LAWS

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Nurse Licensure Compacts

Several states are considering nurse licensure compacts, agree- ments between states in which a nurse licensed in one can practice in another without obtaining an additional license (Fig. 3-1). Under this agreement, the nurse acknowledges that he or she is subject to each state’s nurse practice act and discipline. Advantages include the following:

• Simplifies the licensing process and removes barriers, thus increasing employability and access to nursing care

• Is more cost effective than multiple licensing fees

• Decreases barriers for nurses who live in one state and want to work in another nearby

• Reduces the need for duplicate listings of nurses work- ing in more than one state for disaster planning and preparedness or other times of need for qualified nurs- ing services

• Facilitates a cost-effective alternative when a nurse is employed to provide telenursing, health triage, or infor- mation from his or her state through electronic or tele- phonic access to residents in another state. More than 1 million Americans currently are estimated to have access to a nurse through an 800 number (Hutcherson

& Williamson, 1999).

• Responds to the health care delivery trend in which nurses are employed in small hospitals or satellite agencies that have merged with multistate health care systems

ID

UT CO

AZ NM

TX ND

SD

NE IA

WI

AR MS

TN SC

NC

VA MD

DE NJ

NH ME

KY

Pending Implementation RN & LPN/VN

APRN (Advanced Practice RN)

FIGURE 3-1

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Status of Nurse Licensure Compacts by state as of January 2007. (From https://www.

ncsbn.org/158.htm)

BOX 3-1 ● Scope of Nursing Practice as Defined in Sample Nurse Practice Act

The practice of nursing means the performance of services provided for purposes of nursing diagnosis and treatment of human responses to actual or potential health problems consistent with educational preparation. Knowledge and skill are the basis for assessment, analysis, planning, intervention, and evaluation used in the promotion and maintenance of health and nursing management of illness, injury, infirmity, restoration of optional function, or death with dignity. Practice is based on understanding the human condition across the human life span and understanding the relationship of the individual within the environment. This practice includes execution of the medical regime including the administration of medications and treatments prescribed by any person authorized by state law to so prescribe.

From Oklahoma Nursing Practice Act, 2001. Oklahoma Statutes, Title 59, Chapter 12, Section 567.1 et seq. http://www.ncsbn.org/public/regulation/

nursing_practice_acts.htm.

licensing examinations, (4) issuing and transferring nursing licenses, (5) investigating allegations against nurses licensed in that state, and (6) disciplining nurses who violate legal and ethical standards. The state’s board of nursing is responsible for suspending and revoking licenses and reviewing applications asking for recip- rocity(licensure based on evidence of having met licens- ing criteria in another state). A license in one state does not give a person a right to automatic licensure in another.

The traditional method of separate licenses for each state of practice provides a legal loophole when one state revokes a nurse’s license as a disciplinary measure. Some nurses move to the state where their license is still active and continue to work. Legislation has been enacted, how- ever, to track incompetent practitioners. Since 1989, the names of licensed health care workers who have been dis- ciplined by hospitals, courts, licensing boards, profes- sional associations, insurers, and peer review committees are submitted to a computerized National Practitioner Data Bank. The information is made available nation- wide to licensing boards and health care facilities that hire nurses, should they choose to check it. Under the nurse licensure compact, the state of licensure and the state where the client was located during an incident may take disciplinary action against a nurse working under a multistate agreement. Some employers also are requiring that potential and current employees undergo a state or federal background check and drug screen.

Common Law

Common law(decisions based on prior similar cases) is also known as judicial law.It is based on the principle of stare decisis(“let the decision stand”), in which prior outcomes guide decisions in other jurisdictions dealing with com- parable circumstances. Common law refers to litigation that falls outside the realm of constitutional, statutory, and administrative laws.

Criminal Laws

Criminal laws(penal codes that protect all citizens from peo- ple who pose a threat to the public good) are used to pros- ecute those who commit crimes. The state represents “the people” when prosecuting those accused of crimes. Crimes are either misdemeanors or felonies. Amisdemeanoris a minor criminal offense (e.g., shoplifting). If a person is con- victed of a misdemeanor, a small fine, a short period of incarceration, or both may be levied. The fine is paid to the state. A felonyis a serious criminal offense, such as murder, falsifying medical records, insurance fraud, and stealing narcotics. Conviction is punishable by a lengthy prison term or even execution. The state generally prohibits felons from obtaining an occupational license, and the state will revoke such a license if its holder is convicted of a felony.

Civil Laws

Civil laws(statutes that protect personal freedoms and rights) apply to disputes between individual citizens. Some examples include laws that protect the right to be left

alone, freedom from threats of injury, freedom from offensive contact, and freedom from character attacks. In civil cases, the plaintiff(person claiming injury) brings charges against the defendant(person charged with vio- lating the law). The case is referred to as a tort(litigation in which one person asserts that a physical, emotional, or financial injury was a consequence of another person’s actions or failure to act). A tort implies that a person breached his or her duty to another person. A dutyis an expected action based on moral or legal obligations.

It does not take the same quality or quantity of evidence to be convicted in a civil lawsuit as in a criminal case. If a defendant is found guilty of a tort, he or she is required to pay the plaintiff restitution for damages. Torts are classified as intentional or unintentional.

Intentional Torts

Intentional tortsare lawsuits in which a plaintiff charges that a defendant committed a deliberately aggressive act.

Examples include assault, battery, false imprisonment, invasion of privacy, and defamation.

ASSAULT. Assaultis an act in which bodily harm is threat- ened or attempted. Such harm may be physical intimida- tion, remarks, or gestures. The plaintiff interprets the threat to mean that force may be forthcoming. A nurse may be accused of assault if he or she verbally threatens to restrain a client unnecessarily (e.g., to curtail the use of the signal light).

BATTERY. Battery (unauthorized physical contact) can include touching a person’s body, clothing, chair, or bed.

A plaintiff can claim battery even if contact causes no actual physical harm. The criterion is that contact hap- pened without the plaintiff’s consent.

Sometimes nonconsensual physical contact can be jus- tified. For example, health professionals can use physical force to subdue clients with mental illness or under the influence of alcohol or drugs if their actions endanger their own safety or that of others. Documentation must show, however, that the situation required the degree of restraint used. Excessive force is never appropriate when less would have been effective. When recording information about such situations, nurses must describe the behavior and the client’s response when lesser forms of restraint were used first.

To protect health care workers from being charged with battery, adult clients are asked to sign a general permis- sion for care and treatment during admission (Fig. 3-2) and additional written consent forms for tests, procedures, or surgery. When seeking a client’s consent for specific treatments, the physician must describe the proposed intervention, potential benefits, risks involved, expected outcome, available alternatives, and consequences if the intervention is not performed.

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FIGURE 3-2

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Consent for treatment form. (From Timby, B. K., & Smith, N. E. [2007]. Introductory medical- surgical nursing[9th ed.]. Philadelphia: Lippincott Williams & Wilkins, p. 37.)

Health care personnel obtain consent from a parent or guardian if the client is a minor, mentally retarded, or men- tally incompetent. In an emergency, consent can be im- plied. In other words, it is assumed that in life-threatening circumstances, a client would give consent for treatment if he or she were able to understand the risks. In most cases, another physician must concur that the emergency procedure is essential (Marquis & Huston, 2003).

FALSE IMPRISONMENT. A plaintiff can allege false imprison- ment(interference with a person’s freedom to move about at will without legal authority to do so) if a nurse detains a competent client from leaving the hospital or other health care agency. If a client wants to leave without being med- ically discharged, it is customary for him or her to sign a form indicating personal responsibility for leaving against medical advice (AMA) (Fig. 3-3). If the client refuses to sign the paper, however, health care personnel cannot bar him or her from leaving.

Forced confinement is legal under two conditions: if there is a judicial restraining order (e.g., a prisoner admit- ted for medical care) or if there is a court-ordered commit- ment (e.g., a client with mental illness who is dangerous to self or others).

Restraintsare devices or chemicals that restrict move- ment. They are used with the intention to subdue a client’s

activity. Types include cloth limb restraints, bedrails, chairs with locking lap trays, and sedative drugs. Unnec- essary or unprescribed restraints can lead to charges of false imprisonment, battery, or both.

The Nursing Home Reform Act of the Omnibus Bud- get Reconciliation Act (OBRA) states that residents in nursing homes have “the right to be free of, and the facility must ensure freedom from, any restraints im- posed or psychoactive drug administered for purposes of discipline or convenience, and not required to treat the residents’ medical symptoms.” This is not to say that restraints cannot be used; rather, they should be used as a last resort. Use must be justified and accompanied by informed consent from the client or a responsible relative.

Before using restraints, the best legal advice is to try alternative measures for protecting wandering clients, reducing the potential for falls (see Chap. 19), and ensur- ing that clients do not jeopardize medical treatment by pulling out feeding tubes or other therapeutic devices. If less restrictive alternatives are unsuccessful, nurses must obtain a medical order before each and every instance in which they use restraints. In acute care hospitals, medical orders for restraints are renewed every 24 hours. When restraints are applied, charting must indicate regular client assessment; provisions for fluids, nourishment, and bowel

FIGURE 3-3

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Release form for discharging oneself against medical advice.

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and bladder elimination; and attempts to release the client from the restraints for a trial period. When the client is no longer a danger to self or others, nurses must remove the restraints.

INVASION OF PRIVACY. Civil law protects citizens from

invasion of privacy(failure to leave people and their prop- erty alone). Nonmedical examples include trespassing, illegal search and seizure, wiretapping, and revealing per- sonal information about someone, even if true. Examples of privacy violations in health care include photograph- ing a client without consent, revealing a client’s name in a public report, and allowing an unauthorized person to observe the client’s care. To ensure and protect clients’

rights to privacy, medical records and information are kept confidential. Personal names and identities are con- cealed or obliterated in case studies or research. Privacy curtains are used during care; permission is obtained if a nursing or medical student will observe a procedure.

DEFAMATION. Defamation(an act in which untrue infor- mation harms a person’s reputation) is unlawful. Exam- ples include slander(character attack uttered orally in the presence of others) and libel(damaging statements written and read by others). Injury is considered to occur because the derogatory remarks attack a person’s char- acter and good name.

If a client accuses a nurse of defamation of character, the client must prove that there was malice, misuse of privileged information, and spoken or written untruths.

Nurses are at risk for defamation of character suits if they make negative comments in public areas (e.g., elevators), or assert opinions regarding a client’s character in the med- ical record. To avoid accusations of defamation, nurses must avoid making or writing negative comments about clients, physicians, or other coworkers.

Unintentional Torts

Unintentional tortsresult in an injury, although the person responsible did not mean to cause harm. The two types of unintentional torts involve allegations of negligence and malpractice.

NEGLIGENCE. Negligence (harm that results because a person did not act reasonably) implies that a person acted carelessly. In cases of negligence, a jury decides whether any other prudent person would have acted differently than the defendant, given the same circumstances. For example, a car breaks down on the highway. The driver moves to the side of the road, raises the hood, and activates the emergency flashing lights. If another vehicle strikes the disabled car and the driver of the second car sues, the guilt or innocence of the driver of the disabled car depends on whether the jury believes his or her action was rea- sonable.Reasonableness is based on the jury’s opinion of what constitutes good common sense.

MALPRACTICE. Malpractice is professional negligence, which differs from simple negligence. It holds profession- als to a higher standard of accountability. Rather than being held accountable for acting as an ordinary, reason- able lay person, in a malpractice case the court determines whether a health care worker acted in a manner compa- rable to that of his or her peers. The plaintiff must prove four elements to win a malpractice lawsuit: duty, breach of duty, causation, and injury (Box 3-2).

Because the jury may be unfamiliar with the scope of nursing practice, the plaintiff may present other resources in court to prove breach of duty. Some examples include the employing agency’s standards for care, written policies and procedures, care plans or clinical pathways, and the testimony of expert witnesses (Fig. 3-4).

The best protection against malpractice lawsuits is competent nursing. Nurses demonstrate competency by participating in continuing education programs, taking nursing courses at colleges or universities, and becoming certified. Defensive nursing practice also involves thor- ough and objective documentation (see Chap. 9).

One of the best methods for avoiding lawsuits is to administer compassionate care. The “golden rule” of doing unto others as you would have them do unto you is a good principle to follow. Clients who perceive the nurse as caring and concerned tend to be satisfied with their care. The following techniques communicate a caring and compassionate attitude:

• Smiling

• Introducing yourself

• Calling the client by the name he or she prefers

• Touching the client appropriately to demonstrate concern

• Responding quickly to the call light

• Telling the client how long you will be gone if you need to leave the unit; informing the client who will provide care in your absence; alerting the client when you return

• Spending time with the client other than while per- forming required care

• Being a good listener

• Explaining everything so that the client can under- stand it

• Being a good host or hostess—offering visitors extra chairs, letting them know where they can obtain snacks

BOX 3-2 ^● Elements in a Malpractice Case

Duty—An obligation existed to provide care for the person who claims to have been injured or harmed.

Breach of Duty—The nurse failed to provide appropriate care, or the care pro- vided was given negligently, that is, in a way that conflicts with how others with similar education would have acted given the same set of circumstances.

Causation—The professional’s action, or lack of it, caused the plaintiff harm.

Injury—Physical, psychological, or financial harm occurred.

and beverages, and directing them to the restrooms and parking areas

• Accepting justifiable criticism without becoming defensive

• Saying “I’m sorry”

Clients can sense when a nurse wants to do a good job, rather than just get a job done. The relationship that develops is apt to reduce the potential for a lawsuit, even if harm occurs.

to clients, they have a primary role in protecting clients from preventable or reversible complications.

The number of lawsuits involving nurses is increasing.

It is to every nurse’s advantage to obtain liability insur- ance and to become familiar with legal mechanisms, such as Good Samaritan laws and statutes of limitations, that may prevent or relieve culpability, as well as with strate- gies for providing a sound legal defense, such as written incident reports and anecdotal records.

Liability Insurance

Liability insurance(a contract between a person or corpo- ration and a company willing to provide legal services and financial assistance when the policyholder is in- volved in a malpractice lawsuit) is necessary for all nurses.

Although many agencies have liability insurance with an umbrella clause that includes its employees, nurses should obtain their own personal liability insurance. The advan- tage is that a nurse involved in a lawsuit will have a sepa- rate attorney working on his or her sole behalf. Because the damages sought in malpractice lawsuits are so costly, attorneys hired by health care facilities sometimes are more committed to defending the facility against liability Stop • Think + Respond BOX 3-1

A nurse warns a weak and debilitated older adult that if she continues to get out of bed during the night without calling for assistance, it will be necessary to apply wrist restraints. Can the nurse legally restrain the client who may be harmed if the behavior does not change?

All professionals, including nurses, are held responsible and accountable for providing safe, appropriate care.

Because nurses have specialized knowledge and proximity