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Legal and Ethical Issues in Nursing

Sources of Law
The right to make laws is granted in a constitution. Both the federal and state governments have constitutions.
-Based on the rights granted in the constitution, legislatures enact laws. These are called statutory laws.
=Agencies within the executive branches of the government pass rules implementing the laws.
-Courts interpret the law and these interpretations are applied in later cases.
Sources of Law -Statutory Law
1.enacted by legislative branch of gov't
2.designed to declare, command, or prohibit
-governs licensing laws, i.e nursing
Sources of Law- Public Law
1. Constitutinal law-freedoms
2. Criminal law
3. Administrative law-NPA*
4. Statutory Law-licensing laws

*Nurse Practice Acts
Which law guarantees individuals certain fundamental freedoms
Constitutional law
An example of constitutional law is?
Patients Bill of
Rights
Which public law focuses on the actions of individuals that can intentionally do harm to others?
Criminal law
What are two types of criminal law?
Felony
Misdemeanor
What is a felony law
serious crime that has a penalty of imprisonment greater than a year
What is a misdemeanor?
less serious crime that has a penalty or a fine or imprisonment less than a year
Which law focuses on federal and state governments, which affect nursing practice
Administrative law
(same as Regulatory law)- it arises from the activities of administrative agencies of gov't
What law governs the Patient's Bill of Rights
Constitutional Law
What is an example of Statutory Law?
Nurse Practice Act (according to our book and the Nurse Practice Act)and the ADA (American w/Disabilities Act)of 1990

(believe that the teacher meant to say that NPA is regulated under Administrative/Regulatory laws but the NPA's are legally Statutory Laws)
Civil Law- which civil law regulates certain transactions btw individuals and/or legal entities
Contract Law
Civil Law-Which civil law is defined as a private or civil wrong or injury -for which the court will provide a remedy of action for damages?
Tort Law
What are some types of Tort Law?
Bad faith
Breach of Contract
Legal Limits: What process entitles a person to practice a certain profession?
Licensure
Legal Limits: What are legal guidelines for nursing.
Standards of Care
Nursing Standards of care are defined in what?
NPA and State Board of Nursing of each state
What rules do the State Brds of Nursing use to specify the duties of a RN in that state?
Nurse Practice Acts
In malpractice lawsuits what are used to measure nursing conduct and to determine whether the nurse acted as a reasonably prudent nurse would act under the same or similar circumstance?
Standards of Care
Where are the Standards of Care (the guidelines) defined?
Nurse Practice Acts
What are the legal guidelines for the nursing practice?
Standards of Care
What defines the scope of Nursing practice?
Nurse Practice Act
A breach of standard of care is one element that must be proven in?
Tort
or malpractice cases
What specifies what one must do to be licensed as a RN?
Nurse Practice Act
What are the requiremments for the NPA?
-educational programs
-clinical programs
-type of evaluations needed to conclude that one has learned the knowledge required
What polices the RN, enforcing rules by suspending licenses, imposing rehabilitation plans, etc?
Nurse Practice Act
What interprets what constitutes practice as a RN in Louisiana and publishes its findings in its newsletter?
Nurse Practice Act (per notes??)
What is the failure to provide the care a reasonable person would ordinarily provide in a similar situation?
Negligence
What is the failure to meet standards of care for the profession, which results in harm to another individual entrusted to the professional's care?
Malpractice
(per book) any intentional threat to bring about harmful or offensive contact is an ?
Assault
What is the touching of another person w/out that person's consent (in a way that would cause bodily harm)?
Battery
What is the form used in nursing complaints to describe "w/out a person's consent?"
Failure to obtain "informed consent" before taking an action
What is premature termination of the professional treatment relationship without adequate notice to the patient?
Abandonment
What defines negligence in the nursing profession?
breach of duty by omission

(omission is an action-an action of not acting/negligence)
What defines malpractice in the nursing professions?
breach of duty by commission

(breaching a contract-standard of care owed to the pt-thereby causing harm)
What does a plaintiff need to prove in an action for negligence or malpractice?
1.that there is a duty created by law, contract, or Standard practice that is owed to the pt/plaintiff by the nurse
2. negligence and/or malpractice
3.harm (physical, emotional or financial)
4. proof that the breach of the duty caused the complaint of harm
What are the more common complaints against nurses?
failure to monitor/assess/communicate and perform routine nursing interventions
What is one of the professional organizations that defines Standards of Care?
ANA (American Nurses Association)
What do ANA standards of Care consist of?
delineate the scope, functions, and role of the nurse in practice

(define the NPA's)
What must a new nurse learn about when starting at a new institution?
they need to learn that institution's policies and procedures
What is not a defense against malpractice?
ignorance of the law
What should happen whan a physician, informed of problems with a pt, fails to act?
the nurse must go over the MD's head to make sure that the client is appropriately treated or that nurse would be legally responsible. The nurse has a fiduciary relationship with the client.

*hint (H)
A fiduciary duty is the highest standard of care imposed at either equity or law. A fiduciary is expected to be extremely loyal to the person to whom they owe the duty (the "principal"): they must not put their personal interests before the duty, and must not profit from their position as a fiduciary, unless the principal consents. The fiduciary relationship is highlighted by good faith, loyalty and trust
What is a Fiduciary relationship?
when a professional provides svcs that the client trusts are in their best interest due to the prof.'s knowledge, integrity and fidelity.
What is the Anatomy of a Lawsuit?
1.petition-elements of claim
2.discovery
3.medical records
4.depositions
5.other witnesses
6.experts
7.trial
What is reporting law?
Nurses are legally obligated to report any incident that falls under this law
What is the responsibility of Nurse Managers?
they are charged with maintaining a standard of competent nursing care within the institution
What is the ADA?
Americans with Disability Act 1990 (also 1995)
civil rights statute in which it protects the rights of disabled people
ex: If a nurse is overheard talking about a pt being found HIV positive, under which statute could she be charged?
ADA
Which law prevents "patient dumping?"
Emergency Medical Treatment and Active Labor Act of 1986=provides that a client must be given appropriate medical screening and cannot be discharged or transferred until their condition has stabilized

EMTALA
Which law forbids health plans from placing lifetime or annual limits on mental health coverage that are less generous than those on medical or surgical benefits?
Mental Health Parity Act
What is a Good Samaritan Law?
nurses may act by providing emergency assistance at an accident scene. It limits liability and offers legal immunity. Also allows for treatment without a parent's consent in an emergency situation.
Public health laws:Reporting laws are?
reporting laws:
reporting suspected abuse and neglect
elder abuse or domestic violence
reporting communicable diseases
ensuring required immunizations
reporting other health-related issues that will protect the public's health
Civil and Common Law Issues:
What are intentional Torts?
Assault
Battery
Invasion of privacy
Defamation of character
As a civil Tort, Assault consists of?
any intentional threat to bring about harmful or offensive contact. No actual contact is necessary
If a nurse threatens to give a patient an injection when a patient has refused consent, is this a Civil Assault?
yes, the key issue is client's consent. They have the right to refuse any medical treatment they wish
As a civil Tort, Battery consist of?
any intentional touching without consent. It can be physical or merely offensive to the client's personal dignity.
If there was a charge of Battery then there will also be a charge of?
Assault
If a nurse gives a patient a shot after the patient refused it, this is an example of?
Battery- when she does the action not merely threatens, it is battery.
If a medical profession performs a procedure that exceeds the client's consent, is this Assault and/or Battery?
yes, if a appendectomy was performed but the MD also performs a sterilization then this is battery.
If a client gets into a wheelchair after being advised that it is time for an x-ray, is this giving consent for the x-ray?
yes, it is implied that the client understood what was to happen when they got into the wheelchair
If a patient gets into a wheelchair to be taken for x-rays but learns that other test will be done and refuses, can the test still be done even though the patient got into the wheelchair?
no- it is considered that the original consent has been withdrawn
What does the tort; invasion of privacy entail?
it protects the client's right to be free from unwanted intrusion into his or her private affairs
What are 4 types of invasion of privacy ?
1. intrusion on seclusion
2.appropriation of name or likeness
3.publication of private or embarrassing facts (Libel)
4.publicity placing one in a false light (slander or libel)
(libel and slander are both defamation)
As per nursing, what would be a common invasion of privacy issue?
releasing a client's med. records without consent-can only be shared with other medical providers for the purpose of med. treatment.
If a patient's test reveal that he/she has terminal cancer and the nurse informs the family, is this invasion of privacy?
yes
Does a nurse have the responsibility to inform the public of a threat of communicable disease?
never, it is never the nurse's responsibility to inform the public, she needs to inform the proper authorities.
Consent form:
Informed Consent
It is the responsibility of the physician to inform
-.nurse may witness, may co-sign and must inform MD if consent is invalid
When is a signed consent form used?
for all routine treatment, hazardous procedures such as surgery, some procedures such as chemotherapy and research involving clients.
If the person to give consent is deaf, illiterate, or speaks a foreign language what is needed to have a legal informed consent?
There must be a official interpreter availible, the client's family is NOT an offical interpreter
What is the definition of informed Consent?
a client must be given information on the procedure that is to occur
1.a brief, complete explanation
2.names and qualifications of all involved must be included
3. chances of death and injury and pain must be included
4.an explanation of the risk of doing nothing, and any alternative treatments is included
5. must be informed of the right to refuse
6. the client has the right to refuse treatment even after it has started
Who can give consent for a child?
the person with legal custody
Federal Statutory Issues:
American w/Disabilities act of 1995
=EMTALA 1986
=Mental Health Parity Act 1996
=Advance directive
=Uniform Anatomical Gift of 1987
=HIPAA (Health Insurance Portability and Accountability Act)
=Restraints
State Statutory Issues
-Licensure
-Good Samaritan Laws
-Public Health Laws
-Uniform Determination of Death Act
-Physician-assisted suicide
"Right of the Individual to
Consent to Care"- examples of Louisiana law:
1.The right to know what is being done and why
2. What is likely to happen if it is not done
3. The right to refuse trtmt and
4. the right to enact some form of Advanced Directive
The La. Medical Consent Law in order of priority:
1.any adult for himself
2.judicially appointed tutor or curator of the pt
3. An agent acting pursuant to a valid mandate (Med. power of attorney)
4. the pt's spouse, not judicially separated
5. adult child/children of pt
6. any parent for his/her minor child
7. pt's siblings
8. pt's other ascendants or descendants
9 any person caring for a minor child for the child's parents
True or False?

The law allows a minor to consent to treatment for him/her, but does not recognize his/her right to refuse treatment.
True
Communications with or about the pt undergoing medical treatment, whether writen or verbal, are?
Confidential
What is covered under the Privacy Right Laws?
1. info. obtained (diagnostic test results, progress notes, consultations, etc)
2. substances identified (body drainage, culture results, etc)
3. tangible objects found on or in pt
4. opinions formed as the result of a communication, consultation, examination, or interview
The pt's right to privacy may sometimes conflict with mandatory reporting requirements requiring consultation with:
supervisors, ethics committees, Policy Manual, etc
in some states, the institutions must report (not individual nurse) some states have statues that "all persons with knowledge must report" so check with the above if not sure
_____ regulations have increased the provider's responsibility to protect the privacy of individuals
HIPAA
What are Advanced Directives
1. Living Will
2.Medical Power of Attorney
3. Power of Attorney
What is a Living Will?
a declaration instructing one's doctor to withhold or withdraw life-sustaining procedures, such as tube feedings, IV meds, and/or respirators if one is found to be in a terminal condition.
In a Living Will what measures are never withdrawn or withheld?
Comfort Measures
What is Medical Power of Attorney?
a document designating someone else to make medical decisions for the pt if he/she cannot or does not want to speak for him/herself
What is Power of Attorney?
a document designating someone else to make decisions (limited or unlimited) for the patient (principal).
What Protections are there in Nursing Practice?
1. Nurse Practice Act
2. Policies and Procedures of the institution, which give expectations for a nurse.
3.Good Samaritan Law
4. Skillful verbal and written communications
5. adherence to Doctor's orders
6. Risk Mgmt Programs
7. Liability Insurance
What is the Nursing Practice Act?
specifies the legal parameters for nursing practice in the state
What is the Good Samaritan law?
protects voluntary actions taken at the scene of an accident
How do Risk Mgmt Programs protect nurses?
they identify and correct problems before law suits occur
What is Ethics?
the study of philosophical ideals of right and wrong behaviour
All Professions have what?
Code of Ethics
What does the profession of Nursing's Code of Ethics entail?
provides quidelines for safe and compassionate care
What addresses issues in health care?
Bioethics
What are some Basic Terms used for Standards of Ethics?
1.Autonomy
2.Beneficence
3.Nonmaleficence
4.Justice
5.Fidelity
What is Autonomy?
refers to a person's independence. it is an agreement to respect another's right to determine a course of action
What is Beneficence?
refers to taking positive actions to help others. encourages the urge to do good for others.
What is Nonmaleficence?
is the avoidance of harm or hurt. "First do no harm"
What is Justice?
`refers to fairness. Health care providers agree to strive for justice in health care. refers to resources. What is a fair distribution of resources (ex: liver transplants- does socioeconomics become a defining criteria in who receives the liver)
What is Fidelity?
refers to the agreement to keep promises. explains the reluctance to abandon clients, even when disagreement arises about decisions that a client may make.
What are Abandonment and Assignment issues?
1. Short staffing- not able to give competent care.
2. Floating of nurses-taking nurses out of their dept/comfort zones and putting them in other areas of the hospital in which they have lost the skills necessary to give good nursing care
3. physicians orders-nurses cannot follow an order that may cause harm
Professional Nursing has?
1. Code of Ethics
2. Accountability
3. Responsibility
4. Confidentiality
5. Veracity
How Values are formed:
1. Families-parents
2. Organizations/institutions
Religious
Educational
Governmental
3. Individual experiences
Values Clarification
Values clarification will not tell you what your values should be, it simply provides the means to discover what your values are.

Criteria for Full Value:

1. choosing one's own beliefs and behaviors
2. prizing one's beliefs and behaviors
3. acting on one's beliefs
What are Philosophical Constructions?
1. Deontological
2. Teleological
3. Feminist Ethics
4. Ethics of care
What is Deontological Theory?
a traditional ethical theory, it defines actions as right or wrong based on their "right-making characterics" such as fidelity to promises, truthfulness, and justice
What is Teleological Theory?
the study of ends or final causes. "the greatest good for the greatest number of people"=that an action's ethical right or wrong is based on the balance of good or bad consequences
What is Feminist Ethics?
looking at the inequalities btw people. they look to the nature of relationships btw people for guidance in the processing of ethical dilemmas.
What is Ethic of Care?
closely related to Feminist Ethics. Many theorist of this were nurses. it explores the notion of care as a central activity of human behavior. Answers the male centered Ethical theory.
Processing an Ethical Dilemma
step1: Is this an ethical dilemma
step 2: Gather revelant info
step 3: examine your own values
step 4: verbalize the problem
step 5: consider possible actions
step 6: negotiate the outcome
step 7: evalute the action
Purposes of an Ethics Committee:
1. Education
2. Policy recommendation
3. Case consultation or review
In the US, access to health care usually depends on a pts ability to pay for care, either through insurance or by paying cash. The pt that needs a liver transplant is out of work and does not have ins. or cash. A discussion of the ethics of this situation would involve predominately the principle of?
Justice, because the 1st and greatest question in this situation is how to determine the just distribution of resources
It may seem redundant that health care providers agree to "do no harm". This should reassure the public that in all ways the health care team will help heal and agree to do this in the least painful and harmful way possible. the principle that describes this agreement is called?
Nonmaleficence
A child's immunization may cause discomfort during admin, but the benefits of protection, both for the ind. and society, outweigh the temporary discomforts. This involves the priniciple of?
Beneficence
If a nurse assesses a pt for pain and then offers a plan to manage the pain, the principle that encourges the nurse to monitor the pt's response to the plan is:
Fidelity
The code of ethics for nurses is composed and published by?
The American Nurses Association
Nurses agree to be advocates for their pts. Practice of advocacy calls for the nurse to?
Assess the pt's point of view and prepare to articulate this point of view
Successful ethical discussion depends on people who have a clear sense of personal values. When many people share the same values it may be possible to id a philosophy of utilitarianism, which proposes that?
The value of something is determined by its usefulness to society
The philosophy sometimes called the ethics of care suggests that ethical dilemmas can best be solved by attention to
Relationships
In most ethical dilemmas, the solution to the dilemma requires negotiation amoung members of the health care team. The nurse's point of view is valuable because?
Nurses develop a relationship to the client that is unique among all professional health care providers
Ethical dilemmas often arise over a conflict of opinion. Once the nurse has determined that the dilemma is ethical, a critical first step in negotiating the difference of opinion would be to?
Gather all relevant info regarding the clinical, social, and spiritual aspects of the dilemma
The Nurse Practice Acts are an example of?
Statutory Law
The scope of nursing practice, the established educational requirements for nurses, and the distinction btw nursing and medical practice is defined by?
Nurse Practice Acts
The pts's right to refuse trmt is an ex of?
Common Law
The most common sources of client injury are?
`Medication errors and falls
This act allows an individual who is at least 18 years of age to may make an anatomical gift or organ donation
Uniform Anatomical Gift Act
When the nurse stops to help in an emergency at the scene of an accident, if the injured party files suit and the nurse's employing institution's insurance does not cover the nurse, the nurse would probably be covered by?
The Good Samaritan laws, which grant immunity from suit is there if no gross negligence
The legal definition of death,that facilitates organ donation is cessation of?
Functions of entire brain
Even though the nurse may obtain the pt's signature on a form, obtaining informed consent is the responsibility of the ?
Physician
the nurse's malpractice insurance covers the nurse for incidents that occur?
While the nurse is working within the scope of his employment
The nurse is obligated to follow a physician's order unless?
the order is in error, violates hospital policy or could be detrimental to the pt. an ex of Abandonment and Assignment issues
Justice refers to?
fairness
If there is a problem deciding who should receive an availble organ, this is an example of?
Justice
If there is a decision to be made in which the benefits of a trtmt may be challenged by risks to the pt's well-being or dignity, this is an ex. of?
Beneficence
What refers to the agreement to keep promises and follow through with care offered to pts?
Fidelity
What system of ethics proposes that the value of something is determined by its usefulness?
Utilitarian system
What explores the notion of care as a central activity of human behavior? explores a more feminine viewpoint
The Ethic of Care
Each step in the processing of an ethical dilemma resembles steps in?
Critical thinking
Who creates Statutory Law?
elected legislative bodies such as state legislatures and the US Congress
What establishes educational requirements for nurses, distinguishes btw nursing and med. practice and generally defines the scope of nursing practice?
Nurse practice Acts
Which gov't entity creates Common Law?
the judicial system with decisions made in court.
What are examples of Common Law?
informed consent and the pt's right to refuse trtmt

*because both have been debated ad nauseum, in the courts
In the two standards for the determination of death, which requires irreversible cessation of circulatory and respiratory functions?
The Cardiopulmonary Standard
In the two standards for the determination of death, which requires irreversible cessation of all functions of the entire brain?
The Whole-brain standard
Which type of consent does not fall within the nursing duty?
informed consent
What type of insurance provides for a defense when a nurse is sued for professional negligence or medical malpractice?
Malpractice insurance
Besides the JACHO, which governing agency regulates hospitals to allow continued safe svcs to be provided, funding to be received from gov't and penalties if guidelines are not followed?
ADA- if it's guidelines are not met, the hospital can lose gov't funding and be penalized