Legal Aspects - Austin Community College - Start Here Get There法律方面的問題-奧斯汀社區(qū)學(xué)院-從這里到那里課件

1、Legal Aspects Application to OB/PediatricsTort LawsTort 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 torts

2、 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 act

3、 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.Batte

4、ry: 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 statement

5、s.Invasion of privacy: Interference with persons right to privacy.Infliction of emotional distress: Intentionally or recklessly causing emotional or mental suffering to others.Negligence & MalpracticeNegligence and malpractice are used synonymously in litigation. The difference is that “malpractice”

6、 is a specific type of negligence. Malpractice implies:a violation of professional duty ora failure to meet the standard of care of other prudent professionals in similar circumstances orfailure to use the skills and knowledge of other professionals in similar circumstances. Negligence Element 1: Du

7、tyThe existence of a duty of care exists because of the contractual relationship between 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 comp

8、etent RN engaged in the same specialty, and Possess the skills required of a reasonably 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

9、the exercise of that care required of a reasonably competent RN in the same medical or 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 DutyBreach of duty is the failure of the nurse to follow the stand

10、ards of care found in the hospitals unit policies and procedures, authoritative nursing 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 b

11、reach of the standard of care. It involves showing what a reasonably competent health care professional would have done in a similar situation. 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

12、 occurred would the results have been the same? Determination of proximate cause is a factual one. This 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

13、their own conclusions from the evidence without the aid of such expert testimony. Successful Malpractice SuitThe 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 expens

14、es and lost wagesCompensatory damages that what makes a person whole. Loss of work, grief, mental anguish, loss of wage earning capacity, loss of consortium (spouse, parent, child)Punitive/Exemplary damages - to punish, gross, negligence, and reckless disregard for safetyRespondeat Superior:The lega

15、l concept of vicarious liability and the doctrine of Respondeat Superior occur when the servant (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 liabl

16、e for the negligence of a nurse employed by the hospital, even if the hospital itself has not acted 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

17、 the risk over the entire business. Medical Liability and Insurance Improvement ActThe state of 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 awa

18、rds and a 2-year statute of limitations. Noneconomic damages were limited to $500,000, plus cost-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 companions

19、hip, etc.)The Texas Supreme Court in a 1988 ruling made the cap unconstitutional. The size of 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 ap

20、proved the amendment by a 51% to 49% margin. Soon after, liability insurers reduced their premiums by as much as 33%. Statute of LimitationsStatute 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. Exception

21、s to this are: Fraud: The patient was deliberately misled. Evidence was covered up. The statue 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

22、 reached. At that time they are subject to same statute of limitations. Consequently, medical records of obstetric patients should not be destroyed until the statute has run out for the child. Good Samaritan Act Nurses have immunity for damage caused when providing emergency care if:Performed during

23、 an emergency unless actions are willful/wanton negligent (therefore only covers ordinary negligence); andPerformed without charge/remuneration or with expectation of remuneration.Does not apply to persons who regularly administer emergency care in a hospital emergency room or to admitting physician

24、 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 legally protected when using your nursing skills in an

25、emergency. Texas Good Samaritan Act (Article 6701d, Vernons Civil Statutes ; Chapter 74, Civil Practice and Remedies Code Section 74.001) Rights of OB/Pedi PatientsConfidentialityMinors are considered emancipated for the purposes of consenting to medical treatment if he or she is married, has obtain

26、ed 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 requirement to report certain kinds of sexually transmitted diseases

27、.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 transmitted diseases without parental consent. Any minor, regar

28、dless of age, can receive confidential care and treatment related to family planning at a federally funded family planning clinic without parental consent./std/stats07/trends.htm/from_home/publications/ethics/co390.pdfRights of OB/Pedi PatientsInformed ConsentWithout informed consent assault and bat

29、tery charges can resultDissent in ages 13-17 can be legally bindingEmergency treatment can be given to children without the parents consentElements of informed consent:CompetenceFull disclosure: purpose, risks, benefits, other treatment options.Understanding of informationVoluntary consentRights of

30、OB/Pedi PatientsRight to Live or DieThe right to die is related to a persons wish that caregivers allow death. For example, by not providing life support or vital medication. Living Wills and Do Not Resuscitate orders are legal instruments that make a patients treatment decisions known ahead of time

31、. 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 Power of Attorney (or MDPOA) designates an agent to make decisions in case of incapacity. It is a most powerful instrument that does not r

32、equire 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 and gives it to a person selected and trusted by the individual.Pedi: “Wrongful Birth” suits based on failure to detect severe abnorma

33、lities and “Wrongful Life” suits based on resuscitation of micro-premies. Rights of OB/Pedi PatientsPediatric Patients Bill of RightsTo ensure that all aspects of childrens healthy care are family-centered, psychosocially sound, and developmentally appropriate. Health care systems and practices are

34、most effective when they are planned, coordinated, delivered, and evaluated through meaningful collaboration between families and professionals of all disciplines. The Pediatric Bill of Rights, reproduced here from the second edition, copyrighted in 1996. In this facility you and your family have th

35、e right to: Respect and personal dignity Care that supports you and your family Information you can understand Quality health care Emotional support Care that respects your need to grow, play and learn Make choices and decisions/support/inhospital/PediatricBillRights.pdfEmergency Medical Treatment &

36、 Labor Act (EMTALA)In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. It imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screeni

37、ng examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active 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 stab

38、ilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.Lungsford vs. 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.N

39、urses have a legal duty to care for patient and evaluate statusNurses are increasingly being named as individual defendants and are absolutely being held responsible for their actions!Maintaining ExpertiseNurse Practice ActLegality:Is the activity or task within the scope of the RN and NOT prohibite

40、d by another law or rule?Competency:Can the nurse perform the activity or task and 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 a

41、nd prevailing standards of safe nursing care and prepare to accept accountability for his/her nursing actions.http:/www.bne.state.tx.us/nursinglaw/npa.htmlhttp:/www.bne.state.tx.us/nursinglaw/pdfs/npa2007.pdfThe Nurse Practice Act A “must-read” document for every nurse. It also covers topics such as

42、: A nurse shall report to the board if the nurse has reasonable cause to suspect 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: .Abortion Stats in Te

43、xasThe Centers for Disease Control (CDC) reports that 81,883 abortions took place in Texas during 2006.Out of the 47 states that reported to the CDC, Texass 2006 abortion total places it at #3 on the list. The Centers for Disease Control (CDC) reports that the 2006 abortion rate for Texas was 16.3.

44、The abortion rate is the number of abortions per 1,000 women aged 15-44 years.Abortions in Texas by gestational age:8 weeks9-10 weeks11-12 weeks13-15 weeks16-20 weeks21 weeksUnknown70.9%13.8%7%6.5%1.2%0.7%0%Legal Aspects: Early DischargeSooner than 48 hrs after vaginal deliveryMinimal recovery after

45、 surgeryAre new mothers able to care for themselves and their infants?ExhaustionComplications (maternal & neonatal)Family supportPrimary caregiverSolutions:Teach patients during pregnancy instead of at dischargeTeach parents about post operative care before the childs surgery.Home visits and phone c

46、alls after early dischargeReturn visits for nursing assessment Legal Aspects: postdate pregnancyIncreased risk with postdate pregnancy = increased liability for obstetricianWhat if the OB wants to induce and the patient refuses?WILKES-BARRE - A judge late Wednesday afternoon gave a local hospital pe

47、rmission to force a woman to deliver a baby via Caesarean section against her will.Doctors warned the expectant mother that not having a C-section could kill her and/or her child. But against doctors orders, Amber Marlowe left the hospital. Hours later, Wilkes-Barre General Hospital received legal p

48、ermission to become guardian of the fetus and perform the C-section if Marlowe returned to the hospital.Marlowe never returned. She gave birth vaginally Thursday morning at Moses Taylor Hospital in Scranton to a baby girl, her and her husbands seventh child. Court papers said it was her seventh preg

49、nancy in seven or eight years. The Marlowes said the mother and infant are healthy.Attorneys for General Hospital sought the highly unusual action through a lawsuit because its doctors said Marlowe, who went to the hospital Tuesday night, adamantly refused to deliver the fetus by C-section because o

50、f religious beliefs.Her refusal came after warnings by doctors that a vaginal delivery could result in death for the fetus because it was expected to weigh 13 pounds. They also were concerned with complications Marlowe had in other pregnancies.The hospital was acting to preserve and protect the righ

51、ts of (the fetus) regarding its health and survival, the hospitals attorney, Mary G. Cummings, wrote in court papers.Luzerne County Court of Common Pleas Judge Michael Conahan late Wednesday afternoon approved the request.Nursing LiabilityRecurring Causes: Errors in administration of treatments and

52、medicationsFailure to adequately supervise patients patient fallsForeign objects left in placeBurns to patientsFailure to observe and report changes in a patients conditionMistaken identity of patientUse of defective equipmentLack of adherence to aseptic technique preventable infectionsImproper orde

53、rs duty to deferIncomplete patient history - not noting patient allergies. Charting tipsCheck that you have the correct chart before you begin writing.Make sure your documentation reflects the nursing process and your professional capabilities.Write legibly, initial and sign where indicatedChart the

54、 time you gave a medication, the administration route, and the patients response.Chart precautions or preventive measures used, such as bed rails.Record each phone call to a physician, including the exact time, message, and response.Chart patient care at the time you provide it.If you remember an im

55、portant point after youve completed your documentation, chart the information with a notation that its a late entry. Include the date and time of the late entry.Document often enough to tell the whole story.Attorney Charting Tips: Facts OnlyDo not chart subjective opinions, just facts- document only

56、 what you observe with all your senses. Be specific: avoid being general or vague. Example: A pediatric patient pulled out the IV but the action was not witnessed. Chart: “Found pt. with arm board at side and bed linens covered with blood. IV line and IV catheter intact but hanging free on IV pole.

57、No active bleeding from IV site noted” Subjective opinions leave the nurse open to credibility questions. A plaintiff attorneys best case scenario is when a nurse charts with the mindset of criticizing preceding shifts or making disparaging or hurtful remarks regarding the institution and its polici

58、es. This nurse may be construed as a disgruntled employee and a witness who lacks credibility. Attorney Charting Tips: Bias?Eliminate bias. Dont use language that suggests a negative attitude toward the patient, such as obstinate, drunk, obnoxious, bizarre, or abusive. The same goes for what you say

59、 out loud and then document. Disparaging remarks, accusations, arguments, or name-calling could lead to a defamation of character or libel suit. In court, the plaintiffs lawyer might say, This nurse called my client rude, difficult, and uncooperative. Its right here in her own handwriting! No wonder

60、 she didnt take good care of him. Remember, the patient has a legal right to see his chart. If he spots a derogatory reference, hell be angry and more likely to sue. If a patient is difficult or uncooperative, document the behavior objectively and let the jurors draw their own conclusions. Attorney