legal issues in health care competency 4 1. describe the components of healthcare employee and...

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Legal Issues in Health Care Competency 4

Describe the components of healthcare employee and healthcare liability when delivering client care.

• Define: liability, negligence, malpractice and scope of practice.

• Discuss what a policy and procedure is.• Describe how policy and procedures protect the worker and

client from harm.

Legal Issues In Health CareCompetency 4

Review terms (see instructor resource and course outline)

Vocabulary List

Law can be defined as “those rules made by humans which regulate social conduct in a formally binding manner”.

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

Law

Ramon, P.R. & Niedringhaus, D. M. (2008).

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.

Law


Two kinds of legal actions:

Civil or Criminal 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).

Legal Actions


Two kinds of legal actions:

Civil or Criminal Actions

Criminal actions deal with disputes between and individual and society.

For example, if a man shoots a person, society bring him to trial (Criminal) .

Legal Actions


• 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 and 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.

Legal Action Differences


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.

Legal Process-Civil

Parker-Feliciano, K. (2006).

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.

Legal Process-Civil


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.

Civil Litigation Process


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).

Civil Litigation 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.

Criminal Legal Process


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.

Criminal Legal Process


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.

Civil Law-Tort


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).

Civil Law-Tort


Torts-Civil Law

Unintentional Torts

Negligence

Malpractice

Intentional Torts

Assault

Battery

False imprisonment

Invasion of privacy

False Communication

Defamation

Slander

Loss of Client Property

http://www.cnatrainingclass.com/potential-legal-issues-faced-by-a-certified-nursing-assistant/legal

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.

Negligence-Unintentional Tort (Civil)


Missing or incorrectly doing one part of the care could be construed as negligence.

Pay attention to individual patient needs.

Perform all your duties related to the patient as instructed.

Negligence-Unintentional Tort (Civil)


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.

Standards of Care


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.

Standards of Care


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.

Negligence-Civil Tort


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).

Malpractice-Unintentional Tort (Civil)


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.

Negligent Actions


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.

Malpractice-Negligence


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.

Malpractice-Negligence


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)

Malpractice

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)

Negligence

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)

Unprofessional Conduct

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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)

Malpractice Situations


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)

Malpractice Examples


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

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


Malpractice Situations


Intentional Torts Assault Battery False Imprisonment Invasion of privacyFalse Communication Defamation SlanderLoss of client property

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.


Intentional Torts


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.


Intentional Tort


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)

Assault & Battery-Torts

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)

Avoid Liability Pitfalls

Hegner, B.R., Acello, B., & Caldwell, E. (2004).

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)

Avoid Liability Pitfalls


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.


Intentional Tort


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 move Restricts a patient’s movement Does not allow the patient normal access to his/her

body

False Imprisonment-Restraints

Physical Restraints Examples Wrist/arm & ankle/leg restraints Vests Jackets Hand mitts Geriatric chairs; cardiac chairs Wheelchair safety belts & bars Bed rails if they meet the definition listed In 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)



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)



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


http://www.health.state.mn.us/divs/fpc/safety.htm

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)



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)

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)

Alternatives to Restraints

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.


False Imprisonment-Tort


Author:

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“This workforce solution was funded by a grant awarded by the U.S. Department of Labor’s Employment and Training Administration. The solution was created by the grantee and does not necessarily reflect the official position of the U.S. Department of Labor. The Department of Labor makes no guarantees, warranties, or assurances of any kind, express or implied, with respect to such information, including any information on linked sites and including, but not limited to, accuracy of the information or its completeness, timeliness, usefulness, adequacy, continued availability, or ownership.” This work is licensed under a Creative Commons Attribution 4.0 International License.

Burke, 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 (9 th

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

References

http://www.health.state.mn.us/divs/fpc/safety.htm

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