Know Nursing Law
In September 1993, in a case involving the failure of a nurse to administer a prescribed heparin injection to a patient, causing permanent damage from clots, a New Jersey court awarded the patient $2 million.
In 1997, due to failure of the nursing staff to timely notify a surgeon regarding adverse post back surgery complications, causing neurologic deficits, a North Carolina court awarded the plaintiff $136 million.
A Tennessee court awarded more than $7 million to a patient in a persistent vegetative state, after nurses failed to monitor the patient while on a ventilator, which ran out of oxygen in CT scan.
Failure to monitor a patient, poor documentation, failure to act, failure to inform the physician of patient’s condition change, failure to observe and communicate, failure to timely respond, failure to implement a physician’s order all are errors in judgment and action. The vast majority of nurses are caring and devoted to their profession but mistakes do happen. The greatest defense against litigation continues to be prevention of medical errors, accurate documentation and standardization of practice.1 Are you risking your license?
The Basics
A profession has been defined as “an occupation that requires extensive education, or a calling that requires special knowledge, skill and preparation.” It is generally distinguished from other kinds of occupations by its requirement of prolonged, specialized training to acquire a body of knowledge pertinent to the role to be performed and an orientation of the individual toward service, either to a community or organization.2
Nurses are responsible for their own actions, whether they practice independently or are employed by a health care facility. Accountability is an essential concept of professional nursing practice under the law.2
Through standards of care, the nursing profession attempts to ensure that those practicing are competent and safe practitioners. The American Nurses Association has established standards for specific areas of practice, and these standards are used often to evaluate the quality of care nurses provide.
State Practice Act
The delivery of nursing care is governed by statutes, regulations and common law.3 The Florida Nurse Practice Act outlines the regulation of nursing, including but not limited to delegation, documentation and discipline. The act defines professional nursing, practical nursing and advanced practice nursing, and provides the framework for the scope of nursing practice.
The purpose of the act is to protect Florida citizens from nurses who fall below minimum competency or otherwise present a danger to the public.3 Other regulatory agencies are also involved in enforcing the act, including the state Department of Health and the state Agency for Health Care Administration.
Each year the Florida Board of Nursing disciplines licensed nurses for violating the act. Due to the increase of nursing responsibilities, the fact that patients have a higher expectation of nurses and that courts hold nurses to a higher standard of care, nurses are being named in lawsuits more than ever before. Many disciplinary and malpractice cases have been brought to attorneys involving breaches of professional standards, and often the nurse does not even know she has put her license at risk.
An unintentional act or omission of an act that leads to the harm of another is called negligence. To establish negligence in court, the following elements must be proved:
legal duty – what a reasonably prudent nurse would do in the same or similar circumstances, in a same or similar health care facility;
breach of duty or failure to meet the standard of care – based on nurse practice acts, professional associations, policies and procedures, nursing journals;
causation – connection between the breach and the harm; and
harm to another.
Malpractice is professional negligence, but to be brought before the Board of Nursing, only the elements of legal duty and breach of duty need to be proven. For instance, unprofessional conduct, or departure from or failure to conform to the minimal standards of acceptable and prevailing nursing practice, may not cause harm or injury to the patient, but can be grounds for discipline by the Board of Nursing. There are 13 grounds for potential discipline outlined in the Florida Nurse Practice Act. Many of the discipline cases brought before the Board of Nursing involve unprofessional conduct.
Practice challenges for professional nurses can involve supervision and delegation, abandonment, assignment refusal, documentation, physicians’ orders, medication errors, patient rights, and policies and procedures.
Supervision/Delegation
Licensed nurses supervise nursing functions delegated to others. Each individual is responsible for carrying out their responsibilities and for carrying out those responsibilities competently.4 In Florida, nurse supervisors have ultimate responsibility and accountability, and are responsible and answerable for the actions, or failure to act, of themselves or others to whom there was delegation.
A nurse may not delegate any task that requires assessment, evaluation or nursing judgment, but implementation may be delegated within guidelines. Unlicensed assistive personnel, for instance, are there to assist, not replace, the nurse and they may not re-delegate. When delegating, it is important to communicate the scope of the task to prevent any misunderstanding.
To determine if the task is reasonable and appropriate, the five rights of delegation are a constructive guide:
right task – one that is delegable by scope and contract, and right for the specific patient;
right circumstances – appropriate setting and resources;
right person – right delegator is delegating the right task to the right delegate on the right patient;
right communication – clear, concise description of the task, including objectives, limits and expectations; and
right supervision – appropriate monitoring, evaluation, intervention and feedback.
Abandonment
With the current nursing shortage giving rise to increased nurse-patient ratios, enforced overtime and questions regarding the quality of nursing care, nurses have been concerned with abandonment and assignment refusal. Abandonment is the unilateral termination of a relationship between the health care provider and the patient. The Board of Nursing considers abandonment to include insufficient observation, failure to assure competent intervention with change in a patient’s condition and withdrawing services without providing qualified coverage.
In Florida, if a nurse accepts an assignment, the nurse cannot cease patient care until relief is available, except in an emergency.3 Abandon.ment is considered unprofessional conduct, but if the patient is harmed and a causal relationship between the breach and harm is proven, it may result in a case of negligence.
“If you don’t assume the assignment, you can’t abandon the patient,” says Carol Marden, JD, BSN, RN.4 Abandonment issues should also be considered when the nurse leaves the unit for breaks or at the end of the shift.
Refusal of Assignment
“The nurse exercises informed judgment and uses individual competency and qualifications as criteria in seeking consultation, accepting responsibilities and delegating nursing activities,” states the American Nurses Association’s position statement, “The Right to Accept or Reject an Assignment.”5 The nurse’s decision regarding accepting or making work assignments is based on the legal, ethical and professional obligation to assume responsibility for nursing judgment and action. Therefore, the nurse must balance competing legal, ethical and professional obligations when deciding whether to accept an assignment.3
Refusing an assignment can subject the nurse to suspension without pay, termination and/or allegations of abandonment. The decision should be made after careful consideration of all the options. If refusing an assignment, the nurse should document the reasons in writing, give a copy to the supervisor and keep one copy (not in the medical record). Always follow the chain of command and be open to alternatives (e.g., change in assignment).
Documentation
Several factors influence standards of documentation: facility policies and procedures, accreditation agencies, professional organization standards of practice, and state and federal regulations and statutes. It has been said that documentation is the best defense against allegations of negligence. Nurses should become knowledgeable about the documentation policies and procedures of the facility in which they are employed.
Documentation is also a means by which health care providers communicate with one another. It should be legible, accurate, timely and complete. Documentation should include the following:
initial assessment using the nursing process and applicable nursing diagnosis;
nursing actions;
ongoing assessment, including frequency of assessments;
variations from assessment and plan;
accountability information, including forms signed by patient, location of patient valuables and patient education;
notation of care by other providers, including doctor visits;
health teaching, including who was present, content and response;
procedures and diagnostic tests;
patient response to therapy, particularly to nursing interventions, drugs and diagnostic tests;
statements made by patients and family (use quotes); and
patient comfort and safety measures.4
Marden says that in court, the facility’s policies and procedures regarding documentation are frequently supported.4 Personal opinions should not be charted. If you must chart a late entry, it should be identified, signed and dated, and the date referenced should be related. Never erase or try to hide an error. If one is made, one line should be made through the error, and “mistaken entry” written, with signature and date. You should also only use abbreviations approved by the facility.
Although Florida’s Nurse Practice Act does not address documentation requirements specifically, it does provide grounds for discipline relating to filing a false report on patients’ charts, narcotic records, nursing notes, employment applications or any records relating to the patient.
Physicians’ Orders
Verbal and phone orders are taken when the physician cannot immediately attend to the patient, and per the facility’s policies and procedures. The order should be recorded with date and time, repeated to the physician for clarity and, preferably, confirmed with another nurse. The order must be signed by the physician in the period of time specified by the health care facility.
With regard to standing orders, Kirk Davis, an Orlando-based attorney specializing in Florida nursing law, says that in his opinion as someone who deals with these legal issues daily, “the facility does not have a standing order – any orders are those promulgated by physicians for use with their patients – the hospital does not make them, they simply follow the specific physician order or the physician committee’s directives of what would be appropriate in certain circumstances.”
Nurses should recognize obviously erroneous physician’s orders and be familiar with their employer’s policies, procedures, protocols and standards of practice.3 If an order is questioned or disagreed with, the nurse should always verify it with the physician who wrote the order. Davis says “nurses must err on the side of patient safety and if they have questions, they report to the physician.” If the nurse encounters difficulties, it should be reported to the supervisor to resolve the difference.
Medication Errors
Nurses can be negligent by forgetting to give a medication as well as by giving the wrong medication.2 Nurses should know medications, their correct dosage, indications and side effects. There are now eight rights of medication administration:
the right patient;
the right drug;
the right route;
the right time;
the right dose;
the right method;
the right documentation; and
the right of the patient to refuse.
Medication errors can occur during prescribing, ordering or transcription of the written order, dispensing, and administering.
Patient Rights
Patient rights are related to the patient’s expectations about their treatment.3 The patient has the right to information to make an informed treatment decision, the right to privacy and confidentiality with regard to those treatment decisions, and know that their care meets minimum standards.
Privacy in Florida is a right guaranteed by the state constitution, and extends to patient records. Disclosing this information, without the patient’s consent, is a violation of the duty of a professional nurse.
In Florida, self-determination also guarantees a patient the right to make choices regarding his/her health, and that includes refusal of treatment.
Informed consent arises from the word autonomy, which is synonymous with self-rule. The autonomous choice must be made by the patient intentionally, must be made with sufficient information about the procedure, risks, benefits and alternatives and include understanding of such, and the patient must be competent and free from medication effects or controlling influences.
According to Florida law, informed consent is a process. The duty to obtain informed consent rests with the person who is going to perform the procedure, but the nurse has a duty to “assess the patient for signs that informed consent may not exist and report that to the appropriate personnel.”3
Marden says the nurse should ask the following questions: “Have you spoken to your physician about the procedure?” If yes, “are you prepared to sign the consent?” If no, then the nurse should stop and inform the physician. When signing as a witness, the nurse is only witnessing the patient’s signature.
Policies and Procedures
Policies and procedures should be flexible guidelines, though not following a facility’s standard policies and procedures, or not having them, can have legal consequences. Policies and procedures are frequently used in court to establish standards of care. A violation of a facility’s policies and procedures can be used as evidence of the breach of duty in a negligence suit.
Davis says, again in his opinion, “the failure to follow policies and procedures is evidence of negligence, not negligence by itself – universally accepted is that never should a policy or procedure set a standard that is unreasonable.”
It’s Your License
Don’t inadvertently violate the act. Become knowledgeable about it, and your facility’s policies and procedures, and protect your license from discipline or legal action, as well as the lives you care for.
