Nursing education in Ethics and Legal implications is an imperative topic. When faced with real live scenarios, doubts and questions are raised. We can solve these with a deliberative process based on existing laws and respecting the principles of Ethics. To illustrate the knowledge of this process, two cases were presented were clinical information is examined and issues like informed consent, malpractice and negligence, among others, will be discussed. The goal is to be mindful when transitioning into nursing practice and to be able to identify rights, duties and obligations of the professional nurse, both for their patients, colleagues and society in general.
Malpractice and Negligence
The first scenario raises the question of malpractice. Sometimes the term malpractice and negligence are used interchangeably but it’s important to distinguish them. Both malpractice and negligence relate to failure to exercise the care that a reasonably prudent person would undertake in similar circumstances (Carvalho, Reeves, ; Orford, 2011).
Malpractice is one type of negligence, often referred to as professional negligence. When nursing care falls below the standard of care, nursing malpractice results. To establish nursing malpractice the following components need to be met: duty, negligence, and injury.
To prove negligence, on the other hand, there are four components that need to be present: duty of care, breach, causation and harm. Negligence is a conduct in which a medical professional dismisses responsibility and consequently causes a patient to be harmed. In scenario one the nurse didn’t intend to cause the patient any harm but instead, she did because of ignorance and/or lack of action. Medical negligence cases often involve unintentional mistakes or oversights.
Duty of Care
The law recognizes that a relationship exists between the nurse and the patient. This is not difficult to prove. Due to this relationship, one party has a legal obligation to act in a certain manner toward the other.
Breach of Duty of Care
Once the relationship was established, the other component that needs to be present is a breach of that relationship. Liability can occur when the omission of duty of care or imprudence is sufficient to prevent foreseeable damages and an avoidable event has occurred. This lack of elementary diligence, can amount to mistakes, and most of the time ends up causing injury or even death.
An action or an omission that simply allowed an injury to happen is enough to prove causation. In the scenario presented, even though the nurse reported to the physician the abnormal findings of her assessment, by not escalating the matter she created a condition that made it foreseeable for the patient to potentially loose his leg, even if other factors contribute to the patients’ injury. As long as her breach of duty was a substantial causative factor, it is enough under the law.
The fourth element of negligence is harm. An injury has to occur, making the patients’ condition worse as a consequence of the breach of duty. In scenario one the actual harm was the circulation on the patients’ leg was compromised, this is a direct consequence of delay in reporting the patient’s condition to a charge nurse or the physician again.
Because all the following conditions were met, the nurse and the physician in scenario one would most definitely be liable for malpractice. The responsibility would fall on both of them. By acts of omission the nurse failed to convey to a supervisor the severity of the situation and the physician failed to assess the patient. If the nurse would have questioned the order or communicate all the pertinent information to the physician, in a manner where he would understand the concern of her assessment findings, the patient’s leg circulation would have not been compromised. The nurse did not act as a patient advocate and did not activate the chain of command quick enough. Telephonic assessments and reassessments are not the norm and physician intimidation or unsupportive management may prevent nurses from exercising patient advocacy (Allen , Petrisek, ; Laliberte, 2001). Nurses should be trained and their competencies assessed to determine their understanding as to what policies and procedures should be followed when there is a need to question a physician’s order.
Taking a Proactive Approach
Nurses can protect themselves against medical negligence cases and avoid litigation by providing nursing care above the standards and taking the time to understand the legal principles of malpractice. Identifying situations that that may increase the risk of liability is important like working with insufficient resources, failing to follow policies and procedures, taking shortcuts, and working when feeling highly stressed (DuPree, Anderson, & Nash, 2011). It’s imperative for Nurses to also follow the standards of care that apply to their specialty as well as standards set by the American Nurses Association (ANA), state and federal regulations, policies set forth by the hospital or employer, standards by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and standards of clinical specialty nursing organizations.
Informed consent is a term that denotes in the context of ethics, law, and medicine. It is based upon rights and duties as well as consequences of actions. But it seems to have its up most value to the law. It legally protects interests of a patient’s body and autonomy. Informed consent comes from the legal doctrine, in where a physician is legally obligated to obtain an authorization to administer treatment to a patient. But it comes with responsibility, the physician has the duty to inform patients of risk, benefits, alternatives, the nature of the condition, treatment plans and their purpose.
In scenario two, the oncologist and residents came to obtain a consent for the treatment of the patient’s cancer but after assessment by the nurse there were obvious difficulties in understanding the information the oncologist presented to her. In part, this problem may be attributed to the lack of detail that was offered. Or maybe the patient’s confusion stemmed from her own intellectual limitations. The physicians may have not payed attention to the fact that she’s a young patient, was alone in the room with no family support, and has a stressful situation at home that may hinder her from making a meaningful decision about cancer treatment. Nurses should assess patients and determine who is able to make their own decisions and if they are not identify an alternative and convey the information back to the physician.
The consent is considered invalid in scenario two, since the patient did not fully understand what she was signing. Patients with a fluctuating level of mental function are incapable of granting legally sound consent. Physicians may not often have the time or they are unable to recognize that a patient may lack the ability to comprehend. They may be able to participate in the decision portion of the consent but they are not capable of comprehending.
As a nurse, I would have liked to obtain more information on her mental status and family support. She’s at a stage in her life where she’s experiencing psychological stress, by taking care of an ill parent, her mother, an 18-month-old baby and all the responsibilities that come with that. The introduction of a potentially deadly disease coupled with her existing stressors could lead her into a severe depression, feelings of anger, emotional or mental distress, hopelessness and major consequences on her existing relationships at home. Family members would also be influenced by the changes of a loved one with cancer (Allen , Petrisek, ; Laliberte, 2001).
The Nurse as an Advocate
Weighing the available data, the patient was unable to reflect on the risks and benefits of the treatment options and then select what would fit her values. Perhaps unintentional physician intimidation was a factor. Some patients have anxiety, and the overwhelming circumstances of a hospitalization can provide a less than therapeutic environment to obtain a consent. Unfortunately, her case in ways, is typical for most doctor-patient interactions. The ambiguities in communication are common in the medical setting and I have personally witnessed them. It is substantial for nurses to identify patient’s limitations and evaluate all aspects of their wellbeing in their entirety, like assessing mental and emotional status, patient language and cultural differences, is it an emergent situation or is it elective, is the patient having pain or are they immature for their age and would need additional support? (Farber Post, Blustein, Gordon, & Veneloff Dubler, 1996) From an ethical point of view, if competency is questioned then the nurse has an obligation to call the physician, talk to the nursing supervisor, let someone else know that there is a lack of understanding on the patient’s part. It is important to advocate for the patient and don’t let them sign until they come to an understanding or things have been clarified.