1: Legal Considerations

Rebecca Lash

Legal issues have a profound effect on the practice of nursing in today's increasingly technological and evolving health care arena. Laws influencing health care and emergency nursing are complex and may include laws and regulations from a variety of sources. This chapter provides a basic overview of some of the legal issues that affect emergency nurses and their delivery of care. This chapter is not a substitute for professional advice. Discuss specific legal concerns related to emergency nursing with an organizational leader or attorney. As laws can vary by state and local jurisdiction, ensure understanding of organizational policies and local laws and regulatory statutes that apply to nursing practice. Key issues covered in this chapter include Nurse Practice Acts (NPAs), delegation, negligence, confidentiality, and mandated reporting.

Nurse practice acts

Licensed professional nurses are accountable to the public for their nursing judgment and the consequences of that judgment. In the Unites States, the responsibility to protect the public and minimize the risk of potential harm that may come from nursing care falls to individual states. NPAs are statutory laws created by legislative bodies overseeing the practice of nursing. State Boards of Nursing (BONs) are the administrative bodies charged with enforcing the NPA of a state through rules, regulations, hearings, and investigations.

Every state has its own NPA that determines qualifications for entry into professional nursing, defines educational responsibilities, and regulates advanced practice nurses. It is the responsibility of the licensed practitioner to know and understand the scope of practice delineated in the NPA. While there is some state-specific variation, NPAs generally include the following elements: important definitions; authority, power and composition of a BON; education program standards; standards and scope of nursing practice; types of titles and licenses; protection of titles; requirements for licensure; and grounds for disciplinary action, other violations, and possible remedies.1

Some NPAs expand to include situations where the basic practice of nursing might overlap with either advanced nursing practice or the practice of medicine, as in the case of some nurse-driven protocols involving ordering diagnostic procedures or medications. These protocols may be referred to as “standardized procedures” and must conform to regulations as outlined in the specific NPA. Many involve a collaboration among the medical staff and include advanced training, ongoing documentation of education, and competency. It is crucial for the emergency nurse to understand the difference between nursing policies and these advanced protocols or standardized procedures.2,3

Delegation and unlicensed assistive personnel

Supervision of unlicensed assistive personnel (UAP) is a responsibility of the licensed practitioner. UAPs include emergency medical technicians, medical assistants, or certified nursing assistants. Emergency department (ED) nurses are expected to delegate activities is accordance with legal and policy parameters, and improper delegation of nursing functions can create legal problems.4 A registered nurse (RN) may not delegate any task to UAP required to be performed by a licensed practitioner, including those involving nursing judgement or critical decision-making. Delegation to any UAP by any nurse follows the five rights of delegation:5,6

• • Right Task. The activity is within the scope of practice and job description of the delegatee or the activity is described in relevant written policies and procedures.
• • Right Circumstance. The patient is in a stable medical condition. The delegatee should notify the licensed personnel for proper reassessment.
• • Right Person. The delegatee possesses the appropriate skills and knowledge to perform the activity properly.
• • Right Directions and Communication. The delegating nurse is expected to clearly communicate specific instructions for the activity. The delegatee is responsible for asking clarifying questions such as any required data collection and time frames for completion of the activity. Importantly, the delegatee must accept the delegated activity.
• • Right Supervision and Evaluation. Monitor the completion of the activity, evaluate patient outcomes, and ensure proper documentation.

Negligence and malpractice

Litigation in health care generally stems from civil law (as opposed to criminal law), where a court can impose liability for wrongdoing and require financial compensation.7 EDs are the source of a significant amount of civil litigation. It is imperative for emergency nurses to understand the legal implications related to performing the essential functions of an ED nurse.

From a legal perspective, nurses are accountable for competent nursing actions performed within their scope of practice set by the BONs and organizations by which they are employed. Important documents which are updated periodically to guide emergency nursing practice are the American Nurses Association (ANA) Scope and Standards of Practice,8 the ANA Code of Ethics,9 the Emergency Nursing Scope and Standards of Practice,10 and the National Council of State Boards of Nursing's Model Act.11 When a nurse's actions are questioned, these documents may be referenced to establish if the nurse performed expected and established nursing functions.

Professional malpractice is a “form of negligence and refers to negligence committed in carrying out professional duties.”12(p.183) Negligence is a category of tort law that is defined as “not meeting a standard, resulting in a failure to practice as an ordinary prudent or reasonable person would do under similar circumstances.”7(p.108) To establish negligence, four distinct criteria must be met:7,12

1. 1. Duty. The duty of care principle refers to the professional relationship that is established between a patient and clinician. Examples of how this duty may be established include when a nurse accepts an assignment, initiates care, or provides resuscitation efforts.
2. 2. Breach of duty. The RN must ensure that any patient treatment provided meets the standard of care expected. A breach of duty is established when a nurse's actions have not met the appropriate standard of care in which a reasonably prudent person of similar experience and training would do under similar circumstances. In other words, would a reasonable nurse faced with the same situation have acted in the same manner? To establish if a breach of duty has occurred, a standard of care must be identified.
3. 3. Causation. It must be established that the breach of duty resulted in direct and actual harm to the patient. In other words, it must be proven that there is a causal connection between an injury and the breach of duty.
4. 4. Damages. Damages refer to the monetary value associated with the harm caused by the negligence. The financial compensation that results from establishing breach of duty and causation may include medical and hospital expenses, mental anguish, physical and emotional disabilities, and additional compensation if there is evidence of reckless or malicious behavior.

It is important for nurses to perform their duties in accordance with organizational policies and professional standards of practice to justify clinical decision-making and actions if the need arises and those actions come into legal question. In addition, nurses should ensure they comply with any training and educational requirements mandated by the organization or state regulatory bodies to demonstrate the proper professionalism and competence.

Confidentiality and HIPAA regulations

Confidentiality is fundamental to the relationship between emergency nurses and their patients, and patients have an expectation of privacy regarding personal health information. Health care providers have ethical and legal obligations to protect medical information, and some specific considerations are unique to the ED setting. In a world of rapidly changing computer technology and increasingly easy access to protected health information (PHI), there are numerous opportunities for intentional and unintentional violations of patient privacy. In the United States, both federal and state laws exist to protect medical information.

Two pieces of national legislation impacting how health care providers share and disclose data are the Health Insurance Portability and Accountability Act (HIPAA) of 1996 and the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009.13,14 Enacted, in part, to simplify administration of health insurance, these regulations safeguard PHI by directing ways data may be stored, shared, or released.6 Two main sections for the emergency nurse to understand are the “privacy rule” and the “security rule,” and under these regulations, individuals are entitled to15,16

• • Information about how their health data will be used and shared.
• • Access to their personal...