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LEGAL ISSUES

DEDE CARR, BS, LDAKAREN NEU, MSN, CNE, CNP

Legal Issues in Health Care

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Legal Issues

Competencies:4. Describe the components of healthcare

employee and healthcare liability when delivering client care.A. Define: liability, negligence, malpractice and scope

of practice.B. Discuss what a policy and procedure is.C. Describe how policy and procedures protect the

worker and client from harm.

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Legal Issues

Competencies:Discuss how confidentiality must be

maintained in healthcare facilities with clients and their medical records. Define confidentiality. Discuss examples of confidential information Discuss with whom confidential information can be

shared Define libel and slander.

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Vocabulary List

Review terms (see instructor resource and course outline)

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Law

Law can be defined as “those rules made by humans which regulate social conduct in a formally binding manner” (Bernzweig, p. 3, as cited in Ramont & Niedringhaus, p. 28).

It provides a framework for establishing which healthcare worker actions in the care of clients are legal.

It differentiates the healthcare worker’s responsibilities from those of other healthcare professionals.

It helps establish the boundaries for independent nursing actions.

It assists in maintaining a standard of healthcare practice by making healthcare workers accountable under the law. (Ramont & Niedringhaus, p. 28)

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Legal Actions

Two kinds of legal actions:Civil or private Actions

Civil actions deal with relationships among individuals in society. For example, a man may file a suit against a person who

he believes cheated him (Civil).

Criminal Actions Criminal actions deal with disputes between and

individual and society (Criminal). For example, if a man shoots a person, society bring him

to trial. (Ramont & Niedringhaus, p. 28)

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Legal Action Differences

Major difference between criminal and civil law is the potential outcome for the defendant.

If found guilty in a civil action, such as malpractice, the defendant will pay a sum of money.

If found guilty in a criminal action, the defendant may lose money, be jailed, or be executed.

Healthcare workers & nurses can lose their license.

The action in a lawsuit is called litigation, and lawyers who participate in lawsuits may be referred to as litigators. (Ramont & Niedringhaus, p. 28)

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Legal Process-Civil

Civil litigation begins when the plaintiff (the complaining party) contacts an attorney. If a legal basis is found for litigation, a document called a complaint (statement by the plaintiff) is written and filed in the appropriate court.

The complaint names the defendant (the person alleged liable), states the facts involved in the case, defines the legal issues raised, and outlines the damages (compensation sought by the plaintiff.

Once the defendant is served a summons (a court order that notifies the defendant of the legal action), legal notices has been given and the defendant hires an attorney to represent his/her lawsuit.

The attorney will prepare and file an answer (a detailed response to the charges outlined in the complaint) that will either admit to or deny an or all of the allegations made in the complaint. (Parker-Feliciano, p. 22)

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Civil Litigation Process

The next step in litigation is a phase called discovery (a pretrial process allowing both sides to interview witnesses and look at documents) before the trial.

Depositions (out-of-court statements made by a witness under oath) may be taken, and interrogatories (written questions that must be answered in writing) may be served on the opposite party.

At trial, evidence will be presented and witnesses will be called to testify under oath.

Once the evidence has been presented, a verdict (a decision) will be rendered based on the facts of the case, the evidence and testimony presented, the credibility of the witnesses, and the laws that pertain to the issue/issues.

If either party disagrees with the outcome of the lawsuit they may file an appeal (request for a review of the decision). (Parker-Feliciano, p. 22)

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Criminal Legal Process

In a criminal trial, the defendant (person accused of the crime) has been arrested for a crime against the People (society). At trial, the People’s attorney and the defendant’s attorney present their case.

The judge or jury if a jury trial then deliberate (decide) the guilt or innocence of the defendant.

If a verdict of not guilty is reached, the defendant is released from custody.

If the verdict is guilty, the sentence (penalty) is decided based on the severity of the crime, the defendant’s past criminal record, and applicable laws. (Parker-Feliciano, p. 22)

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Civil Law-Tort

A tort is a civil wrong committed against a person or person’s property.

Torts are usually litigated in court by civil action between individuals.

The person or persons claimed to be responsible for the tort are sued for damages.

Tort liability almost always is based on fault, that is, something done incorrectly (an unreasonable act of commission) or something should have been done but was not (an unreasonable act of omission).

(Ramont & Niedringhaus, p. 28)

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Unintentional Torts

Intentional Torts

Negligence: Malpractice

AssaultBatteryFalse imprisonmentInvasion of privacyFalse CommunicationDefamationSlanderLoss of Client

Property

Torts-Civil Law

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Negligence-Unintentional Tort (Civil)

Negligence: misconduct or practice that is below the standard of expected of an ordinary, reasonable, and prudent practitioner/nurse/healthcare worker, which places another person at risk for harm.

Giving the wrong medication, the wrong food, or even food at the wrong consistency could be seen as negligence.

Pay attention to individual patient needs.Perform all your duties related to the patient as

instructed.Missing or incorrectly doing one part of the care

could be construed as negligence. (Ramont & Niedringhaus, p. 28)

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Standards of Care

Standards of Care: Acts that are permitted to be performed or prohibited from being performed.

Every healthcare provider is obligated to know and follow the established standards of care; the legal test is what a reasonable prudent (wise) healthcare worker of a similar education and experience would have done under similar circumstances.

The healthcare worker is held to the standards of care in the state in which he or she practices.

Federal and state laws, rules, regulations, and other professional agencies/organizations help define these standards. (Parker-Feliciano, p. 23)

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Negligence-Civil Tort

Gross negligence involves extreme lack of knowledge, skill, or decision-making.

The person clearly should have known that such behavior put clients at risk for harm.

(Ramont & Niedringhaus, p. 28)

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Malpractice-Unintentional Tort (Civil)

Malpractice is negligence that occurred while the person was performing as a professional.

Four elements must be present for a case of negligence or malpractice to be proven:

1. Healthcare worker has a relationship with the client (duty).

2. Healthcare worker fails to uphold the appropriate standard of care (breach).

3. The client has suffered harm, injury, or damage (harm).

4. The harm has to be a direct result of the healthcare worker’s failure to provide appropriate care (causation). (Ramont & Niedringhaus, p. 29)

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Negligent Actions

If a lawsuit is filed for a negligent act performed by a healthcare worker, it will also name the healthcare worker’s employer (facility).

In addition, employers may be held liable (legally responsible) for negligence if they fail to provide adequate human and material resources for healthcare., to properly educate healthcare workers on the use of new equipment or procedures, or to orient healthcare workers to the facility.

Sometimes the harm cannot be traced to a specific healthcare provider or standard but does not normally occur unless there has been a negligent act. Example, harm that results from surgical instruments accidently left

in a client during surgery. (Ramont & Niedringhaus, p. 29)

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Malpractice-Negligence

To defend against a negligence suit, the healthcare worker must prove that one or more of the required elements is not met.

There is also a limit to the amount of time that can pass between recognition of harm and the bringing of a suit; referred to as the statute of limitation.

In some cases, an additional defense is “contributory or comparative negligence” on the part of the injured person. In these situations, the client was at least partly responsible for his/her own injury. Example, when clients choose not to follow healthcare advice,

such as remaining in bed while recovering from treatment, the court may reduce any verdict against the healthcare worker by an amount considered to be the plaintiff’s own fault. (Ramont & Niedringhaus, p. 29)

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Malpractice

A person who does NOT give care with same level of skill that they learned in school can be found guilty of malpractice when this leads to an injury or damage to the person. For example, when a nursing assistant does NOT wash

his/her hands between patients and some of the patients get a serious infection, this nursing assistant can be found guilty of malpractice.

Nursing assistants should know how and when to wash their hands. Hand washing is learned in school before one becomes a nursing assistant and it is again taught again on a regular basis when the nursing assistant takes an in-service class on infection control. (Burke)

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Negligence

Negligence is when a person does NOT act the way they should. For example, a nursing assistant is negligent when

they do NOT take vital signs when they should have.

Criminal negligence occurs when a person is very reckless with patients and residents. For example, a nursing assistant can be found

guilty of criminal negligence if their at-risk for falls patient falls and dies after they were left alone for hours in a bath tub.

(Burke)

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Unprofessional Conduct

Abandonment is when a person leaves residents or patients without the care that they need.

A nursing assistant has abandoned the patients and residents when he/she leaves his/her place of work and goes home before the end of the shift without telling the nurse or supervisor.

Unprofessional conduct is when a person does NOT follow standards of practice even when NO harm or injury has come to a patient or resident. For example, a nursing assistant who comes to work

impaired with alcohol or drugs is showing unprofessional conduct even if none of the patients is harmed. (Burke)

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Malpractice Situations

To avoid malpractice, the healthcare worker must recognize situations in which negligent actions are most likely to occur & take measures to prevent them.

A common malpractice situation involves medication errors.

Another frequent malpractice action is attributed causing burns in a client (too hot a heating pad, bathwater, compresses). The elderly, comatose, and diabetic people are particularly vulnerable to burns because of their decreased sensitivity to pain and temperature. (Ramont & Niedringhaus, p. 29)

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Malpractice Examples

Falls: clients often fall accidently, sometimes with a resultant injury.

Some falls can be prevented by raising the side rails on cribs, beds, and stretchers for babies & small children, and some adults. If the healthcare worker leaves the side rails down or the baby unattended on the changing table, that healthcare worker is guilty of malpractice if the client falls and is injured as a direct result.

Healthcare workers must follow the facility’s policy and procedures about providing a safe client environment.

(Ramont & Niedringhaus, p. 29)

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Malpractice Situations

In some instances, ignoring a client’s complaints can constitute malpractice.

This type of malpractice is termed failure to observe and take appropriate action.

(Ramont & Niedringhaus, p. 29)

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Intentional Torts

Intentional TortsAssaultBattery False ImprisonmentInvasion of privacyFalse CommunicationDefamationSlanderLoss of client property

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Intentional Torts

Assault: an attempt or threat to touch another person unjustifiable

Assault precedes battery;It is the act that cause the person to believe a

battery is about to occur.Example: the person who threatens someone by

making a menacing gesture with a club or a closed fist is guilty of assault.

In healthcare, a healthcare worker who threatens a client with an injections after the client refuses to take the medication orally would be committing an assault.

(Ramont & Niedringhaus, p. 30)

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Intentional Tort

Battery: the willful touching of a person (or person’s clothes, or even something the person is carrying) that may or may not cause them harm.

To be illegal, however, the touching must be wrong in some way; it must be done without permission, be embarrassing, or cause injury. Example if the healthcare worker followed through with his

threat & gave the injection without the client’s consent, he would be committing battery.

Even though the physician ordered the medication & even if the client benefits from the administration of the medication, the healthcare worker is still liable.

(Ramont & Niedringhaus, p. 30)

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Assault & Battery-Torts

The care provided to the client by a healthcare worker is with the client’s permission or informed consent.

Therefore, a patient should know and agree to what the healthcare worker plans do before starting to provide that care. For example, the healthcare worker is assigned to do a

warm foot soak for the client. Despite the healthcare worker’s explanation of reasons for the order, the client refuses.

The healthcare worker cannot force the client to submit as doing so would result in battery. Assault occurs if the healthcare worker threatened the client that she/he would get others to assist if the client continued to refuse.

(Hegner, Acello, Caldwell, p. 40)

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Avoid Liability Pitfalls

Inform the patient what you plan to do.Make sure the patient understands.Pause before starting the care to give the

client an opportunity to refuse.Report refusal of care to your supervisor &

document the facts.Never carry out a treatment on your own

against the patient’s wishes.Coercion means forcing the client to do

something against his/her wishes. (Hegner, Acello, & Caldwell, p. 40)

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Avoid Liability Pitfalls

Refusal of a treatment creates a dilemma for the nursing assistant when the patient is mentally confused.

In general a family member or other responsible person gives consent for treatment. In this situation, it is presumed that the client would agree if he/she were mentally able to do so.

The patient may refuse a procedure, such as a bath, but the legally responsible person consented to the procedure, so you may perform it.

Gaining the client’s cooperation and trust is best. The nursing assistant may be able to perform the procedure if he/she waits awhile and returns.

Avoid forcing the patient.If one is unsure of how to handle refusals, check with the

supervisor. (Hegner, Acello, & Caldwell, p. 40)

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Intentional Tort

False Imprisonment: the “unlawful restraint or detention of another person against his/her wishes.”

False imprisonment need not require force; the fear of force to restrain or detain the individual is sufficient (Bernzweig, as cited in Ramont & Niedringhaus, p. 30).

False imprisonment accompanied by forceful restraint or threat of restraint is battery.

(Ramont & Niedringhaus, p. 30)

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False Imprisonment-Restraints

Using physical restraints or threatening to do so, in order to make a client cooperate can constitute false imprisonment.

Restraints may be in the form of physical devices or chemical agents.

A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or adjacent to the patient’s body that

A patient cannot easily moveRestricts a patient’s movementDoes not allow the patient normal access to his/her

body

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False Imprisonment-Restraints

Physical Restraints ExamplesWrist/arm & ankle/leg restraintsVestsJacketsHand mittsGeriatric chairs; cardiac chairsWheelchair safety belts & barsBed rails if they meet the definition listedIn general, many devices and practices meet the

definition of physical restraints if the patient does not have the physical or mental ability to remove the device.

(Hegner, Acello, & Caldwell, p. 39)

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False Imprisonment-Restraints

Examples of other practices that constitute restraints:Tucking in, tying, or using Velcro to hold a sheer

fabric or clothing tightly so the patient’s movement is restricted.

Using devices in conjunction with a chair (trays, tables, bars, or belts)that the patient cannot move easily and that keep the patient from rising.

Placing the patient in a chair that prevents the patient from rising.

Placing a chair or bed so close to a wall that the wall prevents the patient from rising or voluntarily getting out of bed. (Hegner, Acello, & Caldwell, pp. 39-40)

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False Imprisonment-Restraints

According to the Minnesota Department of Health, research shows multiple risks with the use of physical restraints. Access the website for information about:

MDH: Safety without Restraints

The following are some risks with restraints:

Falls Reduced Bone Mass Strangulation Stiffness Loss of Muscle Tone Frustration Pressure Sores Loss of Dignity Decreased Mobility IncontinenceAgitation Constipation

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False Imprisonment-Restraints

Psychoactive medications are considered chemical restraints because they affect the patient’s mobility.

Sometimes it is necessary to support and restrain the movements of patients.

Support or restraints cannot be used without a physician’s order.

This order indicates the extent of the restraint or support to be used, when it is used, and the reason for it. (Hegner, Acello, & Caldwell, p. 40)

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Alternatives to Restraints

1. Personal strengthening and rehabilitation program;2. Use of "personal assistance" devices such as hearing

aids, visual aids and mobility device;3. Use of positioning devices such as body and seat

cushions, and padded furniture;4. Efforts to design a safer physical environment, including

the removal of obstacles that impede movement, placement of objects and furniture in familiar places, lower beds and adequate lighting;

5. Regular attention to toileting and other physical and personal needs, including thirst, hunger, the need for socialization, and the need for activities adapted to current abilities and past interests;

(Minnesota Department of Health)

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Alternatives to Restraints

6. Design of the physical environment to allow for close observation by staff;

7. Efforts to increase staff awareness of residents' individual needs - possibly including assignment of staff to specific residents, in an effort to improve function and decrease difficult behaviors that might otherwise require the use of restraints;

8. Design of resident living environments that are relaxing and comfortable, minimize noise, offer soothing music and appropriate lighting, and include massage, art or movement activities;

9. Use of bed and chair alarms to alert staff when a resident needs assistance;

10. Use of door alarms for residents who may wander away. (Minnesota Department of Health)

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False Imprisonment-Tort

Nurses may suggest under certain circumstances that a client remain in the hospital room or bed, but the client must not be detained against the client’s will.

The client has a right to insist on leaving, even though it may be detrimental to his/her health.

The client can leave by signing an absence without authority (AWA) or against medical advice (AMA) form.

If you learn that a client wishes to leave without permission, inform your supervisor who will take care of the situation.

As with assault & battery, client competency is a factor in determining whether there is a case of false imprisonment or a situation of protecting a client from injury.

Agencies have clear policies about the application of restraints to guide healthcare workers in such dilemmas.

(Ramont & Niedringhaus, p. 30)

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Intentional Tort

Invasion of Privacy: a direct wrong of a personal nature that injures the feelings of the person and does not take into account the effect of revealed information on the standing of the person in the community.

Privacy is the right of individuals to withhold themselves and their lives from public scrutiny, or the right to be left alone.

Liability can result if the healthcare worker breaches confidentiality by passing along confidential client information to others or by intruding into the client’s private domain. (Ramont & Niedringhaus, p. 30)

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Invasion of Privacy

Patients have a right to their person and personal affairs kept confidential.

Protect the patient from exposure of his/her body.Knock & pause before entering the patient’s room.Draw the curtains when providing cares.Leave the room while visitors are with the patient.Do not listen to patients as they make calls.Abide by the rules of confidentiality.Do not try to force a patient to accept your personal

beliefs or views.Do not discuss the patient’s condition with anyone

outside of work. (Hegner, Acello, Caldwell, p. 42)

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Invasion of Privacy-Tort

Necessary discussion about a client’s medical condition is usually considered appropriate, but unnecessary discussion and gossip are considered a breach of confidentiality.

Necessary discussion involves only those people engaged in the client’s care.

Four major areas of confidential client information must be reported:1. Vital statistics (births, deaths)2. Infections and communicable diseases (syphilis)3. Child or elder abuse; any abuse4. Violent incidents (knife or gunshot wounds)

(Ramont & Niedringhaus, p. 30)

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Invasion of Privacy-Tort

As of April 14, 2003, healthcare agencies and providers must adhere to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). (Ramont & Niedringhaus, p. 30)

Patient Information--The ethical code asserts that information about clients is privileged and must not be shared with others. (Hegner, Acello, & Caldwell, p. 37)

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Confidentiality

Discuss client information only in appropriate places:

It is unwise to discuss a patient’s condition while in a patient’s room, even if the patient is unconscious. The patient may be able to hear & it could cause unnecessary worry.

Never discuss the patients in your care with your family or in the community.

Never discuss the patients during lunch or breaks, even with your coworkers. (Hegner, Acello, & Caldwell, p. 37)

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Confidentiality

Discuss patient information only with the proper people. At times you may be approach by others requesting information

about a patient. For example, you might be asked for such information by other

patients, family members, or members of the public, such as news reporters.

Discuss patients and their personal concerns only with your supervisor during a conference or report.

Make sure you are not being overheard by visitors or other patients.

You will learn to evade inquires tactfully: Stating that you do not know all the details of the treatment or the patient’s condition.

Redirecting inquires to the proper authority.Firmly, but politely, indicate that you do not have the authority

to provide the answers they seek. (Hegner, Acello, & Caldwell, p. 37)

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Confidentiality

Refer patient’s questions about laboratory results, the patient’s condition, or course of illness to the nurse or doctor.

Let the nurse/doctor relay information about a client’s death. Never give information concerning a client’s death to the patient’s family. When done with tact, a refusal if this kind is rarely resented by the family.

(Hegner, Acello, & Caldwell, p. 37)

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False Communication-Tort

Defamation: Communication that is false, or made with a careless disregard for the truth, and that results in injury to the reputation of a person.

Libel: Defamation by means of print, writing, or pictures. Writing in a patient’s chart that the physician is incompetent

because he doesn’t respond immediately to a call is an example of libel.

Slander: Defamation by the spoken word, stating information or false words that can cause damage to a person’s reputation. An example of slander would be for the healthcare worker to tell

the client that another healthcare worker is incompetent.

(Ramont & Niedringhaus, p. 30)

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Defamation-Slander

If a comment that criticizes a person’s competence is made to that person in private, it is not defamation because a third party cannot hear it.

It is slander only if it is communicated to a third party.

Nurses are allowed to make statements that could be considered defamatory, but only as part of nursing practice and only to a physician or another healthcare team caring directly for the client, for example: “The client exhibits inappropriate sexual behavior.” (Ramont & Niedringhaus, p. 30)

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Loss of Client Property

Client property, such as jewelry, money, eye glasses, and dentures is a constant concern to hospital personnel.

Many agencies request that client’s leave valuables at home to decrease the risks of lost property.

Sometimes situations arise in which the client may have valuables & facilities have policies to safeguard the client’s property.

Healthcare workers are expected to take reasonable precautions to safeguard a client’s property, and they can be held liable for its loss or damage if they do not exercise reasonable care. (Ramont & Niedringhaus, pp. 30-31)

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Theft

Taking anything that does not belong to you makes you guilty of theft. If you are caught, you are liable. The article taken need not be large or expensive to be considered stolen.

Even if patients offer an item to you, do not take it. Some patients may not be aware of their offer later, and it could look

bad. If you see someone stealing something and you do not report it, you

are guilty of aiding and abetting the crime. Because of the nature of work in healthcare, people must be honest

and dependable. Despite careful screening, dishonest people are sometimes hired and

things begin to disappear. These range from washcloths, money, patient’s personal belongings to

drugs. Sometimes workers are reluctant to report things that they see other

people doing. Remember you are responsible for your own actions & must take the

proper actions. (Hegner, Acello, & Caldwell, p. 39)

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Criminal Law

A crime is an act committed in violence of public (criminal) law and punishable by a fine or imprisonment.

Crimes are classified as either felonies or misdemeanors.

Crimes are punished through the criminal action by the state against an individual. A felony is a crime of serious nature, (i.e., murder) punishable

by prison. In other areas, second-degree murder is called manslaughter. A misdemeanor is a less serious offense than a felony and it is

usually punishable by a fine, a short-term jail sentence, or both. A healthcare worker who slaps a client’s face could be charged

with a misdemeanor. (Ramont & Niedringhaus, p. 31)

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Interventions to Prevent Law Suits

Stay within your scope of practice & do not overstep your authority

Do only things that you have been taught to do and that are within your scope of training.

Carry out procedures carefully as you were taught.

Request guidance from the proper person before you take action in a questionable situation.

Always keep safety and the well-being of the client foremost in your mind and act accordingly.

(Hegner, Acello, & Caldwell, p. 41)

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Interventions to Prevent Law Suits

Make sure you thoroughly understand directions for the care you are to give; don’t be afraid to ask questions to clarify.

Perform your job according to the facility’s policies.

Maintain in-service/educational requirements of OBRA

Stay within the OBRA guidelines.Do no harm to the patient.Respect the patient’s belongings (property).

(Hegner, Acello, & Caldwell, p. 41)

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ReferencesBurke, A. (2010). Legal aspects and ethics. Retrieved from

http://www.nursingassistanteducation.com/site/courses/eng/nae-liae-eng.php

Hegner, B.R., Acello, B., & Caldwell, E. (2004). Nursing assistant: A nursing process approach (9th ed.). Clifton Park, NY: Thompson Delmar Publishing

Minnesota Department of Health. (2001, December). Safety without restraints: A new practice standard for safe care. Retrieved from http://www.health.state.mn.us/divs/fpc/safety.htm

Parker-Feliciano, K. (2006). Legal and ethical aspects of nursing. In B.L. Christensen & E. O. Kockrow (Eds.). Foundations and adult health nursing (5th ed.) (pp. 270-314). St. Louis, MO: Elsevier, Mosby

Ramon, P.R. & Niedringhaus, D. M. (2008). Infection control and asepsis. Fundamental nursing care (2nd ed.) (pp. 149-176). Upper Saddle River, NJ: Person Prentice Hall