Legal System, Legal Issues Management Presentation

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RAJKUMARI AMRIT KAUR COLLEGE OF NURSING,

LAJPAT NAGAR, New Delhi, 110024


MATERIAL
ON

LEGAL SYSTEM: TYPE OF LAW, TORTS AND


LIABILITIES, LEGAL ISSUES IN NURSING
NEGLIGENCE, MALPRACTICE, INVASION
OF PRIVACY, DEFAMATION OF
CHARACTER

SUBMITTED TO: SUBMITTED BY:


MRS. SARITA SHOKANDA SUNITA PUN
ASSISTANT PROFESSOR M.SC (N) 2ND YEAR
RAKCON RAKCON

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INTRODUCTION:

 It is important for nurses to know the basic legal concepts because nurses are accountable for their
professional judgments and actions.
 Knowledge of legal aspects in nursing is absolutely essential for each nurse to safeguard self and
clients from legal complications. Consumers are becoming increasingly aware of their legal rights
in the health care. It is essential; therefore a nurse should know her legal and professional
boundaries.

DEFINITION:

Laws are “rules of conduct, established and enforced by authority, which prohibit extremes in behavior
so that one can live without fear for oneself or one’s property”.

- By Sullivan and Decker, 2001

NURSING LAW is defined as that body of status, executive orders, regulations, rule and legal precedents
which have their objective the promotion and protection of individual and community by nursing service.

LEGAL RESPONSIBILITIES in nursing means to practice nursing within the guidelines laid down by
the law of center/state, statutory bodies and institutional policies

TYPES OF LAW:

1. Common law- Created by judicial decisions made in courts when individual cases are decided
2. Criminal law- Prevent harm to society and provides punishment for crime

3. PUBLIC LAW- determines your relationship to the federal government and the states.
4. Civil law- It regulate relationship among people. It includes laws relating to contract, ownership
of property and the practice of nursing, medicine, pharmacy and dentistry

5. ADMINISTRATIVE LAW-it consist of the roles and regulations established by the


administrative agencies that have been made by the executive branches of government

6. CONSTITUTIONAL LAW- is the type of public law that considers your rights and
responsibilities under the federal and state constitutions. Patients right to life, right to die,and right

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to self determination in refusing treatment, rights to life, liberty and religious freedom are all
founded in constitutional law.

7. CRIMINAL LAW- it deals with the major and minor crimes. The crime involves the deliberate
commission of the act forbidden, or omission of an act required by the law
It prevents harm for society and provide punishment for crime

8. BY LAW- these are regulations issued by the employer or organizations

9. CONTRACT LAW - It is the enforcement of agreements among private individuals. Employment


Contracts is an example of contract law under civil law

10. Comparative Law: The comparative lawyer works with international relations in trade and
commerce, travel, government business

11. Family law: The most common family law attorneys are the divorce lawyers, but other aspects of
family law are represented as well. Child support claims and those stipulations, custody

FUNCTIONS OF LAW IN NURSING:

 It provides a framework for which nursing actions in the care of clients are legal
 protect clients’ rights
 It helps to make boundaries of independent nursing action.
 It assists in maintaining a standard of nursing practice by making nurses accountable under the
law

IMPORTANCE OF LAW

Importance of Law to the Nurse:

 Nurses have more responsibility


 Increased numbers of Advanced Practice Nurses
 Law is there to assist in the decision-making process involved in nursing practice
 Law is there for the identification of the risk of liability
 Law is there for the protection of nursing practice

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LEGAL LIABILITIES IN NURSING/TORTS:

Liability is anything that is a hindrance, or puts individual at a disadvantages. In law a legal liability is a
situation in which a person is liable, and is therefore responsible to pay compensation for any damage
incurred; liability may be civil or criminal.

When the nurse fails to meet the legal expectations of care, the client can initiate action if harm or injury
incurred by the client. These are mostly as unintentional torts(negligence and malpractice) and intentional
( assault, battery, false imprisonment, intentional infliction of emotional distress and fraud.

Definition:

A tort is a legal wrong, committed against a person or property independent of a contract which renders
the person who commits it liable for damages in a civil action.

TYPES OF TORT:

Torts

Unintentional Quasi
Intentional tort
tort intentional tort

Invasion of Defamation of
Battery Negligence Fraud
Privacy character

Assault Malpractice Slander

False
Imprisonment or Libel
Illegal Detention

Criminal battery

Civil battery

1. Intentional torts: These are when others interfere in individual's privacy, mobility, property or
personal interests. These rights of individual's should be protected.
Intentional torts can be:-

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 Assault- it is an unjustifiable attempt to touch another person or the threat to do so in such
circumstances as to cause the other reasonably believe that it will be carried out

 Battery- is an assault that is carried out and includes every willful, angry and violent and
negligent touching of another persons body or clothes

 False imprisonment- it is a intentional act which prevents an individual from moving about
where she wants to be.

 Criminal battery
 Civil battery

2. Unintentional torts : These types of torts are accidents that cause injury to another person or property.

Negligence: It is conduct that falls below the standard of care that a reasonable person ordinarily
would use in a similar circumstances or it is described as lack of proper care and attention carelessness.
E.g.: 1) Medication errors
2) Burns, falls, failure to observe, use of defective equipment’s, loss of patient property, patient
mix up.

Malpractice It is a negligence by a professional person. Any unreasonable lack of skill in professional


duties or immoral conduct that results in injury or death of the client

e.g. Failure to obtain inform consent

ELEMENTS OF MALPRACTICE

FOUR elements must be met to prove guilty of malpractice

 DUTY- (relationship) nurse’s responsibility to provide care in an acceptable manner.


 BREACH OF DUTY- failed to provide care in acceptable manner
 INJURY (DAMAGES)- nurses act caused harm.
 PROXIMATE CAUSE-reasonable cause and effect can be shown between the omission or
commission and the harm

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3. Quasi intentional Torts:

DEFAMATION: Defamation is the communication of a statement that makes a claim, expressly stated
or implied to be accurate, that may give an individual, business, product, group, government, religion or
nation a negative or inferior image.

It can be also any disapproving statement made by one person about another, which is communicated or
published, whether true or false, depending on legal state.

TYPES OF DEFAMATION

1. SLANDER

Slander is oral defamation of a person by speaking unprivileged or false words by which his
reputation is damaged.

2. LIBEL

Libel is defamation by written words, cartoons or such representations that cause a person to be
avoided, ridiculed, or held in contempt or to tend to injure him in his work.

DEFENSES AGAINST DEFAMATION

 Good faith
 Public good
 Justification
 Fair comment
 Privilege
 Apology

 Fraud: it results from a deliberate deception intended to produce unlawful gains.

 Invasion of Privacy: it includes violating confidentiality intruding on private client or family


matters, and sharing client information with unauthorized persons .

LEGAL NEGLIGENCE OF NURSE:


 Burns
 Falls of elderly and children
 Objects left inside the patient’s body
 Failure to use equipment in a responsible manner
 Failure to assess and monitor and failure to communicate.
 Failure to document.
 Failure to act as a patient advocate

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LEGAL MALPRACTICE IN NURSING:
 Medication errors
 Failure to follow a physician‘s order
 Delaying patient care and/or failure to monitor a patient
 Incorrectly performing a procedure, or trying to perform a procedure without training
 Documentation error
 Failure to get informed patient consent

MEASURES TO OVERCOME MALPRATICE:

1. Know your state laws affecting nursing practice.


2. Follow your state’s Nurse practice act rules &regulations.
3. Develop & use your critical thinking abilities & skills.
4. Follow standard of care, give competent health care, and develop an empathetic interpersonal
relationship with the client
5. Follow careful and accurate documentation
6. Be up to date with current practices
7. Be sensitive to common sources of client’s injuries like fall

LEGAL SAFEGUARDS IN NURSING PRACTICE

1.REGISTRATION- licensing is mandatory procedure for practice of nursing. Registration aims at


protecting patients by providing qualified nurses. The nurse is responsible to obtain registration in the
respective State Nursing Council

2. LEGAL LIABILTY/ ACT OF NEGLIGENCE

CRIMINAL(IPC) CIVIL

Under section 304 Indian penal Tort in civil court (Negligence

Code (IPC) (e.g. wrong medication e.g. not giving railing bed to unconscious

Leading to death of patient) patient causing fall of patient

 License of a nurse can be suspended or cancelled for any act of negligence or malpractice,
following a specified procedure

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3. MEDICO-LEGAL CASE (M.L.C)-

A medico legal case is a patient who is admitted to the hospital with some unnatural pathology
and has to be taken care of in concurrence with the police and/or court.

Types of clients which are categorized as MLC in a hospital are:

• Road traffic accidents

• Injuries inflicted during brawls/fights, shooting, bomb blasts etc.

• Suicide

• Homicide

• Burns

• Poisoning

• Rape victim

• Assaults

Nurses Role in a Medico - Legal Case:

1. Obtain Complete history from patient or significant others)

2. Inform the police officer/constable on duty in the hospital and the CMO.

3. When it is made a MLC, then record it on the patient's case sheet with red ink at right hand top comer

4. Do not give any statement about patient's condition to police, magistrate or media. Only a doctor has to
give information

5. When a patient has to be discharged, inform the police officer/constable on duty in hospital and/or the
CMO. After clearance from them, then only he/she can be discharged

6. If a MLC patient absconds inform the CMO immediately and the treating doctor

7. No MLC patient can leave against medical advice.

8. Document the care given to patients timely. Accurately and duly sign the nurses notes

9. Records and all documents pertaining to patient should be handled with care. During the stay in the
hospital. They must be kept safely and should be handed over to the authorized person as designated by
the hospital authority

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10. In case of death of a MLC. The body is not to be handed over to the relatives. It needs to be
accurately labeled and sent to the mortuary CMO and/or police officer should be informed
simultaneously

11. Appropriate authority must be informed

4. CONSENT

• Consent is a written acceptance from the patient

• "Every adult his body of sound mind has a right to determine what shall be done with.

• Consent has to be valid, must be a free and informed consent.

 The patient must be able to understand the choices he or she is required make

 Consent must be free and voluntary

 The procedure for which consent is sought must have been explained to the patient. It may be
negligent to withhold important information

 Consent must not be procured by deceit

 < 12 years can't give consent even for general physical examination. It must come from
parent/guardian.
 12-18 years can give consent for general physical examination only
 18 - consent must come from patient himself/herself except in certain circumstances

Consent - should come from parent/guardian/ significant others in case of patients who are not in a
capacity to decide for themselves such as: patient with dementia / delirious patient / mentally
challenged/ deaf and mute/ patients with mental disorders/ unconscious/ gravely ill etc.

5. Correct Identity:

 A nurse/midwife is responsible to make sure that all babies born in hospital are correctly labelled
at birth and handed over to right parent.
 Unknown/unconscious patients must be labelled as soon as their identity is known
 • Patients who have to undergo surgery should be appropriately Identified and labeled.
 Site of operation to be correctly marked particularly where symmetrical sides or organs are there.
 Operation Theatre (O.T.): Scrub nurse has to see that all instruments/swabs are returned. She has
to say 'OKAY before closure by the surgeon.

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6. Left against Medical Advice (LAMA):

• Inform medical Officer Incharge. Signatures of both patients and witness to be taken as per
institutional policy.

7. Patient's Property:

• Inform patient on admission that hospital does not take responsibility of his responsibility.

• If patient is unconscious/or otherwise required, then a list of it must be made, counter checked by
two staff nurses and kept under safe custody

8. Dying Declaration:

• Doctor or nurse should not involve themselves in dying declaration, in case where police records
the dying declaration.

• Dying declaration is to be recorded by the magistrate.

• But if condition of patient becomes serious then Medical Officer can record it along with two
nurses as witnesses.

• Dying declaration can be recorded by nursing staff with two nurses as witnesses when Medical
Officer is not present. Then the declaration to be sent immediately under sealed cover to the
Magistrate.

9. Wills:

• For this doctor has to be present or he can record if requested

10. Examination of rape case:

• Female attendant/female nurse must be present during the examination.

11. Artificial Human Insemination:

• Written consent should be obtained from both donor and recipient

• Donor and recipient must have the same blood group.

• Donor's and recipient's identity should be kept confidential.

• All related documents should be kept confidential and safe.

12. Poison Case:

 Do not give either verbal or written opinion. Do not allow to take photos unless special
permission is granted by appropriate authority

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 Do not give any information to public or press
 Preserve all evidence of poisoning
 Collect and preserve all excreta, vomitus and aspirates, seal them immediately and send to
forensic laboratory at the earliest.

13. Consumer protection act (1986):

 Consumer Protection Act (CPA) was passed by the Parliament in 1986 to provide for
Consultation of the interest of consumers and focuses on consumer justice through the
establishment of consumer councils and other authorities for the settlement of consumer’s
disputes and matters connected therewith the slope of et is wide enough to conclude a vast variety
of services.

 Under this act consumer can complain in redressal forum. It enables the consumer/ patient to
make a complaint to a redressal forum in respect of defective services vided

Rights of a Consumer/ Patient are:

• Right of Safety

• Right to be informed.

• Right to Choose.

• Right to be heard.

• Right to seek redressal.

• Right of consumer education

 Nurses Role to prevent legal complications:

1. Review nursing practice periodically. Update knowledge and improve stall by attending short
term courses, In-service education and continuing education programmers.

2. Should have complete knowledge of all rules and regulation of hospital and know their job
descriptions (duties and responsibilities),

3. Follow nursing practice standards/protocols

4. Be a keen observer

5. Written instructions must be displayed in all nursing units for necessary guidance and
protection of the staff regarding issues related to patient care

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6. All hospitals must have rules and code of practice laid down to ensure the safety and well
being of patients and nurses.

7. Maintain records and reports of the unit property

8. Follow 6 R's - right patient. right drug, right dose, right time and right route with right
technique.

9. Check the treatment order and use professional judgment before implementing

10. Do not attempt anything beyond level of competence and scope of nursing practice. If there is
any doubt in mind, seek advice from professional colleagues,

11. Do not exceed the limits of nursing procedure laid down by statutory bodies.

OTHER LEGAL PROTECTION IN NURSING PRACTICE

 Civil rights act (CRA)-l964


In 1964, Congress passed Public Law 88-352 (78 Stat. 241). The Civil Rights Act of 1964
prohibits discrimination on the basis of race, colour, religion, sex or national origin.
Provisions of this civil rights act forbade discrimination on the basis of sex, as well as, race in
hiring, promoting, and firing.

 Occupational safety and health act (OSHA) 1970


To assure safe and healthful working conditions for working men and women; by authorizing
enforcement of the standards developed under the Act; by assisting and encouraging the States in
their efforts to assure safe and healthful working conditions; by providing for research,
information, education, and training in the field of occupational safety and health; and for other
purposes.
 Age discrimination in employment Act(ADEA)1992
The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people
who are age 40 or older. It does not protect workers under the age of 40, although some states
have laws that protect younger workers from age discrimination.
 Health insurance portability and accountability act

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that
required the creation of national standards to protect sensitive patient health information from
being disclosed without the patient’s consent or knowledge. The US Department of Health and
Human Services (HHS) issued the HIPAA Privacy Rule to implement the requirements of
HIPAA. The HIPAA Security Rule protects a subset of information covered by the Privacy Rule.

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Laws applicable to nursing practice:

1. The right to refuse to treat except in emergency situation


2. The right to sue for fees
3. The right to add title or description to name
4. Unregistered practitioners are not allowed to hold appointments in public or local hospitals
5. The Indian Penal Code states that poisonous drugs be kept in separate containers, properly labelled
and marked.
6. There is a duty of secrecy to the patients records, it must be treated as confidential unless the
practitioner is called upon to give evidence in court
7. Fundamental duties
a. To exercise a reasonable degree of skill and knowledge in treating patients
b. Once a relationship to a patient has been established. There is an obligation to attend to the patient
as long as necessary, unless the patient request for withdrawal or notice is given of intension to
withdraw.
c. A practitioner must give personal attention to his cases and answer calls with reasonable
promptness
d. Children must be protected from harming themselves
e. Special prevention must be taken in case of adult who are incapable of taking care of themselves
8. Dangerous diseases must be reported
9. Nurses are considered solemnly responsible for their own professional act irrespective of the
employing agency
A fine is the usual penalty imposed for disobeying the law stated above, although imprisonment also
is possible.

LEGAL ROLES AND RESPONSIBILITY OF THE NURSE:

 Ensure that client receives competent, safe, holistic care


 Do follow policies and procedures as established by your employing agency.
 Supervise/evaluate that which has been delegated
 Maintain clinical competency
 Do perform procedures that you have been thought and that are within the standard scope of your
practice
 Do document all unusual incidences
 Do report all unusual incidences
 Do protect the patient from injury
 Do not work as a nurse in state in which you are not licensed
 Do not advice that is contrary to the doctor‘s order or nursing care plan
 Responsibilities of appointing and assigning: Ns administrator must be aware of the legal restrictions
affecting personnel appointment and assignment; she should screen the staffs appropriately before
appointing them.

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 Responsibility in quality control: Nurse Administrator must ensure and report quality of nursing
services.
 Responsibility for equipment: To protect the patient and employee from injury, the nurse manager
must ensure that all patient care equipments are fully functional and defective equipments are
promptly repaired or replaced
 Responsibility for death and dying
 Responsibility for observation and reporting

LIABILITY FOR THE WORK OF NURSING STUDENTS

 Nursing students do not perform professional nursing duties.


 Nursing students should be under supervision of their clinical instructors.
 In order that the errors committed by nursing students will be avoided or minimized, the following
measures should be taken:
 Nursing students should always be under supervision of their clinical instructors.
 They should be given assignments that are their level of training experience and competency.
 They should be advised to seek guidance if they are performing a procedure for the first time.
 They should be oriented to the policies where they are assigned.
 Their performance should be assessed frequently to determine their strength and weaknesses.

EXAMPLES LIABILITIES OF NURSING:

 Liability for injury to patient


 Liability for sponge or safety pin left in the patient’s abdomen
 Liability for defective equipment
 Liability for death for patient who jump from window of his room
 Liability for negligence of surgical nurse
 Liability for rapture of surgical wound.
 Liability for burns for suffered by patient
 Liability for burns from hot water bags
 Liability for negligence of nurse employees
 Liability for death of infant resulting from injection of digitalis
 Liability of nurse performing administrative work

CONCLUSION:

A number of legal issues are related to nursing practice, including licensing, nurse practice acts, and
standards of care. However, in these litigious times, the issue that most concerns those considering a
career in nursing are negligence and malpractice.

Every nurse should act as per the legal guidelines for nursing practice while caring for patients.
Nurses have a responsibility of seeing that no harm comes to their patients and also to themselves

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BIBLIOGRAPHY:

 Vati J.Principles & practice of Nursing management & Administration For Bsc & Msc
Nursing.1st ed.jaypee brothers publishers: Newdehi;2013.
 Clement I. Management of nursing services and education. elsevier publishers:New Delhi;2014
 https://www.slideshare.net/ajeshktk/laws-torts
 https://www.slideshare.net/lindadevi1/legal-issues-in-nursing-ppt-1188990
 https://www.slideshare.net/hanna_priyanka/law-and-nursing-practice
 https://www.slideshare.net/Joevet/legal-liabilities-in-nursing
 https://uc.xyz/2aRDYX?pub=link [Medico - Legal Aspects | Nursing | Negligence]
 https://www.slideshare.net/JaysGeorge/ethical-and-legal-issues-in-nursing
 Das.D.M.H. Medico Legal Aspects in Nursing, Ram Lal Pury of Atma Ram &Sons publishers:
New Delhi
 Ford D.R Nurses Legal Handbook
 Mehta H.S Medical Law and Ethics in India: The Bombay Samachar Private LTD

RESEARCH ARTICLE

Nursing and Midwifery Malpractice in Turkey Based on the Higher Health Council Records
Ümit N Gündoğmuş, Erdem Özkara, Samiye Mete

First Published September 1, 2004 ,https://doi.org/10.1191/096973304ne727oa

Abstract
Background:

Medical malpractice has attracted the attention of people and the media all over the world. In Turkey,
malpractice cases are tried according to both criminal and civil law. Nurses and midwives in Turkey
fulfill important duties in the distribution of health services.

Objective:

The aim of this study was to reveal the legal procedures followed in malpractice allegations and
malpractice lawsuits in which nurses and midwives were named as defendants.

Method:

We reviewed 59 nursing and midwifery lawsuits reported to the Higher Health Council between 1993
and 1998.
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Result:

Health professionals were held liable in 59% of the lawsuits. Midwives had the highest percentage of
malpractice liability (52%), followed by physicians (29%) and nurses (19%).

Conclusion:

To reduce potential liability, nurse education should be improved, a nursing malpractice law should be
enacted, and instructions for nursing procedures should be formulated.

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