Nursing and the law

Introduction

As analyzed in the book in chapter 11, the profession of nursing always intersects with legal risks which might include negligence or malpractices. In addition, nurses are always faced with the dilemma of selecting the ethical and moral choice every single day within their places of work. Thus, in the nursing field, the law applies to every major activity carried within a health facility. Nurses therefore face legal risks in their day to day duties and they are also required by law to question any discharge of a patient from the hospital especially if the patient is not completely healed. In addition, they are also required by law to report negligence observed in a physician as required by law.

Therefore, the legal issues and ethical issues facing my profession require me to observe the law at any given time and act in a way which is unquestionable and promotes the highest ideals of our nursing profession. In the following discussion, I will look into legal issues impacting the nursing profession while at the same time exploring how my ethical viewpoint coincides with biblical values.

Legal issues in nursing

In the nursing profession, may legal issues exist for a nurse as noted by the studies made by Cox, (2010). The legal issues include negligence which occurs when a nurse fails to provide the expected level of care to a patient. In addition, other legal risks that nurses face include malpractice which entails a nurse doing something wrong contrary to the training received. E.g., as a nurse, I might give the wrong medication to a patient as a result of fatigue or other factors leading to very negative medical effects on the part of the patient. This might result to the institution I work with getting sued by the patient. Further, as analyzed by Cox, (2010) legal risks which also face nurses in their day to day work include accidents and documentation errors especially when nurses are filling health records which might result to misdiagnosis in the future.

Further as noted by (Pozgar & Santucci, 2015), nurses should have the proper licensing and certification allowing them to practice their profession in a particular state or they face the risk of being sued for fraud and malpractice.

On the other hand, nurses also face the legal risk of getting sued if they do not question how a contentious discharge was carried out. This is as analyzed by (Ulrich et al., 2010) who show that nurses have an obligation to ensure that patients receive the best care which an hospital can grant and that they are not discharged midway through a treatment process due to their inability to pay for their hospital bills. Nurses, therefore have a moral obligation to stand for what is right within their profession and adhere to the Hippocratic Oath by ensuring that doctors disseminate quality care to all the patients admitted within a hospital.

Finally, as noted by (Pozgar & Santucci, 2015) nurses also have a right to report any negligence on the part of a physician. This is because, failure to do so may result to the nurse getting embroiled in a legal conflict if the actions of the physician leads to negative outcomes on the part of the patient. Therefore, nurses face the legal risk of suspension or getting their certificates revoked if they do not report any form of negligence noted on their fellow physician to their superiors.

Personal worldview on nursing ethics

I tend to agree with the concepts raised by (Ozaras & Abaan, 2016) on the role nurses should play within the society. This is because the author argues that nurses should seek to maintain the highest levels of professionalism in their day to day activities and should seek to follow the law despite the pressure which might come from their work entrapment. Therefore, I believe that nurses should seek to uphold the highest code of ethics and should not in any way accept bribes or subvert the legal guidelines within a hospital setting in order to favor one patient against another. E.g., a nurse should seek to give patients the right amount of morphine despite the insistence of a patient or the pain they might be undergoing

In addition, I also agree with the concepts proposed by (Beech, 2007) that nurses should seek to provide high quality care to any patients who are under their care even if they do not have the means to pay for the care given. Thus, nurses should never deny an individual access to medical help in line with the Hippocratic Oath but should always seek to resolve any insurance constraints or conflicts which can occur in the modes of payment used by a patient while at the same time upholding the professional standards required. Nurses should therefore seek to ensure that a physician adheres to the right code of conduct and act with the right amount of concern towards their patients.

Biblical concepts which intersect with legal nursing laws

The concepts of ethics and doing the right thing are also spoken in the bible. This is as shown in proverbs 11:3 “The integrity of the upright will guide them, but the crookedness of the treacherous will destroy them”. This seeks to show that every person in a position of authority should seek to do the right thing. Thus, a nurse should always seek to uphold the legal and ethical mores and standards stipulated in their job. In addition, they should seek to uphold the correct professional standards in their day to day operations. Therefore nurses should seek to uphold the concepts analyzed in Philippians 4:8 which states “Finally, brethren, whatever is true, whatever is honorable, whatever is right, whatever is pure, whatever is lovely, whatever is of good repute, if there is any excellence and if anything worthy of praise, dwell on these things”.

Conclusion

Therefore, nurses face a lot of legal risks in the workplace as noted by (Pozgar & Santucci, 2015). This is because nurses face the risk of being sued for negligence or malpractice especially if their actions lead to an accident in the dissemination of healthcare. Further, nurses are also supposed to report any misdemeanor carried out by a physician in the workplace. Thereby, a nurse should always uphold the highest ethical ideals in their day to day practices in line with biblical concepts which call on all of nurses to be upright and blameless in their actions.

Discussion Question #1

Whatever you been diagnosed with that may lead to a surgical procedure (ex, appendix removed, or a quadruple bypass), any surgical procedure is a serious matter. The last thing anyone wants to hear following a surgery is that an error occurred.  But does that automatically mean your surgeon committed medical malpractice? Not necessarily.  Surgical malpractice is an act of negligence upon a patient by a surgeon, surgical nurse, anesthesiologist, surgical instrument tech or other medical staff involved in a surgical procedure. It occurs when a medical professional act in a manner which “deviates from the standard of care in the medical community.”

At the national level, our country is distinguished for its patchwork of medical care subsystems that can require patients to bounce around in a complex maze of providers as they seek effective and affordable care. Because of increased production demands, providers may be expected to give care in suboptimal working conditions, with decreased staff, and a shortage of physicians, which leads to fatigue and burnout. It should be no surprise that PAEs that harm patients are frighteningly common in this highly technical, rapidly changing, and poorly integrated industry. The picture is further complicated by a lack of transparency and limited accountability for errors that harm patients [2,3]

Most of surgical procedures performed each day in the United States are uneventful. Technology has helped minimize errors and improve patient recovery. Sometimes, however, some surgical procedures still go wrong, resulting in further harm to the patient. I manage a surgical instrument department in a hospital. Surgical instrument technicians (belonging to the sterile processing department or surgical technologists’ department) are part of allied professionals and work as part of an operations team in a health care organization. The department plays an essential role in patient safety as well as infection control. Sterile processing technicians operate the sterilizing equipment such as the autoclave that sterilizes instruments, equipment, etc. The technicians in the department must obey all hospital policies and are responsible for arranging the surgical equipment in the operating room. They must check, assemble, and adjust all medical tools to ensure that they are all functioning properly before the surgery begins. They must make sure all tools and equipment have been decontaminated and that the area is completely sterile before and after procedures.

There was an incident that I was directly involved with, an open-heart case. A technician assembled a chest retractor incorrectly, and this is an instrument that plays a key role in an open-heart case. In open-heart or heart transplant cases, every second and minute plays a role in the outcome of the procedure. Because a technician assembled the chest retractor wrong, and in an attempt to reassemble it in a rush, the instrument locked and would not function.  A patient was on the surgical table, his chest was wide open with no retractor to hold it and time was not on our side. Someone from the operation room (OR) called my work area for a replacement; thank God, we had a replacement to prevent a continuous downward series of events. However, with the all the time spent trying to reassemble the retractor, the patient got hurt from the improper ensemble of the retractor, lost a lot of blood and the surgical procedure time was extended.  The patient survived through that ordeal but that mistake should not had happened in the first place. And, yes, we got sued by the patient over the incident.

After the surgery, the surgeon was not happy about that mistake.  Management, including myself, got involved and created a back-up plan to address similar events as well as create some innovative ways to prepare an open-heart tray/set appropriately. Some of the rules and procedures that were implemented include: 1. All trays/sets needed for a surgical procedure should be ready and checked for its functioning in the operation room before a patient is placed on the surgical table. If this is done we can replace any instruments in a timely manner before the surgery; 2. We decided to make another tray/set available at all time just in case anything goes wrong; and 3. We went on to separate major instruments from the rest of instruments so more focus can be given to those instruments.

Unfortunate outcomes are no less stressful to the surgeon. This is an occasion to be honest and sympathetic with the patient. We should try to understand what happened and if possible, why it happened, without shifting blame. Most importantly, we should make sure that our patient understands the solution that is offered. Often from our experience we know that the problem is temporary and will settle with time. This calls for abundance of reassurance in the face of fear and anger from the patient’s side. A surgery should never be rushed as this is a life-boat and is to be set afloat only when all other options have dried up. (Bhattacharya, S. 2013).

In conclusion, “All men make mistakes, but a good man yields when he knows his course is wrong, and repairs the evil. The only crime is pride.”— Sophocles, Antigone”. Mistakes may not be a good thing but it gives room to revisit the situation and try to fix what went wrong to avoid the reoccurrence of such mistakes. In my case, I have learned a lot from that incident and have changed a lot as to how I approach anything I find myself doing.

NIV (John 8:7). “When they kept on questioning him, he straightened up and said to them, let anyone of you who is without a sin be the first to throw a stone at her”.

Discussion Question #2

Chapter 10, which discusses medical staff organization and physician liability, is the chapter that most closely relates to my area of practice. Currently, I work as a Management Associate in the Physician and ACP Recruitment and Retention department at Carolinas HealthCare System in Charlotte, NC. One group within my department is responsible for recruiting all the physicians and ACPs for the entire health system. The term ACP stands for Advanced Clinical Practitioners and includes Nurse Practitioners, Physician Assistants, Nurse Midwives, and Certified Registered Nurse Anesthetists. Another group within my department works to integrate or onboard physicians and ACPs in to the system and implements retention programs focused on retaining our physicians and ACPs once they are a part of the system. A large part of my work is focused in this area, on retention efforts. I work closely with the System’s Medical Group leadership to develop and implement physician and ACP engagement and wellness strategies geared at increasing engagement and reducing turnover. The other group in my department handles physician and ACP contracts for the system.

There are many legal and ethical considerations that must made by recruitment teams, medical staff departments, and hospital/practice administrators when recruiting and employing physicians and ACPs. From the very beginning of the process, recruiters and hiring managers must be mindful of the tendency to unintentionally, or in some cases intentionally, discriminate against candidates based on the recruiter or hiring manager’s preferences for the type of candidate they feel would be the best fit for their organization. An article in the Journal of Legal Medicine referred to this tendency as the homogenization process. The factors involved in this process include: the applicant’s possible tendency to look for organizations that match their own characteristics and values, the tendency of organizations to employ people they think will “fit in”, and the tendency of individuals who do not “fit in” to leave the organization. Overtime the organization will begin to mirror the characteristics and values of those responsible for recruiting and making hiring decisions and exclude those who do not (Björklund, Bäckström, & Wolgast, 2012). In the Bible, we are told not to do things such as this. In James 2:8-9, it says “If you really keep the royal law found in Scripture, “Love your neighbor as yourself,” you are doing right. But if you show favoritism, you sin and are convicted by the law as lawbreakers” (James 2:8-9, New International Version).

The first step in the recruitment process is the screening of candidates. This must also be approached with legal considerations in mind. Recruiters must thoroughly screen candidates to ensure they meet, at least, the basic qualifications for employment. This includes verification of proper licensure and board certification as well as completion of background checks and reference checks. A license is a legal authorization provided by a government agency allowing an individual to practice a given occupation that requires a high level of specialized skill (Thompson & Robin, 2012). Having a license ensures a uniform standard of practice and assures patients that the person delivering their care is properly trained. All states have laws and rules that oversee all healthcare practitioners and the medical board is granted power to regulate those that practice within each state (Thompson & Robin, 2012). Completing these checks and ensuring that practitioners are licensed, certified, and in good stating with the medical board is one of the most important steps made by a healthcare system to provide the highest quality care to its patients. Reference and background checks are also very important considering the organization can be held liable if a physician or ACP is negligent in the care they provide (Pozgar, 2016). When a patient goes to a hospital they should be able to assume that the hospital stands behind those in its employ and has verified their abilities and standing within their practice and the community. If they do not do their due diligence they are essentially lying to their patients when they say the goal is to provide the highest quality care. Being truthful in our ways should always be top priority. In Ephesians, we are told, “therefore each of you must put off falsehood and speak truthfully to your neighbor, for we are all members of one body” (Ephesians 4:25, New International Version).

The next part of the recruitment process that requires legal consideration is the employment agreement and contract negotiation phase. At most organizations, the recruiter is not very involved in the contract negotiation. It is usually handled by a contract or legal office, human resources, or the hiring manger/administrator. It is common for physicians to seek legal counsel when discussing specific areas of their contract including discussions about restrictive covenants, salary, and malpractice insurance. Restrictive covenants limit physicians and ACPs from working with the organization’s competitor. For the organization, restrictive covenants help to relieve stress regarding the potential leak of patient information and/or information about the organization’s business practices. For physicians and ACPs, particularly those that provide hospital based services, these covenants can be worrisome because if they were ever terminated they would potentially have to build their practice all over again (Blustein & Ancona, 2010). A second point of contention can be salary negotiations. Employers usually want to link salary to productivity whereas employees prefer a fixed based salary. One way that this issue is usually worked out is for the organization to offer a base salary with opportunity for incentive. If the physician produces above their base they are provided supplementary income (Blustein & Ancona, 2010). Additionally, the negotiation of malpractice insurance coverage and payment can cause debate between the employer and employees. The type of coverage provided is usually what can cause disagreement. Claims-made policies cover physicians if an alleged act occurs and is reported while the policy is in effect. Occurrence coverage covers physicians while the policy is in effect, regardless of when it is reported. Physicians and ACPs usually prefer occurrence coverage but it is more expensive and employers are often unwilling to pay for it (Blustein & Ancona, 2010).

Once contract negotiations are complete, the contract is signed, and the physician and/or ACP is hired they must go through the credentialing and privileging process. The Journal of Continuing Education in Nursing defines credentialing as “a process used to designate that a recognized entity has met established standards as determined by a governmental or nongovernmental agent qualified to carry out development and implementation of these standards” (Dickerson, 2012). According to Pozgar, the delineation of clinical privileges is “the process by which medical staff determines precisely what procedures a physician is authorized to perform” (Pozgar, 2016). Ensuring that physicians and ACPs are properly credentialed and privileged is of the upmost importance considering the possible law suits that could occur if a physician or ACP were to practice outside of their scope of care and cause injury to a patient. It is also best practice for organizations to review physicians and ACPs credentials at least every two years to ensure high quality performance and care to patients (Pozgar, 2016).

Many of the responsibilities of the department that I work for do not allow for much contact with patients; however, the work that that we do ensures that the patients of the system have access to the most qualified providers. At each of our team meetings we do what is called a “Connect to Purpose” where a teammate will share an experience they have had at the hospital or at a practice that reminds us how our work is connected to the mission of the organization. Sometimes it can be easy to forget when you work in an office building but these stories help to bring purpose to why we do what we do.