Legal and Ethical Aspects of Nursing Chapter 2 Mosby items and derived items © 2011, 2007 by Mosby, Inc., an affiliate of Elsevier Inc

Legal and Ethical Aspects of Nursing

Chapter 2Chapter 2

Mosby items and derived items © 2011, 2007 by Mosby, Inc., an affiliate of Elsevier Inc.

Slide 2Mosby items and derived items © 2011, 2007 by Mosby, Inc., an affiliate of Elsevier Inc.

Overview of the Legal SystemOverview of the Legal System

• Laws Prescribe how a person should act in society Sanction acceptable behavior and prohibit

unacceptable behavior Provide protection for all members of the health care

system



• Criminal Law Conduct in issue is offensive to society in general Conduct is detrimental to society as a whole Involves public offenses (i.e., robbery, murder, assault) Law’s purpose is to punish for the crime and deter and

prevent further crimes



• Civil Law Conduct violates a person’s rights Conduct is detrimental to that individual Involves an offense that is against an individual Law’s purpose is to make the aggrieved person whole

again, to restore them to where they were



• Two Ways Laws Are Established Statutory law

• Developed by federal, state, and local governments Common law

• Developed in response to specific legal questions brought before the court and usually follow precedent (previous rulings on an issue)


Overview of the Legal ProcessOverview of the Legal Process

• Civil Litigation Lawsuit in a civil court Begins when the plaintiff contacts an attorney

• Plaintiff The complaining party

• Complaint Statement by the plaintiff Written and filed in the appropriate court States the facts involved in the legal issues raised and

outlines the damages



• Defendant States the facts involved in the legal issues raised and

outlines the damages The alleged person liable

• Damages Compensation sought by the plaintiff

• Summons Court order that notifies the defendant of the legal

action



• Answer Detailed response to the charges outlined in the

complaint Usually prepared and filed by an attorney hired by the

defendant Will either admit or deny any or all of the allegations

made in the complaint

• Discovery Pretrial process allowing both sides to interview

witnesses and/or look at documents



• Depositions Out-of-court statements made by a witness under

oath

• Interrogatories Written questions that must be answered in writing

• Verdict Decision made after the evidence has been presented Based on the facts of the case, the evidence and

testimony presented, the credibility of the witnesses, and the laws that pertain to the issue



• Appeal Request a review of the decision May be filed by either party if they disagree with the

outcome of the lawsuit

• Criminal Trial Defendant is arrested for a crime against the people People’s attorney and the defendant’s attorney

present their cases in court The judge or jury then deliberates



• Deliberation Decide the guilt or innocence of the defendant

• Not Guilty Verdict Defendant will be released from custody

• Guilty Verdict Sentence (penalty) will be decided based on the

severity of the crime, the defendant’s past criminal record, and the applicable laws



• Liability Legal responsibility A nurse can be charged with civil or criminal liability

depending on the particular circumstances surrounding the case


• Legal Relationships Accountability

• Being responsible for one’s own actions Liability

• Legal responsibility Legal Relationship

• Nurse-patient relationship When the nurse assumes responsibility for the patient’s

care

• Failure to provide care to the expected level of expertise gives rise to legal liability



• Legal Relationships Advocate

• One who will defend or plead a cause or issue on behalf of another

• The nurse accepts the role of an advocate for the patient

• A nurse advocate has a legal and ethical obligation to safeguard the patient’s interests



• Regulation of Practice Standards of care

• Acts that are permitted to be performed or are prohibited from being performed

• Give direction to the practicing nurse, defining what should or should not be done for patients

• Every nurse is obligated to know and follow the established standards of care

• Failure to adhere to these standards gives rise to legal liability



• Regulation of Practice Standards of care

• The legal test is what a reasonably prudent (wise) nurse of similar education and experience would have done under similar circumstances.



• Regulation of Practice Scope of nursing practice

• Each licensed practical/vocational nurse must be familiar with his or her scope of practice

• The nurse CANNOT use ignorance as an excuse

• Every nurse needs to know what she or he can and cannot do while providing nursing care

Nurse practice acts• Define and limit the scope of nursing practice



• Regulation of Practice Licensure

• All licensed practical/vocational nurses must apply for licensure in the state in which they wish to practice

• Applicants are carefully screened

• Upon approval by the board, the applicant is eligible to take the computerized licensing examination at a testing center



• Regulation of Practice Licensure

• Once a license is granted, it can be suspended or revoked (taken away) for unprofessional, unethical, immoral, and/or criminal conduct

Interstate compact• Allows multistate practice of nursing

• The nurse must be licensed in her or his home state, and privileges are then granted to practice in other states that have signed the interstate compact



• Legal Issues Malpractice (professional negligence)

• Commission Doing an act

• Omission Not doing an act

• Legal action that a nurse may be charged with for failing to meet the standards of care




• Elements that must be present: Duty exists: The nurse-patient relationship establishes a

duty. Breach of the duty: The nurse fails to perform the duty in

a reasonable, prudent manner. Harm occurs: This does not have to be physical injury. Proximate cause: The breach of duty was the proximate

cause of the harm.




• Malpractice insurance The nurse may want to purchase individual coverage

even if the employing institution carries insurance Personal malpractice insurance provides more protection

for the nurse while off and on duty Most institutions’ policies cover liability only if the nurse is

on duty and acting within the proper capacity



• Patients’ Rights The Patient’s Bill of Rights

• Developed by the American Hospital Association in 1972

• Goal is to promote the public’s understanding of their rights and responsibilities as consumers of health care

• Health Insurance Portability and Accountability Act of 1996 (HIPAA)



• Informed Consent A person agrees to allow a particular treatment based

on full disclosure of the facts needed to make an intelligent (informed) decision

Consent must be obtained before any invasive treatment or procedure

Patient needs to be aware of the benefits of the treatment, the risks involved, any alternative treatments, and the consequences of refusing the treatment



• Informed Consent The patient has the right to accept or reject the

proposed care Failure to secure informed consent may result in civil

liability for battery• Civil battery

Unlawful touching of a person; an intent to harm is NOT necessary



• Confidentiality The nurse has a duty to protect information about a

patient no matter how that information is received Failure to maintain confidentiality gives rise to legal

liability, and legal remedies exist to address confidentiality breaches

Health Insurance Portability and Accountability Act of 1996 (HIPAA) set rules and limits on who can look at and receive health care information



• Medical Records Medical records are NOT public documents The information they contain must be guarded Records may be used by both parties in a lawsuit to

argue facts of the case All entries in the medical record must be permanent,

accurate, complete, and legible



• Invasion of Privacy The right to be left alone and go unnoticed if the

patient chooses Legal liability may occur in

• Exposing the patient’s body parts unnecessarily

• Discussing the patient inappropriately

• Disclosing information about the patient

• Using any unauthorized patient information



• Reporting Abuse The law prescribes when a health care professional

must report certain information to authorities (certain communicable diseases, gunshot wounds, signs of abuse)

The health care professional is protected from liability when acting in good faith

Child Abuse Prevention Treatment Act of 1973• Act made reporting of child abuse mandatory

• Health care professionals may face fines and/or imprisonment if they fail to report suspected cases of child abuse



• How to Avoid a Lawsuit Provide compassionate, competent nursing care

• Nurse-patient relationship must be one based on trust and respect

• Use open and honest communication

• Follow the standards of care and adhere to the scope of practice for a licensed practical/vocational nurse

• Professional liability insurance

• Disciplinary defense insurance

• What can happen to your license??



• How to Avoid a Lawsuit Good Samaritan Law

• Provides immunity from liability in certain circumstances

• Encourages assistance in emergencies occurring outside of a medical facility by providing protection against liability

Proper documentation• Medical record is used to prove that the standards of

care were met (or were not met)

• “IF IT ISN’T CHARTED, IT WASN’T DONE.”



Ethical AspectsEthical Aspects

• Development of Ethical Principles Ethics

• Values that influence a person’s behavior

• An individual’s feelings and beliefs about what is right and wrong

Customs• Habits, ways of acting

• Members of a family expected to behave in a certain way

• Influenced by religious teachings


• Development of Ethical Principles Values

• Personal beliefs about the worth of an object, idea, a custom, or an attitude

• Develop over time and change as necessary

• Influences behavior behavior and decisions

• Learned through experience, observation, and reasoning

Values Clarification• The process of self-evaluation that helps a person gain

insight into individually held values



• Development of Ethical Principles Code of ethics Ethical dilemmas

• Situations that do not have a clear right or wrong answer

Identify the problem Assess the situation completely Consider any ethical principles that might apply



• Ethical Principles Respect for persons

• All human life is sacred No one person is more important than another Each patient has the same worth as another and is

always entitled to respect

• Autonomy Personal freedom of choice A right to be independent and make decisions Nurse does not have the right to make decisions for the

patient



• Ethical Principles Beneficence

• Doing what is good

• Nurse must promote the well-being of all patients Nonmaleficence

• To do no harm

• Nurse has a ethical and legal duty to prevent harm to a patient

Justice• The concept of what is fair

• All patients have the same right to nursing care



• Code of Ethics Serves as a way to regulate the actions of nurses and

gives guidelines for ethical behavior Promotes competent, trustworthy, and accountable

health care practitioners in order to safeguard society



• National Federation of Licensed Practical/Vocational Nurses Code of Ethics Know and function within the scope of practice for an

LPN/LVN Maintain patient confidences Provide health care without discrimination Maintain a high degree of professional and personal

behavior Take an active role in the development of the

LPN/LVN profession



• Reporting Unethical Behavior Unethical behavior

• Failing to perform the duties of a competent, caring nurse

Each member of the nursing profession has a duty to report behavior that does not meet the established standards

• Follow the proper chain of command

• Explain the facts as clearly as possible

• Documentation of the incident: objective, accurate, when and where, other pertinent facts



• Ethical Issues Practitioner-Assisted Suicide (PAS) Form of active euthanasia The practitioner taking an active role in helping to end

a patient’s life• Legal status is unsettled

• ANA has taken a firm stand against PAS States it is not consistent with the philosophy of nursing

• Right to autonomy and the right to self-determination are issues used to support PAS



• Ethical Issues Right to refuse treatment

• A competent adult has the right to determine what does or does not happen to him or her

Even if the refusal may or will result in death

• Advance directive Specifies what life-saving treatments he or she does or

does not wish to have

• Living will Becomes effective when the patient is incapacitated



• Ethical Issues Right to refuse treatment

• Health care proxy Durable power of attorney A person to make decisions regarding medical

treatment if the patient is unable to make them



• Do Not Resuscitate Orders The patient is usually incapacitated with little hope of

recovery Physician will consult with the family before writing a

DNR order Nurse has a duty to follow the order



• Refusal to Treat The nurse cannot refuse to care for a patient because

she disagrees with the decisions the patient makes• Nurse does not have to participate in the procedure but

cannot refuse to provide care after procedure

• Do not abandon the patient, but ask for another assignment



• Refusal to Treat The nurse DOES NOT have the legal right to refuse to

care for a person with an infectious disease• Standard precautions should be applied to every patient

and therefore the nurse is at no greater risk

• The patient has the right to receive care, and the nurse has the responsibility to provide care


Documents

Legal and Ethical Aspects of Nursing Chapter 2 Mosby items and derived items © 2011, 2007 by Mosby, Inc., an affiliate of Elsevier Inc