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  • Elopement From A Long Term Care Facility

    April 24, 2012 • General • 2312

    by Pat Iyer, RN, www.patiyer.com/hb,  To the uninformed, elopement is not a case of Mom being spirited off by some geriatric Romeo to “tie the knot” with white gardenias and wedding cake. It is a serious and potentially deadly situation. The definition of elopement used by the American Health Care (AHRQ) is “when a resident’s location is unknown” (1). Here are some examples:

    A nursing home sounded the Code Grey alarm for “missing resident” at about 4 PM when a resident could not be found for dinner. No one had remembered seeing the resident since approximately 2 PM. Protocol was followed but the resident could not be found. In the midst of the search, the facility elevator locked between floors and they waited for an elevator mechanic. By 7 PM, staff were hearing a banging sound. Someone said, “It’s coming from the elevator”. The elevator mechanic brought the car to the first floor, opened the door and found the missing resident. She had wandered in on her way to 2 PM bingo, then the elevator locked. She sat down and fell asleep. When she awoke, she was hungry and knocked on the door to get out. She suffered no permanent or serious injury.

    One cold morning in February, the security officer at a center city nursing home opened the door for a woman who worked at a nearby newspaper. She had with her one of the male residents of the facility who was wearing the woman’s coat over a hospital-type gown, a diaper, no shoes or socks and a facility bracelet with his name on it. She stated that when she arrived at work that morning, she found him huddled in the corner of the building entryway. When the security guard had let the cook in earlier, he had used the rest room right afterward and left the lobby area unattended. Apparently the lock on the front door had not engaged as the cook entered, and when the resident got off the elevator, he was able to go right out the door to the street. He had wandered across the street and around the corner to the sheltered doorway of the newspaper office where he was found. Although he waited on the doorstep possibly for an hour, he suffered no permanent or serious injury.

    Several years ago in January, a woman with dementia and several other health issues was taken to a nursing home by her children because they were unable to care for her any more at home. The new resident was very unhappy there, refused to eat, and frequently yelled that she wanted to go home. Several days after she was admitted, she went missing at bedtime and could not be found. The facility initiated its elopement protocol and exhausted all recovery efforts unsuccessfully. At 10 AM the next morning, the woman’s body was found in the dumpster of a shopping center near the nursing home. She had left the facility with the visitors, wandered to a nearby mall and climbed up boxes to get into the dumpster. She died from exposure to the elements and dehydration.

    The elopement of a resident from a long term care facility is one of the ”never events” that nursing homes dread. The term, first coined by Dr. Ken Kizer in 2001, was used when discussing serious medical errors which are clearly identifiable, measurable and preventable, including fall with injury, pressure ulcer, dehydration, constipation and elopement. No facility wants one of its residents to successfully wander or elope from its safe confines, yet all should be prepared with an emergency protocol to initiate should it occur and a prevention policy to reduce the number of occurrences.

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  • Forensic Evidence Collected in the Emergency Department

    April 24, 2012 • General • 1640

    by Pat Bemis, RN , www.forensicsciencefornurses.com.  All the victims clothing and jewelry and all pre-hospital linens and disposable supplied used on the victim are collected. Nothing is discarded or returned to the family. All items that accompany the patient into the ED are considered forensic evidence. Only law enforcement can determine evidentiary value and return items to the patient and/or family. All items are placed in paper bags and closed with evidence tape. Documentation of how the patient’s belongings were distributed is written in the patient’s record. A nurse stays with the evidence until it is collected by a law enforcement officer

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  • Patient Falls Lawsuits: Catch a Falling Star Multimedia Course

    March 27, 2012 • General • 2052

    Patient Falls Lawsuits: Catch a Falling Star Multimedia Course by Pat Iyer, RN  www.patiyer.com/hb

    April 17, 2012 7:30 – 9:30 PM (Session 1 and 2) and

    April 24, 2012 7:30 PM – 9:30 PM (Session 3 and 4)

     

    The patient fractured her hip but you are not sure if a falls case has merit. Get pointers on how to analyze sometimes voluminous medical records of falls cases. Increased medical and litigation costs and pain and suffering arise from falls with injury. Injurious falls that occur in acute and long term care and outpatient settings are a common reason for nursing malpractice suits. Learn about common and serious injuries that result from falls. The expert’s performance at deposition or trial can make or break the case for the client. Learn how to prepare a witness for the often stressful testifying role to be able to confidently testify.

     

    Learn how to analyze patient falls cases from two nursing expert witnesses: Barbara J. Levin BSN RN ONC CMSRN LNCC and Patricia Iyer MSN RN LNCC. Barbara and Pat have a combined total of over 44 years of experience reviewing patient falls cases.

     

    Barbara Levin BSN RN ONC CMSRN LNCC is a Clinical Scholar at Massachusetts General Hospital where she cares for orthopaedic and medical surgical patients. She offers attendees an inside view from both the clinical and legal nursing perspective. She has reviewed many cases as a liability nursing expert witness. Her most recent book is Nursing Malpractice, Fourth Edition, which was published in 2011. She coedited this book with Patricia Iyer, Kathleen Ashton and Victoria Powell. Barbara coauthored a chapter on patient falls in this text. She presents programs to clinical nurses under the sponsorship of the Massachusetts Board of Nursing, National Association of Orthopedic Nurses, and several other organizations. She was recently elected to the board of directors of the National Association of Orthopedic Nurses. Barbara Levin, Patricia Iyer and Samuel Davis, Esq. will be presenting a program in New Orleans in May 2012 to the annual conference of the National Association of Orthopedic Nurses.

     

    Patricia Iyer MSN RN LNCC has reviewed dozens of patient falls cases as a liability and fact witness. She is best known as the chief editor of Legal Nurse Consulting Principles and Practices, Second Edition. She is Past President of the American Association of Legal Nurse Consultants (AALNC). Her most recent book is Nursing Malpractice, Fourth Edition, which was published in 2011. She coedited this book with Barbara Levin, Kathleen Ashton and Victoria Powell. She has been self-employed as the president of Med League, an independent legal nurse consulting firm, since 1987. She has a national client base and has been board-certified as an LNCC since 2000.

     

    Purchase Patient Falls Lawsuits: Catch a Falling Star Multimedia Course at Early Bird Prices. Prices go up at 12:01 AM on 4/10/12. Get details at www.patiyer.com/hb

     

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  • The Legal Nurse Consulting Handbook

    March 15, 2012 • General • 1332

    Turn your nursing knowledge into a sucessful consulting practice.  Get “The Legal Nurse Consulting Handbook” by Lorie Brown RN, MN, JD now at www.tinyurl.com/LNCEbook .  It’s the latest instructional offering from one of the premier names in Legal Nurse Consulting today !

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  • Bed Entrapment: Killed By the Siderails

    February 14, 2012 • General • 4327

    By Pat Iyer RN, http://www.patiyer.com/hb

     

    Pressure relief mattresses
    Pressure relief mattresses treat the risk of pressure sores, but also create another risk: death. Selecting the correct mattress for pressure relief should take into account these factors in MATTRESS:

    • Microclimate and moisture
    • Activity levels
    • Tissue tolerance
    • Total body weight
    • Repositioning needs
    • Edema
    • Shear and friction
    • Symptom management

    Bed entrapment
    When considering support surfaces in bed, healthcare providers must consider the risk of entrapment. Health Canada and the FDA have released documents defining the seven zones of entrapment and guidance measurements:

    1. Within the bed rail
    2. Under the rail
    3. Between the rail and the mattress
    4. Under the rail at rail ends
    5. Between split bed rails
    6. Between end of rail and side edge of head or foot board
    7. Between head or foot board and mattress end.

    Prescription of a therapeutic support surface, whether an overlay or mattress replacement, may impact several of these zones (e.g. zone 2, 3, and 7). A standard measuring device is available to check to see if the new support surface increases the risk of entrapment by allowing spaces greater than those outlined in the guideline. The risk of entrapment may also be greater with support surfaces with large air bladders (these are usually found on low air loss, alternating, or rotating surfaces). These surfaces tend to collapse the further the individual moves to the edge of the surface, even when a perimeter border is present within the mattress.

    Entrapment risk: Liability

    When an entrapment risk has been identified, bed rails should only be used with extreme caution, and be based on the needs of the individual patient. Some patients find the half bed rail at the head section helpful for repositioning. Another approach for people at high risk is to use an adjustable bed with a very low deck height and a floor mat. This approach allows the bed to be raised during care, to a comfortable height for care providers, but allows the bed to be low enough to help prevent injury if the person falls out of bed. Foam wedges and other devices are also available to help reduce the risk of entrapment.

     

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  • Risks of Fatigued Nurses

    February 13, 2012 • General • 1416

    By Pat Iyer RN, http://www.patiyer.com/hb

    Hospitals in which nurses work long hours have higher rates of patient’s deaths from pneumonia and acute myocardial infarction, according to a study. Researchers at the University of Maryland School of Nursing and Johns Hopkins School of Medicine conducted a study of nurses’ work schedules, staffing and patient outcomes as part of ongoing research funded by the National Council of State Boards of Nursing.

    In the study — “Nurses’ Work Schedule Characteristics, Nurse Staffing, and Patient Mortality,” which appears in the January/February issue of Nursing Research — the authors examined patient outcomes and staffing information from 71 acute care hospitals in Illinois and North Carolina. They compared the data with survey responses of 633 randomly selected nurses who worked at the hospitals.

    Long work hours and lack of time off were the components most frequently linked to patient mortality. Co-author Alison Trinkoff, RN, ScD, MPH, FAAN, professor at the Maryland School of Nursing, said nurses need time off to rest and recuperate for their own health and to ensure a high level of performance on the job.

    Comments: Fatigued, distracted, and exhausted nurses are working 12 hour shifts or longer. Some are working these hours by choice because it provides more days off. Some have no choice since 12 hour shifts are the only possible staffing pattern. And patients are paying the price. What may be good for an organization, in terms of staffing, may not be good for nurses. Ultimately patient safety depends on clear thinking, critically thinking, and clear communicating nurses. Fatigue from being on one’s feet for 12 hours interferes with these abilities. One study from 2004 showed that nurses who work shifts of 12.5 hours or longer are three times more likely to make an error in patient care. Here it is 6 years later and we still have 12 hour shifts.

    In December 2011, The Joint Commission published a Sentinel Event Alert about healthcare worker fatigue and patient safety. This is the impact of fatigue:

    • lapses in attention and inability to stay focused
    • impaired communication
    • memory lapses
    • irritability
    • confusion
    • compromised problem solving
    • slowed or faulty information processing and judgment
    • diminished reaction time
    • reduced motivation
    • indifference and loss of empathy

    It is time we look at the evidence and rethink long, intense, and exhausting shifts. When a poor outcome occurs, medical malpractice attorneys should be asking for the staff records of the nursing unit, and delve into how many shift sin a row and how many hours in a row the nurses were working. With the publication of the Sentinel Event Alert, pressure increases on hospitals to address the fatigue-related risks.

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  • One Way to Avert a Sky-High Malpractice Award

    December 28, 2011 • General • 1484

    No one can predict with certainty what a jury will do during a malpractice trial. To guard against a runaway verdict that could expose a physician and his or her insurer to a multimillion-dollar award, defense attorneys may seek a compromise called a high-low agreement…. Great article, as seen in our last issue, wherein author Mark Crane takes a look from the “other side” of the court room.

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  • Honoring Patients’ Right to Freedom of Choice of Provider

    December 28, 2011 • General • 1507

    Anecdotally, hospitals are not honoring patients’ right to freedom of choice of post-acute providers as they are required to do by federal law, especially according to agencies that are not owned by or affiliated with hospitals….Eye-opening look into patient rights, as seen by Elizabeth Hogue, Esq. in our last issue.

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  • Obama issues memo on preemption regulations

    July 11, 2009 • Uncategorized • 1433

    © 2009 The Medical-Legal News

    WASHINGTON, May 20 (UPI) — Federal departments and agencies announcing regulations that preempt state laws will not do so without a sufficient legal basis, U.S. President Barack Obama has said.
    Obama has thus reversed many of the policies of former President Bush in the area of preemption.
    In a memorandum distributed to the heads of executive departments and agencies in mid-May, Obama said, “(The) general policy of my administration (is) that preemption of state law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for preemption.”
    Obama said federal officials need to remember that state residents have distinctive circumstances and values and that it is appropriate, in many instances, for states to apply rules and principles that reflect the circumstances and values.
    During recent years, however, executive departments and agencies have sometimes announced that their regulations preempt state law, including state common law, without explicit permission for preemption by Congress or an otherwise sufficient basis under applicable legal principles.
    The Supreme Court’s recent Wyeth v. Levine case was of a similar anti-preemption tenor to the Obama policy reversal.
    Among other things, Obama said heads of departments and agencies should not include in regulatory preambles any statement that the department or agency intends to preempt state law or regulations, except where preemption provisions are included in the codified laws.
    According to The Boston Globe, during the Bush administration, more than 50 federal regulations were proposed or adopted that included language to limit state lawsuits.
    The Globe also reported that Les Weisbrod, president of the American Association for Justice, a national trial lawyers group, said that the Obama administration has “overturned actions taken by Bush administration bureaucrats who were influenced by powerful, well-connected corporations.”
    The paper also noted that consumer groups were happy with the recent preemption reversals.

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  • Ever-changing nurse practice acts, and scope

    July 1, 2009 • Uncategorized • 4621

    © 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.

    The law
    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:
    • labor,
    • patent,
    • contract, and
    • tort.
    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.

    Nursing practice
    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; dewars3@aol.com.

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