case law definition in nursing

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5.4: Laws, Torts, Malpractice, and Disciplinary Actions

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• Page ID 65552

• Ernstmeyer & Christman (Eds.)
• Chippewa Valley Technical College via OpenRN

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In addition to following standards of care, nurses must also follow related federal and state laws. Criminal law is a system of laws that punishes individuals who commit crimes. Crimes are classified as felonies, misdemeanors, and infractions. Conviction for a crime requires evidence to show the defendant is guilty beyond a shadow of doubt. This means the prosecution must convince a jury there is no reasonable explanation other than guilty that can come from the evidence presented at trial. See Figure 5.1 [1] for an illustration of a criminal case being tried in front of a jury. Civil law focuses on the rights, responsibilities, and legal relationships between private citizens, and involves compensation to the injured party. A person bringing the lawsuit is called the plaintiff , and the parties named in the lawsuit are called defendants . [2]

Civil law includes torts. A tort is an act of commission or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. Tort law exists to compensate clients injured by negligent practice, provide corrective judgment, and deter negligence with consequences of action or inaction. [3]

Two categories of torts affecting nursing practice are intentional torts and unintentional torts. Intentional torts are wrongs that the defendant knew (or should have known) would be caused by their actions. Examples of intentional torts include assault, battery, false imprisonment, slander, libel, and breach of privacy or client confidentiality. Unintentional torts occur when the defendant’s actions or inactions were unreasonably unsafe. Unintentional torts can result from acts of commission (i.e., doing something a reasonable nurse would not have done) or omission (i.e., failing to do something a reasonable nurse would do). Examples of torts affecting nursing practice are discussed in further detail in the following subsections. [4]

Assault and Battery

Assault and battery are intentional torts. Assault is defined as intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact. Battery is defined as intentional causation of harmful or offensive contact with another person without that person’s consent. Physical harm does not need to occur in order to be charged with assault or battery. Battery convictions are typically misdemeanors but can be felonies if serious bodily harm occurs. [5]

An example related to assault and battery in health care is the patient’s right to refuse treatment. For example, a hospitalized patient can refuse to take prescribed medication. If a nurse forcibly administers medication without a patient’s consent, it could be ruled assault or battery in a court of law. However, forcible administration of a medication based on a provider’s order may be justified in an emergency situation to prevent imminent harm to oneself or others. [6]

False Imprisonment

False imprisonment is an intentional tort. False imprisonment is defined as an act of restraining another person and causing that person to be confined in a bounded area. An example of possible false imprisonment in health care is the use of restraints. See Figure 5.2 [7] for an image of a simulated client in full physical medical restraints. Restraints can be physical, chemical, or verbal. Nurses must vigilantly follow agency policies related to the use of physical restraints and monitor clients who are restrained. Chemical restraints include administration of PRN medications such as benzodiazepines and require clear documentation supporting their use. Verbal threats to keep an individual in an inpatient environment can also qualify as false imprisonment and should be avoided. Additional information regarding the use of restraints is discussed in the “ Patient Rights ” section.

Privacy and Confidentiality

Breaching privacy and confidentiality are intentional torts. Confidentiality is the right of an individual to have personal, identifiable medical information, referred to as protected health information, kept private. Protected Health Information (PHI) is defined as individually identifiable health information, including demographic data, that relates to the individual’s past, present, or future physical or mental health or condition; the provision of health care to the individual; and the past, present, or future payment for the provision of health care to the individual. [8]

Confidentiality is a right protected by the Health Insurance Portability and Accountability Act (HIPAA) . HIPAA was enacted in 1996 and was prompted by the need to ensure privacy and protection of personal health records in an environment of electronic medical records and third-party insurance payers. There are two main sections of HIPAA law: the Privacy Rule and the Security Rule. The Privacy Rule addresses the use and disclosure of individuals’ health information. The Security Rule sets national standards for protecting the confidentiality, integrity, and availability of electronically protected health information. HIPAA regulations extend beyond medical records and apply to client information shared with others. Therefore, all types of client information and data should be shared only with health care team members who are actively providing care to them. For example, when applying HIPAA to mental health inpatient settings, nurses may not answer in the affirmative if someone calls and asks if an individual has been admitted to the unit. [9] See Figure 5.3 [10] for a depiction of confidentiality.

There are specific circumstances in which HIPAA does not apply. For example, nurses have a duty to warn and protect, are mandated reporters of suspected abuse or neglect, and are required to share specific information reported by minors with authorities or their parents.

Duty to Warn and Protect

Most states have laws regarding the duty to protect third parties from potential life threats. Nurses and other mental health professionals have a duty to warn and protect third parties when they may be in danger from a patient. This duty falls outside of HIPAA regulations. This includes assessing and predicting the patient’s threat of violence towards another person or groups of people and taking action to protect the identified victims. [11]

Mandatory Reporting of Suspected Abuse or Neglect

HIPAA does not apply to reporting the suspected neglect or abuse of children, adults at risk, or older adults. Many states require health professionals to report suspected neglect or abuse. State laws vary, but they generally include a definition of abuse, a list of people required to report abuse, and the government agency designated to receive and investigate the reports. Nurses and other health professionals are referred to as mandated reporters because they are required by state law to report suspected neglect or abuse of children, adults at risk, and the elderly. Adults at risk are adults who have a physical or mental condition that impairs their ability to care for their own needs.

For example, in Wisconsin, suspected neglect or abuse is reported to Child Protective Services (CPS), Adult Protective Services, or law enforcement. Nurses should be aware of the country or state agencies to whom they should report suspected abuse. See the following box for additional information.

Read additional information about signs of child and elder abuse in the “ Trauma, Abuse, and Violence ” chapter.

Read more about protective services in your state. Here are links to Wisconsin’s Child Protective Services and Adult Protective Services .

Find resources in your area for reporting suspected child abuse at ChildHelp National Child Abuse Hotline or elder abuse at the National Adult Protective Services Association website .

Conditional Confidentiality for Minors

“Conditional confidentiality” applies to minors under the age of 18. State laws determine what information is considered confidential and what requires reporting to law enforcement or Child Protective Services, such as child abuse, gunshot or stabbing wounds, sexually transmitted infections, abortions, suicidal ideation, and homicidal ideation. Some state laws make it optional for clinicians to inform parents/guardians if their child is seeking services related to sexual health care, substance use, or mental health care. Nurses should be aware of the state laws affecting the confidentiality of child and adolescent care in the state in which they are practicing. [12]

View the Wisconsin Department of Health Services’ Client Rights for Minors .

Slander and Libel

Slander and libel are intentional torts. Defamation of character occurs when an individual makes negative, malicious, and false remarks about another person to damage their reputation. Slander is spoken defamation and libel is written defamation. Nurses must take care in their oral communication and documentation to avoid defaming clients or coworkers. [13]

Fraud is an intentional tort that occurs when an individual is deceived for personal gain. A nurse may be charged with fraud for documenting interventions not performed or for altering documentation to cover up an error. Fraud can result in civil and criminal charges, as well as suspension or revocation of a nurse’s license. [14]

Negligence and Malpractice

Negligence and malpractice are unintentional torts. Negligence is the failure to exercise the ordinary care a reasonable person would use in similar circumstances. Wisconsin civil jury instruction states, “A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.” Malpractice is a specific term used for negligence committed by a health professional with a license.

Elements of Malpractice

Clients bringing a malpractice lawsuit must be able to demonstrate to the court that their interests were harmed. Most malpractice lawsuits name physicians or hospitals as defendants, although nurses can be individually named. Employers can be held liable for the actions of their employees.

Malpractice lawsuits are concerned with the legal obligations nurses have to their patients to adhere to current standards of practice. These legal obligations are referred to as the duty of reasonable care. Nurses are required to adhere to standards of practice when providing care to patients they have been assigned. This includes following organizational policies and procedures, maintaining clinical competency, and confining their activities to the authorized scope of practice as defined by their state’s Nurse Practice Act. Nurses also have a legal duty to be physically, mentally, and morally fit for practice. When nurses do not meet these professional obligations, they are said to have breached their duties to patients. [15]

All of the following elements must be established in a court of law to prove malpractice [16] :

• Duty: A nurse-client relationship exists.
• Breach: The standard of care was not met and harm was a foreseeable consequence of the action or inaction.
• Cause: Injury was caused by the nurse’s breach.
• Harm: Injury resulted in damages.

In the work environment, a duty is created when the nurse accepts responsibility for a patient and establishes a nurse-patient relationship. This generally occurs during inpatient care upon acceptance of a handoff report from another nurse. Outside the work environment, a nurse-patient relationship is created when the nurse volunteers services. Mandatory reporting and duty to warn and protect are additional examples of a nurse’s duty. [17]

Breach of Duty

The second element of malpractice is breach of duty. After a plaintiff has established the first element in a malpractice suit (i.e., the nurse owed a duty to the plaintiff), the plaintiff must demonstrate that the nurse breached that duty by failing to comply with the duty of reasonable care. To demonstrate that a nurse breached their duty to a patient, the plaintiff must prove the nurse deviated from acceptable standards of practice. The plaintiff must establish how a reasonably prudent nurse in the same or similar circumstances would act and then show how the defendant nurse departed from that standard of practice. The plaintiff must claim the nurse did something a reasonably prudent nurse would not have done (an act of commission) or failed to do something a reasonable nurse would have done (an act of omission). [18]

Experts are needed during court hearings to explain things outside the knowledge of non-nurse jurors. In reaching their opinions, experts review many materials, including the state’s Nurse Practice Act and organizational policies, to determine whether the nurse adhered to them. To qualify as a nurse expert, the person testifying must have relevant experience, education, skill, and knowledge. Medical malpractice trials take place primarily in state courts, so experts are deemed qualified based on state requirements. [19]

The third element of malpractice is cause. After the plaintiff has established that the nurse owed a duty to a patient and then breached that duty, they must then demonstrate that damages or harm were caused by that breach. Plaintiffs cannot prevail by only demonstrating the nurse departed from acceptable standards of practice, but also must prove that such departures were the cause of any injuries. Additionally, nurses are held accountable for foreseeability, meaning a nurse of ordinary skill, care, and diligence could anticipate the risk of harm of departing from standards of practice in similar circumstances. [20]

Plaintiffs must be able to link the defendant’s acts or omissions to the harm for which they are seeking compensation. This requires expert testimony from a physician because it requires a medical diagnosis. Unlike criminal cases, where the standard of proof is “beyond reasonable doubt,” the elements of a malpractice lawsuit must be proven by a “preponderance of evidence.” Expert testimony is required to demonstrate “medical certainty” that the nurse’s breach was the cause of an actual injury. [21]

The fourth element of malpractice is harm. In a civil lawsuit, after a plaintiff has established the nurse owed a duty to the patient, breached that duty, and injury was caused by the nurse’s breach, they must prove the injury resulted in damages. They request compensation for what they have lost. [22]

There are several types of injuries for which patients or their representatives seek compensation. Injuries can be physical, emotional, financial, professional, marital, or any combination of these. Physical injuries include loss of function, disfigurement, physical or mental impairment, exacerbation of prior medical problems, the need for additional medical care, and death. Economic injuries can include lost wages, additional medical expenses, rehabilitation, durable medical expenses, the need for architectural changes to one’s home, the loss of earning capacity, the need to hire people to perform tasks the plaintiff can no longer do, and the loss of financial support. Emotional injuries can include psychological damage, emotional distress, or other forms of mental suffering. [23]

Determining the specific amount a plaintiff needs can require expert witness testimony from a person known as a life care planner who is trained in analyzing and evaluating medical costs, as well as the subjective determination of a jury. Damages fall into several categories, including compensatory (economic) damages, noneconomic damages, and punitive damages. [24]

Implications for Nurses

Nurses defending themselves against allegations of professional malpractice must demonstrate that their actions conformed with accepted standards of practice. They must convince a jury they acted as a reasonably prudent nurse would have in the same or similar circumstances. Nurses should follow these practices to avoid allegations of malpractice [25] :

• Practice according to current standards of practice.
• Adhere to organizational policies and procedures. The standard of practice is to adhere to agency policy. Failing to do so creates an assumption of departure from standards.
• Document in a manner that permits accurate reconstruction of patient assessments and the sequence of events, especially when notifying providers regarding clinical concerns.
• Maintain competence through continuing education, participation in professional conferences, membership in professional organizations, and subscriptions to professional journals.
• When using an interpreter, ensure that properly trained interpreters are used and document the name of the interpreter. The use of family, friends, or other untrained interpreters is unsafe practice and is not consistent with acceptable standards of practice.
• Maintain professional boundaries. Personal relationships with patients or their families can be red flags for juries and can be viewed as evidence of departure from professional standards.
• Engage the chain of command with patient concerns and pursuing concerns to resolution.

Read more about actual nursing malpractice cases in the “ Frequent Allegations and SBON Investigations ” section of the “Legal Implications” chapter in Open RN Nursing Management and Professional Concepts .

Disciplinary Action by the Board of Nursing

In addition to being held liable in a court of law, nurses can have their licenses suspended or revoked by the State Board of Nursing (SBON) for unsafe nursing practice. The SBON governs nursing practice according to that state’s Nurse Practice Act to protect the public through licensure, education, legislation, and discipline. A nursing license is a contract between the state and the nurse in which the licensee agrees to provide nursing care according to that state’s Nurse Practice Act. Deviation from the Nurse Practice Act is a breach of contract that can lead to limited or revoked licensure. Nurses must practice according to the Nurse Practice Act of the state in which they are providing client care. [26]

A nurse may be named in a board licensing complaint called an allegation. Allegations can be directly related to a nurse’s clinical responsibilities, or they can be nonclinical (such as operating a vehicle under the influence of a substance, exhibiting unprofessional behavior, or committing billing fraud). A complaint can be filed against a nurse by anyone, such as a patient, a patient’s family member, a colleague, or an employer. It can also be filed anonymously. After a complaint is filed, the SBON follows a disciplinary process that includes investigation, proceedings, board actions, and enforcement. The process can take months or years to resolve, and it can be costly to hire legal representation. [27]

Disciplinary actions by the SBON may include the following [28] :

• Reprimand: The licensee receives a public warning for a violation.
• Limitation of License: The licensee has conditions or requirements imposed upon their license, their scope of practice, or both.
• Suspension: The license is completely and absolutely withdrawn and withheld for a period of time, including all rights, privileges, and authority previously conferred by the credential.
• Revocation: The license is completely and absolutely terminated, as well as all rights, privileges, and authority previously conferred by the credential.
• Administrative Warning: A warning is issued if the violation is of a minor nature, or a first occurrence and the warning will adequately protect the public. The issuance of an administrative warning is public information but the reason for issuance is not.
• Remedial Education Order: A remedial education order is issued when there is reason to believe that the deficiency can be corrected with remedial education, while sufficiently protecting the public.

Find and review your state’s Nurse Practice Act .

• “ Courtroom Trial with Judge, Jury - Vector Image ” designed by WannaPik is licensed under CC0 ↵
• Brous, E. (2019). The elements of a nursing malpractice case, part 1: Duty. American Journal of Nursing, 119 (7), 64–67. https://doi.org/10.1097/01.NAJ.0000569476.17357.f5 ↵
• Wis. JI—Civil 1005. (2016). https://wilawlibrary.gov/jury/civil/instruction.php?n=1005 ↵
• Fry, S. T. (1989). The role of caring in a theory of nursing ethics. Hypatia, 4 (2), 87-103. https://doi.org/10.1111/j.1527-2001.1989.tb00575.x ↵
• “ PinelRestaint.jpg ” by James Heilman, MD is licensed under CC BY-SA 4.0 ↵
• “ Concept of Data Privacy And Policy Illustration” by Delesign Graphics at Iconscout is licensed under CC BY 4.0 ↵
• Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www.nso.com/Learning/Artifacts/Claim-Reports/Minimizing-Risk-Achieving-Excellence ↵
• This work is a derivative of StatPearls by Teoli and Ghassemzadeh and is licensed under CC BY 4.0 ↵
• American Nurses Association. (2012). Position statement: Reduction of patient restraint and seclusion in health care settings. https://www.nursingworld.org/practice-policy/nursing-excellence/official-position-statements/id/reduction-of-patient-restraint-and-seclusion-in-health-care-settings/ ↵

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• Ann Med Surg (Lond)
• v.57; 2020 Sep

Medical negligence - Key cases and application of legislation

Rajkumar cheluvappa.

a Australian Catholic University, Watson, ACT, 2602, Australia

Selwyn Selvendran

b Department of Surgery, St George Hospital, Kogarah, NSW, 2217, Australia

Law entails precedent-based common law and parliamentary-legislation-based statutory law. Australian courts recognise civil wrongs, called torts. The most common tort worldwide is negligence. The first aim of the paper is to educate the Australian nursing community about medicolegal issues, statutes, important cases, legal applications, and negligence statistics pertaining to clinical practice. The second aim is to determine whether medicolegal negligence claim-numbers are commensurate with recorded statistics on adverse events. The third aim is to determine and discuss preventative approaches to minimise culpability.

Materials and methods

Relevant searches were done using Pubmed, Google Scholar, and Austlii. Data, negligence legislation, key cases, and law processes were collated and analysed based on court decision citations, legal impact, and relationships between legislation application and case law. Although New South Wales legislation was used throughout this paper, parallel statutes exist across Australian jurisdictions.

The basics of the civil tort offence of negligence are explained with step-by-step explanations. Key judgments and application of legislation in key medical negligence cases are discussed. Relevant medicolegal issues and negligence statistics are discussed. The civil tort of negligence is elaborately discussed, step-by-step, with relevant Common Law and legislation relevant to NSW. The watershed cases of Hadiza Bawa-Garba and Nurse Amaro are summarised with the ramifications for doctors and nurses. Expedient strategies to assist doctors and nurses in minimising unlawful action are discussed.

Conclusions

Adverse medical events are high in Australia. However, new claims are decreasing. Negligence claim-numbers are disproportionate to statistics on adverse events. The Hadiza Bawa-Garba and Nurse Amaro cases have opened a legal can of worms with manifold negative ramifications for the nursing community.

• (i) Inexperience is irrelevant
• (ii) All procedural risks must be divulged prior to patient consent (Roger v Whitaker principle)
• (iii) No liability if a standard of care is one of many non-consensus standards widely accepted by peers
• (i) High prevalence of adverse events and medication errors (Australia)
• (ii) Decreasing negligence claims are disproportionate to increasing numbers of recorded adverse events and medication errors

1. Introduction and literature review

This paper belongs to a unique category. It is a quasi-original research-review involving law research and medicolegal negligence, admixed with existing clinical nursing data involving adverse events and medication errors.

Law refers to a set of rules enforced by a country's legal system. In Australia, it encompasses precedent-based common law and parliamentary-legislation-based statutory law. Precedent-based court-ordered common law is generally ‘subservient’ to statutory law, unless statutes do not cover specific circumstances.

A tort is a civil wrong for which the common law or statutory law provides remedies. Medical negligence is a type of tort, with compensatory damages (money) being the usual remedy. An Australian survey of Australian doctors insured with Avant showed that 65% of survey responders (2999) had been involved in a medicolegal issue at some point of time [ 1 ]. The 2 medicolegal issues most-often encountered therein were complaints to health care bodies and compensation claims. The 1995 Quality in Australian Health Care Study [ 2 ] and the 1991 Harvard Medical Practice study [ 3 ] analysed iatrogenic harm and negligence lawsuit data in Australia and the US respectively. The former study revealed that 16.6% of 14,000 hospital admissions in New South Wales and South Australia associated with an adverse event resulting in disability was caused by medicolegal negligence [ 2 ]. Of these, 51% of the adverse events were considered preventable [ 2 ]. The latter study revealed that adverse events occurred in 3.7% of 30,121 of New York state hospitalisations in 1984, and 27.6% of these adverse events occurred due to medicolegal negligence [ 3 ]. Of these adverse events, 70.5% caused medium-term disability, 2.6% caused permanent disability, and 13.6% caused death [ 3 ]. These data underscore the dire necessity of the work in this paper.

However, it is to be emphasised that Justice Ipp's 2002 review of the Australian Law of Negligence noted therein that their review was “guided by submissions of anecdotes and personal experience due to a dearth of empirical evidence” [ 4 ]. The deficiency of empirical evidence on medicolegal negligence data as a basis for the 2002 Justice Ipp report was also observed in a 2006 statistical study [ 5 ]. After Justice Ipp's 2002 review, each Australian state/territory enacted its “Civil Liability Act” version [ 6 ] – Civil Liability Act 2002 (NSW), Civil Law Act 2002 (ACT), Civil Liability Act 2002 (WA), Civil Liability Act 2002 (TAS), Civil Liability Act 2003 (QLD), Wrongs Act 1958 (VIC), Civil Liability Act 1936 (SA), and Personal Injuries (Liabilities and Damages) Act 2003 (NT).

There are limitation periods for commencing negligence claims by the patient. After personal injury due to medicolegal negligence, the injured plaintiff must bring an action within 6 years (Victoria, Western Australia and Australian Capital Territory) or within 3 years (New South Wales, Queensland, South Australia, Tasmania, and Northern Territory) after being first aware of the injury [ 7 ].

2. Background, aims, and methods

The overarching objective of this paper is to educate the Australian nursing community about medicolegal issues, statutes, and important cases pertaining to nursing clinical practice and the tort of negligence. The research presented in this paper focuses on explaining, adapting, and simplifying the “corpus and intricacies” of the Australian tort law of medical negligence, and make it relevant and useful for the Australian nursing community. This paper uses Australian Common Law in general; and NSW legislation [Civil Liability Act 2002 (NSW) or CLA] in particular. Firstly, this paper aims to apprise and alert Australian nurses about medico-legal issues, negligence legislation/application, and common law issues governing Australian medical practice. Secondly, this paper sets out to determine the current situation with regard to medicolegal negligence claim-numbers and adverse events (including medication administration errors). Thirdly, this paper collates and formulates succinct but informative evidence-based approaches to preclude or minimise medicolegal liability for Australian nurses.

This most significant medicolegal aspect of nursing practice is negligence involving medication administration errors [ [8] , [9] , [10] , [11] ]. In one study Australian study, medication administration errors were reported to be 15–18% of administrations of hospital stock medications [ 12 ]. In a 2006–2007 New South Wales hospital observational study involving 98 nurses administering 4271 medicines to 720 adult patients, 80% of medication administrations were associated with either a procedural or clinical error [ 8 ]. Of the 1067 administrations involving a clinical medical administration error, 11% had a major severity rating (extra dosing, unprescribed medicine administration, etc), leading to death, permanent harm, or extended hospital stay [ 8 ]. In a prospective 2004–2005 New South Wales study undertaken across 19 hospitals, medication errors occurred in 16% of patients [ 9 ]. However, more recent hospital studies indicate that about 9% of hospital medication administration result in medication administration errors [ 13 ].

Relevant searches were done using Pubmed, Google Scholar, and Austlii, followed by collation and analysis of data and law processes. Our submission is a quasi-original research-review involving law research, medicolegal negligence, and clinical nursing data involving adverse events and medication errors. The original law research in this paper pertains to current legislation and relevant high-impact case decisions from Google Scholar, and Austlii.

3. Unlawful activity in nursing practice under the courts

Criminality, where the state prosecutes an individual via the police and/or criminal courts, includes drug-misuse, and murder or attempted-murder of patients and staff. Milder offences are dealt with summarily (no jury) in lower-echelon courts, and serious offences at higher courts. Non-criminal offences include intentional and non-intentional-torts. Monetary penalties for both include compensatory damages, and/or aggravated damages for mental-anguish, and/or exemplary damages for contumelious disregard of life. Intentional-torts include battery entailing physical contact or injury, assault entailing threat of injury or danger, false imprisonment entailing unwarranted restraining, and defamation entailing reputation-damaging publications [ 14 ]. Trespass to property, is a theoretical but rare intentional-tort involving nurses during residential visits. The non-intentional tort of negligence is quality of care that fells below the standard expected of nurses.

Negligence is the most commonly encountered tort for all health professionals. Damage is death; or physical and/or pathological and/or psychiatric injury that a nurse's negligence has on the patient. Damage is caused by an adverse event--an injury caused by medical management that extends hospitalisation and/or disables someone at discharge or death [ 10 ]. A likely sequence of events starts with a duty of care; leading to poor or absent standard of care, termed negligence; leading to an adverse event, culminating in damage. Damages are remuneratory awards given to the patient by court-decisions. Negligence attracts compensatory damages for economic or non-economic losses, and sometimes, special damages. For decades, common law governed negligence. After Justice Ipp's 2002 review, each Australian state and territory enacted parallel Civil Liability Acts, with clauses specific to medicolegal negligence.

Patients impacted by adverse events may or may not file a lawsuit. Ironically, patients who successfully recovered damages may not have come under a nurse's negligent care. The prevalence of adverse events and medication errors by Australian medical personnel is startlingly high [ 10 ]. Surprisingly, the latest Australian data on negligence claims demonstrate that the magnitude of medical negligence [ 15 ] claims are not commensurate with those statistics. The number of new claims is decreasing or remains steady. Resolution of claims is improving [ 15 ]. There is an inherent conflict between compensating patients for unanticipated or rare outcomes, and the necessity to attain or maintain management quality. Unlike New Zealand which has a no-fault medical compensation scheme, Australian health professionals, unfortunately, still operate under common law and statute-based negligence systems.

4. Establishing medical negligence in New South Wales (NSW)

The tort of negligence is currently the most important and far–reaching tort rapidly becoming a liability-basis in almost every human endeavor. Over the past few decades, negligence has morphed from primarily covering physical injury and property-damage, to an action over economic loss and psychiatric diseases. It has been difficult to develop a predictable and coherent set of principles to achieve justice and to minimise negative repercussions to the community at large. However, there are a few general patterns of approach to establish a case of medical negligence:

- Establishing a duty of care

The duty of care of a medical professional not to cause a physical injury that is “reasonably foreseeable” is rather obvious, and the media reports several sensationalist cases. However, the concept of “pure, stand alone” psychiatric injury to a patient or a patient's first-degree relative not consequential to physical injury requires further elaboration. The law recognises a “pure, stand alone” psychiatric injury only if a medically-recognised psychiatric ailment is suffered by the litigant. Heartache, emotional distress, bereavement, sorrow, grief reactions, etc; are legally inadequate. The CLA repeals older legislation on “inflicted psychiatric harm or nervous shock”, and imposes several restrictions on liability [ 16 ]. It limits liability or duties of care in s30 and s32 but abstains from creating a statutory liability, as older legislation did. This statutory limitation of liability for “pure mental harm arising in connection with the victim being killed, injured or put in peril by a defendant's act or omission”, is such that a litigant can recover damages only if the litigant “witnessed the event or is a close family member”.

However, litigants may still bring a common law cause of action like the 2 following cases. In Jaensch v. Coffey (1984), the plaintiff wife was permitted to see her husband in a hospital ward immediately after his accident, leading to the development of a psychiatric condition. The medical professionals were held liable [ 17 ]. However, in this case, the High Court excluded claimants who experienced normal grief, in contrast to pathological grief. This was done in order to preclude the potential opening of the floodgates of litigations with various claims based on physiological grief reactions and malingering. In Annetts v. Australian Stations (2002), the plaintiff's son was sent to work on a cattle-station after being assured of constant supervision, which was never done resulting in the son dying of starvation and dehydration on a remote cattle station after being stranded in the desert [ 18 ]. This resulted in the plaintiffs suffering psychiatric conditions, and the cattle-station owner being held liable. Cases like these two, wherein the relationship between an employer or health-professional and the first-degree relatives of an injured victim are crucial, are still relevant to determining the duty of care without being overruled by the CLA.

- Establishing the expected standard of care, and breach of the established duty of care

If and after a litigant successfully attributes a duty of care to the defendant, the litigant must prove the standard of care that is expected of the defendant and that the defendant breached that standard of care. However, by what standard(s) is the defendant's conduct to be assessed?

Inexperience is irrelevant, as demonstrated by Jones v. Manchester Corporation (1952) [ 19 ] wherein a trainee anaesthetist first tries a nitrous oxide mask on a burn victim with facial burns. The patient's facial skin sloughs. Two loading doses of barbiturate were administered by the trainee anaesthetist leading to the patient's death. The trainee anaesthetist's inexperience was not accepted as a defence in the court's decision.

Is mental illness relevant? Yes and no. Combinations of defences such as McNaughton's rule, insanity defences, and diminished capacity are well known [ 20 ]. However, does it make a difference if a medical professional (amongst other categories of defendants) is suffering from a psychiatric illness? Much to a medical professional's chagrin, there will always be attempts, and successful attempts at that, to extricate “sanity from insanity” as evident from the following two cases, which are relevant, but do not include medical professionals as litigants or defendants. In Adamson v. Motor Vehicle Insurance Trust (1957), a patient with schizophrenic delusions ran over a pedestrian. The court accepted the comparison of the deluded patient's driving capacity to that of a “reasonable sane driver”, holding the patient liable [ 21 ]. In Carrier v. Bonham (2002), a schizophrenic patient escapee from hospital jumped in front of vehicle with the intent to commit suicide. However, the patient is unharmed. However the driver of the vehicle developed a recognised psychiatric condition due to this event. The court held the schizophrenic patient liable [ 22 ].

What standards are required of medical professionals and specialists, as far as pre-procedure disclosure is concerned? Originally, the obsolete Bolam test was in widespread use. The Bolam test, as extracted from Bolam v Friern Barnet Hospital Management Committee (1957) [ 23 ] states that a professional body determines the standard of skill and care, no negligence-liability is extended if a procedure is not a common practice amongst peers, and small procedural risks need not be explained. In the aspect of divulgence of miniscule risks to patients, the Bolan test was overruled by the Roger v Whitaker principle, from a case where a specialist was held liable for not divulging sympathetic ophthalmia as a possible (albeit small) risk for an eye procedure [ 24 ]. The Roger v Whitaker principle states that all risks, including very small risks, must be divulged to a patient prior to consent for a procedure.

Although obvious, it should be emphasised that the progressive accruement of medical knowledge with time is irrelevant whilst considering older cases of medical negligence [ 25 ].

Cosmetic surgeons and professionals face high risks of negligence claims. An Australian study reviewed 481 malpractice claims (2002–2008), showing 16% of legal disputes involving consent over cosmetic procedures, 70% claiming non-disclosure of a particular complication by their medical provider; and liposuction, breast augmentation, face/neck lifts, eye/brow lifts, and rhinoplasty/septoplasty composing 70% of cases [ 26 ].

The key liability-related segment of CLA legislation is CLA 5O (Standard of care for professionals) which excludes liability if the standard is widely accepted by Australian peers, even if one of multiple differing non-consensus standards [ 16 ]. However, it is necessary to consider the circumstances in which community standards prevail over professional standards? What can be a good “definition” of the expected standard of care? As paraphrased from the CLA s5B(1) and s5B(2), the expected standard of care is the standard of care “of the reasonable person in response to a reasonably foreseeable risk which must be real, highly-probable despite precautions, and not far-fetched”. This is particularly important when standard clinical practices are involved, but unforeseeable events as in the Hunter case [ 27 ]. In this case, the defendant, a psychiatric patient, kills his friend while being driven by him from the hospital to his mother's home for further treatment. The CLA legislation places the onus and trust on bona fide medical opinion. This supersedes any Common Law duty of care to the dead friend's relatives, and removes liability from the part of the health service [ 16 ].

- Establishing causation, “remoteness”, and the scope of liability

Clichéd as it may be, it has to be emphasised that damage is the gist of negligence and without damage which can be “recoverable in law”, there can be no liability [ 28 ]. It must be demonstrable that damage must be caused by the defendant's negligence in a factual breach of a duty of care to the plaintiff [ 28 ]. Establishment of causation is indeed a web of intrigues, and often ambiguous, being adjudicated on a case by case basis. As succinctly stated, “The field of debate, causation, is one of the most difficult in the law, and one about which abstract discussion is seldom valuable for courts and those who practise in them” [ 29 ].

The “but for” test, “remoteness”, and legislation

In the Barnett case [ 30 ], a man was poisoned by Arsenic in his tea. As the emergency department doctor was sick at home, the man was asked to go home and call his own doctor, but died 5 h later. It was determined that the hospital was not negligent although the doctor was “negligent in not attending the emergency department”. This was because an intravenous drip would not have been given at the emergency hospital even 4 h after assessment, and even if it had been, the survival chances were poor. Herein, there was no causation because the “but-for” test for negligence requires the comparison of what actually happened with what hypothetically might have.

What is the chance of recovery or better outcome that needs to be shown to for the “but-for” test of negligence? In Tabet v Gett (2010), a patient with chicken pox showing symptoms and signs of Varicella Zoster meningitis was treated for the same. However, the patient developed convulsions after a few days, after which a CT scan was taken showing a previously undiagnosed brain tumour. The patient developed residual neurological deficits. However, the relevant medical establishment was held not negligent for not doing a CT scan earlier because the chance of recovery without neurological deficit was not in the least doing a CT scan earlier during the diagnosis of Varicella Zoster meningitis. The court determined that for the plaintiff to show “the loss of the chance of a better outcome” in clinical cases with bad prognoses, a greater than 50% chance of recovery needs to be demonstrable. This behooves a 50% chance of recovery, for the “but-for” test to be positive in showing a defendant's negligence [ 31 ].

As indicated earlier, the Roger v Whitaker principle emphasises the necessity of all risks, including very small risks (like sympathetic ophthalmia in this case), to be divulged to a patient prior to procedural consent [ 24 ]. In Chappel v Hart (1998) the risk of oesophageal perforation was not stated pre-operatively despite concerned questioning by the patient [ 32 ]. During the patient's oesophageal diverticular surgery, the complications of oesophageal perforation and mediastinitis arose, resulting in a partial loss of voice. It was determined that the doctor's failure to warn the patient caused the latter's injuries, as the patient might have desisted from undergoing the procedure, if he was aware of the same. The pre-CLA cases Rogers v Whitaker (1992) and Chappel v Hart (1998) emphasise the necessity of clinical personnel to inform the patient of all possible risks, however small.

In the 2013 post-CLA case, Wallace v Kam (2013), the information-divulgence was deemed inadequate and faulty, but the court decision favoured the defendant neurosurgeon [ 33 ]. Spine surgery has the inherent risks of temporary paralysis (neuropraxia) or permanent paralysis of spinal nerves. The patient was not warned of these by the doctor. However, after an unsuccessful spine surgery, the patient developed neuropraxia with severe pain for some time. The patient was clear in stating that he would not have undergone the surgery if he had known of all risks (including permanent paralysis), but he would have undergone the surgery if he had known about neuropraxia that eventuated. These nuances were crucial in the court finding in favour of the defendant neurosurgeon, who was held not liable. The differences between subclauses (a) and (b) of CLA 5D(1) was further dissected in this case [ 16 ]. Determination of whether the neurosurgeon's negligence caused specific harm comprised of:

• o Did the neurosurgeon's negligence cause specific harm? Yes, it did.
• o CLA s5D(3) was used to determine what the injured party would have done if the negligent individual had not been negligent.
• o Was the neurosurgeon's negligence within the scope of liability? No, it did not.
• o CLA 5D(4) was used to determine the scope of liability in order to evaluate if and why responsibility for the neuropraxia be imposed on the neurosurgeon. It was determined by the court that there was “remoteness” of harm from the negligent act, and that the patient should not be compensated for the materialisation of a risk that he would have been prepared to accept.

Factual causation requires establishing whether the harm would have occurred without the negligent act (“but for” test) [ 34 ]. It involves a subjective determination of what the harmed person would have done if the negligent individual had not been negligent, using CLA s5D (3) . Scope of liability involves assessment of the magnitude of liability, which is inversely proportionate to “reasonable foreseeability”, “remoteness” of harm from the negligent act, and new intervening events. It involves a consideration of if, and why responsibility for a specific harm is to be imposed on negligent party using CLA s5D(4) .

Supervening and unrelated injury or illness

Two medicolegal principles pertaining to supervening and/or unrelated clinical conditions can extracted from the following two pre-CLA era cases. In Baker v Willoughby (1970), the plaintiff's first leg injury was inflicted by the first defendant. Subsequently, a bullet injury on the same leg inflicted by a bank robber resulted in the amputation of that leg. It was determined by the court that the latter event did not reduce the first defendant's liability in the causation of the plaintiff's first leg injury [ 35 ]. This means that the legal liabilities pertaining to an injury on account of a clinician's negligence will not be obviated by a similar second injury because of a subsequent event. In Jobling v Associated Dairies (1982), it was determined that if a plaintiff suffers a debilitating illness which overwhelms an original injury due to the defendant's negligence, that may reduce the defendant's liability [ 36 ].

The “Egg shell skull” rule

The term “egg shell skull” rule originated in the Dulieu v White & Sons (1901) judgment, in which the following pithy statement can be found: “If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart” [ 37 ]. In Smith v Leech Brain & Co (1962), a widow claimed against her dead husband's employer (defendant) that their negligence led to a burn on her dead husband's lip “leading to stem-cell transformation to carcinoma” [ 38 ]. The court ruled that it was unnecessary either to show that death by cancer was foreseeable or that an ordinary person would not have died from the injury. It was determined using the “egg shell rule” that the defendant was liable because the defendant must take the patient, victim, or plaintiff as the defendant finds him/her. The “egg shell rule” has important medicolegal ramifications, as clinicians cannot use a particular patient's specific predispositions to pathology and disease as legal excuses to diminish culpability.

- Consideration of defenses

Defenses to litigation that may be used by the defendant(s) include contributory negligence and new intervening events. However, it is beyond the scope of this paper to discuss these in detail.

- Consideration of damages and compensation

The fifth step is to consider damages and compensation using CLA s11-s18 which replaced several Common Law precedents prior to 2002. Specifically, CLA s12 places a cap on economic loss(<$ 1500/week ✕ 3), CLA s13 makes adjustments for future economic loss, CLA s16 covers non-economic loss and caps, CLA s17 indexes the maximum amount for non-economic loss, and CLA s18 covers interest and damages [ 16 ].

5. Poignant conflict – Delivery of quality medical care “versus” Compensation for unexpected outcomes

There is an inherent conflict between compensating patients for unanticipated or rare outcomes, and the necessity to attain or maintain management quality. The analysis in Runciman et al. [ 39 ] observes this conflict by stating, “Understanding the distinction between blameworthy behavior and inevitable human errors and appreciating the systemic factors that underlie most failures in complex systems are essential … It is important to meet society's needs to blame and exact retribution when appropriate. However, this should not be a prerequisite for compensation …”. As the tort of negligence foists the onus of damage to a “negligent act of commission or omission”; naming, shaming, blaming, castigating, and punishing well-intentioned individuals(doctors and medical staff); may alienate the very individuals endowed with the capacity to preclude such harm [ 39 ].

New Zealand (1974) and Sweden (1975) introduced a no-fault medical compensation scheme [ 40 ], with concurrent jettisoning of their older medical negligence-based compensation system. Damages are shelled out by an insurer-pool, but the standard of care is overseen by an independent body, thereby dichotomising compensation and deterrence. Finland (1987) and Denmark (1992) followed suit with a scheme funded by a private system [ 40 ]. France (2002) [ 41 ] and Belgium (2010) [ 42 ] were more circumspect in establishing a more confined and controlled scheme compared to the Scandinavian countries. The United States has medical tort legislation at the state level - States statutes have caps/limitations on damages, liability, attorney-fees and awards from collateral sources [ 43 ]. Medical practitioners in the UK and Australia, however, do not have the “luxury” of a no-fault compensation system. They still operate under the Common Law and statute-based negligence system.

6. Medical errors and negligence claims

Patients impacted by medical negligent medical care may or may not file a lawsuit, and ironically(and conversely), patients who may have recovered damages may not have come under a doctor's negligent care [ 39 ]. An American study involved a random sample of 1452 closed malpractice claims from 5 insurers [ 44 ]. The alarming data was that for 3% of claims, there were no verifiable medical injuries, and 37% did not involve errors. Logically, most claims that involved injuries due to error did have medical injuries/errors (73%) [ 44 ]. However, the “reassuring data” was that most of the claims not associated with errors (72%) or injuries (84%) did not result in compensation [ 44 ].

In a recent online publication, “Literature Review: Medication Safety in Australia. Australian Commission on Safety and Quality in Health Care”, Roughhead et al. include data on adverse events and medication errors owing to negligence by medical personnel [ 10 ]. On examining the data presented therein, it is indeed surprising that the magnitude of medical negligence claims is not commensurate with those statistics. For example, interspersed in the section, “Medication safety in the hospital setting” therein, the data pertaining to medication errors include medicine administration errors (5–10%), intravenous medication administration errors (70%), harm-inducing prescribing errors (2.5%), clinical prescribing errors (0.2%), software-attributable prescribing errors (0.6%), procedural prescribing errors (5%), discharge-summary errors (12–80%), and post-transition medication-initiation delay errors (20%)

Are negligence claims in Australia commensurate with this? The latest Australian data (except from Western Australia) from the Australian Institute of Health and Welfare (AIHW) [ 45 ] for the years 2012–2013 show that new public sector claims was less (~950) than 2008, 2009, 2010, and 2011 (1200–1400). Closed public sector claims was higher (~1500) than 2008, 2009, 2010, and 2011 (1100–1400). New private sector claims remained steady (3300) from 2010 to 2012 (3200). Closed private sector claims increased (3800) from 2010 to 2012 (2400). It is clear that the number of medical negligence claims is disproportionate to medication error data.

7. The watershed cases of GMC v BAWA-GARBA and Nurse Amaro – “Manslaughter by gross negligence”

The recent “manslaughter by gross negligence” case brought by the UK General Medical Council against the Paediatric Registrar Hadiza Bawa-Garba and the Registered Nurse Isabel Amaro resulted in a judgment( https://www.blackstonechambers.com/documents/636/GMC_v_BAWA-GARBA.pdf ) which has ruffled a lot of feathers in the medical and nursing communities this year [ 46 ]. The 2018 January judgment included a version of events which are paraphrased and summarised here. Six-year-old Jack Adcock was admitted to the Children's Assessment Unit (CAU) at Leicester Royal Infirmary following a referral from his General Practioner. Jack had Down Syndrome, an associated underlying cardiac condition, and a recent history of dyspnoea, diarrhoea, and vomiting. He was treated by Kadiza Bawa-Garba, a paediatric registrar in year six of her postgraduate training, who was solely in charge of the emergency department and acute Children's Assessment Unit that day. A paediatric arrest team was summoned after Jack collapsed. When Bawa-Garba came into the Jack's Patient Bay, she promptly called the resuscitation off, stating that Jack had “do not resuscitate (DNR)” instruction added earlier in the day. A first-year doctor went through the notes, and stated that there was no DNR-entry in Jack's file. Furthermore, Bawa-Garba explicitly stated that she did not ask the name of the patient that she was treating. Bawa-Garba also agreed that she missed the significance of the Jack's aberrant blood test results showing deranged renal function, and casting doubts on her initial diagnosis of moderate dehydration complicating gastroenteritis. Bawa-Garba missed the clear-cut clinical manifestations of sepsis. Bawa-Garba failed to specify to Jack's mother that Jack's regular hypotensive medication, Enalapril should be discontinued as it could aggravate his clinical condition. This led to Jack's mother giving Jack the medication. Bawa-Garba failed to offer clear direction to her team, or call on the assistance of a senior consultant, in the light of what was obviously a serious medical emergency. The Registered Nurse Isabel Amaro wrongly indicated that Jack's case was a ‘low-level concern’, despite the fact that he required high oxygen levels. Additionally, Amaro's record-keeping of vital signs were incomplete and substandard. Moreover, Amaro did not raise concerns about Jack's deteriorating condition with her senior nursing and medical colleagues. Bawa-Garba just returned from a circa year-long maternity leave and did not undergo an induction that she ought to have been provided. There was a patient overload that day, with three medical colleagues away for most of Bawa-Garba's shift-duration. Bawa-Garba was obviously fatigued owing to the absence of a break during her 13-h shift. Regardless, these circumstances did not mollify any aspect of the judgment. It is clear now that systemic failures, pervasive understaffing, colleague absenteeism, hospital software issues, or overwhelming patient burdens cannot be used as defences [ 47 ], especially when a patient under a clinician's care. Moreover, there is considerable angst in the medical and nursing communities in the extent Bawa-Garba's written reflections (ePortfolio) and submissions were used against her [ 48 ]. The GMC which Bawa-Garba trusted seemed to have let her down, although this subjective standpoint may be contested [ 47 ]. It is likely that doctors and nurses working in acute units like trauma, emergency units, casualties, and paediatrics will perpetually be on tenterhooks, and will refrain from candid factual submissions in future. Moreover, maintaining a reflective journal, personal memoir, or portfolio may turn out to be an exercise in self-incrimination [ 48 ]. Will the expected forthrightness and transparency expected from clinical staff be obsolete soon? Will maintaining a reflective eJournal or ePortfolio be a liability to the health professional [ 48 ]? Any loss of life in an emergency hospital or clinical setting, especially in patients with equivocal clinical presentations, will seem to invite the possibility of being tried for manslaughter under Common Law, including criminal manslaughter, despite the lack of relevant clauses in the CLA. Bawa-Garba was given permission to appeal against her deregistration in 2018 March? Bawa-Graba won her appeal to practice again, with incurred costs to be paid back to her and her crowd-funders [ 49 ]. Bawa-Graba was restored to the medical register on 2019 April 9 via the verdict of the Medical Tribunal Practitioners Service (MPTS), permitting her to practice, albeit under close supervision [ 50 ]. The nurse Isabel Amaro, who represented herself unlike Bawa-Graba, still remains struck off the Nursing Register [ 51 ]. The differences between relevant segments of nursing and medical tribunals, and of mitigating circumstances between Bawa-Garba and Amaro are minimal [ 51 ]. However, it seems that nurse Amaro was treated much more harshly than Bawa-Garba.

8. Discussion, implications for practice, and conclusions - Strategies in nursing to minimise legal liabilities

There are several strategies to avoid legal liabilities in nursing. Primum non nocere, meaning ‘first do no harm’, is a centuries-old guiding principle for health professionals. This aphorism is pertinent to both therapeutic interventions, and the preclusion of avoidable situations like working with immunocompromised patients while suffering a respiratory infection [ 52 ]. Following this axiom will assist nurses to act lawfully. Nurses can also prevent specific unlawful activity by adopting the following strategies. Patient confidentiality and privacy should be fervently guarded. Excepting exceptional emergencies, information regarding health status, procedure-details, procedure-risks, and alternative therapeutic options should be rendered [ 53 ]. Consent should be garnered from the patient, guardian, attorney, or proxy prior to medical procedures. On encountering legal hurdles, certain safeguards are available for nurses. Specific exclusion contract clauses may preclude liability for patient-harm, and shift liability vicariously to the employing institution. In the absence of this, a nurse ought to have an adequate level of appropriate insurance cover. The nurses' degree of autonomy may enhance liability; and hierarchical power wielded by another health or administrative professional over the nurse may diminish liability [ 54 ].

The best available evidence to date indicate that hospital nursing medication administration errors (excluding timing errors) happen in approximately 9% of medication administrations [ 13 ]. Ensuring adequate staffing and regular refresher-training of health personnel may preclude patient harm [ 9 ]. Adequate documentation, speedy complaints-resolution, and rigorous incident reporting may remove or deflect liability and/or the onus of proof [ 11 ]. Academic detailing reduces Schedule 8 medication prescription errors, and double-checking and inter-disciplinary communication strategies (involving pharmacists) have been shown to be efficacious in reducing negligence involving medication administration errors [ 13 ]. Despite these studies being small, these strategies have been shown to be successful in Australia as reviewed before [ 13 , 55 ].

To prove negligence, the plaintiff needs to demonstrate the defendant's duty of care, the standard of the defendant's expected caregiving, and legal breach of that duty of care to the plaintiff. The duty of care of a medical professional is not to cause a physical injury that is “reasonably foreseeable”. The CLA is the legal yardstick in medicolegal negligence today. However, cases (Common Law) where the relationship between an employer or health-professional, and the first-degree relatives of patients or injured victim are still relevant without being overruled by the CLA. If and after a litigant successfully attributes a duty of care to the defendant, the litigant must prove the standard of care that is expected of the defendant and that the defendant breached that standard of care. Inexperience is irrelevant. All risks, including very small risks, must be divulged to a patient prior to consent for a procedure. The CLA excludes liability if the standard is widely accepted by Australian peers, even if one of multiple differing non-consensus standards. To prove negligence, it must be demonstrable that damage must be caused by the defendant's negligence in a factual breach of a duty of care to the plaintiff. The “but-for” test for negligence requires the comparison of what actually happened with what hypothetically might have. The “egg shell rule” implies that a particular patient's specific predispositions to pathology and disease cannot be used as an excuse to diminish culpability.

It is important for a nurse to act lawfully, as unlawful activity by nurses puts patients and nursing careers at risk. The constituents of lawful or unlawful activity in nursing under the courts were expounded. Relevant medicolegal issues and negligence statistics were discussed. Strategies to assist nurses in minimising unlawful action were deliberated. Unlike New Zealand which has a no-fault medical compensation scheme, Australian health professionals still operate under common law and negligence statutes. Adverse events are high in Australia. However, new claims are decreasing. Negligence claim-numbers are disproportionate to statistics on adverse events. Consistent verification, acknowledged disclosure, compliance with legislation and common law, fastidious adherence to established professional norms, and preclusion of practices leading to poor standards of care are essential to the nursing professional.

Author contributions

Rajkumar Cheluvappa – Research, writing, submitting, revising, and proof-editing

Selwyn Selvendran – Ideas, writing

Provenance and peer review

Not commissioned, externally peer reviewed.

Declaration of competing interest

Neither author has conflicts of interest or potential conflicts of interest. Neither author has financial or other interests in any “product or distributor of the product”. Neither author has associations like consultancies, relevant stock ownership, relevant equity interests or patent-licensing arrangements.

Acknowledgements

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Nursing and the law

Palatnik, AnneMarie MSN, RN, APN-BC

Director of Clinical Learning Center for Learning Virtua Health Mount Laurel, N.J. [email protected]

Nursing and the law is more than just taking steps to make sure your nursing practice is safe and legal.

When we talk about legal issues and nursing, most often we're referring to things that we as nurses need to do to avoid legal ramifications of practice. In this issue, Sally Austin shares "Seven legal tips for safe nursing practice," covering topics from medication administration to proper use of equipment. These are seven must-do's in practice, and should be done on every patient, every day to help bring about positive patient outcomes and enhance an outstanding patient experience. But as you read this article please try to remember that there are more than just seven legal tips, and that patient outcomes, not concern for legal implications, should drive our practice.

Nurses also are involved in the "Law and Order" side of legal issues and nursing. Forensic nurses help identify and preserve evidence during the investigation of crimes. Legal nurse consultants assist in the prosecution or defense of alleged offenders.

According to the International Association of Forensic Nurses, "Forensic nursing is the application of nursing science to public or legal proceedings. Forensic nurses have the ability to blend the forensic aspects of healthcare with the bio-psycho-social education obtained during their nurse education to assist in the investigation and treatment of trauma and/or death of victims and perpetrators of abuse, violence, criminal activity, and traumatic accidents." The forensic nurse not only examines and cares for the patient but also maintains the integrity of the evidence found on or with the patient.

According to the American Association of Legal Nurse Consultants, "the legal nurse consultant is a licensed, registered nurse who performs a critical analysis of clinical and administrative nursing practice, healthcare facts and issues and their outcomes for the legal profession, healthcare professions, consumers of healthcare and legal services, and others as appropriate. With a strong educational and experiential foundation, the legal nurse consultant is qualified to assess adherence to standards and guidelines of healthcare practice as it applies to the nursing and healthcare professions."

The forensic nurse can also act as a legal nurse consultant for the prosecution or defense, presenting evidence found as a result of patient assessment, or providing insight to patient care and adherence to standards of practice. According to http://www.lawyersusaonline.com , legal nurse consultants provide cost-effective litigation assistance.

So if nurses provide assistance to both the law and order sides, why don't we see nurses in these roles on any of the TV crime dramas? Maybe this is an opportunity for one of us to have our 15 minutes of fame. Who's up for the challenge?

Until the next time: Be healthy, be happy, and be great advocates for your patients!

AnneMarie Palatnik, MSN, RN, APN-BC

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Why Should I Care About Nursing Law and Where Does It Come from?

One of the purposes for the posts on this site is to give you important information that can impact, protect or enhance your practice. Over the last 200 years, nursing has grown from an untrained job to a highly educated and respected profession. Law and ethics are core elements of daily nursing practice. While you may not realize it, much of what you do and who you are as a professional are grounded in legal developments of the past 100-plus years. Let’s start with some basics.

There are four key sources of law that affect nursing practice – Constitutional, statutory, administrative and case law. Most of the time, these types of law operate indirectly, behind the scenes, and many nurses are unaware of them until something brings one or more of them to the surface.

Second, legislatures at both the state and federal level enact statutes that regulate aspects of healthcare. Federal laws such as the Patient Self-Determination Act, the Americans with Disabilities Act and HIPAA (the Health Insurance Portability and Accountability Act), to name a few, are laws that have affected how nurses practice in the last twenty or more years. State laws reinforce or set stricter controls over healthcare services, the scope of nursing practice (e.g., nurse practitioners’ ability to prescribe) and who is required to report abuse, among others.

Administrative rules and regulations are not statutes per se but they do have the force of statutes and they can be challenged through the state’s Attorney General or in court. Anyone subject to disciplinary action under the board or agency’s authority has the right to due process, meaning the right to a hearing, advance notice, representation and appeal, among others. Practitioners can appeal the results of a disciplinary hearing to the first level of courts in that jurisdiction and from there to the mid-level and highest level appeals courts.

Case law has a less direct day-to-day impact on nursing practice but has shaped and advanced the profession. Courts issue rulings on challenges to board or agency rules, disciplinary actions, the constitutionality of statutes and in civil and criminal cases. These rulings set precedents for lower courts and legislatures to follow and consequently can impact a profession. For example, nursing was still a physician-dominated profession into the 1980s but courts increasingly recognized it as a distinct profession, separate from medicine, and acknowledged that there is a nurse-patient relationship apart from a doctor-patient relationship. (See, for example, Lunsford v. Board of Nurse Examiners , 648 S.W.2d 391, a Texas Court of Appeals case from 1983.)

This is a very brief summary of the sources of law that inform and impact your professional nursing practice. In future posts, I will show you more practical aspects of nursing law and how you can use the information to protect your practice, enhance patient safety and spot trends developing in the profession.

written by BJ Strickland

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BJ Strickland

Beth J. (“BJ”) Strickland is from Tennessee. She is an RN with Bachelor’s and Master’s degrees in nursing and a Master’s degree in history from Vanderbilt University. She is also a licensed attorney with her Juris Doctor degree from the University of Tennessee. She has practiced nursing since 1976 and has experience in clinical nursing, administration and teaching in several clinical areas. She has practiced law in state and federal courts in Tennessee since 1996 with an interest in healthcare risk management, employment law and medical malpractice. She retired from the U.S. Army in 2015 as a Lieutenant Colonel. This article is not legal advice. It is offered only as information about nursing topics of interest. If you have legal questions, please speak with a licensed attorney in your area. Neither the author or the website publisher are responsible for any actions a reader may take based on material in this article or on this website.

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Online Undergraduate Course

Module components.

• Assignments

Laws: Civil, Criminal, Administrative

• Laws: Federal and State
• Elements of Malpractice

NURS 450 - RN to BSN Transition: Implications for Practice, Policy and the Profession

Module 6: legal considerations.

Laws vary in types and in how each are enacted. Below are brief explanations of civil, criminal, and statutory laws that affect professional nursing practice. Examples of each type of law are provided. Two major types of categories of law have been created to deal with conduct that is considered unacceptable—criminal law and civil law. Nurses generally are more familiar with civil law and, in particular, the branch of civil law that deals with torts.

Civil law is the law governing the relations between private persons or organizations. Civil law regulates the conduct of private individuals, which then are enforced through the courts as damages or money compensation (Finkelman, 2019). Malpractice cases are a type of civil action or civil case, meaning the victim’s compensation is being fought for, often without regard for punishing the defendant. Medical malpractice cases aim to gain financial support for help with medical costs, lost income, pain, suffering, and disability. A patient suing a nurse because of an injury seeks compensation and this is an example of a civil case. This would be referred to as a tort. A tort is a civil wrong or injury committed by one person against another person or a property. The wrong results from a breach in one's legal duty regarding interpersonal relationships between private persons (Finkelman, 2019). That means a tort addresses the legal rights of patients and the responsibilities of the nurse in the nurse patient relationship. Some torts specific to nursing and nursing practice include things like negligence and violations relating to patient confidentiality.

Criminal law deals with crimes and their prosecution. These are crimes against the public or members of the public. Criminal cases are not brought by individuals or estates but by government prosecutors who work on behalf of the victims or the state. The goal in criminal cases is the punishment, including incarceration, of the defendants. Prosecutors must be able to prove that the defendant committed the crime in question beyond a reasonable doubt. Criminal law is the area of law concerned with allegations of illegal actions that were allegedly performed by the provider that must be proven beyond a reasonable doubt. A nurse practitioner who billed Medicare for  services not rendered or who submitted duplicate claims to Medicare could be charged with Medicare fraud by the federal government specifically Center for Medicare and Medicaid Services (CMS). This is an example of a criminal case.

Administrative law addresses rules or regulations made and enforced by governmental agencies. An example of an administrative law is the state Nurse Practice Act (NPA). The Board of Nursing is the administrative arm that enforces the states NPA that is the law for governing nursing practice in each state and is used for guidance to action. Registered nurses licensed in the state of Maryland are expected to know and practice under the NPA ( https://mbon.maryland.gov/Pages/nurse-practice-act.aspx ) Maryland laws and regulations can be found on the internet by searching for Annotated Code of Maryland (Health Occupations Article, Title 8. Nurses) and  Code of Maryland Regulations (COMAR) . The relevant regulations are found under COMAR Title 10, Subtitle 27.

Licensed nurses may have their RN license revoked if found to deviate from the NPA law. For example, the Virginia Board of Nursing, in December 2020, encumbered Nurse X’s license after finding the nurse had diverted narcotics. While on duty, Nurse X was found guilty of diverting narcotic medication from patients and self-injecting stolen narcotics for personal use. Nurse X was found unable to practice safely. Nurse X’s license was suspected for two years. During that time, Nurse X participated in the Health Practitioners Monitoring Program. Upon completion, Nurse X’s license was reinstated. Note : Diverting is stealing and this is a crime. Drug Diversion is a Federal Crime under the Controlled Substances Act. Diverting prescription medications is a federal crime under the Controlled Substances Act (CSA). The CSA applies to all healthcare providers, including (but not limited to) those that are registered with the DEA (U.S. Department of Justice, n.d.) (https://www.deadiversion.usdoj.gov/21cfr/21usc/)

Module Components - Overview | Assignments Topics - Laws: Civil, Criminal, Administrative | Laws: Federal and State | Elements of Malpractice

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Five Legal Issues in Nursing Everyone Needs to Know

• There are many legal issues in nursing to be aware of during one’s nursing practice.  
• Violations of any of these legal issues can result in ramifications as severe as termination of employment, loss of licensure, and even jail time.  
• The five major areas for legal concerns include negligence or malpractice, defamation, patient confidentiality, battery, and mandatory reporting.  

Sherice Campbell

Nursing is an honorable and rewarding profession that allows you to serve humanity.   

However, it has its liability issues and legal pitfalls. You should know the legal considerations when stepping into a professional career. Unaware nurses may have to face significant ramifications.   

You may have studied legal and ethical issues in the nursing profession. But when you are working as a registered nurse in a healthcare setting then it becomes your legal duty to fully comply with the laws.   

You can face serious consequences such as; admonishment and cancellation. Those who are well aware of their legal responsibilities and obligations can better advocate for themselves or on behalf of their patients if a breach occurs.   

While the implications vary widely based on the accusations, nurses may face the following:   

• Loss of trust by patients, colleagues, and employers   
• Unpaid leave from work   
• Demotion   
• Job termination   
• Criminal charges   
• Heavy fines or penalties   
• Jail time   
• Loss of any specialized board credentials and certifications   
• Cancellation of licensure on a temporary or permanent basis   

Five Legal Issues in Nursing

These five legal issues in nursing are liable to registered nurses working in any healthcare setting:

• Negligence or Malpractice   
• Patient confidentiality   
• Defamation   
• Battery    
• Mandatory reporting    

Negligence or Malpractice

As the name shows negligence is referred to;   

• Overlooking or lacking in due care   
• Carelessness   
• Deviation from the set standard of care   

Malpractice and negligence are similar terms that are used interchangeably .  

However, malpractice is a more specific term that only focuses on standards of care. Negligence can sometimes be unintentional but malpractice is considered intentional.  

The law defines it as the “failure of a professional person in accordance with prevailing professional standards or failure to foresee the consequences of their actions.”  

A registered nurse can be liable for negligence and malpractice when their actions result in serious mistakes.  

For example; commitment of a medication error by administering the wrong medication, lack of provider notification, lack of communication, or forgetting to note the patient status. In such scenarios, a nurse can be liable for malpractice allegations.   

Patient Confidentiality

Health Insurance Probability and Accountability Act ( HIPAA ) 1996, applies to nurses. This act protects patients’ confidential electronic information and allows patients to control their identifiable health information.  

A nurse patient-relationship is one-to-one, which makes a nurse privy to a variety of patient’s health records. According to the Code of Ethics for nurses, a nurse has to maintain the confidentiality and privacy of patients’ electronic data, insurance records, or other health-related records.  

If a nurse fails to protect this information or share it with any unauthorized individual through any platform, then he/she will have to face legal actions.   

Defamation is referred to “making some accusatory or false statements”.  

These statements can be libel i.e., written statements or slanders .  

The example; making fun of a colleague, patient, or supervisor on social media, character assassination, or gossiping about false claims that can harm someone’s reputation.    

Battery is associated with physical harassment or “touching someone without their consent” according to RegisteredNursing.org .  

Nurses should consider when proximity or physical contact with the patient is required. They should always ask permission before further proceeding.  

Patients have the right to deny the help or physical interaction and even the treatment. They can ask for legal activity if one touches them without their proper consent.    

Mandatory Reporting

It’s a nurse’s professional, moral, and legal duty to report abuse, neglect, epidemics, or any other communicable to infectious diseases.  

One should also report if they find any other healthcare provider is performing unsafe or illegal practices.  

Nurses should do everything in the best interest of their patients.   

The Bottom Line

These are some of the legal issues in nursing that one may face during their career. A nurse should stay informed and updated about changing regulations.  

One should know and understand their state nurse practice act so that one can familiarize oneself with the rules. A nurse should uphold the ANA and other professional nursing associations’ code of ethics.  

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Diagnoses | Inside Scoop | Legal / Ethical How Can Nurses Help Stop Medical Gaslighting? Medical gaslighting can happen when a patient’s legitimate medical concern is dismissed by their provider.    Women are most commonly victims of medical gaslighting, along with...

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Case law is law that is based on judicial decisions rather than law based on constitutions , statutes , or regulations . Case law concerns unique disputes resolved by courts using the concrete facts of a case. By contrast, statutes and regulations are written abstractly.

Case law, also used interchangeably with common law , refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. In that sense, case law differs from one jurisdiction to another. For example, a case in New York would not be decided using case law from California. Instead, New York courts will analyze the issue relying on binding precedent .  If no previous decisions on the issue exist, New York courts might look at precedents from a different jurisdiction, that would be persuasive authority rather than binding authority. Other factors such as how old the decision is and the closeness to the facts will affect the authority of a specific case in common law.

Federalism also plays a major role in determining the authority of case law in a particular court. Indeed, each circuit has its own set of binding case law. As a result, a judgment rendered in the Ninth Circuit will not be binding in the Second Circuit but will have persuasive authority. However, decisions rendered by the Supreme Court of the United States are binding on all federal courts, and on state courts regarding issues of the Constitution and federal law.

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5.2 Understanding the Legal System

Understanding the legal system.

There are several types of laws and regulations that affect nursing practice. Laws are rules and regulations created by a society and enforced by courts and professional licensure boards. Nurses are responsible for being aware of public and private laws that affect client care, as well as legal actions that can result when these laws are broken.

Laws are generally classified as public or private law. Public law regulates relations of individuals with the government or institutions, whereas private law governs the relationships between private parties.

There are several types of public law, including constitutional, statutory, administrative, and criminal law.

• Constitutional law refers to the rights, privileges, and responsibilities established by the U.S. Constitution. [1] The right to privacy is an example of a patient right based on constitutional law.
• Statutory law refers to written laws enacted by the federal or state legislature. For example, the Nurse Practice Act in each state is an example of statutory law enacted by that state’s legislature. The Health Insurance Portability and Accountability Act (HIPAA) is an example of a federal statutory law. HIPAA required the creation of national standards to protect sensitive client health information from being disclosed without the client’s consent or knowledge.
• Administrative law is law created by government agencies that have been granted the authority to establish rules and regulations to protect the public. [2] An example of federal administrative law is the regulations set by the Occupational Safety and Health Administration (OSHA). OSHA was established by Congress to ensure safe and healthy working conditions for employees by setting and enforcing federal standards. An example of administrative law at the state level is the State Board of Nursing (SBON). The SBON is a group of individuals in each state, established by that state’s legislature, to develop, review, and enforce the Nurse Practice Act. The SBON also issues nursing licenses to qualified candidates, investigates reports of nursing misconduct, and implements consequences for nurses who have violated the Nurse Practice Act.
• Criminal law is a system of laws concerned with punishment of individuals who commit crimes. [3] A crime is a behavior defined by Congress or state legislature as deserving of punishment. Crimes are classified as felonies, misdemeanors, and infractions. Conviction for a crime requires evidence to show the defendant is guilty beyond a shadow of doubt. This means the prosecution must convince a jury there is no reasonable explanation other than guilty that can come from the evidence presented at trial. In the United States, an individual is considered innocent until proven guilty. See Figure 5.1 [4] for an illustration of a trial with a jury.

Serious crimes that can result in imprisonment for longer than one year are called felonies . Felony convictions can also result in the loss of voting rights, the ability to own or use guns, and the loss of one’s nursing license. An example of a felony committed by some nurses is drug diversion of controlled substances.

Misdemeanors are less serious crimes resulting in penalties of fines and/or imprisonment for less than one year. For example, in Wisconsin, misdemeanors are categorized as Class A, B, or C based on their sentencing. Class A misdemeanors are sentenced to a fine not to exceed $10,000 or imprisonment not to exceed nine months, or both. Class B misdemeanors are sentenced to a fine not to exceed $1,000 or imprisonment not to exceed 90 days, or both. Class C misdemeanors are sentenced to a fine not to exceed $500 or imprisonment not to exceed 30 days, or both. [5] Examples of misdemeanors include battery, possession of controlled substances, petty theft, disorderly conduct, and driving under the influence (DUI) charges. Although considered less serious crimes, misdemeanors can impact an individual’s ability to obtain or maintain a nursing license.

Nurses who are found guilty of misdemeanors or felonies, regardless if the violation is related to the practice of nursing, must typically report these violations to their state’s Board of Nursing.

Infractions are minor offenses, such as speeding tickets, that result in fines but not jail time. Infractions do not generally impact nursing licensure unless there is a significant quantity of them over a short period of time.

Sample Case

An LPN working for a hospice agency was accused of stealing a patient’s pain medications and substituting them with anti-seizure medication. The family asserted the actions of the LPN prolonged the patient’s suffering. The LPN served time in prison for diverting the patient’s medications. [6]

Private Law

Private law, also referred to as civil law , focuses on the rights, responsibilities, and legal relationships between private citizens. Civil law typically involves compensation to the injured party. Unlike criminal law that requires a jury to determine a defendant is guilty beyond reasonable doubt, civil law only requires a certainty of guilt of greater than 50 percent. [7] See Figure 5.2 [8] illustrating balancing the evidence to determine the certainty of guilt. Any nurse can be impacted by civil law based on actions occurring in daily nursing practice.

Civil law includes contract law and tort law. Contracts are binding written, verbal, or implied agreements. A tort is an act of commission or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment that an individual suffers. [9]

Two categories of torts affect nursing practice: intentional torts, such as intentionally hitting a person, and unintentional torts (also referred to as negligent torts), such as making an error by failing to follow agency policy.

Intentional Torts

Intentional torts are wrongs that the defendant knew (or should have known) would be caused by their actions. Examples of intentional torts include assault, battery, false imprisonment, slander, libel, and breach of privacy or client confidentiality.

Unintentional Torts

Unintentional torts occur when the defendant’s actions or inactions were unreasonably unsafe. Unintentional torts can result from acts of commission (i.e., doing something a reasonable nurse would not have done) or omission (i.e., failing to do something a reasonable nurse would do). [10]

Negligence and malpractice are examples of unintentional torts. Tort law exists to compensate clients injured by negligent practice, provide corrective judgement, and deter negligence with visible consequences of action or inaction. [11] , [12] Examples of common torts affecting nursing practice are discussed in further detail in the following subsections. See Table 5.2 for a comparison of public and private law.

Table 5.2 Comparison of Public and Private Law

Examples of Intentional and Unintentional Torts

Assault and battery.

Assault and battery are intentional torts. Assault is defined as intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact. [13]   Battery is defined as intentional causation of harmful or offensive contact with another person without that person’s consent. [14] Physical harm does not need to occur to be charged with assault or battery. Battery convictions are often misdemeanors but can be felonies if serious bodily harm occurs. To avoid the risk of being charged with assault or battery, nurses must obtain consent from clients to provide hands-on care.

False Imprisonment

False imprisonment is an intentional tort. False imprisonment is defined as an act of restraining another person and causing that person to be confined in a bounded area. [15] In nursing practice, restraints can be physical, chemical, or verbal. Nurses must strictly follow agency policies related to the use of restraints. Physical restraints typically require a provider order and documentation according to strict guidelines within specific time frames. See Figure 5.3 [16] for an image of a simulated client in full physical medical restraints.

Chemical restraints include administering medications such as benzodiazepines and require clear documentation supporting their use. Verbal threats to keep an individual in an inpatient environment can also qualify as false imprisonment and should be avoided.

Breach of Privacy and Confidentiality

Breaching privacy and confidentiality are intentional torts. Confidentiality is the right of an individual to have personal, identifiable medical information, referred to as protected health information (PHI), kept private. Protected Health Information (PHI) is defined as individually-identifiable health information including demographic data that relates to the individual’s past, present, or future physical or mental health or condition [17] ; the provision of health care to the individual; and the past, present, or future payment for the provision of health care to the individual.

This right is protected by federal regulations called the Health Insurance Portability and Accountability Act (HIPAA). HIPAA was enacted in 1996 and was prompted by the need to ensure privacy and protection of personal health records and data in an environment of electronic medical records and third-party insurance payers. There are two main sections of HIPAA law: the Privacy Rule and the Security Rule. The Privacy Rule addresses the use and disclosure of individuals’ health information. The Security Rule sets national standards for protecting the confidentiality, integrity, and availability of electronically protected health information. HIPAA regulations extend beyond medical records and apply to client information shared with others. Therefore, all types of client information should be shared only with health care team members who are actively providing care to them. [18] , [19]

HIPAA violations may result in fines from $100 for an individual violation to $1.5 million for organizational violations. Criminal penalties, including jail time of up to ten years, may be imposed for violations involving the use of PHI for personal gain or malicious intent. Nursing students are also required to adhere to HIPAA guidelines from the moment they enter the clinical setting or risk being disciplined or expelled by their nursing program.

An RN accessed a patient’s medical records, as well as the records of the newborn son, although she was not assigned to their care because she believed the newborn was her biological grandchild. Although the chart was accessed for less than five seconds, it was unauthorized. The nurse was publicly reprimanded by the state’s Board of Nursing, and her multistate licensure privileges were revoked. Expenses to defend the nurse exceeded $2,800. [20]

Read more about the HIPAA Privacy Rule .

Slander and Libel

Slander and libel are intentional torts. Defamation of character occurs when an individual makes negative, malicious, and false remarks about another person to damage their reputation. Slander is spoken defamation and libel is written defamation. Nurses must take care to communicate and document facts regarding patient care without defamation in their oral and written communications with clients and coworkers.

Fraud is an intentional tort occurring when an individual is deceived for personal gain. An example of fraud is financial exploitation perpetrated by individuals who are in positions of trust. [21] , [22] A nurse may be charged with fraud for documenting interventions not performed or altering documentation to cover up an error. Fraud can result in civil and criminal charges and also suspension or revocation of a nurse’s license.

Negligence and Malpractice

Negligence and malpractice are types of unintentional torts. Negligence is the failure to exercise the ordinary care a reasonable person would use in similar circumstances. Wisconsin civil jury instruction states, “A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.” [23]   Malpractice is a specific term used for negligence committed by a professional with a license. See Figure 5.4 [24] for an illustration related to malpractice.

Elements of Nursing Malpractice

Nurses and nursing students don’t often get sued for malpractice, but when they do, it is important to understand the elements required to prove malpractice. All of the following elements must be established in a court of law to prove malpractice [25] :

• Duty: A nurse-client relationship exists.
• Breach: The standard of care was not met and harm was a foreseeable consequence of the action or inaction.
• Cause: Injury was caused by the nurse’s breach.
• Harm: Injury resulted in damages.

Parties bringing a lawsuit must be able to demonstrate their interests were harmed, providing a reason to stand before the court. The person bringing the lawsuit is called the plaintiff . The parties named in the lawsuit are called defendants . Most malpractice lawsuits name physicians or hospitals, although nurses can be individually named. Employers can be held liable for the actions of their employees. [26]

Malpractice lawsuits are concerned with the legal obligations nurses have to their patients to adhere to current standards of practice. These legal obligations are referred to as the duty of reasonable care . Nurses are required to adhere to standards of practice when providing care to patients they have been assigned. This includes following organizational policies and procedures, maintaining clinical competency, and confining their activities to the authorized scope of practice as defined by their state’s Nurse Practice Act. Nurses also have a legal duty to be physically, mentally, and morally fit for practice. When nurses do not meet these professional obligations, they are said to have breached their duties to patients. [27]

In the work environment, a duty is created when the nurse accepts responsibility for a patient and establishes a nurse-patient relationship. This generally occurs during inpatient care upon acceptance of a handoff report from another nurse. Outside the work environment, a nurse-patient relationship is created when the nurse volunteers services. Some states have statutes requiring notification of authorities (also referred to as mandatory reporting) or summoning assistance. [28]

Good Samaritan Law

The Good Samaritan Law provides protections against negligence claims to individuals who render aid to people experiencing medical emergencies outside of clinical environments. All 50 states in the United States have a version of a Good Samaritan Law. See Figure 5.5 [29] for historical artwork depicting a Good Samaritan. Differences exist in state laws regarding protection of bystanders who provide aid. For example, in Wisconsin, the law states, “Any person who renders emergency care at the scene of any emergency or accident in good faith is immune from civil liability for the person’s acts or omissions in rendering such emergency care.” [30] There are a few states that require some emergency bystander action, so nurses should review the law in states they are visiting. It is also important to keep in mind that although anyone can file a lawsuit against someone who provides bystander aid, the Good Samaritan laws typically negate any penalty to the person rendering aid.

Although the majority of Good Samaritan laws are at the state level, the federal Aviation Medical Assistance Act (AMAA) provides liability protection for aid given on aircraft. The most common in-flight medical emergencies involve syncope, as well as gastrointestinal, respiratory, and cardiac events. [31] Note that consent for care by an unconscious person is implied, but consent must be obtained from alert individuals.

Mandatory Reporting

Nurses are legally responsible for reporting certain crimes. Mandatory reporting requirements vary based on the state of practice, but there are some commonalities. For example, nurses are mandated to report suspected abuse of children, the elderly, and the disabled (if they have been deemed as incompetent by a court of law or as incapacitated by qualified health care providers).

Nurses are also mandated to report gunshot wounds, dog bites, some communicable diseases, and unsafe or illegal practices of other health care team members. Reporting responsibility often begins at the organizational level. The nurse may also need to identify the appropriate local, state, or federal authorities to submit the report and pursue it to its resolution.

Sample Statute Regarding Duty to Assist

A Minnesota statute states that a person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this is guilty of a petty misdemeanor. [32]

Implications for Nurses

Duty can be established in many ways. Nurses have a duty of reasonable care for a patient they have been assigned. They may also have a duty in other circumstances. Therefore, nurses should understand the following [33] :

• Recognize that a nurse-patient relationship is established upon acceptance of responsibility for a patient, whether after a handoff report in the workplace or during volunteered services.
• Assume that on-call or supervisory responsibilities create a duty to patients, even in the absence of an expressed nurse-patient relationship.
• Know if there is a duty to rescue statute in their state, and if so, what it demands.

Breach of Duty

The second element of malpractice is breach of duty. After a plaintiff has established the first element in a malpractice suit, that the nurse owed a duty to the plaintiff, the plaintiff must then demonstrate that the nurse breached that duty by failing to comply with the duty of reasonable care. [34]

To demonstrate that a nurse breached their duty to a patient, the plaintiff must prove the nurse departed from acceptable standards of practice. The plaintiff must establish how a reasonably prudent nurse in the same or similar circumstances would act and then show that the defendant nurse departed from that standard of practice. The plaintiff must claim the nurse did something a reasonably prudent nurse would not have done (an act of commission) or failed to do something a reasonable nurse would have done (an act of omission). [35]

Experts are needed during court hearings to explain things outside the knowledge of non-nurse jurors. In reaching their opinions, experts review many materials, including the state’s Nurse Practice Act and organizational policies, to determine whether the nurse adhered to them. To qualify as a nurse expert, the person testifying must have relevant experience, education, skill, and knowledge. They typically have advanced degrees, are published in nursing literature, have spoken at professional conferences, and belong to professional organizations. Medical malpractice trials take place primarily in state courts, so experts are deemed qualified based on state requirements.

Sample Case Regarding Breach of Duty [36]

Mary Jones was an 87-year-old woman who presented to the hospital with dizziness, nausea, intermittent slurred speech, an unsteady gait, and a history of four falls at home that day. Significant medical history included heart disease and multiple medications. The admitting nurse assessed her as being at risk for falls and placed her on universal fall precautions. The fall precautions included keeping the bed in the lowest position, instructing her on the use of the call light and ensuring the call light was within her reach, providing a bedside commode, and placing her in a room close to the nurses’ station where she could be observed. However, the nurse did not use a formal scoring system for fall risk assessment that was set forth in a nursing procedures textbook. Additionally, bed alarms had not been working at this agency for a year.

Five days later, a nurse responded to a sound coming from Mrs. Jones’s room and found her lying on the bathroom floor. She was conscious and able to move all extremities but complained of left knee and elbow pain. The physician was notified, and Mrs. Jones was sent for X-rays and a CT scan. When Mrs. Jones returned to her room, the nurse observed she was diaphoretic and deteriorating. The nurse took Mrs. Jones to the emergency department, where she lost consciousness. She was evaluated by a neurosurgeon, intubated, and airlifted to a different hospital for a higher level of care. She never regained consciousness and died the next day from intracranial bleeding that was aggravated by anticoagulant therapy.

Mrs. Jones’s estate brought a lawsuit alleging nursing malpractice. The estate’s nursing expert stated the universal fall precautions had been inadequate for a high-risk patient and additional measures should have been instituted. The expert testified that not only had the admitting nurse not adhered to the formal scoring system for fall risk assessment in the nursing procedures textbook, but also the standard of care required nurses to use bed alarms, institute 15-minute rounds, or place a sitter in the room.

A defense expert used The Joint Commission’s National Patient Safety Goals to define the standard of care and testified it was her opinion the nurse had met that standard. The organizational policy did not require bed alarms as part of its fall prevention plan. Although the nurses did not use the formal scoring system in a textbook to assess the patient’s risk, they clearly identified her as being at risk for falling; assessed her frequently; maintained her bed in the lowest position; kept the wheels of her bed locked and her side rails up; and kept the call light within her reach. They instructed her on the use of the call light and placed her in a room where she could be readily observed.

The court entered the judgment for the defendant hospital, noting that “under the circumstances, it is a close call on whether the hospital, by not having functioning bed alarms and staff not checking on Mary more frequently, breached the standard of care.” [37] In this case, the plaintiff’s expert had not demonstrated the standard of care was breached.

Nurses defending themselves against allegations of professional malpractice must demonstrate their actions conformed with accepted standards of practice. They must convince a jury they acted as a reasonably prudent nurse would have in the same or similar circumstances. Nurses should always follow these practices [38] :

• Adhere to organizational policies and procedures. Work-arounds can create liability. The standard of practice is to adhere to agency policy. Failing to do so creates an assumption of departure from standards.
• Document in a manner that permits accurate reconstruction of patient assessments and the sequence of events, especially when notifying providers regarding clinical concerns.
• Maintain competence through continuing education, participation in professional conferences, membership in professional organizations, and subscriptions to professional journals.
• When using an interpreter, ensure that properly trained interpreters are used and document the name of the interpreter. The use of family, friends, or other untrained interpreters is unsafe practice and is not consistent with acceptable standards of practice.
• Maintain professional boundaries. Personal relationships with patients or their families can be red flags for juries and can be viewed as evidence of departure from professional standards.

The third element of malpractice is cause. After the plaintiff has established the nurse owed a duty to a patient and then breached that duty, they must then demonstrate that damages or harm were caused by that breach. Plaintiffs cannot prevail by only demonstrating the nurse departed from acceptable standards of practice, but must also prove that such departures were the cause of any injuries. [39] Additionally, nurses are held accountable for foreseeability, meaning a nurse of ordinary skill, care, and diligence could anticipate the risk of harm of departing from standards of practice in similar circumstances. [40]

Plaintiffs must be able to link the defendant’s acts or omissions to the harm for which they are seeking compensation. This requires expert testimony from a physician because it requires a medical diagnosis. Unlike in criminal cases, in which the standard of proof is that elements of prosecution must be proven “beyond reasonable doubt,” the elements of a malpractice lawsuit must be proven by a “preponderance of evidence.” Expert testimony is required to demonstrate “medical certainty” that the nurse’s breach was the cause of an actual injury.

Sample Cases Regarding Causation

Janusz Osiecki was admitted to a subacute nursing facility to recover from Guillain-Barre syndrome. The standard of nursing care for this client included respiratory assessments and tracheostomy care. One morning, three weeks into his stay, he was found unresponsive, without pulse or respirations. His wife brought a wrongful death lawsuit, and expert witnesses testified the nurses breached the standard of care in not performing respiratory and tracheostomy assessments every two hours. Their rationale was that the purpose of the assessments was to detect and report pulmonary congestion, and if the nurses had done so in a timely manner, Mr. Osiecki could have received medical care that would have saved his life. A jury awarded the widow $577,005 for wrongful death and $250,000 for harm to family relationships. [41]

A psychiatric patient identified as “C” was locked in a seclusion room after presenting to a hospital with psychosis and continuing bizarre behavior, hallucinations, irrationality, lack of contact with reality, and agitation. She was in the seclusion room undergoing treatment for over a week when she suffered a grand mal seizure. A psychiatrist ordered antipsychotic medication. The medication order was not noted by nursing staff until the next day, at which point it was discovered the medication was unavailable at the pharmacy. The psychiatrist was not made aware the medication was unavailable, and the patient went without the prescribed medication for three days. The nurses also did not notify the psychiatrist during those three days that C was becoming increasingly more agitated and hallucinating. On the fourth day, C attempted to leave the unit and told staff she was hearing voices instructing her to harm herself. She was returned to seclusion and remained there without being assessed or treated. Four hours later, she was found unconscious with her head wedged between the side rail and the mattress. She suffered brain damage that left her in a permanent semicomatose state.

C’s estate brought a lawsuit alleging it was negligent to leave C in a steel bed in a seclusion room without constant observation. The jury awarded $3.6 million. The hospital appealed, but the appellate court upheld the jury verdict and explained that particular injuries do not need to be foreseen, only the general harm that can occur. The court stated, “It is not extraordinary that a psychotic patient who is delusional…might wedge herself between a mattress and side rail in an attempt to hurt herself.” [42]

Nurses can reduce their liability by adhering to professional standards and documenting their observations and communications. Nurses should always follow these standards [43] :

• Follow the chain of command when there are concerns about unclear or potentially unsafe orders. Pursue concerns to resolution, documenting precisely who is notified and at what times.
• Document observations to justify clinical decisions. Variance charting (i.e., only charting things that vary from the norm) does not provide sufficient evidence of compliance with the standards of care.
• Adhere to organizational policies and procedures with an understanding that a failure to do so creates foreseeable harm to patients.

The fourth element of malpractice is harm. In a civil lawsuit, after a plaintiff has established the nurse owed a duty to the patient and breached that duty and injury was caused by the nurse’s breach, they must prove the injury resulted in damages. They request repayment for what they have lost. [44]

There are several types of injuries for which patients or their representatives seek compensation. Injuries can be physical, emotional, financial, professional, marital, or any combination of these. Physical injuries include loss of function, disfigurement, physical or mental impairment, exacerbation of prior medical problems, the need for additional medical care, and death. Economic injuries can include lost wages, additional medical expenses, rehabilitation, durable medical expenses, the need for architectural changes to one’s home, the loss of earning capacity, the need to hire people to do things the plaintiff can no longer do, and the loss of financial support. Emotional injuries can include psychological damage, emotional distress, or other forms of mental suffering. [45]

Determining the specific amount a plaintiff needs can require expert witness testimony from a person known as a life care planner who is trained in analyzing and evaluating medical costs, as well as the subjective determination of a jury. Damages fall into several categories, including compensatory (economic) damages, noneconomic damages, and punitive damages. [46] See Figure 5.6 [47] for an illustration of damages.

Economic damages (also referred to as actual damages) can be quantified. They are intended to restore the plaintiff to the position they were in before being injured. Compensatory damages are objectively calculated to provide the plaintiff with the amount of money necessary to replace what was lost. [48]

Noneconomic damages are subjective and can include things such as emotional distress, pain and suffering, loss of enjoyment of life, reputation damage, loss of companionship, or loss of parental guidance. They are more difficult to quantify than economic damages. [49]

Punitive damages are awards not related to the actual injury but are intended to punish the defendant(s) and deter others from engaging in similar conduct. In professional malpractice cases, punitive damages are difficult for plaintiffs to obtain because they must be related to outrageous conduct, such as gross negligence, recklessness, willful actions, or fraud. [50]

Sample Case Related to Damages [51]

Betty Shiflett fell out of bed in the recovery room after undergoing knee surgery. Three days later, she reported a clicking sound and pain in her knee to one of the nurses. Although the nurse documented these symptoms, she did not convey the information to the physician. A physical therapist reported these symptoms to the physician a week later. The physician then identified a previously undiagnosed nondisplaced left tibial fracture that was now avulsed. Two additional surgeries were unsuccessful, and Betty remained disabled, confined to a wheelchair, and in chronic pain.

Betty and her husband filed a lawsuit alleging negligence for the fall and the nurse’s failure to report the symptoms to the physician. They also asserted a claim for a loss of consortium, meaning the spouse or family had also been harmed. The harm suffered is a loss of companionship, conjugal relations, support and services, or marital quality. The jury awarded total damages of $2,391,620 with the following breakdown:

• $791,620 for future medical expenses
• $800,000 for past noneconomic damages
• $500,000 for future noneconomic damages
• $300,000 for loss of consortium with spouse

Nurses can reduce their liability exposure by following these principles [52] :

• Practicing according to current standards of practice.
• Maintaining professional liability insurance to provide coverage for events and licensure defense.
• Avoiding work-arounds or deviations from organizational policies and procedures.
• Maintaining clinical competency, including awareness of standard-of-practice changes.
• Engaging the chain of command with patient concerns and pursuing concerns to resolution.
• Documenting in a manner that permits accurate reconstruction of patient assessments, notification of others, and the sequence of events.
• Legal Information Institute. (n.d.) Cornell Law School. https://www.law.cornell.edu ↵
• “ Courtroom Trial with Judge, Jury - Vector Image ” designed by WannaPik is licensed under CC0 ↵
• Wisconsin State Legislature. (2021). 939.51 Classification of misdemeanors. https://docs.legis.wisconsin.gov/statutes/statutes/939/iv/51 ↵
• Nurses Service Organization and CAN Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www.nso.com/Learning/Artifacts/Claim-Reports/Minimizing-Risk-Achieving-Excellence ↵
• " Balance Scales (Ethics) " by The Open University (OU) is licensed under CC BY-NC-ND 2.0 ↵
• Brous, E. (2019). The elements of a nursing malpractice case, Part 2: Breach. American Journal of Nursing, 119 (9), 42–46. https://doi.org/10.1097/01.NAJ.0000580256.10914.2e ↵
• Mello, M. M., Frakes, M. D., Blumenkranz, E., & Studdert, D. M. (2020). Malpractice liability and health care quality: A review. JAMA, 323 (4), 352–366. https://doi.org/10.1001/jama.2019.21411 ↵
• “ PinelRestaint.jpg ” by James Heilman, MD is licensed under CC BY-SA 4.0 ↵
• U.S. Department of Health & Human Services. (2013, July 26). Summary of the HIPAA Privacy Rule.   https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html ↵
• Nursing Fundamentals by Chippewa Valley Technical College is licensed under CC BY 4.0 ↵
• U.S. Department of Health & Human Services. (2013, July 26). Summary of the HIPAA Privacy Rule. https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html ↵
• DeLiema, M. (2018). Elder fraud and financial exploitation: Application of routine activity theory. The Gerontologist, 58 (4), 706–718. https://doi.org/10.1093/geront/gnw258 ↵
• DeLiema, M., Deevy, M., Lusardi, A., & Mitchell, O. S. (2020). Financial fraud among older Americans: Evidence and implications. The Journals of Gerontology. Series B, Psychological Sciences and Social Sciences, 75 (4), 861–868. https://doi.org/10.1093/geronb/gby151 ↵
• Wis. JI—Civil 1005. (2016). https://wilawlibrary.gov/jury/civil/instruction.php?n=1005 ↵
• “ malpractice.jpg ” by Nick Youngson hosted by Pix4free is licensed under CC BY-SA 3.0 ↵
• Brous, E. (2019). The elements of a nursing malpractice case, Part 1: Duty. American Journal of Nursing, 119 (7), 64–67. https://doi.org/10.1097/01.NAJ.0000569476.17357.f5 ↵
• “ The_good_samaritan_helping_a_stranger_who_has_been_ignored_b_Wellcome_V0015249.jpg ” by S. Smith after C. L. Eastlake is licensed under CC BY 4.0 ↵
• Otis, A. (2017, May 2). Civil immunity under Wisconsin’s Good Samaritan Law [Memo]. Wisconsin Legislative Council. https://docs.legis.wisconsin.gov/misc/lc/information_memos/2017/im_2017_03 ↵
• This work is a derivative of StatPearls by West and Varacallo and is licensed under CC BY 4.0 ↵
• Brous, E. (2019). The elements of a nursing malpractice case, Part 2: Breach. American Journal of Nursing, 11 9(9), 42–46. https://doi.org/10.1097/01.NAJ.0000580256.10914.2e ↵
• Brous, E. (2019). The elements of a nursing malpractice case, Part 3A: Causation: A plaintiff must prove not only that a provider departed from acceptable standards of practice--but that this departure caused an injury. American Journal of Nursing, 119 (11), 54–59. https://doi.org/10.1097/01.naj.0000605380.52689.af ↵
• Brous, E. (2020). The elements of a nursing malpractice case, Part 3B: Causation. American Journal of Nursing, 12 0(1), 63–66. https://doi.org/10.1097/01.naj.0000652128.66135.55 ↵
• Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing, 120 (3), 61–64. https://doi.org/10.1097/01.naj.0000656360.21284.50 ↵
• “ damages.jpg ” by Nick Youngson hosted by Pix4free is licensed under CC BY-SA 3.0 ↵

Rules and regulations created by society and enforced by courts, statutes, and/or professional licensure boards.

Laws governing relationships between the government and private persons or institutions.

Laws that govern the relationships between private entities.

The rights, privileges, and responsibilities established by the U.S. Constitution. For example, the right to privacy is a right established by the constitution.

Written laws enacted by the legislature. For example, the Nurse Practice Act in each state is an example of statutory law that is enacted by the state government.

Law made by government agencies that have been granted the authority to pass rules and regulations. For example, each state’s Board of Nursing is an example of administrative law.

A system of laws concerned with punishment of individuals who commit crimes.

A type of behavior defined by Congress or state legislature as deserving of punishment.

Serious crimes that cause the perpetrator to be imprisoned for greater than one year.

Less serious crimes resulting in fines and/or imprisonment for less than one year.

Minor offenses, such as speeding tickets, that result in fines but not jail time.

Law focusing on the rights, responsibilities, and legal relationships between private citizens.

Binding written, verbal, or implied agreements.

An act of commission or omission that causes injury or harm to another person for which the courts impose liability. In the context of torts, "injury" describes the invasion of any legal right, whereas "harm" describes a loss or detriment the individual suffers.

An act of commission with the intent of harming or causing damage to another person.

Acts of omission (not doing something a person has a responsibility to do) or inadvertently doing something causing unintended accidents leading to injury, property damage, or financial loss.

Doing something a reasonable nurse would not have done.

Not doing something a reasonable nurse would not have done.

Intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact.

Intentional causation of harmful or offensive contact with another's person without that person's consent.

An act of restraining another person causing that person to be confined in a bounded area. Restraints can be physical, verbal, or chemical.

The right of an individual to have personal, identifiable medical information kept private.

An act of making negative, malicious, and false remarks about another person to damage their reputation.

Spoken defamation

Written defamation.

An act of deceiving an individual for personal gain.

The failure to exercise the ordinary care a reasonable person would use in similar circumstances.

A specific term used for negligence committed by a professional with a license.

The person bringing the lawsuit.

The parties named in a lawsuit.

Legal obligations nurses have to their patients to adhere to current standards of practice.

State law providing protections against negligence claims to individuals who render aid to people experiencing medical emergencies outside of clinical environments.

Nursing Management and Professional Concepts Copyright © by Chippewa Valley Technical College is licensed under a Creative Commons Attribution 4.0 International License , except where otherwise noted.

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Nurse Case Study: Deviation from the standard of care

This case involves a registered nurse working in an ambulatory surgery setting.

Total incurred payments and expenses:  Greater than $375,000

(Monetary amounts represent only the payment made on behalf of the insured registered nurse and do not reflect payments made on behalf of the other parties involved in the claim.) 

Risk Management Comments

• Deviating from the standard of care related to starting an IV;
• Failure to respond to the patient’s complaints of pain; and
• Failure to follow documentation standards.   

Risk Control Recommendations

• Maintain thorough, accurate and timely patient assessment and monitoring , which are core nursing functions.
• Develop, maintain and practice professional written and spoken communication skills.  Follow documentation standards established by professional organizations and comply with your employer’s standards, as appropriate.  
• Follow documentation standards established by professional nursing organizations and comply with your facility’s standards.  The medical record should accurately reflect the care of the patient.
• Document your patient care assessments, observations, communications and actions  in an objective, timely, accurate, complete, appropriate and legible manner
• Communicate in a timely and accurate manner both initial and ongoing findings  regarding the patient’s status and response to treatment.
• Provide and document the practitioner  notification of a change in condition/symptoms/patient concerns and document the practitioner’s response and/or orders.

#Case Study #Charting #LegalCases #Nurses

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46. Malpractice and Negligence

CHAPTER 46. Malpractice and Negligence Alice C. Murr and Mary Frances Moorhouse Nursing is a dynamic profession that continually evolves in response to changing needs, demands, and resources of society. The complexity of the healthcare delivery system today is such that the roles and responsibilities of the nurse are constantly expanding. Increased responsibility and independence are accompanied by increased accountability for nursing decisions and practice. Furthermore, Internet sites and television advertisements help shape expectations of healthcare recipients and may impact decisions to litigate. In a litigious society, an increasing number of nurses are being named in malpractice lawsuits by patients turned plaintiffs ( Sharpe, 1999 ). For their own protection, and certainly for that of their patients, nurses must be aware of their legal rights and responsibilities. Laws provide a basis for nursing intervention in the provision of patient care, they distinguish the roles and responsibilities of the nurse from those of other healthcare providers, and they define the boundaries of dependent or autonomous practice in various roles and clinical settings. Standards of Care When a nurse is sued for malpractice, he or she is being sued for negligence, broadly defined as “the failure to use ordinary or reasonable care” ( Garner, 2004 ). Being held to a “reasonable standard” dictates that the nurse practices within professional standards of care. Nursing practice is based on the understanding and use of a body of knowledge, some of which is borrowed from other disciplines, some of which is unique to nursing. The American Nurses Association (ANA) defines “standard” as the “authoritative statements by which the nursing profession describes the responsibilities for which its practitioners are accountable….written in measurable terms, standards also define the nursing profession’s accountability to the public and the client outcomes for which nurses are responsible.” ( ANA, 1991 ) The term standard of care is defined in tort law as “that average acceptable degree of skill, care, or diligence that a reasonable and prudent person in the same profession, would, or should, exercise under the same or similar circumstances” ( Sharpe, 1999 ). This broad definition is further refined by various means. It is established through regulatory agencies, such as state boards of nursing, as well as by healthcare facility policies, procedures, and protocols; practice guidelines published by policy and accrediting agencies (e.g., The Agency for Healthcare Research and Quality [AHRQ], or The Joint Commission [TJC]); and by professional and clinical specialty organizations, (e.g., ANA, American Association of Critical-Care Nurses [AACN], Association of Operating Nurses [AORN]). Standards of care are published in professional journals, nursing textbooks, and practice guidelines (e.g., care maps/clinical pathways, algorithms, protocols, technical bulletins). Standards may be implied in the advertising of any agency (e.g., “neonatologist on staff 24 hours a day” or “XYZ Hospital provides the best care in the Midwest”) making a claim that can be held as a standard of care, particularly when a legal action is considered ( Harvey, 2004 ). Key Point Forensic nurses must be familiar with several sources of standards that influence their professional practice, including those of professional organizations, state boards of nursing, and other regulatory bodies. Although all nurses at all practice levels are held to a standard of care, that standard of care varies somewhat according to geographical locale and practice setting (e.g., intensive care unit; inner city health clinic; industrial, educational and corrections facilities; legal and investigative arenas), and type of practice (e.g., advance nurse practitioner, staff nurse in hospital or community clinic, facility administrator, medical examiner, legal consultant). Standards of care, arise from the following: • Regulations based on state and federal statutes. The clinician has an obligation to adhere to federal laws and her or his state’s nurse practice act and scope of practice guidelines. State boards of nursing set the standards for entry into nursing practice, regulate licensure, enact regulations and standards, and adjudicate cases involving violations of professional standards or rules. Nurse practice acts contain general statements of appropriate professional nursing actions. They define nursing, set standards for the nursing profession, and give guidance regarding scope of practice issues. As such, a state’s nurse practice act is the single most important piece of legislation affecting nursing practice. The nurse must incorporate the nurse practice act with her or his educational background, previous work experience, institutional policies, certification requirements, and technological advancements. The nurse must demonstrate competence through the elements of a professional knowledge base, awareness and use of appropriate practice standards, decision-making and communication skills, and experience. Performance may be quantified periodically through continuing education, peer review, and clinical area certifications. Violating any statute or regulation of the state automatically makes the nurse and her or his employing facility negligent. • Professional practice guidelines. In the ANA Code of Ethics, provisions are listed that state the ethical obligations and duties of professional nurses. The elements describe the nurse’s fundamental commitment and values, boundaries of duty and loyalty, aspects of duties related to advancing the profession, and collaborative efforts with other healthcare professions to shape policy and meet the health needs of society ( ANA, 2004 ). Professional practice is also guided by protocols and guidelines written for specific practice areas that are drafted in a general way so as to apply to nursing care in a variety of settings. • Facility policies and procedures. Required by law and accrediting agencies, policies and procedures are used in court to establish standards of care. It is expected that the nurse’s practice is consistent with these policies and procedures, and when a lawsuit has been brought, they are most likely the first documents examined when evaluating whether or not a standard of care was met. Failure to follow policy does not mean that the nurse is automatically negligent, but it can mean that it will be up to a jury to decide whether or not the nurse was negligent. Nursing Malpractice and Negligence The term malpractice is used to define professional negligence; as such, it is a subset of negligence, although in general the terms are used interchangeably. Specifically, malpractice is negligence committed by a person in a professional capacity and differs from simple negligence in that it involves specialized skills and training not possessed by the average person. Key Point The most common legal charge brought against nurses is for an act of negligence that represents a deviation from a standard of care. Although there are numerous legal claims that may be brought against a nurse, the most prevalent claim is negligence. Simply stated, nursing negligence is deviation from the standard of care. If the nurse acts in a way that a reasonably prudent nurse would not act, or fails to take action in a way that a reasonably prudent nurse would act, the nurse’s actions (or omissions) are negligent. The law touches on a wide range of possible nursing conduct that falls under the legal heading of negligence (including failure to render care or failure to rescue), that meets applicable standards, or that indicates the nurse acted in a manner that was intentionally harmful to the patient ( Sharpe, 1999 ). Even when a nurse’s actions are not intended to bring harm to the patient, the patient or representative can bring a negligence suit against the nurse. Negligence per se is a situation in which expert testimony is not required to establish the applicable standard of care, if the defendant’s conduct violates a law that is designed to protect the class of persons of which the plaintiff is a member. For example, liability existed without citing standard of care when a student nurse administered anesthesia, in violation of a state statute, and injured the patient ( Central Anesthesia Assoc., P.C. v. Worthy, 1985 , cited in Brown v. Belinfante, et al., 2001 ). Expert witnesses are used by both prosecuting and defense attorneys to establish standards of care. The expert’s role is to explain to the jury the standard of care based on her or his particular expertise. The question of who can testify to standards of care may depend on specific statutory or case law in any jurisdiction, but in general, a testifying expert must possess sufficient training, experience, and knowledge (as a result of practice or teaching in the clinical setting or specialty area where the incident occurred) as to satisfy the court that she or he is familiar with the accepted standard of care ( Harvey, 2004 ). Although physicians have testified regarding nursing practice, it is being recognized that medicine and nursing have different philosophies and approaches, and physicians are not educated in nursing. Nurses should testify regarding nursing practice and should not testify as a medical expert linking a breach of the nursing standard of care to medical complications suffered by the plaintiff ( Echard v. Barnes-Jewish Hosp., 2002 ). In the end, the jury will interpret the opinions of the expert witnesses and determine if negligence has occurred. Elements of Negligence In order for a plaintiff to prevail in a suit against a nurse for negligence, the plaintiff must prove all four elements of the cause of action: duty, breach of duty, causation, and damages. Duty Duty is defined as acts or interactions required after the presumption of a relationship between the provider and a patient. Duty is established when the nurse (1) provides direct care to an individual, (2) observes an unattended person in need of care, or (3) observes or is aware of another provider performing care in a manner that may cause harm ( Brent, 2001 and O’Keefe, 2001 ). Breach of duty A breach of duty is defined as neglect or failure to fulfill, in an appropriate and proper manner, the duties of a job ( Ashley, 2004 and O’Keefe, 2001 ). To determine whether or not a duty was violated, it is necessary to delineate the standard of care of a particular circumstance. It must be determined if the nurse (1) met the standard of care, (2) did not do the right thing (misfeasance), (3) did nothing/did not act (nonfeasance), or (4) did the right thing in the wrong way (malfeasance) (Murr & Moorhouse, 2001). Causation The proximate cause (causation) is often the most difficult element to prove. The difficulty lies in the fact that the cause of an injury often cannot be easily identified. A nurse’s negligence may be one of several possibilities. Foreseeability is a causation concept that can apply, stating that the nurse has a responsibility to anticipate harm and eliminate risk. For example, if a drug book states that wrong dosage of a certain seizure medication may cause injury, the element of forseeability of causation of harm exists. If a wrong dosage is administered and the patient suffers a seizure as a result, a direct relationship could be proved between the patient’s injury and the nurse’s action ( Marquis & Huston, 2008 ). Another element called res ipsa loquitur (the thing speaks for itself) can apply to causation, if four conditions have been met: 1. The act that caused the injury was exclusively in the nurse’s control. 2. The injury would not have happened but for the nurse’s negligence. 3. No negligence on the patient’s part contributed to the injury. 4. Evidence of the truth as to what happened is unavailable ( Iyer & Aiken, 2001 ). A simple example of res ipsa loquitur might include this: a patient emerges from the operating room with a burn on his right posterior thigh that was not present before surgery. The surgical table equipment was under the nurse’s control, and the patient had no part in the injury because he was unconscious. Therefore, the causation for injury would be considered as applying to the nurse. Damages Damages are defined as monetary compensation that may be recovered in court if the plaintiff shows that the act or omission damaged or harmed him or her in some way. Actual or compensatory damages are losses sustained by the injured person and include relevant medical expenses, lost earnings, impairment of future earnings, and past and future pain and suffering. Punitive damages are designed to punish defendants. The character of negligence necessary to sustain an award of punitive damages must be of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons” ( Brent, 2001, p. 88 ). For example, a patient admitted to an extended care center for rehabilitation was left restrained in a bed or chair for extended periods of time until advanced pressure ulcers developed, ultimately leading to his death ( Doherty, 1993 ). Criminal versus Civil Law Laws can be classified in a number of ways, based on whether they are substantive, procedural, civil, or criminal. All types of law are intermingled in various ways and in different areas of litigation and practice. Civil law recognizes and enforces the rights of individuals and organizations. Criminal law defines crimes and the punishment an individual can incur, including loss of freedom ( Aiken, 2004 ). When it comes to guilt, the scales of justice are balanced in a civil trial, but weighted for the defendant in a criminal case. In a criminal case, the defendant is presumed innocent until proved guilty. The winner in a civil trial need only move the scale a “feather’s weight” (to 51%) to prevail, whereas in a criminal case, guilt must be proved beyond a reasonable doubt (Murr & Moorhouse, 2004). One of the two areas of civil law is tort law. A tort is a wrong that harms. The three types of torts include intentional torts, negligence (nonintentional torts), and strict liability. These wrongful acts, whether arising from intentional or negligent conduct, have as their common principle the idea that injuries are to be compensated. Differences between intentional and nonintentional torts can be characterized as differences in intent, injury, duty, and consent ( Aiken, 2004 ). Although negligence can occur without harmful intent, an intentional tort is an action requiring a specific state of mind, usually an intention to do a wrongful act. In intentional tort actions, plaintiffs do not have to prove that any actual injury occurred, as the harm is in the invasion of a person’s rights. Potential consequences of intentional torts include loss of reputation and esteem, exposure to criminal liability, loss of professional license, loss of insurance, and punitive damages ( Murr and Moorhouse, 2001 and American Nurses’ Association (ANA) ). Best Practice The forensic nurse must monitor direct nursing care measures to ensure that they do not constitute intentional torts, such as assault, battery, and false imprisonment. Intentional Torts These actions include acts that violate another person’s rights or property. In the medical arena, this includes assault, battery, and false imprisonment ( Harvey, 2004 and O’Keefe, 2001 ). Assault Assault is an act that is designed to make a person fearful or in apprehension of bodily harm. Assault does not require touching; it can be a threatening statement, such as, “If you don’t stay in that chair, I am going to tie you down.” Battery Battery is the unlawful or offensive touching of another without consent. Examples of battery committed by a nurse are inserting an intravenous (IV) line after the patient revokes permission or inserting a feeding tube in a terminal patient who is refusing care. False imprisonment False imprisonment is defined as unlawful, intentional, and unjustifiable detention of a person against his or her will within fixed boundaries so that the person is conscious of or harmed by the confinement. An example of false imprisonment could be the use of direct physical or chemical restraints or detaining the person in a care setting against his or her will or desire for treatment. Quasi-intentional torts These actions include such elements as defamation, slander, invasion of privacy, and breach of confidentiality. The latter two have more implications in the healthcare environment of today ( Harvey, 2004 and Morrison, 2000 ). • Invasion of privacy can occur in any medical setting where a patient’s name or medical information is viewed or obtained by unauthorized individuals; these actions can involve public exposure of private facts, intrusion on the seclusion or private concerns of the person, or the patient’s name or picture being used without express written consent. • Breach of confidentiality is a legal and ethical concern for healthcare providers, especially in this day of electronic record keeping and transmission of medical information through various means, such as e-mail, the Internet, and facsimile (fax). For example, information can be left on a computer screen, faxes can be sent to providers, or payers can be viewed by many persons, and sensitive information can be unintentionally given to unauthorized individuals. Liability Issues in Healthcare Common sources of nursing liability include failure to notify the physician, making assumptions about following questionable orders, inadequate monitoring, failure to follow policies and procedures, medication errors, failure to safeguard against falls and other preventable injuries, use of unsafe equipment or failure to use equipment correctly, and breach of confidentiality. Each will be discussed briefly here. Failure to notify the physician The nurse must communicate thorough, accurate, and timely information about the patient’s condition to the physician and others as appropriate (e.g., other caregivers, family [if patient allows], and chain of command in nursing/facility staff). Some malpractice cases have hinged on whether the nurse was persistent enough in attempting to notify the physician or in convincing the physician of the seriousness of a patient’s condition. Courts are likely to recognize that after-the-fact communication is no communication.

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• Croke, Eileen M. EdD, ANP, LNC-C

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More and more nurses are being named defendants in malpractice lawsuits, according to the National Practitioner Data Bank (NPDB). From 1998 to 2001, for instance, the number of malpractice payments made by nurses increased from 253 to 413 (see Figure 1 , page 55). The trend shows no signs of stopping, 1-3 despite efforts by nursing educators to inform nurses and student nurses of their legal and professional responsibilities and limitations. A charge of negligence against a nurse can arise from almost any action or failure to act that results in patient injury-most often, an unintentional failure to adhere to a standard of clinical practice-and may lead to a malpractice lawsuit.

This article analyzes cases decided between 1995 and 2001 and identifies the actions and issues that prompted charges of negligence that led to malpractice lawsuits against nurses, as well as the areas of nursing practice named most frequently in the complaints. (This article does not address criminal cases arising from intentional acts, such as assault, battery, or false imprisonment, for which nurses have been arrested and sometimes prosecuted.)

DEFINING AND TRACKING MALPRACTICE

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) defines negligence as a "failure to use such care as a reasonably prudent and careful person would use under similar circumstances." JCAHO defines malpractice as "improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position; often applied to physicians, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties when professional skills are obligatory. Malpractice is a cause of action for which damages are allowed." 4 Malpractice is defined variously under state nurse practice acts, institutional policies, and federal guidelines such as JCAHO standards, all of which may be taken into consideration in court.

Several factors have contributed to the increase in the number of malpractice cases against nurses.

* Delegation. As a result of cost-containment efforts in hospitals and HMOs, nurses are delegating more of their tasks to unlicensed assistive personnel. Delegation of some of these tasks may be considered negligence according to a given facility's standards of care or a state's nurse practice act.

* Early discharge. Patients are being discharged from hospitals at earlier stages of recovery and with conditions requiring more acute and intensive nursing care. 5 Nurses may be sued for not providing care or not making referrals appropriate to the patient's condition.

* The nursing shortage and hospital downsizing have contributed to greater workloads for nurses, increasing the likelihood of error.

* Advances in technology require nurses to have knowledge of a variety of technologies' capabilities, limitations, and safety features.

* Increased autonomy and responsibility of hospital nurses in the exercise of advanced nursing skills have also brought about greater risk of error and liability.

* Better-informed consumers are more likely to be aware of malpractice issues and to recognize insufficient or inappropriate care.

* Expanded legal definitions of liability have held all professionals to higher standards of accountability. 1 For example, because of the expanded scope of practice of advanced practice nurses, courts have held them to a medical standard of care. 2

In 1990 the NPDB began collecting information about health care practitioners who, as the result of judgments in malpractice suits, have entered into settlements, had disciplinary action taken against them that resulted in licenses being revoked or privileges to practice being limited, or had to pay monetary awards (or whose employers or insurance carriers have had to pay monetary awards). 1 (Established in 1986 and regulated by the Bureau of Health Professions, the Health Resources and Services Administration, and the U.S. Department of Health and Human Services, the NPDB assists eligible agencies such as state licensing boards, hospitals, and HMOs in checking the qualifications of practitioners whom the agencies wish to hire or to whom they wish to grant licenses, membership, or clinical privileges. 6 )

The NPDB classifies RNs into four categories: nonspecialized RNs, nurse anesthetists, nurse midwives, and nurse practitioners. According to the data bank, RNs have been responsible for 3,615 malpractice payments over the history of the NPDB (only those cases reported to the NPDB between September 1, 1990, and December 31, 2001, are included). Nonspecialized RNs made the most malpractice payments (2,311 or 63.9%), followed by nurse anesthetists (820 or 22.7%), and nurse midwives (296 or 8.2%). Nurse practitioners made the fewest malpractice payments (188 or 5.2%). (For numbers pertaining to 198 through 2001, see Figure 1 . Annual reports of the NPDB are available online at http://www.npdb-hipdb.com .)

Acts of commission or omission that plaintiffs commonly alleged 20 years ago continue to be alleged causes of nursing negligence. 1,3 According to the NPDB's annual reports, from 1990 through 2001 the majority of payments in malpractice suits resulted from the following nursing negligence issues: among nonspecialized RNs, problems relating to monitoring, treatment, medication, obstetrics, and surgery; among nurse anesthetists, problems relating to anesthesia; among nurse midwives, problems relating to obstetrics; and among nurse practitioners, problems relating to diagnosis and treatment.

A 1997 study identified the following nursing negligence issues as the bases of settlements or verdicts in favor of plaintiffs: failure to communicate adequate information to the physician; inadequate patient assessment, nursing interventions, or nursing care; medication errors; inadequate infection control; and unsafe or improper use of equipment. 7 (Similar negligence issues were identified in studies by Campazzi [1980], 8 Smith [1989], 9 Mayberry and Croke [1996], 3 and Smith-Pittman [1998]. 10 )

It's important to note that a payment or claim made in a malpractice action shouldn't be construed as a presumption of the provider's guilt. As a fact sheet from the NPDB states, "settlement of a medical malpractice claim may occur for reasons that do not necessarily reflect negatively on the professional competence or conduct" 6 of the provider. For example, a nurse's insurance policy might allow the insurance carrier to settle without the policyholder's consent. 2

CASE SUMMARY REVIEW

I have reviewed more than 350 trial, appellate, and supreme court case summaries, which were drawn from legal research sources such as the NPDB; regional reports and digests; the LexisNexis database; the Internet portals FindLaw and MedLaw; secondary sources such as nursing malpractice insurance information; and professional newsletters, journals, and books, including Medical Malpractice Law & Strategy, Legal Eagle Eye Newsletter for the Nursing Profession, Journal of Legal Nurse Consulting, Journal of Nursing Law, Legal and Ethical Issues in Nursing, Nurse's Legal Handbook, and Nursing Practice and the Law. Only cases that met all of the following criteria were included in the analysis: a nurse was engaged in the practice of nursing as defined by his or her state's nurse practice act; a nurse was a defendant in a civil lawsuit as the result of an unintentional action (no criminal cases were considered); and a trial was held between 1995 and 2001.

Two hundred fifty-three case summaries were included in the analysis. The summaries provided information on the nurses' areas of practice, the types of negligence involved, and the case outcomes (settlements or jury verdicts). Monetary awards were paid either directly by independent practitioners or by employers on behalf of employees according to the doctrine of respondeat superior (Latin for "let the master answer," this principle holds that an employer is responsible for actions performed by an employee in the course of employment). 2

As shown in Figure 2 (page 56), the greatest frequency of reported cases of negligence occurred in acute care hospitals (60%). The rest occurred in long-term care facilities (nursing homes and rehabilitation and transitional care units) (18%); psychiatric facilities (8%); home health agencies (2%); and independent practice care settings of physicians (2%); and advanced practice nurses, which include nurse practitioners, nurse midwives, and nurse anesthetists (9%).

The great difference in proportion between acute care facilities and long-term care facilities may be explained by the larger number of specialty practice areas in acute care and by the condition of patients in the specialty practice areas-in EDs; operating and recovery rooms; and obstetrical, intensive care, coronary care, and medical-surgical units, patients are sicker, may require immediate interventions, and may have rapidly changing conditions. 10

NEGLIGENCE ISSUES

In my case review, I identified six major categories of negligence issues that prompted malpractice lawsuits. Documentation describing the negligent behavior often used terms such as failure to, lack of, incomplete, ineffective, and improper. The categories of negligence are: failure to follow standards of care, failure to use equipment in a responsible manner, failure to communicate, failure to document, failure to assess and monitor, and failure to act as a patient advocate (see S ix Major Categories of Negligence That Result in Malpractice Lawsuits, page 57). (These categories are not mutually exclusive; in one of the cases discussed below, two kinds of negligence are involved.)

The following are summaries of five randomly selected malpractice cases in which nurses were named as defendants. They illustrate the range of actions that result in breaches of the standards of care.

Failure to follow standards of care.

Standards such as hospital policies have evolved to protect consumers from substandard care. In defining acceptable levels of care-the ordinary and reasonable care required to ensure that no unnecessary harm comes to patients 2 -standards of care provide criteria for determining whether a nurse has breached duty in the care owed to the patient. Standards of care are derived from sources such as state boards of nursing, professional nursing associations (for example, the ANA and the National League for Nursing), hospital policies and procedures, and the guidelines of federal organizations (for example, JCAHO and the Centers for Medicare and Medicaid Services).

In Hall v. Arthur (1998), the United States Court of Appeals for the Eighth Circuit upheld a trial court's decision, which held a hospital liable because of a nurse's breach of a standard of care in an anterior cervical diskectomy and fusion (ACF). 11 In the trial, the plaintiff's argument focused on the use of Orthoblock, a ceramic substance used to replace bone in maxillofacial surgery, which was implanted in the patient's spine. (The usual procedure in such surgery would be to obtain bone from a bone bank or harvest it from the patient's hip.) After four months of back difficulties, the patient, Mr. Hall, required a second ACF to remove the Orthoblock and have his own bone implanted.

Hospital policy required that any "unusual requests" for use of a product undergo review by department managers to assess the product's appropriateness. 2 The nurse failed to seek such a review and ordered the Orthoblock for use in the patient's ACF. The package insert for the product, presented as evidence at trial, indicated that Orthoblock was specifically contraindicated for use in spinal procedures. The plaintiff's attorney argued that the nurse's failure to follow hospital policy contributed to Mr. Hall's injury.

On appeal, the hospital did not dispute the jury's finding of negligence, but asserted that the plaintiff produced insufficient evidence from which a juror (or "reasonable fact finder") or judge could conclude that the nurse's negligence contributed to Mr. Hall's injury. The appellate court disagreed, stating: "[W]hile we cannot say with certainty that Mr. Hall would not have been injured if the nurse had not been negligent, we believe that the jury could reasonably conclude that her negligence played a significant part in allowing Mr. Hall to be injured by the use of Orthoblock for his ACF surgery. All that one has to assume here is that the hospital would not have allowed the surgery to take place, and we do not regard this assumption as requiring a leap of faith." 11

Failure to use equipment in a responsible manner.

Nurses must know the safety features, capabilities, and limitations of any equipment they use, as well as its hazards. Nurses must follow the manufacturers' usage recommendations and refrain from modifying the equipment. The Safe Medical Devices Act of 1990 requires that all medical device-related adverse incidents that result in death or serious illness or injury be reported to the manufacturer and the Food and Drug Administration within 10 working days. 2

In Chin v. St. Barnabas Medical Center (1988), the Superior Court of New Jersey, Appellate Division, reversed a trial court's judgment against a physician alone and said that other hospital personnel should also be held liable. 12 The case involved the death of a 45-year-old woman, Ms. Chin, from a massive air embolism during a diagnostic hysteroscopy. The woman's estate had brought a medical malpractice suit against all the providers who had possibly played a role in the events leading to her death: the physician who performed the procedure, three operating room nurses (one scrub nurse and two circulating nurses), the hospital, and the manufacturer of the hysteroscope, an optical device with a pump used in examining the uterus. During the procedure, fluid is pumped continuously into the uterus to enhance the view of its interior. The device requires the connection of four tubes: an irrigation tube through which fluid flows into the uterus, a suction tube that draws fluid out of the uterus, a tube that connects a source of compressed nitrogen to the pump, and an exhaust tube. Because one of the tubes was connected to the hysteroscope incorrectly, nitrogen was pumped into the patient's uterus, causing a fatal air embolism in the coronary arteries.

At trial, all parties accepted the theory that the exhaust hose was the source of the gas that killed Ms. Chin; who was at fault for attaching the hysteroscope incorrectly was disputed. Evidence presented at trial revealed that the two nurses assigned to the surgical procedure had neither hospital training nor experience in the hysteroscope's use. Evidence also showed that the supervising nurse who made the assignments was unaware of the nurses' lack of experience. No expert opinion on the standard of care was presented at trial.

At the end of the trial, the judge instructed jury members to use their "common knowledge" to decide if the nurses deviated from their duty in caring for Ms. Chin. (The common-knowledge standard applies when the facts of a case are such that a layperson's common knowledge and experience would enable a juror to conclude, without hearing expert testimony, that a duty of care has been breached.) The judge also informed the jury that because Ms. Chin was unconscious at the time of the procedure, she was blameless in her own death and at least one of the defendants clearly was at fault-shifting the entire burden of proof from the plaintiff to the defendants (that is, each defendant had to prove that he or she was not at fault).

The jury awarded the plaintiff $2,000,000 in damages and found the defendants liable in the following proportions: the physician, 20%; the experienced circulating nurse, 25%; the inexperienced circulating nurse, 20%; and the hospital, 35%. The scrub nurse and the manufacturer were cleared of all liability.

Immediately after the verdict, the trial judge ruled in favor of the hospital's motion that questioned the validity of applying the common-knowledge standard in this case; the judge reapportioned liability solely to the physician. In granting the hospital's motion, the judge said the application of the common-knowledge standard had been an error. But in the physician's appeal, the appellate court reversed the trial court's decision and essentially restored the original jury verdict, saying that each defendant had not entirely established the lack of fault in Ms. Chin's death and that the trial court had not erred in applying the common-knowledge standard.

Failure to assess and monitor and failure to communicate.

Changes in the health status of a patient can be gradual or sudden and nurses are usually the first to see the changes and take action. A nurse's accuracy in assessing and monitoring and her timely reporting of changes in health status to a physician can often mean the difference between life and death. Vital aspects of communication besides timeliness in reporting the change include persistence in notifying the physician of the change, and accuracy in communicating the nature and degree of the change.

In Busta v. Columbus Hospital Corporation (1996), the Montana Supreme Court affirmed the judgment and orders of the District Court of the Eighth Judicial District. 13

While he was a postoperative patient at Columbus Hospital in Great Falls, Mr. Busta died from injuries sustained in a fall from his third-floor window; apparently he had tried to climb down on an improvised rope. At trial, the nurse assigned to care for Mr. Busta testified that during her last evening visit with him, he had experienced an episode of tachycardia and hypertension. He had also behaved atypically, desiring isolation and refusing all nursing care and his prescribed medication, known to have adverse effects, including confusion, anxiety, and psychosis. The nurse did not report the symptoms and the change in behavior to the physician. She also testified that when she observed the patient at midnight, he appeared to be sleeping; she did not reassess his vital signs.

Mr. Busta's surgeon testified that, because of the mind-altering adverse effects of the patient's medication, he would have reassessed his patient if he had been notified of the changing signs and symptoms. Expert testimony opined that the nurse was negligent in failing to adequately monitor Mr. Busta on the evening and night before he died, and in failing to report the constellation of signs and symptoms to the surgeon; and that the hospital was negligent in failing to maintain a safe environment (evidence presented at trial showed that the hospital had not acted on a JCAHO directive to restrict the opening of windows in patients' rooms).

The jury found that the negligence of Columbus Hospital combined with the patient's contributory negligence caused the patient's injuries and death; the jury apportioned 70% of the liability to the hospital and 30% to Mr. Busta. The jury found that Mr. Busta and his estate were damaged in the amount of $5,000 and his heirs, $800,000. Based on the jury's apportioned liability, the district court entered a judgment in favor of Mr. Busta's estate in the amount of $3,500 and in favor of his heirs, of $560,000.

Failure to document.

Documentation-the purpose of which is primarily to communicate patient information among providers-must accurately reflect the nursing process, showing evidence of nursing assessment and diagnosis, planning for nursing intervention, implementation and evaluation of planned interventions, and patient response. 14,15

The Court of Appeals of Louisiana, Fourth Circuit, affirmed the trial court's verdict in Pellerin v. Humedicenters, a case concerning a failure to document nursing procedures. 16 The plaintiff had alleged that an ED nurse administered an injection of meperidine (Demerol) and hydroxyzine pamoate (Vistaril) in a substandard manner, causing a lump at the injection site and continuous pain, which was later diagnosed by a neurologist as cutaneous gluteal neuropathy. How the injury actually occurred could not be proven at trial. Medical experts gave conflicting testimony regarding the cause of the patient's nerve injury (either the hydroxyzine pamoate or the needle could have caused it). Nurse experts opined that the failure to document the site and mode of injection fell short of the standard of care. At trial, the defendant testified that her customary practice was giving an intramuscular injection and that this practice met the standard of care. The jury found in favor of the plaintiff and awarded more than $90,000 in damages.

On appeal, the defendants (the hospital and the nurse) argued that evidence presented at trial demonstrated that the nurse's breach of the standard of care could not have caused the patient's injury. The appellate court disagreed, stating that the nurse experts' testimony-insufficient by itself to support the jury's decision-did support that decision when combined with the other evidence presented at trial.

Failure to act as a patient advocate.

Legal and ethical issues often become entwined in health care settings, and nurses must be knowledgeable in both. 2 The ANA's Code of Ethics for Nurses with Interpretive Statements provides nurses with a framework for ethical decision making and defines the role of the nurse as patient advocate.

According to O'Keefe in Nursing Malpractice and the Law, "Patient rights are the hallmark for advocacy of nursing care. Nurses are compelled to strive for excellent care of patients and the inclusion of their rights in today's health care system." 17 It's important to note that, as patient advocates, nurses may be required to care for patients whose health care decisions conflict with the nurse's ethical beliefs.

In Koeniquer v. Eckrich (1988), the Supreme Court of South Dakota reversed and remanded for trial an order of summary judgment in favor of Dakota Midland Hospital by the Circuit Court of the Fifth Judicial Circuit. 18 The case involved the death of a patient, Winnifred Scoblic, as a result of sepsis, which was alleged to have developed when she was discharged with a fever some 11 days after urinary tract surgery. The plaintiff, Ms. Koeniquer, representing her mother's estate, initiated a medical malpractice suit against two physicians and Dakota Midland Hospital, alleging deviation from the appropriate standards of care for a patient in postoperative urology.

Ms. Scoblic's surgery was performed on January 5, 1983. Her temperature fluctuated during her postoperative hospital stay and was recorded as 100.2[degrees]F on January 16 at 8:15 am, after the treating physician had completed rounds. The patient was discharged at 10:45 am on the same day. She was readmitted to the hospital on January 19 with a diagnosis of sepsis. On January 21, she was transferred to the University of Minnesota Hospital and on March 6 died of multiple organ failure. The plaintiff's expert witness opined that the nurses failed to adequately monitor Ms. Scoblic's changing condition and provide acceptable postoperative care: although they claimed they had reported the patient's elevated temperature and the condition of the incision and drainage from it to the physician on the day of discharge but had failed to document such a report; the expert also opined that allowing Ms. Scoblic to be discharged with an elevated temperature and failing to provide Ms. Scoblic with discharge instructions about monitoring her temperature were examples of failing to act as patient advocate.

Although the hospital argued that the decision to discharge was a medical one, the hospital's director of nursing stated in her deposition that sometimes it is the nurse's responsibility to question the physician's order, especially when there has been a significant change in the patient's condition. The director also confirmed the expert's assertions that the nurse has a responsibility to independently evaluate the patient's condition, to bring her concerns to the physician, and to appeal to other authorities if the nurse believes the physician's decision is wrong.

The court accepted the hospital's argument that it's a physician's decision to discharge a patient and, therefore, that the hospital was an inappropriate respondent to the suit. The state supreme court, however, ruled there was expert testimony in the record showing that hospital nurses had a duty to attempt to delay Ms. Scoblic's discharge, because of her changing symptoms that day, yet there was no evidence in the record that any nurse questioned or disagreed with the physician's decision to discharge her. The court held that nurses have a duty to question a physician's order if they think it is in the patient's best interest to do so and to delay discharge if they believe discharge deviates from acceptable standards of care. 19 In this case, the nurse neglected her role as advocate.

PRACTICE AREAS CITED IN COMPLAINTS

In my case review, I identified 13 specialty practice areas of nurses involved in malpractice cases. As indicated in Figure 3 (page 61), nurses employed in acute care facilities were named as defendants in such litigation more frequently (153 cases) than nurses employed elsewhere (100 cases). In acute care facilities, seven specialty practice areas were identified. Nurses employed on medical-surgical units had the highest percentage of involvement in litigation (32%), followed by nurses employed on obstetrics units (16%). (Similar findings were noted for medical-surgical units in studies by Campazzi 8 and Mayberry and Croke. 3 )

The areas within acute care facilities in which nurses had the least involvement in litigation include coronary care and intensive care units, operating rooms, and pediatrics (each with 3% of all cases), followed by recovery rooms (2%) and EDs (1%). (Smith 9 and Smith-Pittman 10 identified EDs, obstetrics units, psychiatric units, and operating rooms as specialty practice areas associated with high frequencies of litigation.)

I identified six specialty practice areas outside acute care in the review. Advanced practice nurses employed in independent settings had the highest percentage of involvement in litigation (9%), followed by nurses on transitional care and psychiatric units and in nursing homes (each with 8%). The areas with least involvement in litigation included home health and rehabilitation units (each with 2%). (Campazzi, 8 Smith, 9 Mayberry and Croke, 3 and Smith-Pittman 10 found that nurses employed in areas outside acute care were named less frequently as defendants in malpractice litigation than nurses employed in acute care, but their studies do not reveal a consistent trend as to which specialty practice area accounts for the most malpractice litigation.)

REDUCING POTENTIAL LIABILITY

"Nursing judgment involves the analysis of facts and circumstances on a case-by-case basis. To prevent malpractice, it is essential that the nurse undertake this evaluation with regard to everything that he or she does in the clinical setting." 14 Increasingly, nurses are held accountable to the public for their professional judgment and the outcomes arising from that judgment.

Malpractice litigation is both professionally and emotionally devastating and can be financially disastrous. Each nurse can take steps to help reduce potential liability by using caution and common sense and by maintaining a heightened awareness of his or her legal responsibilities. The following can help nurses reduce potential liability.

Maintain open, honest, respectful relationships and communication with patients and family members.

* Patients are less likely to sue if they feel that a nurse has been caring and professional. 19

* Don't offer opinions when a patient asks what you think is wrong with him-you may be accused of making a medical diagnosis.

* Don't make a statement that a patient may interpret as an admission of fault or guilt.

* Don't criticize health care providers or their actions when you are with patients.

* Maintain confidentiality in the health care setting.

Maintain competence in your specialty area of practice.

* Attend relevant continuing education classes.

* Attend relevant hospital in-service programs.

* Expand your knowledge and technical skills.

Know legal principles and incorporate them into everyday practice.

* Keep up to date on your state's nurse practice act.

* Keep up to date on hospital policies and procedures.

Practice within the bounds of professional licensure.

* Perform only the nursing skills allowed within your scope of practice and that you are competent to perform.

Know your strengths and weaknesses. Don't accept a clinical assignment you don't feel competent to perform.

* Evaluate your assignment with your supervisor

* Accept only those duties you can perform competently

* Let an experienced nurse on the unit assume responsibilities for the specialized duties.

* Document all nursing care accurately.

* If care is not documented, courts assume it was not rendered.

* When documenting care on the patient's chart, use the FACT mnemonic: be f actual, a ccurate, c omplete, and t imely. 20

Complete the CE test for this article by using the mail-in form available in this issue or by going to Online CE at http://www.ajnonline.com .

1. Springhouse Corporation. Malpractice liability. In: Nurse's legal handbook. 4th ed. Springhouse, PA: Springhouse; 2000. p. 197-236. [Context Link]

2. Guido GW. Professional liability insurance. In: Legal and ethical issues in nursing. 3rd ed. Upper Saddle River, NJ: Prentice Hall; 2001. p. 200-10. [Context Link]

3. Mayberry A, Croke E. Issues leading to malpractice show little change: a review of the literature. The Journal of Legal Nurse Consulting 1996; 7( 2):16-9. [Context Link]

4. Joint Commission on Accreditation of Healthcare Organizations. Sentinel Event Glossary of Terms [Web site]. 2003. http://www.jcaho.org/accredited+organizations/laboratory+services/sentinel+event . [Context Link]

5. Cutrona A. Home health nursing. In: O'Keefe ME, editor. nursing practice and the law: avoiding malpractice and other legal risks. Philadelphia: F.A. Davis Co.; 2001. p. 317-35. [Context Link]

6. Fact sheet on the National Practitioner Data Bank [Web site]. 2001. http://www.npdb-hipdb.com/pubs/fs/Fact%20Sheet%20-%20National%20Practitioner%20D . [Context Link]

7. Miller-Slade D. Liability theories in nursing negligence cases. Trial 1997; 33( 5):52-7. [Context Link]

8. Campazzi B. Nurses, nursing and malpractice litigation. Administrative Quarterly 1980( 5):1-18. [Context Link]

9. Smith M. Negligent liability for the nursing profession: implications for nursing education [Dissertation]: Florida State University; 1989. [Context Link]

10. Smith-Pittman M. Nurses and litigation: 1990-1997. Journal of Nursing Law 1998; 5( 2):7-19. [Context Link]

11. Hall v. Arthur, 141 F. 3d. 844 (8th Cir, 1998). [Context Link]

12. Chin v. St. Barnabas Medical Center , 160 NJ 454 (App. Div. 1999). [Context Link]

13. Busta v. Columbus Hosp. Corp., 916 P.2d 122 (Mont. 1996). [Context Link]

14. Higginbotham E, McCarthy R. Elements of nursing negligence. In: O'Keefe ME, editor. Nursing practice and the law: avoiding malpractice and other legal risks. Philadelphia: F.A. Davis Co.; 2001. p. 118-31. [Context Link]

15. Higginbotham E. Documentation. In: O'Keefe ME, editor. Nursing practice and the law: avoiding malpractice and other legal risks. Philadelphia: F.A. Davis Co.; 2001. p. 163-74. [Context Link]

16. Pellerin v. Humedicenters, Inc., 969 So. 2d 590 (La. App., 1997). [Context Link]

17. Holloway R. Patient rights. In: O'Keefe ME, editor. Nursing practice and the law: avoiding malpractice and other legal risks. Philadelphia: F.A. Davis Co.; 2001. p. 189-98. [Context Link]

18. Koeniquer v. Eckrich, 422 N.W.2d 600 (South Dakota, 1988). [Context Link]

19. Guido GW. Tort law. In: legal and ethical issues in nursing. 3rd ed. Upper Saddle River, NJ: Prentice Hall; 2001. p. 78-107. [Context Link]

20. Helm A. Nursing malpractice: sidestepping legal minefields. Philadelphia: Lippincott, Williams & Wilkins; 2003. p. 1-33. [Context Link]

Six Major Categories of Negligence That Result in Malpractice Lawsuits

Failure to follow standards of care, including failure to

* perform a complete admission assessment or design a plan of care.

* adhere to standardized protocols or institutional policies and procedures (for example, using an improper injection site).

* follow a physician's verbal or written orders.

Failure to use equipment in a responsible manner, including failure to

* follow the manufacturer's recommendations for operating equipment.

* check equipment for safety prior to use.

* place equipment properly during treatment.

* learn how equipment functions.

Failure to communicate, including failure to

* notify a physician in a timely manner when conditions warrant it.

* listen to a patient's complaints and act on them.

* communicate effectively with a patient (for example, inadequate or ineffective communication of discharge instructions).

* seek higher medical authorization for a treatment.

Failure to document, including failure to note in the patient's medical record

* a patient's progress and response to treatment.

* a patient's injuries.

* pertinent nursing assessment information (for example, drug allergies).

* a physician's medical orders.

* information on telephone conversations with physicians, including time, content of communication between nurse and physician, and actions taken.

Failure to assess and monitor, including failure to

* complete a shift assessment.

* implement a plan of care.

* observe a patient's ongoing progress.

* interpret a patient's signs and symptoms.

Failure to act as a patient advocate, including failure to

* question discharge orders when a patient's condition warrants it.

* question incomplete or illegible medical orders.

* provide a safe environment.

What To Do If You Are Served with a Complaint

First: notify your insurance carrier..

A complaint is a legal pleading made by a plaintiff to initiate a lawsuit. It includes a formal statement of the charges and the alleged cause or causes of action against the defendant. This document may be the first indication a nurse has that she's being named as a defendant in a civil lawsuit. Once the complaint has been served, the nurse must notify her employer and liability insurance carrier. Usually the insurance carrier and the employer will assign attorneys to the case, but if the nurse doesn't have liability insurance, she should engage the services of an attorney. The nurse must also refrain from discussing the case with anyone but the assigned defense attorney.

When notifying her liability insurance carrier, the nurse should give a written description of the event, including the time, place, and circumstances surrounding the incident, as well as a list of the names and addresses of the injured party or parties and any witnesses. Once served, the nurse must forward all relevant documents to the insurance carrier within the specified time period set forth in the liability insurance policy. If the nurse does not notify the insurer within the specified time period, the insurer may deny coverage to the nurse. 1

1. Matthews M. The nurse and the legal system. In: O'Keefe ME, editor. Nursing practice and the law: avoiding malpractice and other legal risks. Philadelphia: F. A. Davis Co.; 2001. p. 42-57. [Context Link]

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Extraordinary efforts have been made by the authors, the editor and the publisher of the National Center of Continuing Education, Inc. courses to ensure dosage recommendations and treatments are precise and agree with the highest standards of practice. However, as a result of accumulating clinical experience and continuing laboratory studies, dosage schedules and/or treatment recommendations are often altered or discontinued. In all cases the advice of a physician should be sought and followed concerning initiating or discontinuing all medications or treatments. The planner(s), author(s) and/or editor(s) of each course have attested to no conflict of interest nor bias on the subject. The National Center of Continuing Education, Inc. does not accept commercial support on any course nor do they endorse any products that may be mentioned in the course. Any off-label use for medications mentioned in a course is identified as such.

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Course #840

Legal issues in nursing, about the authors.

Julie M. Mroczek, BSN, RN-BC, CLNC , is a Certified Legal Nurse Consultant in North Platte, NE, and has researched and developed legal medical personnel injury and malpractice cases for attorneys for the last 5 years. She has worked as an in-patient charge nurse, clinical research coordinator doing research for pharmaceutical companies, and has served as the RN-case manager for Great Plains Home Health and Asera Care Hospice serving central Nebraska.

Excerpts written by Shelda L. Hudson, RN, BSN, PHN . She is the Director of Healthcare Information with over 21 years of extensive experience with course design and criteria.

Excerpts written by Carolyn Hunter RN, MA , She is the Nursing Education Consultant for the National Center of Continuing Education, Austin, Texas. She has been an expert witness for nursing for the past 25 years. She served on the Washington State Board of Nursing (now Washington State Quality Assurance Commission) for 10 years.

Purpose and Goals

In the nursing profession, instances of litigation can occur, despite healthcare professionals' best efforts in providing quality care. The goal of this course is to educate nurses regarding their responsibility and accountability to patients and the complex issues involved in basic legal situations. This course will help nurses become educated about and be alert to the legal aspects of nursing practice.

Instructional Objectives

Upon completion of this course, the learner will:

• List the three sources of law in the United States and the basic categories of torts.
• Explain the concepts of beneficence and nonmaleficence.
• List the four occasions when information concerning specific incidents must be disclosed.
• Compare the terms malpractice and negligence.
• Summarize the elements of malpractice the plaintiff must prove to recover for damages.
• Describe Nurses' Liability in the Doctrine of Respondeat Superior.
• Compare nursing responsibilities related to client consent in non-life-threatening versus emergency room situations.
• Utilize steps according to evidence based practice guidelines for Advanced Care Planning.
• Define standard of care and give specific examples.
• Interpret the purpose of HIPAA regulations.
• Describe the processes legal professionals may use to detect tampering issues in medical documents.
• Outline the potential consequences of tampering with a medical document.
• Relate the basic legal considerations of the Good Samaritan laws and how they apply to the nursing profession.
• Summarize types of discovery and the importance of discovery to the legal process.
• Describe the role of the legal nursing consultant.
• Describe the process of alternative dispute resolution.
• Summarize the litigation process.

Introduction

Medical Professionals and caregivers who do their best to perform the requirements of their jobs make decisions or complete tasks that can result in legal action being initiated against them by clients/patients and coworkers. The concerned, informed, dedicated professional always strives to implement the education and competency to successfully accomplish all tasks, treatments, and responsibilities correctly and accurately. However, there are rare instances when regardless of the application of the most strict standards for quality care, variations occur which result in litigation. To help avoid these instances, it is important to be educated and informed about current laws, statutes, and standards that directly apply to your daily job requirements and the options available to you if your best efforts are questioned in a court of law.

We are confident that you will find this course applicable and will contribute significantly to your understanding and implementation of important information about legal issues as they apply to the nursing profession.

Introduction To Law

Legal systems, and the conditions under which nurses work, vary worldwide. This course focuses on the U.S. legal system. In your previous studies in school, you may have learned about the three sources of law in the United States: statutory law, administrative law, and common law. You may also have heard about liability, negligence, and the Good Samaritan Act. These concepts and a few more are described in this section.

Sources of Law

There are basically three sources of law in the United States: statutory law, administrative law and common law.

1. Statutory law is written law set down by a legislature. These laws may originate with national, state, or local municipalities. Statutory laws are subordinate to the higher constitutional laws of the land. Cases involving statutory laws may be heard in courts where judgments are made to the interpretation of a statute as it relates to a particular case.

2. Administrative law governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative departments of government (examples include tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, environment issues, taxation, broadcasting, immigration and transport.

Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the complex social, economic and political spheres of human interaction. Examples of administrative agencies include the Federal Trade Commission (FTC), the National Labor Relations Board (NLRB), and the Food and Drug Administration (FDA).

3. Common Law is also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals, as opposed to Civil (Codified/Continental) Law set on statutes adopted through the legislative/parliamentary process and/or regulations issued by the executive branch on base of the parliamentary statutes.

A "common law system" is a legal system that gives great potential precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it holds through to future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.

A decision in a case that yields a new legal principle establishes a precedent. However, a precedent established in one state does not set a precedent for another state. Additionally, prior decisions can also be overruled if there is a change in social attitudes, public needs or contemporary political thinking. In general, common law follows the principle of Stare Decisis - "Let the decision stand." This is the legal principle indicating that courts should apply previous decisions to subsequent cases involving similar facts and questions.

Beneficence and Nonmaleficence

Many nurses are familiar with the term beneficence, which is a legal term that defines actions that promote the well-being of others, specifically in the medical field. Beneficence is further defined as taking action or not avoiding actions that are in the best interest of the patients assigned to a medical professionals care.

Another guiding principle of nurses is the principle of nonmaleficence, which defines the phrase "first, do no harm." This is the basis of one of the most important medical principles--that a medical professional should not harm patients but do them good. This principle has been researched and continues to be defined because medical professionals dealing with end-of-life decisions may order treatments they believe will do good, without considering that the treatments do harm (or only acceptable levels of harm).

Most treatments carry risk of harm and may result if the patient's medical outcome without treatment will result in debilitating or terminal results. Therefore, one of the most important considerations of physicians and nurses is to ensure that the patient understands all of the risks and benefits associated with their medical treatment. Physicians and nurses should also ensure that the patient agrees to implement treatment and document the understanding that the potential benefits may outweigh the risks.

The principle of nonmaleficence is not easy to define or interpret. Nonmaleficence balances against the principle of doing good (beneficence), and the effects of these two opposing principles often give rise to the legal question of double effect. Not as familiar to nursing professionals, double effect defines separate types of consequences that may be produced by one single action. In medical issues, double effect may be the combined effect of beneficence and nonmaleficence. An example of double effect is a dying patient using morphine or other strong pain medications to obtain the beneficial effect of relieving pain and suffering, although the drug may be having the maleficent effect of suppressing respirations and bodily functions, which hastens the death of the patient.

As many nurses know, disagreements can arise among patients, family members, and healthcare professionals. In these cases, issues of autonomy arise. Autonomy can be questioned and in conflict with beneficence when the patient or family disagrees with recommendations that physicians and healthcare professionals believe will most benefit the patient. Different societies and cultures settle these types of conflicts differently. Western medicine usually recognizes the wishes of mentally competent patients to make their own personal decisions concerning healthcare, even when medical professionals believe the decisions may be detrimental to the patients. Other societies may choose beneficence over autonomy. Examples include when patients refuse recommended treatments due to religious or cultural principles or when patients desire excessive or unnecessary treatment due to hypochondria or when they desire excessive cosmetic surgery. Medical professionals may need to balance the wishes of the patient for medically unnecessary potential risks against the patient being informed and consenting to the risks associated with their desired medical treatment. Autonomy and beneficence/nonmaleficence may be combined to overlap. An example includes a breach of autonomy that causes decreased confidence and less willingness to seek medical treatment because these circumstances may cause inability to enforce beneficence.

Most laws involving malpractice cases come from common law and are based on the principles of autonomy, beneficence, and nonmaleficence; therefore, malpractice suits that have already been decided serve as a guide for future decisions.

Theories of liability

Theories of liability in medical malpractice and personal injury cases involve the following legal theories:

• Intentional torts involving battery, assault, false imprisonment, and intentional infliction of emotional distress.
• Negligence or gross negligence
• Negligent infliction of emotional stress

All four legal elements of a medical malpractice or personal injury case must be proved in order to successfully win a legal case. If just one element is not satisfied, the case will be dismissed.

The four legal elements are:

• Duty (established relationship between the plaintiff and the defendant)
• Breach of Duty (failure to do what a reasonable and prudent professional would do under similar circumstances)
• Damages (injuries)
• Causation (An established correlation between the acts of negligence and the injuries)

Defenses to Negligence

Also important in legal cases are the specific defenses to negligence. Contributory negligence acknowledges the patient was irresponsible, negligent, or reckless regarding his or her own healthcare. Comparative negligence is a defense in which the legal decision considers the plaintiff's negligence against the negligence of the defendant in favor of comparative negligence. The Last Clear Chance doctrine allows the plaintiff to recover, regardless of his or her own contributory negligence. The person with the last available chance to avoid the accident but who fails is liable for negligence. Another defense of negligence, pure comparative negligence, allows recovery without regard to the extent of the plaintiff's negligence.

Assumption of risk is also considered in legal cases. In assumption of risk, the plaintiff may be denied recovery if he or she takes responsibility for the damage risk caused by the acts of the defendant. The plaintiff must be aware of the risks and voluntarily consented.

Good Samaritan Act

The Good Samaritan Act in legal terms refers to someone who administers aid in an emergency situation to an injured person on a voluntary basis. Usually, if a volunteer comes to the aid of a person who is a stranger, the person giving the aid owes the stranger a responsibility of being reasonably careful. A person is not obligated by law to do first aid in most states, unless it's part of a job description. However, some states will consider it an act of negligence if a person doesn't, at least, call for help. Generally, where an unconscious victim cannot respond, a Good Samaritan can help them on the grounds of implied consent. However, if the victim is conscious and can respond, a person should always ask their permission to assist them first.

Some states offer immunity to good samaritans, but sometimes negligence could result in a claim of negligent care if the injuries or illness were worsened by the volunteer's negligence or inexperience. Statutes typically don't exempt a good samaritan who acts in a willful or reckless manner in providing their care, advice, or assistance. Good Samaritan laws often don't apply to a person administering emergency care, advice, or assistance during the course of regular employment, such as services rendered by a health care provider to a patient in a health care setting.

Under the Good Samaritan laws which grant immunity, if the Good Samaritan errors while administering emergency medical care, he or she cannot be held legally liable for damages in court. However, two conditions must be met; 1) the aid must be given at the scene of the emergency, and. 2) if the "volunteer" has other motives, (being paid a fee/reward for recognition and promotion), then the law will not apply.

A tort is a civil wrong committed against a person or property (real or personal) and is punishable by damages (i.e., monetary compensation) rather than imprisonment.

There are three basic categories of torts: intentional torts, negligent torts and strict liability torts in which liability is assessed irrespective of fault. This last tort falls under the product liability umbrella, which will not be discussed in this course.

Intentional Torts

Here the plaintiff must prove that the willful act committed by the tort-feasor (Tort - A civil wrong. Tort-feasor - One who commits a tort).

Torts may be intentional or unintentional, and was "intentional", meaning it was known with a high degree of certainty that harm to another would result. An example of intentional tort is an angry punch in the nose -- but is far more likely to result from carelessness (called "negligence"), such as riding your bicycle on the sidewalk and colliding with a pedestrian. While the injury that forms the basis of a tort is usually physical, this is not a requirement -- libel, slander, and the "intentional infliction of mental distress" are on a good-sized list of torts not based on a physical injury.

Several of the more common types of intentional torts are: assault, battery, false imprisonment, invasion of privacy, disclosure of information, defamation of character, misrepresentation and fraud and infliction of mental distress. Common types of intentional torts include but are not limited to:

Assault: This is the causing of an apprehension of an immediate harmful, offensive or unauthorized contact to a person and a willful attempt or threat to injure. The plaintiff must be conscious and aware of experiencing apprehension as defined by assault.

Battery: Is the harmful, offensive or unauthorized touching of another person. A person may be a receiver of the battery and not be aware that the battery has occurred, as in the case of an unconscious client who undergoes surgery without consent, either implied or expressed. Health professionals should realize that procedures ranging from bed baths to medication administration to surgical interventions involve touching.

Legally, the fact that the client benefited from a nurses non-consented touching is not as important as whether or not the nurse had permission initially.

Legally, any adult client who is alert and oriented has the right to refuse any aspect of his treatment. A client also has the right to choose which physician will perform a certain procedure.

False Imprisonment: An act or failure to act by the defendant that confines the plaintiff to a confined area. False imprisonment does not necessarily require physical force. A person who is physically confined to a certain area and is aware of this confinement and has no perceived means of escape may claim false imprisonment. The plaintiff does not need to resist, and freedom of movement in all directions must be limited. The time of confinement does not matter, except regarding how it is related to injuries.

Although most actions for false imprisonment involve psychiatric clients, medical clients who are detained until hospital bills are settled, may claim false imprisonment. However, no charges can be brought against a hospital or its employees for compelling a client with a contagious disease to remain in the hospital.

Mentally ill clients may also be confined to the hospital if there is a danger that the client may harm himself or others (this is covered in many state statutes).

A patient's insistence on leaving the facility should be noted in the medical record. They should be informed of the possible harm in leaving against medical advice (AMA). A release of responsibility form indicating the patient is leaving against the advise of the facility should be signed. Using excessive force to restrain them or may produce liability for both false imprisonment and for battery.

Invasion of Privacy: Invasion of privacy is the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. It encompasses workplace monitoring, Internet privacy, data collection, and other means of disseminating private information. In the routine course of client care, absolute privacy is invaded, but this type of invasion is deemed acceptable by the courts. Negligent disregard for right to privacy, particularly when the patient is unable to protect himself, such as in the case of unconsciousness or immobility, is legally actionable.

The right to privacy is recognized by the law as the right to simply be left alone. It is the right to be free from unwarranted publicity and exposure to public view, as well as the right to live one's life without having one's name, picture, or private affairs made public against one's will. Hospitals, physicians and nurses may become liable for invasion of privacy if they divulge information from a medical record to improper sources.

There are occasions when you must disclose information such as reporting the following incidents: Communicable diseases, child abuse, and elder abuse and gunshot wounds.

Disclosure of Information: Disclosure of Information is somewhat similar to invasion of privacy. It occurs when a client's problems are inappropriately discussed with any third party. Information given to nurses by clients is often very personal and detailed. The client's bill of rights states that the client has the right to expect confidentiality in the health care relationship.

Be very careful about what you say about a client's medical health care, and to whom you may disclose it to, and the environments that you are disclosing these issues that have the potential to be overheard. The importance of regulating the disclosure of information was solidified by the creation of the Health Insurance Portability and Accountability Act (HIPAA) . (See pages 9 and 10 of this document for set of rules).

Defamation of Character: Defamation is an act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in 'defamatory language'. Libel and slander are subcategories of defamation. Defamation is primarily covered under state law, but is subject to First Amendment guarantees of free speech.

The scope of constitutional protection extends to statements of opinion on matters of public concern that do not contain or imply a provable factual assertion with slander -- the plaintiff must prove actual damages. There are four generally recognized exceptions where no proof of actual harm to reputation is required in order to recover damages:

• Accusing someone of a crime
• Accusing someone of having a horrible disease
• Using words which affect a person's profession or business
• Calling a woman unchaste.

There are two defenses to a defamation action: truth and privilege.

With libel -- no proof of actual damage is needed. The court will presume that the words caused injury to the person's reputation.

When a person has said something that is damaging to another person's reputation, the person making the statement will NOT be held liable for defamation if it can be shown that the statement was TRUE.

A privileged communication is one that might be defamatory under different circumstances, but is not because of a higher duty with which the person making the communication is charged.

Additionally, in support of both defenses, the statements must also have been made in the absence of malice. In other words, the statement must have been made without any hatred or ill-will toward the plaintiff.

As mentioned earlier, no proof of actual harm to reputation is required when the words used affect a person's profession or business.

Misrepresentation and Fraud: Misrepresentation and fraud can occur when a health professional misleads a client to prevent the discovery of a mistake in treatment. The plaintiff must prove not only that there was a wrongful misstatement, but also that it was relied on in making a decision.

Most courts have held that when a surgeon knows or has reason to believe that a foreign object was left in the client's body during an operation, it is the physician's duty to disclose the facts to his client.

Not only the physician but also the hospital may be held liable for failure to disclose negligent acts to an injured party.

Infliction of Mental/Emotional Distress: Intentional infliction of emotional or mental distress is a tort claim for intentional conduct that results in a mental reaction. This includes imposing mental suffering resulting from painful emotions, such as grief, public humiliation, despair, shame, wounded pride, etc.

Liability for the wrongful infliction of mental distress may be based upon either intentional or negligent misconduct. The ability to distinguish between negligence and intentional mental/emotional distress in the hospital setting is difficult.

One of the major hurdles in a intentional infliction of emotional distress lawsuit is proving that the defendant's conduct was extreme or outrageous. Generally, it should be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Negligent Torts

Although the terms negligence and malpractice are often used interchangeably, some differences are noted. Negligent tort means a tort committed by failure to act as a reasonable person to someone to whom s/he owes a duty, as required by law under the circumstances. Further, negligent torts are not deliberate, and there must be an injury resulting from the breach of the duty. Examples of negligent torts are car accidents, slip and fall accidents, and most medical malpractice cases.

There are two degrees of negligence : ordinary and gross. Ordinary negligence is the failure to do (or not do) what a reasonable and prudent person would do (or not do) under the same circumstances in the situation in question. Gross negligence is more severe and includes the intentional omission of proper care or the commission of an act constituting the improper delivery of care.

Malpractice is very similar to negligence, but it is more specific. Medical malpractice is the failure of a medical professional to follow the accepted standards of practice of his or her profession, resulting in harm to the patient. Usually, proof of failure to comply with accepted standards of medical practice requires the testimony of someone with expertise in the area of medical practice. Some states have special evidentiary rules applicable to malpractice claims.

In a recent poll of men and women who served as jurors in malpractice suits, 80% of those who responded believe that nurses should be held liable if they misinterpret a doctor's order and the misinterpretation leads to an injury.

A majority of those polled believe that a nurse should be held accountable for injuries that occur as a result of following verbal orders telephoned in from a doctor's office staff. They also believe a nurse should be held accountable for violating nurse-client confidentiality and for episodes of slander. Three out of four polled said a registered nurse (RN) is legally responsible for the licensed practical nurse (LPN) working under the RN's supervision and would hold the RN liable if the LPN's actions led to a client's injury.

Malpractice includes four elements that the plaintiff must prove took place for damages to be recovered.

• Duty of care is the easiest element to prove, especially for nurses who practice in a hospital setting. All that is needed to be proved is that there existed a relationship between the medical professional and the patient at the time of the alleged injury. This relationship exists merely by having a patient on a unit, even if the patient is assigned to one nurse. For example, say you walk past the room of a patient who is not assigned to you and the patient asks for your assistance. You can assist him and, simultaneously, establish a relationship. If you choose not to assist the patient and something injurious happens to him because appropriate medical care was omitted, your decision may ultimately result in a lawsuit. It is not a defense to say, "He wasn't my patient." The patient always has a right to rely on all nursing staff of a healthcare institution acting in the patient's best interests at all times. If a nurse is not appropriately qualified to care for a patient, then an appropriately trained medical professional should be found for the patient.
• Breach of duty is defined as the failure to adhere to the standard of care set by the nursing profession, thus departing from a specific duty owed to the client. Evidence of breach of duty presented to a jury includes testimony (including expert witnesses), circumstantial evidence or res ipsa loquitur ("the thing speaks for itself," which is a doctrine of law applicable to cases where the defendant had exclusive control of the thing that caused the harm and where the harm ordinarily could not have occurred without negligent conduct). The "test" of breach of duty is the reasonably prudent person doctrine, which relies on the doctrine that essentially asks the question "did the defendant act reasonably under the circumstances?"
• The element of injury (also called damages) not only includes physical harm but also mental anguish and other invasions of the patient's (plaintiff's) rights. Nurses may be negligent but not liable if no injury results to the client. For damages to be awarded, a plaintiff must show that some measurable harm occurred.
• The element of proximal cause (also called causation) involves the concept of "foresee ability"; that is, a logical link must exist between the nurse's act and the injury suffered. Proximate cause also relies on the "but for" test: "But for the 'act' the injury would not have occurred." However, it must be clearly understood that the mere departure from a standard procedure alone is not enough evidence to allow a client to recover damages. Therefore, even if a logical link exists, if there is no proximate cause, there is no liability.

A jury, listening to the facts and testimony of a case, are asked to examine the following two questions:

• Did the nurse fail to adhere to the standard of care practiced by the nursing profession in this situation, and, if so, was it foreseeable that harm would result?
• Was the negligence the immediate cause of the injury?

Contributory and comparative negligence laws vary by state.

Professional Liability

The doctrine of respondeat superior.

Under the doctrine of Respondeat Superior, a hospital may be party to a lawsuit brought about by the negligent act of its nurse employee.

The areas that pose the most legal risks involving the Respondeat Superior doctrine include:

• Failure to follow a physician's order : This negligent act can involve the failure of the nurse to check doctors' orders before administering a medication to assess for modifications of the order.
• Failure to report significant changes in a client's condition.
• Failure to take correct telephone orders : This act can be just as serious as the failure to follow, understand and/or interpret a physician's orders correctly. Nurses who disagree with a physician's order should not carry out an obviously erroneous order. In such a case, the nurse should confirm the order with the physician first to see if there may have simply been a miscommunication of some sort. However, if the confirmed order is still obviously an error, then the nurse should notify the supervisor immediately, and if necessary, proceed up the chain of command in the medical facility until appropriate safe treatment is ordered.
• Failure to report defective equipment : A nurse may be held liable if the failure to report a defect, which is not hidden from sight and known to be defective, is the proximate cause of a client's injury.
• Failure to follow established standard procedure : This can involve failure to follow proper isolation technique that can lead to cross contamination. This area continues to be a growing concern, especially with regard to lawsuits.
• Patient Falls : This category of injury is in first place with regard to malpractice cases. It is important to assess the patient to determine high risk of falls. This information must be communicated to all staff. Nursing interventions must be instituted to: (1) teach the patient, if not impaired, to call for assistance when getting out of bed or chair; (2) use 1/2 side rails at head of bed at ALL times. (full side rails usually require a physicians order); and (3) use bed or chair alarms for patients who are impaired due to medications and/or dementia. The best advice is prevention and communication to staff and family. Some health care agencies are using orange non-slip socks to alert staff. Most agencies use a computer-driven assessment scale that gives a numerical score for patients that are a high risk for falls. It is also important to assess other factors not always on the scale, such as a diagnosis of osteoporosis, deconditioning of the patient, medications that affect judgment or reduce reflexes, history of falls and/or fractures, and advancing age.
• Patient Burns : This area not only includes the negligent practitioner who inadvertently leaves heating equipment on a client's skin for too long, but also the client who, for example, spills hot coffee on himself as he reaches for some other item on his dinner tray. If the patient is alert, oriented and otherwise self-sufficient then there is usually no need to worry about a liability charged against you. However, if the client hurts himself and is very old, very young, or mentally and/or physically impaired, then there may be a suit filed. The nurse may be blamed for the harm that resulted because of, or related to, not recognizing the vulnerability and history of the patient.
• Medication Errors : The RULE for establishing safe medication administration in nursing care has historically consisted of the TRIPLE CHECK -- once - as you remove it from the shelf or cart, once as you dispense it and once again as you replace it. Unfamiliarity with drugs can result in nursing negligence. The nurse is ultimately responsible for understanding all recommendations regarding potential drug interactions and therapeutic/side effects before administering any type of drug.ALWAYS LISTEN to your PATIENT. Many patients are aware of changes in their medications/treatments, and if a patient tells you they think a change has been made or their prescribed treatment is not correct, ALWAYS assume the patient may be accurate. Question orders that do not seem appropriate to you or your patient.
• Sponge and instrument counts : This form of negligence causes severe pain, suffering and liability cases, and it is usually caused by obvious negligence.

Nursing Practice Act and Standard of Care

Unfamiliarity with medications can result in nursing negligence. Nurses are ultimately responsible for understanding all recommendations regarding potential drug interactions, therapeutic benefits and adverse side effects before administering any type of drug.

A good rule to follow is to always listen to your patients. Typically, they are aware of changes in their medication. If a patient tells you that he or she thinks a change has been made or the prescribed treatment is not correct, consider them as an active participant in their care. Question orders that do not seem appropriate to you or your patient. Clarify the orders with the doctor who ordered the medication. Just because the doctor ordered the medication does not exclude the nurse from being responsible.

The jury may assume that the nurse has ultimate responsibility for the knowledge and competency in administering medications. If the doctor's orders for treatment still seem to be inappropriate or negligent, it is the nurse's responsibility to climb the chain of command until safe and appropriate medical care is ordered and administered.

Each state will have Statutory Law that regulates the practice of nursing. This is referred to as the Nursing Practice Act. Each state promulgates rules known as administrative law to determine Standards of Care. The Standard of Care will be listed for each area of practice and will usually follow with examples of violations and sanctions for each standard. The state will appoint a board of nurses and public members to assist with the writing of these rules (laws) and form a disciplinary panel.

Other aspects of the administrative law will deal with nursing practice, licensure, delegation, continuing education, chemical dependency abuse, and other standards related to nursing practice. Standard of Care is defined as "those acts performed or omitted that an ordinary prudent person would have performed or omitted". It is a measure against which the nurse's conduct is compared. Each state may define specific standards that are spelled out in the rules. Examples of standards are:

• Assessment . The registered nurse will be responsible for data collection and analysis that includes pertinent objective and subjective data regarding the health status of the client (assessment). Other aspects of the nursing process will be spelled out;
• Safety and Delegation . The nurse is accountable for the safety of the client and delegating selected nursing functions to others according to their education, credentials, and demonstrated competency. The nurse is responsible for supervising others to whom the delegation is given;
• Communication . Nurses shall communicate significant changes in the client's status to appropriate members of the health care team. This communication shall take place in a time period consistent with the client's need for care.
• Health Teaching . The nurse assesses learning needs including learning readiness for patients and families, develops plans to meet those learning needs, implements the teaching plan and evaluates the outcome.

Each licensed nurse should be familiar with the laws of the states in which he or she is licensed and be aware of the Standard of Care and the Violations of the Standard of Care. You may obtain the law for your state on the states' website for Nursing, or ask for a copy from the regulatory agency from which you obtain your license.

Professional Responsibility

Every human being of adult years and sound mind has a right to determine what shall be done with his/her own body. All types of medical treatment require a patient's consent. Informed Consent in medical ethics refers to the idea that a person must be completely informed and understand the potential benefits and risks associated with their choice of treatment. An uninformed uneducated person is vulnerable and at risk for making inappropriate or even dangerous decisions which do not reflect their values or wishes and may have a negative effect on their health status. Patients can decide to make their own medical decisions, or can delegate decision making responsibility to another person.

If the patient is incapacitated, laws in different geographical areas designate different processes for obtaining informed consent, usually by having a person appointed by the patient or their family to make medical decisions based on their best interest. The value of informed consent has a close correlation with the values of honesty and autonomy.

The essentials of a valid consent are:

• Consent must be voluntarily made;
• The patient must be informed of all the information regarding the treatment before the application; and
• The patient must be capable of giving consent.

However, in certain situations medical treatment can be initiated without consent. When a patient is mentally incapable of understanding the treatment and make a decision, the physician treating the incapable person can provide treatment. The treatment must be for the benefit of the patient. The physician must exercise good faith in providing treatment. Moreover, in case of an emergency, consent is not necessary. In case of an emergency, a surgeon can operate on a child without waiting for authority from the parents where it appears impracticable to secure consent.

Documentation: If you didn't chart it, you didn't do it! In a malpractice case, the patient's chart can be your lifesaver or your executioner. The following guidelines should be kept in mind when documenting:

• DON'T make derogatory remarks about the client's behavior (even if they are true). An attorney would love to tell the jury that you wrote in the chart that his client was "rude, belligerent, abusive," etc. He/she could even imply that the alleged negligent act was committed because you did not like the client. Instead of using terms such as the ones listed above, focus on describing the behavior that the client displayed that led you to the conclusion that he/she was uncooperative or abusive. Let the jurors decide if they were difficult to care for, if that was the case.
• DON'T put incident reports in the chart (unless specifically required by your hospital's policy manual). In addition, do not refer to the incident report in your documentation. If you advertise the incident or have it in the record, the plaintiff's attorney can use it against you. If it is not present in the chart, then it becomes protected by attorney-client privilege. The plaintiff's attorney cannot view it without a specific request for production.
• DON'T try to cover up anything, no matter how embarrassing. Trial attorneys have a wide, comprehensive, technologically effective system that will most likely lead to having the truth discovered and proven in a court of law. It is better to honestly disclose all information, embarrassing or not, first and up front in documentation and follow-up representation with your attorney.
• DON'T use the chart to blame other caregivers for doing or not doing something for the client. Settle these issues at meetings or during one-on-one confrontations.
• DO make each entry in the chart neat and legible. The chart reflects you and your professionalism. Sloppy handwriting, poor grammar and misspellings do not present a professional picture and can lead to poor client care when other staff members cannot read or understand what you have written. (Be careful about late entries, as these are often a warning and red flag for legal professionals indicating attempts to cover mistakes).
• DO quote the client directly or paraphrase what he/she has said, especially when documenting on non compliant clients. Use quotation marks when you quote your client directly. Client's actual statements can be revealing to a jury. If you were a juror, who's side would you be on if the nurse accused of negligence wrote, "The client was abusive and uncooperative for the length of the shift," or "The client stated, 'Look here honey, I'm not going to take that medication because I just don't feel like it -- so get out'." As a juror I'd say that the client was ultimately responsible for his own actions; the nurse was merely attempting to do her/his job.

Staffing Issues : Proper staffing is the hospital's responsibility, but also the nurse responsible for proper, safe adherence to medical care. Adequate staffing also includes placing specially trained nurses in specialty areas. A hospital is legally liable for negligence if it's staffing fails to meet the standards of care in state licensure regulations -- such as a requirement to assign specially prepared nurses to certain departments.

As a nurse professional, your staffing responsibility includes having the ability to responsibly perform your patient ordered healthcare treatments safely and as prescribed. (If weekends, holidays, or preferred shifts tend to cause staffing issues/shortages in your medical institution, it may be necessary to take the steps to climb the chain of command in your healthcare institution to ensure safe, appropriate medical care for the patients entrusted to your care.)

If you suspect that you will not be able to manage a certain assignment or treatment, inform your supervisor immediately. If the response is inadequate and possibly negligent, or should a client's condition worsen and you feel you cannot handle the situation, the nurse may consider climbing the chain of command in their institution to ensure safe, competent medical care.

Patient Teaching : If you do not document patient teaching, you could lose your case in court. By documenting your teaching and the client/family response to the teaching, you support your defense of "reasonable standard of care" by providing proof of your instruction to the client and/or family.

The court will use the following criteria to determine a standard method of client teaching which is usually found in hospital policy manuals.

• Evidence that the nurse identified the client/family's learning needs and documented a teaching plan as part of the nursing care plan.
• Evidence that the nurse evaluated the client/family response to the teaching and their understanding.

Should you refer the client to another health care professional for teaching, (a dietitian for example), you must document that you did refer the client to this dietitian and include the subject of the referral: Some clients, as we all know, simply do not care to learn and will tell you that they have no interest in learning, or that someone else will care for them after discharge. Your best defense, in such a case, is to document the client's exact words when he/she refuses teaching and arrange to meet with the caregiver, documenting his/her response to the teaching.

Importance of Communication : Legal and ethical conflicts in medicine often are related and can be traced back to a lack of communication. Failure to communicate between patients, their caregivers and families, and their healthcare provider team and between members of the medical community can lead to disagreements and conflicts. These communication breakdowns can be resolved by open comprehensive lines of communication.

Do Not Resuscitate Orders (DNR) : "There is nothing anyone can do," the old man whispered. "Even without your gadgets, medic, you know what's wrong with me. You cannot mend a whole body, not with all your skills and all your fancy instruments. The body wears out ... And even if you gave me a new body, you still couldn't help me, because down deep where your knives can't reach and your instruments can't measure, is "the me" that is old beyond repair." --Author Unknown

A do not resuscitate order is an advance directive that is to be followed when a person's heart or breathing stops and they are unable to communicate their wishes to refuse treatment that could allow them to die. Laws regarding do not resuscitate orders vary by state, so local laws should be consulted for specific requirements in your area.

Your Rights

Defending yourself.

Plaintiffs who sue nurses may encounter common defense arguments to protect nursing professionals. Nursing Defenses may include:

• An Intervening Cause. This argument can be used if the negligent and injurious act of one person is followed by the injurious act of another. In this case, the first negligent practitioner can accuse the second negligent practitioner of causing the REAL damage.
• The Client Failed to Follow Orders. For example, the client failed to take his medications as instructed (and the documentation in the chart clearly indicates that the nurse completed appropriate client teaching and the nurse clearly indicated the client's response to the teaching), (example; the client/patient fell after he was told/instructed not to get out of bed and the dangers of attempting to do so and patient education was thoroughly documented. Usually, in cases such as these, the jury would see the client as being responsible for the situation in which he now finds himself.
• The Tragic Injury Occurred, but not as a result of negligence. This occurs in cases of burns, falls and similar unfortunate but unforeseeable cases. If there was no negligence, then it was an accident with no one to take the blame.
• An Uncontrollable Factor Led to the Injury. In this defense, the defendant argues that it was not a deviation from the standard of care that caused the injury, but instead, an anatomic anomaly that resulted in the injury. This is argued in cases of injection injuries. The action, which caused the injury, was based on a reasonable error of judgment. Here, you would need to show the jury that, under the circumstances, although the act seemed reasonable, the injury still occurred. You must prove that your knowledge and skill was utilized to your best ability, and that a reasonable and prudent nurse would have done the same under the same circumstances.

Important Confidentiality Considerations for Health Care Professionals:

2012 HIPAA (American Health Insurance Portability and Accountability Act )

HIPAA is a set of rules to be followed by doctors, hospitals, and all health care providers. It helps to ensure that all patient medical records, medical billing, and patient accounts meet consistent standards with regard to documentation, handling, and privacy. Any healthcare provider that electronically stores, processes, or transmits medical records, medical claims, or remittances or certifications must comply with all HIPAA regulations.

HIPAA requires that all patients are able to access their own medical records, correct errors, and be informed and educated about how personal information is shared. Additional provisions involve notification of privacy procedures to the patient.

HIPAA Laws and Regulations are divided into five rules:

• Privacy Rules : Establishes national standards to protect individual medical records and other personal health information for any health care institution that conducts health care transactions electronically. The Privacy Rule requires appropriate safeguards to protect the privacy of personal health information, which sets limits and conditions on the use and disclosure which may be made available without patient authorization. It also gives patient rights over their health information, including the ability to examine/review and obtain a copy of their health records, and to request changes or corrections.
• Administrative: Assignment of a HIPAA security compliance team
• Physical: Protection of electronic systems, equipment and data
• Technical: Authentication used to control data access.
• Transaction Rules : Include a set of codes used for encoding data such as medical terms, concepts, medical diagnosis and procedure codes. Code sets for medical data are required for medical data for administrative transactions under HIPAA for diagnosis, procedures, and drugs.
• Unique Identifiers Rule : As part of the HIPAA Administrative Simplification regulation there are currently three identifiers which help promote standardization, efficiency, and consistency. They are the Standards Unique Employer Identifier, the National Provider Identifier, and the National Health Plan Identifier.
• Enforcement Rule : Describes improvements to existing HIPAA law, covered entities, business associates and others will be subject to more rigorous standards when it comes to protected health information (ePHI). The HITECH (Health Information Technology for Economic and Clinical Health) expands the scope of the HIPAA Privacy and Security Rules and increases the penalties for HIPAA violations. It also provides Medicare and Medicaid monetary incentives for hospitals and physicians to adopt electronic health records (EHR) and also provides grants for the development of a health information exchange, which help to stimulate health care providers to adopt technology to improve efficiency in healthcare.

With today's ever changing and efficient technological environment in relation to healthcare, all documentation involving patient care will be monitored more closely, thoroughly, and efficiently by the Federal Government and all entities involved in the medical profession. It is important to always care for our patients as proficient, educated, competent professionals, and document their care with honesty, integrity and accuracy. Protecting our patient's rights to maintain confidentiality in all areas relating to their healthcare is a top priority affecting our current healthcare system, which is reinforced and maintained by developing stricter HIPAA regulations. Failure to uphold these standards can result in severe consequences/punishment to all healthcare providers involved.

Patient Rights

Autonomy : The autonomy principle recognizes the rights of patients to self determine the implementation of their own health care. This is becoming more recognized and valued based on our belief and respect for an individual's right to make informed decisions regarding medical health care. Autonomy has become more important because society recognizes and defines medical standards of care in terms of quality outcomes that are the patient's desire and not necessarily the desires of the medical professionals. This increasing reliance of autonomy has been apparent as a social reaction to tradition which may have new technology and treatment options to sustain life at any cost versus the patient's right to die with dignity, comfort, and respect. This medical ethic addresses the questions of well-intentioned medical professionals.

Advanced Directives : Advanced directives are written instructions regarding a patient's medical care and preferences. The patient's family, physician, and caregivers will consult the advanced directive if a patient is unable to make his own health care decision. Advance Directives include:

Living Will : Written legal document spells out the types of medical treatment and life-sustaining measures the patient requests, or refuses, such as mechanical breathing, tube feeding or nutritional sustenance, or resuscitation. In some states, living wills may be called health care declarations or health care directives.

Medical or health care power of attorney (POA) : The medical POA is a legal document that designates an individual-referred to as a health care agent or proxy- to make decision in the event that a patient is unable to do so. However, it is different from a power of attorney authorizing someone to make financial transactions for the patient. Since a Living Will can't cover every possible situation, a patient may also want a medical POA to designate someone to be his health care agent. This designated person will be guided by the living will, but has the authority to interpret the patient's wishes in situations that aren't described in the living will. A medical POA may be indicated if the family is divided or opposed to the patient's healthcare wishes.

Do Not Resuscitate (DNR) order : DNR orders and special considerations discussed earlier in this lesson.

It is a top priority for all medical professionals to understand and accurately implement the specific wishes/preferences regarding what a patient may designate for their own medical health care. Accurate interdisciplinary communication, documentation, and implementation for advanced directives are of vital importance from the very beginning interaction/assessment with the patient and throughout all phases of their medical care and treatment.

Advanced Care Planning

Guideline objectives.

• To achieve significant, measurable improvements in advance care planning through the development and implementation of common evidence-based clinical practice guidelines.
• To assist the practitioner in engaging the patient in a discussion of goals, preferences, and priorities regarding the patient's care at different stages of life
• To recommend tools and interventions to address Advance Care Planning across the patient population
• To design concise guidelines that are focused on key components of advance care planning

Target Population

Patients whose death in the next twelve months would not be surprising

Patients with a chronic, life-limiting illness who are experiencing more symptoms, hospitalizations, etc.

Patients aged 55 and over, in any stage of health

Interventions and Practices Considered

1. patient education topics.

• The Advance Care Planning process
• Review of patient's goals and preferences annually
• The value of making one's wishes known both verbally and in writing
• The importance of early conversations with family in a non-crisis situation
• The value of identifying a surrogate decision-maker, with consent
• The value of cultural sensitivity
• For appropriate patients, the value of having a Physician's Orders for Life-Sustaining Treatment (POLST)
• Education should include family members, the surrogate decision-maker, and others who are close to the patient
• Any individual can start the conversation (including physicians, nurses, social workers, clergy, trained facilitator, etc.)
• These individuals are encouraged to seek training to improve their ability to handle the issues
• At the later stages, the facilitator should have experience with and knowledge of the patient's specific condition (e.g. congestive heart failure [CHF], end-stage renal disease [ESRD], cancer, etc.)

2. Completion of an Advance Directive

• Revision of Advance Care Plan
• Review the patient's goals and preferences for end-of-life care and Advance Directives at least annually
• Work with the patient to update his/her Advance Directives, giving consideration to specific potential scenarios
• Discussions should occur with a significant change in prognosis (metastatic cancer, oxygen-dependent chronic obstructive pulmonary disease [COPD], progressive heart failure)
• If patient has limited life expectancy, consider using a tool to address the patient's specific requests for end-of-life care.

3. Documentation

• Place a copy of the Advance Directive and other documentation of the patient's goals and preferences for end-of-life care in the patient's record
• Share it throughout the health system as appropriate, including nursing homes, emergency medical services (EMS) companies, etc.
• Help the patient identify a surrogate who would make decisions on their behalf if they did not have decision-making capacity
• Identify the patient's values and perspectives on end-of-life care and their general wishes for end-of-life care.
• Encourage the patient to discuss their wishes with the surrogate, family member, spiritual counselor and others.

(The guideline is based on The Joint Commission: 2011 Comprehensive Accreditation Manual for Hospitals; The American Medical Association: E-2.225 Optimal Use of Orders - Not - To - Intervene and Advance Directives)

Medical Record Review/Job Summaries

Certified Legal Nurse Consultant (CLNC) : This is a Registered Nurse who uses nursing experience/medical expertise in combination with specialized legal training and comprehensive exam and certification to assist attorneys to research and develop medically related cases.

CLNC comprehensive medical record review includes:

• Thoroughly assess and organize all medical records, narrow down and identify what is irrelevant or what may be missing
• Look for inaccuracies in documentation of condition that are inconsistent with what is regarded/ believed to be accurate
• Determine if staffing issues were a consideration (weekends, holidays)
• Address specific missing records, direct the attorney to explore more in depth request for production from the defense or plaintiff
• Assess for evidence or signs of tampering through specialized training in detecting tampering in a medical record
• Review and assess all relevant medical records present prior to the incident for evidence of pre-existing conditions
• Screen cases for merit
• Review/analyze medical records for deviations from the Standards of Care or institutions policies and procedures
• Provide appropriate literature regarding treatments, standards of care, demonstrative evidence for whatever the attorney may request, and integrate them into the case analysis
• Locating top expert witnesses in their medical fields, or the CLNC has specialized training to serve as a testifying or consulting expert to support the case
• Identify factors that caused or contributed to the injury
• Identify and recommend potential defendants
• Identify and review relevant medical records, hospital policies and procedures, and other essential documents and tangible items
• Interview plaintiff and defense clients, key witnesses and experts with the attorney
• Develop specialized written reports/chronological time lines and summaries as requested by the attorney

Forensic Document Examiners : Specially trained legal professionals who utilize specialized equipment to detect fraud and tampering in a legal medical document. Some of the areas they may disclose include identifying different paper, different inks, indentations in the paper, and handwriting inconsistencies, to detect chronological inconsistencies and evidence of tampering in a medical record. If tampering of a medical document can be proved in a court of law, it implies dishonesty and deceit on the part of the defense, and may dramatically swing the jury's opinion in favor of the plaintiff.

Medical records are transitioning into computer based medical records, and forensic document examiners have progressed to more efficiently and thoroughly investigate technology based computer medical record documentation which include:

Computer Forensic Document Examiners : are able to detect fraud, financial tampering, computer crime, employee misconduct, and other wrongdoing which require hospital corporations, law firms, and government agencies to follow digital trails to understand facts that lead to the truth in computer fraud or tampering.

Computer forensic experts help ensure no digital evidence is overlooked and assist at any stage of a forensic investigation or litigation, regardless of the number or location of computer sources. Forensic experts assist legal professionals with their most complex and sensitive investigative or litigation matters involving electronic evidence.

Data Preservation : Computer forensic expert offers cost-effective and defensible methodologies and solutions to identify solutions and preserve electronic data.

Evidence and Data Collection : Considering the volume and complexity of collection needs, this expert can provide forensically sound, best-practice methodology to gather data for electronic investigation, forensic analysis, or forensic discovery.

• Forensic Data Analysis: Whether data was deleted or manipulated on purpose or by accident, forensic experts analyze the digital clues left behind to quickly and defensibly uncover critical information.
• Expert Testimony: Experts have the necessary experience and credentials to creditably serve and report as an expert witness.

Remember to always document medical treatment and procedures of your patients accurately, honestly, and thoroughly, realizing there may be professional experts with specialized equipment and procedures which may be able to accurately critique and analyze medical documentation to detect applicable and serious facts and tampering evidence in a court of law.

This is a vital part of the legal trial process which enables representative attorneys to discover the truth, narrow the facts, determine the strengths and weaknesses of the case, plan a trial strategy, and enable and negotiate settlement for both parties before the trial begins.

Discovery Process : Understanding the discovery process and what methods you can use in discovery will enable the plaintiff or defendant in a potential lawsuit to proceed confidently and proficiently. The basic Discovery "tools" include: interrogatories, requests for admissions, document requests, depositions and examinations. The purpose of discovery includes obtaining truthful facts and evidence in a format allowed in trial, narrow the issues and determines the case's strengths and weaknesses, plan a trial theme and strategy, anticipate outcomes and prevent unanticipated surprise outcomes, and enable negotiated settlement between adversarial parties.

Types of Discovery

Interrogations.

Interrogatories are questions designed to elicit specific information from one legal party to an opposing party. Usually, the questions are related to background information. Interrogatories work best for obtaining simple factual information. (Example: Medical Records state that EKG strips were utilized during the treatment of Mr. Smith on June 6, 2011. Please state if the EKG machine was functioning properly.) Each interrogatory, according to the Federal Rules of Civil Procedure, should be limited to a "one question/ one fact" format. This means that each interrogatory can only ask for one fact. The use of compound questions is generally not allowed.

Requests for Admissions

Requests for Admissions are similar to interrogatories, but may serve a different purpose. Requests for Admissions establish what issues are settled and not further addressed or in question. They provide each party with issues that they do not have to argue, because they are settled and unquestioned. This allows the court to save time in settling issues, and not have to address evidence presented on everything involved if the parties agree on those issues. Request for admissions takes the format of a declaration which the responding party can admit, deny, or object to based on particular legal reasoning.(Example: Admit or deny that the medical expenses listed in exhibit 2 are related to treatment for injuries for the plaintiff on June 2, 2011) Once a responding party answers the requests for admissions, those admissions will become part of the records and are held as true legal evidence unless the judge withdraws them or allows the party to make changes to them.

Document Requests/Request for Production

Document Requests, or Requests for Production, are used to gather documents or items that may be relevant to the legal case. The party asking for discovery will provide guidelines and topics in their Requests for Production, in order to receive documents relevant to the lawsuit. "Requests for Production" serve the purpose of gaining information and evidence vital to the lawsuit are that not in the attorney's possession. Requests for documents also occur in deposition requests. These requests are often accompanied by what's known as a "subpoena duces tecum." (Supplying any and all documents related to the deposition). Essentially, any documents discoverable and not privileged that are used for deposition preparation should be turned over and reviewed for submission as potential evidence.

Depositions and Examinations

Depositions are often used if facts come to light through other discovery methods that require further explanation or clarification by one party. A deposition is requested for an attorney to question witnesses, clients, or experts while under oath with a court reporter present and attorneys representing both parties usually present before the date of the trial. The Federal Rules of Civil Procedure typically allow, as a maximum, one day of deposition per witness, which amounts to seven hours of total deposition time. Depositions must be noticed in advance and should be scheduled at the convenience of all parties. Examinations often include physical or mental examinations, usually allowed only if a person's physical or mental status are questioned based on the particular lawsuit . Physical examination would include any claim relating to physical injury incurred. Mental examinations are usually required when a party is claiming a defense of a mental diagnosis/defect or often in custody hearings evaluating the fitness of a parent.

Importance of a Lawyer during the Discovery Process

The discovery process should be attempted with the expertise of an experienced lawyer. Mistakes in the discovery process can lead to court fines, sanctions, and missing important information in developing any legal case. Failure to respond to discovery requests may result in all admissions being answered in the affirmative, or having future discovery requests limited. Utilizing an experienced lawyer will ensure that all discovery can be legally conducted in an efficient and appropriate way, and that all parties entitled to the requested information will be available to support specific sides of the case. While discovery is not meant to be used to a tactical advantage, going alone with the demands of an opposing lawyer will often result in the other side exploiting answers and getting the opposing party locked into admissions they wished to avoid. An experienced attorney will ensure that the party represented will answer only the relevant and legally allowed questions, and that all evidence that must be turned over is legally appropriate, while protecting any privileged materials.

Alternative Dispute Resolution (ADR)

A legal process used to resolve disputes prior to trial outside the processes of the traditional legal system. ADRs take place after a suit has been filed and after discovery has been completed. Benefits of ADR include reduced cost, faster resolution of disputes, increased access to have their day in court if ADR has been attempted, flexibility, privacy, personal client participation, and a common sense approach with the absence of complex legal procedures

In negotiation, participation is voluntary and with no third party to facilitates the resolution process or imposes a resolution.

In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, known as a "mediator's proposal"), but does not require a resolution of the parties. The mediator does not decide the case but facilitates and encourages communication between the parties

In collaborative law, each party has an attorney who facilitates the ADR process within specially determined terms. The parties reach agreement with support of the attorneys (who are trained in the process). No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system.

In arbitration, participation is usually voluntary and a third party who participates as private judge implements a resolution. Arbitrations usually occur because parties contract to agree that any future dispute concerning the agreement will be resolved by the arbitrator. Selection of arbitrators is based on their impartiality towards both parties and area of expertise in a given area.

Beyond the basic types of alternative dispute resolutions there are other different forms of ADR, they include:

• Case evaluation: a non-binding process (the decision can be ignored or dismissed unless the parties have agreed or been ordered to do otherwise) in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their positions, and assesses how the dispute is likely to be decided by a jury.
• Early neutral evaluation: a process that takes place soon after a case has been filed in court where the case is referred to an expert who is asked to provide a neutral evaluation of the disputed issue. The evaluation of the expert can assist the parties in assessing their case and may enable a settlement.
• Family group conference: a meeting between members of a family and members of their extended related group. At these meetings, the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.
• Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. This process is especially helpful for resolving complex scientific and factual disputes.
• Ombuds: third party selected by an institution - for example a university, hospital, corporation or government agency - to deal with complaints by employees, clients or related effected parties.

Basic Summary of the Litigation Process

The plaintiff, or injured party, usually with the help of an attorney, files a complaint which is the first notification in a civil action, stating the cause of action.

The plaintiff's complaint asks for damages or relief from a defendant, who is alleged to have caused the injury. The complaint outlines the legal and factual reasons why the plaintiff believes the defendant is responsible for his injury.

The clerk of the court then issues a summons to the defendant. Either the sheriff or a licensed server formally delivers the summons to the defendant. The summons includes notice of the lawsuit and a copy of the complaint.

The defendant or his lawyer has a specified time to personally appear in court. The defendant is required to file a document referred to as an "answer". The answer addresses the facts and the legal claims in the complaint. The answer tells the court which facts in the complaint the defendant agrees and/or disagrees with.

Early Stage Motions

Once the complaint and answer have been filed with the court, attorneys for both sides consider proper motions (a motion is a request to the court to issue an order). The defense may file a motion to dismiss, stating the complaint does not contain facts making the defendant liable to the plaintiff. A defendant may file a motion to dismiss before his answer. The plaintiff may file a motion for summary judgment, which says the facts that make the defendant liable to the plaintiff are not in dispute. A court granting either of these early motions may end the lawsuit, which is why they are usually the first matters that take place. If these motions are denied, the lawsuit proceeds. Legal settlements/agreements of any legal case are permitted throughout the entire trial process.

Discovery and Pre-trial

Discovery is an important part of all pre-trial preparations. During discovery, the parties exchange information and documents related to the plaintiff complaint and defenses represented in the answer.

As discovery proceeds, the parties have pre-trial conferences with the judge. The parties advise the judge of discovery progress and discuss potential settlements. The judge aids in negotiations and sets schedules for discovery completion.

During the pre-trial phase, lawyers may request the judge to bar specific evidence, witnesses or arguments as legally inappropriate. The judge grants or denies the motions. Upon completion of discovery, decisions on pre-trial motions and failure to reach a settlement results in the lawsuit proceeding.

Trial and Judgment

At the trial, the plaintiff presents evidence first to a judge either in a bench trial or a group of citizens in a jury. Jury selection begins when potential jurors are summoned in a random process. Potential jurors on the panel are questioned by the judge and the attorneys. The purpose of Voir dire (to say the truth) is to test the legal qualifications of the jury panel members to serve as jurors. Each party's attorney is entitled to disqualify potential jurors who are not appropriate to participate in a particular trial, or are disqualified because each attorney is entitled to 6 peremptory strikes, which involve attorney preferences for selection of potential jurors.

After the plaintiff presents evidence, the defendant has an opportunity to present the defense side of the case. The plaintiff has the burden of proving his case by a preponderance of the evidence. This means that it is more likely than not, that the claims of the plaintiff are true. This standard of evidence is much lower than the criminal standard of beyond a reasonable doubt.

Both sides present their cases, and then the judge or jury decides. If the judge or jury finds against the plaintiff, the case is over. The judge enters a judgment in favor of the defendant releasing the defendant from liability for the plaintiff's claims.

If the judge or jury finds for the plaintiff, the defendant is found to be liable and judgment is determined for the plaintiff. The court then awards damages (money) and/or orders the defendant to perform a specific act. This order terminates the trial process and is a judgment in favor of the plaintiff.

The losing party may file an appeal if they believe the outcome was legally incorrect. An appellate court may dismiss the appeal, hear and affirm the judgment, reverse it, or send it back to the trial court with instructions to correct legal errors. Lawsuits may go between the appellate court and trial court multiple times before final resolution.

Enforcement

When a judgment becomes final in favor of the defendant, the plaintiff may not file suit on the same lawsuit basis in the future. If the ruling favors the plaintiff, the defendant must adhere to all the terms of the judgment. Failure of the defendant to obey the judgment places the defendant in contempt of court and implies the danger of prosecution and/or penalties. A plaintiff with a judgment may seek to enforce it by obtaining a court order to seize the property of the defendant to satisfy the defendant's debt.

Wrapping It Up

All health professionals should be actively aware of current legal issues and their various key concepts. These are primarily negligence, consent, accountability, confidentiality and advocacy. Having knowledge and understanding of these key concepts can motivate improved implementation of these laws and precipitate improvements in the protection of human rights of both patients and providers in health care settings.

Recognizing that universal human rights have special relevance to healthcare providers as well as patients, is essential to nurturing a culture of respect within the health care delivery context.

This course was written to inform a firmer understanding of the legal basis for patient and provider rights and responsibilities and available mechanisms for enforcement among medical professionals, public health professionals and health managers, ministries of health and justice personnel, patient advocacy groups, and patients themselves.

References & Suggested Readings

ANA American Nurses Association "Professional Standards" www.nursingworld.org, Brooke PS, Legal questions Nursing, Oct 2012, 42(10) p10-1

Brooke PS. "Legally speaking...when can staff say no?" Nurse Manage, Jan 2011, 42(1) p40-4

Cady RF, Legal briefs JONAS Healthc Law Ethics Regul, Oct 2012, 14(4) p90-108

Discovery Law and Legal definitions, www.definitions.uslegal.com Accessed 07/13/2013

Giordano, K. "Examining Nursing Malpractice, A Defense Attorney's Prospective" Critical Care Nurse April 2008,23(2)

Good Samaritan Law Wikipedia, http://en.wikipedia.org/wiki/Good_Samaritan_law. Accessed 01/13/2013

HIPAA: Health Information Privacy, U.S. Department of Health and Human Services: "HIPAA Regulations" http://www.hhs.gov/ocr/privacy/ Accessed 01/13/2013

Kennedy MS. "Protectors in need of protection." Am J Nurs, Jun 2011, 111(6) p7

Legal Eagle Eye Newsletter: "EMTALA: Nurses Screening Met Hospital's Legal Responsibilities, Lawsuit Dismissed, Issue, October 2012

March AL, Ford CD, Adams MH, et al. The mock trial: a collaborative interdisciplinary approach to understanding legal and ethical issues. Nurse Educ, Mar-Apr 2011, 36(2) p66-9

McGowan CM. "Legal aspects of end-of-life care." Crit Care Nurse, Oct 2011, 31(5) p64-9

Michigan Quality Improvement Consortium. Advance care planning. Southfield (MI): Michigan Quality Improvement Consortium; 2012 Jan. 1 p. Accessed July, 18, 2013. http://www.guideline.gov/content.aspx?id=36619&search=dnr

Muller LS, Dimola M. "Legal & regulatory issues." Prof Case Manag, Sep 2012, 17(5) p241-4

Respecting Choices Program (http://respectingchoices.org

Tanga HY, Nurse drug diversion and nursing leader's responsibilities: legal, regulatory, ethical, humanistic, and practical considerations. JONAS Healthc Law Ethics Regul, Jan-Mar 2011, 13(1) p13-6

Tillett J Legal issues in adolescent care. Nurse Pract, Sep 2011, 36(9) p8-9

Tovino, Stacey A., "Conflicts of Interest in Medicine, Research, and Law: A Comparison" (2013). Scholarly Works. Paper 752. Accessed: http://scholars.law.unlv.edu/facpub/752

Van Etten D, Gautam R. "Custodial grandparents raising grandchildren: lack of legal relationship is a barrier for services." J Gerontol Nurs, Jun 2012, 38(6) p18-22

Legal Terminology:

American health insurance portability and accountability act (hipaa).

HIPAA regulations are divided into the following rules:

• Privacy rules: Establish national standards to protect individual medical records and other personal health information for any healthcare institution that conducts healthcare transactions electronically. The Privacy Rule requires appropriate safeguards to protect the privacy of personal health information, which sets limits and conditions on use and disclosure that may be made available without patient authorization. It also gives patients rights over their health information, including the ability to examine, review, and obtain a copy of their health records and to request changes or corrections.
• Security rules: Establish the privacy protection of electronic protected health information (PHI) and deals with identifiable health information as defined by HIPAA identifiers. The security rule defines standards, methods, and procedures for protecting electronic PHI with identification of how PHI is stored, accessed, transmitted, and audited. The HIPAA Security rule enforces three security safeguards: assignment of a HIPAA security compliance team, protection of electronic systems, equipment and data, and authentication used to control data access.
• Transaction rules: Include a set of codes used for encoding data, such as medical terms and concepts medical diagnosis, and procedure codes. Code sets for medical data are required for administrative transactions for diagnosis, procedures, and drugs.
• Unique identifiers: As part of the HIPAA Administrative Simplification regulation there are currently three identifiers that help promote standardization, efficiency, and consistency. They are the Standards Unique Employer Identifier, the National Provider Identifier, and the National Health Plan Identifier.
• Enforcement rules: Describe improvements to existing HIPAA law, covered entities, business associates, and others who are subject to rigorous standards related to PHI. The HITECH (Health Information Technology for Economic and Clinical Health) expands the scope of the HIPAA Privacy and Security Rules and increases the penalties for HIPAA violations. It also provides Medicare and Medicaid monetary incentives for hospitals and physicians to adopt EHR, and the rules also provide grants for the development of a health information exchange, which helps to encourage healthcare providers to adopt technology to improve efficiency in healthcare.

With today's ever-changing and efficient technological environment in relation to healthcare, all documentation involving patient care is monitored more closely, thoroughly, and efficiently by the federal government and entities involved in the medical profession. It is extremely important to always care for patients as proficient, educated, competent professionals and document patient care with honesty, integrity, and accuracy. Protecting patients' rights to maintain confidentiality in all areas relating to their healthcare is a top priority affecting the current healthcare system, which is reinforced and maintained by developing stricter HIPAA regulations. Failure to uphold these standards can result in severe consequences to all healthcare providers involved.

• About Multi-Choice Offers

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Vicarious Liability

Definition of vicarious liability, what is vicarious liability, vicarious liability in employment, elements of vicarious liability of an employer.

Bob hires John as a forklift operator. While moving a large crate to the customer loading zone, John hits a customer’s car, damaging it. John was engaged in the duties required by his employment, therefore Bob can be held vicarious liable for the damages.

Scope of Employment

Employee acting outside his scope of employment.

Employers whose employee engages in an activity that was not directed or controlled by the employer may not be responsible for damages. This depends on what the activity was, and what purpose it served. For instance, an employee simply taking a “detour” while in the business of his employer, such as stopping to get gas while making deliveries, may still expose the employer to liability. Having gas in the vehicle is necessary to making the employer’s deliveries.

Vicarious Liability in Medical Care

Example of vicarious liability in medical care.

A few weeks after John had abdominal surgery at his local hospital, he felt he had perhaps broken a rib, and went to the Emergency Department. The x-ray showed that a surgical clamp had been left inside John’s abdominal cavity, which required immediate surgery for removal. John can sue the original surgeon for medical malpractice , but he can also sue the hospital, which holds vicarious liability for the actions of its physicians.

Other Types of Vicarious Liability

Principal liability, example of principal liability.

If, on the other hand, Jane kept Robert’s car to use while he is laid up, and she hit another car while driving to the grocery store, for her own needs, Robert is not likely to held vicariously liable. Simply lending a car to someone does not expose the owner to liability for the driver’s actions. The driver would need to be acting in the service of the owner.

Parental Liability

Example of parental liability, vicarious liability example as court holds employer responsible, related legal terms and issues.

Defining the Role of Authors and Contributors

Page Contents

• Why Authorship Matters
• Who Is an Author?
• Non-Author Contributors
• Artificial Intelligence (AI)-Assisted Technology

1. Why Authorship Matters

Authorship confers credit and has important academic, social, and financial implications. Authorship also implies responsibility and accountability for published work. The following recommendations are intended to ensure that contributors who have made substantive intellectual contributions to a paper are given credit as authors, but also that contributors credited as authors understand their role in taking responsibility and being accountable for what is published.

Editors should be aware of the practice of excluding local researchers from low-income and middle-income countries (LMICs) from authorship when data are from LMICs. Inclusion of local authors adds to fairness, context, and implications of the research. Lack of inclusion of local investigators as authors should prompt questioning and may lead to rejection.

Because authorship does not communicate what contributions qualified an individual to be an author, some journals now request and publish information about the contributions of each person named as having participated in a submitted study, at least for original research. Editors are strongly encouraged to develop and implement a contributorship policy. Such policies remove much of the ambiguity surrounding contributions, but leave unresolved the question of the quantity and quality of contribution that qualify an individual for authorship. The ICMJE has thus developed criteria for authorship that can be used by all journals, including those that distinguish authors from other contributors.

2. Who Is an Author?

The ICMJE recommends that authorship be based on the following 4 criteria:

• Substantial contributions to the conception or design of the work; or the acquisition, analysis, or interpretation of data for the work; AND
• Drafting the work or reviewing it critically for important intellectual content; AND
• Final approval of the version to be published; AND
• Agreement to be accountable for all aspects of the work in ensuring that questions related to the accuracy or integrity of any part of the work are appropriately investigated and resolved.

In addition to being accountable for the parts of the work done, an author should be able to identify which co-authors are responsible for specific other parts of the work. In addition, authors should have confidence in the integrity of the contributions of their co-authors.

All those designated as authors should meet all four criteria for authorship, and all who meet the four criteria should be identified as authors. Those who do not meet all four criteria should be acknowledged—see Section II.A.3 below. These authorship criteria are intended to reserve the status of authorship for those who deserve credit and can take responsibility for the work. The criteria are not intended for use as a means to disqualify colleagues from authorship who otherwise meet authorship criteria by denying them the opportunity to meet criterion #s 2 or 3. Therefore, all individuals who meet the first criterion should have the opportunity to participate in the review, drafting, and final approval of the manuscript.

The individuals who conduct the work are responsible for identifying who meets these criteria and ideally should do so when planning the work, making modifications as appropriate as the work progresses. We encourage collaboration and co-authorship with colleagues in the locations where the research is conducted. It is the collective responsibility of the authors, not the journal to which the work is submitted, to determine that all people named as authors meet all four criteria; it is not the role of journal editors to determine who qualifies or does not qualify for authorship or to arbitrate authorship conflicts. If agreement cannot be reached about who qualifies for authorship, the institution(s) where the work was performed, not the journal editor, should be asked to investigate. The criteria used to determine the order in which authors are listed on the byline may vary, and are to be decided collectively by the author group and not by editors. If authors request removal or addition of an author after manuscript submission or publication, journal editors should seek an explanation and signed statement of agreement for the requested change from all listed authors and from the author to be removed or added.

The corresponding author is the one individual who takes primary responsibility for communication with the journal during the manuscript submission, peer-review, and publication process. The corresponding author typically ensures that all the journal’s administrative requirements, such as providing details of authorship, ethics committee approval, clinical trial registration documentation, and disclosures of relationships and activities are properly completed and reported, although these duties may be delegated to one or more co-authors. The corresponding author should be available throughout the submission and peer-review process to respond to editorial queries in a timely way, and should be available after publication to respond to critiques of the work and cooperate with any requests from the journal for data or additional information should questions about the paper arise after publication. Although the corresponding author has primary responsibility for correspondence with the journal, the ICMJE recommends that editors send copies of all correspondence to all listed authors.

When a large multi-author group has conducted the work, the group ideally should decide who will be an author before the work is started and confirm who is an author before submitting the manuscript for publication. All members of the group named as authors should meet all four criteria for authorship, including approval of the final manuscript, and they should be able to take public responsibility for the work and should have full confidence in the accuracy and integrity of the work of other group authors. They will also be expected as individuals to complete disclosure forms.

Some large multi-author groups designate authorship by a group name, with or without the names of individuals. When submitting a manuscript authored by a group, the corresponding author should specify the group name if one exists, and clearly identify the group members who can take credit and responsibility for the work as authors. The byline of the article identifies who is directly responsible for the manuscript, and MEDLINE lists as authors whichever names appear on the byline. If the byline includes a group name, MEDLINE will list the names of individual group members who are authors or who are collaborators, sometimes called non-author contributors, if there is a note associated with the byline clearly stating that the individual names are elsewhere in the paper and whether those names are authors or collaborators.

3. Non-Author Contributors

Contributors who meet fewer than all 4 of the above criteria for authorship should not be listed as authors, but they should be acknowledged. Examples of activities that alone (without other contributions) do not qualify a contributor for authorship are acquisition of funding; general supervision of a research group or general administrative support; and writing assistance, technical editing, language editing, and proofreading. Those whose contributions do not justify authorship may be acknowledged individually or together as a group under a single heading (e.g. "Clinical Investigators" or "Participating Investigators"), and their contributions should be specified (e.g., "served as scientific advisors," "critically reviewed the study proposal," "collected data," "provided and cared for study patients," "participated in writing or technical editing of the manuscript").

Because acknowledgment may imply endorsement by acknowledged individuals of a study’s data and conclusions, editors are advised to require that the corresponding author obtain written permission to be acknowledged from all acknowledged individuals.

Use of AI for writing assistance should be reported in the acknowledgment section.

4. Artificial Intelligence (AI)-Assisted Technology

At submission, the journal should require authors to disclose whether they used artificial intelligence (AI)-assisted technologies (such as Large Language Models [LLMs], chatbots, or image creators) in the production of submitted work. Authors who use such technology should describe, in both the cover letter and the submitted work in the appropriate section if applicable, how they used it. For example, if AI was used for writing assistance, describe this in the acknowledgment section (see Section II.A.3). If AI was used for data collection, analysis, or figure generation, authors should describe this use in the methods (see Section IV.A.3.d). Chatbots (such as ChatGPT) should not be listed as authors because they cannot be responsible for the accuracy, integrity, and originality of the work, and these responsibilities are required for authorship (see Section II.A.1). Therefore, humans are responsible for any submitted material that included the use of AI-assisted technologies. Authors should carefully review and edit the result because AI can generate authoritative-sounding output that can be incorrect, incomplete, or biased. Authors should not list AI and AI-assisted technologies as an author or co-author, nor cite AI as an author. Authors should be able to assert that there is no plagiarism in their paper, including in text and images produced by the AI. Humans must ensure there is appropriate attribution of all quoted material, including full citations.

Next: Disclosure of Financial and Non-Financial Relationships and Activities, and Conflicts of Interest

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