LEGAL ISSUES ENCOUNTERED IN NURSING PRACTICE

LEGAL ISSUES ENCOUNTERED IN NURSING PRACTICE. Nursing Practice Acts. Licensure in Nursing.

 

Legal issues in nursing

The preceding vignette highlighted a growing clinical dilemma that nurses face in the complex, ever-changing health care system. Financial considerations may conflict with clinical concerns for patient well-being. In an increasingly complex health care environment, the nurse's ability to make appropriate decisions about the provision of patient care services is facilitated by a sound knowledge of the laws governing practice. In the case of Mr. Jones, triage, evaluation, and treatment are governed by federal law known as the Emergency Medical Treatment and Active Labor Act (EMTALA) (COBRA, 42 U.S.C. 1395dd). There also may be a specific state law regarding jessential care and transport of patients in Emergency Departments. Lastly, sections of the Nijirsing Practice Act delineating professional conduct for the registered nurse (RN) also would Assist Nurse Clark in managing this clinical problem. Financial concerns become a secondary consideration for the nurse with this baseline knowledge of the law.

Each nurse must be able to articulate his or her professional duty to the patient or client under the law and to recognize legal risks in practice. Knowledge of the law enhances the nurse's ability to provide safe and effective care in all settings. This chapter examines legal aspects of nursing practice! The concepts of law, professional accountability, legal liability, negligence, malpractice, and criminal offense are defined. Specific laws or statutes governing nursing practice are also reviewed. The reader is introduced to current, relevant information about case law, also known as common law or judge-made law, as it applies to professional nursing practice. Patients' rights are explored within the context of law and court opinions. Finally, the Institute of Medicine report on medical errors is discussed, and specific strategies to reduce errors and legal risk are elaborated.

SOURCES OF LAW AND NURSING PRACTICE

The actions of all individuals are regulated through two systems of principles known as laws and ethics. Laws enforce a minimum level of conduct by imposing penalties for violations of acceptable behavior (Rhodes, 1994). Laws are expressed in terms of "must" and "shall" and are based on a society's interest in prohibiting or controlling certain behaviors. Ethics are described in terms of "should" and "may" and address beliefs about appropriate behaviors within a societal context (Lagana, 2000). Chapter 9 presents an in-depth discussion about nursing ethics. Professional nursing conduct also is regulated by a variety of laws. There are two major sources of law:

• Statutory law

• Common law

The standards for professional nursing practice are in great part derived from both statutory and common law. The following section of the chapter deals with statutory law and describes how it governs and indirectly influences nursing practice.

STATUTORY LAW

Laws that are written by legislative bodies such as Congress or state legislatures are enacted as statutes. The terms law and statute will be used interchangeably in this chapter. The aforementioned EMTALA is an example of a federal statute. Violation of law is a criminal offense against the general public and is prosecuted by government authorities. Crimes are punishable by fines or imprisonmenjt. The list of federal and state statutes that govern nursing practice has multiplied over the past 25 years. Nurses at all levels of practice must develop a greater depth and breadth of knowledge about laws related to professional practice, their specific practice setting (i.e., the Emergency Department in the case of EMTALA), and health care systems in general. Ignorance of the law is never a defense when the nurse violates a health care statute. A nurse who violates the law is subject to penalties, including monetary fines, suspension or revocation of jhis or her license, and even imprisonment in some instances (Nurse's Legal Handbook, 2000).

Federal Statutes

As I travel across the United States speaking with nurses about the rapid and often daunting changes in health care, a common question raised is, "Isn't there a law prohibiting this—reduction in RN staff? floating? the use of nurse aides in this patient care situation?" Nursing staffing is influenced to some degree by federal (and state) laws. For instance, in 1999 California became the first state to enact a law (California Assembly Bill 394) that mandates the establishment of minimum nurse-patient ratios in acute care facilities (Schreiber, 2000). The projected nursing shortage may prompt other states to follow suit. Federal laws also have a major impact on nursing practice, mandating a minimum standard of care in all settings that receive federal funds (i.e., reimbursement for treatment of Medicare patients).

Unfortunately, most nurses are unfamiliar with health care law and rely on authorities in their employment setting to know what is legal and therefore permissible. Automatically deferring to administrators or nurse managers about the legality of a particular issue is no longer acceptable behavior for the professional nurse. Each RN must take accountability for knowing the law and understanding how it relates to patient care and nursing practice. When concerns about work-related issues arise (e.g., a change in scope of practice for unlicensed staff or a reduction in RN staffing), the first question the nurse should ask and answer must be: "Is this legal?" (Mahlmeister, 1996).

Three federal statutes that nurses must be familiar with and have a clear understanding of are discussed. This list is not comprehensive, but it includes examples of federal law that directly impact nursing practice. Many federal laws are relevant to specific health care settings (i.e., mental health, Emergency Departments, maternity settings). When nurses are knowledgeable about the federal laws applicable to their area of practice, they will be able to more effectively advocate for patients in that setting.

Emergency Medical Treatment and Active Labor Law (COBRA, 42 U.S.C. 1395dd). This federal statute, often referred to as the "anti-dumping" law, was enacted in 1986 to prohibit the refusal of care for indigent and uninsured patients seeking medical assistance in the Emergency Department (Moy, 1999). This law also prohibits the transfer of unstable patients, including women in labor, from one facility to another. The law states:

• All persons presenting for care must receive the same medical screening examination and be stabilized, regardless of their financial status or insurance coverage, before discharge or transfer.

The Emergency Medical Treatment and Active Labor Law (EMTALA) is applicable to people presenting to non-Emergency Department settings such as urgent care clinics. It even governs the transfer of patients from an inpatient setting to a lower level of care in some parts of the United States (Roberts v. Galen of Virginia, Inc., 1997). Significant penalties can be levied against a facility that violates the EMTALA, including a $50,000 fine (not covered by liability insurance). The federal government also can revoke the facility's Medicare contract, and this could result in a major loss of revenue for the institution or even insolvency. Many legitimate concerns that nurses have about the discharge or transfer of patients could be promptly addressed if the nurse had a solid understanding of the EMTALA. This is not a daunting task. Nursing journals have published many articles about the EMTALA and the nurse's role in upholding this statute (Snyder, 1999; Casaubon and Sparks, 2000).

Americans With Disabilities Act of 1990 (Public Law No. 101-336), 42 U.S.C. Section 12101. The intent of this law is to end discrimination against qualified persons with disabilities by removing barriers that prevent them from enjoying the same opportunities available to persons without disabilities. Recent court cases have established that, as a place of public accommodation, a health care facility must provide reasonable accommodation to patients (and family members) with sensory disabilities such as vision and hearing impairment (Negron v. Snoqualmie Valley Hospital, 1997, and Aikins v. St. Helena Hospital, 1994).

 This statute has relevance for all nurses. As patient advocates, nurses have a legal and ethical duty to provide appropriate patient and family education and to support the process of informed consent. The health care facility must have a policy that defines how it will meet the client's needs for education and information when there are vision or hearing disabilities. The policy also must delineate how the nurse can obtain translators and special types of equipment needed to facilitate communication.

Patient Self-Determination Act of 1990; Omnibus Budget Reconciliation Act of 1990 (Public Law No. 101-508, Sections 4206 and 4751). This federal statute is aMedicare/Medicaid amendment intended to support individuals in expressing their preferences about medical treatment and making decisions about end-of-life care. The law requires that all federally funded hospitals:

• Inform adult patients, in writing, about their right under state law to make treatment choices. These choices include collaborating with the physician in formulating "do not resuscitate" (DNR) orders.

• Ask patients if they either have prepared a "living will" or have executed a "durable power of attorney" for health care.

The law provides guidance to nurses who often are in the best position to discuss these issues with the patient (e.g., while completing a comprehensive admission assessment). (Legal considerations related to living wills, durable power of attorney, and DNR orders are discussed in the last section of this chapter.)

Health Insurance Portability and Accountability Act of 1996 (Public Law No. 104- 191). The intent of this law is to ensure confidentiality of the patient's medical records. The introduction of electronic medical records has provided additional impetus for introduction of this legislation. The statute sets guidelines for maintaining the privacy of health data. Legitimate concerns regarding the uses of and release of medical information, particularly to private entities such as insurance companies, led to the passage of this law. It provides explicit guidelines for nurses who are in a position to release health information. To maintain confidentiality of the medical record and privacy of patients' health data, all nurses must have a basic understanding of the new rules and regulations that went into effect in 2001.

State Statutes

In addition to federal laws, nursing practice is governed by state laws that delineate the conduct of licensed nurses and define behaviors of all health care professionals in promoting public health and welfare.

State Nursing Practice Act and Board of Nursing Rules and Regulations. One of the most important state laws governing nursing practice is the Nursing Practice Act. This law was enacted to define the scope and limitations of professional nursing practice. The aim of regulating practice in this manner is to protect the public and make the individual nurse accountable for his or her actions (Booth and Carruth, 1998). State legislatures authorize the nurses' licensing board to promulgate administrative rules and regulations necessary to implement the Nursing Practice Act. Once these administrative rules and regulations are formally adopted, they have the same force and effect as any other law (Nurse's Legal Handbook, 2000).

Although nursing practice acts vary from state to state, they usually contain the following information:

• Definition of the term registered nurse

• Description of professional nursing functions

• Standards of competent performance

• Behaviors that represent misconduct or prohibited practices

• Grounds for disciplinary action

• Fines and penalties the licensing board may levy when the Nursing Practice Act is violated

Box 8-1 provides excerpts from three separate state nursing practice acts to illustrate how the Nursing Practice Act defines the scope of practice for nurses.

Surprisingly, many nurses are not even aware that the Nursing Practice Act is a law, and they unknowingly violate aspects of this statute. They are not familiar with the administrative rules and regulations enacted by the licensing board. This is an unfortunate lapse because these administrative rules and regulations answer crucial questions that nurses have about the day-to-day aspects of practice and unusual occurrences. For example, rules promulgated by the Ohio Board of Nursing include the following section:

At all times when a licensed nurse is providing direct nursing care to a client within the scope of the licensed nurse's practice as set forth in [the law] Section 4723.02 of the Revised Code, the licensed nurse shall display and identify applicable licensure as a registered nurse or as a licensed practical nurse (Ohio Administrative Code, Section 4723-4-03, (H), 1996).

An RN in Ohio who does not wear an identification badge that clearly displays his or her status as an "RN" is in violation of the law. In this era of health care redesign, knowledge of this administrative rule would be essential because many health care systems are attempting to remove the licensure status of health care professionals from identification badges. In these latter settings all workers (even nurses and physicians) are identified by a generic title such as "patient care team member." An increasing number of licensing boards are considering amending administrative rules to require that the nurse's licensure status (RN, licensed practical nurse [LPN], or licensed vocational nurse [LVN]) be clearly displayed on the worker's identification badge.

 Each nurse should own a current copy of the Nursing Practice Act and the licensing board's administrative rules and regulations. The dramatic changes occurring in health care often lead to uncertainty among nurses about which functions constitute the exclusive practice of registered nursing and which patient care tasks may be lawfully delegated to LPNs, LVNs, or unlicensed assistive personnel.

The Nursing Practice Act and licensing board rules and regulations provide essential information that clarify these important questions. The Nursing Practice Act broadly defines the practice of registered nursing in accordance with nursing's rapidly evolving functions. In recent years, with the expansion of basic nursing functions and the development of advanced nursing practice, many states have revised their nursing practice acts (Weiss, 1995). Licensing boards also have been authorized in some states to provide guidelines for the development of "standardized procedures." Standardized procedures are a legal means by which RNs may expand their practice into areas traditionally considered to be within the realm of medicine. The standardized procedure actually is developed within the facility where the expanded nursing functions have been approved. It is developed in collaboration with nursing, medicine, and administration. An example of a standardized procedure would be a written protocol authorizing a nurse to implement a peripherally inserted venous catheter for patients in the neonatal intensive care unit.

Violations of the Nursing Practice Act. State legislatures have given licensing boards the authority to hear and decide administrative cases against nurses when there is an alleged violation of the Nursing Practice Act or the nursing board's rules and regulations. Nurses who violate the Nursing Practice Act or board's administrative rules and regulations are subject to disciplinary action by the board. Research indicates that there has been an increase in the number of consumer complaints to licensing boards related to nursing misconduct (Malugani, 2000) Table 8-1 provides a synopsis of the licensing board proceedings when a complaint is made about a nurse. Box 8-2 presents the more common grounds for disciplinary action by state boards of nursing. Penalties that licensing boards may impose for violation of the Nursing Practice Act include:

• Issuing a formal reprimand

• Establishing a period of probation

• Levying fines

• Limiting, suspending, or revoking the nurse's license

An estimated 7% of the 1.9 million RNs in the United States are chemically dependent (Bernzweig, 1996). The majority of disciplinary actions by licensing boards are related to misconduct resulting from chemical impairment, including the misappropriation of drugs for personal use and the sale of drugs and drug paraphernalia to support the nurse's addiction. When the nurse's license is limited or suspended because of problems related to chemical impairment, the ability to practice in the future often is predicated on successful completion of a drug rehabilitation program and evidence of abstinence. An increasing number of state licensing boards have established programs to guide nurses through the process of rehabilitation to reestablish licensure. Booth and Carruth have identified other grounds for disciplinary action in their study of Louisiana State Board of Nursing disciplinary actions for violation of the Nursing Practice Act (1998).

Reporting Statutes

In 1973 the United States Congress enacted the Child Abuse Prevention and Treatment Act. The law mandated all states to meet specific uniform guidelines to qualify for federal funding of child abuse programs. All 50 states and the District of Columbia now have created laws that mandate reporting of specific health problems and the suspected or confirmed abuse of vulnerable individuals in society. Nurses often are explicitly named within the context of these statutes as one of the groups of designated health professionals who must report the specified problems under penalty of fine or imprisonment. The following are reportable in all states:

• Infant and child abuse

• Dependent elder abuse

• Specified communicable diseases (for example, bubonic plague)

An increasing number of states also require a report of suspected or confirmed domestic violence. For example, a California law (Assembly Bill 890) enacted in 1995 requires nurses and other health care workers to recognize and report symptoms of domestic violence to local law enforcement authorities or face a misdemeanor charge.

The nurse must be familiar with these state-specific reporting statutes as they apply to his or her practice setting. For example, pediatric nurses must have in-depth knowledge regarding child abuse reporting laws. Agency policies and procedures in the nurse's work setting may provide guidance regarding reporting duties. If information is not available within the institution, the nurse may consult with the State Department of Health or the state nurses' licensing board for guidance in obtaining these reporting statutes.

Nurses need not fear legal reprisal from individuals or families who are reported to authorities in suspected cases of abuse. Most legislatures have granted immunity from suit within the context of the mandatory reporting statute. A recent court decision upheld this doctrine of immunity. In the case Heinrich v. Conemaugh Valley Memorial Hospital (1994), the family of an injured child initiated a lawsuit against a hospital that reported suspected child abuse after a state investigation found them innocent of the charge. The court ruled that the hospital and the physician who made the report in "good faith" were immune from litigation under a Pennsylvania Child Protective Service Law that required reports of suspected child abuse.

Institutional Licensing Laws

All facilities (i.e., hospitals, nursing homes, rehabilitation centers) providing health care services must comply with licensing laws promulgated by state legislatures. These laws are created to protect the public and ensure the safe and effective provision of health care services. Specific language usually is contained within health facility licensing statutes regarding the following:

• Minimum standards for the maintenance of the physical plant

• Basic operational aspects of major departments (nursing, dietary, clinical laboratories, and pharmacy)

• Essential aspects of patient rights and the informed consent process

Many state licensing laws mandate minimum levels of education, experience, or credentialing for department administrators such as nurses, anesthesia personnel, pediatricians, and obstetricians. Several states also require minimum nurse-patient ratios in critical care units and other specialty departments such as the operating room, nursery, or Emergency Department.

Health care restructuring and redesign have led to many changes in the way health care services are provided and the settings in which care is rendered. Not all change has been positive, and some redesign schemes have resulted in adverse outcomes for patients. Investigations by state authorities on report of patient injuries or death have discovered that in some cases health facilities have operated in violation of existing licensing laws (Hytha, 1997). In the past, direct-care RNs generally could rely on their nurse managers to have a comprehensive knowledge of health facility licensing law and to create policies and procedures that implement and enforce applicable aspects of the law. The trend toward flattened management and reduction in staff development personnel has altered this picture. In an increasing number of settings, nurse managers have been replaced with nonnurse administrators who may have minimal knowledge of the health facilities licensing laws.

COMMON LAW

In addition to statutory law, nursing practice is guided by common law, also known as decisional or judge-made law. Common law is created through cases heard and decided in federal and state appellate courts. Throughout the years judge-made law regarding nursing practice has accumulated in the form of written opinions. These opinions eventually contribute to the expected standard of nursing conduct (Trandel-Korenchuk and Trandel-Korenchuk, 1997). The body of written opinions about nurses also is known as nursing case law. The importance of nursing case law in establishing the current standard of practice cannot be overstated.

One of the most important cases to establish the expected conduct of nurses was Utter v. United Hospital Center, Inc. (1977). This West Virginia case affirmed that nurses were required to exercise independent judgments to prevent harm when caring for patients. Before the 1970s the issue of whether nurses were licensed professionals who made independent judgments was not clearly established. In the Utter case a patient whose arm was casted had signs and symptoms of compartment syndrome. The affected limb became progressively more edematous and eventually turned black. The nurses failed to activate the chain of command when the primary providers did not respond to their reports and requests for medical reevaluation. The patient's arm eventually had to be amputated. The court wrote:

Nurses are specialists in hospital care who, in the final analysis, hold the well-being, in fact in some instances, the very lives of patients in their hands. In the dim hours of the night, as well as in the light of day, nurses are frequently charged with the duty to observe the condition of the ill and infirm in their care. If the patient, helpless and wholly dependent, shows signs of worsening, the nurse is charged with the obligation of taking some positive action ... there was evidence that certain nurses did not fulfill their obligation.

The duty to prevent harm, known as the nurse's "affirmative duty," has been reaffirmed in numerous court decisions.

Every nurse should understand the impact that nursing case law has on his or her current practice. Case law made in appellate court decisions has addressed a range of vital issues related to professional nursing including:

Nursing malpractice cases

Lawsuits claiming violation of the nurse's civil rights, including free-speech issues and reasonable accommodation for nurses with disabilities

v    Questions concerning labor law and collective bargaining

v    Lawsuits alleging wrongful termination

v    Legal challenges to state board of nursing disciplinary action against a nurse's license

v    Legal actions against the nurse instituted by medical licensing boards

v    "Practicing medicine without a license" claims

Efforts should be made by professional nurses to review case law as it is published and discussed in nursing journals. There has been a trend to incorporate "legal advice" columns into many practice journals, and journals often include discussions about nursing case law. There also has been a proliferation of nursing journals dedicated solely to legal issues in nursing practice. Table 8-2 lists examples of these publications.

CIVIL LAW

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. Tort law is discussed first, and a discussion of criminal law follows.

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. This duty is established through societal expectations regarding interpersonal conduct (Nurse's Legal Handbook:, 2000). Civil suits almost always are brought by one person against another and generally are based on the concept of "fault." The person who initiates the civil lawsuit, the plaintiff, seeks damages for the wrongful behavior from the offending person, known as the defendant. The determination of whether wrongful behavior has occurred usually is determined by a jury, although in certain cases the right to a trial by jury can be waived by the private parties in the suit. In that case the judge considers the facts and determines the outcome. If the plaintiff succeeds in the civil lawsuit (plaintiff verdict), damages generally are awarded in the form of monetary compensation. Damages may include "hard" damages—financial reimbursement for treatment of injuries, loss of wages, rehabilitation services, or special equipment—and "soft" damages—monetary compensation for pain and suffering, loss of companionship, or mental anguish, among other things (Aiken, 1994).

Negligence and Malpractice

There are two types of torts: an unintentional tort or wrong and an intentional tort. An unintentional tort is an unintended wrong against another person. The two most common unintentional torts are negligence and malpractice.

Negligence is defined as the failure to act in a reasonable and prudent manner. The claim of negligence is based on the accepted principle that everyone is expected to conduct themselves in a reasonable and prudent fashion. This is true of lay persons, student nurses, and licensed professionals. A more formal definition of negligence is the "failure to exercise the degree of care that a person of ordinary prudence would exercise under the same circumstances" (Nurse's Legal Handbook, 2000).

Malpractice is a special type of negligence—that is, the failure of a professional, a person with specialized education and training, to act in a reasonable and prudent manner. As state nurse practice acts have evolved to reflect the increasing professionalism of RNs, courts have begun to recognize the negligent acts of nurses as malpractice. Evidence of this change in perceptions is apparent in the increasing use of RNs as expert witnesses in "malpractice" cases.

In general, expert testimony is not needed in cases of "simple" negligence, when the actions of the defendant are so obviously careless that even a lay person would recognize the conduct as negligent. In contrast, if the jury does not possess the special knowledge and information that professionals ordinarily have, an expert witness is required to establish whether the person breached the expected standard of care. In that case the breach in duty is not simple negligence, but malpractice.

Elements Essential to Prove Negligence or Malpractice. Although any patient or surviving family member in the case of a patient death may sue the nurse and his or her employer, the following elements must be proved for the plaintiff to succeed in the case.

A. The nurse owed the patient or client a special duty of care based on the establishment of a nurse-patient relationship.

1. When the nurse accepts a patient assignment, it establishes the relationship and requires the nurse to meet his or her duty to the patient.

a. The duty of the nurse is to possess the knowledge and skill that a reasonable and prudent nurse would possess and exercise in the same or similar patient care situation.

b. The duty of the nurse as described is the standard of care.

2. A nurse-patient relationship also may be established through telephone communication in the case of a nurse who performs telephone triage and advice or via computer or audio-video systems that are now being introduced in some health care settings (Mahlmeister, 2000b).

B. The nurse has breached his or her duty to the patient or client.

1. Evidence is presented that proves the nurse breached the standard of care.

2. The standard of care is essentially what the nurse expert witness states that it is.

3. The standard of care is derived from a multiplicity of sources, and they are described in Box 8-4.

C. Actual harm or damage is suffered by the patient.

D. There is proximate cause or a causal connection between the breach in the standard of care by the nurse and the patient's injury.

1. No intervening event is responsible for the injury.

2. A direct cause and effect can be demonstrated.

3. In some jurisdictions the nurse's breach in duty must only be proven to be a "substantial cause" of the patient's injury.

This last element merits further discussion. The relationship between the nurse's breach in the standard of care and the patient's injury must be established by the plaintiff. To prove "proximate cause," there must be a direct causal link. For example, a patient reports that he has an allergy to penicillin and wears a MedicAlert bracelet to that effect. A physician orders penicillin to treat the patient's infection. The nurse fails to check for or ask the patient about allergies. The nurse administers the penicillin, and the patient suffers an anaphylactic reaction and dies. There is a direct connection between the nurse's actions and the patient's death. Proximate cause has been established.

In some jurisdictions it only is necessary to prove that the nurse's actions were a substantial cause of the injury or harm to prove negligence. For example, in a large teaching hospital a nurse notes a significant change in a patient's vital signs, suggesting a deterioration in his condition. A first-year resident is called to the bedside and made aware of the patient's status. The resident orders the nurse to simply continue observing the patient. The physician remains immediately available in the unit and receives repeated reports of a continued decline in the patient's condition. There is a clear chain of command policy established in the hospi tal to deal with unresolved disagreements between health care professionals. Despite the policy's existence, the nurse does not activate the chain of command.