NCBI Bookshelf. A service of the National Library of Medicine, National Institutes of Health.
Open Resources for Nursing (Open RN); Ernstmeyer K, Christman E, editors. Nursing Management and Professional Concepts [Internet]. Eau Claire (WI): Chippewa Valley Technical College; 2022.
• Examine nursing practice within the legal framework of health care
• Examine how negligence and malpractice apply to nursing practice
• Provide nursing care within one’s legal scope of practice
• Analyze legal cases related to nursing practice utilizing standards of care
• Outline how to protect one’s nursing license
• Operate within the legal framework of one’s state Nurse Practice Act
• Examine the role of the nurse when observing illegal and/or unsafe practices
• Report client conditions as required by law
• Maintain client confidentiality and privacy
• Verify the client receives appropriate education and consents for care and procedures
• Provide client with advance directives information and integrate into their plan of care
Nurses are responsible for being aware of the laws and regulations affecting their nursing care in the state(s) in which they are practicing. If allegations are made regarding a nurse’s professional conduct or provision of client care, the excuse “I did not know” does not hold up in a court of law or with a state’s Board of Nursing. This chapter will provide foundational legal knowledge for nursing practice in complex health care environments.
There are several types of laws and regulations that affect nursing practice. Laws are rules and regulations created by a society and enforced by courts and professional licensure boards. Nurses are responsible for being aware of public and private laws that affect client care, as well as legal actions that can result when these laws are broken.
Laws are generally classified as public or private law. Public law regulates relations of individuals with the government or institutions, whereas private law governs the relationships between private parties.
There are several types of public law, including constitutional, statutory, administrative, and criminal law.
Constitutional law refers to the rights, privileges, and responsibilities established by the U.S. Constitution.[1] The right to privacy is an example of a patient right based on constitutional law.
Statutory law refers to written laws enacted by the federal or state legislature. For example, the Nurse Practice Act in each state is an example of statutory law enacted by that state’s legislature. The Health Insurance Portability and Accountability Act (HIPAA) is an example of a federal statutory law. HIPAA required the creation of national standards to protect sensitive client health information from being disclosed without the client’s consent or knowledge.
Administrative law is law created by government agencies that have been granted the authority to establish rules and regulations to protect the public.[2] An example of federal administrative law is the regulations set by the Occupational Safety and Health Administration (OSHA). OSHA was established by Congress to ensure safe and healthy working conditions for employees by setting and enforcing federal standards. An example of administrative law at the state level is the State Board of Nursing (SBON). The SBON is a group of individuals in each state, established by that state’s legislature, to develop, review, and enforce the Nurse Practice Act. The SBON also issues nursing licenses to qualified candidates, investigates reports of nursing misconduct, and implements consequences for nurses who have violated the Nurse Practice Act.
Criminal law is a system of laws concerned with punishment of individuals who commit crimes.[3] A crime is a behavior defined by Congress or state legislature as deserving of punishment. Crimes are classified as felonies, misdemeanors, and infractions. Conviction for a crime requires evidence to show the defendant is guilty beyond a shadow of doubt. This means the prosecution must convince a jury there is no reasonable explanation other than guilty that can come from the evidence presented at trial. In the United States, an individual is considered innocent until proven guilty. See Figure 5.1[4] for an illustration of a trial with a jury.
Serious crimes that can result in imprisonment for longer than one year are called felonies. Felony convictions can also result in the loss of voting rights, the ability to own or use guns, and the loss of one’s nursing license. An example of a felony committed by some nurses is drug diversion of controlled substances.
Misdemeanors are less serious crimes resulting in penalties of fines and/or imprisonment for less than one year. For example, in Wisconsin, misdemeanors are categorized as Class A, B, or C based on their sentencing. Class A misdemeanors are sentenced to a fine not to exceed $10,000 or imprisonment not to exceed nine months, or both. Class B misdemeanors are sentenced to a fine not to exceed $1,000 or imprisonment not to exceed 90 days, or both. Class C misdemeanors are sentenced to a fine not to exceed $500 or imprisonment not to exceed 30 days, or both.[5] Examples of misdemeanors include battery, possession of controlled substances, petty theft, disorderly conduct, and driving under the influence (DUI) charges. Although considered less serious crimes, misdemeanors can impact an individual’s ability to obtain or maintain a nursing license.
Nurses who are found guilty of misdemeanors or felonies, regardless if the violation is related to the practice of nursing, must typically report these violations to their state’s Board of Nursing.
Infractions are minor offenses, such as speeding tickets, that result in fines but not jail time. Infractions do not generally impact nursing licensure unless there is a significant quantity of them over a short period of time.
Sample Case
An LPN working for a hospice agency was accused of stealing a patient’s pain medications and substituting them with anti-seizure medication. The family asserted the actions of the LPN prolonged the patient’s suffering. The LPN served time in prison for diverting the patient’s medications.[6]
Private law, also referred to as civil law, focuses on the rights, responsibilities, and legal relationships between private citizens. Civil law typically involves compensation to the injured party. Unlike criminal law that requires a jury to determine a defendant is guilty beyond reasonable doubt, civil law only requires a certainty of guilt of greater than 50 percent.[7] See Figure 5.2[8] illustrating balancing the evidence to determine the certainty of guilt. Any nurse can be impacted by civil law based on actions occurring in daily nursing practice.
Balancing the Evidence to Determine Guilt
Civil law includes contract law and tort law. Contracts are binding written, verbal, or implied agreements. A tort is an act of commission or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment that an individual suffers.[9]
Two categories of torts affect nursing practice: intentional torts, such as intentionally hitting a person, and unintentional torts (also referred to as negligent torts), such as making an error by failing to follow agency policy.
Intentional torts are wrongs that the defendant knew (or should have known) would be caused by their actions. Examples of intentional torts include assault, battery, false imprisonment, slander, libel, and breach of privacy or client confidentiality.
Unintentional torts occur when the defendant’s actions or inactions were unreasonably unsafe. Unintentional torts can result from acts of commission (i.e., doing something a reasonable nurse would not have done) or omission (i.e., failing to do something a reasonable nurse would do).[10]
Negligence and malpractice are examples of unintentional torts. Tort law exists to compensate clients injured by negligent practice, provide corrective judgement, and deter negligence with visible consequences of action or inaction.[11],[12] Examples of common torts affecting nursing practice are discussed in further detail in the following subsections. See Table 5.2 for a comparison of public and private law.
Comparison of Public and Private Law
Statutory law (Nurse Practice Act and HIPAA) Constitutional law (Right to Privacy) Administrative law (State Board of Nursing and OSHA) Criminal law (felonies and misdemeanors) Contract law Confidentiality False imprisonment Negligence MalpracticeAssault and battery are intentional torts. Assault is defined as intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact.[13] Battery is defined as intentional causation of harmful or offensive contact with another person without that person’s consent.[14] Physical harm does not need to occur to be charged with assault or battery. Battery convictions are often misdemeanors but can be felonies if serious bodily harm occurs. To avoid the risk of being charged with assault or battery, nurses must obtain consent from clients to provide hands-on care.
False imprisonment is an intentional tort. False imprisonment is defined as an act of restraining another person and causing that person to be confined in a bounded area.[15] In nursing practice, restraints can be physical, chemical, or verbal. Nurses must strictly follow agency policies related to the use of restraints. Physical restraints typically require a provider order and documentation according to strict guidelines within specific time frames. See Figure 5.3[16] for an image of a simulated client in full physical medical restraints.
Full Physical Medical Restraints
Chemical restraints include administering medications such as benzodiazepines and require clear documentation supporting their use. Verbal threats to keep an individual in an inpatient environment can also qualify as false imprisonment and should be avoided.
Breaching privacy and confidentiality are intentional torts. Confidentiality is the right of an individual to have personal, identifiable medical information, referred to as protected health information (PHI), kept private. Protected Health Information (PHI) is defined as individually-identifiable health information including demographic data that relates to the individual’s past, present, or future physical or mental health or condition[17]; the provision of health care to the individual; and the past, present, or future payment for the provision of health care to the individual.
This right is protected by federal regulations called the Health Insurance Portability and Accountability Act (HIPAA). HIPAA was enacted in 1996 and was prompted by the need to ensure privacy and protection of personal health records and data in an environment of electronic medical records and third-party insurance payers. There are two main sections of HIPAA law: the Privacy Rule and the Security Rule. The Privacy Rule addresses the use and disclosure of individuals’ health information. The Security Rule sets national standards for protecting the confidentiality, integrity, and availability of electronically protected health information. HIPAA regulations extend beyond medical records and apply to client information shared with others. Therefore, all types of client information should be shared only with health care team members who are actively providing care to them.[18],[19]
HIPAA violations may result in fines from $100 for an individual violation to $1.5 million for organizational violations. Criminal penalties, including jail time of up to ten years, may be imposed for violations involving the use of PHI for personal gain or malicious intent. Nursing students are also required to adhere to HIPAA guidelines from the moment they enter the clinical setting or risk being disciplined or expelled by their nursing program.
Sample Case
An RN accessed a patient’s medical records, as well as the records of the newborn son, although she was not assigned to their care because she believed the newborn was her biological grandchild. Although the chart was accessed for less than five seconds, it was unauthorized. The nurse was publicly reprimanded by the state’s Board of Nursing, and her multistate licensure privileges were revoked. Expenses to defend the nurse exceeded $2,800.[20]
Slander and libel are intentional torts. Defamation of character occurs when an individual makes negative, malicious, and false remarks about another person to damage their reputation. Slander is spoken defamation and libel is written defamation. Nurses must take care to communicate and document facts regarding patient care without defamation in their oral and written communications with clients and coworkers.
Fraud is an intentional tort occurring when an individual is deceived for personal gain. An example of fraud is financial exploitation perpetrated by individuals who are in positions of trust.[21],[22] A nurse may be charged with fraud for documenting interventions not performed or altering documentation to cover up an error. Fraud can result in civil and criminal charges and also suspension or revocation of a nurse’s license.
Negligence and malpractice are types of unintentional torts. Negligence is the failure to exercise the ordinary care a reasonable person would use in similar circumstances. Wisconsin civil jury instruction states, “A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.”[23] Malpractice is a specific term used for negligence committed by a professional with a license. See Figure 5.4[24] for an illustration related to malpractice.
Nurses and nursing students don’t often get sued for malpractice, but when they do, it is important to understand the elements required to prove malpractice. All of the following elements must be established in a court of law to prove malpractice[25]:
Duty: A nurse-client relationship exists.Breach: The standard of care was not met and harm was a foreseeable consequence of the action or inaction.
Cause: Injury was caused by the nurse’s breach. Harm: Injury resulted in damages.Parties bringing a lawsuit must be able to demonstrate their interests were harmed, providing a reason to stand before the court. The person bringing the lawsuit is called the plaintiff. The parties named in the lawsuit are called defendants. Most malpractice lawsuits name physicians or hospitals, although nurses can be individually named. Employers can be held liable for the actions of their employees.[26]
Malpractice lawsuits are concerned with the legal obligations nurses have to their patients to adhere to current standards of practice. These legal obligations are referred to as the duty of reasonable care. Nurses are required to adhere to standards of practice when providing care to patients they have been assigned. This includes following organizational policies and procedures, maintaining clinical competency, and confining their activities to the authorized scope of practice as defined by their state’s Nurse Practice Act. Nurses also have a legal duty to be physically, mentally, and morally fit for practice. When nurses do not meet these professional obligations, they are said to have breached their duties to patients.[27]
In the work environment, a duty is created when the nurse accepts responsibility for a patient and establishes a nurse-patient relationship. This generally occurs during inpatient care upon acceptance of a handoff report from another nurse. Outside the work environment, a nurse-patient relationship is created when the nurse volunteers services. Some states have statutes requiring notification of authorities (also referred to as mandatory reporting) or summoning assistance.[28]
The Good Samaritan Law provides protections against negligence claims to individuals who render aid to people experiencing medical emergencies outside of clinical environments. All 50 states in the United States have a version of a Good Samaritan Law. See Figure 5.5[29] for historical artwork depicting a Good Samaritan. Differences exist in state laws regarding protection of bystanders who provide aid. For example, in Wisconsin, the law states, “Any person who renders emergency care at the scene of any emergency or accident in good faith is immune from civil liability for the person’s acts or omissions in rendering such emergency care.”[30] There are a few states that require some emergency bystander action, so nurses should review the law in states they are visiting. It is also important to keep in mind that although anyone can file a lawsuit against someone who provides bystander aid, the Good Samaritan laws typically negate any penalty to the person rendering aid.
Although the majority of Good Samaritan laws are at the state level, the federal Aviation Medical Assistance Act (AMAA) provides liability protection for aid given on aircraft. The most common in-flight medical emergencies involve syncope, as well as gastrointestinal, respiratory, and cardiac events.[31] Note that consent for care by an unconscious person is implied, but consent must be obtained from alert individuals.
Nurses are legally responsible for reporting certain crimes. Mandatory reporting requirements vary based on the state of practice, but there are some commonalities. For example, nurses are mandated to report suspected abuse of children, the elderly, and the disabled (if they have been deemed as incompetent by a court of law or as incapacitated by qualified health care providers).
Nurses are also mandated to report gunshot wounds, dog bites, some communicable diseases, and unsafe or illegal practices of other health care team members. Reporting responsibility often begins at the organizational level. The nurse may also need to identify the appropriate local, state, or federal authorities to submit the report and pursue it to its resolution.
Sample Statute Regarding Duty to Assist
A Minnesota statute states that a person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this is guilty of a petty misdemeanor.[32]
Duty can be established in many ways. Nurses have a duty of reasonable care for a patient they have been assigned. They may also have a duty in other circumstances. Therefore, nurses should understand the following[33]:
Recognize that a nurse-patient relationship is established upon acceptance of responsibility for a patient, whether after a handoff report in the workplace or during volunteered services.
Assume that on-call or supervisory responsibilities create a duty to patients, even in the absence of an expressed nurse-patient relationship.
Know if there is a duty to rescue statute in their state, and if so, what it demands.The second element of malpractice is breach of duty. After a plaintiff has established the first element in a malpractice suit, that the nurse owed a duty to the plaintiff, the plaintiff must then demonstrate that the nurse breached that duty by failing to comply with the duty of reasonable care.[34]
To demonstrate that a nurse breached their duty to a patient, the plaintiff must prove the nurse departed from acceptable standards of practice. The plaintiff must establish how a reasonably prudent nurse in the same or similar circumstances would act and then show that the defendant nurse departed from that standard of practice. The plaintiff must claim the nurse did something a reasonably prudent nurse would not have done (an act of commission) or failed to do something a reasonable nurse would have done (an act of omission).[35]
Experts are needed during court hearings to explain things outside the knowledge of non-nurse jurors. In reaching their opinions, experts review many materials, including the state’s Nurse Practice Act and organizational policies, to determine whether the nurse adhered to them. To qualify as a nurse expert, the person testifying must have relevant experience, education, skill, and knowledge. They typically have advanced degrees, are published in nursing literature, have spoken at professional conferences, and belong to professional organizations. Medical malpractice trials take place primarily in state courts, so experts are deemed qualified based on state requirements.
Sample Case Regarding Breach of Duty[36]
Mary Jones was an 87-year-old woman who presented to the hospital with dizziness, nausea, intermittent slurred speech, an unsteady gait, and a history of four falls at home that day. Significant medical history included heart disease and multiple medications. The admitting nurse assessed her as being at risk for falls and placed her on universal fall precautions. The fall precautions included keeping the bed in the lowest position, instructing her on the use of the call light and ensuring the call light was within her reach, providing a bedside commode, and placing her in a room close to the nurses’ station where she could be observed. However, the nurse did not use a formal scoring system for fall risk assessment that was set forth in a nursing procedures textbook. Additionally, bed alarms had not been working at this agency for a year.
Five days later, a nurse responded to a sound coming from Mrs. Jones’s room and found her lying on the bathroom floor. She was conscious and able to move all extremities but complained of left knee and elbow pain. The physician was notified, and Mrs. Jones was sent for X-rays and a CT scan. When Mrs. Jones returned to her room, the nurse observed she was diaphoretic and deteriorating. The nurse took Mrs. Jones to the emergency department, where she lost consciousness. She was evaluated by a neurosurgeon, intubated, and airlifted to a different hospital for a higher level of care. She never regained consciousness and died the next day from intracranial bleeding that was aggravated by anticoagulant therapy.
Mrs. Jones’s estate brought a lawsuit alleging nursing malpractice. The estate’s nursing expert stated the universal fall precautions had been inadequate for a high-risk patient and additional measures should have been instituted. The expert testified that not only had the admitting nurse not adhered to the formal scoring system for fall risk assessment in the nursing procedures textbook, but also the standard of care required nurses to use bed alarms, institute 15-minute rounds, or place a sitter in the room.
A defense expert used The Joint Commission’s National Patient Safety Goals to define the standard of care and testified it was her opinion the nurse had met that standard. The organizational policy did not require bed alarms as part of its fall prevention plan. Although the nurses did not use the formal scoring system in a textbook to assess the patient’s risk, they clearly identified her as being at risk for falling; assessed her frequently; maintained her bed in the lowest position; kept the wheels of her bed locked and her side rails up; and kept the call light within her reach. They instructed her on the use of the call light and placed her in a room where she could be readily observed.
The court entered the judgment for the defendant hospital, noting that “under the circumstances, it is a close call on whether the hospital, by not having functioning bed alarms and staff not checking on Mary more frequently, breached the standard of care.”[37] In this case, the plaintiff’s expert had not demonstrated the standard of care was breached.
Nurses defending themselves against allegations of professional malpractice must demonstrate their actions conformed with accepted standards of practice. They must convince a jury they acted as a reasonably prudent nurse would have in the same or similar circumstances. Nurses should always follow these practices[38]:
Adhere to organizational policies and procedures. Work-arounds can create liability. The standard of practice is to adhere to agency policy. Failing to do so creates an assumption of departure from standards.
Document in a manner that permits accurate reconstruction of patient assessments and the sequence of events, especially when notifying providers regarding clinical concerns.
Maintain competence through continuing education, participation in professional conferences, membership in professional organizations, and subscriptions to professional journals.
When using an interpreter, ensure that properly trained interpreters are used and document the name of the interpreter. The use of family, friends, or other untrained interpreters is unsafe practice and is not consistent with acceptable standards of practice.
Maintain professional boundaries. Personal relationships with patients or their families can be red flags for juries and can be viewed as evidence of departure from professional standards.
The third element of malpractice is cause. After the plaintiff has established the nurse owed a duty to a patient and then breached that duty, they must then demonstrate that damages or harm were caused by that breach. Plaintiffs cannot prevail by only demonstrating the nurse departed from acceptable standards of practice, but must also prove that such departures were the cause of any injuries.[39] Additionally, nurses are held accountable for foreseeability, meaning a nurse of ordinary skill, care, and diligence could anticipate the risk of harm of departing from standards of practice in similar circumstances.[40]
Plaintiffs must be able to link the defendant’s acts or omissions to the harm for which they are seeking compensation. This requires expert testimony from a physician because it requires a medical diagnosis. Unlike in criminal cases, in which the standard of proof is that elements of prosecution must be proven “beyond reasonable doubt,” the elements of a malpractice lawsuit must be proven by a “preponderance of evidence.” Expert testimony is required to demonstrate “medical certainty” that the nurse’s breach was the cause of an actual injury.
Sample Cases Regarding Causation
Janusz Osiecki was admitted to a subacute nursing facility to recover from Guillain-Barre syndrome. The standard of nursing care for this client included respiratory assessments and tracheostomy care. One morning, three weeks into his stay, he was found unresponsive, without pulse or respirations. His wife brought a wrongful death lawsuit, and expert witnesses testified the nurses breached the standard of care in not performing respiratory and tracheostomy assessments every two hours. Their rationale was that the purpose of the assessments was to detect and report pulmonary congestion, and if the nurses had done so in a timely manner, Mr. Osiecki could have received medical care that would have saved his life. A jury awarded the widow $577,005 for wrongful death and $250,000 for harm to family relationships.[41]
A psychiatric patient identified as “C” was locked in a seclusion room after presenting to a hospital with psychosis and continuing bizarre behavior, hallucinations, irrationality, lack of contact with reality, and agitation. She was in the seclusion room undergoing treatment for over a week when she suffered a grand mal seizure. A psychiatrist ordered antipsychotic medication. The medication order was not noted by nursing staff until the next day, at which point it was discovered the medication was unavailable at the pharmacy. The psychiatrist was not made aware the medication was unavailable, and the patient went without the prescribed medication for three days. The nurses also did not notify the psychiatrist during those three days that C was becoming increasingly more agitated and hallucinating. On the fourth day, C attempted to leave the unit and told staff she was hearing voices instructing her to harm herself. She was returned to seclusion and remained there without being assessed or treated. Four hours later, she was found unconscious with her head wedged between the side rail and the mattress. She suffered brain damage that left her in a permanent semicomatose state.
C’s estate brought a lawsuit alleging it was negligent to leave C in a steel bed in a seclusion room without constant observation. The jury awarded $3.6 million. The hospital appealed, but the appellate court upheld the jury verdict and explained that particular injuries do not need to be foreseen, only the general harm that can occur. The court stated, “It is not extraordinary that a psychotic patient who is delusional…might wedge herself between a mattress and side rail in an attempt to hurt herself.”[42]
Nurses can reduce their liability by adhering to professional standards and documenting their observations and communications. Nurses should always follow these standards[43]:
Follow the chain of command when there are concerns about unclear or potentially unsafe orders. Pursue concerns to resolution, documenting precisely who is notified and at what times.
Document observations to justify clinical decisions. Variance charting (i.e., only charting things that vary from the norm) does not provide sufficient evidence of compliance with the standards of care.
Adhere to organizational policies and procedures with an understanding that a failure to do so creates foreseeable harm to patients.
The fourth element of malpractice is harm. In a civil lawsuit, after a plaintiff has established the nurse owed a duty to the patient and breached that duty and injury was caused by the nurse’s breach, they must prove the injury resulted in damages. They request repayment for what they have lost.[44]
There are several types of injuries for which patients or their representatives seek compensation. Injuries can be physical, emotional, financial, professional, marital, or any combination of these. Physical injuries include loss of function, disfigurement, physical or mental impairment, exacerbation of prior medical problems, the need for additional medical care, and death. Economic injuries can include lost wages, additional medical expenses, rehabilitation, durable medical expenses, the need for architectural changes to one’s home, the loss of earning capacity, the need to hire people to do things the plaintiff can no longer do, and the loss of financial support. Emotional injuries can include psychological damage, emotional distress, or other forms of mental suffering.[45]
Determining the specific amount a plaintiff needs can require expert witness testimony from a person known as a life care planner who is trained in analyzing and evaluating medical costs, as well as the subjective determination of a jury. Damages fall into several categories, including compensatory (economic) damages, noneconomic damages, and punitive damages.[46] See Figure 5.6[47] for an illustration of damages.
Economic damages (also referred to as actual damages) can be quantified. They are intended to restore the plaintiff to the position they were in before being injured. Compensatory damages are objectively calculated to provide the plaintiff with the amount of money necessary to replace what was lost.[48]
Noneconomic damages are subjective and can include things such as emotional distress, pain and suffering, loss of enjoyment of life, reputation damage, loss of companionship, or loss of parental guidance. They are more difficult to quantify than economic damages.[49]
Punitive damages are awards not related to the actual injury but are intended to punish the defendant(s) and deter others from engaging in similar conduct. In professional malpractice cases, punitive damages are difficult for plaintiffs to obtain because they must be related to outrageous conduct, such as gross negligence, recklessness, willful actions, or fraud.[50]
Sample Case Related to Damages[51]
Betty Shiflett fell out of bed in the recovery room after undergoing knee surgery. Three days later, she reported a clicking sound and pain in her knee to one of the nurses. Although the nurse documented these symptoms, she did not convey the information to the physician. A physical therapist reported these symptoms to the physician a week later. The physician then identified a previously undiagnosed nondisplaced left tibial fracture that was now avulsed. Two additional surgeries were unsuccessful, and Betty remained disabled, confined to a wheelchair, and in chronic pain.
Betty and her husband filed a lawsuit alleging negligence for the fall and the nurse’s failure to report the symptoms to the physician. They also asserted a claim for a loss of consortium, meaning the spouse or family had also been harmed. The harm suffered is a loss of companionship, conjugal relations, support and services, or marital quality. The jury awarded total damages of $2,391,620 with the following breakdown:
$791,620 for future medical expenses $800,000 for past noneconomic damages $500,000 for future noneconomic damages $300,000 for loss of consortium with spouseNurses can reduce their liability exposure by following these principles[52]:
Practicing according to current standards of practice. Maintaining professional liability insurance to provide coverage for events and licensure defense. Avoiding work-arounds or deviations from organizational policies and procedures. Maintaining clinical competency, including awareness of standard-of-practice changes. Engaging the chain of command with patient concerns and pursuing concerns to resolution.Documenting in a manner that permits accurate reconstruction of patient assessments, notification of others, and the sequence of events.
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This work is a derivative of StatPearls by West and Varacallo and is licensed under CC BY 4.0 ↵.Brous, E. (2019). The elements of a nursing malpractice case, Part 1: Duty. American Journal of Nursing , 119(7), 64–67. ↵ 10.1097/01.NAJ.0000569476.17357.f5. [PubMed : 31232783 ] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 1: Duty. American Journal of Nursing , 119(7), 64–67. ↵ 10.1097/01.NAJ.0000569476.17357.f5. [PubMed : 31232783 ] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 2: Breach. American Journal of Nursing , 119(9), 42–46. ↵ 10.1097/01.NAJ.0000580256.10914.2e. [PubMed : 31449122 ] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 2: Breach. American Journal of Nursing , 119(9), 42–46. ↵ 10.1097/01.NAJ.0000580256.10914.2e. [PubMed : 31449122 ] [CrossRef]
Mello, M. M., Frakes, M. D., Blumenkranz, E., & Studdert, D. M. (2020). Malpractice liability and health care quality: A review. JAMA , 323(4), 352–366. ↵ 10.1001/jama.2019.21411 . [PMC free article : PMC7402204 ] [PubMed : 31990319 ] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 2: Breach. American Journal of Nursing, 119(9), 42–46. 10.1097/01.NAJ.0000580256.10914.2e ↵ 10.1097/01.NAJ.0000580256.10914.2e. [PubMed : 31449122 ] [CrossRef] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 2: Breach. American Journal of Nursing , 119(9), 42–46. ↵ 10.1097/01.NAJ.0000580256.10914.2e. [PubMed : 31449122 ] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 3A: Causation: A plaintiff must prove not only that a provider departed from acceptable standards of practice--but that this departure caused an injury. American Journal of Nursing , 119(11), 54–59. ↵ 10.1097/01.naj.0000605380.52689.af. [PubMed : 31651504 ] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 3B: Causation. American Journal of Nursing, 120(1), 63–66. 10.1097/01.naj.0000652128.66135.55 ↵ 10.1097/01.naj.0000652128.66135.55. [PubMed : 31880732 ] [CrossRef] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 3A: Causation: A plaintiff must prove not only that a provider departed from acceptable standards of practice--but that this departure caused an injury. American Journal of Nursing , 119(11), 54–59. ↵ 10.1097/01.naj.0000605380.52689.af. [PubMed : 31651504 ] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 3B: Causation. American Journal of Nursing, 120(1), 63–66. 10.1097/01.naj.0000652128.66135.55 ↵ 10.1097/01.naj.0000652128.66135.55. [PubMed : 31880732 ] [CrossRef] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 3B: Causation. American Journal of Nursing, 120(1), 63–66. 10.1097/01.naj.0000652128.66135.55 ↵ 10.1097/01.naj.0000652128.66135.55. [PubMed : 31880732 ] [CrossRef] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing , 120(3), 61–64. ↵ 10.1097/01.naj.0000656360.21284.50. [PubMed : 32079802 ] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing , 120(3), 61–64. ↵ 10.1097/01.naj.0000656360.21284.50. [PubMed : 32079802 ] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing , 120(3), 61–64. ↵ 10.1097/01.naj.0000656360.21284.50. [PubMed : 32079802 ] [CrossRef]
“damages .jpg” by Nick Youngson hosted by Pix4free is licensed under CC BY-SA 3.0 ↵.Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing , 120(3), 61–64. ↵ 10.1097/01.naj.0000656360.21284.50. [PubMed : 32079802 ] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing , 120(3), 61–64. ↵ 10.1097/01.naj.0000656360.21284.50. [PubMed : 32079802 ] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing , 120(3), 61–64. ↵ 10.1097/01.naj.0000656360.21284.50. [PubMed : 32079802 ] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing , 120(3), 61–64. ↵ 10.1097/01.naj.0000656360.21284.50. [PubMed : 32079802 ] [CrossRef]
Brous, E. (2020). The elements of a nursing malpractice case, Part 4: Harm. American Journal of Nursing , 120(3), 61–64. ↵ 10.1097/01.naj.0000656360.21284.50. [PubMed : 32079802 ] [CrossRef]
As discussed in the previous sections, professional liability results from a civil lawsuit to fairly compensate patients who allege they have suffered injury or damage as a result of professional negligence related to one’s clinical practice and professional responsibilities. Many nurses elect to purchase malpractice insurance, especially if working in specialty areas that experience a high number of claims, such as in obstetrics or post-anesthesia care units (PACUs). The Nursing Service Organization (NSO) works in association with the American Nurses Association to provide malpractice insurance for nurses interested in purchasing it.
Read more about malpractice insurance available for nurses at https://www.nso.com/.
The civil justice system cannot make rulings regarding your nursing license. It is the responsibility of the State Board of Nursing to suspend or revoke an individual’s nursing license based on a disciplinary process.
The State Board of Nursing (SBON) governs nursing practice according to that state’s Nurse Practice Act. The purpose of the SBON is to protect the public through licensure, education, legislation, and discipline. A nursing license is a contract between the state and licensee in which the licensee agrees to provide nursing care according to that state’s Nurse Practice Act. Deviation from the Nurse Practice Act is a breach of contract that can lead to limited or revoked licensure. The SBON can suspend or revoke an individual’s nursing license to protect the public from unsafe nursing practice. Nursing scope of practice and standards of nursing care are defined in the Nurse Practice Act that is enacted by the state legislature and enforced by the SBON. Nurses must practice according to the Nurse Practice Act of the state in which they are providing client care.
A nurse may be named in a board licensing complaint, also called an allegation. Allegations can be directly related to a nurse’s clinical responsibilities, or they can be nonclinical (such as substance abuse, unprofessional behavior, or billing fraud). A complaint can be filed against a nurse by anyone, such as a patient, a patient’s family member, a colleague, or an employer. It can be filed anonymously. After a complaint is filed, the SBON follows a disciplinary process that includes investigation, proceedings, board actions, and enforcement. The process can take months or years to resolve, and it can be costly to hire legal representation.[1]
During the investigation process, investigators use various methods to determine the facts, such as interviewing parties who were present, reviewing documentation and records, performing drug screens (if impairment is alleged), and compiling pertinent facts related to the events and circumstances surrounding the complaint. Nurses being investigated may receive a letter, email, or phone call from the SBON, or they may be required to appear at a certain date and time for an interview with an investigator. It is recommended that nurses consult with an attorney before responding to the SBON within the deadline provided. Nurses should be cooperative but should be aware that whatever is shared will be provided to a prosecuting attorney and/or the SBON.[2]
After completion of the investigation, the prosecuting attorney will determine how to proceed. A conference may be scheduled where the nurse will be interviewed by a member of the SBON and possibly the prosecuting attorney. It is recommended for the nurse to have an attorney present during proceedings. The nurse has the opportunity to present evidence supporting their case. A resolution may be offered after the conference that ends the matter.[3]
However, if the SBON believes there is significant evidence, a formal hearing is held where a disciplinary action is proposed. This formal hearing is similar to a civil trial. The hearing panel may include some or all of the SBON members. A court reporter records the entire proceeding and a transcript is created. Witnesses may be called to testify and the nurse undergoes cross-examination. When both sides have presented their cases, the hearing is concluded. The outcome of the formal hearing is a ruling by the administrative law judge and the SBON. The nurse may face disciplinary action such as a reprimand, limitation, suspension, or revocation of their license. Nondisciplinary actions, such as a warning or a remedial education order, may be set. See a description of possible disciplinary actions enforced by the Wisconsin State Board of Nursing in Table 5.3.
Potential Disciplinary and Nondisciplinary Actions of the Wisconsin State Board of Nursing[4]
| Disciplinary Options | Reprimand: The licensee receives a public warning for a violation. Limitation of License: The licensee has conditions or requirements imposed upon their license, their scope of practice, or both. Suspension: The license is completely and absolutely withdrawn and withheld for a period of time, including all rights, privileges, and authority previously conferred by the credential. Revocation: The license is completely and absolutely terminated, as well as all rights, privileges, and authority previously conferred by the credential. |
|---|---|
| Nondisciplinary Options | Administrative Warning: A warning is issued if the violation is of a minor nature or a first occurrence and the warning will adequately protect the public. The issuance of an administrative warning is public information; however, the reason for issuance is not. Remedial Education Order: A remedial education order is issued when there is reason to believe that the deficiency can be corrected with remedial education, while sufficiently protecting the public. |
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Wisconsin Department of Safety and Professional Services. (2021, June 4). Board of nursing newsletter. https://content .govdelivery .com/accounts /WIDSPS/bulletins/2d71e3d ↵.
The Nurses Service Organization (NSO) reported the three most common allegations resulting in state board investigations in 2020 were related to the categories of professional conduct, scope of practice, and documentation errors or omissions.[1]
Common allegations related to professional conduct included drug diversion and substance abuse, professional misconduct, reciprocal actions, and wastage errors.
The most common allegations related to professional conduct for both RNs and LPN/VNs in 2020 were related to drug diversion and/or substance abuse. Examples include diverting medications for oneself or others and apparent intoxication from alcohol or drugs while on duty.
The National Council of State Boards of Nursing (NCSBN) created a brochure titled Substance Abuse Disorder in Nursing to address this common issue.[2] Many states have programs in place to assist nurses with substance abuse, such as Wisconsin Nursing Association’s Nurses Caring for Nurses (Peer Assistance) program or New York State Nursing Association’s Statewide Peer Assistance for Nurses (SPAN) program.[3],[4]
Professional misconduct as defined by state regulations was the second most common allegation related to professional conduct. This category includes unprofessional conduct towards coworkers and patients, as well as allegations of falling asleep.
Sample Case A home health RN was assigned to monitor an 11-month-old child from 1900 to 0700. The child was intubated and required constant monitoring to ensure the tubing remained secure while she was in her crib. However, the child’s father found the RN sleeping and the child’s tubing unsecured. The child did not suffer harm due to the incident, but the SBON publicly reprimanded the RN, and the costs to defend the nurse exceeded $2,400.[5]
The third most common professional conduct allegation was reciprocal actions. Many cases involved nurses who were trying to contend with patients who were violent or aggressive and either retaliated against the patient or responded to the patient ‘s aggression in an inappropriate or unprofessional manner.
Sample Case A patient in an inpatient behavioral health unit became agitated, pulled a phone out of the wall, and threw it. The nurse entered the room and following a brief interaction, an altercation between the patient and the nurse ensued. The nurse received a public reprimand and disciplinary actions from the SBON.[6]
Wastage errors were the fourth most common allegation. Wastage errors occurred when nurses neglected to perform accurate medication counts or did not appropriately document proper disposal of opioids and other drugs with a high potential for abuse.
Sample Case An RN left two 15 milligram tablets of a benzodiazepine called Temazepam unattended in an area accessible to patients. The medication went missing and was apparently taken by a patient. The nurse falsely documented the Temazepam as wastage, knowing the medication was actually missing. The SBON issued a $200 fine, and expenses to defend the nurse exceeded $7,200.[7]
Common allegations related to scope of practice include failure to maintain a minimum standard of practice and providing services beyond one’s scope of practice.
The most common allegations related to scope of practice include failure to maintain a minimum standard of nursing practice. These cases include a breach of minimum professional standards, incompetence, and negligence.
Sample Case A nurse working in home health failed to complete required patient assessments and omitted pertinent patient information in the health care record. This omission could have caused a disruption in the continuity of treatment resulting in patient harm. The SBON determined the nurse failed to exercise the degree of learning, skill, care, and experience ordinarily possessed and exercised by a competent RN. The SBON placed the nurse on probation for three years, and the expenses associated with defending the nurse exceeded $5,400.[8]
Sample Case An RN failed to follow agency policy and procedures by neglecting to properly verify identification of two patients and omitting the review of relevant laboratory results. As a result of bypassing standard safety procedures, the RN gave an extra unit of blood to one patient that was intended for the other patient, thereby depriving that patient the extra unit of blood required based on her lab results. The SBON placed the nurse on probation for three years. However, the nurse did not comply with the terms of her probation by failing to report to the SBON when she applied for licensure in two other states. The nurse also failed to obtain approval prior to commencing employment. The nurse was ultimately ordered to surrender her license.[9]
Sample Case A student nurse was instructed to discontinue an intravenous (IV) antibiotic for a patient with a central venous catheter. When the student discontinued the IV, she unknowingly loosened the catheter connection from the lumen luer connector. The loosened line would likely have been discovered when the line was flushed per agency policy, but the student testified she did not know she was supposed to flush the catheter line or clamp it after the medication was discontinued. Shortly thereafter, the patient became unresponsive, and a code was called. The disconnection was not discovered until the patient was transferred to the intensive care unit three hours later. The patient experienced an air embolism and died. A malpractice claim was awarded.[10]
The second most common allegation related to scope of practice is provision of services beyond one’s scope of practice. This category typically involves nurses making changes to patients’ prescribed treatments or administering medication that had not been prescribed.
Sample Case An RN in the ICU was caring for a patient with extreme nausea. The nurse made several unsuccessful attempts to reach the provider for an order for Ondansetron. The nurse called the pharmacy and relayed her concern for the patient’s nausea and her inability to reach the provider. The nurse informed the pharmacist that she believed the situation was urgent and she would contact the provider for an order. The pharmacy dispensed Ondansetron and the nurse administered the medication. Although the patient did not suffer adverse effects from the medication, no order was ever received for the medication. Upon finding the RN violated the Nurse Practice Act by practicing beyond the scope of practice for an RN, the SBON publicly reprimanded the nurse and ordered her to pay a fine of $600. Expenses associated with defending the nurse exceeded $6,100.[11]
Over half of the allegations in 2020 regarding documentation were related to fraudulent or falsified patient care or billing records. The health care record is a legal document. It should never be altered, deleted, or falsified. Maintaining accurate and timely documentation is a primary professional responsibility of nurses.
Sample Case In a case involving a nursing student, the preceptor instructed the student to monitor the patient’s vital signs every 15 minutes for one hour and then every 30 minutes for two hours and then every hour for four hours. The student allegedly documented vital signs every 15 minutes for one hour but did not record any vital signs thereafter. When confronted by her preceptor about the incomplete record, the student stated that she “forgot to do them.” Approximately 30 minutes later, the preceptor discovered the missing vital signs were documented in the patient’s record. The preceptor asked the student about the entries, and the student replied that she “made them up.” The student later contended that she meant she charted the vital signs accurately but made up the times the vital signs were taken to match the preceptor’s instructions. The SBON considered the student was still learning but viewed documentation as a basic nursing skill. Because the student’s conduct involved dishonesty, they imposed a penalty of a one-year suspension followed by one year of probation. The expenses associated with defending the student nurse exceeded $6,900.[12]
Nurses Service Organization and CAN Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
National Council State Board of Nursing. Substance Abuse Disorder in Nursing [Brochure]. https://www .ncsbn.org/SUD_Brochure_2014 .pdf ↵.
Statewide Peer Assistance For Nurses. https://www .statewidepeerassistance.org/ ↵.Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
You have worked hard to obtain a nursing license and it will be your livelihood. See Figure 5.7[1] for an illustration of a nursing license. Protecting your nursing license is vital.
There are several actions that nurses can take to protect their nursing license, avoid liability, and promote patient safety. See Table 5.5 for a summary of recommendations.
Risk Management Recommendations to Protect Your Nursing License
Practice within the requirements of your state’s Nurse Practice Act, in compliance with organizational policies and procedures, and within the national standard of care.
Maintain basic clinical and specialty competencies by proactively obtaining the professional information, education, and training needed to remain current regarding nursing techniques, clinical practice, biologics, and equipment.[2]
Only accept patient care assignments you are trained and competent to perform. Ask for additional training as needed.
Recognize one’s limitations and ask for assistance when needed.If necessary, utilize the chain of command or the risk management or legal departments regarding concerns about patient care or practice issues and pursue concerns to resolution.[3]
Document patient care assessments, observations, communications, and actions in an objective, timely, accurate, complete, and appropriate manner.
Document in a manner that permits accurate reconstruction of patient assessments, notification of others, and the sequence of events.
Document as close to the time of care provision as possible. (In court, if it is not documented, it is considered not done.)
Provide an accurate documentation of a change in patient condition, care provided, providers notified, and orders received.
Document specific times of interventions provided during emergency situations.When notifying a provider about a patient, document the name of the provider notified, the time of the notification, and the provider’s response. Follow through with any nursing actions taken and the patient’s response.
Never alter, delete, or falsify information.If there is information that should have been charted but was not, document “late entry,” noting the time the charting occurred and the specific time the assessment or intervention actually took place.[4]
When describing a patient problem, include the nursing actions taken and the patient’s response.[5] Use medical terminology. Avoid abbreviations. Review notes from other health care team members to ensure coordination of efforts is occurring.[6]Maintain your own personal files that can be helpful with respect to your character, such as letters of recommendation, performance evaluations, and continuing education certificates.[7]
Avoid workarounds. (For example, if an error message is received when scanning a medication with a barcode scanner during med pass, don’t assume it is a technology error and “workaround” it by just documenting the medication in the MAR. Instead, investigate error messages because they could be indicating a medication error, not a technology error.)
Always check the “rights of medication administration” three times, even when using barcode scanners and other equipment. (Review information about checking medication rights in the “Administration of Enteral Medications” chapter in Open RN Nursing Skills.)
Be aware of look alike/sound alike medications. Double-check dosage calculations, especially for pediatric patients. Follow agency policies and procedures related to medication administration and documentation.Clarify prescriptions with prescribing providers if they are unclear or you have concerns. For example, if acetaminophen is prescribed for fever and the patient is experiencing pain, clarify the indications in the order before administering it for pain.
Avoid distractions while preparing and administering medications. (Read more information about preventing medication errors in the “Legal /Ethical” chapter in Open RN Nursing Pharmacology.)
Maintain a chain of possession when administering medications. Never administer a medication for which you have not personally done the medication checks.
Never leave medication unattended.If a medication error occurs, follow agency policy regarding notification and submitting an incident report.
Waste controlled substances and document wasting according to agency policy. Perform accurate counting and documentation of controlled substances per agency policy.Seek assistance if you are experiencing challenges with substance use. Report impaired professionals regarding suspected substance abuse. (Read more about drug diversion and support for nurses with substance use disorder in the “Legal /Ethical” chapter in Open RN Nursing Pharmacology.)
Report convictions such as drug possession, driving under the influence (DUI), or operating under the influence (OWI) to your State Board of Nursing as required.
Participate in accurate and thorough handoff reports according to agency policy. (Read more about handoff reports in the “Communication” chapter of Open RN Nursing Fundamentals.)
Communicate with other members of the health care team using ISBARR format. (Read more about ISBARR format in the “Communication” chapter of Open RN Nursing Fundamentals.)
Follow the nursing care plan. Assess appropriateness of interventions according to the client’s current condition before implementing them.
Conduct thorough nursing assessments, especially for skin breakdown or pressure injuries. (Read more about assessing skin breakdown and pressure injuries in the “Integumentary” chapter of Open RN Nursing Fundamentals.)
Advocate for quality client care and speak up regarding concerns about patient safety.Educate clients and encourage them to actively participate in their care and make informed decisions.
Follow National Patient Safety Goals. Implement fall prevention interventions according to agency policy. Report unsafe equipment. (Read more about promoting patient safety in the “Safety” chapter in Open RN Nursing Fundamentals.)
Document and report unsafe staffing or other workplace safety concerns per agency policy, state policy, or OSHA.
Encourage client valuables to be sent home.Document all client possessions upon admission to inpatient facilities and obtain client or family signature or acknowledgement.
Lock up patient valuables per agency policy. Follow agency policy regarding receipt of gifts from clients or family.Report suspected abuse of children, elders, and other vulnerable populations. (Read more about mandatory reporting under the “Duty” subsection of the “Understanding the Legal System” section of this chapter.)
Report gunshot wounds, dog bites, and communicable disease per agency and state policy.It can be frightening to think about entering the nursing profession after becoming aware of potential legal actions and risks to your nursing license, especially when realizing even an unintentional error could result in disciplinary or legal action. When seeking employment, it is helpful for nurses to ask questions during the interview process regarding organizational commitment to a culture of safety to reduce errors and enhance patient safety.
Many health care agencies have adopted a culture of safety that embraces error reporting by employees with the goal of identifying root causes of problems so they may be addressed to improve patient safety. One component of a culture of safety is “Just Culture.” Just Culture is culture where people feel safe raising questions and concerns and report safety events in an environment that emphasizes a nonpunitive response to errors and near misses. Clear lines are drawn between human error, at-risk, and reckless behaviors. [8]
The American Nurses Association (ANA) officially endorses the Just Culture model. In 2019 the ANA published a position statement on Just Culture. They stated that while our traditional health care culture held individuals accountable for all errors and accidents that happened to patients under their care, the Just Culture model recognizes that individual practitioners should not be held accountable for system failings over which they have no control. The Just Culture model also recognizes that many errors represent predictable interactions between human operators and the systems in which they work. However, the Just Culture model does not tolerate conscious disregard of clear risks to patients or gross misconduct (e.g., falsifying a record or performing professional duties while intoxicated).[9]
The Just Culture model categorizes human behavior into three categories of errors: simple human error, at-risk behavior, or reckless behavior. Consequences of errors are based on these categories.[10] When seeking employment, it is helpful for nurses to determine how an agency implements a culture of safety because of its potential impact on one’s professional liability and licensure.
Read more about the Just Culture model in the “Basic Concepts” section of the “Leadership and Management” chapter.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Brous, E. (2019). The elements of a nursing malpractice case, Part 1: Duty. American Journal of Nursing , 119(7), 64–67. ↵ 10.1097/01.NAJ.0000569476.17357.f5. [PubMed : 31232783 ] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 1: Duty. American Journal of Nursing , 119(7), 64–67. ↵ 10.1097/01.NAJ.0000569476.17357.f5. [PubMed : 31232783 ] [CrossRef]
Brous, E. (2019). The elements of a nursing malpractice case, Part 1: Duty. American Journal of Nursing , 119(7), 64–67. ↵ 10.1097/01.NAJ.0000569476.17357.f5. [PubMed : 31232783 ] [CrossRef]
Nurses Service Organization and CAN Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
In addition to being aware of the legal and regulatory frameworks in which one practices nursing, it is also important for nurses to understand the legal concepts of informed consent and advance directives.
Informed consent is the fundamental right of a client to accept or reject health care. Nurses have a legal responsibility to provide verbal and/or written information and obtain verbal or written consent for performing nursing care such as bathing, medication administration, and urinary or intravenous catheter insertion. While physicians have the responsibility to provide information and obtain informed consent related to medical procedures, nurses are typically required to verify the presence of a valid, signed informed consent before the procedure is performed. Additionally, if nurses do not believe the patient has adequate understanding of a procedure, its risks, benefits, or alternatives to treatment, they should request the provider return to clarify unclear information with the client. Nurses must remain within their scope of practice related to informed consent beyond nursing acts.
Two legal concepts related to informed consent are competence and capacity. Competence is a legal term defined as the ability of an individual to participate in legal proceedings. A judge decides if an individual is “competent” or “incompetent.” In contrast, capacity is “a functional determination that an individual is or is not capable of making a medical decision within a given situation.”[1] It is outside the scope of practice for nurses to formally assess capacity, but nurses may initiate the evaluation of client capacity and contribute assessment information. States typically require two health care providers to identify an individual as “incapacitated” and unable to make their own health care decisions. Capacity may be a temporary or permanent state.
The following box outlines situations where the nurse may question a client’s decision-making capacity.
Triggers for Questioning Capacity and Decision-Making[ 2 ]
Inability to voice a decision Blanket acceptance or refusal of care Absence of questions about the treatment being offered or provided Excessive or inconsistent reasons for refusing care New inability to perform activities of daily living Hyperactivity, disruptive behavior, or agitation Labile emotions or affect Hallucinations IntoxicationIf an individual has an advance directive in place, their designated power of attorney for health care may step in and make medical decisions when the client is deemed incapacitated. In the absence of advance directives, the legal system may take over and appoint a guardian to make medical decisions for an individual. The guardian is often a family member or friend but may be completely unrelated to the incapacitated individual. Nurses are instrumental in encouraging a client to complete an advance directive while they have capacity to do so.
The Patient Self-Determination Act (PSDA) is a federal law passed by Congress in 1990 following highly publicized cases involving the withdrawal of life-supporting care for incompetent individuals. (Read more about the Karen Quinlan, Nancy Cruzan, and Terri Shaivo cases in the boxes at the end of this section.) The PSDA requires health care institutions, such as hospitals and long-term care facilities, to offer adults written information that advises them “to make decisions concerning their medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate, at the individual’s option, advance directives.”[3] Advanced directives are defined as written instructions, such as a living will or durable power of attorney for health care, recognized under state law, relating to the provision of health care when the individual is incapacitated. The PSDA allows clients to record their preferences about do-not-resuscitate (DNR) orders and withdrawing life-sustaining treatment. In the absence of a client’s advance directives, the court may assert an “unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.”[4] For this reason, nurses must educate and support the communities they serve regarding the creation of advanced directives.
Advanced directives vary by state. For example, some states allow lay witness signatures whereas some require a notary signature. Some states place restrictions on family members, doctors, or nurses serving as witnesses. It is important for individuals creating advance directives to follow instructions for state-specific documents to ensure they are legally binding and honored.
Advance directives do not require an attorney to complete. In many organizations, social workers or chaplains assist individuals to complete advance directives following referral from physicians or nurses. Clients should review and update their documents every 10-15 years, as well as with changes in relationship status or if new medical conditions are diagnosed.
Although advanced directive documents vary by state, they generally fall into two categories, referred to as a living will or durable power of attorney for healthcare.
A living will is a type of advance directive in which an individual identifies what treatments they would like to receive or refuse if they become incapacitated and unable to make decisions. In most states, a living will only goes into effect if an individual meets specific medical criteria.[5] The living will often includes instructions regarding life-sustaining measures, such as cardiopulmonary resuscitation (CPR), mechanical ventilation, and tube feeding.
It is impossible for an individual to document their preferences in a living will for every conceivable medical scenario that may occur. For this reason, it is essential for individuals to complete a durable power of attorney for healthcare. A durable power of attorney for healthcare (DPOAHC) is a person chosen to speak on one’s behalf if one becomes incapacitated. Typically, a primary health care power of attorney (POA) is identified with an alternative individual designated if the primary POA is unable or unwilling to do so. The health care POA is expected to make health care decisions for an individual they believe the person would make for themselves, based on wishes expressed in a living will or during previous conversations.[6]
It is essential for nurses to encourage clients to complete advance directives and have conversations with their designated POA about health care preferences, especially related to possible traumatic or end-of-life events that could require medical treatment decisions. Nurses can also dispel common misconceptions, such as these documents give the health care POA power to manage an individual’s finances. (A financial POA performs different functions than a health care POA and should be discussed with an attorney.)
After the advance directives are completed and included in the client’s medical record, the nurse has the responsibility to ensure they are appropriately incorporated into their care if they should become incapacitated.
Sample Case: Karen Ann Quinlan[7],[8]
Karen Ann Quinlan is an important figure in the United States’ history of defining life and death, a client’s privacy, and the state’s interest in preserving life and preventing murder. In April 1975, Karen Quinlan was 21 years old and became unresponsive after ingesting a combination of valium and alcohol while celebrating a friend’s birthday. She experienced respiratory failure, and although resuscitation efforts were successful, she suffered irreversible brain damage. She remained in a persistent vegetative state and became ventilator-dependent. Her parents requested her physicians discontinue the ventilator because they believed it constituted extraordinary means to prolong her life. Her physicians denied their request out of concern of possible homicide charges based on New Jersey’s law. The Quinlans filed the first “right to die” lawsuit in September of 1975 but were denied by the New Jersey Superior Court in November. In March of 1976, the New Jersey Supreme Court determined the parent’s right to determine Karen’s medical treatment exceeded that of the state. Karen was discontinued from the ventilator six weeks later. When taken off the ventilator, Karen shocked many by continuing to breathe on her own. She lived in a coma for nine more years and succumbed to pneumonia on June 11, 1985.
Sample Case: Nancy Beth Cruzan[9],[10]
Nancy Cruzan is another important figure in the history of US “right to die” legal cases. At the age of 25, Nancy Cruzan was in a car accident on January 11, 1983. She never regained consciousness. After three years in a rehabilitation hospital, her parents began an eight-year battle in the courts to remove Nancy’s feeding tube. Nancy’s case was the first “right to die“ case heard by the United States Supreme Court. Beyond allowing for the discontinuation of Nancy’s feeding tube, the U.S. Supreme Court ruled that all adults have the right to the following:
Choose or refuse any medical or surgical intervention, including artificial nutrition and hydration.
Make advance directives and name a surrogate to make decisions on their behalf.
Surrogates can decide on treatment options even when all concerned are aware that such measures will hasten death, as long as causing death is not their intent.Nancy died nine days after removal of her feeding tube in December 1990. As a result of the Cruzan decision, the Patient Self-Determination Act (PSDA) was passed and took effect December 1, 1991. The act requires facilities to inform clients about their right to refuse treatment and to ask if they would like to prepare an advance directive.
Sample Case: Terri Schaivo[11]
The Terri Schaivo case is a key case in history of advance directives in the United States because of its focus on the importance of having written advance directives to prevent family animosity, pain, and suffering. In 1990 Terri Schaivo was 26 years old. In her Florida home, she experienced a cardiac arrest thought to be a function of a low potassium level resulting from an eating disorder. She experienced severe anoxic brain injury and entered a persistent vegetative state. A PEG tube was inserted to provide medications, nutrition, and hydration. After three years, her husband refused further life-sustaining measures on her behalf, based on a statement Terri had once made, stating, “I don’t want to be kept alive on a machine.” He expressed interest in obtaining a DNR order, withholding antibiotics for a urinary tract infection, and ultimately requested removal of the PEG tube. However, Terri’s parents never accepted the diagnosis of persistent vegetative state and vigorously opposed their son-in-law’s decision and requests. Seven years of litigation generated 30 legal opinions, all supporting Michael Schiavo’s right to make a decision on his wife’s behalf. Terri died on March 31, 2005, following removal of her feeding tube.
Darby, R. R., & Dickerson, B. C. (2017). Dementia, decision making, and capacity. Harvard Review of Psychiatry , 25(6), 270–278. ↵ 10.1097/HRP.0000000000000163 . [PMC free article : PMC5711478 ] [PubMed : 29117022 ] [CrossRef]
Centers for Medicare & Medicaid Services, Department of Health and Human Services. (2012). Part 489-Provider agreements and supplier approval, Subpart A-General provisions. https://www .govinfo.gov /content/pkg/CFR-2012-title42-vol5 /pdf /CFR-2012-title42-vol5-chapIV.pdf ↵.
Nurses Service Organization and CNA Financial. (2020, June). Nurse professional liability exposure claim report (4th ed.). https://www .nso.com/Learning /Artifacts/Claim-Reports /Minimizing-Risk-Achieving-Excellence ↵.
Hale, S. W. (n.d.). The matter of Karen Quinlan. https://www .ou.edu/englhale/quinlan.html ↵.Centers for Disease Control and Prevention. (n.d.). The Nancy Cruzan case. [Case study]. https://www .cdc.gov/training /ACP/page42985.html ↵.
Taub, S. (2001). Art of medicine “Departed, Jan 11, 1983; At Peace, Dec 26, 1990.” Virtual Mentor, American Medical Association Journal of Ethics , 3(7), 231-233. https: //journalofethics .ama-assn.org/sites/journalofethics .ama-assn .org/files/2021-05/artm1-0107.pdf ↵.
Weijer, C. (2005). A death in the family: Reflections on the Terri Schiavo case. Canadian Medical Association Journal = journal de l'Association medicale canadienne, 172(9), 1197–1198. 10.1503/cmaj.050348 ↵ 10.1503/cmaj.050348. [PMC free article : PMC557072 ] [PubMed : 15805148 ] [CrossRef] [CrossRef]
Sara is a new graduate nurse orienting on the medical floor at a large teaching hospital. She has been working on the floor for two weeks and notices that many of the nurses provide shift handoff reports to one another outside of the patient rooms. Sara asks her preceptor why the nurses stand and report patient care information in the hallway. Her preceptor responds that this is the standard way staff can meet the agency guidelines for beside handoff reporting without “disturbing” patients while they are resting. Sara has concerns about this action on many levels. What legal repercussions might this “hallway reporting” have?
Sara is smart to identify that discussing patient care information in a hallway outside of patient rooms may jeopardize patient HIPAA protections and confidentiality. Sensitive patient information should never be discussed freely where others may overhear care information and details. Additionally, the act of bedside handoff reporting is meant to provide an inclusive environment for patients to participate with care staff in the report and information exchange. Discussing report details outside of the patient room does not actively include the patient in the bedside reporting procedure.
(Answers to “Learning Activities” can be found in the “Answer Key” at the end of the book. Answers to interactive activities are provided as immediate feedback.)
1. In 2006 Nurse Julie Thao was charged with felony criminal negligence in the death of a 16-year-old laboring mother when she mistakenly hung a bag of epidural medication instead of intravenous penicillin. Although the baby was successfully delivered via cesarean section, the client died following aggressive resuscitation attempts as a result of circulatory collapse. Nurse Thao was fired from her job of 16 years. Her felony charge was amended to two misdemeanor counts, and her state’s Board of Nursing suspended her license, imposed practice limitations upon return, mandated completion of an education program, and imposed a $2,500 fine. Beyond these sanctions, she stated at her sentencing hearing, “The anguish and remorse are a life sentence that will serve for all time.”
Discuss factors that contributed to Nurse Julie Thao’s medication error. What reflections on your own nursing practice can be made after viewing this video clip? What actions might have been taken to avoid this error? Do you believe other members of the health care team were culpable in their actions?
TMIT1. (2012, August 3). Chasing zero: Winning the war on healthcare harm. [Video]. YouTube. All rights reserved. https://youtu .be/MtSbgUuXdaw ↵.
Law made by government agencies that have been granted the authority to pass rules and regulations. For example, each state’s Board of Nursing is an example of administrative law.
Written instruction, such as a living will or durable power of attorney for health care, recognized under state law, relating to the provision of health care when the individual is incapacitated.
Intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact.[1]
Intentional causation of harmful or offensive contact with another’s person without that person’s consent.[2]
A functional determination that an individual is or is not capable of making a medical decision within a given situation.
Law focusing on the rights, responsibilities, and legal relationships between private citizens.
Doing something a reasonable nurse would not have done.[3]
In a legal sense, the ability of an individual to participate in legal proceedings. A judge decides if an individual is “competent” or “incompetent.”
The right of an individual to have personal, identifiable medical information kept private.
The rights, privileges, and responsibilities established by the U.S. Constitution. For example, the right to privacy is a right established by the constitution.
Binding written, verbal, or implied agreements.
A type of behavior defined by Congress or state legislature as deserving of punishment.
A system of laws concerned with punishment of individuals who commit crimes.
Defamation of character
An act of making negative, malicious, and false remarks about another person to damage their reputation. Slander is spoken defamation and libel is written defamation.
The parties named in a lawsuit.
Duty of reasonable care
Legal obligations nurses have to their patients to adhere to current standards of practice.
A system of moral principles that a society uses to identify right from wrong.
An act of restraining another person causing that person to be confined in a bounded area. Restraints can be physical, verbal, or chemical.
Serious crimes that cause the perpetrator to be imprisoned for greater than one year.
An act of deceiving an individual for personal gain.
Good Samaritan Law
State law providing protections against negligence claims to individuals who render aid to people experiencing medical emergencies outside of clinical environments.
The fundamental right of a client to accept or reject health care.
Minor offenses, such as speeding tickets, that result in fines but not jail time.
An act of commission with the intent of harming or causing damage to another person. Examples of intentional torts include assault, battery, false imprisonment, slander, libel, and breach of privacy or client confidentiality.
Rules and regulations created by society and enforced by courts, statutes, and/or professional licensure boards.
A specific term used for negligence committed by a professional with a license.
Less serious crimes resulting in fines and/or imprisonment for less than one year.
The failure to exercise the ordinary care a reasonable person would use in similar circumstances. Wisconsin civil jury instruction states, “A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.”[4]
Not doing something a reasonable nurse would have done.[5]
The person bringing the lawsuit.
Laws that govern the relationships between private entities.
Protected Health Information (PHI)
Individually identifiable health information and includes demographic data related to the individual’s past, present, or future physical or mental health or condition; the provision of health care to the individual; and the past, present, or future payment for the provision of health care to the individual.
Law regulating relations of individuals with the government or institutions.
Written laws enacted by the federal or state legislature. For example, the Nurse Practice Act in each state is an example of statutory law that is enacted by the state government.
An act of commission or omission that causes injury or harm to another person for which the courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment the individual suffers. Torts are classified as intentional or unintentional.
Acts of omission (not doing something a person has a responsibility to do) or inadvertently doing something causing unintended accidents leading to injury, property damage, or financial loss. Examples of unintentional torts impacting nurses include negligence and malpractice.
Brous, E. (2019). The elements of a nursing malpractice case, Part 2: Breach. American Journal of Nursing , 119(9), 42–46. ↵ 10.1097/01.NAJ.0000580256.10914.2e. [PubMed : 31449122 ] [CrossRef]
Wis. JI—Civil 1005. (2016). https: //wilawlibrary .gov/jury/civil/instruction.php?n=1005 ↵.Brous, E. (2019). The elements of a nursing malpractice case, Part 2: Breach. American Journal of Nursing , 119(9), 42–46. ↵ 10.1097/01.NAJ.0000580256.10914.2e. [PubMed : 31449122 ] [CrossRef]
