Case Law Werth vs. Taylor 475 N.W.2d 426, 427 (Mich. Ct. App. 1991) Cindy Werth was expecting twins. Because she was a Jehovah’s Witness and had a firm belief in the religion’s teaching “that it is a sin to receive blood transfusions”, Cindy signed a “Refusal to Permit Blood Transfusions” form as part of her hospital preregistration. After delivery, Cindy had complications and was experiencing uterine bleeding. She was advised to undergo a dilatation and curettage and agreed. Again, she discussed her refusal to allow a blood transfusion with her obstetrician/gynecologist (OB/Gyn). After being placed under anesthesia and despite the specialist’s efforts during surgery, Cindy continued to bleed and was experiencing, among other things, premature ventricular activity and a significant decrease in blood pressure. The anesthesiologist (Dr. Michael Taylor) determined that Cindy needed a blood transfusion to sustain her life. Cindy’s OB/Gyn expressed Cindy’s refusal of blood transfusions, but the anesthesiologist proceeded anyway stating that it was medically necessary. The Werth’s filed a malpractice suit, alleging that Dr. Taylor committed battery by performing the transfusion without Cindy’s consent. Dr. Taylor moved for a summary disposition “because Cindy’s refusal was not conscious, competent, contemporaneous and fully informed.” The trial court found that Cindy’s refusals of a transfusion were made when she contemplated “merely routine elective surgery” and not life-threatening circumstances, and that, “it could not be said that she made the decision to refuse a blood transfusion while in a competent state and while fully aware that death would result from such refusal.” The record apparently reflected “the unexpected development of a medical emergency requiring blood transfusion to prevent death or serious compromise of the patient’s wellbeing.” The trial court therefore granted summary disposition in favor of Dr. Taylor. NUR4827 Chapter 5 Page 1 of 1 Chapter 5 - Assignment Read the Case Law and answer the questions. Instructions: 1. Read the Case Law - Werth vs. Taylor 2. Then, answer the questions below. a. Did this case turn out the way you thought it would? Why or why not? b. How could Cindy have assured herself that she would not receive any blood no matter what happened? c. Would it have made any difference in the outcome of the case if the anesthesiologist had interviewed Cindy before the procedure and told her that her life could be in danger if she refused blood during both procedures? d. What kind of consent is it when there is an emergency situation and the physician/healthcare worker needs to act or the patient may lose their life? 3. Your paper should be: o o o One (1) page Typed according to APA style for margins, formatting and spacing standards Typed into a Microsoft Word document, save the file, and then upload the file Chapter 5 Legal and Legislative Issues Purpose of Law and Legislation • The primary purpose is to protect the patient and the nurse. • Laws and legislation define the scope of acceptable practice and protect individual rights. • Nurses who are aware of their rights and duties in legal matters are better able to protect themselves against liability or loss of professional licensure. Copyright © 2018 Wolters Kluwer · All Rights Reserved Sources of Law Copyright © 2018 Wolters Kluwer · All Rights Reserved Question Tell whether the following statement is true or false: Nurse practice acts are examples of statutes. A. True B. False Copyright © 2018 Wolters Kluwer · All Rights Reserved Answer A. True Rationale: The 51 Nurse Practice Acts representing the 50 states and the District of Columbia are examples of statutes. These Nurse Practice Acts define and limit the practice of nursing, thereby stating what constitutes authorized practice as well as what exceeds the scope of authority Copyright © 2018 Wolters Kluwer · All Rights Reserved Types of Laws and Courts Copyright © 2018 Wolters Kluwer · All Rights Reserved Question A nurse is charged with administering a fatal dose of morphine to a patient on hospice. In which type of court would this nurse be charged? A. Civil B. Criminal C. Administrative D. None of the above Copyright © 2018 Wolters Kluwer · All Rights Reserved Answer B. Criminal Rationale: Nurses found guilty of intentionally administering fatal doses of drugs to patients would be charged in a criminal court. In civil cases, one individual sues another for money to compensate for a perceived loss. In administrative cases, an individual is sued by a state or federal governmental agency assigned the responsibility of implementing governmental programs. Copyright © 2018 Wolters Kluwer · All Rights Reserved Legal Doctrines Guiding Courts in Decision Making • Stare decisis (let the decision stand): uses precedents as a decision-making guide • Res judicata (a thing or matter settled by judgment): applies only when a competent court has decided a legal dispute and when no further appeals are possible • Respondeat superior (the master is responsible for the acts of his servants): an employer should be held legally liable for the conduct of employees whose actions he or she has a right to direct or control Copyright © 2018 Wolters Kluwer · All Rights Reserved Two Types of Negligence • Ordinary negligence • Professional negligence (also called malpractice) Copyright © 2018 Wolters Kluwer · All Rights Reserved Nurses Are at Increased Legal Liability in the 21st Century Owing to the Following • They have more authority and independence in decision making. • They have increased legal accountability for decision making. • They are performing more actions that used to be in the realm of medical practice. • They are making more money. • More nurses are carrying malpractice insurance. Copyright © 2018 Wolters Kluwer · All Rights Reserved Question Which of the following accurately describes why nurses are at increased liability for malpractice suits? A. Their realm of responsibility has decreased. B. Fewer nurses have liability insurance. C. Nurses are making more money. D. Nurses currently have less independence in decision making. Copyright © 2018 Wolters Kluwer · All Rights Reserved Answer C. Nurses are making more money. Rationale: Higher salaries have corresponded to increased liability in the nursing profession. Copyright © 2018 Wolters Kluwer · All Rights Reserved Malpractice Insurance Dilemma Nurses need malpractice insurance because of their expanded roles, but they also incur a greater likelihood of being sued if they have malpractice insurance because injured parties will always seek damages from as many individuals with financial resources as possible. Copyright © 2018 Wolters Kluwer · All Rights Reserved Elements of Malpractice • Negligence: the omission to do something that a reasonable person, guided by the considerations that ordinarily regulate human affairs, would do—or as doing something that a reasonable and prudent person would not do • Malpractice: the failure of a person with professional training to act in a reasonable and prudent manner—also called professional negligence Copyright © 2018 Wolters Kluwer · All Rights Reserved Five Components Necessary for Professional Negligence to Occur • A standard of care is in place (minimal level of expertise delivered to a patient). • There is a failure to meet the standard of care (breach of duty). • Foreseeability of harm must exist (ignorance is not an excuse). • There must be a provable correlation between care and harm. • Actual patient injury must occur. Copyright © 2018 Wolters Kluwer · All Rights Reserved Being Sued for Malpractice • “Just following physician orders” is not a defense for malpractice. • Nurses have an independent responsibility to take appropriate steps to safeguard patients. Copyright © 2018 Wolters Kluwer · All Rights Reserved Question Tell whether the following statement is true or false: Following a physician’s order is a valid excuse in a malpractice case. A. True B. False Copyright © 2018 Wolters Kluwer · All Rights Reserved Answer B. False Rationale: Nurses have a responsibility to safeguard their patients, independent of physician’s orders. Copyright © 2018 Wolters Kluwer · All Rights Reserved Reducing the Risk of Malpractice Claims • Practice within the scope of the nurse practice act. • Observe agency policies and procedures. • Model practice after established standards by using evidence-based practice. • Always put patient’s rights and welfare first. • Be aware of relevant law and legal doctrines. • Practice within the area of individual competence and upgrade technical skills consistently. Copyright © 2018 Wolters Kluwer · All Rights Reserved Incident Reports (Adverse Event Forms) • Records of unusual or unexpected incidents that occur in the course of a client’s treatment • Generally considered confidential communications and cannot be subpoenaed by clients or used as evidence in their lawsuits in most states • A copy of an incident report should not be left in the chart, and no entry should be made in the patient’s record about the existence of an incident report. Copyright © 2018 Wolters Kluwer · All Rights Reserved Intentional Torts • Assault and battery • False imprisonment • Invasion of privacy • Defamation of character – Slander (spoken) – Libel (written) Copyright © 2018 Wolters Kluwer · All Rights Reserved Question Which is not an intentional tort? A. False imprisonment B. Defamation of character C. Invasion of privacy D. Negligence Copyright © 2018 Wolters Kluwer · All Rights Reserved Answer D. Negligence Rationale: An intentional tort requires that the act be committed with the awareness of the perpetrator. Copyright © 2018 Wolters Kluwer · All Rights Reserved Responsibilities of the Nurse-Manager • Reporting dangerous understaffing • Checking staff credentials and qualifications • Carrying out appropriate discipline Copyright © 2018 Wolters Kluwer · All Rights Reserved Guidelines for Informed Consent The person(s) giving consent must fully comprehend: 1. The procedure to be performed 2. The risks involved 3. Expected or desired outcomes 4. Expected complications or side effects that may occur as a result of treatment 5. Alternative treatments that are available Consent may be given by: 1. A competent adult 2. A legal guardian or individual holding durable power of attorney Copyright © 2018 Wolters Kluwer · All Rights Reserved Guidelines for Informed Consent—(cont.) 3. An emancipated or married minor 4. Mature minor (varies by state) 5. Parent of a minor child 6. Court order Copyright © 2018 Wolters Kluwer · All Rights Reserved Patient Medical Records • Patient owns the information, but the record belongs to the facility that made it and is storing it. • Patients must have reasonable access to the record. • Collaboration between health-care providers and patients, and documentation thereof, is a good indication of well-provided clinical care. Copyright © 2018 Wolters Kluwer · All Rights Reserved Patient Self-Determination Act (PSDA) • Required health-care organizations that received federal funding (Medicare and Medicaid) to provide education for staff and patients on issues concerning treatment and end-of-life issues – Includes the use of advance directives (ADs), written instructions regarding desired end-of-life care – Also likely includes durable power of attorney for health care (health-care proxy) Copyright © 2018 Wolters Kluwer · All Rights Reserved Good Samaritan Laws • Suggest that health-care providers are typically protected from potential liability if they volunteer their nursing skills away from the workplace (generally limited to emergencies), provided that actions taken are not grossly negligent and if the health-care worker does not exceed his or her training or scope of practice in performing the emergency services Copyright © 2018 Wolters Kluwer · All Rights Reserved Health Insurance Portability and Accountability Act of 1996 • Provides patient right to confidentiality • Essentially represents two areas for implementation – Administrative simplification plan – Privacy rules Copyright © 2018 Wolters Kluwer · All Rights Reserved Common Causes of Professional Nursing License Suspension or Revocation • Professional negligence • Practicing medicine or nursing without a license • Obtaining a nursing license by fraud or allowing others to use your license • Felony conviction for any offense substantially related to the function or duties of an RN • Participating professionally in criminal abortions • Not reporting substandard medical or nursing care • Providing patient care while under the influence of drugs or alcohol Copyright © 2018 Wolters Kluwer · All Rights Reserved Common Causes of Professional Nursing License Suspension or Revocation—(cont.) • Giving narcotic drugs without an order • Falsely holding oneself out to the public or to any healthcare practitioner as a “nurse practitioner” Copyright © 2018 Wolters Kluwer · All Rights Reserved • Please show Leadership Video Case: Breach of Confidentiality, available as part of Lippincott CoursePoint for Marquis and Huston: Leadership Roles and Management Functions in Nursing, 9th edition. • For more info, visit thePoint.lww.com/CPMarquis9e. Copyright © 2018 Wolters Kluwer · All Rights Reserved 
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