage b) The sale of land or goods over a certain dollar amount c) Suretyship (agreements that cannot be met) d) Agreements that cannot be performed within a 12-month period

E. Consideration 1. This element concerns the economic costs of an agreement 2. Consideration is what is negotiated between offeror and offeree—often a salary, or dollar figure per hour worked

F. Consent 1. Involves the mutual assent to the agreement, or actions that lead parties to the contract to reasonably believe that an agreement has been reached 2. Also involves competency of the parties to the contract to enter into a valid contract 3. Issues on which courts determine competency include age of the parties and mental capacity to understand, also the lawful purpose of the contract

PowerPoint Lecture Slides •

Contract Principles

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Four Essential Features of Contracts

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Purpose of Contracts

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Legal Elements of a Contract

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Offer

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Acceptance

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Consideration

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Consent

VI. Types of Contracts A. Formal Contract .

1. Is required by law to be in writing 2. Some formal contracts also require being written under seal, or written on special imprinted paper 3. All other contracts are considered simple contracts, whether written or oral

B. Oral Contract 1. Is equally as binding as a written one, though the terms of the contract may be more difficult to prove in court 2. Terms of contract are subject to memory and interpretations

C. Expressed Contract 1. Concerns terms and conditions that were specifically negotiated or discussed during the creation of the contract 2. They may be oral or written 3. Both parties have an opportunity to question or renegotiate the expressed terms at the time of entering the contract

D. Implied Contract 1. Concerns terms or conditions of the contract that each side anticipated were a part of the contract but that were never actually expressed or discussed

PowerPoint Lecture Slides •

Formal Contract

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Oral Contract

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Expressed Contract

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Implied Contract

VII. Termination of a Contract A. Contract Termination 1. Signifies that the terms of the contract have been fulfilled or that the parties to the contract agree to the contract’s end 2. A release implies that the contract has not been completely fulfilled, but there has been no breach 3. The offeree writes a letter of resignation and the employer-offeror releases the employee from further obligations of the contract .

B. Breach of Contract 1. Breach is essentially the failure of one or both of the parties to abide by the agreement and to meet the contract’s obligations 2. Remedies for breach include monetary damages, injunctions, and specific performance

C. Monetary damages 1. Are the usual remedy of contractual obligations 2. The underlying goal is to place damaged parties in as good a position as they would have been in if the contract had been fulfilled

D. Injunction 1. May be required by injured party 2. Is a court order requiring a person to refrain from doing a specific act

E. Specific performance 1. Is enforcement by the court to comply with the terms of the contract 2. It is seldom sought as morale and work performance become problematic

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Contract Termination

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Breach of Contract

VIII. Alternative Dispute Resolution A. Alternative Dispute Resolution 1. Is a provision in a contract as a means of resolving contract disputes 2. There are four means: mediation, arbitration, fact finding, and summary jury trial

B. Mediation 1. Allows the disputing parties to resolve differences while maintaining a professional relationship 2. Mediators are neutral third parties who facilitate disputes by assisting both parties to work toward an agreeable solution 3. Costs are shared by parties

C. Arbitration .

1. Involves the selection of a neutral third-party arbitrator who is knowledgeable in the area of contention and who renders a decision and award 2. This person is empowered to make final decisions that are binding to both sides of the dispute 3. Arbitration is used in collective bargaining disputes

D. Fact Finding 1. Is normally reserved for complex multistate and multiparty disputes 2. A neutral party is employed to sort out the various facts of the dispute and to assist the parties in knowing all the facts of the dispute, from the perspective of all the parties

E. Summary Jury Trial 1. An abbreviated, privately held trial that may be used to give both sides of the dispute an indication of the strengths and weaknesses of their case and the potential outcome should they decide to seek trial resolution

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Alternative Dispute Resolution

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Mediation

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Arbitration

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Fact Finding

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Summary Jury Trial

IX. Nurses and Contracts A. Contract Negotiations 1. Are an important skill for nurses 2. There is no negotiating power once the contract has been accepted 3. Understanding contracts can increase job security and satisfaction 4. Nurses may also contract with other agencies during the course of operating a private business

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Contract Negotiations

X.

Contracts that Arise After Employment A. Courts and Contracts 1. Courts have held that contracts may arise after employment

B. Employee Handbooks 1. Statements in employee manuals or handbooks may serve to create a valid contract and prevent the discharge of an employee, just as oral statements made to entice a person to take a position may create contract language 2. Employee handbooks can constitute a contract, giving enforceable rights to the employee. For this to happen, the following must be present: a) The handbook must be expressed in language that clearly sets forth a promise that can constitute an offer b) The handbook must be distributed to the employee, making him or her fully aware of it as an offer c) After the employee learns of the offer, he or she must begin to work or to continue to work

PowerPoint Lecture Slides •

Contracts that Arise After Employment

XI. Ethical Issues A. Mandatory Overtime 1. Overtime raises issues of safety of patient care and safety concerns for the nurse 2. Nurses should not engage in practices that can compromise patient outcomes 3. Though many states have outlawed mandatory overtime, nurses may continue to volunteer for overtime work assignments

B. Management Issues 1. Ethical concerns arise from how nurse-managers and nursing staff work with management regarding corporate liability 2. Failing to serve as a patient’s advocate may be considered negligence 3. Ensuring that the most capable and efficient person floats to a short-staffed area 4. Nurse-managers are challenged to ensure that staffing ratios are appropriate while observing cost measures

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C. Staffing Issues 1. As nursing shortages continue and become more complex, issues surrounding adequate and safe staffing are also emerging 2. Determining whether adequate numbers and mix of staff are present to adequately assure safe patient care can be very subjective

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Ethical Issues

Chapter 16 Delegation, Supervision, and Patient Advocacy Objectives 1.

Differentiate delegation from assignment.

2.

Discuss the concept of supervision in effective delegation.

3.

Discuss the role of effective discipline in delegation and supervision.

4.

Define and evaluate the role of unlicensed assistive personnel in relationship to professional accountability.

5.

Analyze the role of advocacy from a legal perspective.

6.

Describe some of the ethical issues that arise with delegation, supervision, and patient advocacy.

Introduction: Delegation, used throughout all of nursing history, has evolved into a complex, work-enhancing strategy that has the potential for greatly increasing the individual nurse’s legal liability. Before the early 1970s, nurses used delegation to direct the multiple tasks performed by the various levels of staff members in a team nursing model. Subsequently, the concept of primary nursing became the desirable nursing model in acute care settings, with the focus on an all-professional staff, requiring little delegation. By the mid-1990s, a nursing shortage had again shifted the nursing model to a multilevel staff, with a return of the need for delegation and supervision. .

A concept closely linked to supervision and delegation is that of patient advocacy. Advocacy, as noted earlier in Chapter 4 of this text, concerns the active support of a cause or issue that has importance. Advocates are those who defend and speak for such a cause or issue. These related concepts are presented in this chapter so that nurses understand the need to delegate and supervise wisely, promoting at the same time patient advocacy.

I.

Delegation, Assignment, and Supervision A. Delegation 1. Involves the transfer of responsibility for performance, tasks, and skills without the transfer of accountability for the ultimate outcome 2. Involves at least two people, a delegator and a delegatee, with the transfer of authority to perform some type of task or work 3. Tasks and procedures typically delegated to unlicensed assistive personnel: certified nurses’ aides, orderlies, assistants, attendants, technicians 4. Delegation is a process and a condition a) Process of delegating appropriate tasks and activities to others b) Condition of mutual understanding by both the delegator and the delegatee of the specific results expected and the means of attaining those results

B. Advantages of delegation: 1. Develops a more balanced workload, allowing the delegator the ability to concentrate and complete other nondelegable tasks 2. Promotes increased communications between health care providers and provides the opportunity for individuals to develop trust and respect 3. Promotes a team environment and potentially leads to greater productivity

C. Relationships, communications, and entrusting others 1. Multiple players are involved with different degrees of education and experience, and with different scopes of practice 2. Both the delegator and the delegate have shared accountability for certain tasks and duties

D. Delegation may be distinguished from assignment

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1. Assignment is the downward or lateral transfer of both the responsibility and accountability for an activity from one individual to another and occurs often in clinical settings between licensed personnel

E. Supervision 1. The active process of directing, guiding, and influencing the outcome of an individual’s performance of an activity

F. Direct supervision 1. Provided when the delegator is actually present, observes, works with, and directs the person who is being supervised

G. Indirect supervision 1. Occurs when the delegator is easily contactable, but does not directly oversee the interventions or activities performed.

H. Responsibility of the delegation and supervision 1. The delegator remains personally liable for the reasonable exercise of delegation and supervision activities 2. The failure to delegate and supervise within acceptable standards of professional nursing practice may be seen as malpractice 3. Liability may extend to direct corporate liability for the institution and also result in violations of federal statutes

I. Liability 1. Team leaders/nurse managers are not liable merely because they have a supervisory function 2. It is the degree of knowledge concerning the skills and competencies that is paramount 3. The doctrine of “knew or should have known” becomes the legal standard 4. Team leaders/managers have a duty to ensure that staff members under their supervision are practicing in a competent manner

J. Means of ensuring continued competency are: 1. Continuing education programs 2. Assigning the staff member to work with a second staff member to improve technical skills 3. Requiring the nurse in question to attend additional courses at institutions of higher education

K. Effective discipline .

1. Vital part of the nurse manager/supervisor’s role in supervision and delegation 2. To achieve high standards of nursing care there needs to be a formal discipline plan to be used when performance fails to meet these preset standards

PowerPoint Lecture Slides

II.

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Delegation

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Advantages of Delegation

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Delegation vs. Assignment

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Supervision

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Liability

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Means of Ensuring Continued Competence

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Effective Discipline

Principles of Effective Delegation A. Nurses’ obligations—ANA Nursing Scope and Standards of Practice 1. Responsible and accountable for individual nursing practice 2. Obligation to delegate appropriately 3. Delegation of tasks based on the needs and condition of the patient, the potential for harm, the stability of the patient’s condition, the ability of the delegatee, the complexity of the task, and the predictability of the outcome 4. RN who delegates retains individual liability for such delegation 5. Tasks or procedures should be delegated, not the entire nursing process 6. Delegation requires critical thinking and professional judgment 7. Ensure that the delegated tasks were performed correctly 8. Determine the amount of supervision required; nothing is gained if the amount of supervision needed exceeds the time saved by delegating the task

B. Five Rights of Delegation 1. Right task, right circumstances, right person, right directions or communication, and right supervision and evaluation 2. Because one can delegate a task does not mean that the task should be delegated 3. Is the outcome too unpredictable to be safely delegated?

4. Will delegating the task ensure the provision of competent and quality nursing care?

Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

PowerPoint Lecture Slides •

Principles of Effective Delegation

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Five Rights of Delegation

III. Unlicensed Assistive Personnel A. The rise of unlicensed assistive personnel (UAP) 1. Individuals not authorized under respective nurse practice acts to provide direct patient care 2. Cost-effective measure

B. Legal issues 1. UAPs work under the auspices and license of the institution, not the professional nurse 2. Organization must ensure that there is sufficient staffing so that professional staff members may appropriately delegate patient care tasks 3. Must also ensure that competencies for all direct patient care staff members are documented and accessible to professional staff 4. There should be an institutional mechanism for consistent and adequate orientation and training of UAPs 5. Responsible delegation and supervision of UAPs by nurses is examined during lawsuits for malpractice

C. Supervising UAPs 1. Supervision is one of the keys to ensuring that proper delegation with UAPs results in positive and competent patient care 2. Supervision involves a thorough understanding of the skill sets and contributions of UAPs and an appreciation of the division of effort 3. Effective supervision strategies when working with UAPs include: a) Know the UAP’s role expectations, competencies, strengths, and weaknesses b) Allocate sufficient time for supervision, making rounds, opportunities for the UAP to bring issues and concerns to the staff nurse, and evaluation of the progress of care delivery c) Develop and maintain clear channels of communication, including being available to UAPs as needed

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d) Adhere to patient care and work performance standards e) Give timely feedback, both positive and negative, and make time for sharing formative information with UAPs 4. Tasks delegated to UAPs must be within a delegable scope and not require licensure 5. Once delegated, nurse must ensure action was performed and performed correctly

D. When deciding to use UAPs in patient care units, nursing management should consider the following factors: a) The type of UAP support being planned and whether it will be primarily supportive or patient care delivery b) Previous experience and credentials that the UAPs need to be eligible for employment c) Assignment of responsibility for supervising the UAPs and whether each of these potential supervisors understand both the role and limitations of UAPs d) Type of staff mix that will be used in the institution e) Inclusion of professional and nonprofessional staff in work design efforts f) The specific tasks or responsibilities to be delegated g) The institution’s policies, procedures, job descriptions, and performance evaluations and their match with these revised roles and expectations h) Effective communication of these changes to other health care providers in the institution i) The types of communications to be available for staff to make their concerns known j) The type of evaluations to be done to assess the effectiveness of UAPs

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Unlicensed Assistive Personnel

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Legal Issues and UAPs

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Supervising UAPs

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Effective Supervision Strategies

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Delegation Considerations

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Factors to Consider When Using UAPs

IV. Patient Advocacy .

A. Advocacy: concerns the active support of a cause or issue that has importance B. Patient advocacy: concerns those individuals who defend and speak for such a cause or issue for patients in healthcare settings 1. The American jurisprudence system has continually enacted the role of nurses as patient advocates through court decisions, thus creating the legal duty of nurses to serve in this role 2. A nurse has a legal duty to advocate for the patient only when the patient’s working diagnosis itself indicates that inappropriate action is being taken or appropriate measures are being ignored 3. It is incorrect to say that a nurse’s duty to advocate can be used to open the deeper pockets of the hospital any time a physician does not timely diagnose a patient 4. Nurses do, though, have a duty to adequately assess the patient so that they can correctly advocate for the patient

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V.

Patient Advocacy

Ethical Considerations A. Delegating versus “dumping” tasks 1. Delegation has a specific framework that takes into consideration the best possible outcome 2. Dumping is the handing off of tasks and is not a process, nor is it a reciprocated relationship 3. Ethically, dumping does not allow for respect of the person or justice

B. Fair selection process 1. Monitoring of the number and quality of delegated tasks so that tasks are fairly distributed and no one becomes overburdened or favored 2. Involves ongoing communications, individual development plans, and accurate and up-to-date performance appraisals 3. Health care team shares tasks as equally as possible, including the delegation of less favorable tasks and patient assignments

C. Ethics of balancing concerns of patients and care providers 1. Ensuring fair delegation while patient needs remain the driving force .

D. Daily examination of delegation and supervision 1. Delegation and supervision are always an ongoing process and are more than the mere assignment and follow-up of tasks 2. Follow-ups and checkpoints to measure progress should be made 3. Development and growth of delegatees 4. Follow-up on providing necessary feedback to employees 5. Check points should be established to measure progress toward individual goals 6. Timely performance evaluations should be completed

E. Patient advocacy and moral courage 1. Nurses both support and protect patients, and to accomplish these obligations one needs moral courage 2. Moral courage: “the willingness to stand up for and act according to one’s ethical beliefs when moral principles are threatened, regardless of the perceived or actual risks” 3. Inherent in this process are the need for organizational structures that support moral courage, peers who both understand and support colleagues when they encounter situations that require moral courage, and support for nurses when they refuse to accept unethical situations in the workplace

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Ethical Issues

Chapter 17 Nursing in Acute Care Settings Objectives 1.

Describe the changing health care environment that has created increased responsibility for staff nurses.

2.

Describe the unique nature of the care of psychiatric and vulnerable patients.

3.

Differentiate two types of restraints, including the nursing management of the restrained patient.

4.

Describe the nurse’s responsibility in medication errors and the six means to avoid such errors.

5.

Analyze the potential liability for nurses when using technological advances and specialized equipment.

6.

Compare and contrast the nurse’s responsibility for assessing, monitoring, and communicating in clinical settings, including: • failure to listen to and communicate with patients

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• communicating with culturally and ethnically diverse individuals 7.

Discuss selected ethical issues that arise in acute care nursing settings.

Introduction: This chapter concerns legal issues as they pertain to nurses practicing within acute care settings, performing daily more highly skilled tasks and having responsibility for increasingly more acutely ill patients. No longer are sophisticated machines and technologies seen only in critical care areas, step-down units, or emergency centers. Patients in general medical and surgical units and in clinical settings may have a variety of machines, devices, and other highly technological assists. Thus, employees who work in acute care settings are encountering the need for greater skills and facing potentially more liability. This chapter addresses issues arising within acute care settings, giving guidance on competent, quality health care delivery.

I.

Acute Care Nursing A. Requires knowledge of complex illnesses and use of highly sophisticated machinery B. Liability can be avoided by recognizing potential problems, identifying the risk areas in individual practice settings, and remaining current in new technology, evidence-based practice, and the latest institutional policies and procedures C. Acute care has changed dramatically in the last 30 years

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II.

Acute Care Nursing

Patient Safety A. Patient Safety

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1. Annually more than 7,000 patient deaths occur because of medication errors 2. Responsibility for patient safety includes protecting patients from falls, injuring themselves or others, medication errors, faulty equipment, or unsafe conditions

B. Hostile patients 1. Exist in all areas of nursing, especially in those areas of health care settings that provide emergency and psychiatric care 2. Patients in these care settings may have unrealistic expectations of their treatment plans and may be described as hostile, angry, belligerent, aggressive, or noncompliant 3. Such patients present a safety hazard and increase the potential of liability for nurses 4. Possible interventions that assist in defusing anger and hostility: a) Spend additional time, not less time, with such patients, conveying that they are important b) Attempt to understand their anger, but do not become part of it by showing hostility in return c) Speak calmly and rationally d) Respect patients’ autonomy by addressing their concerns and ensuring that these patients are educated about their condition, what to expect from treatments and interventions, and alternatives to treatment e) Continue to practice patience

C. Workplace violence 1. Many states have enacted or adopted state initiatives to prevent workplace violence 2. Know the institution’s policy on dealing with violent patients, and defuse the situation according to the policy 3. The institution should have a policy of zero tolerance for violence in the workplace 4. Attend seminars on preventing violence in the workplace, and practice techniques for defusing such situations 5. Document the patients’ complaints or noncompliance and interventions taken to resolve the situation

D. In the event of a serious violent episode, follow these rules: 1. Position oneself at least four arm lengths away and to the side of patient so that the patient will not feel threatened and the nurse may safely exit if needed 2. Keep hands in sight and maintain eye contact 3. Avoid touching, pointing, challenging, or interrupting the patient; speak calmly, softly, rationally 4. Address patient by name .

5. Request permission to ask questions and listen intently as the patient responds 6. Acknowledge the patient’s feelings, and express understanding without blame 7. Remain calm and professional

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Patient Safety

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Hostile Patients

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Workplace Violence

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In the Event of a Serious Violent Episode

III. Psychiatric and Vulnerable Patients A. Minimizing legal risks and maximizing care 1. Nurses in all acute care settings must know how to recognize patients with psychiatric or emotional disturbances and how to address them 2. Psychiatric patients are recognized as a group of vulnerable persons, along with children, the elderly, the imprisoned, and the mentally challenged 3. Classified as vulnerable because they often are unable to recognize their unique circumstances, frequently are unable to speak for themselves, and therefore cannot assert their rights in health care settings

B. Suicide prevention 1. Not all self-destructive and depressed patients will be hospitalized in psychiatric units 2. Some patients respond to hospitalization with depression and suicidal thoughts, particularly the elderly, the recently anesthetized, and selected postpartum patients 3. A major goal published in the 2012 National Patient Safety Goals is to determine which patients are most at risk to attempt suicide as the patient is first admitted to an acute care setting

C. Nurses’ role in identifying suicidal or self-destructive patients 1. Listen carefully to comments spoken by patients; nearly all suicidal patients have some ambivalence and give some warning clues before self-destructive behavior is evident 2. Duty of care to patients identified as potentially suicidal or self-destructive increases because the foreseeable consequences to not meeting duty are obvious

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3. Nurses can counsel them, alert psychiatric clinical nurse specialists or psychiatric interveners, and implement precautions while they are recovering 4. Nurses should treat these patients and their families with concern, consistency, and caring behaviors

D. Signs of suicidal and self-destructive behavior 1. The majority of patients who commit suicide have a diagnosed mental disorder such as depression, a personality disorder, schizophrenia, alcohol abuse, or an organic mental disorder 2. Major depression and alcohol abuse are the most common psychiatric disorders associated with completed suicide 3. Physical illnesses most often associated with suicide include central nervous system disorders, chronic pain, autoimmune disorders, cancer, renal failure patients on dialysis, and patients with peptic ulcers 4. Older patients are more likely to commit suicide than are younger patients, although younger patients may be more verbal 5. Women make more suicide attempts, but men, by a two-to-one ratio, are more likely to succeed in their attempts 6. Most patients who commit suicide have a previous history of suicide attempts or prior hospitalization for self-destruction

E. Liability once the suicidal or self-destructive patient is identified 1. Courts have found that a hospital and its staff must exercise reasonable care to protect suicidal patients from self-harm 2. Nurses have an even greater duty to protect and advocate for patients who have acknowledged suicidal thoughts 3. No overt suicidal act is necessary for the nurse to initiate suicide precautions according to the facility policy 4. Courts find that hospital and staff have no liability for a patient’s suicide if the facts of the case support a holding that the standards of care were upheld 5. The patient’s mental diagnosis also needs to be considered when determining the potential liability for upholding standards of care 6. To protect patients who are not able to fully appreciate the need for hospitalization and observation, involuntary commitment may be used; a 72-hour hold in most states 7. Because involuntary hospitalization is forced on the person, courts have determined that an overt act is needed to show that the patient is a danger to himself or herself

F. Nursing interventions for patients at risk of suicide 1. Close supervision of the patient by staff and/or family members .

2. Removing potentially dangerous objects from the patient’s bedside and room 3. Ensuring that the patient takes all medications when given so that there can be no accumulation of medications to be taken all at once 4. Transferring the patient closer to the nurses’ station or to another unit as needed for closer observation and frequent checks 5. Transferring a rooming-in infant back to the nursery because postpartum depression may be seen not as self-destruction, but as destructive behaviors aimed at neonates 6. Ensuring that windows in the patient’s room cannot be opened, either completely or partially. (If possible, also ensure that window panes are made of sufficiently heavy glass so that they are not easily broken.)

7. Notifying the physician promptly of changes in the patient’s condition and administering medications as needed to prevent further depression or self-destruction 8. Restraining the patient as indicated

G. Warning of intent to harm 1. Failure to warn of a patient’s dangerous propensities when the victim is identifiable has long been accepted as a liability-producing situation by courts of law 2. The court outlines two criteria that must be shown for such liability to attach: a) Caregiver has reason to believe that the patient has the intent and ability to carry out a threat of physical harm to a clearly identifiable victim b) When a threat is verbalized the mental health caregiver must communicate to a law enforcement agency and, if feasible, communicate to each potential victim the nature of the threat, the identity of the patient or client making the threat, and the identity of each potential victim 3. There is no legal duty to inform family members of such threats if these family members are already fully aware of the patient’s violent tendencies and actions

H. Failure to protect from harm 1. Staff members have a duty to protect patients from harm, especially when vulnerable persons are left in circumstances in which they could be harmed 2. A court found that a patient may be restrained until a mental health evaluation can occur 3. If the patient completely lacks insight into the illness, such medications may be forced on the patient 4. Hospitals have also been held liable for patient elopement 5. Courts will not find liability if there were no foreseeable actions to place the staff members on notice that an elopement might occur

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I. False imprisonment/wrongful commitment 1. Psychiatric patients may voluntarily admit themselves for treatment, or if a person is unable to judge what is best, the state may voluntarily hospitalize the patient 2. Case law abounds on the issue of detainment and determination of patient competency 3. An Iowa court’s criteria for involuntary commitment include: a) Mental illness b) Lack of sufficient judgment to make responsible decisions with respect to hospitalization or treatment, due to the mental illness c) Likelihood of inflicting serious physical or emotional harm on self or others, or the inability to satisfy the person’s own basic physical needs d) All criteria must be met e) “Law is essentially the same in all jurisdictions, due to the United States Supreme Court’s nationwide standards for the constitutionality of state mentalhealth laws”

J. Level of care required 1. Due to their vulnerability, courts of law determine the care required for psychiatric patients 2. Restriction of their civil rights must be no more than is necessary to protect the individual 3. A court found that a court should try its best to defer to the dignity of the individual rather than take a strictly paternalistic approach 4. Patients must be placed in the appropriate setting based on the individual patient’s needs

K. Confidentiality right of mentally ill patients 1. Meant to protect and thereby encourage people who need help to access such help 2. Because of the stigma associated with mental illness, courts have stringently upheld the confidentiality rights of these patients

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Psychiatric and Vulnerable Patients

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Signs of Suicide

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Physical Illness Most Often Associated with Suicide

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Duty of Care and Suicide Prevention

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Failure to Protect

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False Imprisonment/Wrongful Commitment

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Level of Care Required

IV. Restraints A. Restraints 1. Both physical and chemical, are used daily in many hospital settings, from the critical care unit to the psychiatric unit 2. Restraints assist in preventing patient falls, discourage patients from disconnecting vital equipment or intravenous (IV) and feeding lines, and prevent patients from harming either themselves or others 3. Physical restraints can cause skin impairment, restrict respiratory status, strangulation, neurological damage, entrapment, and death 4. Chemical restraints may result in increased drowsiness, respiratory distress, hemodynamic instability, decreased competency and judgment, and confusion

B. Policies and procedures for using restraints 1. Almost universally mandated that hospital staff secure a physician’s order before applying restraints, and federal law prohibits chemical restraints in certain nursing home patients 2. Chemical restraints are only for supporting the patient’s medical condition, not for convenience or discipline 3. Many cases are filed for injury resulting from the improper use of restraints 4. Courts must decide whether the facility was at fault for failure to use bed rails appropriately, secure patients in wheelchairs, and/or apply restraints as needed 5. Facilities have also been held liable for failing to adequately assess patients following falls from wheelchairs and beds 6. A hospital is not liable for negligence in failing to raise the bed rails absent a doctor’s express medical order; does not apply in the instance where the hospital establishes a rule that bed rails are to be raised at all times for a particular class of high-risk patient

C. Guidelines (set forth by the Joint Commission) for the use of patient restraints; institutional policy should reflect the following: 1. Restraints require a physician’s order; an RN may initiate restraints on an emergency basis; there must be a verbal or written order within 12 hours of having restrained the patient .

2. Physician must examine and assess the patient within 24 hours of initiation of restraints and provide a written order in the patient’s medical record

3. If restraints are used for longer than 24 hours, the physician must reassess the patient and renew the order for restraints every 24 hours

4. A hospital patient in restraints must be monitored at least every 2 hours or more frequently when using nonbehavioral restraints

5. If behavioral restraints are used, the patient must be monitored at least every 15 minutes

6. Monitoring includes evaluation for injury due to and/or at the site of the restraints, nutrition and hydration needs, circulation and muscle/skeletal needs, vital signs, hygiene and elimination needs, physical and psychological status and comfort needs, and the patient’s potential to be discontinued from the restraints 7. Behavioral restraints may not be written as standing orders or “prn as needed” orders, but must be addressed in real time on an individual basis 8. Bed occupancy monitors greatly aid in early intervention and assistance

D. Documenting restraints 1. Why and how the patient was restrained, and what kind of restraints were used 2. Patient safety needs, such as skin integrity, circulation in the restrained extremities, respiratory status, nutrition and elimination needs, and elevation of the patient’s head before feeding should be noted 3. Record the patient’s behavior as well as time and date 4. Basic misunderstanding of what constitutes restraints and how nurses document the use of various devices (i.e., vest used to prevent falling vs. maintain alignment)

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Restraints

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Policies and Procedures for Using Restraints

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Guidelines for the Use of Restraints

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Documenting Restraints

Medication Errors A. Medication errors 1. Most common source of liability for nurses in all practice settings

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2. Number-one cause of mortality and morbidity in hospital patients 3. Medication errors are difficult to defend because they are most often easily averted 4. “Six rights” of medication administration: right patient, right medication, right dose, right route, right time, and right documentation

B. Incorrect patient 1. Relatively few lawsuits are filed that specifically address this one issue 2. Reasons for these few lawsuits include that computerized documentation systems are now being implemented that require the patient’s wristband to be scanned before medications are administered 3. Nurses verify the patient by requiring the patient to spell his or her last name before administering a medication 4. Many patients are able to tolerate one dose of an incorrect medication with few significant side effects

C. Incorrect dosage, medication, or incorrect route of administration 1. Nurses can administer medications in wrong doses or by a route other than that ordered 2. Often stemming from nurse’s lack of knowledge about the medication

D. Improper injection technique 1. Injections of medications or nonmedications in the wrong location

E. Incorrect time of administration 1. Irregular administration of medication can have serious health repercussions

F. Failure to note patient allergies 1. When nurses administer medications to which patients have already disclosed an allergy, the court will typically find against the nurse and the hospital 2. Nurses must notify the physician of possible allergic reactions to medication 3. Court may find that there is no liability for a medication reaction when the nurse accurately assesses the patient for a possible allergic reaction before giving the medication

G. Inaccurate knowledge regarding the medication and its side effects 1. One of the most important aspects of medication administration involves the nurse’s full comprehension of the medication’s target effects and possible side effects

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2. Standards of care require nurses not only to be able to administer medications correctly, but to understand the pharmaceutical actions of the medications, potential side effects, and contraindications 3. Nurses must also understand the interactions of medications because most patients receive more than three medications during a 24-hour period, and they must properly question the prescribing physician before administering the medication

H. Failure to document appropriately 1. Failure to document not only lessens the quality of patient care but also results in courts finding liability

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Medication Errors

VI. Patient Falls A. Patient falls 1. Remain second to medication errors in untoward events that may happen to patients 2. They may cause potentially serious injury or death 3. Patient falls are the most common types of cases filed against health care workers 4. Liability will be assessed against the nursing staff if it can be shown that the nurse used poor judgment in preventing a patient’s fall

B. Steps following a patient fall 1. When a patient falls, the first duty of care is to the patient 2. Notify the patient’s physician and management personnel after fully assessing patient 3. Completely document patient’s condition, treatment, or tests, who was notified and when 4. In some states families must be informed

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Patient Falls

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Steps Following a Patient Fall

VII. Technology and Equipment .

A. Advances in technology 1. Nurses must know the capabilities, limitations, hazards, and safety features 2. Equipment injuries occur primarily because of carelessness or misuse of equipment

B. Proper use of equipment 1. Conform use of equipment with manufacturers’ recommendations and hospital policy and protocols 2. Inspect the equipment and refrain from using equipment that is defective or not working properly 3. Nurses are expected to give quality, competent care despite equipment failures and faulty equipment 4. Nurses may have a legal duty to assess the equipment’s appropriateness

C. Safe Medical Devices Act of 1990 1. All adverse incidents related to medical devices must be reported to manufacturers, and in cases of death to the Food and Drug Administration, within 10 working days 2. The purpose of the law is to investigate and take action the first time an event occurs to prevent reoccurrence and harm to subsequent patients

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Liability and Technology

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Proper Use of Equipment

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Safe Medical Devices Act of 1990

VIII. Failure to Adequately Assess, Monitor, and Communicate A. Failure to monitor 1. Recent lawsuits involving a failure to monitor action all resulted in significant liability for the health care providers and institutions and comprised a variety of nursing care specialties and skills 2. May involve postoperative care, medications and their administration, monitoring sedated patients and vital signs

B. Failure to assess and notify 1. Causes of action for the failure to assess and notify members of the health care team of adverse findings have resulted in numerous recent court rulings

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2. It is most often seen in obstetrical cases 3. Nurses are faulted for failure to appreciate the significance of the change in the patient’s condition or what such a change in condition could signify 4. A responsibility in this area is the duty of the nurse to report suspected child abuse 5. A few cases have held that there is also a duty to treat, not just assess and notify 6. Nurses also have a responsibility to communicate with interdisciplinary health care members, particularly if there is a change in patient status

C. Failure to listen and communicate with patients 1. Patients and their families have successfully initiated lawsuits naming health care practitioners that might have been avoided if the health care provider had listened to the patient and taken into account what the patient was attempting to tell the staff member

2. Cases have involved incidents where patients had to wait too long for treatment, had their complaints and pain ignored, and had their request to call their specialist ignored

D. Communicating with culturally and ethnically diverse individuals 1. Patients and health care workers are culturally and ethnically diverse 2. English is not the primary language for approximately 60 million U.S. residents over the age of 5 3. Health literacy may also compound the health care provider’s ability to communicate effectively 4. Although it is an important aspect of health care delivery, limited case law exists showing the harm that can occur when English is not the patient’s primary language 5. State laws, TJC standards, and the American Hospital Association Bill of Rights for Patients have included provisions for ensuring that patient rights means being able to meet patients’ communication needs—particularly if they do not speak English fluently 6. Most institutions now provide interpreters for non–English-speaking patients, and nurses must make reasonable efforts to ensure that patients understand care, and discharge education and instructions 7. It is advisable to use hospital-provided interpreters whenever possible; when family members or friends interpret, issues concerning sensitivity and completeness of information may be compromised 8. Means that may be employed to ensure comprehension include having the patient repeat the material back to the nurse or asking questions and requiring that the patient respond

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9. As more non–English-speaking patients enter the health care delivery system, the profession may see additional causes of action based on their noncomprehension and failure to follow instructions because they did not understand the instructions

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Failure to Assess, Monitor, and Communicate

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Communicating Across Culture

IX. Failure to Act as a Patient Advocate A. Nurses owe a higher duty to patients than merely following physician’s orders B. The role of nurses as patient advocate is to develop and implement nursing diagnoses, exercise good patient judgment, and monitor the care given to patients by physicians as well as peers PowerPoint Lecture Slides •

X.

Failure to Act as Patient Advocate

Patient Education A. Early discharge and the importance of communication 1. Crucial need for early and ongoing discharge planning and education of patients 2. Until the nurse is satisfied that the patient teaching has been understood and the patient can perform the task, the nurse has not met the standard for patient teaching 3. Nurses have a duty to protect patients, to question orders that are inappropriate or likely to cause harm to the patient 4. If speaking with the attending physician does not result in the desired outcome, then nurses must inform their supervisors and mid-management personnel

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Patient Education

XI. Ethical Issues in Acute Care Settings

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A. Right of the person to be free from restraint and allowed his or her freedom 1. Health care providers are challenged to find ways to prevent injury to the person while enhancing his or her quality of life 2. With elderly patients who are sometimes confused but generally fairly aware, restraints may be seen as demeaning to the person

B. Respecting patients who present because of possible suicide or because of self-harm 1. Unfavorable attitudes toward these patients may prevent seeking care and/or cause substandard care to be delivered 2. A study found that mental health nurses experienced moral distress because of their inability to adequately provide quality care for their patients

C. Finding the most appropriate actions to implement in patient care settings 1. Differences of opinion among health care providers regarding the most appropriate course of treatment and care for patients 2. Conflict between the nurses’ value systems and those of the organization

D. Medication errors and the nonreporting of such errors 1. Perception that the error was relatively insignificant, or that it takes too much time to report errors and complete required paperwork, or nurses fear that reports will be used against them at future evaluations 2. Nonreporting may result in the providers scrambling to further treat the patient because they are clueless about the cause of the patient’s presenting signs and symptoms

E. Patients believe that the care provided is the most competent and complete care available 1. The principle of beneficence means that actions will continue to meet or exceed standards of care 2. An ethical issue concerns standards of care and the possible injury that often results from substandard care

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Ethical Issues in Acute Care Settings

Chapter 18 Nursing in Ambulatory and Managed Care Settings Objectives 1.

Describe the area of ambulatory nursing, including its emergence, the role of risk management, and the focus on patient education in ambulatory nursing.

2.

Discuss the field of telehealth and telenursing, including potential for growth as well as legal issues involved in delivery of health care via telehealth.

3.

Analyze the nurse’s role in caring for victims of violence.

4.

Describe the nurse’s legal liabilities when volunteering nursing services, including donating health-related advice to consumers.

5.

Define managed care, including health maintenance organizations, preferred provider organizations, point-of-service plans, and indemnity plans.

6.

Describe four types of health maintenance organizations.

7.

Describe the patient-centered medical home model and its role in transforming how primary care is organized and delivered.

8.

Discuss the Employment Retirement Income Security Act and its application in managed care settings.

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9.

Discuss the Emergency Medical Treatment and Labor Act and its application in managed care.

10.

Define antitrust laws and explain their importance to registered nurses in all practice settings.

11.

Enumerate patient rights that arise as part of managed care.

12.

Describe some of the ethical concerns that arise in ambulatory and managed care nursing.

Introduction: The health care delivery trend toward more careful management of scarce health care resources has placed new emphasis on primary prevention and has led to increased opportunities for professionals in traditional ambulatory care settings. These ambulatory settings include traditional clinics, freestanding surgicenters, nurse-managed and nurse-run clinics, and telenursing, among other innovative settings for advanced quality health care. Additionally, the continued growth of managed care as a system for health care financing and delivery creates nursing challenges and opportunities. The restructuring of the health care system has resulted in many cost-containment measures, including the silent replacement of the registered nurse (RN) with unlicensed assistive personnel and other ancillary personnel. Within many managed care organizations, nurses have identified opportunities to achieve original managed care goals, ensuring safe, quality health care for patients. They have also learned to avoid many of the potential legal challenges in managed care. This chapter explores legal issues involved in both settings, considerations for nurses who donate their services and the potential legal aspects of nursing in managed care organizations.

I.

Ambulatory Care Nursing A. Delivered outside traditional acute care and long-term care settings

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B. Roles for nurses: nurse managers and administrators, staff nurses, nurse educators, nurse practitioners, nurse researchers C. American Academy of Ambulatory Care Nursing (AAACN) mission to advance profession through collaborative leadership, innovation, partnerships among providers D. McGill v. Newark Surgery Center (2001): court ruled that in emergencies hospitals must take reasonable steps to aid a nonpatient; blood bank cannot refuse to supply blood to patient in need E. Patient Education 1. Emphasis on disease prevention, health promotion 2. Nurses must remain current in knowledge 3. Must blend teaching styles to fit learner needs and objectives, use culturally competent models 4. Nursing follow-up telephone call useful for education after surgery

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Ambulatory Care Nursing

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American Academy of Ambulatory Care Nursing

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Patient Education

Distance Delivery of Health Care A. Telehealth: uses of telecommunication for provision of long-distance health care, education, and health administration B. For situations when face-to-face meeting is impossible or difficult C. Telemedicine: medical clinicians provide care via telecommunications D. Telepresence: combines robotics and virtual reality; surgeon can manipulate surgical instruments at remote sites E. Telenursing: use of telecommunications to conduct nursing practice F. Video teleconferencing: health care providers at various sites can discuss patient status, discuss new interventions and innovations, consult with patient and family members

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G. Can help alleviate inadequate access to health care for certain populations H. Many innovative uses of telehealth are under development today I. Legal issues: security and confidentiality issues, licensure, practice standards 1. Computer Sciences and Telecommunications Board (CSTB) studies and works on more effective means of ensuring confidentiality 2. Professional licensed in one jurisdiction may practice in several jurisdictions 3. Case law centers around consultation given by nurses to patients who telephone requesting health care advice

J. Area of concern about who is qualified to give health advice; cases filed against unlicensed giving nursing advice over phone PowerPoint Lecture Slides •

Telehealth

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Telenursing and Telemedicine

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Methods of Telehealth

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Renewed Interest in Telehealth

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Telehealth Innovations

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Legal Issues of Telehealth

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Telehealth Standards

III. Violence A. Nurses frequently care for victims, perpetrators, and witnesses of physical and psychological violence B. Risk for violence in the workplace, affects nurses ability to be productive members C. Verbal abuse or workplace bullying reported by 35% of workers in the United States D. Reduction of violence targeted as major goal of United States National Health Plan E. Domestic violence: affects significant portion of population

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1. Long-term effects: permanent disabilities, sexually transmitted diseases, complications of pregnancy and birth, depression, post-traumatic stress disorder, alcohol and drug abuse, and suicide 2. Mandatory reporting laws for child and elder abuse in all states; adults are not considered as vulnerable under law a) Nurses must know appropriate method for reporting to protect patient and provider 3. Nurses are becoming better informed on how to approach issue; education encourages addressing issue; in the past, avoidance of hard questions was customary 4. Patient education critical: of rights, possible safe harbors, better career opportunities

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Violence

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Domestic Violence

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Addressing Domestic Violence

IV. Volunteer Services A. Donated services do not fall within state nurse practice act; legal status not well defined B. Responsibilities and professional actions not lessened when donating professional services C. Donated services still can bring about possible lawsuit D. State board of nursing may subject nurse to disciplinary action E. Duty of care owed to patient is the same as in formal health care settings F. To protect oneself legally: 1. Do not administer medication or treatment without doctor's order 2. Be informed of professional liability insurance policy for gratuitous services 3. Systematically keep records 4. Know state's Good Samaritan laws 5. Know provisions of applicable nurse practice act

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V.

Volunteer Services

Donating Health-Related Advice A. No mandatory duty to donate advice, once initiated, must be competent and safe B. Unlikely but possible lawsuit for casual advice that is below nursing and community standards C. Nurse should refrain from giving advice if outside specialty area D. Advice should be within scope of nursing practice, not involve medical diagnosis or interfere with physician-patient relationship E. Always acceptable to suggest that person consult with his own physician F. Refrain from reassuring that there is nothing to worry about when casually asked about serious disease or symptom

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Donating Health-Related Advice

VI. Managed Health Care Organizations (MCOs) A. Health care system that integrates financing and delivery of health care services to covered individuals, most often by arrangement with selected providers B. Offer benefits, standards for selection and ongoing assessment of providers, financial incentives for members to used providers C. Objections: limitations on providers, requirements for prior authorization to obtain services D. Usually prepaid or capitated payment E. Health maintenance organizations (HMOs) 1. Comprehensive health care financing and delivery organizations, provide or arrange for provision of covered health care services to a voluntary group of enrollees at a fixed periodic payment through a panel of providers 2. Most highly regulated 3. May be sponsored by federal government, medical schools, hospitals, employers, labor unions, consumer groups, insurance companies, hospital medical plans .

4. Staff model: health care providers are salaried employees of HMO 5. Independent practice association model: separate legal entity contract with HMO for negotiated fee 6. Group model: health plan contracts with multispecialty group; providers are employed by group for salary 7. Network model: contracts with two or more independent group practices or practice associations; members pay fixed monthly fee

F. Preferred provider organization (PPO) 1. Contracts with independent providers for negotiated, discounted fees for members; enrollees often allowed benefits for nonparticipating providers’ services, usually with significant co-payments 2. Seen as model with most current growth 3. Majority of states have some regulation requirements

G. Point-of-service (POS) (a.k.a. HMO–PPO hybrid or open-ended HMO) 1. Provide set of health care benefits and offer a range of health services; subscribers are given the option of using either the managed care program or out-of-plan services 2. For convenience of enrollees who travel; are often away from usual provider 3. Little state regulation

H. Indemnity plans (also known as fee-for-service) 1. Allow patients to access their provider of choice and the provider files a claim to the insurance company, which then reimburses the provider for the service.

2. Managed only by the individual patient, typically the patient pays a portion of the costs 3. Regulated in all states

I. Utilization review: third-party payer evaluates medical necessity of course of treatment 1. Can happen prospectively, concurrently, or retrospectively 2. Case management: considering how to lower costs without negatively affecting overall care of patient 3. Must be done ethically and with caution; liable under same standards as insurance company for refusal of out-of-network providers

J. Health Care Quality Improvement Act of 1986: provides persons giving information to professional review bodies and those assisting in review activities .

limited immunity from damage that might arise as a result of adverse decisions affecting staff privileges 1. All involved must aim to improve quality of health care; must be reasonable effort to obtain facts 2. Enacted in response to multiple antitrust suits against participants in peer-review and credentialing activities

K. Internal quality review documents cannot be used against a hospital in a lawsuit L. Center for Medicare and Medicaid Services (CMS) in 2003 starts requiring quality assessment and improvement programs for participating hospitals M. Ethics in Patient Referral Act (1989) 1.

Prohibits physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory

N. National Committee for Quality Assurance (NCQA) 1.

Independent nonprofit health maintenance organization accrediting agency composed of health quality experts, employers, labor union officials, consumer representatives

O. Managed care in theory effectively delivers quality care; in practice is a means for financing care, not of organizing patient care; issues arise from cost-saving measures PowerPoint Lecture Slides

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Managed Health Care Organizations

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Health Maintenance Organizations

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Types of HMOs

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Preferred Provider Organization

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Point-of-Service

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Indemnity Plans

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Utilization Review

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Health Care Quality Improvement Act of 1986

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Quality Assessment and Performance Improvement Program

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Ethics in Patient Referral Act of 1989

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National Committee for Quality Assurance

VII. Patient-Centered Medical Home Model A. Newer model built around strong primary care focus B. Care is patient centered, comprehensive, coordinated across all elements of broader care system; accessible with shorter waiting times and electronic access; system-based approach to quality and safety C. Generally positive response PowerPoint Lecture Slides •

Patient-Centered Home Model

VIII. Legal Issues Surrounding Managed Care A. Employment Retirement Income Security Act (1974): designed to ensure that employee welfare benefit plans conform to uniform body of benefits law 1. Shields HMOs from liability for questionable health care 2. Was not intended to bar lawsuits against HMOs, health insurers, or health plans; now acknowledgment that lawsuits may go forward regarding patient management decisions

B. State legislation active in promoting greater accountability of HMOs C. Gag rules and end-of-year profit sharing 1. Gag rules: prevent providers from offering certain more expensive therapies, restricting service to the complaint about which the patient presented to HMO a) Health care providers prevented from informing patients about concomitant illnesses 2. End-of-year profit sharing (performance bonus): incentive given to reward health care providers for keeping costs at a minimum 3. Both have potential for substandard treatment 4. In 1998, federal government banned gag clauses in Federal Employees Health Benefits Programs 5. Most states now outlaw both practices

D. Standards of Care 1. Duty to provide quality care

E. Emergency Medical Treatment and Labor Act (1986) .

1. Establishes right of access to medical care regardless of one's ability to pay 2. Applies to all health care institutions that have Medicare provider agreements in effect 3. Examination and treatment for emergency medical conditions and women in labor must be provided 4. Medical screening required when patient requests examination or treatment in emergency department 5. Necessary stabilizing treatment for emergency medical conditions and labor is required 6. Transfers restricted until patient is stable (with exceptions) 7. "Appropriate transfer" when transferring hospital provides treatment within its capability, and receiving facility has available space and qualified personnel to take patient 8. "Emergency medical condition" manifests acute symptoms of sufficient severity such that the absence of immediate medical attention could result in jeopardizing health of patient, serious impairment of bodily functions 9. "Stabilize" means to provide treatment to arrive at condition in which no material deterioration of the condition is likely

F. EMTALA: New Regulations: additional regulations for emergency department policies 1. Expanded definition of emergency patient to include persons that a reasonably prudent layperson considers as having an emergency 2. If patient refuses examination or treatment after understanding risks and benefits, the record must describe what was refused, reasonable steps taken to get refusal in writing 3. Two EMTALA amendments in 2008: the first created community call plan; the second extends good faith requirement to specialty facilities to accept transfer of unstable patients if they have capacity to treat them 4. Hospital registration procedures for persons presenting in the emergency center are allowable so long as these inquiries do not discourage individuals from remaining, delay triage, initial screening, or necessary stabilizing medical treatment 5. “In EMTALA cases, the courts do not second guess the professional judgment of nurses and doctors who screen and treat patients. . . . The question is whether the patient was given the same care and attention a patient would get with the same history, signs, and symptoms” court from Scott v. Dauterive Hospital Corporation (2003) case

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6. Patient does not need to be stabilized before transfer if initial hospital lacks full availability to treat patient's condition and transfer would be more beneficial to patient 7. Institution does not have to admit a patient when it does not have needed services at the facility

G. Antitrust issues in managed care 1. Health care delivery systems in United States are becoming dominated by large forprofit centers 2. Antitrust laws: contain restrictions for exclusive contracts, resisting utilization reviews, and collusion; overall goal to promote competition while creating efficient markets 3. Collusion from mergers could cause collective resistance to emerging costcontainment pressures from third-party payers; conspiracies to boycott certain insurance companies that offer competitive prices; refusal to undergo utilization review programs or provide information needed by third-party payers 4. Merger of Hospital Corporation of America (HCA) with Hospital Affiliates International (HAI) and Health Care Corporation (HCC): court found that merger violated antitrust laws, HCA forced to divest two acquired hospitals 5. Nurses must examine new organization’s cost-containment measures, prevent compromising profession 6. Antitrust laws strengthen use of mid-level practitioners

H. Patient Rights 1. Concerns: patients frequently cannot select their own practitioner, have no means of questioning status of person providing care; rates of complications of practitioners or settings not available; preapproval must be obtained for most treatments 2. Advisory Commission on Consumer Protection and Quality in the Health Care Industry, appointed in 1997 by Clinton to recommend measures to protect consumers and workers in health care and draft a consumer bill of rights 3. Eight areas of consumer rights: information disclosure, choice of providers and plans, access to emergency services, participation in treatment decisions, respect and nondiscrimination, confidentiality of health information, complaints and appeals, consumer responsibilities 4. Enforced through EMTALA, provision of the Health Insurance Portability and Accountability Act (HIPAA, 1996) 5. Standards enacted by Health Care Financing Administration (HCFA) in 1999:

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a) Notification of rights, exercise of rights in regard to care, privacy and safety rights, confidentiality of records, freedom from restraints that are not clinically necessary, freedom from seclusion that is not clinically necessary 6. Some states have laws addressing patients' rights to information about health care providers, but not federal legislation

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Employee Retirement Income Security Act of 1974

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Gag Rules

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End-of-year Profit Sharing

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Emergency Medical Treatment and Labor Act of 1986

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EMTALA: New Regulations

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EMTALA Court Rulings

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Antitrust Issues

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Health Care Reform

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Collusion

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Managed Care and Patient Rights

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Advisory Commission on Consumer Protection and Quality in the Health Care Industry

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Consumer Rights

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Health Care Financing Administration

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Patient Rights

IX. Ethical Issues in Ambulatory and Managed Health Care A. Concerns of telenursing: inability to fully assess patient, need for certification of additional credentialing B. Concerns of managed care models: cost-cutting measures interfering with beneficence C. Concerns of violence: dilemmas when requested not to report violence, caring for perpetrators of violence, concerns of violence despite patient's denial of it PowerPoint Lecture Slides • .

Ethical Concerns in Ambulatory and Managed Health Care

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Chapter 19 Public and Community Health Care Objectives 1.

Briefly describe the historical beginnings of public and community health nursing.

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Describe the various settings in which public and community health nurse are employed, including: home health care nurses parish nurses school health nurses occupational health nurses correctional nurses disaster nursing

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Enumerate the potential legal liability for nurses in these public and community health settings.

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Describe ethical issues that are involved in public and community health nursing

Introduction: As nursing emerged beyond the more traditional acute care setting, new and innovative opportunities opened for professional nursing in a variety of public and community health settings, including parish nursing, school .

health nursing, occupational nursing, home health nursing, and nursing in correctional settings. Although hospice care nursing may be covered within the auspices of community health nursing, nursing in this health care setting is incorporated into the last chapter of this text. All public and community health care settings offer new and exciting roles for nurses, including more autonomous roles, and all have potential liability for the nurses practicing in the roles. This chapter presents potential legal liability for nurses who are employed in public and community health settings.

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Overview of Public and Community Health Nursing A. Public health nursing (also known as community health nursing) 1. Nurses who focus primarily on the prevention of illness and the promotion of health in nonacute populations

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II.

Public Health Nursing

Federal Statutes A. Social Security Act of 1935 1. Greatly affected the country’s health and welfare systems 2. Established a system of federal benefits for the aged population 3. Enabled states to make provisions for aged and blind persons, dependent and crippled children, maternal and child welfare, public health, and administration of state unemployment compensation laws.

4. Programs were defined as contributory: financed through taxation and individual contributions, and assistance or noncontributory, financed only through taxation 5. Contributory programs have offered more comprehensive benefits than assistive programs 6. Medicare and Medicaid were added to the act in 1965 7. Through Medicare-reimbursable services, regulations specify which clients nurses see, what type of care is provided, how the care is provided, and how long the care is provided

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8. Recent provisions to Medicare benefits include the addition of alcohol detoxification facility benefits in 1980, hospice reimbursements in 1983, and a 1990 amendment allowing Medicare Part B premiums to be paid for eligible beneficiaries

B. Public Health Service Act of 1944 1. Consolidated all existing public health legislation under one law and became the major piece of health legislation for the country 2. Provides a variety of resources and services including the National Institutes of Health, and programs and services for the prevention and control of a number of diseases 3. Services are administered by several federal and state agencies 4. The implications of this act are extensive for nursing 5. It provides funding for in-services to at-risk aggregates in the community 6. Financially covers at least some aspect of nursing in all acute care, home health care, and institutional settings 7. It provides funding for nursing education and funding for all levels of disease prevention: primary, secondary, and tertiary

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Social Security Act of 1935

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Public Health Act of 1944

III. Legal Responsibilities A. Public and community health nursing 1. A systematic process by which the health care needs of a population are assessed in order to identify subpopulations, families, and individuals who would benefit from health promotion or are at risk of illness, injury, disability, or premature death 2. Community and public health nurses care for persons in clinics, schools, individual homes, and the workplace 3. The goal of public health nursing is to improve the health of the public as a whole by systematically providing appropriate nursing interventions to communities, families, and individuals

B. History of public and community health nursing 1. Dates back to the turn of the twentieth century in the United States with earlier roots in various traditions of medicine .

2. Lillian Wald, who is credited with creating the title “public health nurse” 3. Dorothea Dix, who led the fight for competent nursing in prisons and mental health institutions 4. Mary Breckenridge, who founded the Frontier Nursing Service, the first organized midwifery service in the United States

C. Public and community health nursing practice 1. A plan for intervention is developed with the community to meet identified needs that takes into account available resources and the range of activities that contribute to health and the prevention 2. The plan is then implemented effectively, efficiently, and equitably 3. Evaluations are conducted after the plan has been implemented to determine the extent to which the interventions have had an impact 4. Results of the entire process are used to influence and direct the delivery of care, deployment of health resources, and development of local, regional, state, and national health policy and research to promote health and prevent disease 5. Nurse services include monitoring of health status, disease case identification, community education, community organization, policy development, health regulation enforcement, participation in organized education sessions, evaluation of the effectiveness of programs as implemented, and participation in research

D. Home health care 1. Home health care nursing emerged as a key component of health care in the 1990s by providing support, treatment, and education so that patients may be successfully managed in their homes 2. In 2011 there were more than 3,000,000 beneficiaries of home health care 3. Fastest growing field of nursing and refers to the delivery of health services for the purpose of restoring or maintaining health in the home 4. A variety of personnel may be involved in delivering these services, including all levels of nurses 5. Their care ranges from assistance with activities of daily living to complex, highly technical nursing skills 6. Activities provided by these nurses include acute, continuing, preventative, and palliative care 7. Services include skilled professional and paraprofessional services, custodial care, pharmacy services, and delivery and use of durable medical equipment (e.g., ventilators, external feeding pumps, oxygen concentrators)

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8. The most commonly seen diagnoses for patients cared for in the home setting include diabetes, essential hypertension, heart failure, chronic ulcers, and osteoarthritis 9. To be covered, the services must be medically indicated and necessary to maintain or improve health care of the recipient

E. Omnibus Budget Reconciliation Act of 1986 1. Substantially changed the federal law relating to participation of home health care agencies in the Medicare program 2. Clients must be screened for eligibility, and the signatures of clients must be witnessed after client rights and legal contracts for service have been explained to them 3. Important provisions of the statute are an extensive listing of consumer rights a) The right to be fully informed in advance about the care and treatment to be provided by the agency b) The right to be fully informed in advance of any changes in the care or treatment to be provided by the agency that may affect the individual’s well-being, c) The right to participate in planning care and treatment or changes in care or treatment 4. Act also enumerates the right of individuals to confidentiality of clinical records, the right to have one’s property treated with respect, and the establishment of a grievance hotline to be established by each state 5. Act sets strict criteria of qualifications for home health care aides who have a predominant role in direct, hands-on contact with clients

F. The Patient Self-Determination Act of 1990 1. States that agencies receiving federal funds must inquire whether patients admitted for their services have a living will or special directive 2. If not, the agency must provide assistance in completing such directives

G. Additional legislation that took effect in 1999 applies to home health care agencies 1. These changes in legislation are an integral part of efforts to achieve broad-based quality improvements through federal programs and in the measurement of that care 2. Each patient must receive a patient-specific, comprehensive assessment that identifies the patient’s need for home health care and meets the patient’s medical, nursing, rehabilitative, social, and discharge planning needs 3. Home health agencies must use a standard core assessment data set, the Outcome and Assessment Information Set (OASIS), when evaluating adult, nonmaternity patients 4. The data required to be collected on the OASIS include: .

a) Clinical record items b) Demographics and patient history c) Living arrangements d) Supportive assistance e) Sensory status f) Activities of daily living g) Medications h) Equipment management i) Emergent care j) Data items collected at inpatient facility admission or discharge only 5. Updated in 2005 to include the provision that encoding and transmission must be done electronically when satisfying federal reporting mandates

H. Patient assessment under OASIS 1. Under OASIS, home health agency must continue to comply with physicians’ orders 2. Verbal orders usually must be transferred into written format, signed, and dated with receipt of the registered nurse or qualified therapist responsible for furnishing or supervising the ordered services 3. Initial assessment visit must be within 48 hours of referral, or patient’s return home, or the physician-ordered start-of-care date 4. The comprehensive assessment must be completed within 5 days after the start of care 5. The initial assessment visit must be conducted by a registered nurse to determine the immediate care and support needs of the patient and to determine eligibility for Medicare 6. If the service ordered is rehabilitative therapy, then the assessment visit can be performed by a skilled rehabilitation professional 7. Comprehensive assessment must include a review of all medications the patient is currently using to identify any potential adverse effects and drug reactions, including ineffective drug therapy, significant side effects, significant drug interactions, duplicate drug therapy, and noncompliance with drug therapy 8. Comprehensive assessment must be updated and revised frequently, but not less frequently than: a) Every second calendar month beginning with the start of care date b) Within 48 hours of a patient’s return from hospital admission of 24 hours or more for any reason other than diagnostic tests .

c) At discharge 9. Electronic reporting of data from the OASIS is a condition of participation for home health agencies 10. Guidelines must be followed for the electronic transmission of the OASIS data set 11. Guidelines must be followed by the Health Care Financing Administration (HCFA) OASIS contractor in collecting and transmitting this information to HCFA 12. There are mandates concerning the privacy of patient-identifiable information generated by the OASIS 13. All individuals receiving home care services must be informed of their rights 14. The National Association for Home Care published a model patient bill of rights in 1996

I. State legislation 1. State laws applying to home care include protection of uninsured persons, abused persons, or homeless persons; rights of renters or tenants; and laws that protect individuals from eviction under certain circumstances 2. Caregivers should be aware of the state abuse laws, knowing how and when to report suspected abuse 3. Family law issues, such as the right to decide for another, rights of guardians, and consent to perform procedures on minors or incompetent persons, vary by state

J. Standing orders 1. Nurses should have written standing orders in case of emergencies or unexpected needs of clients because of the relative isolation of home care 2. Some agencies prefer protocols that are jointly written by nursing and medicine 3. Both standing orders and protocols must be specific about their implementation and approval by agency physicians 4. If verbal orders are used, the home health care nurse should document the orders and have the physician co-sign them as soon as practical; important to prove nurse was following physician’s orders in case of injury

K. Contract law 1. Home health nurses must honor contracts made with clients 2. Contracts include both written and oral agreements of understanding between the agency and the receiver of health care services 3. Contracts include the advertised services as well as signed formal contracts 4. Provisions that should be included in all contracts include: .

a) Provider’s and client’s respective roles and responsibilities b) Length, type, frequency, and limitations of services c) Cost and payment schedules d) Provisions for informed client or surrogate consent for specific interventions on an initial and continuing basis 5. Be careful of promises that one may not be able to meet, such as a provision in a brochure ensuring that clients will be evaluated within 12 hours of contacting the agency 6. Agency’s legal duties to the client stem from the legal relationship formed between the two parties 7. Medicare and The Joint Commission (TJC) standards require that a home health care agency accept clients based on a reasonable expectation that the patient’s needs can be adequately met by the agency 8. New referrals must be carefully evaluated from a referring physician aspect and a nursing aspect to ensure that: a) The client is medically stable or that a medically unstable condition, as with the dying client, can be managed b) There is a desire for home care c) The needs of the client can be safely and effectively met by the home care agency d) Satisfactory financial arrangements can be made 9. Client education and informed consent issues as well as client options and other available resources and services should be discussed and agreed upon before entering the contract 10. Agencies are advised to have written guidelines on the appropriate use of 24-hour staffing and financial responsibilities of the client if such 24-hour staffing is used, in additional to verbally educating client 11. Clients may be transferred or their care terminated by the agency after a formal contract is entered; a discussion about the advantages and disadvantages should be conducted between the client and agency 12. Contracts may also help protect the home health care agency when nurses carry out duties consented to by the client 13. Abandonment of the client must be avoided: defined as the unilateral termination of the professional relationship without affording the client reasonable notice and health care services; this is a violation of the contract to provide services 14. A home health agency cannot discriminate against Medicare patients who are heavy users of services and are thus economically less desirable .

15. The Rehabilitation Act of 1973 gives handicapped persons the right to sue if they are excluded from participation, denied benefits, or subjected to discrimination with respect to any program that receives assistance from the federal government 16. A federally funded program that serves the less handicapped while failing to accommodate more severely handicapped persons is operating in an illegal discriminatory manner 17. “Homebound” was redefined by a court in 1999 when an agency dropped a client, claiming that he was no longer homebound because he could ostensibly leave his home though: a) He could not leave his bed or home without the aid of at least one other individual b) He could not leave his home without the use of a wheelchair and leaving home required at least 1 1/2 hours of preparation, even for a visit to his physician c) His absences from home were infrequent and of relatively short duration, usually for the purpose of physician visits at the clinic or office 18. Avoiding liability for client abandonment or dumping: a) The agency must develop and implement a satisfactory discharge program b) Discharge planning should be started with the initial evaluation of the client, and clients should be involved in the plan throughout their care c) Potential clients should be made aware of this discharge program before a formal contract is signed 19. Agencies do not have perpetual, ongoing responsibilities to provide services in the absence of compensation, nor do agencies need to continue to provide care if the safety of the agency staff is threatened

L. Confidentiality 1. Home care workers and the agency must treat as confidential any information that becomes known as a direct result of the agency–client relationship 2. Persons and agencies violating this rule may be liable for damages to the client 3. HIPAA laws also protect patients in home care settings 4. Exceptions to confidentiality include sharing information among various health care providers who are responsible for the client’s care; client must approve at initial contract or by release form 5. Another exception is the release of information to third-party payers; release of this type of information is required before insurance companies and other third-party payers honor requests for payments 6. Client also has a right to a copy of their information .

M. Refusal of care 1. A client can withdraw consent for treatment at any time 2. Verbal withdrawal of consent is adequate, and the agency staff should immediately communicate such withdrawal of consent to other members of the health care team and document 3. Refusal of care is dependent on informed consent and client education must be documented in agency records

N. Agency policies 1. Home health nurses have a duty to inform themselves about written agency policies and procedures 2. These set the standard of care 3. Ensure that the policies do not require the nurse to function outside the scope of nursing practice 4. Inform the agency if their policies are outdated

O. Malpractice and negligence 1. Nurse must be able to identify significant changes in the patient’s condition and decide whether further medical or nursing intervention or hospitalization is required 2. If changes occur, the home health care nurse must convey clearly any concern and indication for further treatment 3. Because they are working alone in the home setting, it is vital that nurses competently assess and communicate concerns quickly and appropriately 4. Much of the current case law in this area concerns the duty to train and supervise in the home setting, particularly the training and supervision of home health care aides and nursing staff members 5. Nursing personnel should institute a system of periodic visits in the home to identify the efficiency and level of care being delivered by the home health care aide as well as other nursing personnel 6. Home health nurses are also accountable for ensuring that ordered treatments are initiated and completed 7. Similar to acute care settings, nurses may also be liable for the failure to deliver intravenous (IV) fluids at appropriate rates 8. Home health care nurses may be uniquely protected legally when they work in private home settings because they may sue for negligence if the home premises are not maintained in a safe condition

P. Patient education .

1. The duty to instruct patients is paramount in the home setting, because patients and family members must rely on these instructions when the nurse is not readily available 2. Education should include both preventative and self-care information 3. Asking for return demonstrations and ensuring that questions are answered appropriately are ways of validating patient understanding

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Public and Community Health Nursing

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History of Public and Community Health Nursing

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Public and Community Health Nursing Practice

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Home Health Care

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Home Health Care Services

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Omnibus Budget Reconciliation Act of 1986

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Patient Self-Determination Act of 1990

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Outcome and Assessment Information Set (OASIS)

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Patient Assessment Under OASIS

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State Legislation

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Standing Orders

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Contract Law

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Contracts and Informed Consent

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Abandonment

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Confidentiality

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Refusal of Care

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Agency Policies

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Malpractice and Negligence

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Patient Education

IV. Parish Nursing A. Specialization that emerged in the 1980s, sometimes referred to as health and faith nursing B. Focus of parish nursing is the faith community and its ministry Guido, Instructor’s Resource Manual, Legal & Ethical Issues in Nursing 6th Edition © 2014 by Pearson Education, Inc.

1. Based on the health and healing traditions found in many religions 2. It is the intentional integration of the practice of faith with the practice of nursing 3. The majority of parish nurses are not paid workers

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V.

Parish Nursing

Occupational Health Nursing A. Occupational health nursing 1. Area of practice greatly influenced by a variety of federal and state laws, particularly workers’ compensation laws, mandatory reporting laws, and occupational safety and health laws 2. Because of the unique interplay between workers’ compensation laws and the doctrine of respondeat superior, nurses in this setting face a higher risk of personal liability than do nurses in other settings

B. Occupational Safety and Health Act of 1970 (OSHA) 1. The main law governing occupational nursing practice 2. Administered through the Department of Labor 3. Encourages employers and employees to reduce workplace hazards and to implement new or improved existing safety and health programs 4. Provides for research in occupational safety and health to develop innovative ways of dealing with occupational safety and health problems 5. Establishes separate, not dependent responsibilities and rights for employers and employees for the achievement of better safety and health conditions 6. Maintains a reporting and record-keeping system to monitor job-related illnesses and injuries 7. Establishes training programs to increase the number and competence of occupational safety and health personnel 8. Developed mandatory job safety and health standards and enforces them effectively 9. Provides for the development, analysis, evaluation, and approval of state occupational safety and health programs 10. The act does not cover (1) self-employed persons; (2) farms that employ solely immediate members of the farmer’s family; (3) working conditions for which other federal agencies regulate worker safety, such as mining, nuclear energy and nuclear .

weapons manufacturing, and many aspects of the transportation industries; or (4) employees of state and local governments unless they are in one of the states operating an OSHA-approved state plan 11. To be able to qualify for worker’s compensation, the occupational disease must arise out of one’s employment 12. State workers’ compensation laws mandate the compensation of employees who are injured while at work in accordance with specific compensation schedules 13. These same laws make this the injured employee’s sole remedy against the employer and thus deny the employee the legal right to sue the employer for damages even if the employer’s negligence was the prime cause of the injury 14. In most states, the immunity extended to the employer is also extended to co-workers of the injured employee 15. Thus, a nurse employed by a company in these states is protected from civil liability in much the same manner as the employer unless he or she is an independent contractor 16. Nurses are open to greater liability when specific guidelines, standing orders, and protocols are not written 17. Nurses retain personal accountability for their actions, as well as potentially making other persons liable

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Occupational Health Nursing

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Occupational Health and Safety Act of 1970

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Occupational Nurses

VI. School Health Nursing A. School health nursing defined 1. A specialized practice of nursing that advances the well-being, academic success, and lifelong achievement of students 2. “School health nurses facilitate normal development and positive student responses to interventions, promote health and safety, including a healthy environment, intervene with actual and potential health problems, and actively collaborate with others to build student and family capacity for adaptation, self-management, self-advocacy, and learning”—National Association of School Health Nurses

B. Laws affecting school health nursing 1. Section 504 of the Rehabilitation Act of 1973 mandates specially designed classroom instruction and specialized transportation services for children with disabilities .

2. Education for All Handicapped Children Act of 1975 broadened the previous law by adding an “inclusion” clause that mandated that children with various disabilities were to be part of the regular classroom instruction 3. The Office of Comprehensive School Health was established in 1979, extending health services to include preschool children 4. Head Start programs across America also began in 1979

C. Practice of school health nursing 1. Administration of first aid and prescribed medications, screening for height/weight and visual acuity, counseling for a variety of health conditions, and implementing nursing interventions such as the changing of dressings, suctioning, and catheterizations 2. Assist with the formulation and evaluation of individualized educational plans and individualized health plans 3. School health nurses face many of the same liability issues that occupational nurses face 4. School nurses must exercise considerable independent judgment and must be able to recognize and treat illnesses or injuries or know when to seek immediate assistance 5. Many children visit the school health nurse for traumatic injuries, and the nurse must be competent to provide an emergency standard of care 6. School nurses have become responsible either as the direct provider of care or indirectly as the coordinator of care to students with respirators, feeding tubes, and other chronic health needs that require services that are not medical services

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School Health Nursing

VII. Correctional Nursing A. Correctional nursing practice 1. Providing care for a person from the time of arrest and entry into the system through transfer to other facilities, to the final release 2. Emergency treatment may be undertaken in situations of potential for grave disability and immediate threat of danger to the inmate or others 3. Privacy rights of inmates are respected and health care provided to all inmates regardless of their custody status

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4. Specimens are collected and analyzed only for diagnostic testing based on sound medical principles 5. Body-cavity searches are conducted only after proper training and not by health care providers in a provider-patient relationship with the inmate 6. All medical information is confidential 7. Biomedical research may be conducted only when the research methods meet all federal requirements, and the individual inmate or prison population is expected to derive benefits from the results of the research 8. The majority of the health care delivered in these settings involves primary health care and is often preventative, including prenatal care, immunizations, violence prevention, and screening for suicide risk 9. Nurses also treat a variety of illnesses and disease conditions, including infections, minor injuries, asthma, diabetic care needs, injury rehabilitation, and monitoring for conditions such as coronary artery disease, congestive heart failure, chronic lung diseases, and other long-term chronic conditions 10. Persons in this setting are also at an increased risk for communicable diseases, violence-associated risks, and substance abuse 11. Nurses identify and provide community linkages for inmates upon discharge

B. Correctional health liability 1. An inmate’s right to the provision of appropriate health care is based on the Eighth Amendment of the U.S. Constitution, under the “cruel and unusual punishment” clause 2. Inmates can and do sue prison medical and nursing personnel who are indifferent to their serious health needs; most of these suits are dismissed by courts 3. These types of lawsuits have become far more numerous than lawsuits for professional malpractice

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Correctional Nursing

VIII. Disaster Nursing A. Disaster nursing defined 1. A nurse either volunteers or is compensated for aid given during a disaster 2. The standard of care in a time of a disaster is usually similar to the standard of care given in emergency situations .

3. After the decision is made to render aid, the level of skill and competency is that which a reasonably prudent nurse would exercise under the same or similar conditions 4. If the practitioner meets or exceeds these standards, there is no negligence 5. Provided that the nurse has the knowledge and skills required to perform the actions competently, they are permitted to give substituted care and assume duties that they ordinarily do not assume 6. An emergency exception to either the nurse practice act or other statutory or common laws allows the expanded scope of practice in emergency settings 7. Health care providers, once committed to aiding those injured in the disaster, have a duty to give safe, competent care 8. Nurses, especially those working in community and public health arenas, and other health care providers may also be involved in disaster response 9. The National Disaster Medical System is a federally coordinated system that was established primarily to integrate national response capability for assisting state and local authorities in dealing with the medical impact of natural disasters

PowerPoint Lecture Slides •

Disaster Nursing

IX. Selected Ethical Issues A. Valuing the unique knowledge of patients 1. Physicians may devalue the unique knowledge of patients that so many home health care nurses understand by developing relationships over time

B. Balancing diminishing resources while maintaining quality C. Supporting the empowerment and autonomy of clients 1. How does one do this when a patient resists self-reliance?

D. Personal values and beliefs 1. Do personal beliefs conflicting with legislation result in substandard care for patients?

E. Medical procedures used to collect evidence in the prison system PowerPoint Lecture Slides •

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Ethical Issues in Public and Community Health

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Chapter 20 Nursing in Long-Term Care Settings Objectives 1.

Define the various long-term care settings, including nursing homes, assisted living centers, hospice care centers, and elder day care centers.

2.

Describe the Nursing Home Reform Act of 1987 and its significance to residents of nursing homes.

3.

Discuss aspects of providing quality care in long-term care settings, including:

4.

a.

Falls and restraints

b.

Skin and wound care

c.

Nutrition and hydration

d.

Patient safety issues

e.

Patient transfer

f.

Duty to assess, monitor, and communicate

Discuss the nurse’s potential liability issues for international and quasi-intentional torts in long-term care nursing.

5. .

Describe the purpose and potential liability involved in involuntary

discharge.

6.

Explore the issues of end-of-life care and patient education for this patient population.

7. Discuss the concept and extent of elder abuse in the United States.

8.

Describe ethical issues that can arise in long-term care settings.

Introduction: Though nurses have been employed in long-term care settings, primarily in nursing homes, for most of the last century, newer models for long-term care continue to evolve. Some of these newer models include rehabilitation centers, retirement homes, assisted living centers, and elder day care centers. Many of these alternatives to the current nursing homes offer new and exciting opportunities for nurses, including more autonomous roles; all have some potential liability for the nurses practicing in these roles. This chapter presents an overview of these long-term care settings and the potential legal liability for nurses who are employed in these settings.

I.

Long-Term Care Settings A. Nursing homes 1. Residential living centers offering nursing care primarily for elders on a 24-hour basis 2. They were the first model of long-term care and remain the type of facility that houses the majority of individuals receiving long-term care 3. Approximately 1.8 million residents live in nursing homes 4. The median age is 83.2 years; majority of residents are women 5. Nursing homes offer a variety of care services, including assistance with activities of daily living such as bathing, dressing, skin care, etc.

6. Employees in nursing homes include administrators, social workers, registered nurses (RNs), licensed practical/vocational nurses (LPN/LVN), certified nursing assistants

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(CNAs), and selected ancillary staff. Many of the nursing employees are unlicensed assistive personnel (UAPs) and LPN/LVNs working with minimal supervision 7. Contract personnel include physicians and dentists

B. Assisted Living Centers 1. Assisted living is a long-term care alternative for seniors who need more assistance than is available in a retirement center, but who do not need the more intensive nursing and medical care that is provided in nursing homes 2. Assisted living bridges the gap between independent living and nursing homes 3. Approximately 900,000 individuals live in assisted living centers 4. The average resident is an 86-year-old woman who is mobile but needs help with two activities of daily living—typically bathing and dressing; majority are women 5. Residents live in a congregate residential setting that generally provides personal service, 24-hour supervision and assistance, and planned activities and health-related services 6. Services can be provided in freestanding facilities, in sites that are adjacent to nursing homes and hospitals, as components of continuing care retirement centers, or at independent housing complexes 7. Most residents need assistance with instrumental activities of daily living, including telephoning, shopping, preparing meals, completing housework, taking medication, and managing money 8. Assisted living employees supervise, assist, or administer medications as dictated by state rules and regulations 9. The average length of stay is 27 months; 34% move to nursing homes, 30% die 10. Employees include registered nurses, certified nursing assistants, personal care attendants, health/wellness directors, activity directors, and administrative staff 11. Contract services include physicians, dieticians, and physical therapists

C. Hospice Nursing Centers 1. Hospice care is specialized care that may be given to terminal patients when they no longer benefit from curative care 2. Hospice treats the person, not the disease, offering comfort to individuals who are within the last 6 months of life 3. Care is provided in nursing homes, skilled care facilities, and hospitals, or provided in freestanding hospice centers 4. An interdisciplinary team provides spiritual, home, respites, and bereavement care

D. Elder Day Care Centers .

1. Elder day care provides care to adults who are unable to stay at home by themselves, allowing caregivers to continue to work outside the home 2. There are three types of day care centers: a) Adult day social care provides social activities, meals, recreation, and some limited health-related services b) Adult day health care offers more intensive health, therapeutic, and social services for individuals with severe medical programs and for those at risk of requiring nursing home care c) Alzheimer’s-specific adult day care provides social and health services only to persons with Alzheimer’s or related dementia 3. Hours of operation are generally from early morning until 6:00 p.m.; most programs do not offer weekends 4. Benefits include assistance with activities of daily living, a safe and secure environment, socialization and peer support, improvement in mental and physical health, enhanced or maintained levels of independence, and provision of nutritious meals and snacks

PowerPoint Lecture Slides

II.

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Nursing Homes

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Assisted Living Centers

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Hospice Care

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Elder Day Care

Nursing Home Reform Act of 1987 A. Details of the act 1. Part of the Omnibus Budget Reconciliation Act of 1987 2. Mandates that residents of nursing homes receive quality care that will assist the resident to reach and maintain his or her highest level of possible physical, mental, and psychosocial wellbeing 3. Initiated following a study by the Institute of Medicine, which found that residents of nursing homes were frequently neglected, abused, and provided inadequate care 4. Establishes minimum standards of care and rights 5. Allows inspectors to make unannounced surveys, focusing on the rights, quality of care, and services provided for nursing home residents

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PowerPoint Lecture Slides •

Nursing Home Reform Act of 1987

III. Long-Term Care Nursing: Providing Quality Care A. Long-term care nursing liability 1. The majority of cases filed against nurses and long-term care facilities involve malpractice issues 2. Application of standards is unique to the circumstances and settings in which the care is provided

B. Falls and restraints 1. One of the primary reasons for lawsuits filed against long-term care facilities 2. Three out of four residents in nursing homes fall each year 3. Many falls result in serious injuries, causing increased disability, functional decline, and reduced quality of life 4. In this setting falls are more preventable and thus less able to defend 5. If restraints are used, then they must be used correctly and the resident properly supervised 6. When transported, residents must be adequately restrained 7. The federal government discourages the use of restraints—both physical and chemical—especially in long-term care facilities 8. In settings in which restraints are seldom used, rates of falls increase, but the incidence of long-term injuries has not changed, supporting interventions that avoid the use of restraints, if possible

C. Skin and wound care 1. Most lawsuits regarding decubitus ulcers arise in long-term care settings or in home care settings 2. The health care facility can prevail in court when it is able to document that the resident’s decubitus ulcers developed despite meticulous and appropriate care

D. Nutrition and hydration 1. Providing quality care includes the responsibility to feed residents who cannot safely feed themselves

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2. Changes in health related to nutrition and hydration need to be reported immediately to the family and treated 3. A court ruled that nursing facilities have a duty to initiate interventions when the resident becomes dehydrated 4. Sometimes the failure to provide quality care is termed negligence of the elderly by the court

E. Patient safety issues 1. Nursing homes have the responsibility to provide for patients’ safety 2. Preventing patients from eloping, protecting them from assaults from other residents, and timely transfer of a resident to more appropriate care facilities should the resident’s condition warrant such a transfer 3. Facilities have a responsibility to ensure that the equipment used in long-term care facilities is safe and used appropriately

F. Resident transfers 1. Resident transfers and the provision of sufficient numbers of staff to ensure that such transfer is performed competently serve as the basis for cases among this population 2. Lack of quality care during patient transfers may result from understaffing to the point that staff members have little time to read care plans

G. Duty to assess, monitor, and communicate 1. Quality of care ensures that information about a resident’s condition is conveyed in a timely manner 2. Liability issues in long-term care facilities differ from liability issues in acute care settings because of the lack of direct physician contact with residents 3. The need for nursing staff to adequately assess changes and potential problems and notify the resident’s physician or the medical director of the facility is critical

H. Residents’ Bill of Rights 1. To further protect patients, the Nursing Home Reform Act of 1987 requires the provision of specific services to each resident and establishes a Residents’ Bill of Rights that includes the following provisions: a) Right to freedom from abuse, mistreatment, and neglect b) Right to freedom from physical restraints c) Right to privacy d) Right to accommodation of medical, physical, psychological, and social needs e) Right to participate in resident and family groups .

f) Right to be treated with dignity g) Right to exercise self-determination h) Right to communicate freely i) Right to participate in the review of one’s care plan and to be fully informed in advance about any changes in care, treatment, or changes in status in the facility j) Right to voice grievances without discrimination or reprisal 2. In addition to this statute states and selected nursing homes have instituted individual Residents’ Bills of Rights 3. Courts have uniformly upheld the rights of residents when such rights have been violated

I. Intentional and quasi-intentional torts 1. Nursing homes and other long-term care facilities have a responsibility to protect residents from intentional and quasi-intentional torts 2. For example, in areas of confidentiality and privacy rights, freedom from harm, freedom from assault and battery 3. A court ruled that all areas of the nursing home are essentially the private home of the patients, therefore a policy prohibiting nonconsensual photography is proper 4. A court ruled that when it is foreseeable that a patient can and will harm another person, it is imperative for the health care facility to take steps to prevent such harm

J. Involuntary Discharge 1. Involuntary discharge from the nursing home, similar to discharge from home health agencies, may be permitted under the law 2. An extended care facility risks liability for keeping a resident who poses a threat of harm to other residents and, with proper notice, can discharge a resident 3. Written notice must be given to the resident, a responsible party, a state agency, or an ombudsman 4. The resident has the right to social work counseling and a written plan of care 5. Residents can also ask the court to oversee that their rights are being honored or to negate the whole process if they are not honored 6. Emergency transfers may be done without the required 30 days federally mandated notice dependent upon the circumstances warranting the transfer 7. The Nursing Home Reform Act of 1987 also applies to nursing home admission practices and states that a nursing home must not require a third party to guarantee payment to a facility as a condition of admission or continued stay in the facility .

8. This act applies whether the nursing home accepts Medicare and Medicaid applicants or is private-pay 9. A family member who voluntarily agrees to cosign as a financially responsible party is entitled to advance written notice before a nursing home can legally discharge the patient 10. A nursing home does have the right to take legal action if a resident’s guardian exhausts the resident’s assets to pay for nursing home care but then neglects to apply for Medicaid or Medicare benefits for the resident

K. End-of-life care and patient education 1. Residents who are admitted to long-term facilities have the same rights as all inpatients under the Right to Self-Determination Act of 1990 2. The elderly perceive more benefit from interventions (CPR, artificial hydration, nutrition) than was previously thought 3. Recent studies underscore the need for continued patient education about the right to self-determination and the benefits and burdens of therapies

L. Elder abuse 1. All states have elder abuse laws, designed to protect the older, vulnerable adult from abuse, neglect, and financial exploitation 2. Elder abuse refers to the maltreatment of older people 3. Includes physical and psychological abuse, either intentional or unintentional, resulting from the actions or inactions of other people, usually caregivers 4. Physical abuse concerns intentional infliction, or allowing someone else to intentionally inflict, bodily injury or pain; includes the inappropriate use of medications and physical restraints 5. Unintentional abuse is the failure of the caregiver to provide the goods, services, or care necessary to maintain the health and safety of the vulnerable adult 6. Psychological abuse includes verbal harassment, intimidation, denigration, and isolation, as well as repeated threats of abandonment or physical harm 7. Financial exploitation occurs when family members, friends, or paid caregivers take financial advantage of the person, stealing from their bank accounts, selling possessions, and taking the elder person’s Social Security checks for their own benefit, or the improper or unauthorized use of funds, property, powers of attorney, and guardianships; also making an elderly person work against his or her will 8. Elder abuse is a widespread problem that occurs within all subgroups of the aged population

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9. The profile of the person most likely to be abused is an elderly woman, unable or minimally able to care for herself, with limited periods of competency, and often depressed, with the oldest elders the most frequently abused 10. In over 67% of the reported cases, the abuser is an adult child or spouse 11. A majority of states mandate the reporting of elder abuse 12. Abuse can result in criminal charges, disciplinary action, termination, etc.

13. The standard for reporting is a reasonable belief that a vulnerable person has been or is likely to be abused, neglected, or exploited 14. Staff members may also be terminated for their failure to report abuse in nursing home settings 15. Most states grant immunity from civil and criminal action for reporting, and some prevent employment retaliation for reporting 16. Nurses are advised to explore their individual state elder abuse laws

M. Long-Term Care Ombudsman Program 1. Authorized in all states 2. Responsible for advocating on behalf of long-term care facility residents who experience abuse, violations of their rights, or other issues 3. Program is mandatory for receiving federal funds under the Older Americans Act of 1987 and the Amended Act of 1992 4. A bill entitled Elder Justice Act finally passed as part of the Patient Protection and Affordable Care Act of 2010 after being voted on during several legislative sessions since 2003 5. The Elder Justice Act coordinates efforts to prevent elder abuse on a federal level by the: a) Establishment of an Elder Justice Coordinating Center to make recommendations to the Secretary of Health and Human Services on the coordination of activities of agencies and entities relating to elder abuse, neglect, and exploitation b) Establishment of a nationwide program for national and state background checks on direct patient access employees of long-term care facilities c) Establishment of funding for Adult Protective Services d) Establishment of a 27-member Board on Elder Abuse, Neglect, and Exploitation e) Authorization of a $500,000 study on establishing a national nurse aide registry

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f) Authorization for the Department of Health and Human Services to improve data collection and dissemination, develop and disseminate information related to best practices related to adult protective services, and to conduct research related to adult protective services

PowerPoint Lecture Slides •

Long-Term Care Nursing Liability

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Falls and Restraints

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Skin and Wound Care

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Nutrition and Hydration

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Patient Safety Issues

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Resident Transfers

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Duty to Assess, Monitor, and Communicate

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Resident’s Bill of Rights

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Intentional and Quasi-Intentional Torts

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Involuntary Discharge

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Emergency Transfers

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Elder Abuse

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Long-Term Care Ombudsman Program

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Elder Justice Act of 2010

IV. Selected Ethical Issues in Long-Term Care A. Supporting elder’s autonomy while assessing his or her capacity for decision making 1. Influencing factors, such as pain, depression, psychiatric illness, or effects of mediations, can affect this decision-making capacity 2. All of these influencing factors are often seen, some to a greater and some to a lesser degree, in the elderly residents of long-term care facilities

B. Fair and just distribution of resources C. Overcoming the stigma of being involved with abuse and reporting abuse 1. This is especially true if the abuse has been particularly shocking

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2. The abused person might ask that the abuse not be reported; especially when abuser is family and the person fears he or she will be abandoned or that the abuse will escalate 3. Failing to report abuse does not allow the person to obtain counseling treatment and heal and does not uphold the principle of beneficence 4. Nurses need to support one another in such instances, reporting the abuse to persons or agencies as appropriate, and assisting in subsequent investigations 5. Abuse is more apt to be reported in states that have mandatory reporting laws than in states where such reporting is encouraged, but not mandated

PowerPoint Lecture Slides •

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Ethical Issues in Long-Term Care