Felony:
An act punishable by death or greater than one year
imprisonment.
Examples: murder, failure to report child abuse, fraud in
business records, patient abuse and neglect, stealing, selling
or using illegal drugs.
Example:
Violation of a State Practice Act:
A nurse caring for a patient notices a change in the patient's
condition & believes she knows the appropriate medication
the patient needs. She tries to contact the patient's doctor but
is unable to reach him. She writes the order although she has no
standing orders to follow and proceeds to administer the
medication. Violation: statutory, regulatory, criminal and/or
civil.
Example: Violation of Narcotic Laws:
While doing a narcotics check at the end of her shift, the nurse
notices the count is short one controlled analgesic. She
finds a patient whose PRN orders allow them to have that med for
pain, notice they haven't had any in a long time, and signs the
missing dose out to that patient who in reality did not receive
that dose. Violation: statutory, enacted, criminal and/or civil.
Misdemeanor:
Any other crime.
Categories
of Civil laws:
Intentional
Torts: Acts in which the outcome was planned although the
person may not have expected the outcome to harm the other
person. Types of intentional torts are:
Assault:
to threaten or attempt to touch a person without consent.
Example: Patient's orders call for IM injection. Patient
refuses to be given the injection & nurse tells patient
she IS going to give the shot anyway.
Battery:
Touching without consent (Treating without consent)
False
Imprisonment: Unwarranted use of restraints or
restrictions, restraining a person in AMA situations.
Quasi-intentional
Torts: Injury to economics and dignity. Types of
quasi-intentional torts are:
Invasion
of Privacy: Breach of confidentiality,
photographing patients without their consent.
Defamation
of Character: Slander or libel
Example:
Talking about a patient to another health care provider in
the elevator with other people present; disclosing patient
information over the telephone; telling stories about a
fellow coworker.
Unintentional
Torts: Acts in which the outcome was not intended to happen.
Types of unintentional torts are:
Negligence:
the failure to act as a reasonably prudent person would have
acted in a specific situation. (Applies to ALL people, even
unlicensed caregivers)
Malpractice:
The failure of a professional to use such care as a
reasonably prudent member of the profession would use under
similar circumstances, which leads to harm. (Applies ONLY to
professionals such as licensed nurses. Nurses can be held
both negligent and guilty of malpractice.)
Example
of negligence: A door to door magazine salesman is
leaving your home after you listen to his pitch and he trips
on the broken wooden plank of your steps, (you know-the
ones you were going to get around to fixing). He
breaks his nose when landing on his face on your sidewalk.
You are liable for this injury because you failed to repair
the steps, provide a warning sign to indicate the problem,
etc.
Example
of malpractice: A nurse administering medications gives
the patient in room 101 the meds that were on the MAR of the
patient in room 202. She fails to double check the room
number, the patient's name or ID bracelet. After
administering the wrong medicines to the wrong patient the
nurse continues on her rounds. The patient in room 101 is
allergic to one of the medicines she just administered, goes
into shock, has to be coded, became vent-dependant
& is now on a ventilator for the rest of his
life....
In
order to prove that negligence or malpractice has occurred, four
circumstances must be present and must be proven in a court of
law. These circumstances are:
Harm
must have occurred to the individual.
One
person must be in a situation where s/he had a duty toward
the person harmed.
The
person must be found to have failed to fulfill his or
her duty.
The
harm must be shown to have been caused by the breach
of duty.
Liability
A
person found guilty of a tort or crime is considered
legally liable, or accountable, for the outcome, whether
intended or unintended. The guilty person is subject to
punishment depending on the nature of the act/s.
Liability can extend to more than one person. In the
case of the homeowner, the homeowner's spouse is also
liable. If the homeowner had paid someone to repair the
steps and the worker had left this obstacle, then the
repair person and his or her employer would also be
liable, etc.
In a hospital situation, the nurse, the charge nurse,
the supervisor, the hospital, etc, all have liability.
There are three major levels of liability in a setting
other than a home setting. These are:
Personal
liability: The nurse is responsible for
performing those acts, and only those acts for which
s/he is licensed (omission or commission).
Employer
liability: The employer is held responsible for
actions of an employee; employee still has personal
liability. The employer is held responsible for
hiring qualified personnel, providing appropriate
environment for correct functioning and providing
appropriate supervision to prevent errors or injury.
Examples: adequate staffing policies; appropriate
delegation of employees; adequate lighting and
supplies, adequate supervisory personnel;
appropriate policies and procedures to guide
employees
Supervisory
liability: The person in a supervisory position
is responsible for exercising good judgment in
making decisions about assignments and delegation of
tasks; decisions concerning care given by nurses
over whom the supervisor is assigned if involved
with those decisions.
Statute
of Limitations:limits the length of time
in which the injured person can bring a lawsuit. This
varies according to the injury and according to each
state. Concealing injury or complications from the
patient may suspend the running of the statute. In other
words, if something occurs document it at once and give
all the available information you can gather.
Remember
whenever discussing legal issues in nursing it is
imperative to review your state's Nurse
Practice Act.
Nursing
Liability Related CEU Courses
($8.00/Credit Hr Unless Otherwise Noted)
NURSING LEGAL ISSUES
