Tanglaw - The legal framework of nursing: an overview

Tanglaw December 1998

The Legal Framework of Nursing: An Overview
by Cory Sorio R.N.
The advances of technology and consequent expansion of the nursing role have made issues of malpractice very important to the nurse. The increase in professional authority, accountability and autonomy in nursing practice demands an understanding of the law to protect nurses from liability and to protect clients' rights.
The Nursing Scope of Practice, those actions and duties that are allowable by the Nursing Profession, is defined and guided by the Nurse Practice Act, and by Common law.
The Nursing Practice Act is the single most important piece of legislation for nursing because it affects all facets of nursing practice. Each state legislature creates and defines the legal boundaries of nursing practice within their state in their state Nursing Practice Act.
Common law refers to law that has developed through general customs of accepted behavior in society and is based on justice, reason and common sense. Common law is very fluid. Oftentimes it is dependent on circumstances and facts surrounding previous court decisions called precedents. Cases involving a client's refusal for treatment, for example, are not found in every state. When that happens, the state will look at court decision made in other states for guidance.
Professional Malpractice: The Basics
Malpractice refers to the failure of a person with professional education and skills to act in a reasonable and prudent manner. Negligence (conduct that falls below a standard of care) and malpractice are often used interchangeably. If a nurse performs a procedure that does not meet minimum standards, she may be held negligent. Because she performs this procedure as a professional, her negligence is called malpractice.
Let's take a classic example of a 69 year-old woman in relatively good health, admitted in the hospital for right hip replacement. On the eve before surgery, the client falls while the nurse is assisting her to the bathroom. The client sustains a broken left hip and a mild concussion. She spends additional days in the hospital for neurological observation, bilateral hip replacement and physical therapy.
The following criteria must be present to prove malpractice

Duty owed the patient. This involves both the existence of the duty and the nature of the duty. A valid employment as a nurse validates the existence of a duty. The nature of the duty involves standards of care that define the minimum acceptable practice. The hospital policy and procedure manual on standards of care regarding safety of the elderly patient will be examined in this case.

Breach of the duty of care owed to the patient. The injured party will attempt to prove that the nurse performed the duty below standards for safe nursing practice. The testimony of an expert witness, often a clinical nurse specialist or educator, will be used in court to determine the applicable and acceptable standard of care on a case-by-case basis and to assist the judge and jury in understanding nursing standards of care.

Foreseeability of harm – Refers to the concept that certain events may reasonably be expected to cause specific results. The nurse's critical thinking and judgment will be evaluated .

Causation – This means that there is a direct relationship between the injury and the omission or substandard performance of a duty, and not merely that there is an injury. The fall had resulted in a concussion and another broken hip.
In any case of negligence, the nurse has two forms of liability:

first for the actual acts omitted or committed, and
second, for the harm that resulted from such acts.
Even if others can be shown to be liable for a patient injury, each nurse retains personal accountability for her actions.
The doctrine of respondeat superior (let the master answer) makes employers accountable for the negligence of their employees. Nurses often believe that this doctrine shields them from personal liability. and that the institution may be sued, but not the individual nurse.
However, the injured party has the right to sue both the institution and the nurse. Moreover, under the right of indemnification the institution may sue the nurse for damages paid an injured patient.
Corporate liability, the newest trend, holds that the institution has the responsibility and accountability for maintaining an environment that ensures quality health care delivery for consumers. Issues include negligent hiring and firing, duty to maintain safety in physical environment, and maintenance of a qualified, competent, and adequate staff.
Shield Yourself from Liability
As your professional role continues to evolve and expand with the changes and increasing complexity of the health care system, your liability risk also increases. Malpractice claims with nurses as defendants are expected to rise. A study of cases involving nursing negligence in hospitals from 1988 to 1993 identified the following causes:

Inadequate communication by a nurse to a physician
Inadequate patient assessment,
medication errors
inadequate nursing intervention
inadequate care
unsafe environment
inadequate infection control and
improper use of equipment and products.
Another study of 200 case summaries involving mainly hospitals found 4 major categories:

failure to monitor patients' reactions,
failure to document,
failure to follow standards of care, and
failure to notify a physician
As a nurse you can take several simple measures to protect yourself against liability for negligence doing the following:

Be sure of your competence .
Cultivate the attitude of life long learning.
Document all patient care : Practice defensive documentation Remember: if its not written, it's not done.
Take immediate action over patient disputes or allegations
Take all complaints seriously and follow hospital policy to resolve them.
Check your professional malpractice insurance and make sure it is adequate and suitable for your job.
Check your contract of employment and be familiar with the conditions.
Follow all hospital policies and guidelines.
Make sure your employer or supervisor knows about and authorizes all nursing activities that you undertake.
Inform your employer or supervisor of any additional tasks that become part of your workload.
In short, liability protection is something you practice everyday. You need to make a commitment to two things: Education and Involvement.
How safe is your nursing practice depends greatly on how well you fare on these questions!
How well are you keeping up with the trends in your profession and in health care?
How do you maintain your competence and learn new technical and interpersonal skills?
How involved are you in shaping and developing the policies, procedures and protocols of your institution?
How interested are you in your professional nursing organizations?
Remember , as professionals, we retain personal accountability for our actions. Protect yourself . If you don't, who will?