NURSE’S LEGAL HANDBOOK fifth edition

N URSE’S LEGAL HANDBOOK Fifth Edition STAFF Executive Publisher Judith A Schilling McCann, RN, MSN Editorial Director H Nancy Holmes Clinical Director Joan M Robinson, RN, MSN Senior Art Director Arlene Putterman Art Director Mary Ludwicki Editorial Project Manager William Welsh Clinical Project Manager Minh N Luu, RN, BSN, JD Editor Stacey A Follin Clinical Editors Joanne Bartelmo, RN, MSN, CCRN; Louise Melchor, MSE, JD(c) Copy Editors Kim Bilotta (supervisor), Tom DeZego, Heather Ditch, Carolyn Peterson, Lisa Stockslager, Bill Wine, Pamela Wingrod Designer The clinical treatments described and recommended in this publication are based on research and consultation with nursing, medical, and legal authorities To the best of our knowledge, these procedures reflect currently accepted practice Nevertheless, they can’t be considered absolute and universal recommendations For individual applications, all recommendations must be considered in light of the patient’s clinical condition and, before administration of new or infrequently used drugs, in light of the latest package insert information The authors and publisher disclaim any responsibility for any adverse effects resulting from the suggested procedures, from any undetected errors, or from the reader’s misunderstanding of the text © 2004 by Lippincott Williams & Wilkins All rights reserved This book is protected by copyright No part of it may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means — electronic, mechanical, photocopy, recording, or otherwise — without prior written permission of the publisher, except for brief quotations embodied in critical articles and reviews and testing and evaluation materials provided by the publisher to instructors whose schools have adopted its accompanying textbook Printed in the United States of America For information, write Lippincott Williams & Wilkins, 323 Norristown Road, Suite 200, Ambler, PA 19002 NLH5 – D N O S A J J M A M F J 06 05 04 10 Marsha Biderman (project manager) Digital Composition Services Diane Paluba (manager), Joyce Rossi Biletz, Donna S Morris Manufacturing Patricia K Dorshaw (director), Beth Janae Orr Editorial Assistants Megan L Aldinger, Tara L Carter-Bell, Arlene Claffee, Linda K Ruhf Librarian Wani Z Larsen Indexer Karen C Comerford FOCUS CHARTING is a registered trademark of Creative Healthcare Management, Inc Library of Congress Cataloging-in-Publication Data Nurse's legal handbook — 5th ed p ; cm Includes bibliographical references and indexes Nursing — Practice — United States Nursing ethics Nursing — Law and legislation — United States I Springhouse Corporation [DNLM: Legislation, Nursing — United States Ethics, Nursing — United States Malpractice — United States — Nurses' Instruction Patient Rights — United States Nurses' Instruction WY 33 AA1 N79 2004] RT86.73.N855 2004 344.7304'14 — dc22 ISBN 1-58255-280-0 (alk paper) 2003022628 CONTENTS Contributors vii Foreword ix Nursing practice and the law Levels of nursing practice Laws, rules, and regulations Interpreting your nurse practice act 10 Keeping nurse practice acts up to date 18 Standards of nursing care 19 Legal significance 33 Nursing licensure 37 Working in diverse clinical settings 46 Nursing practice vs medical practice 46 Legal risks in diverse clinical settings 49 Patients’ rights 70 Documents upholding patients’ rights 70 Informed consent 80 The patient who refuses treatment 92 Respecting the patient’s autonomy 101 Confidentiality and the right to privacy 105 Patient’s right to privacy 108 When the patient demands his chart 114 Patient discharge against medical advice 116 When a patient dies 120 Understanding malpractice liability Understanding malpractice law 127 Understanding the statue of limitations 133 Avoiding malpractice liability 137 Maintaining professional liability insurance 145 iii 125 iv Contents Lawsuits and the legal process 154 The medical malpractice lawsuit 154 Defending yourself in a lawsuit 162 Res judicata 170 Legal risks on the job 171 Hospital policies 173 Legal risks caused by understaffing 177 Legal risks in special care units 182 Legal responsibility for patient safety 186 Legal risks when administering drugs 191 Telephone triage 195 Patient teaching and the law 197 Incident reports 199 Caring for a minor 203 Caring for an abused patient 207 Caring for the mentally ill or developmentally disabled patient 214 Caring for a suspected criminal 221 Upholding a patient’s living will 226 Working as a quality management nurse 230 Legal aspects of documentation 232 Purpose of accurate documentation 232 Legal significance of the medical record 235 Nursing documentation 238 Witnessing and signing documents 248 Computerized medical records 250 Legal risks while off duty Legal protection for Good Samaritans 254 Giving free health care advice 264 Donating nursing services 267 Acting during a disaster 268 254 Contents 10 11 Nurses’ rights as employees v 272 Understanding employment contracts 272 Unions 277 Legal issues in collective bargaining 283 Grievances and arbitration 289 Ethical decision making 295 Law vs ethics 295 Moral dilemmas 296 Values and ethics 300 Ethical theories 302 Basis of ethical decisions 307 Ethical conflicts in clinical practice 311 Right to die 311 Organ transplantation 320 Perinatal ethics 328 HIV and AIDS 330 Abortion and reproductive technology 338 Genetic engineering and screening 350 Personal safety in the workplace 354 Substance abuse among nurses 363 Glossary 371 Understanding the judicial process 402 Types of MCOs 404 Interpreting legal citations 406 Court case citations 408 Index 413 CONTRIBUTORS Sally Austin, ADN, BGS, JD Susan Salladay, RN, PhD Compliance Officer Cognesa Atlanta Director – The Center for Bioethics BryanLGH College of Health Sciences Lincoln, Nebr Penny Simpson Brooke, APRN, MS, JD Beverly A Snyder, RN, MHA Professor/Director of Outreach University of Utah Salt Lake City Administrator/Nurse Executive Good Shepherd Specialty Hospital Allentown, Pa Linda MacDonald Glenn, JD, LLM Jacqueline Walus-Wigle, RN, JD, CPAQ Senior Fellow Institute for Ethics American Medical Association Chicago Compliance, Regulatory, External Affairs Director UCSD Healthcare San Diego Ginny Wacker Guido, RN, MSN, JD, FAAN LaTonia Denise Wright, RN, BSN, JD Associate Dean and Director, Graduate Studies University of North Dakota, College of Nursing Grand Forks Attorney Law Office of LaTonia Denise Wright, RN, LLC Cincinnati David M Keepnews, RN, PhD, JD, FAAN Assistant Professor, School of Nursing Adjunct Assistant Professor, School of Law University of Washington Seattle Janet E Michael, RN, MS, JD Nurse Attorney Law Office of Janet E Michael Portland, Maine vii FOREWORD A s a nurse, you’re in a constant state of flux.You constantly strive to keep up Chapter provides fundamental information on the laws that govern nursing It outlines the various levels of nursing practice and provides a detailed look at nurse practice acts The chapter also looks at standards of nursing care, their evolution, and their legal significance, plus an in-depth look at nursing licensure and what to expect if you’re being investigated for violating your license’s provisions Chapter discusses the differences between nursing practice and medical practice and the changes that are starting to blur the line between the two It also covers the pros and cons that come with working in diverse clinical settings, such as agency nursing and home care This information is important to have, because each setting has nuances the others don’t Chapter discusses your legal obligation to uphold your patient’s rights It outlines your responsibilities in obtaining informed consent, protecting your patient’s right to refuse treatment, and upholding privacy rights This chapter also summarizes major U.S Supreme Court rulings on reproductive rights issues Chapter presents straightforward facts about the greatest legal worry of the nursing profession — malpractice liability The chapter provides common causes of nursing liability and special tips on how you can avoid a lawsuit It outlines the role of the health care facility’s legal counsel and includes a helpful section on how to shop for professional liability insurance with technological advances in equipment and procedures — even as new innovations are introduced seemingly on a daily basis.You accept the challenge of acquiring knowledge on emerging diseases, and you’ve either introduced yourself to or refreshed your memory of the dangers posed by bioterrorism Yes, you may have graduated from nursing school years ago, but your nursing education never really ends If the demands of continuing professional education aren’t enough, the new specter of cost containment has forced you to work faster and more efficiently than ever before.You must often make immediate, crucial choices during highpressure patient care situations Because of this, you have little time to reflect on the legal and ethical consequences of your actions before you must perform them Nurse’s Legal Handbook, now in its fifth edition, offers concise and easy-tounderstand advice on numerous contemporary legal issues that will help you to choose the most appropriate actions to protect your patients and avoid the myraid risks of legal liability.You’ll be able to easily access important laws and regulations (with examples from actual court cases) affecting your practice Throughout the text, Canadian law is compared and contrasted with U.S law, so that nurses in both countries will find this reference useful ix x Foreword Chapter continues the discussion of malpractice liability by providing a description of the medical malpractice lawsuit, including the four elements that must be shown before a nurse can be held liable for malpractice There’s also a step-by-step outline of the litigation process, including pretrial maneuvers and common legal arguments used to defend a malpractice claim In addition, the chapter provides advice on what to if you’re served with a malpractice lawsuit Chapter covers on-the-job risks You’ll learn how to change your facility’s policies and “legally safe” steps to help you cope with understaffing.You’ll read about your legal obligation to assure patient safety by preventing falls, medication errors, and disease transmission You’ll learn what to if you must restrain a patient or care for a minor or a mentally disabled patient New sections on telephone triage and quality management highlight what you need to know when performing in either of these vital capacities Chapter covers the all-important topic of documentation It discusses the implications of signing, countersigning, and witnessing legal documents and provides advice on how to handle verbal orders and avoid documentation errors Legal risks and responsibilities in nursing practice extend beyond the workplace Chapter discusses your liability when providing off-duty nursing services It describes the legal protections provided by Good Samaritan laws as well as steps you can take to protect yourself from risk when providing free health care advice to friends and neighbors Chapter covers your rights as an employee by focusing on employeremployee relations, unions, and collective bargaining — issues that can be difficult to discuss in the workplace.You’ll learn about the role of the National Labor Relations Board in regulating collective bargaining, what may or may not be considered unfair labor practices, and under what circumstances nurses can go out on strike The chapter also discusses strategies for reading an employment contract and the arguments for and against joining a union Chapter 10 compares and contrasts the fields of law and ethics and provides a framework to help apply the nursing process to ethical decision making It includes discussions on the ethical theories that have helped to shape today’s ethical codes and the importance of clarifying your own values Chapter 11 takes the discussion of ethics further by providing the opportunity for practical application of the principles of ethical decision making to a number of controversial issues in health care: the right to die and euthanasia, organ transplantation, perinatal ethics, human immunodeficiency virus and acquired immunodeficiency syndrome, abortion and reproductive technology, and genetic screening and engineering The chapter also details your rights for safety in the workplace It provides you with a course of action if you’re confronted with sexual harassment, violence in the workplace, or a colleague’s professional misconduct or substance abuse, and provides new information on your employer’s responsibility to provide safer needle delivery devices After chapter 11, you’ll find a glossary of legal terms, a chart to help you understand the judicial process, a special section that breaks down the types of managedcare organizations, a cheat-sheet to help you interpret legal citations, and a listing of court cases mentioned in the text You’ll refer to these valuable additions many times Nurse’s Legal Handbook, Fifth Edition, doesn’t stop there Graphic symbols 2800index_2800index.qxd 9/19/13 3:47 PM Page 416 416 Index Clinical pathways, 376 Clinical practice guidelines, 377 Cloning, 344-347, 351 legal and ethical issues of, 346 Code, 377 Code of Ethics for Nursing, 19 Collective bargaining, 283-289, 377 agent for, 374 history of, 285 mandatory issues in, 287 National Labor Relations Board and, 284-287 nurses’ unions and, 279 refusing, 288 strike authorization and, 288-289 voluntary issues in, 287 Collective bargaining unit, 286 organizing, 280-283 Collectively bargained contract, 377 Commission on Graduates of Foreign Nursing Schools, 377 Commitment, 377 Common law, 255, 377 Communicable disease, in minors, 206 Communication fostering, 318 importance of, 141-143 documentation and, 241 privileged, 164, 394 skillful, 308 Comparative negligence, 150, 161, 161t, 377 Complaint, 377 Comprehensive Drug Abuse Prevention and Control Act, 191 Computer systems, hospital, 251-252 Computerized medical records, 250-253, 377 legal concerns of, 252-253 Confidentiality, 377 breaches of, 107-108 in child abuse, 113 in criminal cases, 113 disclosing information and, 112-114 genetic screening and, 353 government requests and, 113 t refers to a table Confidentiality (continued) principles of, 105 privilege doctrine and, 110-112 public’s right to know and, 114 quality management nurse and, 230 right to privacy and, 105-108 Conscience clause, 314 Conscientious objection, 314 Consent form, 377 Consent, 80-91, 385 for autopsy, 122 court rulings and, 83 in developmentally disabled patients, 215-216 discrepancies in, 85 evidence of, 89-90 exceptions to obtaining, 90-91 inability to give, 83-89 incompetent patients and, 86 invalid, 91 in mental illness, 215-216 minors and, 87, 205-207 for organ donation, 122-123, 322, 325 patient’s understanding and, 84 presumed, 394 right to, 91 standards for, 80-83 treatment refusal and, 88 Consequential damages, 378 Constructive-continuing-treatment rule, 135 Consumer, 378 Continuum of care, 378 Contraband, swallowed, 222 Contraception insurance payments for, 111 for minors, 106 Contract defense, 378 during disasters, 269 Contract duties, 378 during disasters, 268 Contracts breach of, 275-276 employment, 272-277 invalid, 276 2800index_2800index.qxd 9/19/13 3:47 PM Page 417 Index Contracts (continued) offer and acceptance of, 274-275 terminating, 276-277 types of, 273-274 violations of, 290, 292, 378 Contributory negligence, 161, 161t Controlled substance, 378 abuse of See Substance abuse documentation of, 246-247 Convincing evidence standard, 157 Cooperation strategy, 378 Coronary care unit, 182-186, 378 Coroner, 378 Corporate liability, 127-129, 378 patient safety and, 189 Counterclaim, 378 Countersignature, 246, 378 Court preparing for, 165 testifying in, 167 Courtroom demeanor, 167 Coworkers, and legal risk, 180 Criminal cases, confidentiality in, 113 Criminal liability, 133 Criminals, 221-226 blood samples from, 222 constitutional rights of, 221-223 documenting care of, 223-224 searches of, 221, 223 Critical care nursing, 131 Critical care unit, 378 Cross-examination, 378 Cruzan, Nancy, 72 Custodial care, 378 D Damages, 379 awarding of, 155 exemplary, 381 general, 383 punitive, 150, 396 special, 398 Data banks National Nurses Claims, 162 National Practitioner, 125, 126-127 t refers to a table 417 Death, 379 definition of, 313 nurse’s responsibilities and, 122 patient’s rights and, 120 pronouncing, 121-122 Death certificate, standard, 398 Death determination, in Canada, 121 controversy over, 120-121 Decision making, ethical See Ethical decision making Decision-making ability, patient’s, standards for judging, 317 Declared emergency, 379 Decree of educational equivalency, 379 Default judgment, 379 Defendant, 379 Defense independent medical examination, 379 Delegation, and malpractice law, 140-141 Delinquency, 379 Deontology, 302-307, 379 Deoxyribonucleic acid transfer, 345 Dependent nursing function, 379 Deposition, 165, 167, 369 Detention, lawful, 119-120 Developmentally disabled patients, 214-221 establishing legal responsibility for, 215 government action for, 214-215 informed consent from, 215-216 research participation and, 220 responding to requests from, 220-221 restraint use in, 216-218 right of writ of habeas corpus for, 219 right to privacy for, 218 right to treatment for, 219 sexual rights for, 219-220 Dilemmas, types of, 296 Direct access, 379 Direct contract model HMO, 379 Direct examination, 379 Direct patient care, 379 Directed verdict, 379 Disasters, volunteering during, 268-271 2800index_2800index.qxd 9/19/13 3:47 PM Page 418 418 Index Discharge against medical advice, 116-120 documenting, 117, 118 Discharge planning, documenting, 238 Disciplinary action, state boards of nursing and, 40-45, 42 Disciplinary hearings, 293 Disclosure laws, 379 Discovery device, 379 Discovery rule, 135, 380 Discretionary powers, 380 Discrimination, as unfair labor practice, 281 Disease, transmission of, legal responsibility for, 189 Disease-management companies, 405 Disease state management, 380 Disputes, resolving, 289-290 Distributive justice, 380 Documentation, 232-253, 380 See also Charting; Medical records absence of information in, 242 changes in, 244 of controlled substances, 246-247 countersigning, 246 in criminal care, 223-224 in discharge against medical advice, 117, 118 of discharge planning, 238 duties and standards of, 240-241 errors in, 243 faulty record keeping and, 241 flow sheets in, 236, 237 importance of, 143 improper, 138, 241-243 institution policy and, 240 missing records and, 242 of patient’s wishes, 314 of physician’s orders, 245-246 purpose of, 232-235 of restraint use, 143 signing, 243-244, 245, 248-250 subjective versus objective, 244 tips for, 239 of verbal orders, 246, 247 in whistle-blowing, 362 t refers to a table Documentation (continued) witnessing, 248-250 Documentation systems, 233-234t Domination, as unfair labor practice, 281 Do-not-resuscitate order, 317 Donor families, approaching, 322 Donors cadaveric, 321-323 child, 321 protecting rights of, 320-321 Drug abuse, 380 See also Substance abuse in minors, 207 Drug addiction, 380 Drug administration challenges to, 194 emergency, 193 laws governing, 191, 192 legal responsibility for, 191-195 liability and, 195 by licensed practical nurses and licensed vocational nurses, 195 nurse’s role in, 193-194 refusal to perform, 194 six rights formula for, 191 Drug Enforcement Administration, 380 Drug errors, 141 lawsuits related to, 192-193 Drug search, conducting, 223, 224 Drug-control laws, 191-192 Drunk drivers, blood test for, 222 Dual agency doctrine, 380 Due process rights, 380 Durable power of attorney for health care, 96, 99, 380 Duty, 381 to patient, 155 Duty-to-rescue law, 255, 263-264, 381 E Egg banks, 342 Egoism, 306, 381 Elder abuse, 208, 210 Elder neglect, 210 Emancipated minor, 381 See also Minors 2800index_2800index.qxd 9/19/13 3:47 PM Page 419 Index Emancipation, 204-205 Embryo splitting, 345 Embryos, frozen, 342 Emergency, declared, 379 Emergency care, for minors, consent and, 206 Emergency department, drug administration in, 193 Emergency department nursing legal risks in, 182-186 liability in, 131 Emergency Medical Service, 381 Emergency Medical Treatment and Active Labor Act, 138 Emergency Nurses Association guidelines, for telephone triage, 196 Emergency treatment informed consent and, 90 right to refuse, 101 Employee-at-will, legal considerations for, 57 Employee rights, 272-294 Employment contract, 272-277 components of, 275 End-of-life care, domains of, 92 See also Right to die; Treatment refusal Endorsement, 39, 381 Equal Employment Opportunity Commission, 293 Equal Pay Act of 1963, 293 Equipment, legal responsibility for, 187, 189 Escape, from hospital, 117, 119 Ethical codes, 304-305 Ethical conflict, 311-368 abortion as, 338-350 acquired immunodeficiency syndrome as, 331-338 critically ill neonate as, 328-331 generic engineering and screening as, 350-354 human immunodeficiency virus as, 331-338 organ transplantation as, 320-328 reproductive technology as, 338-350 right to die as, 311-320 t refers to a table 419 Ethical conflict (continued) substance abuse by nurses as, 363-367 workplace safety as, 354-363 Ethical decision making, 295-310 basis of, 307-310 types of, 298-299 Ethical diagnosis, 381 Ethical principles, 298, 299 Ethical theories, 302-307 alternative, 306 Ethics, 381 perinatal, 328-331 theological, 306 values and, 300-302 versus law, 295-296 Ethics committee, 312-313 nurse’s role on, 309 Eugenics, 351 Euthanasia, 318-319, 381 Evaluation, 381 Evidence admissible, 371 circumstantial, 376 criminal, safeguarding, 224-225 searches for, 221, 223 Excess judgment, 148 Exclusionary rule, 381 Exclusive provider organization, 381, 405 Exemplary damages, 381 Experimental procedures, consent for, 123 Expert witness, 155, 156, 382 Express contract, 382 Extended-care facility, 382 Extraordinary treatment, 313 F Facility policies adhering to, 144 updating, 144 Falls, 144, 187, 188 False allegations, 161t False imprisonment, 117-119, 382 as intentional tort, 129t Family nurse practitioner, 382 Federal Privacy Act of 1974, 252 2800index_2800index.qxd 9/19/13 3:47 PM Page 420 420 Index Federal Tort Claims Act, 382 Fee-for-service, 382 Fetal tissue transplant, 323, 324 Fetal viability, 339 Fetus, as human being, 338-339 Fidelity, 382 confidentiality and, 105 Fiduciary, 382 Fiduciary relationship, 382 First aid, 382 Flexible staffing patterns, 382 Floating, legal risk of, 181 Flow sheets, 236, 237 FOCUS CHARTING, 233, 234t Food and Drug Administration, 382 Food, Drug, and Cosmetic Act, 191 Forensic medicine, 382 Fraud, 135, 383 Futility, medical, 102-105 G Gatekeeper, 383 Gene, 351 Gene splicing, 351 Gene therapy, 351 nurse’s role in, 353-354 General damages, 383 Genetic engineering and screening, 350-354 Genetic manipulation, 350 Genetic marker, 351 Genetic screening justice and, 353 voluntary versus mandatory, 352-353 Geriatric nursing See Long-term care facilities Germ cell alteration, 351 Gerontologic nursing, 383 See also Long-term care facilities Good faith, 383 Good Samaritan acts, 261-262, 263, 383 state, 256-260 volunteering and, 268 Good Samaritan law, 262-263 Good Samaritans care tips for, 262 t refers to a table Good Samaritans (continued) legal protection for, 254-264 Grace period, 383 Grandfather clause, 383 Grievances, 289-293, 383 common, 290-292 procedure for, 292, 383 types of, 290, 292 versus gripes, 290 Gripes, versus grievances, 290 Gross negligence, 261, 383 Ground rules, 383 Group model HMO, 383 Guardians for developmentally disabled patients, 215 legal, 387 for mentally ill patients, 215 for minors, 205 Guardian ad litem, 205, 383 H Hazardous chemicals, workplace safety and, 354 Health care consumer, 383 Health care industry, 383 Health care networks, 405 Health care professional, 383 Health care team, legal risks of, 180 Health care workers, rights of, 314 Health Insurance Portability and Accountability Act of 2003, 252, 384 policies of, for telephone triage, 196 Health maintenance organization, 384, 404 Health provider, 384 Home health care, 63-65 legal risks of, 52 Homestead laws, 166, 384 Hospice, 384 patient’s bill of rights and, 71, 77-78 Hospice care legal considerations in, 61 obligation to provide, 336 Hospice nurse, responsibilities of, 60 Hospital, proprietary, 395 2800index_2800index.qxd 9/19/13 3:47 PM Page 421 Index Hospitalization, forced, 216 Hospital information system, 384 Hospital liability, 127-129 understaffing and, 178-179 Hospital policies, 173-177 changing, 177 conflicts with, 17-18, 176-177 effect of, on court decisions, 174-175 evaluation of, by potential employee, 176 laws affecting, 175 for licensed practical nurses and licensed vocational nurses, 177 nursing department manuals and, 174 United States versus Canadian, 175-176 Hospital quality assurance program, 384 Hospital quality improvement program, 384 Human immunodeficiency virus infection, 331-338 care refusal in, 334-337 contact notification in, 337 mandatory testing for, 332-333, 335 public’s right to know and, 333-334 testing guidelines for, 334 Human investigations committee, 384 I Illinois Health Care Surrogate Act, 227 Immunity from liability, 384 Immunity from suit, 384 Implementation, 384 Implied conditions, 274, 385 Implied contract, 385 Implied covenant of good faith and fair dealing, 273 Implied-in-law contract, 385 Impossibility, 269 Impossibility defense, 385 In loco parentis, 385 Incapacitation, and treatment refusal, 100 Incident, 385 Incident reports, 199-203, 385 as courtroom evidence, 202 filing, 200, 201 t refers to a table 421 Incident reports (continued) potential pitfalls in, 202 reporting errors in, 202-203 risk management strategy in, 203 Incompetence, 385 informed consent and, 86 statute of limitations and, 136 Indemnification, 385 Indemnification suits, 150-151 Independent contractor, 385 See also Private-duty nurse Independent practice association model HMO, 385 Independent provider organization, 385 Individual contract, 385 Infection, workplace safety and, 354 Informed consent See Consent Injunction, 385 Injury, proving, 155 Inpatient, 385 Insurance adjuster, 385 Insurance companies genetic screening and, 352 notifying, in malpractice, 162 nursing case coordinator for, responsibilities of, 60 Insurance, liability See Liability insurance Intensive care, 385 Intensive care unit, 385 legal risks in, 182-186 Interference, as unfair labor practice, 281 Intermediate care, 386 International Commission of Justice, 218 International Council of Nurses, 386 code of ethics for, 304-305 International Red Cross Society, 386 Interrogatories, 165, 386 Intervention, 386 Invalid contract, 276, 386 Invasion of privacy, 129t In vitro fertilization, 341-344 government regulation of, 343 nurse’s role in, 348-350 2800index_2800index.qxd 9/19/13 3:47 PM Page 422 422 Index J Jehovah’s Witnesses, 94, 95 treatment of minors and, 207 Job description, 386 Joint Commission of Accreditation of Healthcare Organizations, 386 patient safety goals of, 35 standards of, 19, 30-33 Joint practice, 386 Joint responsibility, 129 Joint statement, 386 Judgments, lawsuits and, 169 Judicial bypass statutes, 386 Judicial precedent, 127 Judicial process, 402-403 Judicial review process, 43 Jury, lay, 387 Jury selection, 166 Just cause, 387 K Kaiser Permanente, 404 Kevorkian, Jack, 318 L Labor Management Relations Act, 284 Latex allergies, workplace safety and, 355 Law definition of, 387 nursing practice and, 1-45 versus ethics, 295-296, 297 Lawsuits attorney selection in, 163, 164 challenging, 161t contacting insurance company in, 162 cross-examination in, 169 defending oneself in, 162-170 defenses for, 158-162 depositions in, 165, 167 four elements of, 154-157 hospital policies and, 174-175 interrogatories in, 165 judgment in, 169 jury selection in, 166 legal process and, 154-170 medical examinations in, 165 t refers to a table Lawsuits (continued) notifying appropriate personnel in, 162-164 preparing defense in, 164-165 preparing for court in, 165-166 pretrial events in, 166-167, 168 preventing, 172-173 risks of, 142 situations that trigger, 138-139 trial process in, 167, 168 Lay jury, 387 Legal guardian, 387 Liability, 387 See also Malpractice abuse reporting and, 211 in agency nursing, 66 corporate, 127-129, 378 criminal, 133 in home health care, 64 hospital, 127-129, 178-179 immunity from, 384 living wills and, 227 nurse, 130-133 patient safety and, 190-191 physician, 129-130 professional, 395 restraint use and, 216, 218 for signature, 249 in special practice situations, 131-132 in telephone triage, 197 treatment refusal and, 100, 101 Liability insurance, 145-153 in alternative practice settings, 62 choosing, 146-147 cost containment for, 151 cost of, 148-149 employer’s, 151-153 multiple insurers and, 150 policies, 43 role of, 149-150 Liaison nurse, 387 Libel, 387 License renewal, 38, 39-39 Licensed practical nurse, 387 code of ethics for, 304 drug administration and, 194 hospital policies for, 177 2800index_2800index.qxd 9/19/13 3:47 PM Page 423 Index Licensed practical nurse (continued) long-term care nursing and, 56 role of, in patient teaching, 199 Licensed vocational nurse, 1-2 drug administration and, 194 hospital policies for, 177 role of, in patient teaching, 199 Licensing laws, 37 Canadian, 38 Licensure, 37-45, 387 conditions for, 11 disciplinary action and, 40-45, 42 failure to qualify for, 39 federal law and, 40 foreign, 40 legal significance of, 37-38 out-of-state, 39-40 reinstatement of, 45 Lie detector, 387 Life-support measures extraordinary, 382 resuscitative, 396 Litigant, 388 Living wills, 388 for children, 228 compliance with, 227 conflicts over, 228-229, 230 contesting, 315, 316 drafting, 229 foreign patient and, 228 in hospice setting, 61 interpreting, 227 invalid, 228 laws concerning, 226 liability and, 227 oral statements and, 229-230 upholding, 226-230 Living will laws, 95, 97-98, 388 Locality rule, 388 Long-term care facilities, 53-58 financial concerns in, 58 liability concerns in, 54 patient’s rights in, 57 professional challenges in, 58 quality of care in, 56 scope and limits of care in, 54 t refers to a table 423 Long-term care facilities (continued) selecting, 54 staffing in, 55 substandard care in, 54 M Malfeasance, 388 Malpractice, 388 See also Lawsuits; Liability judicial precedent and, 127 proving, 255-261 reporting, 362-363 versus negligence, 130 Malpractice law, 127-133 statute of limitations for, 133-136 Malpractice lawsuits See Lawsuits Malpractice liability, 125-153 avoiding, 137-145 Managed care, documentation in, 241 Managed-care organizations, 388 types of, 404-405 Management, rights and limitations of, 281 Mandatory bargaining issues, 287, 388 Manuals, nursing department, 174 Maryland Nurse Practice Act, 49 Master’s degree program, 388 Medicaid, 388 Medical directive, 388 Medical futility, 102-105 Medical practice definition of, 46-47 versus nursing practice, 46-49 Medical records, 389 See also Charting; Documentation court preparation and, 165 computerized, 250-253 content of, 235-237 disclosure of, 114-116 failure to maintain, 237-238 legal significance of, 235-238 missing, 242 ownership of, 114 retaining, 136-137 Medical release form, 389 Medicare, 389 2800index_2800index.qxd 9/19/13 3:47 PM Page 424 424 Index Medication errors See Drug errors Mental competence, 389 Mental health care, for minors, consent for, 207 Mental Health Systems Act of 1980, 71, 72 Mental illness, 214-221 establishing legal responsibility in, 215 government action in, 214-215 informed consent in, 215-216 research participation and, 220 responding to patient requests in, 220-221 restraint use in, 216-218 right to privacy in, 218 right to treatment in, 219 right to writ of habeas corpus in, 219 sexual rights in, 219-220 Mental incompetence, 389 Mental status examination, 389 Mercy killing, 318-319 Methotrexate, 339 Midwife, 389 lay, 387 Midwifery, court rulings and, 47-48 Mifeprex, 339 Mifepristone, 339 Minors, 389 abortion rights of, 106, 110 caring for, 203-207 communicable disease in, 206 contraception consent for, 206 drug abuse in, 207 emancipated, 204-205 guardians ad litem for, 205 informed consent and, 87 mature, 204 mental health care for, 208 obtaining consent for treatment of, 205-207 religious beliefs in, 207 rights of, 204 statute of limitations and, 136 treatment refusal and, 100 t refers to a table Misconduct disciplinary proceedings for, 41, 42 medical or management, reporting, 358-360, 360-362 Misdemeanor, 389 Misfeasance, 389 Misoprostol, 339 Misrepresentation, 389 Moral dilemma, 296-299, 390 See also Ethical conflict Moral relativism, 300-302, 390 Moral turpitude, 390 Motherhood, surrogate versus conventional, 348 N National Council of Licensure Examination, 390 National Labor Relations Act of 1974, 277 appealing to, 286 role of, in collective bargaining, 284-287 National League for Nursing, 390 patient’s bill of rights of, 72, 78, 79 National Nurses Claims Data Bank, 162 National Organ Transplant Act of 1984, 322 National Patient Safety Goals, 187 National Practitioner Data Bank, 125, 126-127 Natural death acts, 95, 315 See also Right to die; Treatment refusal Needle sticks, 356-357 Neglect, elder, 210 Negligence, 390 comparative, 150 contributory, 161, 161t Good Samaritan acts and, 261 gross, 261, 383 lawsuit challenge and, 161, 161t ordinary, 392 as unintentional tort, 128t versus malpractice, 130 Negligent nondisclosure, 81, 390 2800index_2800index.qxd 9/19/13 3:47 PM Page 425 Index Negotiations, 287-288, 390 Neonate, critically ill, and sanctity of life, 328-331 Network model HMO, 390 Next of kin, 390 No-code order, 390 Nonfeasance, 390 Nonmaleficence, 391 organ donation and, 320 Nurse, definition of, 390 Nurse anesthetist, 1, 391 court rulings and, 48 Nurse clinician, 391 Nurse consultant, legal, responsibilities of, 60 Nurse entrepreneur, responsibilities of, 60 Nurse liability, 130-133 Nurse midwives, Nurse practice acts, 391 conflict of, with hospital policies, 17-18, 176-177 independent action and, 16-17 interpreting, 10-18 limits of practice and, 16 nursing diagnosis and, 10, 15-16 updating, 18 violations of, 10 Nurse practitioner, 1, 391 nurse practice acts and, 17 Nurse-midwife, 376 Nurses’ associations, 4-8 Nurses’ notes, 391 Nurses’ registry, 391 Nursing, definition of, 391 Nursing administrator, 391 Nursing assessment, 391 Nursing audit, 391 Nursing care, standards of, 22-30 Nursing care plan, 391 Nursing diagnosis, 392 Nursing law, landmarks in, Nursing practice in Canada, 2-3 defining boundaries of, t refers to a table 425 Nursing practice (continued) definition of, 48-49 levels of, 1-3 versus medical practice, 46-49 Nursing process, 392 applying, 307 Nursing services, donating, 267-268 Nursing skills, 392 Nursing specialty, 392 Nursing standards, in special care units, 183-185 O Obligationism, 306, 392 Obstetric nursing, 132 Occupational health nurse, responsibilities of, 59 Occurrence policy, 145, 392 Occurrence rule, for statute of limitations, 134 Off-duty nursing, 254-271 Ombudsman, 392 Omnibus Budget Reconciliation Act of 1987, 57, 71 Open shop, 392 Opioids, administering, 247 Oral contract, 392 Oral express contract, 274 Orders documenting, 245-246 malpractice law and, 141 questioning, 16-17 standing, 399 verbal, 400 Ordinary negligence, 392 Ordinary treatment, 313 Organ donation, consent for, 122-123, 123 Organ donors caring for, 323 protecting rights of, 320-321 Organ transplantation cost considerations in, 327 ethics of, 320-328 multiple, 328 2800index_2800index.qxd 9/19/13 3:47 PM Page 426 426 Index Organ transplantation (continued) rights of potential donors and, 320-321 selecting recipients for, 324-327 Original position, 392 Ostensible agent doctrine, 66 Outcomes management, 392 Out-of-court settlements, 149, 166 Overload, 393 legal risks of, 180-181 P Parens patriae, 392 Parents, of critically ill neonate, 329 Parents Anonymous, 392 Patient advocacy, 308-310, 392 ethics of, 315 medical malpractice and, 363 Patient, definition of, 392 Patient care, direct, 379 Patient classification systems, 393 Patient overload, 393 Patient record, 393 Patient safety failure to ensure, 190-191 hospital’s responsibility for, 189-190 legal responsibility for, 186-191 liability and, 190, 191 standards of care for, 187 Patient safety goals, of Joint Commission on Accreditation of Healthcare Organizations, 34 Patient Self-Determination Act of 1990, 72, 94, 144 requirements of, 96 Patient teaching, 197-199 Patient’s bill of rights, 70, 73-74, 393 of American Civil Liberties Union, 71, 75-76 of American Hospital Association, 71, 72, 73-74 of hospice, 71, 77-78 legal status of, 74 of National League of Nursing, 72, 78, 79 Patients’ rights, 70-124 congressional action and, 71, 72 t refers to a table Patients’ rights (continued) documents upholding, 70-80 evolution of, 71-74 guidelines for upholding, 78-80 interpreting, 74-78 in long-term care facility, 57 Pediatric nurse practitioner, 393 Pennsylvania’s Abortion Control Act, 110 Peremptory challenge, 393 Perinatal ethics, 328-331 Persistent vegetative state, 393 Physician attending, 373 definition of, 393 Physician assistant, 393 nurse practice acts and, 17 Physician liability, 129-130 Physician’s orders, documenting, 245-246 PIE charting, 233, 234t Plaintiff, 394 Point-of-service organizations, 405 Policy, definition of, 394 Policy defense, 394 Postanesthesia care units, legal risks in, 182-186 Power of attorney, 394 Practitioner, definition of, 394 Preferred provider organizations, 394, 404 Pregnancy acquired immunodeficiency syndrome and, 337-338 prenatal screening during, 340-341 surrogate, 347-350 treatment refusal during, 100 Prenatal screening, 340-341 Preponderance of the evidence standard, 157 Prescription drug, 191, 394 Presumed consent, 394 Prisoners nursing care for, 225-226 treatment refusal and, 226 Privacy, 394 right to See Right to privacy 2800index_2800index.qxd 9/19/13 3:47 PM Page 427 Index Private-duty nurse, 50-53 financial burdens of, 52 legal risks of, 52 professional challenges for, 53 scope and limits of, 51 Privilege, therapeutic, 400 Privilege doctrine, 394 and Canadian law, 112 and confidentiality, 110-112 exceptions to, 112 extent of, 111 nurse-patient relationships and, 111 Privileged communication, 164, 394 Probable reliance,265 Probate, 395 Probation period, 395 Problem-oriented documentation system, 233, 395 Pro-choice, 339, 395 Professional corporation, 395 Professional liability, 395 Professional liability insurance, 395 Professional organization, 395 Professional registered nurse, 395 Pro-life, 339, 395 Proprietary hospital, 395 Protocol, 395 Provincial Territorial Nurses Association, 395 Proviso, 395 Proximate causation, 155, 158, 395 Proxy, 395 Psychiatric nurse practitioner, 395 Psychiatric nursing, liability in, 131-132 Punitive damages, 150, 396 Q Qualified privilege, 396 Quality management nurse, 230 Quality of life, 396 Quid pro quo sexism, 357 Quinlan, Karen Ann, 72, 92 R Rape, statutory, 399 Reasonable doubt standard, 157 t refers to a table 427 Reasonably prudent nurse, 396 Rebuttable presumption, 396 Recombinant deoxyribonucleic acid synthesis, 351 Records See Charting; Documentation; Medical records Redefinition, 396 in nurse practice acts, 18 Refusal to bargain, 281 Registered nurse, 1, 2, 396 long-term care nursing and, 56 Canadian, Registered nursing assistant, 396 Registry, 396 Rehabilitation, refusing, 102, 103-104 Rehabilitation Act of 1973, 71, 214 Reimbursement, third-party, 400 Relativism, moral, 300-302, 390 Religious beliefs in minors, 207 treatment refusal and, 94-95 Reproductive technology, ethics of, 338-350 Res ipsa loquitur, 159-160, 396 Res judicata, 170 Rescue, obligation to, 255 Research, mentally ill patients and, 220 Respondeat superior, 55, 127, 139, 396 as malpractice defense, 158 patient safety and, 190 Restraints applying, 217 documenting use of, 143 for mentally ill patients, 216-218 patient safety and, 188 Restriction fragment length polymorphism, 351 Retaliation, whistle-blowing and, 362 Review committee, 397 Review process, judicial, 43 Right-of-conscience laws, 397 Right-to-access laws, 397 Right to die cost considerations and, 319-320 as ethical issue, 311-320 2800index_2800index.qxd 9/19/13 3:47 PM Page 428 428 Index Right to die (continued) ordinary versus extraordinary treatment and, 313-314 patient’s decisions and, 315, 317 Right-to-die laws, 95-96, 397 Right to know, 198-199 confidentiality and, 114 versus right to safety, 354 Right to notice, 397 Right to privacy, 106-107 abortion law and, 109 confidentiality and, 105-108 constitutional right to, 108-110 in developmentally disabled patients, 218 in human immunodeficiency virus infection, 337 in mental illness, 218 nurse’s responsibility in, 112 patient’s, 108-114 Right to refuse, during disasters, 270 Right to refuse treatment See Treatment refusal Risk management, 397 Risk manager, 397 Royal College of Physicians, 397 Royal College of Physicians and Surgeons of Canada, 397 Royal College of Surgeons, 397 RU-486, 339 Rule, definition of, 397 S Safe environment, providing, 144-145 Safety, patient See Patient safety Sanctity of life, versus quality of life, 328-331 School nurse practitioner, 397 responsibilities of, 59 Scope of practice, 3, 9, 397 working outside, 271 Searches, 221, 223 Seclusion, caring for patient in, 217 Service of process, 397 Settlement, 397 Sexism, quid pro quo, 357 t refers to a table Sexual harassment, in workplace, 357-358 Sexual rights, in mental illness, 219-220 Signature on documentation, 243-244, 245, 248-250 refusing, 249-250 Signature code, 397 Skilled nursing facility, 397 Slander, 398 as intentional tort, 129t Slippery slope principle, 398 Slow codes, 317, 398 SOAP, 233, 398 Social contract theory, 306 Socialized medicine, 398 Somatic alteration, 351 Somatic cell nuclear transfer technique, 345 Source-oriented records, 233, 398 Sovereign immunity, 61, 62, 398 Special care units legal risks in, 182-186 nursing practice limits in, 185-186 precautions for, 186 self-protection for nurses in, 183, 184 Special damages, 398 Specialty standard, 398 Sperm banks, 342 Staff, 398 Staffing pattern, 398 See also Understaffing traditional, 400 Staff model HMO, 398 Standard precautions, 324 Standards, 398 American Nurses Association, 19, 20-24, 25-29 application of, in court, 35-36 documentation, 240-241 evolution of, 19, 24, 33 Joint Commission on Accreditation of Healthcare, 19, 30-33, 398 legal significance of, 33-37 local and national, 33 2800index_2800index.qxd 9/19/13 3:47 PM Page 429 Index Standards (continued) nonnursing professionals and, 36-37 nursing, 19-33 for nursing administration, 19, 25-29 patient-safety, 187 patient-teaching, 197-198 for telephone triage, 196 Standing orders, 399 State boards of nursing, 9-10, 11-15 State of emergency, 399 Statue of limitations, 130, 133-136, 399 applying, 134-136 as defense, 136 extending, 136, 137 Statutory law, 255, 399 Statutory rape, 399 Sterilization, involuntary, 219 Steward, union, 399 Strike, decision to, 288-289 Subacute care, 399 Subpoena, 399 Subrogation, 148 Subspecialty, 399 Substance abuse attitudes toward, 364 confrontation in, 366 by nurses, 363-367 recognizing and reporting, 365 Substantive laws, 399 Substitute consent, 399 Substitute judgment, 399 Substituted judgment test, 317 Sudden emergency exception, 179, 399 Suicide prevention, 188 Suit, immunity from, 384 Summary judgment, 399 Summons, 399 responding to, 162, 164 Supervisors, liability of, 277-278 Support group, 399 Surrogate decision-maker, for living will, 227 Surrogate motherhood, 347-350 nurse’s role in, 348-350 Swallowed contraband, 222 t refers to a table 429 T Taft-Hartley Act, 284 Teaching, patient, 197-199 Technical registered nurse, 399 Teleology, 302-307, 399 Telephone triage, 195-197 Temporary practice permit, 399 Terminal illness, and living will, 229 Termination, 399 Termination-of-treatment rule, 134 Testamentary, 399 Testamentary will, 400 Testator, 400 Texas Medical Practice Act, 47 Theological ethics, 306 Therapeutic privilege, 91, 400 Third-party reimbursement, 400 Time charting, 400 Tort law, 127, 128-129t Torts, 154, 400 Traditional narrative documentation, 233 Traditional staffing patterns, 400 Transplantation See Organ transplantation Treatment discontinuing, 313 ordinary versus extraordinary, 313 right to, in mental illness, 219 right to refuse See Treatment refusal Treatment refusal, 88, 92-101 advance directive and, 94 challenging, 96-98 discharge against medical advice and, 116-120 in emergency situation, 101 ethics of, 314 liability and, 100, 101 by minors, 100 patient competence and, 315 by prisoners, 226 release form for, 92, 93 religious beliefs and, 94-95 responding to, 98-101 right to die and, 95 Triage, telephone, 195-197 Trial de novo, 44, 400 2800index_2800index.qxd 9/19/13 3:47 PM Page 430 430 Index U Understaffing and charge nurse’s liability, 179-180 chronic, 181-182 defending, 178 guidelines to determine, 177-178 hospital liability and, 178-179 legal risks of, 177-182 sudden overload and, 180-181 Unfair labor practices, 281, 290, 400 complaints caused by, 293 Uniform Anatomical Gift Act, 322, 400 Uniform Business Records Act, 137 Uniform Determination of Death Act, 120 Unionization, right to, 280, 282 Unions, 277-283 advantages and disadvantages of, 278 electing, 283, 284 eligibility for, in alternative practice settings, 62 joining, 278-280 rights and limitations of, 282 Union shop, 400 United Network for Organ Sharing, 327 United States Public Health Service, 400 Unlicensed assistive personnel, scope of practice and, 49 supervising, 50 Utilization management, 400 V Value awareness, developing, 301-302 Values, 400 ethics and, 300-302 Vegetative state, persistent, 393 Verbal orders, 400 documenting, 246, 247 Verdict, direct, 379 Viability, fetal, 339 Vicarious liability, theory of, 158 Violations, types of, 291 Violence, in workplace, 355-356 Violent patients, and lawful detention, 120 Virtue ethics, 306 t refers to a table Voluntary bargaining issues, 400 Volunteering, 267-268 during disasters, 269-271 WXYZ Whistle-blowing, 358, 359-360 systematic approach to, 361 Wildcat strikes, 289 Willowbrook decision, 220 Wills living See Living wills witnessing, 248-249 Witness, 401 expert, 155, 156, 382 Workers’ compensation, 401 in alternative practice settings, 63 Workplace sexual harassment in, 357-358 violence in, 355-356 whistle-blowing in, 358, 359-360, 361 Workplace safety, ethics of, 354-363 Writ of habeas corpus, 401 right to, 219 Written contract, 274 Wrongful death statute, 401 Wrongful life action, 401 ... additions many times Nurse’s Legal Handbook, Fifth Edition, doesn’t stop there Graphic symbols Foreword highlight important sidebar information Legal tip provides legally sound advice for legally perilous... you have little time to reflect on the legal and ethical consequences of your actions before you must perform them Nurse’s Legal Handbook, now in its fifth edition, offers concise and easy-tounderstand... Court case illustrates important legal points by providing examples of how nurses just like you fared in their court proceedings Nurse’s Legal Handbook, Fifth Edition, is a comprehensive resource