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01.05 Legal & Ethical Issues in ER

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Overview

The ED is a breeding ground for lawsuits. It is imperative we know the legality of our practice and conduct ourselves with the highest ethical standards.

Nursing Points

General

  1. Legal Issues
    1. Unlicensed Assistive Personnel
    2. HIPAA
    3. Consent
    4. Reportable Conditions
    5. Documentation
    6. Restraints
    7. Advance Directives
    8. Forensics
    9. Violence and workplace safety
  2. Ethical Issues
    1. Code of Ethics
    2. Advance Directives
      1. DNR
    3. Informed consent or refusal
    4. AMA & LWOT
    5. Minors
    6. Triage

Assessment

  1. Legal Issues
    1. Unlicensed Assistive Personnel
      1. Delegation
      2. Task vs assessment
    2. HIPAA
      1. Still applies in the ER!
        1. See lesson on HIPAA in Fundamentals course
    3. Consent
      1. Implied
      2. Express
      3. Informed
      4. Involuntary
    4. Reportable Conditions
      1. State specific
        1. Falls
        2. Medication Errors
        3. Abuse (Child or elder)
        4. Failure to inform
    5. Documentation
      1. If it wasnt documented, it wasnt done!
      2. Legal document
      3. Joint Comission requirements
      4. Unapproved abbreviations
    6. Restraints
      1. Duty to restrain
      2. False imprisonment
      3. Continuous assessments
    7. Advance Directives
      1. Living will
      2. Power of Attourney
      3. DNR
    8. Forensics
      1. Evidence collection
        1. Criminal
        2. Sexual Assault
        3. ME Cases
        4. Trauma
        5. Unexpected or unexplained death
    9. Violence and workplace safety
  2. Ethical Issues
    1. Code of Ethics
      1. Developed by the ANA in 1950
      2. Updated in 2001
      3. ENA Provisions for ED Nurses
    2. Advance Directives
      1. Power of attourney
      2. Living will
      3. DNR
        1. Documentation – Act until proven otherwise
    3. Informed consent or refusal
      1. Do they understand…
        1. What we are going to do
        2. How we are going to do it
        3. What it is going to do to them
    4. AMA & LWOT
      1. Competency
      2. Do they understand the risks?
      3. Can they repeat their understanding of the consequences?
    5. Minors
      1. Childs best interest
      2. CPS intervention
    6. Triage
      1. Who gets seen first?
      2. Who gets the last ICU bed
      3. Mass Cas

Nursing Concepts

  1. Communication
  2. Ethical and Legal Practice
  3. Professionalism

Patient Education

  1. Golden rule
  2. Ethics vs Legality

Reference Links

Video Transcript

Hello everyone and welcome to today’s lesson on legal and ethical issue in the Emergency Department.

It’s no surprise that we live in a very lawsuit happy society. The emergency department is no different, We have to know the law and how it pertains to us and we need to practice to the highest ethical standards to protect ourselves and our patients. 

Let’s talk about some legal issues and we are going to start with unlicensed assistive personnel. These are our nurses aides, PCA’s, SCA’s we all have different terms for these amazing individuals who really make our lives easier. The thing we have to remember is that there functions are limited. We can absolutely delegate tasks like getting vital signs, or doing a bed bath or drawing blood, but we have to be careful with the line of task vs assessment. These individuals can not assess, plan, or evaluate. That is our job. This may have some nuances from state to state so always check with your facility. 

We all know about HIPAA and if you need a refresher, there is some great info on HIPAA here on NRSNG.com.

When it comes to consent, we have four types that pertain to us. 

Implied consent applies when the patient cannot give verbal consent themselves. Basically, we can assume that the patient would give consent for life saving treatment if they could. For instance, i think we can all assume that the multiple gunshot victim would want us to stop his bleeding from every hole if were actually awake. What would a reasonable person do in this situation.

Express consent is either a written or verbal agreement to treatment. Things like evaluations, labs, medications, radiology, all fall under express.

Informed consent is given when the patient fully understands what we are going to do to them. Surgeries, invasive procedures, research studies all fall under informed. 

Involuntary consent is when the person refuses to consent to necessary treatment. Demented, delusional, or suicidal patients fall into this category.

There are mandatory reporting laws in every state and some of them can vary from state to state. Some of the common reportable conditions are falls, med errors, child or elder abuse, and failure to inform which is basically not telling a patient what is wrong, or what would happen if there current situation isn’t treated. 

We all know how important documentation is. If it wasn’t documented it wasn’t done is the norm. And you have to remember that the medical record, whether on paper or electronic, is a legal document. Whatever you write can be used in a court of law. You have the right to write the right thing! (say that 5 times fast). Medical records also have some requirements from JCAHO that are specific for what we need to write in the record. You can check with your employer what they are but they include things like an initial assessment, interventions, observations, use of translators and a number of other things. I would also encourage all of you to learn what are acceptable and unacceptable abbreviations. You can usually google this and find long lists. You can’t just make up an abbreviation because everyone reading your document needs to know what it is. My personal favorite unapproved abbreviation was used by several orthopedic residents i worked with. They loved using the abbreviation FOOSH when describing how a patient with an arm fracture injured themselves. It took a little digging through the records to realize that FOOSH stands for “Fell On OutStretched Hand”. Very clever (and i kind of like it) but not an approved abbreviation.

Im not going to get into restraints too much because there is a great lesson here on NRSNG in our  Fundamentals unit but you need know that the safety of the patient is the most important part of restraints, followed very closely by the documentation around the restraint.

There is also a great lesson on Advance directives in Fundamentals but i will say this. Just because someone states there is an advance directive is not enough, you need to see it in writing. What we are seeing more and more in new york is this pretty pink form called the MOLST which stands for Medical Orders for Life Saving Treatment and it is just that. It is standing orders that can transfer from facility to facility and is recognized by any healthcare professional who cares for the patient.

When it comes to forensics, we have to be very careful. Criminal acts, saexual assault, unexplained deaths may all require some evidence collection. Know the policy of evidence collection in your facility and make sure you maintain the chain of custody of anything taken as evidence. When it comes to sexual assault, find out if your facility has any SANE nurses or sexual assault nurse examiners who can perform a rape kit. If not, you need to know if those exams will be done in your department or transfered to a SANE center.

Violence and workplace safety go hand in hand. Any type of violence against us or our patients is unacceptable and probably illegal. In fact, in NY, they have made it a felony to assault a nurse. I know that many of us have been hit or struck by a patient and many times we shrug it off as part of the job. Hell, I have been slapped, punched, kicked, hit with urinal, and choked with my own badge lanyard (don’t wear that anymore). Now i get that im a large male so perhaps i am a target but that does not forgive the acts. Drunks, demented patients, angry family members, i know we try to empathize with them and forgive the violence, but the fact is if we let it go too much, it becomes accepted and that is never a good thing., I’m not going to tell you what to dom but a nurse should never EVER be hit at work for any reason.

So we talked about the legal side, now lets go over some ethical issues. Many of these work together, and some work at odds. A perfect example of an ethical conundrum comes up with advance directives. Have you ever been in a room when a patient codes, and the family member says the patient is a DNR. They are crying and yelling as we start to perform all our lifesaving measures. We know the family member is right, and we know the patient is suffering. Ethically we might think we should stop. Spare the patient any continued suffering and you may be right, but the fact is that unless we have that signed paper in hand, we have to act to the law. Our feelings and our ethics may have to be put aside in this situation. If we truly believe our ethical beliefs are right, many institutions have an ethics review board and some have a judge on speed dial to address the legality vs the ethical responsibility. But until you hear otherwise, you need to act to the law.

We talked about consent. When it comes to informed consent of refusal, we need to make sure they understand. They need to be able to comprehend what we’re going to do, how were going to do it and what its going to do to them. If not, we can’t assume this is informed consent.

We run into a similar issue with those that leave against medical advice or leave without treatment. Are these patients competent to make these decisions. If we have explained the risks of leaving, do they truly understand and can they tell us what will happen if they leave? If they get it…if they truly want to leave even though it might kill them, even though we know they absolutely should not leave before we can care for them, even if we believe it would be the stupidest thing ever for them to leave, if they truly understand the risks…we can not hold them against their will. Stupidity is not a justification for holding someone against their will.

When it comes to minors, they can not advocate for themselves and sometimes we need to advocate for them. Again, the concept of what a reasonable person would do comes into play. If a kid has the flu and mom wants to take him out of the department before being treated, well there is not much we can do. If we suspect a child is being abused at home and mom is trying to take the kid out of the department, we have the right and obligation to step in. We can involve the police or security to separate the child for protection and we can get child protective services involved. Be very careful here guys. We always want to protect a child but if we are going to make an accusation we need to be pretty sure before pulling that trigger. The last thing we want to do is accuse a parent of abuse before learning that they compete in martial arts and their bruises are from training. There is a fine line between being protective and being overzealous.

We talk about ethics in triage but the fact is that a good triage nurse follows the medicine. What type of a person a patient is shouldn’t play into their care. If a person is bleeding out of there eyes while having a stroke and clutching their chest….they go to the head of the line even if the person behind them was really nice and brought us cookies. In mass casualty events, people we would normally try to save, we have to bypass. We need to do the greatest good for the greatest number of people and it may require some hard decisions we normally would not make.

Communication is key. Many legal proceedings begin because of a miscommunication or misunderstanding.

Know the laws not only that are country wide, but on your state and local level as well. You have to protect yourselves.

And always act with the level of professionalism that is expected of a proper ER nurse. 

Like I said…know your laws.

When it comes to ethics vs the law, always act in the interest of protecting your license. If you feel that strongly, look into an ethical review board.

Find out what events are mandatory reports in your state.

Know your code of conduct, and check out the provisions for ED nurses

and if you ever have questions, ask the experts. Most hospitals have a legal team and you should not be afraid to call them if an issue arises.

Thanks for joining me for this lesson guys. Be sure to check out the rest of the Emergency Medicine series here on NRSNG.com and as always…


HAPPY NURSING!!

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