Learning Objectives
By the end of this section, you will be able to:
- Identify the legal concepts for professional nursing
- Recall different legal regulations for nursing practice
- Describe various types of legal actions in nursing practice
The first nursing practice act (NPA) was passed by the New York state legislature in 1938 (Guido, 2020). Since that time, the nursing profession has been bound to laws and legislation that govern health care and the scope of nursing practice. Laws, including those related to nursing and health care in general, change, contract, and expand based on the needs of culture and society. Understanding the legal dimensions of care is critical for all nurses because those dimensions impact daily nursing practices.
Legal Concepts for Professional Nursing
Formal rules, or laws, for conduct—professional, political, social, or otherwise—govern behavior and are created and sanctioned by various governing bodies, such as Congress and states. Nurses are bound to work within laws established nationally and locally, by agencies and professional associations and by state boards of nursing (SBONs).
A requirement that healthcare providers must inform a patient or their surrogate of the potential benefits, risks, and alternative treatments for a procedure or treatment that is being offered is called informed consent (Weiss et al., 2019). Informed consent is a legal concept, typically memorialized in a specific document within a patient’s chart. Nurses should not be providing the details of the documents, such as risks, benefits, and alternatives; that is the provider’s responsibility. However, the process often includes nurses, particularly as witness to the signature and to confirm that informed consent was obtained prior to beginning procedures or interventions.
The nurse holds the responsibility of ensuring the person signing the consent is of legal age, competent, and voluntarily providing informed consent. The patient must possess sufficient knowledge about the procedure, risks, and alternatives, and their consent should be free from coercion. Generally, consent can only be obtained from mentally competent adults; however, exceptions exist for minors, developmentally disabled adults, emancipated minors, and those with appointed healthcare decision-makers. In cases where the patient is unable to consent, legal representatives, including parents, guardians, or court-appointed individuals, may provide consent on the patient’s behalf.
Nurses can be held legally liable if they know appropriate consent has not been obtained and do not inform supervisors or providers (Rich, 2023). Further, when acting as witness, nurses are still responsible to the patient to act as advocate, preserve dignity, ensure concerns receive adequate responses from providers, and ensure patients understand what they are being asked (Weiss et al., 2019). Not getting informed consent from a patient is considered negligence (breach of duty). Further, performing procedures on patients without consent may be considered battery. The exception to the informed consent requirement is emergency situations, when implied consent is assumed (Weiss et al., 2019).
Sources of Law
The United States Constitution and the Bill of Rights are the foundation of all U.S. laws (Weiss, et al., 2019). Together they outline the types and limitations of governmental power as well as the rights of citizens. Subsequent laws may not be written that violate these basic rights provided by the constitution. State governments can further expand the rights of individuals; however, they are unable to limit the rights provided by the U.S. Constitution and its amendments. See Table 16.3 for a summary of the types of laws that impact nursing: constitutional law, statutory law, administrative law, common law, civil law, and criminal law.
| Type of Law | Definition | Example |
|---|---|---|
| Constitutional law | Laws written into the U.S. Constitution and its amendments | This ensures the safeguarding of medical records and that healthcare professionals do not disclose patient information without appropriate consent or a legal basis (protected by the Fourth Amendment to the United States Constitution). |
| Statutory law | Established by legislative bodies, such as Congress, state legislatures, and local governments | Examples of statutory law include the following: Federal: Health Insurance Portability and Accountability Act (HIPAA), Americans with Disabilities Act, Affordable Care Act (ACA) State: Nursing practice act |
| Administrative law | Policies and procedures established by governments (federal, state, and local), which detail rules and procedures for statutory laws; determines how laws are administered and enforced, and by whom | Federal: The U.S. Department of Health and Human Services administers statutory law of HIPAA and developed the specific standards, rules, policies, and strategies with which all agencies must abide to ensure HIPAA is upheld. State: State boards of nursing write the rules to enforce the nursing practice acts and manage professional licensure and also act as an enforcement arm for violations of practice acts or professional licensure requirements. |
| Common law | Based on the tradition of unwritten law that is grounded in the principles of justice, reason, and custom; assumes court decisions set precedents that can be used to decide other cases. | Most civil and criminal law is based on common law. |
| Civil law | Related to people, things, and the relationships between them | Civil lawsuits, such as malpractice, are brought by an individual or individuals against a healthcare provider, group of providers, or institution; based on the idea that expected care was not provided appropriately and the patient suffered or died as a result; they generally result in fines or monetary awards. |
| Criminal law | Define crimes and the punishments for people perpetrating them | Criminal charges, such as negligent homicide, are brought by the state based on care (or lack of it) that is so egregious that it rises to a crime; they generally result in punishment, such as jail time, |
Link to Learning
The Affordable Care Act (ACA) is an important healthcare law signed into legislation. It is designed to ensure access to affordable health insurance to a larger percentage of the population, including those with preexisting conditions.
Legal Regulation of Nursing Practice
Legal regulation of nursing practice occurs at a state level, via SBONs. These SBONs set standards and expectations of nursing practice for the state and strategies to decide when correct care has been provided (Boehning & Haddad, 2022). Legally, nurses are evaluated based on their adherence to the applicable laws of their state as well as their experience and position.
Nurse Practice Act
Each state government sets the nursing practice act (NPA), the statutory law guiding nursing, for their state. The NPAs give authority for nurses to practice as nurses within a given state or given group of states (if a multistate license) (Guido, 2020). The NPAs also define the specific activities that different types of nurses are allowed to perform, scopes of practice, nursing school standards, licensure processes, causes of disciplinary actions, and the legal rights nurses have if complaints are filed against them (Boehning & Haddad, 2022). The SBONs administer the NPA established by the state legislature and enforce the applicable laws.
Standards
Professionally developed criteria, or standards, provide the minimal level of acceptable practice for all individuals within a profession. The ANA established nursing standards to guide the expected behavior of individual nurses. Various nursing specialties, such as perioperative nurses, have additional standards that nurses working in that specialty are expected to meet. State boards of nursing and professional organizations establish practice standards and define the responsibilities of nurses (Boehning & Haddad, 2022; Weiss et al., 2019). Institutions also establish internal standards of practice or policy based on, ideally, current evidence-based practice and the availability of resources within a given agency. Individual nurses have a responsibility to meet the standards of practice for their agency and state.
Credentialing
A process that agencies use to ensure that their clinical staff (all healthcare professionals) meet the necessary and legal criteria to practice is called credentialing. It involves the verification of a healthcare worker’s credentials (qualification such as academic degree, license, expert knowledge) (Health Resources and Services Administration [HRSA], 2023). To complete the credentialing process, a healthcare agency will verify several pieces of information, some of which will be provided by the nurse (Table 16.4).
| Type of Activity | Examples of Documentation for RNs |
|---|---|
| Verification of identity | Government-issued picture identification |
| Verification of licensure | Must be obtained directly from the state boards of nursing licensing agency |
| Verification of education/training | Generally, through transcripts and/or diplomas; if a nurse has certifications, that may occur through the American Nurses Credentialing Center |
| Verification from the Drug Enforcement Administration (DEA) that there are no known issues with a nurse’s ability to give medication | Retrieved through the DEA by the agency |
| Verification of Basic Life Support (BLS) and/or Advanced Cardiovascular Life Support training | Copy or certificate of training completion or active BLS card |
Accreditation
Schools of nursing seek accreditation from agencies recognized by the U.S. Department of Education. Accreditation means that a school is teaching a curriculum that meets state and national standards of nursing education (Gaines, 2023). It sets a standardized level of uniformity and consistency across programs, instilling confidence in the comparability of like-degree programs nationwide. This ensures every student is well prepared to provide competent patient care upon graduation (Gaines, 2023).
Licensing
State boards of nursing are fully responsible for providing and managing nursing licenses (Boehning & Haddad, 2022). They set fees and ensure applicants for licensure have completed the requisite education and board testing. They additionally perform criminal backgrounds checks for licensure, if required by law. Further, SBONs ensure nurses renewing their licenses have completed any required continuing education. Finally, they are responsible for revoking or suspending nursing licenses and other disciplinary actions against nurses shown to have conducted themselves inappropriately in terms of the law (Boehning & Haddad, 2022). Licenses for nurses can be tracked through their SBON, which also maintains records regarding actions against an individual nurse’s license.
In response to the dynamic nature of health care and the increasing demand for nursing services across state borders, the Nurse Licensure Compact (NLC) has emerged as a solution to facilitate the mobility of nurses. The NLC is an agreement among certain U.S. states to recognize and accept a single nursing license that allows nurses to practice in multiple participating states. This innovative approach aims to enhance healthcare accessibility while maintaining rigorous regulatory standards and prioritizing patient safety. Nurses holding a multistate compact license must adhere to the rules and regulations of the respective state in which they are practicing at any given time. It is essential for nurses to be aware of the specific states participating in the compact and the associated regulations.
Certifications
A certification allows healthcare practitioners to become specialized in one or more subjects as subject-matter experts (edX.org, 2023). Certifications generally require some education (in person, online, or self-study), and the passing of an examination focused on a specific subject area. Many certifications also require a minimum number of practice hours within the area of the requested clinical specialty. In some cases, practice hours within the area of the specialty replace added educational requirements. Many different certifications are available for RNs to obtain, including (but not limited to) medical-surgical nursing, critical care, case management, informatics, occupational health, and addictions.
Laws Affecting Nursing Practice
Numerous laws influence nursing practice both in the workplace and during nonworking hours. One of these is the Good Samaritan law. There is a general expectation in most states that healthcare providers will respond and offer voluntary assistance during emergency situations because it is the moral and ethical thing to do. However, many healthcare workers became hesitant to provide such assistance because so many were sued by the very people they were trying to assist. As a result, many states have passed Good Samaritan laws (Weiss et al., 2019). These laws protect healthcare professionals from civil liability in emergency situations as long as they are acting in a way that is expected, reasonable, and prudent for someone with the same background. Another law affecting nursing practice is the Health Insurance Portability and Accountability Act (HIPAA) passed in 1996. The HIPAA developed standards so that patients could understand how their health information was used (see also Chapter 2 Communication and Chapter 9 Safety and Security).
Occupational Safety and Health Administration
The Occupational Safety and Health Administration (OSHA) is a division of the U.S. Department of Labor. The OSHA is an administrative services agency established to ensure the safety and health of workers in all industries in the United States (OSHA, 2021). OSHA sets regulations for healthcare facilities to follow to protect workers. Their regulations for nursing include topics as wide ranging as workplace violence, safe patient handling, infectious diseases, chemical and pharmaceutical hazards, and enforcement standards.
Link to Learning
The OSHA has eTools to make it easier for hospitals to identify some of the most pertinent OSHA regulations for hospital settings. Explore some of the common topics to see how facilities should ensure the safety of their workers.
National Practitioner Data Bank
The National Practitioner Data Bank (NPDB) is part of a law passed by the U.S. Congress in response to increases in medical malpractice, medical insurance fraud, and the need to be able to restrict and track incompetent healthcare workers (U.S. Department of Health and Human Services, 2018). The NPDB is a national clearinghouse that provides information on medical malpractice payments and adverse actions against the licenses of physicians, dentists, and some other healthcare providers. It also includes information on medical insurance fraud, actions by other federal agencies, and actions healthcare plans take against providers. The information maintained in the NPDB can be requested by hospitals, state licensing agencies, law enforcement agencies, and individuals requesting the file for themselves. Agencies can then use the information to inform decision-making regarding hiring of staff, offering licenses to individuals moving from other areas, and even law enforcement when there is concern for a pattern of behavior (U.S. Department of Health and Human Services, 2018).
Reporting Obligations
When a nurse or other healthcare professional suspects a patient of being abused or neglected, they may be legally required to report their suspicions to the correct authorities. It is sad but true that (1) a case of child abuse is reported every ten seconds, (2) a high percentage of victims of human trafficking see healthcare providers, and (3) millions of men and women are abused annually by their intimate partners (Carlson, 2024). A nurse is a mandated reporter, an individual required by law to report suspected or known abuse against children, older adults, people with disabilities, and between intimate partners. Other mandated reporters include other healthcare workers, law enforcement, teachers, and even clergy (Thomas & Reeves, 2022). Failure to report suspected abuse may result in fines or criminal charges against healthcare staff.
Most of the time, reporting will be made to either law enforcement or agencies, such as child protective services or adult protective services. The specifics of where and how to report vary by state; however, all nurses have a legal and ethical responsibility to report suspected abuse (Carlson, 2024). Mandatory reporting laws generally cover neglect as well as physical, sexual, emotional, and financial abuse (Thomas & Reeves, 2022).
In addition to mandatory reporting of suspected abuse or neglect, there are three other areas of mandatory reporting that are pertinent to nursing. First, there are many infectious agents that require mandatory reporting to health departments for tracking purposes. These diseases include several sexually transmitted diseases, the various types of hepatitis, measles, tetanus, tuberculosis, and many others (Centers for Disease Control and Prevention, 2023). Second, most states have duty-to-warn and protect laws. In these states, nurses and other healthcare providers are required to notify third parties, such as spouses, work groups, or anyone against whom a patient has threatened physical harm.
The final area of mandatory reporting is reporting against other members of the healthcare professions. Most states have laws requiring individuals with healthcare licenses to report (usually to their state boards of health or their state’s licensing agency, such as the SBON). While these laws also vary by state, they are generally focused on recognizing and reporting healthcare professionals who are impaired by drugs, alcohol, or other conditions or are practicing in a fashion that is dangerous to patients.
Life-Stage Context
Abuse of Older Adults
Abuse can happen to any older adult; however, it is most common among women, those without friends or family, and those with disabilities, memory problems, and/or dementia. It is most common for older adults who require help with activities of daily living, such as toileting, bathing, dressing, and managing their medications.
Abuse is surprisingly common among older adults and includes several types of abuse:
- Physical abuse includes both bodily harm and restraining an older adult against their will (such as tying them to furniture or locking them in spaces).
- Emotional abuse (also known as psychological abuse) includes yelling, threatening, and ignoring an older person as well as isolating them from friends and relatives.
- Neglect is characterized by the failure to address the needs of an older individual, which may encompass withholding essential elements such as food, medication, or necessary health care. Abandonment occurs when an older individual is left alone without the necessary assistance and support they need.
- Sexual abuse includes forcing an older adult to watch or engage in sexual acts.
- Financial abuse includes stealing or misusing a patient’s belongings or money, such as taking Social Security checks, withholding money, and changing names on wills or home titles without permission.
Nurses and other healthcare professionals should monitor older adult patients for signs and symptoms of abuse that include the following:
- being withdrawn, violent, or agitated
- showing signs of trauma, such as rocking back and forth
- having unexplained wounds, bruises, or scars
- experiencing preventable conditions, such as pressure ulcers
- having poor personal hygiene and dirty clothing
- not having necessary assistive items, such as eyeglasses and mobility devices (National Institute on Aging, 2023)
Patients’ Bill of Rights
In the 1970s, the American Hospital Association (AHA) recognized the need for guidelines to support ethical patient care in U.S. hospitals and published the first Patients’ Bill of Rights, now known as the Patient Care Partnership (Hunt, 2023). While it is not legally binding, the AHA encourages their member hospitals to tailor the information contained within to meet the needs of their patient populations, and to inform patients of their rights and responsibilities in each hospital system. The Patient’s Bill of Rights from the AHA provides a recommended blueprint for member hospitals to use with their own patient populations (Hunt, 2023).
Patients have rights to the following:
- considerate and respectful care
- clear, relevant, and accurate information about diagnosis, treatment, and prognosis
- informed consent and shared decision-making unless incapacitated
- ask questions and receive honest answers, particularly about risks and alternatives
- know caregivers’ identities, and when caregivers are students, residents, or trainees
- know treatment cost, both immediate and long-term, as the information is known
- refuse treatment
- have an advanced directive or surrogate decision-maker and expect the agency to honor the designations
- privacy when their information is being discussed between healthcare workers
- confidentiality of communications and records
- access their medical records
- medically indicated care based on urgency
- address conflicts of interest, particularly financial ones between providers and commercial interests
- refuse to participate in research studies
- receive continuity of care and be informed of upcoming care changes
- be informed of hospital policies and practices as well as dispute and grievance resolution
Patient Conversations
How to Provide a Patient with Information about Their Rights
Scenario: Nurse walks into a newly admitted patient’s room. The patient is a 45-year-old Latina female, and she is sitting gently on the bed, looking anxious. A male family member is standing near her with a hand on her shoulder. He looks sternly at the nurse; the patient looks down.
Nurse: Hello Ms. Hernandez, my name is Martika. I will be your nurse this afternoon. Is everything all right? You look troubled.
Patient: Yes, I am worried.
Nurse: Ms. Hernandez, I’m sorry that you are worried. I know you are anxious about being admitted to the hospital. I need to discuss a few things with you and ask you some questions, would you like me to come back since you have company?
Patient: No, this is my husband, Mario. I would like him to stay with me if that is okay.
Patient’s husband: She was in another hospital last month. They wouldn’t let me stay with her and were mean. When they sent her home, we didn’t understand about her medications and follow-up appointment, so she got sick again. I am staying with her to be sure she is cared for better.
Nurse: Oh, Ms. Hernandez, I’m so sorry you had that experience. Let me reassure you that you will receive excellent care here. I brought you a folder with information about our hospital. In it, right here, is a discussion of your rights and responsibilities as a patient. This copy is in English; however, we do have it available in multiple languages. What is your preferred language for receiving educational materials?
Patient: We both read and speak English, so this version will be just fine. I don’t think they had anything like patient rights at that other hospital. Thank you for showing us.
Nurse: You are very welcome. You have the right to be treated with dignity and respect and to understand your treatment, both here and for what you will need after you leave. If you have any concerns about the care you receive from me or any others working here, here are the people with whom you can speak. They will ensure that any concerns you have are addressed.
Scenario follow-up: With the information about their rights in hand, the patient and her husband relaxed, and the nurse was able to complete the admission.
Bill of Rights for Registered Nurses
Registered nurses are the largest group of healthcare workers in the United States. Further, nursing is consistently listed as the most honest and ethical profession in the country (ANA, 2022). However, nursing jobs are complex and occur in a wide variety of settings and locations, from level 1 trauma centers to death row prisons and everywhere in-between. As a result of the registered nurse’s value to society, health care, science, and all communities, the ANA developed a Bill of Rights for all registered nurses. These rights are expected to be nonnegotiable and provide nurses with the rights they need to meet the needs of their patients while caring for themselves as well (ANA, 2022). The Nurses Bill of Rights includes a variety of clauses designed to allow nurses to practice in safe environments that allow for psychological and physical safety and respect, ethical and legal practices, and the autonomy to advocate for patients and practice at the top of their licenses. The Nurses Bill of Rights is not a legal document; however, it can assist professional organizations, state legislatures, and healthcare agencies in developing laws and regulations related to nursing practice and organizational policies (ANA, 2022).
Link to Learning
Take a look at the most recent version of the Nurses Bill of Rights from the ANA. Consider how items in the bill can improve nurses’ experiences and work environments.
Legal Actions in Nursing Practice
While nurses may be involved in legal proceedings that have no interaction with their SBON, the SBON is the only agency that can revoke or suspend a nurse’s license or ability to practice. The SBONs can receive complaints about nurses providing substandard care from their agencies, other healthcare workers, other nurses, and patients. After complaints are made to a SBON, they are investigated to determine whether the nurse was providing substandard care. If the nurse has acted against their state’s NPA, the SBON can assign disciplinary actions including fines, remedial education, required supervision for practice, and/or suspension or revocation of a nurse’s license (Boehning & Haddad, 2022).
Legal actions come in a couple of different forms through either a criminal charge or a civil action. Criminal charges are brought against an individual who has allegedly perpetrated a crime by acting against a specific statute or common law principle in a way that is harmful (Guido, 2020). Individuals found guilty of criminal charges face penalties that can range from fines and imprisonment to the possibility of the death penalty. Civil actions are brought in the form of lawsuits, in which one individual or group (“plaintiff”) sues another (“defendant”) for violating a social or legal contract or the rights of others. If the court or jury finds in favor of the plaintiff, the defendant may be required to pay monetary damages to the individual or group they harmed. It is possible for an individual to be sued civilly and charged criminally for the same action (Guido, 2020).
Link to Learning
The conviction of RaDonda Vaught for criminally negligent homicide provides an example of ethical and legal considerations of nursing, as well as criminal charges, civil suits, and actions to remove a nurse’s license. (RaDonda Vaught was a former RN at Vanderbilt University Medical Center in Nashville, Tennessee.)
Crimes in Nursing Practice
As previously noted, criminal laws are focused on conduct that is offensive or harmful to others. They can be statutory or common laws. When an individual violates a criminal law by performing a prohibited act, it is a crime. There are two main categories of crimes: misdemeanors and felonies. A misdemeanor is a typically less severe criminal act, for which perpetrators are generally fined less than $1,000 and/or jailed for less than one year. A felony is a more serious criminal act for which perpetrators are generally fined more than $1,000 and/or jailed for more than one year.
There are a variety of ways in which a nurse can act in a criminal fashion (Guido, 2020):
- falsifying records, which are legal documents (including backdating)
- narcotic theft/diversion
- patient maltreatment/abuse
- patient murder
- failing to protect at-risk populations, such as failing to report child abuse
- inadequate nursing care
- working or driving under the influence of drugs or alcohol (nurses have lost their nursing licenses for driving under the influence)
Link to Learning
Read through the press release detailing the criminal activities of an Iowa nurse that included fraud, narcotic theft, and violation of HIPAA. In addition to the legal ramifications of her actions, consider the ethical implications. This case highlights the connection between the legal system and ethical considerations.
Torts
A tort is the harm that results when an individual or organization breaches their duty to another individual or organization. The duty may be general or specific. Torts are civil laws and include both intentional and unintentional actions (Guido, 2020; Weiss et al., 2019). The underlying assumption behind tort law is that people are responsible for their actions (Ronquillo et al., 2022).
Intentional Torts
An intentional tort is an action that an individual knew or should have known was incorrect or inappropriate (Ronquillo et al., 2022). Intentional torts include assault and battery, false imprisonment, breach of privacy or confidentiality, slander and libel, and fraud (Table 16.5). For example, giving a blood transfusion without obtaining consent would be battery, which is an intentional tort. Many intentional torts can also incur criminal charges.
| Type of Intentional Tort | Definition | Example |
|---|---|---|
| Assault | Intentionally putting another individual in fear of being hurt or touched in an offensive fashion | Threatening to withhold or forcibly give a patient medication as a way to make them behave |
| Battery | Intentionally causing harm or touching an individual offensively without their consent | Forcibly administering medication to a patient without their consent (Emergency situations to prevent harm to the patient or others do not count.) |
| False imprisonment | Restraining another person or causing them to be restricted to a specific area | Using chemical restraints (medications) to restrict the movement of a patient with Alzheimer disease to prevent them from wandering |
| Privacy and confidentiality | The right of an individual to have their dignity protected and their personally identifiable medical information protected and kept private | Discussing a patient, including their name and medical information, in an elevator containing individuals without a reason to know the information |
| Slander and libel | Making negative, malicious, and/or false remarks about another person to damage their reputation; can be either oral (slander) or written (libel) | Telling a patient the nurse they had on a previous shift is known to be a bad nurse and that you will attempt to get them a good nurse for the following shift |
| Fraud | Deceiving an individual or group for personal gain | Altering documentation to cover up an error in patient care |
Clinical Safety and Procedures (QSEN)
QSEN Competency: Safety and Legal Use of Behavioral Restraints in a Psychiatric Setting
Definition: Restraints can be used to protect patients from harming themselves or others when other interventions are ineffective; however, inappropriate use of restraints is illegal and constitutes false imprisonment.
Knowledge: Restraints include mechanical devices, chemical restraints (medications), and seclusion. Behavioral restraints are used with psychiatric patients who are attempting to harm themselves or others and for whom no other type of de-escalation has been possible. Restraining patients is a legal action, as it is also imprisonment, and it can only be done in specific circumstances. The following are Medicare and Medicaid guidelines:
- Restraints should only be used as a last resort.
- There must be a physician’s order written within one hour of their initiation.
- They must be discontinued as soon as possible.
- Restraints can never be a standing or PRN order.
- Patients must be assessed frequently, and mechanical restraints must be removed, and the patient’s skin inspected every hour.
- Orders for behavioral restraints or seclusion must be discontinued or rewritten every four hours for adults, every two hours for children between the ages of 9 and 17 years, and every hour for children under 9 years of age.
Skills: When using restraints, nurses should do the following:
- Demonstrate effective use of restraint devices and risk reduction strategies.
- Ensure complications or unexpected issues are communicated promptly to the healthcare team and are reported as required to institutional restraint monitoring sites.
Attitude: When using restraints, nurses should do the following:
- Value standard procedures for restraint management per facility policy and manufacturer directions.
- Understand the importance of maintaining restraint safety through vigilant monitoring of restraints while in use.
Unintentional Torts
An unintentional tort involves causing harm to someone without intending to do so, often due to a lack of care or awareness of potential risks. Unintentional torts still harm the patient, so nurses and other healthcare workers can still be liable for the damage caused as a result even when the harm was unintentional (Rich, 2023). A type of unintentional tort called negligence results from individuals not acting in a way that would be reasonably expected of someone in the same position (Ronquillo et al., 2022). While the harm itself was not intended, negligence might be the result of either an action or inaction (Table 16.6).
| Problem | Prevention Strategies |
|---|---|
| Falls | Identify at-risk patients. Ensure fall risk notices are easily visible. Maintain beds in lowest position and use caution with side rails. |
| Injuries from equipment | Ensure appropriate education is provided for new equipment. Evaluate thermostats and temperatures if providing hot or cold therapies. |
| Inappropriate patient monitoring | Regularly assess IV sites, vital signs, urinary output, cardiac status, and so on. Evaluate laboratory values and ensure providers are aware of abnormal values. |
| Poor communication | Ensure status changes are reported. Document status changes and communication of status change with providers. |
| Medication errors | Follow the Rights of Medication Administration. Follow agency medication policies. Monitor patients after mediation administration. Never give an unknown drug without looking it up to determine action, contraindications, and side effects. |
| Not following orders | Always ensure provider’s orders are followed in a timely manner. If orders appear inappropriate or inaccurate, communicate that clearly to the provider, and document. If there is a conscientious objection to following an order, communicate that clearly to the appropriate member of leadership immediately. |
Steps in Litigation
The process of resolving disputes or legal conflicts through the court system is called litigation. There are several stages to the litigation process. In the initial phase, a lawsuit must be filed by a plaintiff or plaintiffs against a defendant or defendants. In the case of malpractice, it is most commonly an individual plaintiff against multiple defendants including nurses, doctors, and agencies altogether (Guido, 2020). Following this, the defendant is served with the complaint and a summons (a formal notice issued by a court or other authorized entity, informing an individual that a legal action has been initiated against them). The discovery phase ensues, incorporating mechanisms such as interrogations (formal questioning), depositions (formal out-of-court testimony), and requests for documents to gather relevant information. Pretrial motions may be filed, including a motion to dismiss a case before going to trial. A settlement, an agreement between the parties to not go to trial, may be negotiated in which a payment to the plaintiff may be requested in exchange for no admission of guilt or liability for the defendant.
If a settlement is not reached, the case proceeds to trial. A verdict will be made as the formal decision rendered by a judge or jury at the conclusion of a trial. It serves as the legal determination of guilt or innocence in criminal cases and establishes liability and potential damages in civil cases. An injunction may also be issued by a court to require defendants to refrain from or carry out particular actions or procedures in the future. Ultimately, the enforcement of the judgment involves actions like collecting damages or ensuring compliance with the court’s orders. It is important to note that the specific steps may vary based on jurisdiction, legal systems, and the nature of the case at hand. Figure 16.6 offers an example of how litigation flows from initial complaint to conclusion in a malpractice case.
Cases of different nature demand distinct levels of evidence to establish the guilt or liability of defendants (Guido, 2020). For example, civil cases frequently use a preponderance of the evidence, in which one set of facts is more likely than not to be true. Conversely, criminal cases use beyond a reasonable doubt, the highest level of evidence (an indication of how much proof is required to find a defendant liable for an event). In these cases, the government must prove that no reasonable person would doubt the prosecution has proved that a crime occurred and that the defendant committed it; however, it does not mean the absence of all doubt.
Nurse as a Defendant
Professional negligence on the part of a service provider who must have specialized education to fulfill the designated complex assistance expected of someone in the same position is called malpractice. Nurses are involved in malpractice suits for a variety of reasons (O’Neill, 2021; Weiss et al., 2019):
- inadequate/inappropriate assessment
- not reporting status changes appropriately
- not documenting appropriately
- falsifying documentation/altering a patient record
- not reporting coworker negligence
- not providing necessary education
- violating standards of practice or practicing outside or beyond one’s scope of practice
- inappropriate delegation
- not recognizing inappropriate orders and/or order errors
Much of the time, malpractice cases are brought against the employer rather than the employee because employers are considered responsible for the actions of every employee. There are four criteria needed to prove malpractice. A jury will assess community standards, institutional policies, expert opinions, and literature/research to determine the level of care that is the standard for a nurse in the defendant’s position (Weiss et al., 2019).
Nurse as a Witness
Nurses are often called on to be witnesses in court proceedings. They may be called on as witnesses for or against coworkers or as independent experts (Weiss et al., 2019). In this capacity, a nurse is considered a lay witness and allowed only to speak to the facts of the case—what they saw or did not see (Guido, 2020). In the capacity of lay witness, nurses are involved in the case because they have pertinent information but are not direct defendants to the case.
A second way in which nurses are called to testify at trials is as an expert witness. When called as expert witnesses, their job is to describe the applicable standards and their opinion of whether a nurse in each situation would have been reasonably expected to behave/perform in a particular way (Guido, 2020). Expert witnesses also explain, in plain language, the various issues associated with nursing actions, performance, and medical technology, to make it easier for judges and/or juries to understand the case (Guido, 2020). Nurse expert witnesses must be able to show they have the knowledge and expertise required to speak with authority about the specific issues being considered in a given court proceeding.
Prevention of Liability for Nurses
Unfortunately, it is impossible to guarantee a nurse will never be sued for malpractice. Perhaps the best strategy to prevent being named in a criminal or civil liability case is through personal risk management. Risk management includes a variety of practices that agencies utilize to reduce the likelihood of injury to patients and others. Individuals can also employ risk management strategies. Always practice within the bounds of your state’s NPA and agency’s policies and practices (Nurses Service Organization and CNA Financial Corporation, 2021). Keep files of documents that can be used to show your character. Include documents such as letters of recommendation, performance evaluations, and continuing education certificates. When in doubt, follow the chain of command of your agency in terms of notifications and seeking advice. All nurses should consider investing in malpractice insurance, which will provide financial support and, in some cases, legal representation in the case that they are sued.
Clinical Safety and Procedures (QSEN)
QSEN Competency: Safety, Avoiding Legal Problems
Definition: Decrease the chance of being a defendant in a legal proceeding by providing high-quality, safe, and person-centered care, and carefully following standards of practice.
Knowledge: Understand the safety issues that most frequently lead to malpractice claims, as well as common errors and care hazards.
Skill: Employ these strategies to decrease the chances of being called as a defendant in a legal case:
- Always provide authentic and person-centered care when working with patients. People are less likely to sue people they know genuinely care for them.
- Regularly review new evidence-based research and practice in your specialty.
- Encourage leadership to ensure staff are educated when policies, procedures, and technology change.
- Always follow the agency’s policies and procedures.
- Delegate appropriately.
- Ensure clients who are at risk of injury from falls, elopement, pressure ulcers, and so on, have appropriate care plans and are provided with appropriate levels of care.
- Always document objectively, precisely, and clearly using only approved abbreviations.
- Ensure incident reports are detailed and provided to the appropriate departments.
Attitude: Value your role in preventing errors.
Factors Affecting Competent Practice
There are a variety of intrinsic and extrinsic factors that can negatively affect the practice of the best nurses, making them more prone to errors. Studies have shown that competent practice can be impacted by a wide range of factors, including staffing ratios, work schedules, fatigue, physical health, and mental health. For example, in one survey of 771 critical care nurses, over 60 percent of nurses reported suboptimal physical health, and over 50 percent of nurses reported suboptimal mental health (particularly depression and anxiety) (Melnyk et al., 2021). The same nurses with less than perfect physical or mental health reported between 30 and 60 percent greater chance of making medical errors than their healthier coworkers.
For example, presenteeism is coming to work but not being able to perform fully and competently due to illness or job stress that impacts the safety of patients through increased patient falls, medication errors, and missed care (Rainbow et al., 2019). Another common factor impacting nursing practice is nursing fatigue and scheduling. Most nurses work in shifts, often 12-hour shifts, and frequently rotate between days of the week and sometimes even times of the day (between day, evening, and/or night). Shift work impacts nurses’ ability to concentrate and communicate at work and increases the chances of work-related injuries, illnesses, burnout, and errors (Peršolja, 2023). A third issue is the impact of nursing staffing levels on errors, patient mortality, and nursing burnout, which have been known for over two decades. Studies have shown that for hospital nurses working on inpatient units, for every additional patient a nurse cares for in a given shift, there is an increased risk of patient mortality, burnout, and job dissatisfaction (Aiken, 2023).