Conclusion
DISPLAY 5.4 Common Causes of Professional Nursing License Suspension or Revocation
Professional negligence
Practicing medicine or nursing without a license
Obtaining a nursing license by fraud or allowing others to use your license
Felony conviction for any offense substantially related to the function or duties of a registered nurse Participating professionally in criminal abortions
Not reporting substandard medical or nursing care
Providing patient care while under the influence of drugs or alcohol Giving narcotic drugs without an order
Falsely holding oneself out to the public or to any health-care practitioner as a “nurse practitioner”
Typically, suspension and revocation proceedings are administrative. Following a complaint, the Board of Nursing completes an investigation. Most of these investigations reveal no grounds for discipline. If the investigation supports the need for discipline, nurses are notified of the charges and are allowed to prepare a defense. At the hearing, which is very similar to a trial, the nurse is allowed to present evidence. Based on the evidence, an administrative law judge makes a recommendation to the State Board of Nursing, which makes the final decision. The entire process, from complaint to final decision, may take up to 2 years or longer.
Some professionals have advocated shifting the burden of licensure, and thus accountability, from individual practitioners to an institution or agency. Proponents for this move believe that institutional licensure would provide more effective use of personnel and greater flexibility. Most professional nursing organizations oppose this move strongly because they believe that it has the potential for diluting the quality of nursing care.
An alternative to institutional licensure has been the development of certification programs by the American Nurses Association (ANA). By passing specifically prepared written examinations, nurses are able to qualify for certification in most nurse practice areas. This voluntary testing program represents professional
organizational certification. In addition to ANA certification, other specialties, such as cardiac care, offer their own certification examinations. Many nursing leaders today strongly advocate professional certification as a means of enhancing the profession. However, certification is really only helpful in determining a nurse’s continued competence if that nurse is functioning in the areas of his or her certified competence (Huston, 2017a).
Integrating Leadership Roles and Management Functions in Legal and Legislative Issues
Legislative and legal controls for nursing practice have been established to clarify the boundaries of nursing practice and to protect clients. The leader uses established legal guidelines to role model nursing practice that meets or exceeds accepted standards of care. Leaders also are role models in their efforts to expand expertise in their field and to achieve specialty certification. Perhaps the most important leadership roles in law and legislation are those of vision, risk taking, and energy. The leader is active in professional organizations and groups that define what nursing is and what it should be in the future. This is an internalized responsibility that must be adopted by many more nurses if the profession is to be a recognized and vital force in the political arena.
Management functions in legal and legislative issues are more directive. Managers are responsible for seeing that their practice and the practice of their subordinates are in accord with current legal guidelines. This requires that managers have a working knowledge of current laws and legal doctrines that affect nursing practice. Because laws are not static, this is an active and ongoing function. The manager has a legal obligation to uphold the laws, rules, and regulations affecting the organization, the patient, and nursing practice.
Managers have a responsibility to be fair and nondiscriminatory in dealing with all members of the workforce, including those whose culture differs from their own. The effective leader goes beyond merely preventing discriminatory charges and instead strives to develop sensitivity to the needs of a culturally diverse staff.
The integrated leader-manager reduces the personal risk of legal liability by creating an environment that prioritizes patient needs and welfare. In addition, caring, respect, and honesty as part of nurse–patient relationships are emphasized. If these functions and roles are truly integrated, the risks of patient harm and nursing liability are greatly reduced.
KEY CONCEPT
Sources of law include constitutions, statutes, administrative agencies, and court decisions.
The burden of proof required to be found guilty and the punishment for the crime varies significantly between criminal, civil, and administrative courts.
Nurse Practice Acts define and limit the practice of nursing in each state.
Professional organizations generally espouse standards of care that are higher than those required by law. These voluntary controls often are forerunners of legal controls.
Legal doctrines such as stare decisis and res judicata frequently guide courts in their decision making.
Currently, licensing for nurses is a responsibility of State Boards of Nursing or State Boards of Nurse Examiners. These state boards also provide discipline as necessary.
Some professionals have advocated shifting the burden of licensure, and thus accountability, from individual practitioners to an institution or agency. Many professional nursing
organizations oppose this move.
Malpractice or professional negligence is the failure of a person with professional training to act in a reasonable and prudent manner. Five components must be present for an individual to be found guilty of malpractice.
Employers of nurses can now be held liable for an employee’s acts under the concept of vicarious liability.
Each person, however, is liable for his or her own tortuous conduct.
Managers are not automatically held liable for all acts of negligence on the part of those they supervise, but they may be held liable if they were negligent in supervising those employees at the time that they committed the negligent acts.
Although professional negligence is considered to be an unintentional tort, assault, battery, false imprisonment, invasion of privacy, defamation, and slander are intentional torts.
Consent can be informed, implied, or expressed. Nurses need to understand the differences between these types of consents and use the appropriate one.
Although the patient owns the information in a medical record, the actual record belongs to the facility that originally made it and is storing it.
It has been shown that despite good technical competence, nurses who have difficulty
establishing positive interpersonal relationships with clients and their families are at greater risk for being sued for malpractice.
Each nurse should be aware of how laws such as Good Samaritan immunity or legal access to incident reports are implemented in the state in which they live.
New legislation pertaining to confidentiality (HIPAA) and patient rights (e.g., PSDA) continues to shape nurse–client interactions in the health-care system.
Additional Learning Exercises and Applications
LEARNING EXERCISE
5.7
Where Does Your Responsibility Lie?
M
rs. Shin is a 68-year-old patient with liver cancer. She has been admitted to the oncology unit at Memorial Hospital. Her admitting physician has advised chemotherapy, even though she believes that there is little chance of it working. The patient asks her doctor, in your presence, if there is an alternativetreatment to chemotherapy. She replies, “Nothing else has proved to be effective. Everything else is quackery, and you would be wasting your money.” After the doctor leaves, the patient and her family ask you if you know anything about alternative treatments. When you indicate that you do have some current literature available, they beg you to share your information with them.
A S S I G N M E N T:
What do you do? What is your legal responsibility to your patient, the doctor, and the hospital?
Using your knowledge of the legal process, the Nurse Practice Act, patients’ rights, and legal precedents (look for the case Tuma v. Board of Nursing, 1979; The Law, Science & Public Health Law, n.d.), explain what you would do and defend your decision.
LEARNING EXERCISE
5.8
Legal Ramifications for Exceeding One’s Duties
Y
ou have been the evening charge nurse in the emergency department at Memorial Hospital for the last 2 years. Besides yourself, you have two LVNs and four RNs working in your department. Your normalon duty during the weekend.
It has become apparent that one of the LVNs, Maggie, resents the recently imposed limitations of LVN duties because she has had 10 years of experience in nursing, including a tour of duty as a medic in the first Gulf War. The emergency department physicians admire her and are always asking her to assist them with any minor wound repair. Occasionally, she has exceeded her job description as an LVN in the hospital, although she has done nothing illegal of which you are aware. You have given her satisfactory performance evaluations in the past, even though everyone is aware that she sometimes pretends to be a “junior
physician.” You also suspect that the physicians sometimes allow her to perform duties outside her licensure, but you have not investigated this or actually seen it yourself.
Tonight, you come back from supper and find Maggie suturing a deep laceration while the physician looks on. They both realize that you are upset, and the physician takes over the suturing. Later, the doctor comes to you and says, “Don’t worry! She does a great job, and I’ll take the responsibility for her actions.”
You are not sure what you should do. Maggie is a good employee, and taking any action will result in unit conflict.
A S S I G N M E N T:
What are the legal ramifications of this case? Discuss what you should do, if anything. What responsibility and liability exist for the physician, Maggie, and yourself? Use appropriate rationale to support your decision.
LEARNING EXERCISE
5.9
To Float or Not to Float
Y
ou have been an obstetrical staff nurse at Memorial Hospital for 25 years. The obstetrical unit census has been abnormally low lately, although the patient census in other areas of the hospital has been extremely high. When you arrive at work today, you are told to float to the thoracic surgery unit. This is a specialized unit, and you feel ill prepared to work with the equipment on the unit and the type of patients who are there. You call the staffing office and ask to be reassigned to a different area. You are told that the entire hospital is critically short staffed, that the thoracic surgery unit is four nurses short, and that you are at least as well equipped to handle that unit as the other three staff who also are being floated. Now, your anxiety level is even higher. You will be expected to handle a full RN patient load. You also are aware that more than half of the staff on the unit today will have no experience in thoracic surgery. You consider whether to refuse to float. You do not want to place your nursing license in jeopardy, yet you feel conflicting obligations.A S S I G N M E N T:
To whom do you have conflicting obligations? You have little time to make this decision. Outline the steps that you use to reach your final decision. Identify the legal and ethical ramifications that may result from your decision. Are they in conflict?
LEARNING EXERCISE
5.10
Is It Your Responsibility to Force the Surgeon to See His Patient? (Marquis & Huston, 2012)
J
immy Smith is a 19-year-old male who had a severe compound fracture of his tibia today in football practice. He returned from the surgery to set and cast the leg at 4 PM today. The evening shift reported that he was having quite a bit of swelling from the severe trauma that accompanied the fracture, but that the toes on the effected leg were warm and he had good pedal pulses.By the time you received report tonight at 11 PM, and went to check on Jimmy, you felt that his pedal pulses were slightly diminished and his foot was slightly cool to the touch. By 2 AM, you felt the swelling had increased slightly and his toes were quite cool although they were not blue.
You phoned his physician and he was quite upset to be awakened in the middle of the night. He
instructed you to put ice on the cast and to elevate Jimmy’s leg higher to reduce the swelling. He promised you that he would see Jimmy first thing in the morning. As the night wears on you become increasingly alarmed. By the time the night supervisor arrived at 4 AM, you were so concerned that you asked her to check the casted leg. The supervisor rushed out of the room and said, “The circulation in this boy’s leg is severely compromised, why haven’t you gotten the doctor here to cut the cast?”
A S S I G N M E N T:
Have you committed malpractice? Has the doctor? What is the nurse’s responsibility in reporting a patient condition’s to their physician? Examine the elements of malpractice. If there is permanent damage to Jimmy’s leg, who will be liable for the failure to take action soon enough to prevent injury?
R E F E R E N C E S
Huston, C. J. (2017a). Assuring provider competence through licensure, continuing education and
certification. In C. J. Huston (Ed.), Professional issues in nursing: Challenges & opportunities (4th ed., pp. 317–331). Philadelphia, PA: Wolters Kluwer.
Huston, C. J. (2017b). Diversity in the nursing workforce. In C. J. Huston (Ed.), Professional issues in nursing: Challenges & opportunities (4th ed., pp. 109–123). Philadelphia, PA: Wolters Kluwer.
Huston, C. J. (2017c). Unlicensed assistive personnel and the registered nurse. In C. J. Huston (Ed.), Professional issues in nursing: Challenges & opportunities (4th ed., pp. 96–108). Philadelphia, PA:
Wolters Kluwer.
Institute of Medicine. (1999). To err is human: Building a safer health system. Retrieved June 26, 2013, from http://www.iom.edu/~/media/Files/Report%20Files/1999/To-Err-is-
Human/To%20Err%20is%20Human%201999%20%20report%20brief.pdf
Joint Commission on Accreditation of Healthcare Organizations. (2005). Health care in the crossroads:
Strategies for improving the medical liability system and preventing patient injury. Oakbrook Terrace, IL: Author.
Legal Information Institute. (n.d.). Supreme Court. Roe v. Wade. Retrieved August 1, 2016, from https://www.law.cornell.edu/supremecourt/text/410/113
Marquis, B., & Huston, C. (2012). Leadership and management tools for the new nurse (1st ed.).
Philadelphia, PA: Lippincott Williams & Wilkins.
MedlinePlus. (2016). Advance directives. Retrieved January 29, 2016, from http://www.nlm.nih.gov/medlineplus/advancedirectives.html
Neil, H. P. (2015). Legally: What is quality care? Understanding nursing standards. Medsurg Nursing, 24(1),14–15.
Rutledge, D. N., & Schub, E. (2015). Restraints: Minimizing usage in skilled nursing facilities. Ipswich, MA:
CINAHL Information Systems.
Silberman, M. J. (2015). Back to basics: The importance of patient respect. AANA Journal, 83(5),312–315.
The Law, Science & Public Health Law. (n.d.). Nurse disciplined for telling patient about alternative treatments (court reverses)—Tuma v. Board of Nursing, 100 Idaho 74, 593 P.2d 711 (Idaho Apr 17, 1979). Retrieved (August 2, 2016)
http://biotech.law.lsu.edu/cases/pro_lic/Tuma_v_Board_of_Nursing.htm
6
Patient, Subordinate, Workplace, and Professional Advocacy
. . . to see what is right, and not do it, is want of courage, or of principles.
—Confucius . . . in our imperfect state of conscience and enlightenment, publicity and the collision resulting from publicity are the best guardians of the interest in the sick.
—Florence Nightingale
This chapter addresses:
BSN Essential II: Basic organizational and systems leadership for quality care and patient safety BSN Essential V: Health-care policy, finance, and regulatory environments
BSN Essential VI: Interprofessional communication and collaboration for improving patient health outcomes
BSN Essential VIII: Professionalism and professional values MSN Essential II: Organizational and systems leadership MSN Essential VI: Health policy and advocacy
AONE Nurse Executive Competency II: Knowledge of the health-care environment AONE Nurse Executive Competency III: Leadership
AONE Nurse Executive Competency IV: Professionalism ANA Standard of Professional Performance 7: Ethics
ANA Standard of Professional Performance 8: Culturally congruent cractice ANA Standard of Professional Performance 9: Communication
ANA Standard of Professional Performance 10: Collaboration ANA Standard of Professional Performance 11: Leadership ANA Standard of Professional Performance 14: Quality of practice ANA Standard of Professional Performance 16: Resource utilization ANA Standard of Professional Performance 17: Environmental health QSEN Competency: Patient-centered care
QSEN Competency: Teamwork and collaboration
The learner will:
differentiate between the manager’s responsibility to advocate for patients, for subordinates, for the organization, for the profession, and for self
identify values central to advocacy
differentiate between controlling patient choices and assisting patients to choose select an appropriate response that exemplifies advocacy in given situations
identify entry points for user engagement in the health-care system as well as strategies for patient and family engagement in health care
identify how the Patient’s Bill of Rights protects patients describe ways a manager can advocate for subordinates
identify ways individual nurses can become advocates for the profession identify both the risks and potential benefits of becoming a whistleblower
specify both direct and indirect strategies to influence legislation that promotes advocacy describe strategies nurses can use to successfully interact with the media