Choosing a Leadership Style (Marquis & Huston, 2012)
The 51 Nurse Practice Acts (one for each state and the District of Columbia) define and limit the practice of nursing, thereby stating what constitutes authorized practice as well as
what exceeds the scope of authority.
Administrative agencies, the third source of law, are given authority to act by the legislative bodies and create rules and regulations that enforce statutory laws. For example, State Boards of Nursing are administrative agencies set up to implement and enforce the state Nurse Practice Act by writing rules and regulations and by conducting investigations and hearings to ensure the law’s enforcement. Administrative laws are valid only to the extent that they are within the scope of the authority granted to them by the legislative body.
The fourth source of law is court decisions. Judicial or decisional laws are made by the courts to interpret legal issues that are in dispute. Depending on the type of court involved, judicial or decisional law may be made by a single justice, with or without a jury, or by a panel of justices. Generally, initial trial courts have a single judge or magistrate, intermediary appeal courts have three justices, and the highest appeal courts have nine justices.
Types of Laws and Courts
Although most nurses worry primarily about being sued for malpractice, they may actually be involved in three different types of court cases: criminal, civil, and administrative (Table 5.2). The court in which each is tried, the burden of proof required for conviction, and the resulting punishment associated with each is different.
In criminal cases, the individual faces charges generally filed by the state or federal attorney general for crimes committed against an individual or society. In criminal cases, the individual is always presumed to be innocent unless the state can prove his or her guilt beyond a reasonable doubt. Incarceration and even death are possible consequences for being found guilty in criminal matters. Nurses found guilty of intentionally administering fatal doses of drugs to patients would be charged in a criminal court.
In civil cases, one individual sues another for money to compensate for a perceived loss. The burden of proof required to be found guilty in a civil case is described as a preponderance of the evidence. In other words, the judge or jury must believe that it was more likely than not that the accused individual was responsible for the injuries of the complainant. Consequences of being found guilty in a civil suit are monetary. Most malpractice cases are tried in civil court.
In administrative cases, an individual is sued by a state or federal governmental agency assigned the responsibility of implementing governmental programs. State Boards of Nursing are one such governmental agency. When an individual violates the state Nurse Practice Act, the Boards of Nursing may seek to revoke licensure or institute some form of discipline. The burden of proof in these cases varies from state to state.
When the clear and convincing standard is not used, the preponderance of the evidence standard may be used.
Clear and convincing involves higher burdens of proof than preponderance of evidence but a significantly
lower burden of proof than beyond a reasonable doubt.
The burden of proof required for conviction as well as the type of punishment given differs in criminal, civil, and administrative cases.
LEARNING EXERCISE
5.1
Both Guilty and Not Guilty
T
hink of celebrated cases where defendants have been tried in both civil and criminal courts. What were the verdicts in both cases? If the verdicts were not the same, analyze why this happened. Do you agree that taking away an individual’s personal liberty by incarceration should require a higher burden of proof than assessing for monetary damages?A S S I G N M E N T:
Also complete a literature search to see if you can find cases where a nurse faced both civil and administrative charges. Were you able to find cases where the nurse was found guilty in a civil court but did not lose his or her license? Did you find the opposite?
Legal Doctrines and the Practice of Nursing
Two important legal doctrines frequently guide all three courts in their decision making. The first of these, stare decisis, means to let the decision stand. Stare decisis uses precedents as a guide for decision making.
This doctrine gives nurses insight into ways that the court has previously fixed liability in given situations.
However, the nurse must avoid two pitfalls in determining if stare decisis should apply to a given situation.
Precedent is often used as a guide for legal decision making.
The first is that the previous case must be within the jurisdiction of the court hearing the current case. For example, a previous Florida case decided by a state court does not set precedent for a Texas appellate court.
Although the Texas court may model its decision after the Florida case, it is not compelled to do so. The lower courts in Texas, however, would rely on Texas appellate decisions.
The other pitfall is that the court hearing the current case can depart from the precedent and set a landmark decision. Landmark decisions generally occur because societal needs have changed, technology has become more advanced, or following the precedent would further harm an already injured person. Roe v. Wade, the 1973 landmark decision to allow a woman to seek and receive a legal abortion during the first two trimesters of pregnancy, is an example (Legal Information Institute, n.d.). Given the influence of politics and varying societal views about abortion, this precedent could change again at some point in the future.
The second doctrine that guides courts in their decision making is res judicata, which means a “thing or matter settled by judgment.” It applies only when a competent court has decided a legal dispute and when no further appeals are possible. This doctrine keeps the same parties in the original lawsuit from retrying the same issues that were involved in the first lawsuit.
When using doctrines as a guide for nursing practice, the nurse must remember that all laws are fluid and subject to change. An example of changing law regarding professional nursing occurred in an Illinois
Supreme Court more than a decade ago when the law finally recognized nursing as an independent profession with its own unique body of knowledge. In this case (Sullivan v. Edward Hospital, 2004), the Illinois Supreme Court decided that physicians could not serve as expert witnesses regarding nursing standards (Find Law for
Legal Professionals, 2016). This demonstrates how the law is ever-evolving. Laws cannot be static; they must change to reflect the growing autonomy and responsibility desired by nurses. It is critical that all nurses be aware of and sensitive to rapidly changing laws and legislation that affect their practice. Nurses must also recognize that state laws may differ from federal laws and that legal guidelines for nursing practice in the organization may differ from state or federal guidelines.
Boundaries for practice are defined in the Nurse Practice Act of each state. These acts are general in most states to allow for some flexibility in the broad roles and varied situations in which nurses practice. Because this allows for some interpretation, many employers have established guidelines for nursing practice in their own organization. These guidelines regarding scope of practice cannot, however, exceed the requirements of the state Nursing Practice Acts. Managers need to be aware of their organization’s specific practice
interpretations and ensure that subordinates are aware of the same and follow established practices. All nurses must understand the legal controls for nursing practice in their state.
Professional Negligence
Historically, physicians were the health-care providers most likely to be held liable for nursing care. As nurses have gained authority, autonomy, and accountability, they have assumed responsibility, accountability, and liability for their own practice. As roles have expanded, nurses have begun performing duties traditionally reserved for medical practice. As a result of an increased scope of practice, many nurses now carry individual malpractice insurance. This is a double-edged sword. Nurses need malpractice insurance in basic practice as well as in expanded practice roles. They do incur a greater likelihood of being sued, however, if they have malpractice insurance, because injured parties will always seek damages from as many individuals with financial resources as possible.
In addition, some nurses count on their employer-provided professional liability policies to protect them from malpractice claims, but such policies often have limitations. For example, employers may not provide coverage once an employee has terminated his or her employment, even if the situation which led to the complaint occurred while the nurse was employed there and some employer-provided policies have
inadequate limits of liability for the individual employee. Nurses then are advised to obtain their own personal liability policy.
In addition, Neil (2015) notes that without personal nursing malpractice insurance, nurses are dependent on the attorney representing the facility and their first priority is to defend the facility. During a lawsuit, the nurse needs an attorney dedicated solely to his or her own interests.
Unfortunately, both the enhanced role of nurses and the increase in the number of insured nurses have led to a great increase in the number of liability suits seeking damages from nurses as individuals over the past few decades. In particular, malpractice has become of great concern to advanced practice nurses such as nurse practitioners and nurse midwives. Nurse practitioners are not only paying high costs for their insurance premiums but they generally are also subject to strict professional liability (malpractice) insurance requirements.
Elements of Malpractice
All liability suits involve a plaintiff and a defendant. In malpractice cases, the plaintiff is the injured party and the defendant is the professional who is alleged to have caused the injury. Negligence is the omission to do something that a reasonable person, guided by the considerations that ordinarily regulate human affairs, would do—or as doing something that a reasonable and prudent person would not do. Reasonable and prudent generally means the average judgment, foresight, intelligence, and skill that would be expected of a person with similar training and experience. Malpractice—the failure of a person with professional training to act in a reasonable and prudent manner—also is called professional negligence. Five elements must be present for a professional to be held liable for malpractice (Table 5.3).
“Medical malpractice is a lawsuit rooted in professional negligence. It often requires an act or omission by a healthcare provider in which the conduct (usually the treatment provided or withheld) falls below the accepted standard of practice in the community. The remaining component is damage—some injury or harm to the patient.” (Silberman, 2015, p. 312)
First, a standard of care must have been established that outlines the level or degree of quality considered adequate by a given profession. Standards of care outline the duties a defendant has to a plaintiff or a nurse to a client. These standards represent the skills and learning commonly possessed by members of the profession and generally are the minimal requirements that define an acceptable level of care. Standards of care, which guarantee clients safe nursing care, include organizational policy and procedure statements, job descriptions, and student guidelines.
Second, after the standard of care has been established, it must be shown that the standard was violated—
there must have been a breach of duty. This breach is shown by calling other nurses who practice in the same specialty area as the defendant to testify as expert witnesses.
Third, the nurse must have had the knowledge or availability of information that not meeting the standard of care could result in harm. This is called foreseeability of harm. If the average, reasonable person in the defendant’s position could have anticipated the plaintiff’s injury as a result of his or her actions, then the plaintiff’s injury was foreseeable. Ignorance is not an excuse, but lack of information may have an effect on the ability to foresee harm.
Being ignorant is not a justifiable excuse for malpractice, but not having all the information in a situation may impede one’s ability to foresee harm.
For example, a charge nurse assigns another registered nurse (RN) to care for a critically ill patient. The assigned RN makes a medication error that injures the patient in some way. If the charge nurse had reason to believe that the RN was incapable of adequately caring for the patient or failed to provide adequate
supervision, foreseeability of harm is apparent, and the charge nurse also could be held liable. If the charge nurse was available as needed and had good reason to believe that the RN was fully capable, he or she would be less likely to be held liable.
A number of malpractice cases have hinged on whether the nurse was persistent enough in attempting to notify health-care providers of changes in a patient’s conditions or to convince the providers of the
seriousness of a patient’s condition. Because the nurse has foreseeability of harm in these situations, the nurse who is not persistent can be held liable for failure to intervene because the intervention was below what was expected of him or her as a patient advocate.
The fourth element is that failure to meet the standard of care must have the potential to injure the patient.
There must be a provable correlation between improper care and injury to the patient.
The final element is that actual patient injury must occur. This injury must be more than transitory. The plaintiff must show that the action of the defendant directly caused the injury and that the injury would not have occurred without the defendant’s actions. It is important to remember here, however, that not taking action is an action.
LEARNING EXERCISE
5.2
Who Is Responsible for Harm to This Patient? You Decide
Y
ou are a surgical nurse at Memorial Hospital. At 4 PM, you receive a patient from the recovery room who has had a total hip replacement. You note that the hip dressings are saturated with blood but are aware that total hip replacements frequently have some postoperative oozing from the wound. There is an order on the chart to reinforce the dressing as needed, and you do so. When you next check the dressing at 6 PM, you find the reinforcements saturated and drainage on the bed linen. You call the physician and tell her that you believe the patient is bleeding too heavily. The physician reassures you that the amount of bleeding you have described is not excessive but encourages you to continue to monitor the patient closely. You recheck the patient’s dressings at 7 and 8 PM. You again call the physician and tell her that the bleeding still looks too heavy. She again reassures you and tells you to continue to watch the patient closely. At 10 PM, the patient’s blood pressure becomes nonpalpable, and she goes into shock. You summon the doctor, and she comes immediately.A S S I G N M E N T:
What are the legal ramifications of this case? Using the components of professional negligence outlined in Table 5.3, determine who in this case is guilty of malpractice. Justify your answer. At what point in the scenario should each character have altered his or her actions to reduce the probability of a negative outcome?
Avoiding Malpractice Claims
Interactions between nurses and clients that are less business-like and more personal are more satisfying to both. It has been shown that despite technical competence, nurses who have difficulty establishing positive interpersonal relationships with patients and their families are at greater risk for being sued. Communication that proceeds in a caring and professional manner has been shown repeatedly to be a major reason that people do not sue despite adequate grounds for a successful lawsuit.
In addition, many experts have suggested a need to create safer environments for care so that less patients are injured during the course of their care. This has especially been true since the release of To Err Is Human by the Institute of Medicine (IOM, 1999), a congressionally chartered independent organization. The IOM report indicated that errors are simply a part of the human condition and that the health-care system itself needs to be redesigned so that fewer errors can occur. For example, even though there are unit-dose systems in play, nurse-leaders often look the other way when staff pour all the medications into a soufflé cup and hand them to patients, thus increasing the possibility of medication errors.
Strategies recommended by The Joint Commission, in its 2005 seminal report, Healthcare in the Crossroads (Joint Commission on Accreditation of Healthcare Organizations, 2005), can be viewed in Display 5.2. The three major areas of focus in the call to action are to prevent injuries, improve communication, and examine mechanisms for injury compensation.