Updated course available here:
Legal Issues In Nursing
Updated course available here:
Legal Issues In Nursing
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.
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.
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.
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.
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.
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.
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.
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.
- Security Rules: Establishes the privacy protection of electronic protected health information (ePHI), and deals with health information as defined by common HIPAA identifiers. The security rule defines standards, methods, and procedures for protecting electronic protected health information with identification of how ePHI is stored, accessed, transmitted, and audited. The HIPAA Security rule enforces security safeguards:
- 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.
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
- 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
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.
- 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
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.
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
- - alternative dispute resolution (ADR) performed outside of legal processes and before the trial where participation is usually voluntary, and a third party who participates can be a private judge who implements a resolution. Arbitrations usually occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by the arbitration ADR.
- 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.
- - A statement that a person expects to be able to prove.
- - An intentional act which is designed to make the victim fearful and which produces reasonable apprehension of harm.
- - The touching of one person by another without permission.
- Certified Legal Nurse Consultant (CLNC)
- - A Registered Nurse who uses medical expertise in conjunction with specialized legal training and comprehensive exam toward certification which enables them to assist attorneys to research and develop medically related cases.
- Common Law
- - The legal traditions of England and the United States where part of the law is developed by means of court decisions.
- - see Privileged Communication.
- - A voluntary act by which one person agrees to allow someone else to do something. For medical liability purposes, consents should be in writing with an explanation of the procedures to be performed.
- - A deceased person.
- - the loss of muscle tone and endurance due to chronic disease, immobility, or loss of function. brought on by inactivity or bed rest affects important body systems and results in reduced functional capacity. Elderly individuals are particularly vulnerable to becoming deconditioned.
- - The injury of a person's reputation or character caused by the false statements of another made to a third person. (Libel & Slander
- - page 6)
- - In a civil suit, the party against who suit is brought demanding that he or she pay the other party for legal relief.
- - The questioning under oath of a witness, expert, or party by an attorney prior to the trial.
- - The procedures for obtaining information from the parties involved in the lawsuit before the trial begins.
- Forensic Document Examiner (FDE)
- - Legal professional specially trained to assess and scientifically/factually detect inaccuracies, inconsistencies, and potential tampering of a medical document.
- Harm or Injury
- - Any wrong or damage done to another, either to the person, to rights or to property.
- 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 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.
- - A set or series of written questions directed to a party in a lawsuit requiring written responses.
- - An obligation one has incurred or might incur through any act or failure to act.
- 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.
- - Professional misconduct, improper discharge of professional duties, or failure to meet the standard of care of a professional, which resulted in harm to another.
- - (ADR) Alternative dispute resolution outside the legal process completed before trial where 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.
- 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.
- - Carelessness, failure to act as an ordinary prudent person, or action contrary to what a reasonable person would have done.
- - (ADR) Alternative dispute resolution outside of the legal process before trial where participation is voluntary and with no third party to facilitate the resolution process or impose a resolution.
- - third party selected by an institution
- for example a university, hospital, corporation or government agency
- to deal with complaints by employees or clients or related effected parties.
- Physical and mental examination
- - Any party who's physical or mental status in question may be required to have an appropriate examination.
- - The party to a civil suit who brings the suit seeking damages.
- Prima Facie Case
- - Plaintiff must show a duty owed (standard of care implied by law) to him by the defendant.
- Privileged Communication
- - Statement made to a physician, attorney, spouse or anyone in a position of trust. Due to the confidential nature of such information, the law protects it from being revealed, even in court. Term can occur in two distinct situations. (1) The communications between certain persons, such as physician and client, cannot be divulged without consent of the client. (2) In some situations the law provides an exemption from liability for disclosing information where there is a higher duty to speak, such as statutory reporting requirements.
- - In immediate relation with something else. In negligence cases, the careless act must be the proximate cause of injury.
- Request for admission
- - A written statement of facts or opinions regarding the case submitted to a party where that party must admit or deny the opinions/facts under oath.
- Request for production
- - A request to another member in the lawsuit asking that party to produce certain documents or tangible items.
- Res Ipsa Loquitur
- - "The thing speaks for itself." A doctrine of law applicable to cases where the defendant had exclusive control of the thing which caused the harm and where the harm ordinarily could not have occurred without negligent conduct.
- Respondeat Superior
- - "Let the master answer." The employer is responsible for the legal consequences of the acts of the servant or employee while acting within the scope of employment. (Don't be fooled by this one, the hospital can then turn around and sue you for being sued)
- Standard of Care
- - Those acts performed or omitted that an ordinary prudent person would have performed or omitted. It is a measure against which a defendant's conduct is compared.
- Stare Decisis
- - "Let the decision stand." The legal principle indicating that courts should apply previous decisions to subsequent cases involving similar facts and questions.
- Statute of Limitations
- - A statute defining the period within which legal action may be taken.
- - Requires the individual to appear at a designated time and place to give testimony.
- Subpoena duces tecum
- - requires the legal party questioned (deposed) to supply
- Subpoena duces tecum
- - requires the legal party questioned (deposed) to supply 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.
- - Court proceeding where one person seeks damages or other legal remedies from another.
- - A civil wrong. Torts may be intentional or unintentional.
- - One who commits a tort.
- Tort of Intentional Spoliation
- - A civil wrong pertaining to when the defense intends to destroy or conceal evidence, or fails to preserve evidence (lost records).
- Voir dire
- - "to speak the truth" is to test the legal qualifications and preliminary examinations of the potential jury panel members by counsel. It also may be implemented during preliminary examination to determine witness competency.
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.