Frequently Asked Questions
Chapter 8: Legal Accountability and Responsibilities

What is the difference between the two types of law?

The two types of law are public law and civil law. Public law deals with an individual’s relationship to the state, including constitutional, administrative, and criminal law. Civil law deals with crimes against a person or persons in such legal matters as contracts, torts, and protective/reporting law.

What are the differences between constitutional law, administrative law, and criminal law?

A constitution is a set of basic laws defining and limiting powers of a government. Legislative bodies enact statutory laws, such as state nurse practice acts. Administrative law includes rules and regulations developed by governmental administrative agencies, such as state boards of nursing. Criminal law deals with acts or offenses against the welfare or safety of the public.

What are the three elements of a legal contract?

A legal contract includes (1) a promise between two or more individuals outlining what each person must do or not do, (2) mutual understanding of the terms and obligations imposed upon each individual, and (3) compensation for the lawful actions performed.

What are “protective/reporting laws”?

Protective/reporting laws includes laws intended to protect the public or to outline cases in which professionals should report abuse of vulnerable people. Examples include age of consent statutes, privileged communication statutes, living will legislation, Good Samaritan Acts, involuntary hospitalization statutes, abortion statutes, and requirements for health professionals to report child and elder abuse.

What is the difference between unintentional and intentional tort liability?

An unintentional tort liability is a civil wrong committed on a person or property stemming from a direct invasion of some legal right of the person, the infraction of some public duty, or the violation of some private obligation by which damages accrue to the person through negligence or malpractice. An intentional tort liability is a civil wrong committed on a person or property stemming from a direct invasion of some legal right of the person, the infraction of some public duty, or the violation of some private obligation by which damages accrue to the person through assault and battery, false imprisonment, invasion of privacy, defamation, or fraud.

What are the differences between liability, malpractice, and negligence?

Liability is an obligation or responsibility one has incurred or might incur through any act or failure to act. Nurses are liable for the quality of the care they provide. Expert witnesses are used to describe establish normal standards of care. Malpractice includes a professional person’s wrongful conduct, improper discharge of professional duties, or failure to meet the standards of acceptable care, resulting in harm to another person. Negligence (breach of duty) is the failure of an individual to provide care that a reasonable person would ordinarily use in a similar circumstance. Negligence resulting in injury is malpractice.

What elements are necessary for liability to occur?

The four elements necessary for liability to occur are (1) a duty to act (an obligation created either by law or contract or by any voluntary action), (2) a breach of duty (failure to act in accord with the current standard of care), (3) injury (physical, financial, or emotional harm), and (4) causation (a cause-and-effect relationship).

What is informed consent and why is it important to the nurse?

Informed consent means that the client understands the reason for a proposed intervention, understands its benefits and risks, and agrees to the treatment by signing a consent form. Nurses assure that clients understand the intervention and are capable of providing informed consent.

What are examples of behaviors for which nurses are legally responsible?

Due to the intimate nature of the relationship between nurses and clients, nurses are legally responsible in many ways. Some clients may interpret a nurse’s touching as assault (touching in an offensive, insulting, or physically intimidating manner) or battery (touching of another person without the person’s consent). Nurses may be accused of false imprisonment when clients wrongfully believe they cannot leave a place. The use of physical restraints might be construed as battery or false imprisonment. Nurses may not reveal confidential information, go through a client’s belongings, or photograph a client without permission. Nurses can be charged with defamation if they communicate information (libel if in writing and slander if verbal) to a third party that causes damage to someone else’s reputation. Nurses can be accused of fraud when they deliberately practice deception to produce unlawful gain. Nurses are also responsible for proper use of controlled substances, such as narcotics, depressants, stimulants, and hallucinogens, and for reporting colleagues who are impaired to nursing administration in a confidential manner. Nurses are legally responsible for client safety, particularly for failure to monitor client status, medication errors, falls, and the use of restraints.

How should nurses protect themselves when faced with unsafe working conditions?

Nurses who are faced with unsafe working conditions should prioritize the care that is needed, receive orientation to those areas, and document any information pertinent to safety issues.

How can nurses protect themselves from litigation?

Nurses can protect themselves from litigation by (1) following institutional policies, procedures, and protocols; (2) filing incident reports; (3) keeping clients informed and listening to what they say; (4) educating clients on their care; (5) charting as soon as possible and with accuracy; (6) meeting client‘s needs on a timely basis, (7) maintaining clinical knowledge and skills; (8) using appropriate standards of care; (9) responding quickly to changes in client status, including notification of the physician; (10) appropriately delegating client care based on the documented skills of licensed and unlicensed personnel; and (11) treating clients and families with kindness and respect.

What are advance directives?

Advance directives are legal documents concerning the type of medical care a person should receive if they are unable to provide consent. Advance directives consist of (1) the living will, designed to provide direction regarding medical care in the event the person becomes unable to make decisions personally; (2) the durable power of attorney (health care proxy), the designation of a person to exercise decision-making authority for health care; and (3) the advance care medical directive, a document in which an individual provides instructions for care he or she wants or does not want in a number of scenarios.

What are Good Samaritan Acts?

Good Samaritan Acts are laws that provide protection to health care providers by ensuring immunity from civil liability when assistance is provided at the scene of an emergency when the caregiver does not intentionally or recklessly cause client injury.

What is the National Practitioner Data Bank?

The National Practitioner Data Bank is a clearinghouse for information on unsafe practitioners.

What are the legal responsibilities of student nurses?

Student nurses are held accountable for acting as reasonably prudent persons when performing nursing duties, equivalent with their education and experience.