LEGAL ASPECTS OF NURSING

Definition of terms
1. Common law: accumulation of law as a result of judicial court decisions.
2. Civil law (private law): law that derives from legislative codes and deals with relations between private parties.
3. Public law: concerns relationships between an individual and the state. The thrust of public law is to attain what are deemed valid public goals, such as reporting child abuse.
4. Criminal law: concerns actions against the safety and welfare of the public, such as robbery. It is part of the public law.
5. Informed consent: implies that significant benefits and risks of any procedure, as well as alternative methods of treatment, have been explained; person has had time to ask questions and have these answered; person has agreed to the treatment voluntarily and is legally competent to give consent; and communication is in a language known to the patient.
6. Reasonably prudent nurse: nurse must react as a reasonably prudent nurse trained in that specialty area would react. For example, if a nurse works with fetal monitors, she must know how to use the monitors, know how to read the strips, and know what actions to take based on the findings.

Nursing licensure - mandatory licensure required in order to practice nursing
1. Nurse Practice Act: each state has one to protect nurses’ professional capacity to set educational requirements, to distinguish between nursing and medical practice, to define scope of nursing practice, to legally control nursing through licensing, and to define standards of professional nursing.
2. American Nurses’ Association (1980): “The practice of nursing means the performance for compensation of professional services requiring substantial specialized knowledge of the biological, physical, behavioral, psychological, and sociological sciences and of nursing theory as the basis for assessment, diagnosis, planning, intervention, and evaluation in the promotion and maintenance of health; the casefinding and management of illness, injury, or infirmity; the restoration of optimum function; or the achievement of a dignified death. Nursing practice includes but is not limited to administration, teaching, counseling, supervision, delegation, and evaluation of practice and execution of the medical regimen, including the administration of medications and treatments prescribed by any person authorized by state law to prescribe. Each registered nurse is directly accountable and responsible to the consumer for the quality of nursing care rendered” (American Nurses’ Association: The Nursing Practice Act; Suggested State Legislation. American Nurses’ Association, Kansas City, MO, 1980, p.6. Reprinted with permission).
3. Revoking a license: Board of Examiners in each state in the United States and each province in Canada has the power to revoke licenses for just cause, such as incompetence in nursing practice, conviction of crime, drug addiction, obtaining license through fraud, or hiding criminal history.

Crimes and torts
1. Crime: an act committed in violation of societal law and punishable by fine or imprisonment. A crime does not have to be intended (as in giving a patient an accidental overdose that proves to be lethal).
  1. Felonies: crimes of a serious nature (such as murder) punishable by imprisonment of longer than 6 months.
  2. Misdemeanors: crimes of a less serious nature (such as shoplifting), usually punishable by fines or short prison term or both.
2. Tort: a wrong committed by one individual against another or another’s property. Fraud, negligence, and malpractice are torts (such as losing a patient’s hearing aid or bathing the patient in water that burns her or him).
  1. Fraud: misrepresentation of fact with intentions for it to be acted on by another person (such as falsifying college transcripts when applying for a graduate nursing program).
  2. Negligence: “Omission to do something that a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs would do, or doing something which a reasonable and prudent person would not do" (Creighton H: Law Every Nurse Should Know. Saunders, Philadelphia, 1986). Types of negligent acts related to:
    1. Sponge counts: incorrect counts or failure to count.
    2. Burns: heating pads, solutions, steam vaporizers.
    3. Falls: side rails left down, baby left unattended.
    4. Failure to observe and take appropriate action - forgetting to take vital signs and check dressing in a newly postoperative patient.
    5. Wrong medicine, wrong dose and concentration, wrong route, wrong patient.
    6. Mistaken identity - wrong patient for surgery.
    7. Failure to communicate - ignore, forget, fail to report complaints of patient or family.
    8. Loss of or damage to patient’s property - dentures, jewelry, money.
  3. Malpractice: part of the law of negligence as applied to the professional person; any professional misconduct, unreasonable lack of skill, or lack of fidelity in professional duties, such as accidentally giving wrong medication or forgetting to give correct medication or instilling wrong strength of eyedrops into the patient’s eyes. Proof of intent to do harm is not required in acts of commission or omission.
Invasion of privacy - compromising a person’s right to withhold self and own life from public scrutiny. Implications for nursing - avoid unnecessary discussion of patient’s medical condition; patient has a right to refuse to participate in clinical teaching; obtain consent before teaching conference.

Libel and slander - wrongful action of communication that damages person’s reputation by print, writing, or pictures (libel), or by spoken word using false words (slander). Implications for nursing - make comments about patient only to another health team member caring for that patient.

Privileged communications - information relating to condition and treatment of patient requires confidentiality and protection against invasion of privacy. This applies only to court proceedings. Selected person does not have to reveal in court a patient’s communication to him or her. The purpose of privileged communication is to encourage the patient to communicate honestly with the treating practitioner. It is the patient’s privilege at any time to permit the professional to release information.
Therefore, if the patient asks the nurse to testify, the nurse must truthfully give all information. However, if the nurse is a witness against the patient, without the patient’s permission to release information, the nurse must keep the information confidential by invoking the privileged communication rule if the state law recognizes it and if it applies to the nurse.

Assault and battery - violating a person’s right to refuse physical contact with another.
1. Definitions
  1. Assault - the attempt to touch another or the threat to do so and person fears and believes harm will result.
  2. Battery - physical harm through willful touching of person or clothing, without consent.
2. Implications for nursing - need to obtain consent to treat, with special provisions when patients are underage, unconscious, or mentally ill.

Good Samaritan Act - protects health practitioners against malpractice claims resulting from assistance provided at scene of an emergency (unless there was willful wrongdoing) as long as the level of care provided is the same as any other reasonably prudent person would give under similar circumstances.

Nurses’ responsibilities to the law
1. A nurse is liable for nursing acts, even if directed to do something by an MD.
2. A nurse is not responsible for the negligence of the employer (hospital).
3. A nurse is responsible for refusing to carry out an order for an activity believed to be injurious to the patient.
4. A nurse cannot legally diagnose illness or prescribe treatment for a patient. (This is the MD’s responsibility.)
5. A nurse is legally responsible when participating in a criminal act (such as assisting with criminal abortions or taking medications from patient’s supply for own use).
6. A nurse should reveal patient’s confidential information only to appropriate health care team members.
7. A nurse is responsible for explaining nursing activities but not for commenting on medical activities in a way that may distress the patient or the MD.
8. A nurse is responsible for recognizing and protecting the rights of patients to refuse treatment or medication, and for reporting their concerns and refusals to the MD or appropriate agency people.
9. A nurse must respect the dignity of each patient and family.

Organ donation
1. Legal aspects to protect potential donors and to expedite acquisition
  1. Prohibits selling of organs (National Organ Transplant Act).
  2. Guidelines regarding who can donate, how donations are to be made, and who can receive donated organs (Uniform Anatomical Gift Act).
  3. Legal definition of brain death (Uniform Determination Death Act): absence of breathing movement, cranial nerve reflex, response to any level of painful stimuli, and cerebral blood flow; and flat EEG.
2. Donor criteria
  1. Contraindications for being organ donator: HIV - positive status and metastatic cancer.
  2. Prospective donors of both organs and tissues: those with no neurological functions, but have cardiopulmonary functions.
  3. Prospective donors of only tissues: those with no cardiopulmonary function (e.g, can donate corneas, eyes, saphenous veins, cartilage, bones, skin, heart valves).
3. Management of donor