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LEGAL ISSUES AND THE
SCHOOL NURSE
Nancy Roper Willson RN, JD, MSN, MAAttorney at Law
Types/Sources of Law
Statutory
TNPA
Administrative
BNE Rules
and Regulations
Common Law
Court Cases
Two Legal Pitfalls
Malpractice-Failing to do what a reasonable and prudent nurse would do in a particular circumstance [or “Doing what…etc”]
Peer Review-(Defined in NPA as variety of activities)-Evaluation of nursing services, qualifications of a nurse, quality of pt. Care rendered by a nurse, merits of a complaint re: a nurse/nursing care, determination or recommendation
PEER REVIEW
Texas Nursing Practice Act
Original Texas NPA passed 3-28-1909
Part of the Occupations Code
Chapter 301 TNPA (RN’s and LVN’s)
Chapter 302 LVN Act (Deleted)
Chapter 303 Peer Review
Mission of Licensing Board
Protect and promote the welfare of the citizens of the state
Composition of the BNE-2/1/04
Members appointed by the Governor with advice and consent of senate (13 Members)
1 APN; 2 RNs; 3 LVNs; 1Nurse Faculty LVN Program; 1 NF ADN; 1 NF BSN; 4 Public Members
Executive Director- Katherine ThomasStaff
Peer Review
Enacted in 1987 as part of the Professional Nursing Quality Assurance Act
Organizations with
10 or more RNs
required to have
peer review procedure
Peer Review
Mandatory reporting
in Texas
Decision Tree
Did the Nurse violate the NPA?
If yes, was it a Minor Incident?
[Do not need to report]…..OR
If yes, was it a systems error?
[Variable results for the Nurse]
2003-217.19 (7); 301.457; 303.011
Peer Review, Cont’d
Confidentiality of process
Anonymous reporting
Immunity from liability (retaliation by the reported nurse) if in good faith
Rule 217.11Allegations based on this Rule
Standards of Conduct for LVN/RN/APN
Lists examples of conduct required in ANY practice setting, such as legal knowledge, documentation, delegation, accepting assignments, etc.
Minor Incident Rule 217.16
Revised May 2006-Need not be reported unless 5/year [was 3/year]4 criteria=NOT minor-1) significant risk of
harm; 2)lacks conscientious approach or accountability; 3)lacks easily remediated knowledge & competencies; 4) pattern of multiple minor incidents
217.16 Continued
Informal Review of minor incidents can be by workgroup of the PRC
Consider: 1] Incident result of factors beyond nurse’s control? 2] Med Error result of failure of clinical judgment or extraneous factors?
Never Minor:1] death/serious harm; 2]criminal conduct (310.4535); 3] serious viol. Unprof. Conduct Rule (fraud, theft, pt. abuse)
2007 Texas Legislative Session
2 Bills sponsored by TNA that will affect TNPA:
1. HB 2158 [SB 993]
2. HB 1362 [SB]
HB 2158 [SB 993]
Cultures of Safety: Report to BNE if:(A) violates this chapter or a board rule and contributed to the
death or serious injury of a patient; (B) causes a person to suspect that the nurse's practice is
impaired by chemical dependency or drug or alcohol abuse;
(C) constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or
(D) indicates that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior
HB 2158 [SB 993]
Patient Safety Committee will report findings to the Nursing Peer Review Committee, if deficiency in care was due to a factor beyond the nurse’s control [ or will receive a report from the BNE]
HB 2158 [SB 993]
PSC and PRC will share info if established by same entity
Communication from PSC will not be subject to discovery
HB 1362 [SB 761]
Patient Advocacy Bill:
Consolidates and restates in a clearer manner the patient advocacy and whistleblower protections provided nurses when raising patient concerns
HB 1362 [SB 761]
Changes include increasing damages nurse may receive from $1,000 to $5,000.
Re-affirms that a nurse may refuse assignment she/he believes to be in violation of a BNE Rule [or TNPA]
Minimum Due ProcessRule 217.19 Incident Based PR
Should follow requirements for minimum due process
Written Notice
Time Frame/Limitations
Confidentiality
Opportunity to View Records
Hearing/Parity of Representation
Report to the BNE is Advisory
Malpractice vs Peer Review
Malpractice-Actual injury, Money for compensation, Courts-judges & juries,Statute of limitationsPeer Review-Pt. exposed to unnecessary risk of harm, License restrictions, PRCs and the BNE, No Statute of Limitations
Typical Investigation Process
Complaint is received by BNE through one of several meansBNE conducts preliminary investigationBNE notifies RN that complaint has been
filed, nature of complaint, and invites RN to show compliance
Typical Investigation Process
If RN/LVN has not already done so, advisable to hire an attorney
Typical Investigation Process
Informal conference is held at the BNE to attempt to resolve (settle) the matter
If an agreement is reached, an Agreed Order will be drafted by the
BNE enforcement
staff for signature of the
RN/LVN and RN’s/LVN’s attorney
Typical Investigation Process
The Order is then presented to the full Board for ratification and becomes effective on the day of ratification
The RN/LVN then functions under the stipulations in the
Order for the time designated
Typical Investigation Process
The fact of the discipline remains on the RN’s or LVN’s record and is public information
Typical Investigation Process
If an agreement cannot be reached at the informal level and the BNE has probable cause to believe the RN/LVN violated the NPA or R&Rs, Board will commence formal proceedings by filing formal charges (this is public information)
Typical Investigation Process
The Board will set the matter for formal hearing before an Administrative Law Judge at the State Office of Administrative Hearings
Typical Investigation Process
Board has the burden of proof that RN/LVN violated NPA, R&R, BNE Order
ALJ renders a decision which Board accepts or rejects
If the nurse does not agree with the decision of the ALJ/BNE, then he/she can file a case in State Court (very few do this)
Categories of Discipline
Remedial Education
Warning
Reprimand
Suspension
Revocation
Can Surrender at any time
Types of Stipulations
Nursing Jurisprudence Course
Other Courses (Med, Physical Assess.)
Indirect or Direct Supervision
Practice Site Restrictions
Employer Notification
Employer Reports
Discipline and Multi-state Licensure
Multi-state privileges are usually suspended during the time period of the disciplinary order
Home State Disciplines
National Data Bank
The names of all disciplined nurses are sent to the National Practitioner’s
Data Bank and the
information is
available to all
nursing licensing boards
NURSING NEGLIGENCE
INCREASING LIABILITY FOR NURSES
Expanding Role of Nurses in Health Care
Demands Placed on Nurses by Technology
Changes in Malpractice Laws
Health Systems Failures
DEFINITION
Negligence in a malpractice context could be defined as : Failing to do what a reasonable and prudent nurse would do in a particular circumstance, or doing something that a reasonable and prudent nurse would not do
ELEMENTS OF A MALPRACTICE CLAIM
First Element: The Nurse owes a duty to
the patient (Lunsford case)
Second Element: The Nurse breached the
duty/Failed to conform to
the Standard of Care
ELEMENTS, CONTINUED
Third Element: The Patient suffered an actual injury
Fourth Element: There was a causal connection between the Nurse’s conduct and the injury
STANDARDS OF CARE
For a judge or jury to determine whether the care that was given was legally adequate, the standards of care of a profession are utilized. Standards of care are established through the state’s NPA, a facility’s policies and procedures and the ANA’s Standards of Practice
FIVE MOST FREQUENT ALLEGATIONS
1. Failure to ensure patient safety
2. Improper treatment or improper
performance of treatment
3. Failure to monitor and report
4. Medication errors
5. Failure to follow facility’s policy and
procedure
THREE WAYS NURSES PARTICIPATE IN
MALPRACTICE CASES
• 1. Fact Witness
• 2. Expert Witness
• 3. Defendant
THREE WAYS NURSES PARTICIPATE IN
MALPRACTICE CASES
1. Fact Witness
2. Expert Witness
3. Defendant
Most Frequent NP Allegations
Practicing Beyond Scope
Failure to Diagnose Properly
Negligent Treatment
Riskiest Area of NP & RN Practice
OB/GYN
Protections
Know the Texas Nursing Practice Act, BNE’s Rules and Regs. and specific laws
Professional Competency
Documentation
Professional Liability Insurance (Lawyer, Damages, Bond for Appeal)
Knowledge of Safe Harbor Protections
Knowledge of Delegation Rule 224/225
Protections
Professional Competency
Documentation
Documentation is the single most important action you can take to safe guard patient care and to provide yourself with with a good defense against a malpractice claim and license investigation
Protections
Professional Liability Insurance
Professional Liability Insurance
John Doe, Plaintiff
vs
Medical Center and
Nurse A, Nurse B, Nurse C, and
Doctor 1, Doctor 2, Doctor 3
TYPES OF INSURANCE
• Occurrence Based
• vs.
• Claims made
Important to Remember
Many Professional Liability Policies will re-imburse the nurse for attorney’s fees and personal expenses for defense before the licensing board up to a specified amount.
(Be sure to check the policy)
Protections
Safe Harbor
Protections
Delegation
•
School Nurses Dilemma
Education Code
Vs
Texas Nursing Practice Act
School Nursing and Specific Issues
Delegation
Preserving Confidentiality
Parental Refusal to Follow-up
DELEGATION
RULE 224 and RULE 225
Rule 224
Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments
Rule 225
Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel and Tasks not Requiring Delegation in Independent
Living Environments for
Clients with Stable and
Predictable Conditions
Delegation Defined
Authorizing another person
to act as one’s representative
Authorizing an unlicensed
assistive person (UAP) to
provide nursing services while
RN retains accountability for the outcome
Definition, Cont.
Decision to delegate belongs to the RN-
Cannot be forced by facility policy or job description
Made after careful analysis
RN’s do not delegate to LVN’s
RN’s make assignments to LVN’s
(217.11[S])
LVN’s do not have delegatory authority
Additional Points to Remember
If RN addresses and proves criteria met, then accountability met
Does not apply to civil liability (ex. Malpractice) – i.e. properly following this Rule is not a defense for a malpractice claim
General Criteria 224.6
Applies to all situationsDirects RN through decision making process Criteria include:1)assess client’s nursing
care needs; 2)within scope of sound professional nursing judgment;3) UAP can safely perform without jeopardizing; 4)task does not require nursing judgment or intervention
Criteria, Cont.
UAP identified -individually or by type/ classification
Personally instruct UAP or verify competency
Adequate supervision
Periodically evaluate delegation
Supervision 224.7
Level of supervision depends on condition of client, competency of UAP, nature of task and availability of RN to UAP
Delegating RN or equally qualified RN must be available to UAP directly or by telecommunication
RN must be readily available with clients with changing conditions
Rule 225 Definitions
Activities of Daily Living (ADL’s)
Health Maintenance Tasks (HMA’s)
Nursing Tasks
225 Gatekeeping Criteria
Independent Living Environment
Client/CRA willing/able to participate in decisions
Task related to stable and predictable health care condition
225.(b) RN Assessment of Client
6 Criteria:
#1-Ability of Client or client’s CRA to participate
6 Criteria
#2-Adequacy and reliability of Support Systems
6 Criteria
#3-Degree of stability and predictability
6 Criteria
#4-Knowledge Base re: Client’s health status (Client or CRA if Client under 16 yo or incompetent)
6 Criteria
#5-Ability to communicate to UAP
ADL’S Not Requiring Delegation
Limited to tasks in def’n
Not require RN delegation when task is related to functional disability
Task can be performed by any UAP w/o RN supervision
HMA’S Not Requiring Delegation
Limited to tasks in def’n
More complicated or invasive than ADL’S
Require additional assessment criteria
HMA Supervision
Client would perform but for functional disability
HMA can be directed by C or CRA w/o RN supervision
C or CRA has agreed in writing to direct UAP
HMA Supervision, Continued
C willing/able to train UAP; OR
CRA trains UAP and is present when task is performed; or
Observes UAP performance of task X1, then is available (by phone, etc)
Medication Administration
Assistance w/ medication administration
Emphasis on “functional disability”
Routine O2
Insulin:SQ, Nasal, Pump
Use of pill box
Texas School Health Guidelines
Medication Administration
In School
Off School Grounds
Herbal/Dietary
Emergency
Psychotropic
Diabetes
Oxygen
School Nursing
Delegation
Preserving Confidentiality
Parental Refusal to Follow-up
School Nursing
Delegation
Preserving Confidentiality
Parental Refusal to Follow-up
Parental Refusal to Follow Up or other parental issue
Advocate, Advocate, Advocate
Parental Refusal to Follow Up or other parental issue
Document, Document, Document
Board of Nurse Examiners
Rule 217.11 (D) accurately and completely report and document: i) client status; ii) nursing care; iii) orders; iv) admin. of meds and treatments; v) client
responses; and vi) contact w/ other HC team re: significant events of client status
Board of Nurse Examiners 217.11, continued
Participate in client education
Orientation competency
Notify supervisor
Mandatory reporting
Make referrals/consults
Continuing competence
Supervise care
Purposes of the Medical Record
Provides a complete and accurate documentary of the care and treatment that a patient receives
Purposes
Serves as a means of communication between all members of the health care team
Purposes
May serve as evidence in a legal proceeding
Documentation Maxims
All entries should be complete, accurate and timely
Maxim
Chart what you see, feel, smell, etc.
Do not chart personal opinions
Maxims
Do not use vague or immeasurable phrases
Maxims
Do not criticize other
staff
Maxims
Do not chart in the patient record re: “Incident Report”/ “Safe Harbor”
Maxims
Use only accurate terms and accepted abbreviations
Maxims
If your charting is incomplete, sloppy and inaccurate, a jury may decide your nursing care was the same
Maxim
Never falsify a record