© 2009 The Medical-Legal News
By Frances W. Sills, RN, MSN, ARNP
As nurses and professional healthcare providers, we are subject to the laws and regulations established by the board of nursing and nurse practice act in the state or province in which we work.
The regulations in each state define the scope of practice for the various levels of licensed nurses. The regulations are designed to ensure the public’s safety.
Since the days of Nightingale, nursing practice has expanded dramatically. The technological exposition, explosion, greater autonomy for nurses, increased demand for cost containment, and better educated patients who have higher expectations in the quality of the healthcare services they receive, have contributed to the expansion.
Nurses now find themselves in roles that have more responsibilities, and they are being held accountable for the actions or lack of actions. As a direct result, more nurses are being named defendants in malpractice lawsuits.
This continuing education offering will provide an overview of the major concepts that are used to define nurses’ legal responsibilities, discussions of the nurse practice act, the standards of care and how they may be used as evidence during malpractice litigation.
As a beginning let us briefly review the law in general. A law is a binding rule of conduct that is established and enforced by an authority to safeguard the public. Public law is associated with direct government involvement. Federal and state laws that deal with society as a whole are criminal laws. Criminal laws deal with felonies and misdemeanors, while private law deals with individuals and the relationships among them. Private law is also known as civil law.
There are four major sources of laws:
• Constitutional law— dictates how governments are created at the federal and state levels. These laws define authority and identify the specific measures for establishing laws.
• Statutes — laws established by legislative bodies. These would be Congress or state legislatures.
• Administrative law — involves the enforcement of laws via rules and regulation developed by the officers of specific agencies or boards. A state board of nursing is an example of such an agency or board. Individual state boards of nursing define the specific regulations that define and determine the scope of practice for that state.
• Common law — deals with the interpretation of the legislation in a specific situation. It is also known as case law. The decisions made by the judiciary system become the rule to be used when evaluating other similar situations. This type of law is typically used in situations involving malpractice.
Civil law is administered by individuals rather than the government. There are four types of civil law:
• contract, and
The type of civil law that commonly involves nursing and healthcare is tort law.
Torts are personal civil injuries or wrongs that reside outside of a contractual relationship. Where contracts look mostly “forward” to a relationship between parties, torts look “backward,” so to speak, to assess shortcomings in a relationship gone wrong.
In simple terms, a tort is any action (commission) or omission that results in harm to another individual. Torts result in a civil trial to assess compensation for the plaintiff, the individual who files the claim. Torts can be intentional or unintentional. An intentional tort is one that is a deliberate attempt to violate an individual’s legal rights, such as fraud, assault and battery. Unintentional torts are wrongdoings that result from an individual’s shortsightedness or sloppiness. Examples include negligence and malpractice.
The ANA defines nursing as protection, promotion and optimization of health and abilities, prevention of illness and injury, alleviation of suffering through diagnosis and treatment of human responses, and advocacy in the care of individuals, families, communities and populations. The practice of nursing requires rules and regulations to ensure patient safety and a competent level of behavior in the professional role of the nurse. Nurse practice acts, licensure and standards of care are the key elements in the regulation of nursing practice.
Three levels of nursing practice exist today:
• Advanced practice nurse (APN) — those nurses who have special and unique functions such as the nurse practitioners (NPs), clinical nurse specialists, nurse midwives and nurse anesthetists. These nurses are RNs who have a national certification in their specialty and who have a masters degree in nursing.
• Registered nurse (RN) — these nurses may be graduates from a diploma program, (very few of these left), a two-year associate of science degree in nursing (ADN), or a four-year bachelor of science in nursing (BSN) program.
• Licensed practical nurse (LPN) — completes a shorter and less intensive program of education which is usually one year in length.
The licensed RN is responsible for developing and managing patient care. This is accomplished through the use of the nursing process which includes patient assessment, planning of care, nursing diagnosis, implementation of care and the evaluation of care provided. Functions of the professional RN include the development and implementation of procedures and protocols and the setting of standards for practice. While the ANA delineates the functions of the BSN graduate from the ASN graduate, in state law the definitions of the two educational preparations vary depending on the state.
However, the basic responsibilities of the RN, regardless of educational preparation, include observing patient signs and symptoms, recording these observations, notifying the appropriate healthcare provider of changes in a patient’s health status, carrying out orders for treatments and appropriately delegating responsibilities for patient care.
The LPN is commonly referred to as “the bedside nurse” because the role has traditionally centered on the patient’s basic physical needs for hygiene and comfort.
Many of the state practice acts define the LPN scope of practice as the performance of duties that assist the professional nurse in a team relationship. Some states clearly define the duties of the LPN, whereas in other states the scope of practice is more general.
Because of the changes in the workplace, including cost containment initiatives, the role of the LPN has expanded over the years. For example, in many states LPNs are now allowed to “start IVs, administer IV medications, administer immunizing agents and do skin testing” if the appropriate requirements are met.
Many states are now undertaking measures to deal with unlicensed assistive personal (UAP) that will result in expansion of their duties in the delivery of healthcare.
An understanding of the nurse practice act’s general provisions is necessary for the nurse to stay within the legal limits of the act — not always an easy task.
With the emergence of more autonomous and expanded roles for nurses, many states have begun the process of revising or amending their practice acts to reflect the increased responsibilities associated with current nursing practice. It is important to remember that nurse practice acts are statutory laws, so any amendments must be accompanied by the legislative process, which can be very time-consuming. As a result of this, the process of drafting and enacting laws, amendments and revisions to the nurse practice act many times lags well behind the progress of changes in actual practice.
Scope of practice
Most nurse practice acts begin with a definition of important terms that include “the practice of registered nursing” and the “practice of licensed practical nursing”. The definitions serve to differentiate between RNs and LPNs according to their specific scopes of practice and their educational requirements. The earlier nurse practice acts contained statements prohibiting nurses from performing tasks that were considered to be within the scope of medical practice.
As the scope of nursing practice has expanded to include many of the medical procedures that nurses commonly perform, joint statements from interdisciplinary committees were issued recommending that nurses be permitted legally to perform the procedures in specified circumstances. Some of the statements specifically recommended that nurses be allowed to perform venipunctures, cardiopulmonary resuscitation and cardiac defibrillation. As time has gone on, joint statements and interpretative statements issued by state boards of nursing and nursing organizations specifically recommend permitting nurses to perform functions such as nursing assessments and nursing diagnosis. Many states have incorporated these statements into their nurse practice acts, thus giving nurses the legal right to practice in the various expanded roles.
It is important to realize that the nurse practice act is not a word for “work checklist” for how the nurse should do the job. Nurses must rely on their education and experience, and their knowledge of the hospital’s policies and procedures. A nurse may be expected to perform tasks that seem to be in the scope of practice for a particular level of nursing practice, when in fact it is a violation of the state’s practice act.
Defining the boundaries of nursing practice
In looking at the scope of nursing practice as defined by the nurse practice act, the practice acts can be characterized by being traditional, transitional or modern depending on how they define the boundaries of nursing practice.
• Traditional — in this type of practice act you will find only the traditional or conventional nursing activities, such as patient care, disease prevention and health maintenance. The nurses are not allowed to participate in expanded nursing activities such as diagnosis, prescription and treatment. There are only a few states that have this type of practice act.
• Transitional — have broader boundaries and may include a laundry list of permitted nursing functions. For example, the Massachusetts practice act allows the following: 1) responsibility for direct and indirect nursing care including providing “hands on” nursing care, 2) health maintenance, 3) teaching, 4) counseling and 5) planning and restoration for optimal functioning and comfort, or for a dignified death. The practice act also expands the nurse’s role by including a separate definition of nurse practitioners. The wording allows nurse practitioners to diagnosis and treat patients.
• Modern — states like New York have this type of practice act which allows registered nurses to diagnose and treat health problems and to provide traditional nursing care. The definition of registered nursing is so broad that it encompasses both the current nursing activities and much of what nurses in the future will likely do.
Most nurse practice acts do not specify a nurse’s day-to-day legal responsibilities with respect to specific procedures and functions. However, the board of nursing rules and regulations, depending on the state, may provide guidance. A classic case demonstrates this — Tuma v. Board of Nursing (1979). Here, the Idaho State Board of Nursing took disciplinary action against a nurse who discussed, at a patient’s request, the possibility of using laetrile as alternative therapy. The board suspended the nurse’s license on the grounds of unprofessional conduct. The Idaho Supreme Court revoked the suspension and ordered the board to reinstate the nurse’s license. Why? Because the Idaho Nurse Practice Act contained no provision stating that such a nurse-patient discussion constitutes a violation of the act.
It is important that each individual nurse be familiar with the legally permissible scope of practice as defined in the state’s nurse practice act and the board of nursing’s rules and regulations. Situations exist where the nurse practice acts and the healthcare facility policies do not always agree. Hospital licensing laws require each hospital to establish policies and procedures for its operation. The nursing service department develops detailed policies and procedures for the delivery of nursing care by the nursing staff. These policies and procedures usually specify the allowable scope of practice within the hospital. The scope may be narrower than that of the practice act, but it should never be broader.
It is important to remember that an employer cannot legally expand the scope of nursing practice to include tasks that are prohibited by the state’s practice act. A good example of this occurred in New York involving nurses who measured, weighed, compounded and mixed ingredients in preparation of parenteral hyperalimentation solutions and IV solutions (a long-time hospital practice and procedure). The nurses were censured and reprimanded by the New York State Board of Nursing even though their hospital allowed them to do this. They were placed on 18-month probation and charged with the unlicensed practice of pharmacy in violation of the State of New York Nurse Practice Act.
Nurses have the legal duty to carry out primary healthcare providers’ orders. However, as licensed professionals, they have an ethical and legal duty to use their own judgment in providing patient care. Many efforts have been made to deal with this issue and some nurse practice acts give guidance on how to obey orders and still act independently. Most nurse practice acts define the practice of professional nursing as “the performance of professional services by a person who holds a valid license” and “ who bears primary responsibility and accountability for nursing practices based on specialized knowledge, judgment and skill derived from the principles of biological, physical and behavioral sciences.” This type of wording can be interpreted to mean that a nurse practicing nursing is required to follow the primary healthcare provider’s orders unless these orders are clearly wrong or the individual is not qualified to give them. When a nurse feels that an order is wrong she or he has a legal responsibility to question that order. “But I followed the doctor’s orders” is not an acceptable legal defense.
Nurses have a legal obligation to practice within the limits of the state’s nurse practice act. Except in the case of a life-threatening emergency, nurses cannot exceed these limits. To do so means risking disciplinary action. To protect oneself, it is worth the effort to compare a facility’s policies with those of the practice act and the board of nursing rules and regulations.
State boards of nursing
The nurse practice act in every state creates a board of nursing, sometimes referred to as the state board of nurse examiners. The practice act authorizes this board to administer and enforce rules and regulations concerning the nursing profession and specifies the makeup of the board — the number of members as well as their educational and professional requirements. The board of nursing is bound by the provisions of the nurse practice act that created it. The practice act is the law; the board of nursing cannot grant exemptions to it or waive any of its provisions.
In recent years there has been some erosion in the concept of a free-standing nursing board. For example, a bill was introduced in the Pennsylvania legislature to eliminate the nursing board and consolidate all licensing boards under one bureau, but it was never passed. There have been other situations where efforts were undertaken to have the nurse practice act “undergo sunset” at which time a new practice act would have to be written and go through the process of becoming a law. This would open the door for unwanted revision and amendments and the possibility that nursing could lose much of the independence that the profession as gained.
Legal impact of licensure
Licensing laws define the scope of nursing practice and will be used as partial evidence to determine whether the nurse acted within the legal limits of the profession as defined in a particular state. In Barbar v. Reinking (1966) the licensing laws of the state were used to rule against the defendant nurse. This was a case in which a 2-year-old child was taken to the doctor’s office for a polio booster shot. The physician (who was also named in the suit) delegated this task to an LPN who worked in his office. While the nurse was administering the injection, the child moved suddenly and the needle broke off in his buttocks. Despite attempts to remove the needle surgically and with a magnet, the needle remained lodged in the child’s buttocks for nine months. During the trial the licensing law for LPNs became a crucial factor in the court’s decision. The court declared that the nurse had violated the nurse practice act by performing services beyond the legal limit of her practice. The nurse’s attorney had attempted to introduce as evidence the fact that LPNs in the local community commonly gave injections. The evidence was not allowed and instead the judge instructed the jury to consider the violation of the nurse practice act, along with other evidence in the case, including the physician’s liability under the respondeat superior doctrine, to determine if the nurse was negligent. At the time of the case LPNs were not allowed legally to give injections.
Standards of nursing care
Standards of care are the minimum criteria for a nurse’s proficiency on the job. They enable nurses and others to judge the quality of care that they and their nursing colleagues provide.
Some states may refer to nursing standards in their practice acts, however unless they are included in the practice act, they are not laws. They are guidelines for sound, safe nursing care.
Some look at the standards as “pie in the sky” ideals that have nothing to do with the “reality of nursing practice.” This is a dangerous misconception.
Nurses are expected to meet standards of practice for every nursing task performed. Minimum standards for any nurse in any setting require that she or he develop a care plan for the patient based on the nursing process, including assessment, nursing diagnosis, goals and interventions for implementing the care and evaluating the care provided. The standards also require that documentation be placed in the patient’s record of the nurse’s actions and the response of the patient as the care is provided and evaluated. In documenting care, the nurse is actually writing a record of how well the standards are being met. A court may interpret an absence of documentation as an absence of patient care provided. This often occurs in litigation.
The recognized standards of care are those that have been developed by the American Nurses Association and most recently revised in 2004. These are considered generic standards for the profession — standards that can be applied to all nurses in all settings. As healthcare has evolved into its various specialties, so have the nursing standards for the distinct specialty — all of which are considered when determining negligence in a malpractice case.
Other standards that affect nursing
Other organizations have contributed to the development of nursing standards, such as Medicare and Medicaid, and the Joint Commission. The Joint Commission is a private, non-governmental agency that is responsible for evaluating and accrediting more than 17,000 healthcare organizations in the U.S., and has also developed nursing standards to be used in hospital audit systems. In some states the Joint Commission standards have been incorporated into law, resulting in broadly applicable standards of patient care.
The courts once used local standards that reflected a community’s accepted, common nursing practices to judge the quality of nursing care. But this practice has eroded in recognition of national standards applied by accreditation agencies. Now, nurses are held to a national standard. Today, expert witnesses testify to the appropriate national standard of care. Facility policy and procedure manuals conform to the standards as published by the Joint Commission.
Legal significance of standards
Nursing standards are not laws. They do however have important legal significance. The allegation that a nurse has failed to meet the appropriate standards of care, and that the breach of these standards has caused harm to an individual, is the basic premise of every nursing malpractice lawsuit.
The court will measure the defendant’s action against the answer it receives to the following question: “What would a reasonable, prudent nurse, with the like training and experience, do under these circumstances?” The court may consider written standards when considering the standards involved in a nursing malpractice lawsuit. The court seeks information about national and state standards applicable to the defendant’s actions. The court may also seek applicable information about the policies and procedures of the defendant’s employer. Because of two trends — uniform nursing educational requirements and standardized medical treatment regimens — national standards have gained favor with the court. These trends have made the ANA standards more influential than local or other organization standards.
As the role of the nurse continues to expand it is important to know that advanced nurse practitioners who perform the same medical services as a physician will be held to the same standard as the physician.
In Hodges v. Effingham County Hospital (1987) a woman entered an emergency department and complained to the nurses of chest pains. No physician was present. After conferring with the nurses by telephone, the physician on call made the decision to send the patient home. The nurses had not told the physician that the patient had a history of heart disease and had recently taken a nitroglycerin tablet. The patient later died. The plaintiff alleged that the nurses in the ED demonstrated negligence because they failed to obtain an accurate medical history and to “fully report known and observable symptoms to the physician on call.” The physician was not sued. The plaintiff thought that the physician had treated the patient appropriately based on the information given to him. Although the nurses won the trial court decision, on appeal the higher court found the nurses liable. The higher court said that because the nursing action in question involved nurses’ judgment rather than the adequacy of services or facilities, the question was whether the nurses followed general standards of nursing care.
While this is just one example of how the standards of practice are being used by the courts in nursing malpractice lawsuits, it should give one “pause” to think about what each individual nurse is responsible and accountable for in the delivery of care.
As our healthcare system continues to grow and change, so do the laws that govern the practitioners who provide it, as well as newer standards that are intended to improve patient safety such as the Joint Commission’s “Patient Safety Standards.”
It is imperative that nurses in all settings know the legal definition of nursing practice in their state and the standards of nursing care for which they are being held accountable. •
Frances W. (Billie) Sills, RN, MSN, ARNP, is an assistant professor at ETSU College of Nursing in Tennessee; email@example.com.
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