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
42 U N I T 2 ● Integrating Basic Concepts
and negative publicity, rather than defending an employed nurse whom they also are being paid to represent.
Student nurses are held accountable for their actions during clinical practice and should also carry liability insur- ance. Liability insurance is available through the National Federation for Licensed Practical Nurses, the National Student Nurses’ Association, the American Nurses Asso- ciation (ANA), and other private insurance companies.
Reducing Liability
It is unrealistic to think that lawsuits can be avoided com- pletely. Some avenues protect nurses and other health care workers from being sued or provide a foundation for a sound legal defense. Examples include Good Samaritan laws, statutes of limitations, principles regarding assump- tion of risk, appropriate documentation, risk management, incident reports, and anecdotal records.
Good Samaritan Laws
Most states have enacted Good Samaritan laws, which pro- vide legal immunity to passersby who provide emergency first aid to victims of accidents. The legislation is based on the Biblical story of the person who gave aid to a beaten stranger along a roadside. The law defines an emergency as one occurring outside a hospital, not in an emergency department.
Although these laws are helpful, no Good Samaritan law provides absolute exemption from prosecution in the event of injury. Paramedics, ambulance personnel, physicians, and nurses who stop to provide assistance are still held to a higher standard of care because they have training above and beyond that of average lay people. In cases of gross neg- ligence (total disregard for another’s safety), health care workers may be charged with a criminal offense.
Statute of Limitations
Each state establishes a statute of limitations (designated time within which a person can file a lawsuit). The length varies among states and generally is calculated from when the incident occurred. When the injured party is a minor, however, the statute of limitations sometimes does not commence until the victim reaches adulthood. When the time expires, an injured party can no longer sue, even if his or her claim is legitimate.
Assumption of Risk
If a client is forewarned of a potential safety hazard and chooses to ignore the warning, the court may hold the client responsible. For example, if a hospitalized client objects to having the side rails up or lowers the rails inde- pendently, the nurse or health care facility may not be held fully accountable for an injury. It is essential that the nurse document that he or she warned the client and that the client disregarded the warning. The same recom-
mendation applies when nurses caution clients about ambulating only with assistance.
Documentation
A major component to limiting liability is accurate, thor- ough documentation. Nurses are held responsible or liable for information that they either include or exclude in reports and charting. Each health care setting requires accurate and complete documentation. The medical record is a legal document and is used as evidence in court.
Records must be timely, objective, accurate, complete, and legible (see Chap. 9). The quality of the documenta- tion, including neatness and spelling, can influence a jury’s decision.
Risk Management
Risk management(process of identifying and reducing the costs of anticipated losses) is a concept originally developed by insurance companies. Health care institutions now employ risk managers to review all the problems in the workplace, identify common elements, and then develop methods to reduce their risk. A primary tool of risk man- agement is the incident report.
Incident Reports
Anincident reportis a written account of an unusual, poten- tially injurious event involving a client, employee, or vis- itor (Fig. 3-5). It is kept separate from the medical record.
Incident reports determine how to prevent hazardous sit- uations and serve as a reference in case of future litiga- tion. They must include five important pieces: (1) when the incident occurred; (2) where it happened; (3) who was involved; (4) what happened; and (5) what actions were taken.
All witnesses are identified by name. Any pertinent statements made by the injured person, before or after the incident, are quoted. Accurate and detailed documen- tation often helps to prove that the nurse acted reason- ably or appropriately in the circumstances.
Anecdotal Records
Ananecdotal record(personal, handwritten account of an incident) is not recorded on any official form, nor is it filed with administrative records. The nurse retains the information, which is safeguarded and may be used later to refresh the nurse’s memory if a lawsuit develops.
Anecdotal notes can be used in court on advice of an attorney.
Malpractice Litigation
A successful outcome in a malpractice lawsuit depends on many variables, such as physical evidence and attor- ney expertise. The appearance, demeanor, and conduct
C H A P T E R 3 ● Laws and Ethics 43
FIGURE 3-5
•
An incident report form.44 U N I T 2 ● Integrating Basic Concepts
of the nurse defendant inside and outside the courtroom, however, can help or damage the case. Suggestions in Box 3-3 may help if a nurse becomes involved in mal- practice litigation.
The word ethics comes from the Greek word ethos,mean- ing customs or modes of conduct. Ethics(moral or philo- sophical principles) direct actions as being either right or wrong. Various organizations, such as those represent- ing nurses, have identified standards for ethical practice, known as a code of ethics, for members within their discipline.
Codes of Ethics
Acode of ethics(a list of written statements describing ideal behavior) serves as a model for personal conduct. The National Association for Practical Nurse Education and Services, the National Federation for Licensed Practical Nurses, and the International Council of Nurses all have composed codes of ethics. Box 3-4 shows the ANA’s cur- rent code of ethics. Because of rapidly changing technol- ogy, no code is ever specific enough to provide guidelines for every dilemma that nurses may face.
ETHICS Ethical Dilemmas
Anethical dilemma(choice between two undesirable alter- natives) occurs when individual values and laws conflict.
This is especially true in relation to health care. Occasion- ally, nurses find themselves in situations that are legal but are personally unethical, or are ethical but illegal. For instance, abortion is legal, but some believe it is unethical.
Assisted suicide is illegal (except in Oregon), but some believe it is ethical.
Ethical Theories
Nurses generally use one of two ethical problem-solving theories to guide them in solving ethical dilemmas. These are teleology and deontology.
Teleologic Theory
Teleologyis ethical theory based on final outcomes. It is also known as utilitarianism because the ultimate ethical test for any decision is based on what is best for the most peo- ple. Stated from a different perspective, teleologists believe BOX 3-3 ● Legal Advice
1.Notify the claims agent of your professional liability insurance company.
2.Contact the National Nurses Claims Data Base through the ANA. This confidential service provides information that supports nurses involved in litigation.
3.Discuss the particulars of the case only with your attorney.
4.Tell your attorney everything.
5.Avoid giving public statements.
6.Reread the client’s record, incident sheet, and your anecdotal notes before testifying.
7.Ask to reread information in court if it will help to refresh your memory.
8.Dress conservatively, in a businesslike manner. Avoid excesses in makeup, hairstyle, or jewelry.
9.Look directly at whomever asks a question.
10.Speak in a modulated but audible voice that the jury and others in the court can hear easily.
11.Tell the truth.
12. Use language with which you are comfortable. Do not try to impress the court with legal or medical terms.
13.Say as little as possible in court under cross-examination.
14.Answer the prosecuting lawyer’s questions with “Yes” or “No”; limit answers to only the questions asked.
15.If you do not know or cannot remember information, say so.
16.Wait to expand on information if asked by your defense attorney.
17.Remain calm, objective, and cooperative.
BOX 3-4 ● Code for Nurses
1.The nurse, in all professional relationships, practices with compassion and respect for the inherent dignity, worth, and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems.
2.The nurse’s primary commitment is to the patient, whether an individual, family, group, or community.
3.The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient.
4.The nurse is responsible and accountable for individual nursing practice and determines the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum patient care.
5.The nurse owes the same duties to self as to others, including the responsi- bility to preserve integrity and safety, to maintain competence, and to continue personal and professional growth.
6.The nurse participates in establishing, maintaining, and improving health care environments and conditions of employment conducive to the provi- sion of quality health care and consistent with the values of the profession through individual and collective action.
7.The nurse participates in the advancement of the profession through contributions to practice, education, administration, and knowledge development.
8.The nurse collaborates with other health professionals and the public in promoting community, national, and international efforts to meet health needs.
9.The profession of nursing, as represented by associations and their members, is responsible for articulating nursing values, for maintaining the integrity of the profession and its practice, and for shaping social policy.
Reprinted with permission from American Nurses Association. (2001).
Code of ethics for nurses with interpretive statements.Washington, DC:
American Nurses Publishing.
Beneficence and Nonmaleficence
Beneficencemeans “doing good” or acting for another’s benefit. To do good, an ethical person prevents or removes any potentially harmful factor. For example, if a client has cancer, the beneficent act is to eliminate the cancer with surgery, drugs, or radiation. The difficulty, however, is that a health care worker’s approach to “doing good”
may not be what the client feels is best. The client may prefer no treatment of the cancer.
Nonmaleficencemeans “doing no harm” or avoiding an action that deliberately harms a person. Sometimes, how- ever, “harm” is necessary to promote “good.” In the pre-
BOX 3-5 ● A Patient’s Bill of Rights
1.The patient has the right to considerate and respectful care.
2.The patient has the right to and is encouraged to obtain from physicians and other direct caregivers relevant, current, and understandable information concerning diagnosis, treatment, and prognosis.
3.The patient has the right to make decisions about the plan of care prior to and during the course of treatment and to refuse a recommended treat- ment or plan of care to the extent permitted by law and hospital policy and to be informed of the medical consequences of this action.
4.The patient has the right to have an advance directive (such as a living will, health care proxy, or durable power of attorney for health care) concerning treatment or designating a surrogate decision maker with the expectation that the hospital will honor the intent of that directive to the extent permitted by law and hospital policy.
5.The patient has the right to every consideration of privacy. Case discussion, consultation, examination, and treatment should be conducted so as to protect each patient’s privacy.
6.The patient has the right to expect that all communications and records pertaining to his or her care will be treated as confidential by the hospital, except in cases such as suspected abuse and public health hazards when reporting is permitted or required by law.
7.The patient has the right to review the records pertaining to his or her medical care and to have the information explained or interpreted as necessary, except when restricted by law.
8.The patient has the right to expect that, within its capacity and policies, a hospital will make reasonable response to the request of a patient for appro- priate and medically indicated care and services. The hospital must provide evaluation, service, and/or referral as indicated by the urgency of the case.
9.The patient has the right to ask and be informed of the existence of business relationships among the hospital, educational institutions, other health care providers, or payers that may influence the patient’s treatment and care.
10.The patient has the right to consent to or decline to participate in proposed research studies or human experimentation affecting care and treatment or requiring direct patient involvement, and to have those studies fully explained prior to consent.
11.The patient has the right to expect reasonable continuity of care when appropriate and to be informed by physicians and other caregivers of available and realistic patient care options when hospital care is no longer appropriate.
12.The patient has the right to be informed of hospital policies and practices that relate to patient care, treatment, and responsibilities. The patient has the right to be informed of available resources for resolving disputes, grievances, and conflicts. The patient has the right to be informed of the hospital’s charges for services and available payment methods.
©1992 with permission of the American Hospital Association.
Stop • Think + Respond BOX 3-2 How might a teleologist and a deontologist approach an ethical dilemma such as managing the care of an infant with microcephaly (small brain and severe mental retardation) who develops a very high fever as a result of infection?
“the end justifies the means.” Thus, the choice that bene- fits many people justifies harm that may come to a few. A teleologist would argue that selective abortion (destroying some embryos in a multiple pregnancy) is ethical because it is done to ensure the full-term birth of those that remain.
In other words, termination can be justified in some situ- ations but may not be justified in all cases.
Teleologists analyze ethical dilemmas on a case-by-case basis. They propose that an action is not good or bad in and of itself. Instead, the consequences determine whether the action is good or bad. The primary consideration is a desirable outcome for those most affected.
Deontologic Theory
Deontologyis ethical study based on duty or moral obli- gations. It proposes that the outcome is not the primary issue; rather, decisions must be based on the morality of the act itself. In other words, certain actions are always right or wrong regardless of circumstances. Deontologists would argue that destroying any fetus is wrong, whether done to save others or not, because killing is immoral.
Deontology proposes that health care providers have a moral duty to maintain and preserve life. Thus, deontol- ogists would consider it immoral for a nurse to assist with abortion, suicide for the terminally ill, or execution of a convicted prisoner.
Deontology also proposes that moral duty to others is equally as important as consequences. A duty is an obli- gation to perform or to avoid an action to which others are entitled. For example, deontologists believe that lying is never acceptable because it violates the duty to tell the truth to those entitled to honest information. Nurses ulti- mately have a professional duty to their clients, and clients have rights to which they are entitled (Box 3-5).
C H A P T E R 3 ● Laws and Ethics 45
Ethical Principles
It is sometimes impossible or impractical to analyze ethical issues from a teleologic or deontologic point of view. Most nurses do not exclusively use one theory’s principles.
They also can base ethical decisions on six principles that form a foundation for ethical practice: beneficence, non- maleficence, autonomy, veracity, fidelity, and justice.
These principles sometimes conflict with each other.
46 U N I T 2 ● Integrating Basic Concepts
vious example of cancer, available treatments can cause pain, nausea, vomiting, hair loss, and susceptibility to infection. Yet, the ultimate benefit is eradicating the cancer. This is an example of the principle of double effect.
The following criteria can help to resolve cases involving double effect:
• The action itself must not be intrinsically wrong; it must be good or neutral.
• Only the good effect must be intended, even though the harmful effect is foreseen.
• The harmful effect must not be the means of the good effect.
• The good effect must outweigh the harmful effect (McCormick, 1999).
Autonomy
Autonomyrefers to a competent person’s right to make his or her own choices without intimidation or influence. For a person to make a decision, he or she must have all rele- vant information, including treatment options, in language he or she understands. The client always has the option of obtaining a second opinion from another practitioner. One outcome may be that the client declines all possible options for treatment, a decision that must be respected.
Conflict can arise if the client’s choice poses more risk than potential benefit; is illegal (e.g., requesting assistance with suicide), morally objectionable, or medically inappro- priate; or interferes with the needs of another person whose case merits higher priority. An example is a young woman who seeks the removal of both breasts because she fears breast cancer. In such a case, the duty to respect the client’s wishes can be nullified. One option may be to refer the client to another practitioner.
Veracity
Veracitymeans the duty to be honest and avoid deceiv- ing or misleading a client. This principle causes conflict when the truth may harm the client by interfering with recovery or worsening the present condition. Avoiding the truth, however, is never justified when it is used to shield the caregiver’s discomfort with sharing “bad news”
(Aiken, 2004).
Fidelity
Fidelitymeans being faithful to work-related commitments and obligations. Its application relates to the caregiver’s obligation to clients. For example, nurses are obligated to be competent in performing skills and services required for safe and appropriate care. This implies that nurses pursue continuing education and maintain current cer- tification for cardiopulmonary resuscitation (CPR). It also requires that nurses respect clients, provide compassionate care, protect confidentiality, honor promises, and follow their employer’s policies.
Justice
Justicemandates that clients be treated impartially without discrimination according to age, gender, race, religion, socioeconomic status, weight, marital status, or sexual orientation. In other words, everyone should have equal distribution of goods and services.
In reality, circumstances may force nurses to devote more attention to an unstable client. For example, a person arrives in the emergency department with a fever and vomiting. Shortly thereafter, another person presents with chest pain. The nurse decides to attend to the client with chest pain first. Another example of inequity is when more than one client needs a scarce resource, such as an organ for transplantation. Although several clients have the right to the organ, only one can receive it.
When goods and services cannot be allocated equally, decisions are based on need, merit, or potential for con- tribution. In the example of the transplant organ, based on need, the most critically ill person would receive it. Based on merit, the organ would be given to the per- son who worked hardest or made the greatest effort at this point in his or her life. Based on contribution, the person with the greatest potential for positively influ- encing society in the future would receive the organ (Maiese, 2003).
Values and Ethical Decision Making
When a nurse has not taken a course in ethics, his or her ethical decisions are often the result of values. Valuesare a person’s most meaningful beliefs and the basis on which he or she makes most decisions about right or wrong. Values commonly are (1) acquired from parental models, life expe- riences, and religious tenets; (2) reinforced by a person’s world view; (3) modeled in personal behavior; (4) consis- tent over time; and (5) defended when challenged.
The following serve as guidelines to ethical decision making:
• Make sure that whatever is done is in the client’s best interest.
• Preserve and support the Patient’s Bill of Rights.
• Work cooperatively with the client and other health practitioners.
• Follow written policies, codes of ethics, and laws.
• Follow your conscience.
Ethics Committees
Ethical decisions are complex, especially when they affect the lives of clients. Because making a judgment for another is a weighty responsibility, many health care agencies have established ethics committees. These committees