Legal and legislative issues

The primary purpose of law and legislation is to protect the

patient and the nurse. Laws and legislation define the scope of
acceptable practice and protect individual rights. Nurses who are
aware of their rights and duties in legal matters are better able
to protect themselves against liability or loss of professional
.licensure
SOURCES OF LAW
– The sources of law include constitutions,statutes, administrative
agencies, and court decisions.
– Constitution:The highest law in the United States; interpreted by the
U.S. Supreme Court; gives authority to other three sources of the law
– Statutes: Also called statutory law or legislative law; laws that are
passed by the state or federal legislators and that must be signed by
the president or governor
– Administrative agencies: The rules and regulations established by
appointed agencies of the executive branch of the government
(governor or president)
– Court decisions:Also called tort law; this is court mode law and the
courts interpret the statutes and set precedents; in the United
States, there are two levels of court: trial court and appellate cour
 Types of Laws and Courts
most nurses worry primarily about being sued for
malpractice, they may actually be
involved in three different types of court cases:
criminal, civil, and administrative
 Types of Laws and Courts
Criminal
Civil
Administrative
In criminal cases, the individual faces charges generally filed by
the state or federal attorney general for crimes committed
against an individual or society. Nurses found guilty of
intentionally administering fatal doses of drugs to patients would
be charged in a criminal court.
In civil cases, one individual sues another for money to
compensate for a perceived loss. civil case is described as a
preponderance of the evidence. Most malpractice cases are tried
in civil court.
• In administrative cases, an individual is sued by a
state or federal governmental agency assigned the
responsibility of implementing governmental
programs. When an individual violates the state
Nurse Practice Act, the Boards of Nursing may seek
to revoke licensure or institute some form of
discipline.
 LEGAL DOCTRINES AND THE PRACTICE OF
NURSING
Two important legal doctrines frequently guide all three
courts in their decision making. The first of these, stare
decisis, means to let the decision stand. Stare decisis
uses precedents as a guide for decision making. This
doctrine gives nurses insight into ways that the court
has previously fixed liability in given situations.
However, the nurse must avoid two pitfalls in
determining if stare decisis should apply to a given
situation
 PROFESSIONAL NEGLIGENCE
• Components:All liability suits involve a plaintiff and a
defendant. In malpractice cases, the plaintiff is the
injured party and the defendant is the professional
who is alleged to have caused the injury. Negligence
is the omission to do something that a reasonable
person, guided by the considerations that ordinarily
regulate human affairs, would do—or as doing
something that a reasonable and prudent person
would not do
. Reasonable and prudent generally means the
average judgment, foresight, intelligence, and
skill that would be expected of a person with
similar training and experience. Malpractice—
the failure of a person with professional training
to act in a reasonable and prudent manner—
also is called professional negligence.
 Elements of Liability
1.  Duty to use due care (defined by the standard of care):The
care that should be given under the
circumstances (what the reasonably
prudent nurse would have done)
2. Failure to meet standard of care (breach of duty):Not giving
the care that should be given
under the circumstances
3. Foreseeability of harm:The nurse must have reasonable access
to information about whether the
possibility of harm exists
4.  A direct relationship between failure to meet
the standard of care(breach) and injury can be
proved:Patient is harmed because proper care
is not given
5.  Injury:Actual harm results to the patient
 AVOIDING MALPRACTICE CLAIMS
Nurses then can reduce the risk of malpractice
claims by taking the following actions:
• Practice within the scope of the Nurse Practice
Act.
• Observe agency policies and procedures.
• Model practice after established standards by
using evidence-based practice.
• Always put patient rights and welfare first.
• Be aware of relevant law and legal doctrines and
combine such with the biological,
psychological, and social sciences that form the
basis of all rational nursing decisions.
• Practice within the area of individual
competence.
• Upgrade technical skills consistently by attending
continuing education programs and
seeking specialty certification.
 Incident reports
Incident reports or adverse event forms :are
records of unusual or unexpected incidents that
occur in the course of a client’s treatment.
Because attorneys use incident reports to
defend the health agency against lawsuits
brought by clients, the reports are generally
considered confidential communications and
cannot be subpoenaed by clients or used as
evidence in their lawsuits in most states.
 INTENTIONAL TORTS
Torts are legal wrongs committed against a person or property,
independent of a contract, that render the person who commits
them liable for damages in a civil action. Whereas professional
negligence is considered to be an unintentional tort, assault,
battery, false imprisonment, invasion of privacy, defamation, and
slander are intentional torts. Intentional torts are a direct
invasion of someone’s legal rights. Managers are responsible for
seeing that staff members are aware of and adhere to laws
governing intentional torts. In addition, the manager must clearly
delineate policies and procedures about these issues in the work
environment.
Nurses can be sued for assault and battery.
Assault is conduct that makes a person fearful and
produces a reasonable apprehension of harm. Essentially
then, assault is “threatening a
person, with the present ability to carry out the threat”
(Frederick, 2012, para 1). Battery is an intentional and
wrongful physical contact with a person that entails an
injury or offensive touching. “If there was a threat but no
physical contact, the charge is simple assault. When there
is a physical injury, no matter how slight, the charge is
simple assault and battery” (Frederick, 2012, para 1).
 Informed Consent
Strictly speaking, informed consent can be given only
after the patient has received a complete explanation
of the surgery, procedure, or treatment and indicates
that he or she understands the risks and benefits
related to it.
Informed consent is obtained only after the patient
receives full disclosure of all pertinent information
regarding the surgery or procedure and only if the
patient understands the potential benefits and risks
associated with doing so
The person(s) giving consent must fully
comprehend:
1. The procedure to be performed
2. The risks involved
3. Expected or desired outcomes
4. Expected complications or side effects that
may occur as a result of treatment
5. Alternative treatments that are available
Consent may be given by:
1. A competent adult
2. A legal guardian or individual holding durable
power of attorney
3. An emancipated or married minor
4. Mature minor (varies by state)
5. Parent of a minor child
6. Court order
The information must be in a language that the patient can
understand and should be conveyed by the individual who will be
performing the procedure. Patients must be invited to ask questions
and have a clear understanding of the options as well.
Only a competent adult can legally sign the form that shows informed
consent. To be considered competent, patients must be capable of
understanding the nature and consequences of the decision and of
communicating their decision. Spouses or other family members
cannot legally sign unless there is an approved guardianship or
conservatorship or unless they hold a durable power of attorney for
health care. If the patient is younger than 16 years (18 in some
states), a parent or guardian must generally give consent.
In an emergency, the physician can invoke implied consent, in
which the physician states in the progress notes of the
medical record that the patient is unable to sign but that
treatment
is immediately needed and is in the patient’s best interest.
Usually, this type of implied consent must be validated by
another physician.
In express consent, the role of the nurse is to be sure that
the patient
has received informed consent and to seek remedy if he or
she has not.
Informed consent does pose ethical issues for nurses.
Although nurses are obligated to provide teaching and to
clarify information given to patients by their physicians,
nurses must be careful not to give new information that
contradicts information given
by the physician, thus interfering in the physician–patient
relationship. The nurse is not responsible for explaining the
procedure to be performed. The role, rather, is to be a patient
advocate by determining their level of understanding and
seeing that the appropriate person answers their questions.
At times, this can be a cloudy issue both legally and ethically .
 LEGAL CONSIDERATIONS OF MANAGING A
DIVERSE WORKFORCE
Diversity has been defined as the differences •
among groups or between individuals and comes
in many forms, including age, gender, religion,
customs, sexual orientation, physical size,
physical and mental capabilities, beliefs, culture,
ethnicity, and skin color ,Demographic data from
the U.S. Census Bureau continue to show
increased diversification of the US population, a
.trend that began almost 35 years ago
‫اعداد الطالب‪:‬‬

‫‪ ‬احمد عثمان عقل‬

‫‪ ‬محمود احمد عقل‬
‫‪ ‬هيثم عنتر اغبارية‬
‫‪ ‬رنا رامي جيوسي‬
‫‪ ‬ديما نمر عويسات‬