123 CHAPTER 8 Legal Issues in Nursing and Health Care
SOURCES OF LAW AND NURSING
124 UNIT 2 Current Issues in Health Care
case management, and discharge planning (IOM, 2010).
Legal concerns have been raised about a possible increase in malpractice claims related to hospital-acquired condi- tions. It may be more difficult for a hospital to defend a malpractice claim if “strict liability” is applied to these hospital-acquired events (Vonwinkel, 2008). Strict liabil- ity imposes legal responsibility for damages or injury, even if the person (the hospital in the case of hospital- acquired conditions) is not “strictly” at fault or negligent.
Nursing homes are another highly regulated industry that must meet federal and state requirements to oper- ate. Federal laws have also established rules and regula- tions to ensure the confidentiality of patients’ personal health information (Health Insurance Portability and
Accountability Act, or HIPAA). Several federal laws protect the rights of patients who participate as subjects in research by mandating the creation of institutional review boards and an appropriate informed consent pro- cess. The Federal False Claims Act makes it an offense to submit a false claim to the government for payment of health care services. Furthermore, the person who reports the false or fraudulent claim (often a whistle-blower) is entitled to 15% to 25% of any monetary amount recov- ered by the federal government if the government wins the case in court. Nurses have been the recipients of these
“bounties” in several recent false claim cases in which the federal government recovered several million dol- lars. The Americans with Disabilities Act (ADA) requires health care entities to provide interpreter services and communication devices when patients are unable to effectively communicate their needs or wishes.
Three federal statutes that nurses must be familiar with and clearly understand are discussed in this section.
The list is not comprehensive, but it includes examples of federal laws that directly affect nursing practice.
Many federal laws are relevant to specific health care settings (i.e., mental health, nursing homes, EDs, mater- nity settings). When nurses are knowledgeable about the federal laws applicable to their area of practice, they are able to more effectively advocate for patients in that setting. Unfortunately, most nurses are unfamiliar with health care law and rely on authorities in their employ- ment setting to know what is legal and therefore per- missible. Automatically deferring to administrators or nurse managers about the legality of a particular issue is no longer acceptable behavior for the professional nurse. Each RN must take accountability for knowing the law and understanding how it relates to patient care and nursing practice.
Emergency Medical Treatment and Active Labor Law (COBRA, 42 U.S.C. 1395dd)
This federal statute, often referred to as the “antidump- ing” law, was enacted in 1986 to prohibit the refusal of care for indigent and uninsured patients seeking medical assistance in an ED (Moy, 2012). This law also prohib- its the transfer of unstable patients, including women in labor, from one facility to another. The law states:
“All persons presenting for care must receive the same medical screening examination and be stabilized, regard- less of their financial status or insurance coverage, before discharge or transfer.”
BOX 8-1 CATEGORIES OF HOSPITAL- ACQUIRED CONDITIONS SUBJECT TO NONPAYMENT
1. Foreign object retained after surgery (i.e., instru- ments, surgical sponges)
2. Air embolism
3. Blood incompatibility (blood transfusion error) 4. Stage III and stage IV pressure ulcer development 5. Falls and trauma
• Fractures
• Joint dislocation
• Intracranial injuries
• Crushing injuries
• Burns
• Electric shock
6. Manifestations of poor glycemic control
• Diabetic ketoacidosis
• Nonketotic hyperosmolar coma
• Hypoglycemic coma
• Secondary diabetes with ketoacidosis
• Secondary diabetes with hyperosmolarity 7. Catheter-associated urinary tract infection (UTI) 8. Vascular catheter-associated infection
9. Surgical site infection following:
• Coronary artery bypass graft—mediastinitis
• Bariatric surgery
• Orthopedic procedures
10. Deep vein thrombosis (DVT)/pulmonary embolism (PE)
Source: Centers for Medicare & Medicaid Services (CMS):
Medicare program: changes to the hospital inpatient prospec- tive payment system and fiscal year 2009 rates (final rule), 42 CFR Parts 411, 412, 413, 489 (website). http://edocket.access.
gpo.gov/2008/pdf/E8-17914.pdf. Accessed January 2009.
125 CHAPTER 8 Legal Issues in Nursing and Health Care
The EMTALA is applicable to people coming to non- ED settings, such as urgent care clinics. It even governs the transfer of patients from an inpatient setting to a lower level of care in some parts of the United States (Roberts v. Galen of Virginia, Inc., 1997). Significant penalties can be levied against a facility that violates the EMTALA, including a $25,000 to $50,000 fine (not covered by liability insurance). The federal government also can revoke the facility’s Medicare contract, and this could result in a major loss of revenue for the institu- tion or even insolvency. Many legitimate concerns that nurses have about the discharge or transfer of patients could be promptly addressed if the nurse had a solid understanding of the EMTALA. A recent case illustrates the importance of understanding the EMTALA. In Love v. Rancocas Hospital (2006), a woman was transported by ambulance to the ED after losing consciousness at home. She had a history of hypertension and continued to have high blood pressure readings in the ED. The woman also fell off the bed twice while being monitored, but the ED nurse did not report this to the physician.
The nurse received a discharge order from the physi- cian and sent the woman home in an unstable condi- tion, thus violating the stabilization requirement of the EMTALA. The woman returned 2 days later after expe- riencing a stroke. Understanding the EMTALA is not a daunting task for nurses engaged in the triage and medi- cal screening of patients presenting to the ED or obstet- ric triage department. Nursing journals have published many articles about the EMTALA and the nurse’s role in upholding this statute (Angelini and Mahlmeister, 2005;
Bond, 2008; Caliendo et al, 2004).
Americans with Disabilities Act of 1990 (Public Law No. 101-336, 42 U.S.C. Section 12101)
The intent of this law is to end discrimination against qualified persons with disabilities by removing barriers that prevent them from enjoying the same opportunities available to persons without disabilities. Court cases have established that as a place of public accommodation, a health care facility must provide reasonable accommo- dation to patients (and family members) with sensory disabilities, such as vision and hearing impairment (Abernathy v. Valley Medical Center, 2006; Boyer v. Tift County Hospital, 2008). In another case (Parco v. Paci- fica Hospital, 2007), a nurse was caring for a ventilator- dependent quadriplegic patient who was unable to speak or use his call light. She requested a special pillow
that activated the patient’s call light when he turned his head, but was told that all the pillows were in use.
The patient subsequently experienced three episodes of respiratory distress that he was unable to alert the nurse about, and could only hope that someone would dis- cover his problem before he suffered brain damage or death (Snyder, 2007a). The patient sued for emotional distress and mental anguish. The court affirmed that the ADA requires hospitals to provide assistive devices to patients with communication problems related to a dis- ability. The hospital settled the lawsuit for $295,000.
This statute has relevance for all nurses. As patient advocates, nurses have a legal and ethical duty to pro- vide appropriate patient and family education and to support the process of informed consent. In Parco v.
Pacifica Hospital, the court noted that it was a basic tenet of nursing practice that patients be given the abil- ity to communicate with caregivers. The health care facility must have a policy that defines how it will meet the client’s needs for education and information, when there are vision or hearing disabilities. The policy also describes how a nurse can obtain translators and special types of equipment needed to facilitate communication when there are physical disabilities or language barriers.
Patient Self-Determination Act of 1990; Omnibus Budget Reconciliation Act of 1990 (Public Law No. 101-508, Sections 4206 and 4751)
This federal statute is a Medicare and Medicaid amend- ment intended to support individuals in expressing their preferences about medical treatment and mak- ing decisions about end-of-life care. The law requires all federally funded hospitals to give patients written notice on admission to the health care facility of their decision-making rights and policies regarding advance health care directives in their state and in the institution to which they have been admitted. Patient rights under the Patient Self-Determination Act include the right to:
• Participate in their own health care decisions • Accept or refuse medical treatment
• Make advance health care directives
These choices include collaborating with the physi- cian in formulating “do not resuscitate” (DNR) orders.
Facilities must inquire as to whether the patient already has an advance health care directive, and they must make note of this in the patient’s medical record. The institution must also provide education to their staff about advance health care directives. The law provides
126 UNIT 2 Current Issues in Health Care guidance to nurses who often are in the best position to discuss these issues with the patient (e.g., while com- pleting a comprehensive admission assessment). (Legal considerations related to living wills, durable power of attorney, and DNR orders are discussed in “The Law and Patient Rights,” the last section of this chapter.) Health Insurance Portability and Accountability Act of 1996 (Public Law No. 104-191)
The intent of this law is to ensure confidentiality of the patient’s health information. Legitimate concerns regarding the uses of and release of medical informa- tion, particularly to private entities, such as insurance companies, led to the passage of this law. The intro- duction of electronic medical records has provided additional impetus for introduction of this legislation.
The statute sets guidelines for maintaining the privacy of health data. It provides explicit guidelines for nurses who are in a position to release health information. To maintain confidentiality of the patient’s health infor- mation, all nurses must have a basic understanding of this federal law. Nurses should also take note that the HIPAA confers whistle-blower protection for individ- uals who report in good faith any illegal disclosure of patients’ health. In 2005 a federal statute, The Patient Safety and Quality Improvement Act, was enacted to allow certain disclosures of patient safety data. The law permits a provider to disclose nonidentifiable patient data to a qualified patient safety organization (PSO) for the purpose of analyzing medical errors. The law pro- hibits an accreditation body, such as TJC, from taking any action against a provider who reports patient safety data to an approved PSO (Public Law No. 109-41).
With the continued increase in the number of nurses using social media such as blogs, social networking sites, video sites, and online chat rooms and forums, a patient’s right to privacy is threatened. The National Council of State Boards of Nursing (NCSBN) has pub- lished a brochure, “A nurse’s guide to the use of social media” (NCSBN, 2011a). The publication reviews the benefits and risks of using social media in the workplace or bringing workplace issues to social media sites during free time. The release of private health data, either inad- vertent or intentional, is a violation of the HIPAA and is punishable by significant fines and a term of impris- onment. It may also result in suspension or revoca- tion of the nurse’s license. Civil actions may arise from a violation of patient confidentiality, alleging failure
to maintain security of protected patient health data, unprofessional conduct, and violation of hospital poli- cies and procedures that restrict access to patient infor- mation on a “need to know” basis. Posting photographs or videotapes of patients, or even ostensibly unidentifi- able body parts is expressly forbidden and also violates the American Nurses Association Code of Ethics for Nurses (2001, reaffirmed 2010). Discussing conflicts with managers or coworkers on social networking sites or posting unauthorized photos or videos of profes- sional colleagues opens the nurse to claims of invasion of privacy, slander, intentional infliction of harm, and emotional distress, among other things. Further risks to one’s livelihood and future employment as a nurse are presented when the nurse publicly airs dissatisfaction with his or her employer or discusses problems at work that make the employer vulnerable to ridicule or loss of reputation in the community or larger health care arena.