01.07 Legal Considerations

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Overview

  1. Legal Considerations
    1. Federal Law
    2. State Law
    3. Torts
    4. Criminal & Civil Law

Nursing Points

General

  1. Federal Law
    1. Health Insurance Portability and Accountability Act – HIPAA
    2. American Disabilities Act – ADA
    3. Emergency Medical Treatment and Active Labor Act –  EMTALA
    4. Restraints
    5. Accreditation
      1. The Joint Commission (TJC)
      2. Center for Medicaid and Medicare Care Services (CMS)
  2. State Law
    1. Boards of Nursing
      1. State Practice Act
        1. Laws differ per state regarding scope of practice
      2. Licensure
    2. National Council of State Boards of Nursing (NCSBN)
      1. Compact License
        1. Must follow laws in state of active practice
      2. NCLEX
  3. Torts
    1. What is a Tort?
      1. Wrongdoing against a person
    2. Unintentional
      1. Negligence
      2. Malpractice
    3. Quasi-Intentional
      1. Defamation
      2. Privacy Breach
    4. Intentional
      1. Assault / Battery
      2. False Imprisonment
  4. Criminal & Civil Law
    1. Criminal
      1. Fines / penalties
      2. Serve time
    2. Civil
      1. Fines / penalties
      2. Payments

Nursing Concepts

  1. Health Policy
  2. Ethical & Legal Practice
  3. Professionalism

Patient Education

  1. Educate the patient on their rights

Reference Links

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Video Transcript

In today’s lesson, we’ll be looking at legal considerations like state and federal laws, and how it affects your nursing practice.
Let’s start with federal law.

There are lots of federal laws that govern how we practice. Examples of this are HIPAA, the Health Insurance Portability and Accountability Act, the ADA or the Americans with Disabilities Act, EMTALA (Emergency Medical Treatment and Labor Act), and use of restraints.

HIPAA, which we’ll talk about in another lesson, is all about privacy and protected health information.

The ADA focuses on allowing patients with disabilities to be treated equally, and also to make sure that wherever they’re being treated provides accommodations for them (so think wheelchair ramps, automatic doors, etc).

EMTALA is a federal law that says that any patient that presents to the emergency room for an emergency can’t be turned away for treatment. It also says that if a patient has an emergency, the patient has to be stabilized before any transfer can happen.

There are federal laws that detail appropriate use of restraints. There is an entire lesson on restraint use, so check that out for more details.

Along with federal laws, there are two main players in who helps to enforce the laws, and provide accreditation for healthcare facilities. One is The Joint Commission and the other is CMS or Centers for Medicare and Medicaid service. They’re the ones that levy fines and penalties for not complying with the rules or even breaking them. Hospitals can get shut down if they don’t follow the rules set up by CMS and TJC, so it’s important to know that they’re the big guns.

In every state, there’s a board of nursing, and they regulate nursing practice, including scope of practice, licensure, and dealing with violations. There’s another important governing body called the NCSBN or National Council of State Boards of Nursing and they’re in charge of all of the boards of nursing and provide regulation and oversight.

The NCSBN is also in charge of compact licenses. There’s something called the Enhanced Nursing Licensure Compact. If you get a compact license in one state, say Texas, and you want to practice in another state that is also under this compact (like Oklahoma), then you can practice there without sitting for another NCLEX or having to get a new license.

HOWEVER, and this is a big deal…you need to know what your scope is in that state, found in the State Practice Act. You need to follow the laws of the state you are actively practicing in, not JUST the one you’re licensed in.

Ok, so here’s a word that I’m sure you’ll see constantly through some fundamental stuff, and a lot through nursing school. It’s a part of law called tort law.

So what’s a tort? A tort is just a wrongdoing against a person. So, if you do something that hurts or harms someone else, or damages their property. That’s a tort.

There are three types of torts that we look at in nursing. Unintentional, quasi-intentional and intentional.

Unintentional torts are things that you do that aren’t meant to harm the patient, but do anyway. It’s unintended. So an example of this would be maybe hanging the wrong type of tube feeding without checking the order because the nurse didn’t think the doctor would change the tube feed order. They didn’t mean to do it, and it was a mistake, but it was negligent. Negligence and malpractice fall under unintentional torts.

Quasi-intentional tort has to do with something you SAY that causes harm to someone or their reputation. So defamation of character or sharing private information that causes harm to the person or their reputation.

Intentional torts are things you knowingly and willfully do to a patient that directly cause harm. Assault, battery, false imprisonment….these are all examples of intentional torts. So, if a patient flat out refuses an injection, and you still give it to them, that’s assault…which leads us into the last thing we’re gonna talk about, which is criminal and civil law.

So how do criminal and civil law affect nurses?

Well, we have to follow the law, we have to refer back to those 7 ethical principles (go check out that lesson), and if we don’t, we could face lawsuits or criminal charges.

Let’s go back to the example where the patient refused the injection. The patient refuses the injection, and the nurse gives it anyway. What happens?

First, the nurse could be charged with assault, battery, or both (depending on the state and how much harm occurred). The other thing that could happen is that the patient sues the nurse, the hospital, or both, which would be a civil case. Then the nurse becomes subject to paying the patient money, could lose their license, have it suspended, be fired, be fined or a combination of them. Sometimes both criminal and civil charges can be made against a nurse for the same event.

The big takeaway here is that you need to follow the law. Period.

So running through our nursing concepts for legal considerations, it involves ethical & legal practice, health policy and professionalism.

Lots of stuff today, but it really shapes what you should and shouldn’t do when you practice. So let’s recap.

Federal law…health policies are created by the government. These are major acts like HIPAA, use of restraints, EMTALA. Remember there are MAJOR penalties for violating these laws.

State laws regulate how you practice, this is your board of nursing. NCSBN regulates NCLEX and compact licenses.

Tort law is a doing something wrong to another person or property and it depends on the intent and how much the person is harmed.

There can be criminal and civil penalties if you don’t follow the law or if you harm a patient.

Thanks for sticking with me today through some not fun, but really important information. If there is ONE thing to remember from today, follow the law! Be sure to check out all the resources attached to this lesson. Now, go out and be your best selves today. And, as always, happy nursing!!

Read more

  • Question 1 of 9

Which of the following are examples of nursing malpractice? Select all that apply.

  • Question 2 of 9

Which of the following best describes the concept of a compact state for nursing licensure?

  • Question 3 of 9

Which of the following individuals would be considered an emancipated minor?

  • Question 4 of 9

A nurse is assisting a provider with obtaining informed consent about a medical procedure. Which of the following best describes the nurse’s role in obtaining informed consent?

  • Question 5 of 9

Which example best describes whistleblowing within nursing?

  • Question 6 of 9

A 12-year-old client needs to have treatment that involves a surgical procedure that will save the child’s life. The parents refuse to give consent for the procedure based on their personal convictions. Which of the following is allowable for the healthcare team in response?

  • Question 7 of 9

Which of the following situations best describes a breach of duty to act?

  • Question 8 of 9

Which of the following is an example of negligence on the part of the nurse? Select all that apply.

  • Question 9 of 9

A nurse is caring for a client who wants to leave the hospital against medical advice (AMA). The nurse has notified the provider and determined that the client has the mental capacity to refuse care. The nurse offers the client an AMA form to sign, but the client refuses to sign it. Which of the following actions of the nurse is most appropriate?

Module 0 – Fundamentals Course Introduction

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