Questions Most Frequently Asked by Nurses About Nursing and the Law

1. Taking orders
1. Should I accept verbal phone orders from an MD? Generally, no. Specifically, follow your hospital’s by-laws, regulations, and policies regarding this. Failure to follow the hospital’s rules could be considered negligence.
2. Should I follow an MD's orders if (a) I know it is wrong, or (b) I disagree with his or her judgment? Regarding (a) - no, if you think a reasonable, prudent nurse would not follow it; but first inform the MD and record your decision. Report it to your supervisor. Regarding (b) - yes, because the law does not allow you to substitute your nursing judgment for a doctor’s medical judgment. Do record that you questioned the order and that the doctor confirmed it before you carried it out.
3. What can I do if the MD delegates a task to me for which I am not prepared? Inform the MD of your lack of education and experience in performing the task. Refuse to do it. If you inform him or her and still carry out the task, both you and the MD could be considered negligent if the patient is harmed by it. If you do not tell the MD and carry out the task, you are solely liable.


2. Obtaining patient’s consent for medical and surgical procedures: Is a nurse responsible for getting a consent for medical/surgical treatment? Obtaining consent requires explaining the procedure and risks involved, which is the MD’s responsibility. A nurse may accept responsibility for witnessing a consent. This carries with it little legal liability other than obtaining the correct signature and describing the patient’s condition at time of signing.


3. Patient’s records (documentation)
1. What should be written in the nurse's notes? All facts and information regarding a person’s condition, treatment, care, progress, and response to illness and treatment. Document consent or refusal of treatment. Purpose of record: factual documentation of care given to meet legal standards; used to refute unwarranted claims of negligence or malpractice.
2. How should data be recorded? Entries should:
1. State date and time given.
2. Be written, signed, and titled by caregiver or supervisor who observed action.
3. Follow chronological sequence.
4. Be accurate, factual, objective, complete, precise, and clear.
5. Be legible; use black pen.
6. Use universal abbreviations.
7. Have all spaces filled in on documentation forms; leave no blank spaces.


4. Confidential information
1. If called on the witness stand in court, do I have to reveal confidential information? It depends on your state, because each state has its own laws pertaining to this. Consult a lawyer. Inform the judge and ask for specific directions before relating in court information that was given to you within a confidential, professional relationship.
2. Am I justified in refusing (on the basis of “invasion of privacy") to give information about the patient to another health agency to which a patient is being transferred? No. You are responsible for providing continuity of care when the patient is moved from one facility to another. Necessary and adequate information should be transferred between professional health care workers. The patient’s consent for this exchange of information should be obtained. Circumstances under which confidential information can be released include:
1. By authorization and consent of the patient.
2. By order of the court.
3. By statutory mandate, as in reporting cases of child abuse or communicable diseases.


5. Liability for mistakes - yours and others.
1. Is the hospital or the nurse liable for mistakes made by the nurse while following orders? Both the hospital and the nurse can be sued for damage if a mistake made by the nurse injures the patient. The nurse is responsible for his or her own actions. The hospital would be liable, based on the doctrine of respondeat superior.
2. Who is responsible if a nursing student or another staff nurse makes a mistake? The supervisor? The instructor? Ordinarily the instructor and/or supervisor would not be responsible unless the court thought the instructor and/or supervisor was negligent in supervising or in assigning a task beyond the capability of the person in question. No one is responsible for another’s negligence unless he or she contributed to or participated in that negligence. Each person is personally liable for his or her own negligent actions and failure to act as a reasonably prudent nurse.
3. Am I responsible for injury to a patient by a staff member who was observed (but not reported) by me to be intoxicated while giving care? Yes, you may be responsible. You have a duty to take reasonable action to prevent a patient’s injury.


6. Good Samaritan Act: For what would I be liable if I voluntarily stopped to give care at the scene of an accident? You would be protected under the Good Samaritan Act and required to live up to reasonable and prudent nursing standards in those specific circumstances. You would not be treated by the law as if you were performing under professional standards of properly sterile conditions, with proper technical equipment.


7. Leaving against medical advice (AMA): Would I or the hospital be liable if a client left “AMA” refusing to sign the appropriate hospital forms? None of the involved parties would ordinarily be liable in this case as long as (a) the medical risks were explained, recorded, and witnessed, and (b) the patient is a competent adult. The law permits patients to make decisions that may not be in their own best health interest. You cannot interfere with the right and exercise of the decision to accept or reject treatment.


8. Restraints: Can I put restraints on a patient who is combative even if there is no order for this? Only in an emergency, for a limited time (not longer than 24 hours), for the limited purpose of protecting the patient from injury—not for convenience of personnel. Notify attending MD immediately. Consult with another staff member, obtain patient’s consent if possible, and get co-worker to witness the record. Check frequently to ensure restraints do not impair circulation, cause pressure sores, or other injury. Remove restraints at the first opportunity, and use them only as a last resort after other reasonable means have not been effective. Restraints of any degree may constitute false imprisonment. Freedom from unlawful restraint is a basic human right protected by law. In July 1992 the Food and Drug Administration (FDA) issued a warning that use of restraints “no longer represents responsible, primary management of a client’s behavioral problem.” It is necessary to advise the patient and family of decision to restrain, explain risks and benefits, and obtain informed consent.

   In July 1996, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) recommended standards to minimize injury and complications from the use of restraints:

   • Use alternatives to physical restraints whenever possible (e.g., offer explanations; ask someone to stay with patient; use clocks, calendars, TV, and radio).
   • Use only under supervision of licensed healthcare provider.
   • Use according to manufacturer’s direction to avoid strangulation or circulation impairment.
   • Documentation must include time applied and removed; type; medical reason (description of dangerous behavior) and alternatives tried before application of restraints; response.
   1. Nursing responsibilities
   1. Provide padding to protect skin, bony prominences, and intravenous lines.
   2. Secure restraints to parts of bed or chair that will move with the patient and not constrict movement. Never secure restraints to bed rails or mattress.
   3. Use knots with hitches for easy removal, as required.
   4. Maintain proper body alignment when securing restraints.
   5. Remove restraints at least every 2 hours to allow for activities of daily living.


9. Wills: What do I do when a patient asks me to be a witness to her or his will? There is no legal obligation to participate as a witness, but there is a moral and ethical obligation to do so. You should not, however, help draw up a will because this could be considered practicing law without a license. You would be witnessing that (a) the patient is signing the document as her or his last will and testament; (b) at that time, to the best of your knowledge, the patient (testator) was of sound mind, was lucid, and understood what she or he was doing (i.e., she or he must not be under the influence of drugs or alcohol or otherwise unable to know what she or he is doing); and (c) the testator was under no overt coercion, as far as you could tell, but was acting freely, willingly, and under her or his own impetus.