Nursing Ethics and Legal Issues (page 2)

Legal Issues in Nursing

A number of legal issues are related to nursing practice, including licensing, nurse practice acts, and standards of care. However, in these litigious times, the issue that most concerns those considering a career in nursing are negligence and malpractice. Negligence is either an act of omission (not doing something a reasonably prudent person would do) or commission (doing something a reasonably prudent person would not do). Malpractice is negligence by a professional. Four elements are needed to prove malpractice:

1. Duty: Duty stands for a legal obligation owed by one person to another person. When nurses care for clients, they assume the duty to care for them in a competent and diligent manner. Nurses are expected to provide the degree of care ordinarily exercised by other nurses practicing in the same nursing specialty. Therefore, nurses are expected to adhere to standards of care—those imposed by the nurse's state board of nursing nurse practice act, the national nursing specialty standards of care and scope of practice, and the nurse's hospital, or other agency, protocols.
2. Breach: A breach of duty takes place when there is failure to fulfill the duties established as being the responsibility of the nurse. In other words, nurses breach their duty when they do not meet the appropriate standard of care.
3. Causation: Causation is the most difficult element to prove because it is the factual connection between what the nurse did and the injury to the client. Causation means that the nurse's breach of duty, or failure to meet the appropriate standard of care, caused the client's injury or adverse outcome.
4. Damages: Damages are monetary payments designed to compensate the client for the injury or adverse outcome, and are intended to restore the plaintiff to the condition he or she was in prior to the injury. To recover damages, the client must establish that he or she suffered physical, financial, or emotional injury caused by the nurse's violation of the standard of care. Damages are usually compensatory or punitive.

Nurses and nursing students can be held liable for their actions, and thus can be sued. However, the majority of nurses are competent professionals who provide a satisfactory level of care. According to HRSA's 2003 National Practitioner Data Bank (NPDB), only about 1 in 50 malpractice payment reports were for nurses. All levels of RNs were responsible for 4,512, or 1.8%, of malpractice payments over the history of the NPDB. Other classified RNs were responsible for 63.3%, and included nurse anesthetists, nurse midwives, and nurse practitioners. Reasons for malpractice payment reports varied depending on the type of nurse, but included monitoring, treatment, and medication problems.

High-level-need clients and short staffing can increase the chances for error, but nurses can minimize their liability by focusing on risk management. Healthcare facilities provide various levels of in-service education on risk management, and nurses can take continuing education courses on this important topic. Some states require risk management education courses for license initiation and/or renewal. Florida requires a course on reducing medical errors, while Ohio requires nurses to take a course to become familiar with their state nurse practice act. Taking a risk management course can also have some monetary advantage—some nursing malpractice insurance companies give discounts on premiums to those who complete a risk management course.