Chapter 3: Laws & EthicsChapter 3: Laws & Ethics

Carolyne Richardson-Phillips, JD, MS, RNPNU 145Fall 2015

Pages 34 to 49

Learning ObjectivesLearning ObjectivesBy the end of this session, the PN students should be able to:1.Name six types of laws2.Discuss the purpose of nurse practice acts and the role of the state board of nursing3.Explain the difference between intentional and unintentional torts4.Describe the difference between negligence and malpractice5.Identify three reasons as to why a nurse should obtain professional liability insurance6.List five ways that a nurse’s professional liability can be mitigated in the case of a lawsuit7.Define the term ethics8.Explain the purpose of a code of ethics9.Describe two types of ethical theories10.Name and explain six ethical principles that apply to health care11.List five ethical issues common in nursing practice

Introduction:•Rules of conduct established and enforced by government•Intended to protect both the general public and each personSix categories:•Constitutional Law•Statutory Law•Administrative Law•Common Law•Criminal Law•Civil Law

LawsLaws

1. Constitutional laws• Founders of the United States wrote the first formal laws

• Divided power among three branches of government• Protected the entire nation• Identified rights and privileges of U.S. citizens

2. Statutory laws• Laws enacted by federal, state, or local legislatures: public acts,

codes, or ordinances• Nurse practice acts: common elements

• Define scope of nursing practice; establish the limits to practice

• Identify titles: licensed practical nurse (LPN); licensed vocational nurse (LVN); or registered nurse (RN)

• Authorize a board of nursing to oversee nursing practice• Determine what constitutes grounds for disciplinary action

Laws: Six CategoriesLaws: Six Categories

3. Administrative laws• Legal provisions: federal, state & local agencies maintain self-

regulation• State boards of nursing: review & approve nursing program;

establish criteria for licensure & others • Nurse licensure compacts: agreements between state

4. Common laws• Decisions based on prior similar cases: judicial law• Based on the principle of stare decisis• Refers to litigation: falls outside the realm of constitutional,

statutory, and administrative laws

Laws: Six Categories (cont’d)Laws: Six Categories (cont’d)

5. Criminal laws• Penal codes: protect citizens from people who pose a threat to

the public good• Used to prosecute those who commit crimes• Misdemeanors or felonies• A misdemeanor is a minor criminal offense (eg, shoplifting). If

convicted, a small fine, a short period of incarceration, or both• A felony is a serious criminal offense, such as murder, falsifying

medical records, insurance fraud, and stealing narcotics; conviction is punishable by a lengthy prison term or even execution

• The state generally prohibits felons from obtaining an occupational license, and the state will revoke such a license if its holder is convicted of a felony

Laws: Six Categories (cont’d)Laws: Six Categories (cont’d)

6. Civil laws• Statutes: protect personal freedoms and rights• Disputes between individual citizens• Civil cases: torts

• Intentional: • Assault• Battery• False imprisonment• Invasion of privacy• Defamation

• Unintentional:• Negligence• Malpractice

Laws: Six Categories (cont’d)Laws: Six Categories (cont’d)

Intentional Torts: TypesIntentional Torts: TypesAssault:•Is an act in which bodily harm is threatened or attempted; such harm may be physical intimidation, remarks, gestures; the plaintiff interprets the threat to mean that force may be forthcoming•A nurse may be accused of assault if he or she verbally threatens to restrain a client unnecessarily (eg, to curtail the use of the signal light)Battery: an unauthorized physical contact•Can include touching a person’s body, clothing, chair, or bed; the person can claim battery even if contact causes no actual physical harm•Example, health care professional can use physical force to subdue client with mental illness, if their actions endanger their own safety or that of others; you must document it; to protect health care workers from being charged with battery, adult clients are asked to sign a general permission for care and treatment during admission (See Figure 3.2 page 38.)

Intentional Torts: False ImprisonmentIntentional Torts: False Imprisonment• Definition: interference with a person’s freedom to move about at

will without legal authority to do so• Example: occurs when a nurse detains a competent client from

leaving the hospital or other health care agency; if a client wants to leave without being medically discharge, it is customary fro him or her to sign a form indicating personal responsibility for leaving against medical advice (AMA). See Figure 3-3 page 39

• If the client refuses to sign the paper, however health care personnel cannot bar him or her from leaving

• Other examples: Restraints• Are devices or chemical that restrict movement & are used

with the intention to subdue a client’s activity.• Types: cloth limb restraints, bedrails, chairs with locking lap

trays, and sedative drugs; unnecessary or unprescribed restraints can lead to charges of false imprisonment, battery, or both

False Imprisonments: Restraints (cont’d)False Imprisonments: Restraints (cont’d)• The Nursing Home reform Act of the Omnibus Budget

Reconciliation Act (OBRA) states that residents in nursing homes have the “right to be free of, and the facility must ensure freedom from, any restraints imposed or psychoactive drug administered for purposes of discipline or convenience, and not required to treat the residents’ medical symptoms.”

• Restraints should be used as a last resort; use must be justified & accompanied by informed consent from the client or legal guardian

• Before using restraints, the best legal advice is to try alternative measures for protecting wandering clients, reducing the potential for falls, and ensuring that clients do not jeopardize medical treatment by pulling out feeding tubes or other therapeutic devices.

• If less restrictive alternatives are unsuccessful, nurse must obtain a medical order before each & every instance of restraints’ use

• In acute care hospitals, medical orders for restraints are renewed every 24 hours

False Imprisonments: Restraints (cont’d)False Imprisonments: Restraints (cont’d)

Restraints Application•When restraints are applied, charting must indicate regular client assessment; provision for fluids, nourishment, and bowel & bladder elimination; and attempts to release the client from the restraints for a trial period. •When the client is no longer a danger to self or others, nurses remove the restraints

Civil Laws: Intentional Torts (cont’d)Civil Laws: Intentional Torts (cont’d)• Invasion of privacy: failure to leave people and their property alone• Example in health care include photographing a client without

consent, revealing a client’s name in a public report, and allowing an unauthorized person to observe the client’s care

• To ensure and protect client’s rights to privacy, medical records and information are kept confidential

• Privacy curtains ar used during care; permission is obtained if a nursing or medical student will observe a procedure

• Defamation: an act in which untrue information harms a person’s reputation• Examples include slander (character attached uttered orally in

the presence of others) and libel (damaging statements written and read by others)

• Injury is considered to occur because the derogatory remarks attack a person’s character and good name.

• Avoid accusations of defamation, nurses must avoid making or writing negative comments about clients.

Civil Law: Unintentional TortsCivil Law: Unintentional Torts• Definition: Result in an injury, although the person responsible did

not mean to cause harm• Negligence: harm that results because a person did not act

reasonably; implies that a person acted carelessly.• Malpractice: professional negligence, which differs from simple

negligence; it holds professionals to a higher standards of accountability• Elements of malpractice: duty, breach of duty, causation, and

injury, See Box 3-2, page 40 • The jury may be unfamiliar with the scope of nursing practice,

the plaintiff may present other resources in court to prove breach of duty; some examples include the employing agency’s standards for care, written policies & procedures, care plans or clinical pathways, and the testimony of expert witnesses (See page 41, Fig. 3-4)

• The Best Protection against malpractice lawsuits is Competent Nursing

Malpractice (cont’d)Malpractice (cont’d)

• Methods to avoid lawsuits:• One of the best methods for avoiding lawsuits is to administer

compassionate care. The ‘golden rule” of doing unto others as you would have them do unto you is a good principle to follow

• Clients who perceive the nurse as caring and concerned tend to be satisfied with their care.

• Liability insurance• Contract between a person or corporation and a company

willing to provide legal services and financial assistance: policyholder involved in malpractice lawsuit

• Necessary for all nurses: accountable for their actions during clinical practice

• Provides legal protection in the event of a lawsuit• Liability insurance available through:

• Private insurance companies• Student nurses are held accountable for their actions during

clinical practice and should also carry liability insurance.

Professional LiabilityProfessional Liability

• Mitigating liability• Good Samaritan laws• Statutes of limitations• Principles regarding assumption of risk• Appropriate documentation

• Reducing liability• Risk management• Incident reports• Anecdotal records

Professional Liability (cont’d)Professional Liability (cont’d)

Professional Liability (cont’d)Professional Liability (cont’d)• Good Samaritan Laws:• Provide legal immunity to passerby who provide emergency

first aid to victims of accidents; the legislation is based on the biblical story of the person who gave aid to a beaten stranger along a roadside

• The law defines an emergency as one occurring outside of a health care facility, not in an emergency department

• Although these laws are helpful, no Good Samaritan law provides absolute exemption from prosecution in the event of injury.

• Statute of Limitations: designated time within which a person can file a lawsuit; varies among states and generally is calculated from when the incident occurred; when the injured party is a minor, however, the statute of limitations sometimes does not commence until the victim reaches adulthood

Other InformationOther Information• Assumption of Risk:

• If a client is forewarned of a potential safety hazard and chooses to ignore the warning, the court may hold the client responsible; Example, if a hospitalized client objects to having the side rails up or lowers the rails independently, the nurse or health care facility may be held fully accountable for an injury.

• It is essential that the nurse document that he or she warned the client & that the client disregarded the warning; the same recommendation applies when nurses caution clients about ambulating only with assistance

• Documentation: major component to limiting liability; nurses are held responsible or liable for information either included or excluded in reports & charts • Each health care setting requires accurate & complete documentation;

the medical record is a legal document and is used as evidence in court; records must be timely, objective, accurate, complete & legible

• Quality of the documentation, including neatness and spelling, can influence a jury’s decision

Other Information (cont’d)Other Information (cont’d)• Risk Management: process of identifying and reduction the costs of

anticipated losses; a concept originally developed by insurance companies • Health care institutions now employ risk managers to review all

the problems in the workplace, identify common elements, and then develop methods to reduce their risks.

• A primary tool of risk management is the incident report• Incident Report: a written account of an unusual, potentially

injurious event involving a client, employee, or visitor; kept separate from the medical record (See page 43, Fig. 3-5). • Determine how to prevent hazardous situations and serve as a

reference in case of future litigation • Include five components: (1) when the incident occurred; (2)

where it happened; (3) who was involved; (4) what happened; and (5) what actions were taken

• All witnesses are identified by name; any statements made by the injured person, before or after the incident, are quoted

Other Information (cont’d)Other Information (cont’d)• Anecdotal record (personal, handwritten account of an incident) is

not recorded on any official form, nor is it filed with administrative records; nurse retains the information, which safeguard and may be used later to refresh the nurse’s memory if a lawsuit develops; can be used in court on advice of an attorney

• Malpractice litigation• Successful outcome in a malpractice lawsuit depends on

physical evidence and attorney expertise• Appearance, demeanor, and conduct of the nurse defendant can

help or damage the case (See page 44, Box 3-3).

• Moral or philosophical principles: direct actions as being either right or wrong

• Codes of ethics• List of written statements describing ideal behavior• The National Association for Practical Nurse Education and

Services, the National Federation for Licensed Practical Nurses, and the international Council of Nurses all have composed code of ethics

• See page 44, Box 3-4: shows that ANA’s current code of ethics• Ethical dilemmas• Choice between two undesirable alternatives• Occur when individual values and laws conflict• Nurses actions may be legal but personally unethical; or ethical but illegal

EthicsEthics

Code of Ethics OverviewCode of Ethics Overview1. the nurse, in all professional relationships, practices w/ compassion & respect for the

inherent dignity, worth, and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems

2. the nurse's primary commitment is to the patient, whether an individual, family, group, or community

3. the nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient

4. the nurse is responsible & accountable for individual nursing practice & determines the appropriate delegation of tasks consistent with the nurse's obligation to provide optimum patient care

5. the nurse owes the same duties to self as to others, including the responsibility to preserve integrity & safety, to maintain competence, and to continue personal & professional growth

6. the nurse participates in establishing, maintaining, and improving health care environments and conditions of employment conducive to the provision of quality health care and consistent with the values of the profession through individual and collective action.

7. the nurse participates in the advancement of the profession through contributions to practice, education, administration, and knowledge development

8. the nurse collaborates with other health professionals and the public in promoting community, national and international efforts to meet health needs

9. the profession of nursing value, for maintaining the integrity of the profession and its practice, and for shaping social policy

• Ethical theories• Nurses use one of two ethical problem-solving theories to solve

ethical dilemmas• Teleology: ethical decision making based on final outcomes;

believe “the end justifies the means”; the choice that benefits many people justifies harm that may come for a few; Example: a teleologist would argue that selective abortion (destroying some embryos is a multiple pregnancy) is ethical because it is done to ensure the full-term birth of those that remain

• Deontology: ethical decision making based on duty or moral obligations; proposes that the outcome is not the primary issue, but rather, decisions must be based on the morality of the act itself; nurses ultimately have a professional duty to their clients, and clients have rights to which they are entitled

Ethics (cont’d)Ethics (cont’d)

Ethical PrinciplesEthical Principles• Beneficence: means “doing good” or acting for another’s benefit; to do

good, an ethical person prevents or removes any potentially harmful factor

• Nonmaleficence: “doing no harm” or avoiding an action that deliberately harms a person; Sometimes, however ”harm” is necessary to promote “good”

• Autonomy: refers to a competent person’s right to make his or her own choices without intimidation or influence

• Veracity: means the duty to be honest and avoid deceiving or misleading a client

• Fidelity: means being faithful to work-related commitments and obligations; nurses are obligated to be competent in performing skills and services required for safe and appropriate care; also requires that nurses respect clients, provide compassionate care, protect confidentiality, honor promises, and follow their employer’s policies

• Justice: mandates that clients be treated impartially w/o discrimination based on age, gender, race, religion, socioeconomic status, weight, marital status, or sexual orientation;

• Values and ethical decision-making• Values: person’s most meaningful beliefs

• Basis: decisions about right or wrong• Guidelines to ethical decision making• Make sure that whatever is done is in the client’s best interest.• Preserve and support A Patient’s Bill of Rights • Work cooperatively with the client & other health practitioners.• Follow written policies, code of ethics, and laws• Follow your conscience

• Ethics committees• Ethical decisions are complex and can affect the lives of clients• Cross-section of professionals and nonprofessionals debate

about ethical issues• Called on to offer advice to protect clients’ best interests and to

avoid legal battles

Ethics (cont’d)Ethics (cont’d)

• Common ethical issues• Truth telling: All clients have the right to complete and

accurate information; Physicians’ and nurses’ duty to report truth regarding client health matters

• Confidentiality: safeguarding a person’s health information from public disclosure; must not divulge health information to unauthorized people without client’s written permission

• Withholding or withdrawing treatment: Advance directives • Code status: DNR• Allocation of scarce resources: process of deciding how to

distribute limited life-saving equipment or procedures; first come, first served

• Whistle-blowing: reporting incompetent or unethical practices and unsafe or potentially harmful situations; protecting clients; involves personal risks

Ethics (cont’d)Ethics (cont’d)

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