5 Common Legal Issues in Nursing
May 18, 2023
While registered nurses and licensed practical/vocational nurses (“nurses”) work to ensure the safety and well-being of their patients, they may also face a range of potential legal challenges - from malpractice lawsuits to licensing board complaints - that can have a significant impact on their careers and personal lives. By understanding the legal issues that may arise in their practice, nurses can protect themselves and their patients while delivering the best possible care.
Medical malpractice lawsuits. A medical malpractice lawsuit is defined as an allegation that a healthcare provider failed to provide the degree of care required of a professional under the scope of their license resulting in injury, death, or damage. As licensed healthcare providers, nurses are held to a high standard of care and are expected to adhere to ethical, legal, and professional standards. When a patient or their family member believes that a nurse provided substandard care that resulted in harm or injury, or a patient’s outcome differs from anticipated results, nurses are at risk for a medical malpractice lawsuit. Nurses could be named in a lawsuit for many types of allegations, including:
- improper or negligent performance of treatment;
- failure to properly or fully complete patient assessments;
- failure to monitor;
- improper medication administration; and
- failure to follow facility policies and provide a safe environment.
Nurses can help minimize the risk of a medical malpractice lawsuit by taking actions including maintaining clinical and specialty competencies, practicing within the requirements of the state nurse practice act and the standard of care, and complying with organizational policies and procedures.
Licensing board complaints. One of the most common legal challenges that nurses face is State Board of Nursing (SBON) complaints. SBON complaints differ from medical malpractice lawsuits in that allegations can be directly related to a nurse’s clinical responsibilities and professional services, and/or they may be of a personal, nonclinical nature, such as allegations of fraudulent billing, substance use, or improper behavior on social media. Complaints may be filed by patients, patients’ family members, colleagues, employers, and/or regulatory agencies, sometimes anonymously, and they are subsequently investigated by the SBON. SBON investigations can result in no action against the nurse, or disciplinary actions that can range from warning letters to revocation or suspension of their nursing license. The SBON may then report any disciplinary action to other agencies, regulatory authorities, or other SBONs, which may decide to initiate their own investigation and take reciprocal action. Staying up to date with the regulations and the legal, ethical, and professional standards of practice set by their SBON can help nurses avoid these types of complaints. Nurses should also immediately contact their professional liability insurer if they become aware of an SBON complaint that has been filed or if they have any reason to believe that there may be a potential threat to their license to practice nursing.
Depositions. A deposition is a question-and-answer session conducted under oath for the purpose of compiling information from an individual who is either named in a lawsuit (i.e., a named defendant) or is a witness to the matter being litigated. An attorney will ask the witness questions while a court reporter records the testimony verbatim. Nurses may be subpoenaed to provide a deposition or court testimony in matters where they are not a defendant but are or were involved in the assessment and/or treatment of a patent who is involved in legal action. Following the receipt of a subpoena, nurses should immediately inform their professional liability insurance provider and employer’s risk manager or legal counsel of the deposition notice. Together, these professionals help ensure that a proper response is filed, while also counseling the nurse against the unauthorized release of information in their responses. Nurses should never testify in a deposition without first consulting their insurer or legal counsel.
Records requests. In addition to subpoenas to provide a deposition, nurses may also be subpoenaed to provide patient records in a case where they may not be named as a defendant. Records requests can be time-consuming and stressful to manage, so it is crucial for nurses to work with their professional liability insurance provider and employer’s risk manager or legal counsel to understand their legal obligations and rights when it comes to these requests. The issues to consider include protecting patients’ confidentiality, compliance with state privacy requirements, and adherence to federal Health Insurance Portability and Accountability Act (HIPAA) regulations.
Confidentiality of patient information. The healthcare industry is governed by strict privacy laws, including HIPAA, and nurses must be diligent in safeguarding patients' protected health information (PHI) to avoid legal repercussions. As a healthcare professional with access to patient data, nurses are subject to HIPAA guidelines. HIPAA allows covered entities, including nurses, to disclose PHI solely under defined circumstances – for example, in the case of organ donation or domestic violence or abuse. Disclosure of PHI that violates HIPAA regulations can result in severe consequences, from loss of employment to license revocation or even becoming subject to a lawsuit or substantial fines. Nurses should keep in mind that additional state and federal requirements under patient privacy standards may also apply to their practice, in addition to HIPAA. To help safeguard patients’ PHI, nurses should be mindful of the patient information that they access or share, use caution when posting comments or pictures of their workplace online, and be aware of employer security policies and procedures with regards to handling patient information. Nurses should also make sure to attend employer-provided security awareness training(s) and review updates regarding new measures.
Understanding legal issues
Nurses face a range of legal issues in their practice that can have a significant impact on their professional and personal lives. From malpractice lawsuits to confidentiality issues, nurses must be aware of their legal obligations and rights to avoid potential legal challenges. By staying up to date with regulations and standards of practice, taking precautions to avoid malpractice, managing deposition and records requests effectively, and protecting patient privacy, nurses can mitigate legal risks and continue to provide high-quality care to their patients. With a strong understanding of the legal issues they may encounter, nurses can navigate their career with confidence and professionalism.
Article by Georgia Reiner, MS, CPHRM, Risk Analyst, Nurses Service Organization (NSO)
References
Disclaimer
This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. It reflects general principles only. It is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., NSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information. This publication is published by Affinity Insurance Services, Inc., with headquarters at 1100 Virginia Drive, Suite 250, Fort Washington, PA 19034-3278. Phone: (215) 773-4600. All world rights reserved. Reproduction without permission is prohibited.
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