ALL INDIA INSTITUTE OF MEDICAL

SCIENCES
BHUBANESWAR

NURSING MANAGEMENT

SEMINAR
ON

LEGAL ISSUES
IN
NURSING

SUBMITTED TO
SUBMITTED BY

DR SMITHA MV
KASHYAP K V
ASSOCIATE PROFESSOR
M.SC (N) 2ND YEAR
CON
CON
AIIMS BBSR
AIIMS BBSR
LEGAL ISSUES IN NURSING
INTRODUCTION –

As a nurse it has become an important necessity to be aware of the legal

aspects associated with caring and helping people in the health industry
today.

The first nursing law created was that of nursing registration in 1903 and
they have only evolved and expanded over the years to create a thick
book which must be studied today by aspiring nurses.

LEGAL ISSUES IN NURSING –

Some legal issues recur frequently in nursing practice. It is wise for the
nurse to try to
understand these particular issues as they relate to individual practice.

PERSONAL LIABILITY –

As an educated professional, nurses are always legally responsible or

liable for their
action. Thus, if a physician or supervisor asks you to do something that is
contrary to your best professional judgment and says, I ‘ll take
responsibility that person is acting unwisely. The physician and supervisor
giving the directions may be liable if harm results but that would not
remove your liability.

Although each person is legally responsible for his or her own actions,
there are also
situations in which a person or organization may be held liable for actions
taken by others.
EMPLOYER LIABILITY -

The most common situation in which a person or organization is held

responsible for the actions of another is in the employer-employee
relationship.

In many instances, an employer can be held responsible for torts

committed by an employee. This is called the doctrine of respondent
superior.

The law holds the employer responsible for hiring qualified personnel, for
establishing an appropriate environment for correct functioning and for
providing supervision or direction as needed to avoid errors or harm.

Therefore, if a nurse, as an employee of a hospital, is guilty of

malpractice, the hospital may be named in the suit. The employer’s
liability may exist even if the employer appears to have taken precautions
to prevent error. It is important to understand that this doctrine does not
remove any responsibility from the individual nurse, but it extends
responsibility to the employer in addition to the nurse.

CHARITABLE IMMUNITY –

In some states, non-profit hospitals have charitable immunity.

This means that the nonprofit hospital cannot be held legally liable for
harm done to a patient by its employees. The employees of that nonprofit
hospital are still legally for their own actions.

The trend in legislation is toward the repeal of laws providing for

charitable immunity. Those active in the consumer movement have
argued that no institution should be relieved of responsibility in such a
blanket fashion. If you are employed by a non-profit institution, it is
important that you know whether the law in your state provides charitable
immunity for the institution.

SUPERVISORY LIABILITY -

When a nurse is in the role of charge nurse, head nurse, supervisor or any
other role which involves supervision or direction of other people, the
nurse is potentially liable for the actions of others.
The supervising nurse is responsible for good exercising good judgment in
a supervisory role.

This includes making appropriate decisions about assignments and

delegation of tasks.

If an error occurs the supervising nurse may not be held liable for the
error of the subordinate. If poor judgment was used in assigning an
inadequately prepared person to an important task the supervisory nurse
might be liable for resulting harm.

DUTY TO REPORT OR SEEK MEDICAL CARE FOR A PATIENT –

A nurse who is caring for the patient has legal duty to ensure that the
patient receives safe and competent care. This duty requires that the
nurse maintain an appropriate standard of care and also, that the nurse
take action to obtain an appropriate standard of care from other
professionals when that is necessary. The nurse has a duty to continue all
efforts to obtain appropriate medical care for the patient.

INFORMED CONSENT –

Every person has the right to either consent to or refuse medical

treatment.

The law requires that a person give voluntary and informed consent to
treatment. This consent may be either verbal or written. Written consent
usually is preferred in health care to ensure that a record of consent
exists. The form should state the specific proposed medical procedure or
test.

A nurse may present a form for a patient to sign and the nurse may sign
the form as a witness to the signature. This does not transfer the legal
responsibility for informed consent for medical care to the nurse. If the
patient does not seem well informed, the nurse should notify the
physician so that further information can be provided to the patient.

The nurse has ethical obligations to assist the patient in exercising his or
her rights and to assist the physician in providing appropriate care.

FRAUD -
Fraud is deliberate deception for the purpose of personal gain and is
usually prosecuted as crime situations of fraud in nursing are not
common.
One example would be trying to obtain a better position by giving
incorrect information to a prospective employer. By deliberately
stating(falsely) that you had completed a nurse practitioner program to
obtain a position for which you would otherwise be ineligible, you are
defrauding the employer.

This may be prosecuted as a crime because you are also placing members
of the community in danger of receiving substandard care. You may also
commit fraud by trying to cover up a nursing error to avoid legal action.
Courts tend to be harsher in decision regarding fraud represents a
deliberate attempt to mislead others for your own gain and could result in
harm to those assigned to your care.

MEDICATION ERRORS –

Some errors result from drugs with similar names, look alike medication
containers, poor systems for communication in which hand writing
problems may contribute to lack of clarity.

When medications errors do occur, fraud or intentional concealment may

be charged and may contribute to the awarding of punitive damages as
well as ordinary damages.

DO‟S AND DON‟TS FOR SAFE PRACTICE –

 Do document all unusual incidences

 Do report all unusual incidences
 Do follow policies and procedures as established by your employing
agency.
 Do protect the patient from injury
  Do not advice that is contrary to the doctor ‘s order or nursing care
plan

LEGAL RESPONSIBILITIES OF NURSE –

 Responsibility of appointing and assigning.

 Responsibility in quality control.
 Responsibility for equipment.
 Responsibility for observation and reporting.
 Responsibility to protect public.
 Responsibility for record keeping and reporting.
 Responsibility for death and dying.

ROLE AND FUNCTIONS OF NURSE MANAGER IN LEGAL ISSUES.

 Serves as a role model by providing nursing care that meets or

exceeds accepted
standards of care.
 Fosters nurse-patient relationships that are respectful, caring and
honest thus reducing the possibility of future lawsuits.
 Joint and actively supports professional organizations to strengthen
the lobbying
efforts of nurses in health care legislation
 Practices nursing within the area of individual competence.
 Prioritizes patients right and welfare first in decision making.
 Provides educational and training opportunities for staff.

TORTS -

Torts are civil wrongs committed by one person against another.

It may be physical harm, psychological harm or harm to reputation,
livelihood.

CLASSIFICATION OF TORTS –

1. Intentional torts

2. Quasi-intentional torts

3. Unintentional torts

INTENTIOAL TORTS -

Assault -

Assault is any intentional threat to bring about harmful or offensive

contact. No actual contact is necessary. The law protects clients who
afraid of harmful contact. It is an assault for a nurse to threaten to give a
client for an X-ray procedure when the client has refused consent. The key
issue is the client consent. In an assault lawsuit, if the clients give
consent, the nurse is not responsible.

Battery –

Battery is un-consented or unlawful touching of a person. For battery to

occur, the touching must occur without consent. Remember that consent
may be implied rather than specifically stated. Therefore, if the patient
extends an arm for injection, he cannot later charge battery, saying that
he was not asked. But if the patient agreed because of a thread(assault),
the touching would still be considered battery because the consent was
not freely given.

False imprisonment –

The tort of false imprisonment occurs with unjustified restraining of a

person without legal warrant. For example, this occurs when nurses
restrain a client in a bounded area to keep the person from freedom but
when it occurs in health care it is most often the basis of a civil suit rather
than a criminal case.

QUASI-INTENTIONAL TORTS -

1. Invasion of privacy -

Invasion of privacy n. the intrusion into the personal life of another,

without just cause,
which can give the person whose privacy has been invaded a right to
bring a lawsuit for damages against the person or entity that intruded.

Types of invasion of privacy

Invasion of Privacy - Intrusion of Solitude

Intrusion of solitude, seclusion or into private affairs is a subset of invasion

of privacy earmarked by some spying on or intruding upon another person
where that person has the expectation of privacy.

The place that the person will have an expectation of privacy is usually in
a home or
business setting. People who are out in a public place do not have the
same expectation for privacy.
Opening someone's mail is also considered to be intrusion of solitude,
seclusion or private affairs.

The information gathered by this form of intrusion need not be published

in order for an invasion of privacy claim to succeed.

Invasion of Privacy - Appropriation of Name, Likeness or Identity

The appropriation of a private person's name, likeness or identity by a

person or company for commercial gain in prohibited under the invasion
of privacy laws. This law pertains to a private figure and not a public
figure or celebrity, who have fewer and different privacy rights.

This law was born from a couple of court decisions in the early 1900's
where a private person's photograph was being used without consent for
advertising purposes and without the person receiving any money for
using their pictures in print.

The courts recognized the common law right to privacy including a

person's identity had been violated by the unauthorized commercial use.

Invasion of Privacy - Public Disclosure of Embarrassing Private

Facts

Public disclosure of embarrassing private facts is an invasion of privacy

tort when the disclosure is so outrageous that it is of no public concern
and it outrages the public sense of decency.

Divorce situations and relationship breakups may involve this kind of

invasion of privacy tort.

UNINTENTIONAL TORTS
1. Negligence -

Negligence refers to the act of doing something or refraining from doing

something that any other reasonable medical professional would do or
refrain from doing in a similar situation.

Examples of nursing negligence

Common examples of nursing negligence include malnutrition, inadequate

hydration,
physical abuse, medication errors, and mental and emotional abuse.

In nursing homes or other places of long-term care, there are also often
injuries due to bedsores, infections and falls.

Malnutrition and dehydration cases come from leaving a patient

unattended for too long, ignoring his needs, or simply refusing to feed and
provide water.

Abuse comes in a variety of forms and, in many cases, nurses do not feel
they will be reported, especially if the patient is mentally handicapped.
Medication errors, bedsores, infections and falls are most frequently the
result of carelessness and lack of paying attention to their patients as
necessary.

2.Malpractice -

Malpractice is defined as improper or negligent practice by a lawyer,

physician, or other
professional who injures a client or patient.
Medical malpractice is defined as a wrongful act by a physician, nurse, or
other medical professional in the administration of treatment— or at
times, the omission of medical treatment, to a patient under his or her
care.

Although dentists, architects, accountants, and engineers are also liable

to malpractice suits, most lawsuits of this type in the United States involve
medical malpractice.

Medical malpractice is professional negligence by act or omission by a

health care provider in which care provided deviates from accepted
standards of practice in the medical community and causes injury or
death to the patient. Standards and regulations for medical malpractice
vary by country and jurisdiction within countries.

Types of Nursing Malpractice

Nursing malpractice takes many forms, including:

 Medication errors – giving a patient the wrong medication or the
wrong dose, or dispensing medication to the wrong patient
 Failure to follow a physician ‘s orders
 Delaying patient care and/or failure to monitor a patient
 Incorrectly performing a procedure, or trying to perform a procedure
without training
 Documentation error
 Failure to get informed patient consent

Consequences of Nursing Malpractice

The consequences of nursing malpractice can range from minor to

potentially fatal, and may include –
  Medication overdose
 Adverse drug reaction
 Coma
 Brain, heart, kidney or other organ damage
 Infection
 Death

LEGAL SYSTEM

SOURCES OF LAW

Constitutional law - it is a judgmental law. Law that governs the state. It

determines
structure of state, power and duties.

Common law - it is a body of legal principles that evolved from court

decisions.

Administrative law - rules and regulations established by administrative

agencies made by executives of government.

PURPOSES –

 To help the nurse to understand that they do have legal

responsibilities in nursing practice.
 To make them understand by which authority these legal
responsibilities can be enforced.
 To make them understand what areas of nursing practice can
mostly create legal problems.
 To describe and protect the rights of clients and nurses.
 Law is there for the protection of nursing practice.
 Law is there for the identification of the risk of liability.
 Law is there to assist in the decision-making process involved in
nursing practice
Nurses have more responsibility.

another important purposes are

 Safeguarding the public

 Safeguarding the nurse

Safeguarding the public -

 1. The public safety is guaranteed because the practice of nursing is
restricted to those accredited practitioners who would seek to
provide highest possible level of comprehensive care for the
individual and the community taking in to account the total need
2. The individual is secure to the event of sickness or disability with no
fear of anxiety of being cared for by a competent person

Safeguarding the nurse -

1. Licensure -
All nurses who are in nursing practice have to possess a valid licensure,
issued by
the respective state nursing council/Indian nursing council
2. Good Samaritan laws -
In response to health professionals, fear of malpractice claims, most
states enacted
Good Samaritan Laws that exempt doctors and nurses from liability when
they render
first during emergency. These laws limit liability and offer legal immunity
for
people helping in an emergency

3. Good rapport -

Developing good rapport with the client is very important to prevent

malpractice.
The ability to develop good rapport with client is dependent on the nurse
having good
interpersonal communication skills e.g. listening
4. Standards of care -
All professional practicing in the medical field is held to certain standards
when
administering care. It is always better to follow standards of care to avoid
malpractice
and do not attempt anything beyond the level of competence.

5. standing orders -
Although a nurse may not legally diagnose illness or prescribe treatment,
she or
he may after assessing patient’s condition apply standing orders or
treatment guideline
that have been established by the physician or doctor as appropriate for
certain problems and conditions
6. consent for operation and other procedures: -
A patient coming in to hospital still retains his rights as a citizen and his
entry only
denotes his willingness to undergo an investigation or a course of
treatment. Any
investigation or treatment of a serious nature, or an operation in which an
anaesthetic is
used, requires the written consent of the patient.
7. correct identity -
The nurse or the midwife has the great responsibility to make sure that all
babies
born in the hospital are correctly labelled at birth and to ensure that at no
time they are
placed in the wrong cot or handled to the wrong mother.

8. Counting of sponge instrument and needles -

Nurses advocate that sponge, instrument and needle counts be performed
for all
surgical procedures taking place in operation theatre. When an instrument
left in a patient body the nurse will probably liable for any patient injury
caused by the presence of foreign body.

9. Contracts -
A contract is a written or oral agreement between 2 people in which goods
or services are exchanged.
10. Documentation -
Documentation is by far the best once a lawsuit field. The medical record
is a legal
document admissible in court as evidence.

LAW AFFECTING NURSES -

 Nurse practice laws

Describes and designs the legal boundaries of nurse practice act
within each state
 Statutory law
Created by elected legislative bodies such as state legislatures
 Enacted law
Include all bills passed by legislative bodies whether local, state,
and national

LAWS IN NURSING

 Common law
Created by judicial decisions made in courts when individual
cases are decided
 Felony
Is a crime of serious nature that has a penalty of imprisonment
for greater than one year or even death
 Misdemeanour
Is a less serious crime that has a penalty of a fine or
imprisonment of less than one year
 Civil law
Protects the rights of individual persons within our society and
encourage fair and equitable treatment among people
 Contract Law
 It is the enforcement of agreements among private individuals.
Employment Contracts is an example of contract law under civil law
 Criminal law
Prevent harm to society and provides punishment for crimes

Journal article
Nurses' Knowledge of Legal Liability in the Clinical Nursing Practice

Background: The expanded scope of nursing practice has brought increased

responsibility and legal accountability, along with it, increased exposure to
liability.

Method: A descriptive study was conducted at 2016 through distribution of

Nurses' Knowledge and Views of Legal Liabilities Questionnaire to 650 nurses
working in all General Care, Critical Care and Intensive Care Units at four
hospitals affiliated to the University,

Results: The results revealed that the majority of nurses had poor/inadequate to
fair/moderate levels of knowledge of the legal liability of their clinical
practices. In specific, nurses’ knowledge in relation to assault was the most
deficit dimension followed by false imprisonment, battery, carrying out
physician order, employment of nursing students, and dealing with suit prone
patients.

BIBLIOGRAPHY –

K D, C. Chandran S, B.P. Kumar M, ‘A comprehensive textbook on Nursing Management”,

2nd edition, EMMESS, 2013
Vati J, “Principles and Practice of Nursing Management & Administration”, Second edition,
Jaypee Publishers.2020