Outline Health Care Law Concept # 58
Reading: Potter/Perry Chap. 23, Cherry/Jacob Chap. 8, Giddens Chap. 58
Student Learning Outcomes
- Define the concept. Health Care Law
- Describe the legal obligations and role of the nurse regarding federal and state laws that affect health care.
- Explain the legal concepts of standard of care and informed consent.
- Discuss the application of health care law to nursing and health care.
- List elements needed to establish negligence.
Definition: Health care law
- Health care law is the collection of laws that have a direct impact on the delivery of health care or on the relationships among those in the business of health care or between the providers and the recipients of health care.
Health Care Law – interrelated concepts
- Fundamental concept for all health care professionals and health care–related entities
Scope of Concept
- Legislation is the process of introducing, adopting, changing, or repealing law.
- Regulation is the process of putting laws into action through the establishment of rules.
- Litigation is the process of seeking help through the courts to address a perceived wrong.
Legal Limits of Nursing
- Sources of law:
- Statutory law (Nurse Practice Act)
- Criminal law (felonies or misdemeanors)
- Civil law (nursing negligence/ malpractice)
- Regulatory law (administrative law)
- Common law (judicial decisions)
- Standards of care (minimum accepted)
- Legal guidelines for defining nursing practice and identifying the minimum acceptable nursing care
- Best known comes from the American Nurses Association (ANA)
- Set by state and federal laws that govern where nurses work
- Joint Commission requires policies and procedures (P&Ps).
Federal Statutory Issues in Nursing Practice
Patient Protection and Affordable Care Act (PPACA)
Consumer rights and protections
Affordable health care coverage
Federal Statutory Issues in Nursing Practice (cont.)
Increased access to care
Stronger Medicare to improve care for those most vulnerable in our society
Americans with Disabilities Act (ADA)
- Protects rights of people with physical or mental disabilities
Emergency Medical Treatment and Active Labor Act
- When a patient presents to an emergency department, they must be treated
Mental Health Parity Act as Enacted Under PPACA
- Strengthens mental health services
Advance directives
- Living wills – written documents direct treatment in accordance with patient’s wishes in the event of terminal illness or condition
- Health care proxies or durable power of attorney for health care – legal document designates a person to make health care decisions when patient cannot make decisions on their own. Based on patient’s wishes.
Uniform Anatomical Gift Act
Health Insurance Portability and Accountability Act (HIPAA)
Health Information Technology Act (HITECH)
Restraints
- only to ensure safety of patient or others when less restrictive interventions are not successful
- written order of Physician
State Statutory Issues in Nursing Practice
- Licensure
- Good Samaritan Laws
- Public Health Laws
- The Uniform Determination of Death Act
- Autopsy
- Death with Dignity or Physician-Assisted Suicide
Civil and Common Law Issues in Nursing Practice
- Tort (civil wrong against person or property)
- Intentional (willful acts on another)
- Assault (fear of harm, no contact)
- Battery (touching without consent)
- False imprisonment (unjustified restraint)
- Quasi-intentional torts
- Invasion of privacy
- Defamation of character
- Slander
- Libel
- Unintentional torts
- Negligence
- Malpractice: must meet Nurse owed a duty,
Nurse did not carry out or breached duty, patient was
Injured and failure to carry out duty caused injury.
Common Sources of Negligence
- Failure to assess or monitor, making an NDx.
- Failure to use, calibrate, replace equipment
- Document care and evaluation of care in a timely manner
- Notify health care provider of change in status
- Failure to implement NEW or existing orders
- Failure to follow six rights of medication adm.
- Failure to convey discharge instructions to patient or family
- Failure to convey discharge instructions to patient or family
- Failure to ensure patient safety, especially those with history of falling, sedated, frail, mentally impaired or get up at night.
- Failure to follow policies or procedures
- Failure to properly delegate and supervise
Consent
- Consent form
- Must be signed
- Informed consent
- Agreement to allow care based on full disclosure of risks, benefits, alternatives, and consequences of refusal
- The nurse’s signature as a witness to the consent means that the patient voluntarily gave consent, the patient’s signature is authentic, and the patient appears to be competent to give consent
Who can consent?
- Adults – emergencies
- Minors – Emancipated ( minor includes; those
Designated by court order,
Married/divorced/widowed, active military)
-Unemancipated (minors if pregnant, or
Pregnant related conditions, minor
Parent, STI, substance abuse, mental health
Termination of Pregnancy or Abortion Issues
1973 Roe v. Wade
- U.S. Supreme Court ruled that there is a fundamental right to privacy, which includes a woman’s right to have an abortion.
1989 Webster v. Reproductive Health Services
- Some states require viability tests if the fetus is more than 28 weeks’ gestational age.
Nursing Students
You are liable if your actions cause harm to patients, as is your instructor, hospital, and college/university.
You are expected to perform as a professional when rendering care.
You must separate your student nurse role from your work as a certified nursing assistant (CNA).
Malpractice Insurance
A contract between the nurse and the insurance company
Provides a defense when a nurse is in a lawsuit involving negligence or malpractice
Nurses covered by institution’s insurance while working
Abandonment and Assignment Issues
Short staffing
Legal problems occur if an inadequate number of nurses will provide care.
Floating
Based on census load and patient acuities.
Health care providers’ orders
Nurses follow orders unless they believe an order is given in error or is harmful.
Risk Management and Quality Assurance
A system of ensuring appropriate nursing care that attempts to identify potential hazards and
eliminate them before harm occurs
Steps involved:
- Identify possible risks
- Analyze risks
- Act to reduce risks
- Evaluate steps taken
One tool used in risk management is the incident report or occurrence report
Occurrence reporting
- Serves as a database for further investigation
- Alerts risk management to a potential claim situation
Documentation
TJC’s Universal Protocols
Professional involvement