In every nurse's career, he or she will face with legal and ethical dilemmas. One of the professional competencies for nursing states that nurses should "integrate knowledge of ethical and legal aspects of health care and professional values into nursing practice". It is important to know what types of dilemmas nurses may face
during their careers and how they have been successfully dealt with in the past. It
is also important for nurses to understand what malpractice is and how they
may protect themselves from a malpractice lawsuit.
LAW VS. ETHICS
It is important to first understand the difference between law and ethics. Ethics examines the values and actions of people. Often times there is no one right course of action when one is faced with an ethical dilemma. On the other hand, laws
are binding rules of conduct. When laws are broken, it is punishable by an
There are four types of situations that pertain to law vs. ethics. The first would be an action that is both legal and ethical. An example of this would be a nurse carrying out appropriate doctor's orders as ordered. A nurse may also be faced with an action that may be ethical but not legal, such as allowing a cancer patient to smoke marijuana for medicinal purposes. The opposite may arise where an action may be legal but not ethical. Finally, an action may be neither legal or ethical. For example, when a nurse makes a medication error and does not report it.
have many ethical duties to their clients. The main ethical duties are: nonmaleficence,
beneficence, fidelity, veracity, and justice.
The duty of nonmaleficence
is the duty to do no harm
. The nurse first needs to ask him or herself what
harm is. When a nurse gives an injection she is causing the patient pain but
she is also preventing additional harm such as disease development or prolonged
pain. Therefore, the nurse must ask herself a second question about how much
harm should be tolerated.
The duty of beneficence is to do good. In a sense,
it is at the opposite end of nonmaleficence or at the positive end of the nonmaleficence > beneficence continuum.
The duty of fidelity means to be faithful, or to
keep to your promises. Therefore, if a nurse tells his patient that he will
be back with her pain medication within fifteen minutes then he has an ethical
duty to follow through with what he has said.
Truth telling or, information
disclosure, is the principle behind the duty of veracity. The main argument
against information disclosure is that the disclosure of bad news may shatter
the patient's hope. Those in favor of information disclosure state that it
is part of the patient's rights to know what is happening and that patients
with potentially fatal illnesses are capable of handling the truth.
Their are three types of justice: distributive justice, compensatory justice, and procedural justice. Distributive justice concerns the comparative treatment
of individuals in the allotment of benefits and burdens (Purtilo, 1993). An
example in which a question of distributive justice may arise is when there
is a limited amount of federal grants and research money is needed for AIDS,
cancer, and many other deserving medical research projects. Compensatory justice
deals with the compensation for wrongs that have been done (Purtilo, 1993).
An example of this would be a jury awarding a victim money based on pain and
suffering from medical malpractice.
Finally, procedural justice deals with
ordering something in a "fair" manner (Purtilo, 1993). An example would be
the process in which people are eligible to receive organ transplants, the
sickest patients are at the top of the list.
three ethical rights that are relevant to health care. These rights are: the
right to life, autonomy, and health care.
Most people think of antiabortion
activists when they hear the phrase "right to life". However, this right goes
far beyond the boundaries of abortion. The idea of right to life has come
from both religious and philosophical backgrounds. Many hot topics in ethics
relate to the right to life. These topics include euthanasia and the discontinuation
of life support treatments.
The right to autonomy is also referred to as
the right of self-determination.
This right allows for the patient to make
their own decisions, such as: determining what course of treatment he may take
for a disease, refusing treatment, or refusing medications.
The right to
health care requires that a society shall provide the funding, personnel, and
facilities necessary to ensure that individuals have access to necessary health
care. Health care for everyone alsorelates to distributive justice. The question
being asked today is shall we take what health care resources we have and spread
it very thin but so that everyone has equal access of care, or shall we take
what resources we have any distribute them in such a way that we will do the
most good to for the overall population?
Code of Ethics
In 1985, the ANA established a Code of Ethics for nurses that
contains eleven points. Each of the eleven points is a general principle rather
than specific guidelines. For instance, a nurse faced with an ethical dilemma
involving resuscitation will find no mention of resuscitation in the Code of
Ethics. The ANA has stated that the Code of Ethics is not open to negotiation,
they are also currently in the process of updating the Code of Ethics. In
this section, each of the eleven points will be stated and discussed.
"The nurse provides services with respect for human dignity and the uniqueness
of the client unrestricted by considerations of social or economical status,
personal attributes, or the nature of the health problem." According to this
statement, a nurse can not refuse to care for someone because they may be homosexual,
black, have AIDS, had an abortion, etc. If the nurse has strong ethical views
of her own, she may ask for a reassignment. However, if the supervisor refuses
to reassign or a reassignment is not possible, the nurse can not refuse care
to that patient and must give the same standard of care to that patient as
she would any other patient.
(2) "The nurse safeguards the client's right
to privacy by judiciously protecting information of a confidential nature."
This statement talks about the importance of confidentiality and privacy.
The underlying ethical principles are autonomy and fidelity. The patient
has a right to maintain control over his personal information.
Fidelity deals with being faithful to one's agreements,
i.e. just by being a nurse the nurse has agreed to abide by the ANA Code of
Ethics and therefore has a duty to not sway from it. In the next section is
a real life case study about how a nurse with a special interest in ethics
dealt with an ethical dilemma about HIV and confidentiality in a prominent
Philadelphia hospital. "The nurse's ethical belief in the patient's right
to maintain autonomy must outweigh the temptation to gossip" (Nurses Legal Handbook, 2004).
(3) "The nurse must safeguard the client and public
when health care and safety are affected by the incompetent, unethical, or
illegal practice of any person." Under this ethical statement a nurse has
the duty to report cases of child abuse, domestic abuse, or any act of negligence
or incompetence by another health care worker. Often times, it is hard for
a nurse to determine whether or not "whistle blowing" on a colleague is warranted.
There is a systematic approach (Nurses Legal Handbook, 2004) to
help determine whether or not to report on a colleague, and if so, how to do
so in an ethical manner. The nurse should begin by gathering all the facts.
Document why you feel that whistle blowing may be warranted and the incidents
in which they occurred. Avoid making any statements that may be considered
personal. Next, state the problem. Again, avoid making any personal statements
and consider any possible causative factors. It may help to enlist the help
of a trusted colleague to review th
e problem with. Thirdly, identify your
objectives. In other words, your purposes for wanting to confront the problem.
If you feel that whistle blowing is warranted proceed to the last step which
is to confront the problem. When confronting the problem, be direct but non-threatening.
"The nurse assumes accountability and responsibility for individual nursing
judgments and actions." If a nurse makes a medication error, not only does
he have a legal obligation to report that error, but according to the above
statement, he has an ethical obligation as well.
(5) "The nurse maintains
competence in nursing." This statement can be applied to many different things.
For example, if you as a nurse are unsure about doing a procedure, asks someone
who is more familiar with the procedure to guide you through it. Also, a nurse
has the ethical obligation to never stop learning. The field of nursing keeps
developing with the technology. Therefore, each nurse shall continue his or
her education by attending in services, seminars, or earning "X" amount of
continuing education points per year.
(6) "The nurse exercises informed judgment
and uses individual competence and qualification as criteria in seeking consultation,
accepting responsibilities, and delegating nursing activities to others."
In a nutshell, a nurse needs to know his scope of practice within the state
in which he works. Nurses can not handle all situations and they need to understand
when it is appropriate to consult with a psychiatrist, social worker, or a
physician about a patient's condition. On the opposite ends a nurse needs
to understand which tasks she can delegate and to whom. For instance, in NYS,
an RN would not delegate the responsibility of assessing a patient to an LPN
because RNs are the only ones that may legally make an initial assessment.
"The nurse participates in activities that contribute to the ongoing development
of the profession's body of knowledge." When some people first read this statement,
they may think that it is in regards to being involved in professional organizations.
I too first thought this but upon further thought, I believe that this statement
refers to being involved in nursing research. The most obvious way to be involved
is to conduct your own nursing research. However, for many nurses, this may
not seem feasible. There are other ways to be involved with nursing research
besides actively conducting it. Nurses can greatly contribute to the profession's
knowledge by reading nursing journals and implementing the findings or interventions
that are shown to be positive to the patient or the profession.
nurse participates in the profession's efforts to implement and improve standards
of nursing." It is under this statement where being involved in professional
organizations, such as the ANA and NYSNA, comes in. Another way to participate
in improving nursing as a profession is to become politically involved. A
nurse can become politically involved by attending town or state meetings and
voicing their concerns, lobbying for bills at both the state and federal level,
and by writing to their state and federal congressmen about issues that concern
them and bills that are up for vote. A nurse can find out about political
issues by being attuned to the world around them, being active in their state
nursing association, and even by contacting the ANA itself. On their web page,
the ANA has a section called "Capitol Watch" which discusses current issues
of importance and how to contact your government representatives.
nurse participates in the profession's efforts to establish and maintain conditions
of employment conducive to high quality nursing care." Nurse's have an ethical
obligation to keep their work places safe, not only for the patients, but for
themselves so that they will have the staffing and equipment to perform quality
(10) "The nurse participates in the profession's efforts to
protect the public from misinformation and misrepresentation and to maintain
the integrity of nursing." This statement speaks of the importance of patient
education. Teaching is a very big part of a nurses role. Patient advocacy
would fit under this statement as well as informed consent.
In a study done by Deborah Taplin (Hunt, 1997), twenty-three males that had undergone a TURP and eighteen females that had undergone a D&C were interviewed about
how much information they knew about their procedure from the informed consent.
Deborah found the following results: (1) 56% of the men did not know exactly
what the operation was. (2) 21% of the men thought that their prostate was
removed. (3) The women responded vaguely about the D&C and hysteroscopy procedures.
(4) 15% of all those interviewed did not know what a consent form was for.
(5) 61% of the men and 66% of the women stated that there were no other treatment
options. (6) 56% of the men and 39% of the woman stated that there were no
risks involved in the procedure. (7) None of the subjects mentioned the major
risks of the treatments and only two subjects mentioned anesthetic risks.
(8) Only 17% of the men and 61% of the women actually read the consent form.
study concludes that nurses can not assume that a patient has fully consented
to a procedure just because the consent form is signed. As the patients' advocates,
nurses should take the initiative to go over the consent form with their patients
even after it is signed. Many patients feel more comfortable asking questions
to a nurse than a physician.
(11) "The nurse collaborates with members of
the health profession and other citizens in promoting community and national
efforts to meet the health needs of the public."
A REAL LIFE ETHICAL DILEMMA
Johnson RN, MS is a nurse in a substance abuse center at a prominent Philadelphia
hospital. Sally has been active with her hospital's ethical committee for
the past four years. Sally shared with me an ethical dilemma that she faced
that stands out in her mind. It happened a number of years ago at a independent
substance abuse treatment center before her involvement with the ethical committee
at the hospital in which she now works. Here is her experience in her own
"Only once did I take a very direct (and in PA illegal) controversial
course of action. In this case, the patient was an active prostitute
to IV heroin. She already conceived and delivered three
HIV infected babies
and had no compunction to stop any of her
behavior. In fact, she would tell
me, 'I plan to take as many of those
SOBs with me as I can... I'm spreading
the wealth to as many people
as possible and as often as possible!' I did
an anonymous disclosure
to the appropriate division of our local public health
department. I slept
better that night for doing so."
Sally also discussed
hospital ethics committees with me. There are many functions of an ethics
committee. These functions include: policy development, education, case consultation,
addressing a single issue and addressing issues pertinent to a specific population.
Sally's committee is devised of 1/3 physicians. 1/3 nurses, and 1/3 clergy,
social workers, or other health professionals. Because nurses work so closely
with patients, they are often the first to identify a potential ethical dilemma.
Ethical committees allow these nurses to voice their concerns and share with
the other people of the committee potential ethical dilemmas in the hospital.
LIABILITY AND LAWSUIT CAUSES
Before 1932, nurses were expected to follow
every doctors' orders without question. In Byrd v. Marion General Hospital
(1932), the North Carolina Supreme Court ruled that nurses should follow doctors'
orders unless they were obviously negligent, in which case, a nurse can be
found liable (Nurses Legal Handbook, 2004). After World War Two,
nursing education and licensure requirements increased and tasks became more
complex. This allowed nurses greater autonomy but also increased the risk
of them being held liable for mistakes.
The two major reasons for lawsuits
against nurses are medication errors and falls (Nurses Legal Handbook, 2004). Other common reasons include: operating room errors (i.e. problems
with a sponge count), mix-ups during patient transfers, communication breakdown
between nurses and physicians, and inadequate observation of a patient.
AVOIDING MALPRACTICE LIABILITY
According to the article, "Better Care is the Best Defense", there are twelve steps to avoiding malpractice liability. These steps are listed below.
1. Know your strengths and weaknesses
3. Delegate carefully
4. Carry out orders cautiously
Administer medications carefully
6. Maintain a rapport with the patient
Watch what you say
8. Read before you sign
9. Document carefully and accurately
Exercise caution when assisting with procedures
11. Follow hospital policies
12. Keep policies and procedures up to date
If a nurse is sued for malpractice, there are two common defenses
that he or she can use: respondeat superior and borrowed servant (Nurses Legal Handbook, 2004).
Respondeat superior is Latin for "let the master
answer", it is also known as the "Theory of Vicarious Liability." This theory
states that if a nurse is found negligent doing something under her supervisor's
direction, then that nurse should not have to bear the brunt of the damages.
This theory can be used as a defense for all occupations, not just health
The borrowed servant theory is also known as the "Captain of the Ship"
doctrine. This defense is still used but less often than in the past. This
defense may be used when a nurse commits a negligent act under the direct supervision
of someone else (i.e. assisting in a procedure at the emergency department).
Resipsa loquitur allows for the plaintiff to prove negligence with circumstantial evidence. This is useful when the defendant may be the only one who has knowledge
about the patient's injury. It is Latin for, "The thing speaks for itself".
Normally in court, the plaintiff has the responsibility to prove to the court
that the defendant was negligent. When res ipsa loquitur is applied, the responsibility
shifts to the defendant and he or she must prove that the injury was caused
by some other reason than his or her negligence. One of the most common cases
where res ipsa loquitur is applied is in cases where a foreign object (i.e.
sponge) was left in the body after surgery.
Facing legal and ethical
issues during one's nursing career may be as common as taking vital signs.
Often times, there's not just one right course of action to take. The ANA
Code of Ethics are guidelines to help a nurse determine which course of action
to take. Many times, an ethical decision may be made that holds to one of
the guidelines but may infringe on another or the action may be ethical but
not legal (or vice versa).
"Nurses Legal Handbook" Springhouse, PA: Springhouse Corporation. 2004.
Hunt G. Moral Crisis, Professionals and Ethical Education. Nursing Ethics. 1997;4:29–38
Sulmacy & Weinberger. “Better Care is the Best Defense: High-value Clinical Practice vs. Defensive Medicine.” Cleveland Journal of Medicine (2014): 464-467. Web. 9 Apr. 2015.
Purtilo, R. Ethical Dimensions in the Health Professions, 5e Saunders, 2010.
Catalano, J.T. Contemporary professional nursing. Philadelphia: F.A. Davis Company. 1996.
Packer-Tursman, Judy. "The Defensive Medicine Balancing Act." Medical Economics 92.1 (2015): 43-48. Business Source Premier. Web. 9 Apr. 2015.
Pesto, Marilyn. “Historical Perspective on American Malpractice Litigation.” 2014.