Legal Issues for Nurse Educators

1. Legal Issues for Nurse Educators Karen McKeithen Schaede, RN, JD

2. Legal Terms 101 • Criminal Law: • Deals with crimes and the punishment for criminal offenses • Examples of Criminal Law • Failure to renew nursing license while continuing to practice • Illegally diverting drugs • Party to a patient’s death (intentional or unintentional)

3. Legal Terms 101 • Civil Law: • Deals with disputes between individuals or organizations in which compensation may be awarded to the victim. • Nurses are most often involved in civil law suits rather than criminal.

4. Legal Terms 101 • Tort: • Civil, non-criminal decision relating to injuries that occur as result of a breach of a duty owed to the injured party • Requirements for a tort claim: • Defendant has a duty to the Plaintiff • Defendant breached this duty • Harm or injury resulted from the breach of this duty • Tort actions are most common among Nurse Educators • Example: Negligence

5. Legal Terms 101 • Negligence: • Failure to exercise the standard of care that a reasonably prudent person would exercise in a similar situation • What is the Standard of Care for Nurse Educators? • Registered professional nurse standard: What an ordinary, prudent and reasonable nurse would do in the same or a similar situation

6. Determining your Standard of Care • What is in your job description? • One’s job description is often used to determine the “standard of care” owed to a plaintiff in a lawsuit. • The court may use a nurse educator’s job description to measure a nurse’s action or inaction in a civil suit.

7. What Happens if a Legal Action Commences? • Nurse educators may be involved in legal actions in a number of ways: • As a co-defendant along with the school • As an individual • Some States have statutes that provide charitable immunity (partial or complete protection) for nurse educators • Does NC provide charitable immunity for nurse educators?

8. Why Personal Professional Liability Insurance is Important: • Nurse educators may be covered to a certain extent by their employer’s insurance

9. Liability Insurance: Is your coverage adequate? • Employer-based coverage is a good starting point… • BUT, be aware of the policy and specific provisions and acquire your own individual coverage to augment the employer’s policy if necessary

10. Liability Insurance: Is your coverage adequate? • Consider the following factors: • The type of nursing that you normally perform • The dollar amount of the average awards in your particular geographic area • The type of nursing care you normally provide • The propensity for lawsuits against nurses in that geographic area

11. Liability Insurance: Is your Coverage Adequate? • To assess your level of risk consider: • Your employment status • Type of employer

12. 1. What is your Employment Status? • Employee: • Paid a wage or salary by an employer • Employer controls when, where, and how job is performed • Independent Contractor • Clients typically pay fees • Nurse has more control of when, where, and how to carry out duties • “Borrowed servant” • Hired by one employer but performs work for a second employer

13. What does your employment status implicate? • Employee • Lesser degree of liability risk since your employer has control over the tasks the employee is to perform within the scope of her employment. • Respondeat superior – “Let the master answer”

14. What does your employment status implicate? • Independent Contractor • Greater liability risk since the nurse controls her own work and has no “master”

15. What does your Employment Status Implicate? • “Borrowed Servant” • Faces a different type of risk than an independent contractor since two different employers are in the picture, each of whom may want to hold her responsible for conduct on the job

16. 2. What type of employer do you work for? • If you are an employee the type of employer you work for plays a significant role in your potential liability • Well-financed employer • Most likely to be well insured • Employer undergoing financial hardship • May be underinsured or not insured at all • Government employer • You may benefit from protection of “sovereign immunity”

17. Does your policy cover your risk? • Now that you have assessed your risk, you need to determine whether your liability coverage is adequate. • Examine your employer’s policy • Examine your personal policy

18. Does your policy cover your risk? • Are you covered for “intentional torts”? • Some policies may cover certain acts of negligence, but may exclude intentional torts (i.e., battery, false imprisonment, defamation, and intentional infliction of emotional distress). • Why do you need to be covered for intentional torts? • Important because, unlike a claim for negligence, plaintiff’s suing for an intentional tort may be seeking punitive damages.

19. Does your policy cover your risk? • Do you have coverage for disciplinary claims? • Disciplinary claims require the nurse to appear before a licensure or other disciplinary board • Usually result from patient complaints, termination by an employer, or personal problems (i.e. drug/alcohol abuse that impairs the nurses’ abilities) • Disciplinary claims are usually not covered under standard policies • This type of coverage is important because defending a disciplinary action can be costly in terms of loss of income and attorney fees • Disciplinary coverage usually covers these costs

20. Does your policy cover your risk? • Does your coverage exclude acts of a criminal nature? • Example: patient abuse • Some claims may have criminal consequences and your policy may not help you defend yourself against them.

21. Obtaining Extra Coverage • After examining your risk and your coverage, if you find that it is inadequate, you need to obtain coverage for your areas of exposure • May need to purchase a personal policy or increase coverage of an existing personal policy • Different types of policies: • “Claims-made”- provides coverage only for claims filed during the policy term • “occurrence policy”- provides coverage for an incident that occurs during the time the policy is in effect, regardless of when the claim is filed. • “tail” coverage- protects against claims that occur after nurses drop their “claims-made” insurance and discontinue coverage. • “prior acts” or “nose” coverage- protects those purchasing insurance for the first time for acts occurring prior to the insurance.

22. Purchasing a Personal Policy • First time purchasers should contact several companies to see what products are offered • Read the policy information carefully • Write out questions you may have • Be aware of what the policy does/does not cover • Compare costs of various policies, including options for deductibles • You may be able to purchase professional liability insurance at a discount through a nursing organization or check with your state nursing association.

23. Purchasing a Personal Policy • Once you have obtained a policy make a point to review it periodically throughout your career. • Not worrying about the details of your coverage now can cost you greatly in the future if your coverage is inadequate and your care is called into question!

24. Purchasing a Personal Policy • Once you find a policy that provides the necessary coverage be sure to extend coverage as your job status changes or as you expand your practice role.

25. Donating your Nursing Services • What happens when you donate your professional services to community organizations or activities? • This can occur when you are a paid employee providing nursing services that are outside the scope of your employment contract.

26. Donating your Nursing Services • Examples of donating nursing services: • Community ambulance service • Bloodmobile or hypertension out-reach program • Home or school association panel discussion on health issues • Community or sporting event • School nurse (if not within scope of employment contract)

27. Donating your Nursing Services • Your responsibilities do NOT change when donating your services…BUT your legal status does! • When donating your nursing services, your legal status becomes less defined • In most states, nurse practice acts define only the legal limits of those being paid for their nursing services, but not those donating nursing services.

28. Legal Implications of Donating your Nursing Services • The court can use the provisions of the state nurse practice act, expert witness testimony, and the applicable standard of care to determine if the nurse acted properly when donating services. • If the court finds that the nurse did not satisfy the requirements of the state’s nurse practice act, the nurse may face a malpractice suit.

29. Legal Implications of Donating your Nursing Services • Be aware that your professional insurance may not cover voluntary services • Review your policy to determine its application and coverage

30. Legal Implications of Donating your Nursing Services • Even if there is no lawsuit, a nurse may be subject to discipline by the state nursing board if her services do not meet the standard of care. • This could result in suspension or revocation of the nurse’s license

31. Legal Implications of Donating your Nursing Services • Good Samaritan acts will not cover a nurse in day-to-day situations involving the donation of nursing services. • These acts apply only to accidents or other emergency situations. • In addition, not all state Good Samaritan Acts extend coverage to all nurses.

32. Minimizing Legal Risks When Donating Nursing Services • Have Necessary Orders • Document Your Actions • Check Your Coverage

33. Have Necessary Orders • Obtain a physician’s order or standing order before giving any treatment or medication that requires such.

34. Document Your Actions • Document your donated care as carefully as you document the care you give on the job. • Keep a copy of your nurses’ notes so you have a permanent record of your actions should a question ever arise.

35. Check your Coverage • Check your professional liability insurance and its limitations before agreeing to donate your services. • Check the coverage provided by the organization that will be receiving your donated services. • Does either coverage include volunteer nursing services? • Is coverage adequate compared to the risk of potential damages and legal fees?

36. Teaching Ethics and Legal Issues in the Classroom • Highlight the necessity for students to educate themselves in this area and encourage students to actively participate in classroom discuss solutions. • Employ various teaching methods: • Hypothetical situations to initiate discussion • Use case studies to illustrate different scenarios • Use video clips to show real-life scenarios

37. Questions?

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