LEGAL ISSUES AND THE

SCHOOL NURSE

Nancy Roper Willson RN, JD, MSN, MAAttorney at Law

Types/Sources of Law

Statutory

TNPA

Administrative

BNE Rules

and Regulations

Common Law

Court Cases

Two Legal Pitfalls

Malpractice-Failing to do what a reasonable and prudent nurse would do in a particular circumstance [or “Doing what…etc”]

Peer Review-(Defined in NPA as variety of activities)-Evaluation of nursing services, qualifications of a nurse, quality of pt. Care rendered by a nurse, merits of a complaint re: a nurse/nursing care, determination or recommendation

PEER REVIEW

Texas Nursing Practice Act

Original Texas NPA passed 3-28-1909

Part of the Occupations Code

Chapter 301 TNPA (RN’s and LVN’s)

Chapter 302 LVN Act (Deleted)

Chapter 303 Peer Review

Mission of Licensing Board

Protect and promote the welfare of the citizens of the state

Composition of the BNE-2/1/04

Members appointed by the Governor with advice and consent of senate (13 Members)

1 APN; 2 RNs; 3 LVNs; 1Nurse Faculty LVN Program; 1 NF ADN; 1 NF BSN; 4 Public Members

Executive Director- Katherine ThomasStaff

Peer Review

Enacted in 1987 as part of the Professional Nursing Quality Assurance Act

Organizations with

10 or more RNs

required to have

peer review procedure

Peer Review

Mandatory reporting

in Texas

Decision Tree

Did the Nurse violate the NPA?

If yes, was it a Minor Incident?

[Do not need to report]…..OR

If yes, was it a systems error?

[Variable results for the Nurse]

2003-217.19 (7); 301.457; 303.011

Peer Review, Cont’d

Confidentiality of process

Anonymous reporting

Immunity from liability (retaliation by the reported nurse) if in good faith

Rule 217.11Allegations based on this Rule

Standards of Conduct for LVN/RN/APN

Lists examples of conduct required in ANY practice setting, such as legal knowledge, documentation, delegation, accepting assignments, etc.

Minor Incident Rule 217.16

Revised May 2006-Need not be reported unless 5/year [was 3/year]4 criteria=NOT minor-1) significant risk of

harm; 2)lacks conscientious approach or accountability; 3)lacks easily remediated knowledge & competencies; 4) pattern of multiple minor incidents

217.16 Continued

Informal Review of minor incidents can be by workgroup of the PRC

Consider: 1] Incident result of factors beyond nurse’s control? 2] Med Error result of failure of clinical judgment or extraneous factors?

Never Minor:1] death/serious harm; 2]criminal conduct (310.4535); 3] serious viol. Unprof. Conduct Rule (fraud, theft, pt. abuse)

2007 Texas Legislative Session

2 Bills sponsored by TNA that will affect TNPA:

1. HB 2158 [SB 993]

2. HB 1362 [SB]

HB 2158 [SB 993]

Cultures of Safety: Report to BNE if:(A)  violates this chapter or a board rule and contributed to the

death or serious injury of a patient;                   (B)  causes a person to suspect that the nurse's practice is

impaired by chemical dependency or drug or alcohol abuse;                  

(C)  constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or                   

(D)  indicates that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior

HB 2158 [SB 993]

Patient Safety Committee will report findings to the Nursing Peer Review Committee, if deficiency in care was due to a factor beyond the nurse’s control [ or will receive a report from the BNE]

HB 2158 [SB 993]

PSC and PRC will share info if established by same entity

Communication from PSC will not be subject to discovery

HB 1362 [SB 761]

Patient Advocacy Bill:

Consolidates and restates in a clearer manner the patient advocacy and whistleblower protections provided nurses when raising patient concerns

HB 1362 [SB 761]

Changes include increasing damages nurse may receive from $1,000 to $5,000.

Re-affirms that a nurse may refuse assignment she/he believes to be in violation of a BNE Rule [or TNPA]

Minimum Due ProcessRule 217.19 Incident Based PR

Should follow requirements for minimum due process

Written Notice

Time Frame/Limitations

Confidentiality

Opportunity to View Records

Hearing/Parity of Representation

Report to the BNE is Advisory

Malpractice vs Peer Review

Malpractice-Actual injury, Money for compensation, Courts-judges & juries,Statute of limitationsPeer Review-Pt. exposed to unnecessary risk of harm, License restrictions, PRCs and the BNE, No Statute of Limitations

Typical Investigation Process

Complaint is received by BNE through one of several meansBNE conducts preliminary investigationBNE notifies RN that complaint has been

filed, nature of complaint, and invites RN to show compliance

Typical Investigation Process

If RN/LVN has not already done so, advisable to hire an attorney

Typical Investigation Process

Informal conference is held at the BNE to attempt to resolve (settle) the matter

If an agreement is reached, an Agreed Order will be drafted by the

BNE enforcement

staff for signature of the

RN/LVN and RN’s/LVN’s attorney

Typical Investigation Process

The Order is then presented to the full Board for ratification and becomes effective on the day of ratification

The RN/LVN then functions under the stipulations in the

Order for the time designated

Typical Investigation Process

The fact of the discipline remains on the RN’s or LVN’s record and is public information

Typical Investigation Process

If an agreement cannot be reached at the informal level and the BNE has probable cause to believe the RN/LVN violated the NPA or R&Rs, Board will commence formal proceedings by filing formal charges (this is public information)

Typical Investigation Process

The Board will set the matter for formal hearing before an Administrative Law Judge at the State Office of Administrative Hearings

Typical Investigation Process

Board has the burden of proof that RN/LVN violated NPA, R&R, BNE Order

ALJ renders a decision which Board accepts or rejects

If the nurse does not agree with the decision of the ALJ/BNE, then he/she can file a case in State Court (very few do this)

Categories of Discipline

Remedial Education

Warning

Reprimand

Suspension

Revocation

Can Surrender at any time

Types of Stipulations

Nursing Jurisprudence Course

Other Courses (Med, Physical Assess.)

Indirect or Direct Supervision

Practice Site Restrictions

Employer Notification

Employer Reports

Discipline and Multi-state Licensure

Multi-state privileges are usually suspended during the time period of the disciplinary order

Home State Disciplines

National Data Bank

The names of all disciplined nurses are sent to the National Practitioner’s

Data Bank and the

information is

available to all

nursing licensing boards

NURSING NEGLIGENCE

INCREASING LIABILITY FOR NURSES

Expanding Role of Nurses in Health Care

Demands Placed on Nurses by Technology

Changes in Malpractice Laws

Health Systems Failures

DEFINITION

Negligence in a malpractice context could be defined as : Failing to do what a reasonable and prudent nurse would do in a particular circumstance, or doing something that a reasonable and prudent nurse would not do

ELEMENTS OF A MALPRACTICE CLAIM

First Element: The Nurse owes a duty to

the patient (Lunsford case)

Second Element: The Nurse breached the

duty/Failed to conform to

the Standard of Care

ELEMENTS, CONTINUED

Third Element: The Patient suffered an actual injury

Fourth Element: There was a causal connection between the Nurse’s conduct and the injury

STANDARDS OF CARE

For a judge or jury to determine whether the care that was given was legally adequate, the standards of care of a profession are utilized. Standards of care are established through the state’s NPA, a facility’s policies and procedures and the ANA’s Standards of Practice

FIVE MOST FREQUENT ALLEGATIONS

1. Failure to ensure patient safety

2. Improper treatment or improper

performance of treatment

3. Failure to monitor and report

4. Medication errors

5. Failure to follow facility’s policy and

procedure

THREE WAYS NURSES PARTICIPATE IN

MALPRACTICE CASES

• 1. Fact Witness

• 2. Expert Witness

• 3. Defendant

THREE WAYS NURSES PARTICIPATE IN

MALPRACTICE CASES

1. Fact Witness

2. Expert Witness

3. Defendant

Most Frequent NP Allegations

Practicing Beyond Scope

Failure to Diagnose Properly

Negligent Treatment

Riskiest Area of NP & RN Practice

OB/GYN

Protections

Know the Texas Nursing Practice Act, BNE’s Rules and Regs. and specific laws

Professional Competency

Documentation

Professional Liability Insurance (Lawyer, Damages, Bond for Appeal)

Knowledge of Safe Harbor Protections

Knowledge of Delegation Rule 224/225

Protections

Professional Competency

Documentation

Documentation is the single most important action you can take to safe guard patient care and to provide yourself with with a good defense against a malpractice claim and license investigation

Protections

Professional Liability Insurance

Professional Liability Insurance

John Doe, Plaintiff

vs

Medical Center and

Nurse A, Nurse B, Nurse C, and

Doctor 1, Doctor 2, Doctor 3

TYPES OF INSURANCE

• Occurrence Based

• vs.

• Claims made

Important to Remember

Many Professional Liability Policies will re-imburse the nurse for attorney’s fees and personal expenses for defense before the licensing board up to a specified amount.

(Be sure to check the policy)

Protections

Safe Harbor

Protections

Delegation

•

School Nurses Dilemma

Education Code

Vs

Texas Nursing Practice Act

School Nursing and Specific Issues

Delegation

Preserving Confidentiality

Parental Refusal to Follow-up

DELEGATION

RULE 224 and RULE 225

Rule 224

Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments

Rule 225

Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel and Tasks not Requiring Delegation in Independent

Living Environments for

Clients with Stable and

Predictable Conditions

Delegation Defined

Authorizing another person

to act as one’s representative

Authorizing an unlicensed

assistive person (UAP) to

provide nursing services while

RN retains accountability for the outcome

Definition, Cont.

Decision to delegate belongs to the RN-

Cannot be forced by facility policy or job description

Made after careful analysis

RN’s do not delegate to LVN’s

RN’s make assignments to LVN’s

(217.11[S])

LVN’s do not have delegatory authority

Additional Points to Remember

If RN addresses and proves criteria met, then accountability met

Does not apply to civil liability (ex. Malpractice) – i.e. properly following this Rule is not a defense for a malpractice claim

General Criteria 224.6

Applies to all situationsDirects RN through decision making process Criteria include:1)assess client’s nursing

care needs; 2)within scope of sound professional nursing judgment;3) UAP can safely perform without jeopardizing; 4)task does not require nursing judgment or intervention

Criteria, Cont.

UAP identified -individually or by type/ classification

Personally instruct UAP or verify competency

Adequate supervision

Periodically evaluate delegation

Supervision 224.7

Level of supervision depends on condition of client, competency of UAP, nature of task and availability of RN to UAP

Delegating RN or equally qualified RN must be available to UAP directly or by telecommunication

RN must be readily available with clients with changing conditions

Rule 225 Definitions

Activities of Daily Living (ADL’s)

Health Maintenance Tasks (HMA’s)

Nursing Tasks

225 Gatekeeping Criteria

Independent Living Environment

Client/CRA willing/able to participate in decisions

Task related to stable and predictable health care condition

225.(b) RN Assessment of Client

6 Criteria:

#1-Ability of Client or client’s CRA to participate

6 Criteria

#2-Adequacy and reliability of Support Systems

6 Criteria

#3-Degree of stability and predictability

6 Criteria

#4-Knowledge Base re: Client’s health status (Client or CRA if Client under 16 yo or incompetent)

6 Criteria

#5-Ability to communicate to UAP

6 Criteria

#6-Frequency of Reassessment

ADL’S Not Requiring Delegation

Limited to tasks in def’n

Not require RN delegation when task is related to functional disability

Task can be performed by any UAP w/o RN supervision

HMA’S Not Requiring Delegation

Limited to tasks in def’n

More complicated or invasive than ADL’S

Require additional assessment criteria

HMA Supervision

Client would perform but for functional disability

HMA can be directed by C or CRA w/o RN supervision

C or CRA has agreed in writing to direct UAP

HMA Supervision, Continued

C willing/able to train UAP; OR

CRA trains UAP and is present when task is performed; or

Observes UAP performance of task X1, then is available (by phone, etc)

Medication Administration

Assistance w/ medication administration

Emphasis on “functional disability”

Routine O2

Insulin:SQ, Nasal, Pump

Use of pill box

Texas School Health Guidelines

Medication Administration

In School

Off School Grounds

Herbal/Dietary

Emergency

Psychotropic

Diabetes

Oxygen

School Nursing

Delegation

Preserving Confidentiality

Parental Refusal to Follow-up

•

School Nursing

Delegation

Preserving Confidentiality

Parental Refusal to Follow-up

Parental Refusal to Follow Up or other parental issue

Advocate, Advocate, Advocate

Parental Refusal to Follow Up or other parental issue

Document, Document, Document

Board of Nurse Examiners

Rule 217.11 (D) accurately and completely report and document: i) client status; ii) nursing care; iii) orders; iv) admin. of meds and treatments; v) client

responses; and vi) contact w/ other HC team re: significant events of client status

Board of Nurse Examiners 217.11, continued

Participate in client education

Orientation competency

Notify supervisor

Mandatory reporting

Make referrals/consults

Continuing competence

Supervise care

Purposes of the Medical Record

Provides a complete and accurate documentary of the care and treatment that a patient receives

Purposes

Serves as a means of communication between all members of the health care team

Purposes

May serve as evidence in a legal proceeding

Documentation Maxims

All entries should be complete, accurate and timely

Maxim

Chart what you see, feel, smell, etc.

Do not chart personal opinions

Maxims

Do not use vague or immeasurable phrases

Maxims

Do not criticize other

staff

Maxims

Do not chart in the patient record re: “Incident Report”/ “Safe Harbor”

Maxims

Use only accurate terms and accepted abbreviations

Maxims

If your charting is incomplete, sloppy and inaccurate, a jury may decide your nursing care was the same

Maxim

Never falsify a record

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