Incorporating Legal Perspectives into Orientation

You probably address legal concepts when talking about documentation, medication administration, and delegation. But most orientation programs do not allot specific time to legal issues in general as there is constant pressure to conduct orientation more efficiently and in less time.

How can you introduce this additional information into an already crowded orientation schedule? One possibility is to develop a basic handout and include some scenarios for general discussion or self-study. Remember that you are not expected to offer a continuing education program on legal issues in nursing. This is beyond the scope of orientation. You are simply introducing some basic concepts and stimulating interest. Let's start with some basic legal concepts and a handout that will guide your discussions.

Laws and regulations
Each state has its own Nurse Practice Act, which contains information about the specific scope of practice and educational requirements. Each act also contains statements that prohibit nurses from performing tasks determined to be within the scope of medical practice.

You cannot review the entire Nurse Practice Act in orientation, but you should encourage nurses to obtain a copy of it from the State Board of Nursing and to become familiar with it. You should also include information about avoiding conflicts with employing organizations and volunteer organizations. Tell orientees that their employers cannot expand the scope of their practice to include actions that are prohibited by the state's Nurse Practice Act. All nurses have a legal obligation to practice within their Nurse Practice Act limits (Follin, 2004).

The first three items on the sample handout (p. 3) deal with your state's Nurse Practice Act and legal obligations pertaining to it. Exceeding those limits may result in disciplinary action by the State Board of Nursing or even loss of license. The next items deal with scope and standards of specialty practice and regulatory bodies. You don't need to go into great detail; simply mention those that are most applicable to your organization, such as The Joint Commission (particularly the National Patient Safety Goals) and American Nurses Association (ANA) Standards of Practice. Individualize the handout so it is applicable to your state and organization.

Delegation
It's a good idea to mention delegation responsibilities, especially to orientees who are newly licensed RNs. RNs may delegate to another RN, an LPN, and/or an unlicensed staff member, such as a nursing assistant. However, the RN may only delegate tasks to persons who are competent to perform them and who are able to perform them as part of their legal scope and standards of practice. The delegating RN is still ultimately responsible for his or her patient's care, even if some tasks are delegated to others (Follin, 2004).

The RN needs to know the competency, skills, and abilities of the persons to whom he or she is delegating tasks. He or she must evaluate these persons on an ongoing basis, continually evaluate patients, and report persons who are incompetent or who fail to perform tasks safely.

Elements of professional malpractice
Professional malpractice cases review the patient care provided to determine whether deviations from the appropriate standard of care took place. This is usually initiated with a review of the medical record. Standards of care are measured according to practice acts, professional scope and standards of care, and organizational policies and procedures.

To prove liability for malpractice, four elements must be shown (Morales, 2009):

• Duty. There must be a duty that is owed to the patient as indicated by the nurse-patient relationship. This can be interpreted broadly. As a simple example, nurses have a duty to provide a safe environment for patients. Patients must be able to reach their call bell when they need to get out of bed to go to the bathroom. Part of the safe environment, and nurses' duty, is to make sure patients' call bells are within reach and they know how to access them.
• Breach of duty. Breach of duty means nurses fail to fulfill their duty to the patient. Suppose nurses fail to adequately assess patients' environment. The nurses know a patient needs assistance to ambulate to the bathroom but fail to secure the call bell within the patient's reach. The patient can't reach the call bell and calls out for help. Unable to wait until someone hears him, the patient gets out of bed and falls. The duty to the patient was breached.
• Injury. To prove liability, injury must occur as a result of the breach of duty. The patient who fell in an attempt to get to the bathroom breaks his hip as a result of the fall. He was injured due to a breach of duty. The injury must also result in monetary damage. In this example, the additional expense of hip surgery and extended hospitalization are part of the damages.
• Causation. There must be a direct cause and effect between the patient's injury and the breach of duty. This is usually the most difficult element to prove at a malpractice trial. In the case of our example, it must be proved that had the call bell been within reach, the patient would not have been injured.

In addition to discussing the handout, develop case scenarios of your own that illustrate the four elements of negligence. You may also want to develop a mock court role-play scenario. Your legal department can be a big help when developing mock courts.

Legal tip: This article is intended as an introductory guide, not as legal advice. When developing legal tools, consult with your organization's legal and risk management department. Issues to address, in conjunction with your legal department, include advance directives, living wills, and hospital policy regarding employees witnessing patient wills.

References
Follin, S.A. (Ed.). (2004). Nurse's Legal Handbook (5th ed.). Philadelphia: Lippincott Williams & Wilkins.
Morales, K. (2009). "Elements of medical malpractice." Retrieved December 18, 2009, from www.nursetogether.com/tabid/102/itemid/1406/Elements-of-Medical-Malpractice.aspx.