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1、Legal Aspects,Application to OB/Pediatrics,Tort Laws,Tort laws offer remedies to individuals harmed by the unreasonable actions of others. Tort claims are based on the legal premise that individuals are liable for their actions if they result in injury to others. There are two major categories of to
2、rts in medical related cases: intentional tort and negligence tort.,Intentional Torts,Intentional torts are usually offenses committed by a person who attempts or intends to do harm. For intent to exist, the individual must be aware that injury will result from the act. The RN has knowledge that the
3、 act or omission of an act will cause injury to the plaintiff. This is different from “intent to injure”, which is a criminal matter. The distinction is “intent to act without regard” as opposed to the “intent to injure”. Examples of Intentional Torts: Assault: Threatening to harm resulting in fear.
4、 Battery: Unlawful, unprivileged touching of another person. Deceit: False statement or deceptive practice done with intent to injure another. False imprisonment: Unlawful restraint of a person, whether in prison or otherwise. Defamation: Wrongful act of injuring anothers reputation by making false
5、statements. Invasion of privacy: Interference with persons right to privacy. Infliction of emotional distress: Intentionally or recklessly causing emotional or mental suffering to others.,Negligence & Malpractice,Negligence and malpractice are used synonymously in litigation. The difference is that
6、“malpractice” is a specific type of negligence. Malpractice implies: a violation of professional duty or a failure to meet the standard of care of other prudent professionals in similar circumstances or failure to use the skills and knowledge of other professionals in similar circumstances.,Nursing
7、Negligence,The elements of negligence are: (1) duty (2) breach of duty (3) causation (4) injury and damages. Without all four elements there will be no malpractice claim in a court of law.,Negligence Element 1: Duty,The existence of a duty of care exists because of the contractual relationship betwe
8、en the patient and the doctor, the hospital, and other health care providers. When the nurse-patient relationship is established, the nurse has a duty to: Possess the nursing knowledge required of a reasonably competent RN engaged in the same specialty, and Possess the skills required of a reasonabl
9、y competent RN engaged in the same specialty, and Exercise the care in the application of that knowledge and skill to be expected of a reasonably competent RN in the same specialty, and Use the nursing judgment in the exercise of that care required of a reasonably competent RN in the same medical or
10、 health care specialty. Generally, a health care professional does not have a duty to someone who is not a patient.,Negligence Element 2: Breach of Duty,Breach of duty is the failure of the nurse to follow the standards of care found in the hospitals unit policies and procedures, authoritative nursi
11、ng textbooks, Board of Nursing (BON), and the nursing specialty association guidelines/standards. To prove that the RN beached his or her duty expert witnesses and nursing literature are used to show a deviation or breach of the standard of care. It involves showing what a reasonably competent healt
12、h care professional would have done in a similar situation.,Negligence Element 3: Damage,This element relates to the damage that was caused as a result of the breach of duty. This injury must an actual physical or mental injury. Even in instances where there is negligence, damage suits will not be s
13、uccessful unless there is provable injury.,Negligence Element 4: Causation,The breach in duty must be the cause of harm to the patient. Causation is the key word. Question: If this act had or had not occurred would the results have been the same? Determination of proximate cause is a factual one. Th
14、is means that the evidence must show that the results of misconduct were reasonably foreseeable. Proof of causation requires the testimony of an expert witness. Most jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony.,Successful Malpract
15、ice Suit,The recoverable damages are the same as in other personal injury/wrongful death actions caused by the negligence of another. They include: Actual damages easily measured such as medical expenses and lost wages Compensatory damages that what makes a person whole. Loss of work, grief, mental
16、anguish, loss of wage earning capacity, loss of consortium (spouse, parent, child) Punitive/Exemplary damages - to punish, gross, negligence, and reckless disregard for safety,Respondeat Superior:,The legal concept of vicarious liability and the doctrine of Respondeat Superior occur when the servant
17、 (employee) commits a tort or civil wrong within the scope of employment and the master (employer) is held liable, although the master may have done nothing wrong. For example, a hospital can be held liable for the negligence of a nurse employed by the hospital, even if the hospital itself has not a
18、cted negligently. The doctrine of Respondeat Superior believes that employers are better able to compensate injured parties than the employees who work for them. Employers can purchase insurance and spread the risk over the entire business.,Medical Liability and Insurance Improvement Act,The state o
19、f Texas passed The Medical Liability and Insurance Improvement Act in 1977. This act introduced changes to malpractice lawsuits including pre-suit notification, the use of expert reports, caps on damage awards and a 2-year statute of limitations. Noneconomic damages were limited to $500,000, plus co
20、st-of-living increases. These increases eventually raised the cap to about $1.3 million. (Noneconomic damages include pain and suffering, physical impairment, disfigurement, loss of consortium or companionship, etc.) The Texas Supreme Court in a 1988 ruling made the cap unconstitutional. The size of
21、 awards for noneconomic damages soon shot up, as did insurance premiums. Texas legislated another cap on noneconomic liability awards in 2003. $250,000 for physicians and $500,000 for institutions. Texans approved the amendment by a 51% to 49% margin. Soon after, liability insurers reduced their pre
22、miums by as much as 33%.,Statute of Limitations,Statute of limitations places a limit on time during which lawsuit can be filed. Medical malpractice lawsuit must be filed within 2 years and 75 days. Exceptions to this are: Fraud: The patient was deliberately misled. Evidence was covered up. The stat
23、ue was abused for physicians benefit. Birth-related injury. In cases of birth-related injury in which parents did not file lawsuit, the injured individual may file suit on his/her own behalf after adulthood is reached. At that time they are subject to same statute of limitations. Consequently, medic
24、al records of obstetric patients should not be destroyed until the statute has run out for the child.,Litigious Medical Areas: OB & Pedi!,Number of lawsuits filed per specialty: Obstetrics 20% Internal Medicine 18% Family Medicine 16% General Surgery 15% Orthopedic Surgery 14% Pediatrics 4% Obstetri
25、cs leads in amount of damages paid by specialty followed by pediatrics. Brain damaged infants are the most expensive. The damages awarded to pediatric cases are high because they are multiplied over many years and have an emotional component.,Good Samaritan Act,Nurses have immunity for damage caused
26、 when providing emergency care if: Performed during an emergency unless actions are willful/wanton negligent (therefore only covers ordinary negligence); and Performed without charge/remuneration or with expectation of remuneration. Does not apply to persons who regularly administer emergency care i
27、n a hospital emergency room or to admitting physician in case of a health care liability claims. Unlicensed emergency medical service personnel are not liable for emergency care regardless of remuneration unless care is grossly negligent. State law and your level of training determine whether youre
28、legally protected when using your nursing skills in an emergency. Texas Good Samaritan Act (Article 6701d, Vernons Civil Statutes ; Chapter 74, Civil Practice and Remedies Code Section 74.001),Rights of OB/Pedi Patients Confidentiality,Minors are considered emancipated for the purposes of consenting
29、 to medical treatment if he or she is married, has obtained court emancipation, served in the armed forces, or is a parent. Adolescents in the labor & delivery area make all decisions for themselves and their infant. Legal exceptions to confidentiality include suspected child abuse and the requireme
30、nt to report certain kinds of sexually transmitted diseases. Third party access to the minors personal health is usually controlled by the parents, making confidentiality between the health care provider and the minor difficult. Virtually every state permits a minor to seek treatment for sexually tr
31、ansmitted diseases without parental consent. Any minor, regardless of age, can receive confidential care and treatment related to family planning at a federally funded family planning clinic without parental consent. http:/www.cdc.gov/std/stats07/trends.htm http:/www.acog.org/from_home/publications/
32、ethics/co390.pdf,Rights of OB/Pedi Patients Refusal of Treatment,Patients can refuse care at any time Refusal is documented in chart and patient signs AMA form. The wellbeing of the fetus can become the object of court order. When parents refuse life-saving care for their children the court may be p
33、etitioned by the healthcare providers.,Rights of OB/Pedi Patients Informed Consent,Without informed consent assault and battery charges can result Dissent in ages 13-17 can be legally binding Emergency treatment can be given to children without the parents consent Elements of informed consent: Compe
34、tence Full disclosure: purpose, risks, benefits, other treatment options. Understanding of information Voluntary consent,Rights of OB/Pedi Patients Right to Live or Die,The right to die is related to a persons wish that caregivers allow death. For example, by not providing life support or vital medi
35、cation. Living Wills and Do Not Resuscitate orders are legal instruments that make a patients treatment decisions known ahead of time. This is not considered to be euthanasia. Usually these patients make it their wish to receive only palliative care to reduce pain and suffering. Medical Durable Powe
36、r of Attorney (or MDPOA) designates an agent to make decisions in case of incapacity. It is a most powerful instrument that does not require interpretation on the part of health care providers or even court-appointed guardians. The MDPOA takes the job of interpretation out of the hands of strangers
37、and gives it to a person selected and trusted by the individual. Pedi: “Wrongful Birth” suits based on failure to detect severe abnormalities and “Wrongful Life” suits based on resuscitation of micro-premies.,Rights of OB/Pedi Patients Pediatric Patients Bill of Rights,To ensure that all aspects of
38、childrens healthy care are family-centered, psychosocially sound, and developmentally appropriate. Health care systems and practices are most effective when they are planned, coordinated, delivered, and evaluated through meaningful collaboration between families and professionals of all disciplines.
39、 The Pediatric Bill of Rights, reproduced here from the second edition, copyrighted in 1996. In this facility you and your family have the right to: Respect and personal dignity Care that supports you and your family Information you can understand Quality health care Emotional support Care that resp
40、ects your need to grow, play and learn Make choices and decisions http:/www.goodbeginnings-csmc.org/support/inhospital/PediatricBillRights.pdf,Emergency Medical Treatment & Labor Act (EMTALA),In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to em
41、ergency services regardless of ability to pay. It imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including ac
42、tive labor, regardless of an individuals ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.,Lungsford vs.
43、 Board of Nurse Examiners,Lungsford vs. Board of Nurse Examiners 1983: Sent patient with chest pain to a hospital 24miles away. Did not assess patient. Patient died in route. Nurses have a legal duty to care for patient and evaluate status Nurses are increasingly being named as individual defendants
44、 and are absolutely being held responsible for their actions!,Maintaining Expertise,Maintaining Expertise for Registered Nurses,“ prevents malpractice suits” Continuing Education Membership in Prof. Organization. (Association of Womens Health, Obstetric, and Neonatal Nurses (AWHONN) American Nurses
45、Association (ANA) Know the Standards for Prof. Nurses in your area of practice Journals Specialty Certification (RNC),Nurse Practice Act,Legality: Is the activity or task within the scope of the RN and NOT prohibited by another law or rule? Competency: Can the nurse perform the activity or task and
46、meet the standards of safe nursing practice? Safety: Looking at the patient is the activity/task safe and appropriate to perform at this time? Accountability: The RN may perform the activity/task according to acceptable and prevailing standards of safe nursing care and prepare to accept accountabili
47、ty for his/her nursing actions. http:/www.bne.state.tx.us/nursinglaw/npa.html,http:/www.bne.state.tx.us/nursinglaw/pdfs/npa2007.pdf,The Nurse Practice Act A “must-read” document for every nurse. It also covers topics such as: A nurse shall report to the board if the nurse has reasonable cause to sus
48、pect that: Duty of Liability Insurer to Report. The board shall suspend a nurses license or refuse to issue a license to an applicant on proof that the nurse or applicant has been initially convicted of: .,Legal Aspects: Abortion,There have been 3 major abortion laws passed in Texas since Roe v Wade
49、. In 1987 3rd trimester abortions were banned, thus closing a loophole left by this historic decision. The next step after Roe v Wade was the establishment of legislation in 1977 that protected the right of medical personnel who refused to participate in abortion procedures or those who did participate. Private hospitals or health care facilities were not legally obligated to perform abortions unless the life of the mother was immediately threatened. Following in 1985 the Texas Abortion Facility Reporting and Licensing Act stipulated that all ab