MORAL Model

1Application of Ethical Decision-Making Model Paper
Chatham University
NUR 703: Ethics and Public Policy in Healthcare
Dr. XXXXX
September 19, 2021
2
Application of Ethical Decision-Making Model Paper
In the nursing discipline, providers will encounter a multitude of ethical dilemmas in the
entirety of his or her career and providers must be well-versed in ethical dilemma-solving
methods. One of these ethical dilemmas occurred while I was employed as a gastroenterology
nurse practitioner at a local hospital. I encountered a young male patient who was admitted with
possible sepsis. The patient was well known to the gastroenterology service for a history of
cirrhosis secondary to fatty liver. The patient presented with hypotension, leukocytosis, fever,
and abdominal ascites on imaging. The recommended plan of care was to start the patient on
prophylactic antibiotics and order a paracentesis to rule out spontaneous bacterial peritonitis
(SBP). However, the patient communicated that he did not want lifesaving measures
implemented. He voiced that he had a friend that died from alcoholic cirrhosis, and he did not
want to prolong his suffering since there was no cure for cirrhosis. As a healthcare provider, I
was aware that without starting antibiotics the patient could expire from a treatable infection. It
was my professional recommendation that the patient should proceed with the sepsis protocol.
MORAL Model
Guido (2019) comments that one of the methods that can be utilized to resolve ethical
dilemmas successfully is the MORAL model. The MORAL model is an acronym that stands for
massage the dilemma, outline the options, resolve the dilemma, act by applying, and look back
and evaluate the entire process. This model is helpful because it is easy to follow and can be
implemented in the hospital setting (Guido, 2019). The next few paragraphs will discuss how one
provider used this model to resolve the above-mentioned ethical dilemma. The purpose of this
paper is to demonstrate proficiency in applying ethical-decision making strategies that will be
used to guide continued development in managing ethical dilemmas in healthcare.
3
M: Massage the Dilemma
The M in the acronym for the Moral model represents massage the dilemma (Guido,
2019). When massaging the dilemma, one must take into consideration the viewpoints of the
patient and the interdisciplinary healthcare team (Guido, 2019). In the aforementioned ethical
dilemma, the patient voiced that he did not wish to engage in any lifesaving treatment options.
This conflicts with the provider’s viewpoint as it is the provider’s recommendation to proceed
with treatment that could potentially save the patient’s life.
The immediate conflicting ethical principles in this dilemma are the principles of
autonomy and nonmaleficence. Autonomy can be defined as the regulation of one’s self without
outside coercion (Guido, 2019). Furthermore, a healthcare provider must respect the patient’s
right to decide on his or her healthcare, even if it goes against medical advice (Humbyrd, 2018).
Nonmaleficence can be defined as not engaging in any action that can cause harm or suffering to
the patient (Guido, 2019). In the identified ethical dilemma, the patient has a right to selfdetermination; however, agreeing with the patient’s autonomous decision could violate the
ethical principle of nonmaleficence.
O: Outline the Options
The O in the acronym for the Moral model represents outline the options (Guido, 2019).
Guido (2019) comments that when outlining the options, one must note all options including the
implausible ones, and should also compose a list of the pros and cons of each identified option
(Guido, 2019). The first option for resolving this dilemma is agreeing to the patient’s request to
not proceed with any lifesaving treatment options. Pros of this option include supporting the
patient’s preferences. Cons of this option include a possible increase in the patient’s mortality
rate. The second option for resolving this dilemma is proceeding with the sepsis protocol despite
4
the patient’s wishes. Pros of this option include a potential decrease in the patient’s mortality rate
and an improvement in the patient’s health. Cons of this option include a violation of the
patient’s right to autonomy and the provider suffering possible legal ramifications. The final
option for resolving this dilemma is communicating extensively with the patient about all
available information to ensure that the patient’s decision is based on reason. Pros of this option
include the patient being thoroughly informed and hopefully consenting to treatment. Cons of
this option include a delay of treatment and potential refusal of treatment.
Resolve the Dilemma
The R in the acronym for the Moral model represents resolve the dilemma and it is during
this stage that one should choose the best option for dilemma resolution (Guido, 2019). After
examining the options, the option that will provide the best outcome for resolving this dilemma
is communicating extensively with the patient about all available information to ensure that the
patient’s decision is based on reason. Guido (2019) notes for a patient to truly make an
autonomous decision and consent to treatment, he or she must be aware of all available
information. This option will support the patient’s right to autonomy, as it will ensure that the
patient makes a well-informed decision. Also, by the provider presenting the risks versus
benefits of treatment and any potential alternative therapies to the patient, the provider can
confirm that no uniformed harm will come to the patient.
Act by Applying the Chosen Option
The A in the acronym for the Moral model represents act by applying the chosen option
and it is during this stage that implementation occurs (Guido, 2019). To apply the chosen option,
I first arranged a time to communicate with the patient about all available treatment options and
to discuss any concerns. I then communicated all information in a language that the patient
5
could understand. During this meeting, I discussed with the patient that although cirrhosis is not
curable, he could qualify for a liver transplant. I also discussed that not proceeding with the
sepsis protocol could result in death and that there are no other treatment options available for
SBP. I informed the patient that a radiologist would be performing the paracentesis, what the
procedure entailed, possible side-effects of the procedure, and that he could abort the procedure
or refuse treatment at any time. After weighing his options, he ultimately consented to treatment.
Look Back and Evaluate the Entire Process
The L in the acronym for the Moral model represents look back and evaluate the process
including implementation (Guido, 2019). During this stage, it is imperative that all parties can
implement the chosen option, or the process will need to be restarted (Guido, 2019). Both the
patient and provider were agreeable to a one-on-one discussion regarding the course of
treatment. When reviewing the entire process, it is important to understand that the patient’s
refusal of treatment should not be based on misinformation or lack of information. If a more
detailed discussion did not occur, then his autonomy would be violated as well as the principle of
nonmaleficence. The patient could not make a truly autonomous decision without being fully
informed and withholding important information could result in harm to the patient. If the patient
refuses treatment after being fully informed, then his refusal will be an autonomous one.
Conclusion
The MORAL model is useful when solving ethical dilemmas. When resolving ethical
dilemmas, it is crucial to consider the views of everyone involved and to communicate all
available information. Communication of this information ensures that the patient makes an
informed autonomous decision. Furthermore, concealing valuable information could result in
detrimental harm to the patient.
6
References
Guido, G. W. (2019). Legal & ethical issues in nursing (7th ed.). Pearson Education (US).
Humbyrd, C. (2018). Virtue ethics in a value-driven world: Can I respect autonomy without
respecting the person? Clinical Orthopaedics & Related Research, 477(2), 293–294.
https://doi.org/10.1097/corr.0000000000000575
Using the MORAL Model by Crisham (1982) which is discussed in your textbook, the
Principle’s Approach by Beauchamp and Childress (2019), or the 4-Box Method from Jonsen et
al. (2010), describe how you would resolve an ethical dilemma you have experienced in your
career. If you are unsure whether your presented case is an ethical dilemma, please check with
your faculty before completing this assignment.
Be sure to cite all references using APA (7th ed.) format. References should be recent (within the
past five years) unless they are seminal work by the author(s) on the topic.
Grading Guidelines
Identify and define issues in dilemma
Outline all options for resolution
Identify best option with justification
Briefly discuss hypothetical application and
evaluation
Overall structure of paper (citations, grammar,
logical flow, clarity, structure/headings, spelling,
APA format)
* It is ok to use first person for this assignment
NOTICE: This material may be protected
by copyright law (Title 17 U.S. Code)
Legal and Ethical
Issues in Nursing
Seventh Edition
Ginny Wacker Guido, JD, MSN, RN, FAAN
Regional Director-Nursing and Assistant Dean, (retired)
College of Nursing
Washington State University Vancouver
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Library of Congress Cataloging-in-Publication Data
Names: Guido, Ginny Wacker, author.
Title: Legal and ethical issues in nursing / Ginny Wacker Guido, JD, MSN, RN,
FAAN, Regional Director-Nursing and Assistant Dean, College of Nursing,
Washington State University, Vancouver, Washington.
Description: Seventh edition. | Hoboken, New Jersey : Pearson
Education, Inc., [2020] | Includes bibliographical references and index.
Identifiers: LCCN 2018038475| ISBN 9780134701233 | ISBN 0134701232
Subjects: LCSH: Nursing—Law and legislation—United States. | Nursing
ethics—United States.
Classification: LCC KF2915.N8 G85 2020 | DDC 344.7304/14—dc23
LC record available at https://lccn.loc.gov/2018038475
1
19
ISBN 10:
0-13-470123-2
ISBN 13: 978-0-13-470123-3
About the Author
Ginny Wacker Guido has been active in legal and ethical
issues in nursing for all of her professional life. She
developed an interest in these areas of nursing while she
was teaching undergraduate nursing students in southern Texas, and her excitement for further knowledge and
understanding of these content areas encouraged her to
pursue a doctorate of jurisprudence degree and attend
multiple ethical conferences. Over her career, she continued to attend national and regional workshops and conferences, updating and expanding her knowledge base
regarding both the legal and ethical aspects of professional
nursing practice. Dr. Guido has authored numerous
publications and presented conferences and lectures on
legal and ethical issues in nursing, with special emphasis on a variety of clinical practice settings. In addition
to publishing seven editions of Legal and Ethical Issues in
Nursing, she also edited a text on nursing care at the end
of life. She remained active in nursing education until her
retirement from Washington State University Vancouver
in May 2014. Since her retirement, Dr. Guido continues
to review legal and ethical articles for the Journal of Nurse
Practitioner, reads extensively on current legal and ethical
issues affecting the professional practice of nursing, and
has authored this latest text.
iii
This book is lovingly dedicated to my family:
Ed, Jenny, Joseph, Alexa, and Archer Guido
and
Cecelia G. Wacker
Thank You
Our heartfelt thanks go out to our colleagues from schools
of nursing across the country who have given their time
generously to help create this exciting new text. These individuals helped us plan and shape our text and resources.
Legal and Ethical Issues in Nursing has reaped the benefit of
your collective knowledge and experience as nurses and
teachers, and we have improved the materials due to your
efforts, suggestions, objections, endorsements, and inspiration. Among those who gave their time generously to help
us are the following:
Diane Daddario, DNP, ANP-C, ACNS-BC,
RN-BC, CMSRN
Nursing Faculty
Pennsylvania State University
University Park, Pennsylvania
Lynn R. Dykstra, MS, RN, CHPN
Instructor
Northern Illinois University
DeKalb, Illinois
Peggy Flannigan, PhD, RN
Associate Chairperson, Department of Nursing
Bradley University
Peoria, Illinois
Cheryl L. Lang, MSNed, RN, CNE
Nurse Case Manager
Manifestations Nurse Navigator
University Hospitals of Colorado
v
Preface
New to this Edition
• Two- or three-part ongoing case studies that assist the
reader in applying the chapter content, beginning with
Chapter 5
• Expanded ethical scenarios that assist the reader in
better incorporating legal and ethical content
• Addition of organizational ethics in Chapter 3
• Expanded decision-making guidelines in Chapter 17
• The electronic edition of the text rather than the more
traditional paper edition
As with previous editions of the text, the seventh edition
of Legal and Ethical Issues in Nursing reflects the continued
influence that law and ethics have on the professional
practice of the discipline of nursing. This influence may
be seen in the expanding autonomous roles of nurses in a
variety of clinical settings, changes in the health care delivery structure and client base, increased accountability and
responsibility at all levels of nursing, and the development
of newer educational programs for nurses, including the
mandate for doctoral degrees for advanced practice nurses.
This edition, like its predecessors, is written for the
practicing nurse as well as for individuals studying in formal programs of nursing. The text addresses legal and ethical concepts and their application and is appropriate for any
clinical practice site. It is envisioned as both a learning tool
and a resource for professionals. As in previous editions,
the reader is cautioned that this text is not intended to take
the place of procuring advice and counsel from practicing
attorneys and agency legal services. Rather it is meant to
augment the role of attorneys and legal counsel in assisting
nurses to better understand the legal process and the interplay of ethics within this legal context. It is hoped that this
improved understanding of legal and ethical issues will assist nurses in their clinical judgments and interactions with
patients, family members, and their peers.
With each edition, familiar and popular features of
previous editions have been retained and new features or
content added. Popular features that have been retained
vi
include the multiple legal exercises and ethical scenarios
that assist the reader in understanding and applying content areas. Key terms, objectives for the chapter, guidelines,
chapter previews and summaries, and the “You Be the
Judge/Ethicist” features have been retained. The new features include the incorporation of an ongoing case study
in the majority of chapters, intended to assist the reader
both in applying the content of the chapter and also in understanding how the content could impact the reader in a
continuous manner.
As in previous editions, the text is divided into five
separate parts. Part 1 addresses the law, the legal system, and the judicial process; the role of the nurse in legal
matters; and the importance of case law in developing
standards of nursing care. Part 2 outlines ethical theories
and principles, the role of ethics committees and organizational ethics, and addresses the application of ethics in
nursing settings, including moral distress, moral resilience,
the role of advocacy within nursing, and the application
of therapeutic jurisprudence. Part 3 presents liability issues
that can and do affect nurses in all clinical arenas, concluding with a chapter on professional liability insurance. Part 4
contains multiple chapters presenting how the law impacts professional nursing practice, beginning with nurse
practice acts and the scope of nursing practice. Subsequent
chapters in this part address the issues of advanced practice nursing roles, employment and federal laws that affect
nursing practice, the role of the nurse manager, and laws as
they pertain to delegation and supervision. Part 5 applies
the impact of the law to specific clinical areas, including
acute care, ambulatory and managed health care settings,
public and community health, and long-term and home
health care settings.
I am always amazed at how much I have learned in the
process of revising this text. It is my continued hope that
you too will continue to learn and apply this knowledge as
you care for the patients that you encounter.
Ginny Wacker Guido, JD, MSN, RN, FAAN
Contents
About the Author
Thank You
Preface
iii
v
vi
Part I Introduction to the Law and
the Judicial Process
1
Legal Concepts and the Judicial
Process
1
1
Learning Objectives
Preview
Key Terms
1
1
1
Definition of Law
2
Sources of Law
Constitutional Law
Statutory Laws
Administrative Laws
2
2
3
3
■■ Exercise 1–1
3
4
4
Attorney General’s Opinions
Judicial Laws
Classifications (Types) of Law
Common Law
Civil Law
Public Law
Criminal Law
5
5
5
5
5
■■ Exercise 1–2
7
7
7
Substantive Law
Procedural Law
Due Process of Law and Equal Protection of the Law
7
The Judicial Process
Questions of Law or Fact
8
8
Jurisdiction of the Courts
9
State Courts
Trial Courts
State Appellate Courts
State Supreme Courts
10
10
10
10
■■ Exercise 1–3
10
Federal Courts
District Courts
Courts of Appeal
Supreme Court
2
Anatomy of a Lawsuit
15
Learning Objectives
Preview
Key Terms
15
15
15
The Trial Process
Step One: Initiation of the Lawsuit
16
16
■■ Exercise 2–1
19
19
20
22
Step Two: Pleadings and Pretrial Motions
Step Three: Pretrial Discovery of Evidence
Step Four: The Trial
■■ Exercise 2–2
24
24
24
Step Five: Appeals
Step Six: Execution of Judgment
Expert and Lay Witnesses
Lay Witness
Expert Witness
25
25
25
■■ Exercise 2–3
28
Summary 28 • You be the Judge
Questions 29 • References 29
29 •
Part II Ethics in Nursing Practice
3
Introduction to Ethics
31
31
Learning Objectives
Preview
Key Terms
31
31
31
Definitions of Ethics and Values
32
Distinction Between Ethics and the Law
32
Ethical Theories
33
■■ Ethical Scenario 3–1: Making Difficult Ethical
Decisions
35
10
10
11
11
Ethical Principles
Autonomy
Beneficence
Nonmaleficence
Veracity
Fidelity
Paternalism
Justice
Respect for Others
35
35
36
36
36
37
37
37
38
■■ Ethical Scenario 3–2: Identifying Ethical Principles
38
■■ Exercise 1–4
11
Ethics Committees
38
Statutes of Limitations
11
Organizational Ethics
39
■■ Exercise 1–5
13
■■ Ethical Scenario 3–3: Exploring Ethics Committees
40
Summary 13 • Apply Your Legal Knowledge
• You be the Judge 14 • Questions 14 •
References 14
13
Summary 40 • Apply Your Ethical Knowledge
You be the Ethicist 41 • Questions 41 •
References 41
40 •
vii
viii Contents
4
Application of Ethics in Nursing
Practice Settings
Learning Objectives
Preview
Key Terms
42
6
Tort Law
67
Learning Objectives
Preview
Key Terms
67
67
67
42
42
43
Definition of Torts
68
43
Negligence Versus Malpractice
68
Ethical Decision-Making Frameworks
43
■■ Exercise 6–1
69
■■ Ethical Scenario 4–1: Using the MORAL Model
44
69
69
Professional Codes of Ethics
Advocacy as a Nursing Role
45
Elements of Malpractice or Negligence
Duty Owed the Patient
■■ Ethical Scenario 4–2: Advocacy Models
46
■■ Ethical Scenario 6–1: Ethics of Alternate
Moral Distress
46
■■ Ethical Scenario 4–3: When Care Appears
Medically Inappropriate
48
Therapeutic Jurisprudence
48
Slippery Slope Arguments
49
Health Policy
50
■■ Ethical Scenario 4–4: Assisting Emergency
Department Patients More Effectively
Summary 51 • Apply Your Ethical Knowledge
You be the Judge 51 • Questions 51 •
References 52
50
51 •
Injury
■■ Exercise 6–2
Damages
53
Standards of Care
53
Learning Objectives
Preview
Key Terms
■■ Case Study, Part I
70
70
71
72
73
74
75
75
76
76
■■ Ethical Scenario 6–2: The Ethics of Damage
Part III Liability Issues
5
Employment
Breach of Duty Owed the Patient
Foreseeability
Causation
Tests for Causation
Proximate Cause
Awards
78
■■ Exercise 6–3
79
Doctrine of Res Ipsa Loquitur
79
■■ Ethical Scenario 6–3: The Doctrine of Res
Ipsa Loquitur
80
53
53
53
Locality Rule
81
■■ Case Study, Part II
81
Definition of Standards of Care
53
Avoiding Malpractice Claims
81
■■ Exercise 5–1
54
■■ Exercise 6–4
83
Establishment of Nursing Standards of Care
Internal Standards
54
54
Patient Education and Tort Law
83
Definition of Intentional Torts
84
Intentional Torts
Assault
Battery
84
84
85
■■ Exercise 6–5
86
86
■■ Ethical Scenario 5–1: The Hectic Emergency
Center
56
■■ Case Study, Part I
57
57
External Standards
■■ Exercise 5–2
61
National and Local Standards of Care
61
■■ Ethical Scenario 6–4: Detaining Patients
■■ Case Study, Part II
61
against Their Wishes
Conversion of Property
Trespass to Land
Intentional Infliction of Emotional Distress
■■ Ethical Scenario 5–2: Meeting the Minimal
Standard of Care
61
False Imprisonment
87
88
88
88
Importance of Standards of Care to the Individual Nurse
62
■■ Case Study, Part III
63
■■ Exercise 6–6
89
■■ Exercise 5–3
64
Expert Testimony
64
Quasi-Intentional Torts
Invasion of Privacy
Defamation
89
89
90
■■ Case Study, Part III
Defenses
91
92
■■ Exercise 6–7
92
Ethical Issues and Tort Laws
92
Expanded Nursing Roles
64
■■ Exercise 5–4
64
Selected Ethical Issues and Standards of Care
Summary 65 • You be the Judge
Questions 66 • References 66
65 •
65
Contents
Summary 93 • Apply Your Legal Knowledge
• You be the Judge 94 • Questions 94 •
References 94
7
93
Nursing Liability: Defenses
96
Role of Consent
115
Consent Versus Informed Consent
115
Inclusions in Informed Consent
115
Forms of Informed Consent
116
Standards of Informed Consent
117
Learning Objectives
Preview
Key Terms
96
96
96
■■ Ethical Scenario 8–1: Limitation on Informed
Defenses Against Liability
97
Defenses Against Intentional Torts
Consent
Self-Defense and Defense of Others
Necessity
97
97
97
98
Defenses Against Quasi-Intentional Torts
Consent
98
98
■■ Case Study, Part I
99
99
100
100
Truth
Privilege
Disclosure Statutes
■■ Exercise 7–1
101
103
103
Access Laws
Qualified Privilege
■■ Ethical Scenario 7–1: References and Ethical
Responsibilities
104
Defenses Against Nonintentional Torts
Release
Contributory and Comparative Negligence
104
104
104
■■ Case Study, Part II
106
■■ Exercise 7–2
106
106
107
107
Assumption of the Risk
Unavoidable Accident
Defense of the Fact
■■ Case Study, Part III
107
107
107
Immunity
Good Samaritan Laws
■■ Ethical Scenario 7–2: Being a Good Samaritan
109
Statutes of Limitations
109
Products Liability
109
Collective and Alternative Liability
110
Caveats in Products Liability Lawsuits
ix
Consent
118
■■ Exercise 8–1
118
Exceptions to Informed Consent
118
Accountability for Obtaining Informed Consent
Nurses’ Role in Obtaining Consent
119
120
■■ Case Study, Part I
121
Consent Forms
121
■■ Exercise 8–2
123
Who Must Consent
Competent Adult
Incompetent Adult
Minors
123
123
123
124
■■ Exercise 8–3
125
Right to Refuse Consent
Limitations on Refusal of Therapy
126
126
■■ Ethical Scenario 8–2: A Patient Who Refuses
Blood Products
127
Law Enforcement
127
Informed Consent in Human Experimentation
127
■■ Case Study, Part II
130
Health Literacy
130
Genetic Testing
130
Patient Education in Genetic Testing
131
■■ Case Study, Part III
131
Selected Ethical Issues in Informed Consent
Summary 132 • Apply Your Legal Knowledge
You be the Judge 133 • Questions 133 •
References 133
9
132
133 •
Patient Self-Determination
135
111
Learning Objectives
Preview
Key Terms
135
135
135
■■ Exercise 7–3
111
Patient Self-Determination
136
Selected Ethical Issues
111
The Issue of Consent
136
Living Wills
137
Natural Death Acts
138
■■ Exercise 9–1
139
Durable Power of Attorney for Health Care
139
Summary 111 • Apply Your Legal Knowledge
• You be the Judge 112 • Questions 112 •
References 112
8
Informed Consent
Learning Objectives
Preview
Key Terms
112
114
114
114
114
Third-Generation Advance Directives
140
■■ Case Study, Part I
141
Uniform Rights of the Terminally Ill Act
Physician Orders for Life-Sustaining Treatment
141
141
x Contents
Patient Self-Determination Act of 1990
142
Access to Medical Records
171
■■ Exercise 9–2
144
Incident Reports
172
Do-Not-Resuscitate Directives
144
■■ Case Study, Part II
172
■■ Case Study, Part II
145
■■ Exercise 10–4
173
Mature Minors and the Right to Die
145
Electronic Transfer of Medical Records
174
■■ Ethical Scenario 9–1: The Child with Cancer
146
Confidentiality of Medical Records
174
■■ Exercise 9–3
146
■■ Exercise 10–5
174
Hospice Care
146
■■ Case Study, Part III
175
Assisted Suicide
147
■■ Case Study, Part III
148
■■ Ethical Scenario 9–2: When Advance Directives
are Disregarded
Ethical Issues
Summary 149 • Apply Your Legal Knowledge
You be the Judge 150 • Questions 150 •
References 150
Reporting and Access Laws
178
148
Common-Law Duty to Disclose
Contagious Diseases
Threats to an Identified Person
179
179
179
■■ Ethical Scenario 10–3: Ethical Duty to Warn
180
Limitations to Disclosure
Substance and Alcohol Abuse Confidentiality
HIV/AIDS Confidentiality
180
180
181
Selected Ethical Concerns
181
10 Documentation and Confidentiality 152
152
152
152
Medical Records
153
Contents of the Record
153
Effective Documentation
Make an Entry for Every Observation
153
153
■■ Exercise 10–1
156
156
Follow-Up as Needed
■■ Ethical Scenario 10–1: James Darling’s Care
Read Nurses’ Notes before Giving Care
Always Make an Entry, Even If It Is Late
Make the Chart Entry after the Event
Use Clear and Objective Language
175
178
148
149 •
Learning Objectives
Preview
Key Terms
Health Insurance Portability and Accountability
Act of 1996
Electronic Mail and the Internet
156
157
158
160
160
■■ Ethical Scenario 10–4: The Ethics of
Documentation
Summary 182 • Apply Your Legal Knowledge
You be the Judge 183 • Questions 183 •
References 183
182
183 •
11 Professional Liability Insurance
Learning Objectives
Preview
Key Terms
185
185
185
185
Professional Liability Insurance
186
Insurance Policies
186
■■ Exercise 10–2
161
Types of Policies
186
Be Realistic and Factual
161
■■ Exercise 11–I
187
■■ Case Study, Part I
162
162
162
163
163
164
164
165
166
Declarations
187
Coverage Agreements
187
Limits and Deductibles
187
■■ Case Study, Part I
187
Additional Clauses in Insurance Policies
188
■■ Exercise 11–2
190
Licensure Protection
190
Individual Versus Employer Liability Coverage
190
Chart Only Your Own Observations
Chart Patient’s Refusal for Care
Clearly Chart All Patient Education
Correct Charting Errors
Never Alter a Record at Someone Else’s Request
Identify Yourself after Every Entry
Use Standardized Checklists or Flow Sheets
Leave No Room for Liability
■■ Exercise 10–3
166
■■ Exercise 11–3
193
Electronic Medical Record (Computerized Charting)
166
Reasons to Purchase Individual Liability Insurance
193
■■ Case Study, Part II
193
194
■■ Ethical Scenario 10–2: The Ethics of the
Medical Record
167
Charting by Exception
168
Arguments for Having Professional Liability
Insurance
Alteration of Records
168
■■ Ethical Scenario 11–1: Professional Liability
Retention of Records
169
Ownership of the Record
170
Coverage
Selected Ethical Issues
194
194
Contents
Summary 195 • Apply Your Legal Knowledge
You be the Judge 195 • Questions 195 •
References 195
13 Advanced Nursing Practice Roles
195 •
Part IV Impact of the Law on the
Professional Practice of
Nursing
196
Learning Objectives
Preview
Key Terms
xi
220
220
220
220
196
196
196
Historical Overview of Advanced Nursing Practice Roles
Nurse Anesthetist
Nurse Midwifery
Advanced Nurse Practitioners
Clinical Nurse Specialist
Clinical Nurse Leader
Doctor of Nursing Practice
221
221
221
222
222
223
223
■■ Exercise 13–1
224
Credentials
197
Legal Liability of Expanded Nursing Roles
224
Professional Licensure
State Boards of Nursing
Mandatory Licensure
Permissive Licensure
Institutional Licensure
197
197
198
198
199
■■ Case Study, Part I
224
Scope of Practice Issues
224
■■ Exercise 12–1
199
Nurse Practice Acts
199
Standards of Care
228
■■ Case Study, Part I
200
■■ Case Study, Part III
231
200
200
■■ Exercise 13–2
232
Prescriptive Authority
232
200
■■ Ethical Scenario 13–2: Transgender Health
12 Nurse Practice Acts, Licensure,
and the Scope of Practice
Learning Objectives
Preview
Key Terms
Elements of Nurse Practice Acts
Definition of Professional Nursing
■■ Exercise 12–2
196
Requirements for Licensure
200
Exemptions
Licensure across Jurisdictions
Disciplinary Action and Due Process Requirements
201
202
202
■■ Exercise 12–3
Penalties for Practicing Without a License
■■ Ethical Scenario 13–1: Advance Practice Roles
226
■■ Case Study, Part II
227
227
227
Reimbursement Issues
Malpractice Issues
Services
232
Admitting (Hospital) Privileges
232
■■ Exercise 13–3
233
Direct Access to Patient Populations
233
207
207
Statute of Limitations
233
Ethical Perspectives and Advanced Nursing Practice
233
■■ Exercise 13–4
234
Diversion Programs
207
■■ Ethical Scenario 12–1: The Recovering Nurse
208
■■ Case Study, Part II
208
Articulation of Medical Practice Acts
209
Summary 234 • Apply Your Legal Knowledge
• You be the Judge 234 • Questions 235
• References 235
234
Scope of Practice Issues
209
■■ Ethical Scenario 12–2: Duty to Promote Health
210
Updating Nurse Practice Acts
212
Continuing Education for Practicing Nurses
212
■■ Ethical Scenario 12–3: Education for Nurses
213
Reporting Professional Violations of the Nurse
Practice Act
Certification
213
214
Theories of Vicarious Liability
Respondeat Superior
238
238
■■ Exercise 12–4
214
■■ Ethical Scenario 14–1: The Duling Case
Complementary and Alternative Medicine
214
238
239
■■ Case Study, Part III
215
Medicinal Use of Cannabis (Marijuana)
215
Mutual Recognition Compacts
215
Selected Ethical Concerns
216
Summary 217 • Apply Your Legal Knowledge 218 •
You be the Judge 218 • Questions 218 • References
219
14 Corporate Liability Issues and
Employment Laws
Learning Objectives
Preview
Key Terms
Scope and Course of Employment
■■ Exercise 14–1
Borrowed Servant and Dual Servant Doctrines
237
237
237
237
241
241
Corporate Liability
Negligent Hiring and Retention
241
242
Ostensible Authority
Subjectivism
242
243
xii Contents
Inherent Function
Reliance
Control
243
243
243
Provisions of the ADA
Title I
Title II
Title III
Title IV
Title V
274
274
275
275
275
275
Lawsuits Under the ADA
Disability Discrimination
275
275
■■ Ethical Scenario 14–2: Ostensible Agency
243
Theories of Independent Liability
Independent Contractor Status
Personal Liability
Indemnification
243
243
244
244
■■ Exercise 14–2
244
■■ Ethical Scenario 15–1: Enactment of the ADA
276
Employment Laws
244
■■ Case Study, Part I
278
279
Equal Employment Opportunity Laws
244
■■ Exercise 14–3
250
Federal Torts Claims Act of 1946
250
Age Discrimination in Employment Act of 1967
250
■■ Case Study, Part I
251
Rehabilitation Act of 1973
251
Affirmative Action
252
Occupational Safety and Health Act
252
Employment-at-will and Wrongful Discharge
253
■■ Exercise 14–4
255
■■ Case Study, Part II
256
■■ Ethical Scenario 14–3: The Whistleblower Case
256
Reasonable Accommodation
■■ Ethical Scenario 15–2: Reasonable
Accommodation
280
■■ Exercise 15–2
281
282
Essential Job Functions
■■ Case Study, Part II
282
■■ Exercise 15–3
283
283
283
284
Pre-Employment Activities
Cases Under Titles III and IV
Enforcement of the ADA
ADA Summary
285
■■ Exercise 15–4
285
285
285
285
285
286
286
Nurses Case
257
■■ Exercise 14–5
258
Collective Bargaining
259
Case Law and the National Labor Relations Act
262
Civil Rights Act of 1991
Background of the Act
Definition of Sexual Harassment
Quid Pro Quo Sexual Harassment
■■ Case Study, Part III
Hostile Work Environment
■■ Exercise 14–6
264
■■ Ethical Scenario 15–3: Sexual Harassment
Family and Medical Leave Act of 1993
264
■■ Case Study, Part III
265
Laws
Preferential Treatment or Sexual Favoritism
Workers’ Compensation Laws
266
■■ Exercise 15–5
266
Ethical Concerns
■■ Ethical Scenario 14–4: The Winkler County
■■ Exercise 14–7
Patient Protection and Affordable Care Act and
Health Care and Education Reconciliation Act
267
Ethical Concerns in This Area of the Law
Summary 268 • Apply Your Legal Knowledge
• You be the Judge 268 • Questions 269 •
References 269
267
268
Learning Objectives
Preview
Key Terms
290 •
16 Nursing Management and the
Learning Objectives
Preview
Key Terms
272
272
272
272
The Americans with Disabilities Act of 1990
Background of the Act
Definitions in the Act
273
273
273
■■ Exercise 15–1
274
274
Exclusions from the Definition of Disability
289
289
Nurse-Manager
15 Federal Laws: The Americans with
Disabilities Act of 1990 and the
Civil Rights Act of 1991
Summary 289 • Apply Your Legal Knowledge
You be the Judge 290 • Questions 290 •
References 290
288
288
292
292
292
292
Liability
293
■■ Case Study, Part I
294
■■ Exercise 16–1
294
Causes of Malpractice for Nurse-Managers
295
■■ Ethical Scenario 16–1: Ethical Obligations and
the Role of Nurse-Managers
Duty to Orient, Educate, and Evaluate
Failure to Warn
Hiring Practices
■■ Exercise 16–2
295
295
297
297
297
Contents
Staffing Issues
Adequate Numbers of Staff
298
298
■■ Exercise 16–3
300
■■ Ethical Scenario 16–2: Employment Dilemmas
Float Staff
Agency Personnel
300
301
303
■■ Case Study, Part II
304
■■ Exercise 16–4
305
Policies and Procedures
305
Contract Principles
Legal Elements of a Contract
306
306
Types of Contracts
306
■■ Exercise 16–5
307
Termination of a Contract
308
■■ Ethical Scenario 16–3: Contracts and Ethics
309
■■ Case Study, Part III
309
Alternative Dispute Resolution
Mediation
Arbitration
Fact Finding
Summary Jury Trial
309
309
309
309
309
Nurses and Contracts
309
■■ Exercise 16–6
310
Contracts that Arise After Employment
310
Ethical Issues
Summary 311 • Apply Your Legal Knowledge
You be the Judge 311 • Questions 312 •
References 312
310
311 •
17 Delegation, Supervision, and
Selected Patient Advocacy Issues
Summary 328 • Apply Your Legal Knowledge
You be the Judge 328 • Questions 329 •
References 329
xiii
328 •
Part V Impact of the Law on
Nursing in Selected Practice
Settings
330
18 Nursing in Acute Care Settings
330
Learning Objectives
Preview
Key Terms
330
330
331
Acute Care Nursing
331
Patient Safety
331
Psychiatric and Vulnerable Patients
Suicide Prevention
332
332
■■ Case Study, Part I
333
■■ Ethical Scenario 18–1: The 15-Minute Checks
335
■■ Exercise 18–1
336
336
337
339
Warning of Intent to Harm
Failure to Protect from Harm
False Imprisonment/Wrongful Commitment
■■ Case Study, Part II
Level of Care Required
Confidentiality Right of Mentally Ill Patients
341
341
342
■■ Exercise 18–2
342
Restraints
342
■■ Ethical Scenario 18–2: To Restrain the Patient or
Not to Restrain the Patient
313
344
■■ Exercise 18–3
346
346
346
Principles of Effective Delegation
317
Medication Errors
Incorrect Patient
Incorrect Dosage, Medication, or Incorrect
Route of Administration
Improper Injection Technique
Incorrect Time of Administration
Failure to Note Patient Allergies
Inaccurate Knowledge Regarding the Medication
and Its Side Effects
■■ Case Study, Part I
318
■■ Ethical Scenario 18–3: Medication Administration
349
Unlicensed Assistive Personnel
318
■■ Exercise 18–4
■■ Case Study, Part II
320
350
350
■■ Exercise 17–2
320
Patient Falls
350
■■ Ethical Scenario 17–2: A Lack of Supervision
321
■■ Ethical Scenario 18–4: When a Patient Falls
351
Patient Advocacy
322
■■ Exercise 18–5
352
Technology and Equipment
352
Failure to Adequately Assess, Monitor, and
Communicate
Failure to Monitor
Failure to Assess and Communicate
353
354
355
Learning Objectives
Preview
Key Terms
Delegation, Assignment, and Supervision
313
313
313
314
■■ Exercise 17–1
316
■■ Ethical Scenario 17–1: The Absent Nurse
317
■■ Ethical Scenario 17–3: Advocating in a Timely
Manner
323
■■ Exercise 17–3
324
■■ Exercise 17–4
325
■■ Case Study, Part III
326
327
Specific Challenges to Patient Advocacy
Ethical Considerations
327
Failure to Document Appropriately
■■ Exercise 18–6
Failure to Listen and Communicate with Patients
347
348
348
349
349
358
359
xiv Contents
■■ Case Study, Part III
359
Communicating with Culturally and Ethnically
Diverse Individuals
359
■■ Exercise 18–7
360
Failure to Act as a Patient Advocate
361
Patient Education
361
■■ Ethical Scenario 18–5: Patient Teaching
361
Ethical Issues in Acute Care Settings
361
Summary 362 • Apply Your Legal Knowledge
You be the Judge 363 • Questions 363 •
References 363
362 •
19 Nursing in Ambulatory and
Managed Care Settings
Patient Rights
391
■■ Ethical Scenario 19–4: Patient Bill of Rights
392
Ethical Issues in Ambulatory and Managed
Health Care
393
Summary 393 • Apply Your Legal Knowledge
You be the Judge 394 • Questions 394 •
References 394
394 •
20 Public and Community Health
Care
Learning Objectives
Preview
Key Terms
396
396
396
396
366
Overview of Public and Community Health Nursing
397
Learning Objectives
Preview
Key Terms
366
366
367
Federal Statutes
Social Security Act of 1935
Public Health Service Act of 1944
397
397
397
Ambulatory Care Nursing
Patient Education
367
367
Distance Delivery of Health Care
368
■■ Case Study, Part I
370
■■ Ethical Scenario 19–1: Telenursing
371
Legal Responsibilities
Public and Community Health Nursing
Home Health Care
State Legislation
Standing Orders
397
397
398
400
400
■■ Exercise 19–1
371
■■ Exercise 20–1
Violence
372
400
400
■■ Exercise 19–2
374
Volunteer Services
374
Donating Health-Related Advice
375
■■ Case Study, Part II
376
Managed Health Care Organizations
376
■■ Exercise 19–3
377
■■ Case Study, Part I
379
Patient Education
Patient-Centered Medical Home Model
Contract Law
■■ Exercise 20–2
Confidentiality
Refusal of Care
■■ Ethical Scenario 20–1: Breach of Confidentiality
Agency Policies
Malpractice and Negligence
402
402
402
403
403
403
405
405
■■ Exercise 20–3
406
379
Parish Nursing
406
Legal Issues Surrounding Managed Care
Employment Retirement Income Security Act
380
380
Occupational Health Nursing
406
■■ Exercise 20–4
407
■■ Exercise 19–4
380
381
381
382
School Health Nursing
408
■■ Ethical Scenario 19–2: The Patient-Centered
Medical Home Model
Gag Rules and End-of-Year Profit Sharing
Standards of Care
Emergency Medical Treatment and Labor Act
■■ Exercise 19–5
386
■■ Case Study, Part III
387
Results
Antitrust Issues in Managed Care
■■ Exercise 19–7
at School
Correctional Nursing
409
409
■■ Ethical Scenario 20–3: Appropriateness of
Medical Treatment
411
■■ Exercise 20–5
412
387
■■ Case Study, Part II
388
390
Disaster Nursing
413
413
■■ Case Study, Part III
414
390
Selected Ethical Issues
414
■■ Ethical Scenario 19–3: Delayed Laboratory
■■ Exercise 19–6
■■ Ethical Scenario 20–2: Prescription Medications
Contents
Summary 415 • Apply Your Legal Knowledge
You be the Judge 415 • Questions 415 •
References 416
415 •
21 Nursing in Long-Term Care
Skin and Wound Care
Settings
417
Learning Objectives
Preview
Key Terms
417
417
417
Long-Term Care Settings
Nursing Homes
418
418
Assisted Living Centers
418
Hospice Nursing Centers
419
Elder Day Care Centers
Memory Care Communities
419
419
Nursing Home Reform Act of 1987
419
■■ Ethical Scenario 21–1: Surprise Survey by
Inspectors
420
■■ Exercise 21–1
421
Long-Term Care Nursing: Providing Quality Care
Falls and Restraints
422
422
■■ Case Study, Part I
423
■■ Exercise 21–2
424
xv
424
■■ Exercise 21–3
426
■■ Case Study, Part II
426
426
428
Nutrition and Hydration
Patient Safety Issues
■■ Ethical Scenario 21–2: When Patients’ Needs
Overlap
429
■■ Exercise 21–4
430
Resident Transfers
430
■■ Exercise 21–5
Duty to Assess, Monitor, and Communicate
Intentional and Quasi-Intentional Torts
431
431
431
Involuntary Discharge
End-of-Life Care and Patient Education
Elder Abuse
432
433
433
■■ Ethical Scenario 21–3: End-of-life Dilemma
434
■■ Case Study, Part III
436
■■ Ethical Scenario 21–4: Witnessing Patient Abuse
438
■■ Exercise 21–6
439
Selected Ethical Issues in Long-Term Care
Summary 440 • Apply Your Legal Knowledge
You be the Judge 440 • Questions 441 •
References 441
Index
439
440 •
443
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PART I Introduction to the Law
and the Judicial Process
CHAPTER 1
Legal Concepts and the
Judicial Process
Learning Objectives
After completing this chapter, you should be able to:
1.4 Distinguish between substantive and
procedural law, and defend why each
is important to professional nursing
practice.
1.1 Use the term law and contrast the four
sources from which law is derived, including
constitutional, statutory, administrative, and
judicial (decisional) law.
1.5 Compare and contrast the roles of trial
courts, appellate courts, and supreme
courts at both the state and federal levels.
1.2 Investigate and contrast selected legal
concepts, precedents, and processes.
1.3 Analyze classifications of laws and means
1.6 Evaluate statutes of limitations, their
significance, and their purpose at law.
by which they can be altered or changed.
Preview
The disciplines of law and professional nursing
have been officially integrated since the first mandatory nurse practice act was passed by the New York
state legislature in 1938. The nursing profession has
continuously relied on statutory law for its right
to exist on a licensure basis and on court decisions
for interpretation of these statutes. The civil rights
movement of the 1960s and the malpractice crisis
of the 1970s led to a heightened legal-mindedness
in the 1980s and 1990s, which is still very present
in practice settings today. Professional practitioners
must know, understand, and apply legal decisions
and doctrines in their everyday nursing practice.
Part of this understanding comes from an
appreciation of the origin of laws and the judicial
system. This chapter presents an overview of the
legal system, sources and types of laws, and the role
of the American court system.
Key Terms
administrative laws
attorney general’s opinion
civil law
common law
constitutional law
criminal law
discovery rule
due process of law
equal protection of the law
fact-finder
felonies
judicial (decisional) laws
1
2 Chapter 1
jurisdiction
landmark decision
law
misdemeanors
personal jurisdiction
procedural law
public law
questions of fact
questions of law
rational basis test
res judicata
specific performance
stare decisis (precedent)
state appellate court (courts
of intermediate appeals)
state supreme court
statutes of limitations
statutory laws
Definition of Law
subject matter jurisdiction
substantive law
territorial jurisdiction
tort law
trial court
U. S. district and territorial court
U. S. Supreme Court
writ of certiorari
Constitutional Law
Law has been defined in a variety of ways, using simple to
complex terms. The word law is derived from the AngloSaxon term lagu, meaning that which is fixed or laid down.
Law may be defined as “a binding custom or practice of a
community; a rule of conduct or action prescribed or formally
recognized as binding or enforced by a controlling authority” (Merriam-Webster Dictionary, 2018, usage 1). Black’s Law
Dictionary defines law as “a set of rules or principles” (Garner,
2014, p. 946), and subdivides law into constitutional, judicial,
and legislative laws. Law, though, may be more completely
defined as the sum total of rules and regulations by which a
society is governed. Law includes the rules and regulations
established and enforced by custom within a given community, state, nation, or international community. As such, law is
created by people and exists to regulate all persons.
The actual definition of law is not as important as
the impact of law on society. Law is made by individuals,
whether as legislative bodies or by justices of the court.
Law reflects ever-changing needs and expectations of a
given society and is therefore dynamic and fluid. Law is
not an exact science, but rather an ongoing and organized
system of change in response to current conditions and
public expectations.
Sources of Law
Understanding the various sources of law assists in determining their impact on the nursing profession. Each of the
three branches of the government has the authority and
right to create laws, and these laws form the basis of the
judicial system. Table 1–1 gives an overview of the various
sources of law with examples.
Constitutional law is a system of fundamental laws or
principles for the governance of a nation, society, corporation, or other aggregate of individuals. The purpose of a
constitution is to establish the basis of a governing system.
The Constitution of the United States establishes the general organization of the federal government, grants specific
power to the federal government, and places limitations on
the federal government’s powers.
The U.S. Constitution established, through the first
three articles, the three branches of the federal government
and enumerates their powers. Article I established the
House of Representatives and the Senate, which together
comprise the Congress of the United States. Congress has
the power to regulate commerce with foreign nations and
among selected states and to enact broad and powerful
legislation throughout the nation. Article II established the
presidency and the executive branch of government. While
the powers of the president are not as clearly enumerated
as those of Congress, the president has “executive” power,
is the “commander in chief,” and has power to grant pardons (except in cases of impeachment) for offenses against
the United States. Article III established the role and duties
of the Supreme Court and the judicial branch.
The general organization of the U.S. Constitution is, in
reality, a grant of power from the states to the federal government, and the federal government has only the power
granted it by the Constitution (Article X). The federal
government can collect taxes, declare war, and enact laws
that are “necessary and proper” for exercising its powers.
Federal constitutional law is the supreme law of the land,
as federal law takes precedence over state and local law.
Ideally, state and federal powers should be devised and
exercised so as not to interfere with each other, but if there
Table 1–1 Sources of Law with Examples
Constitutional Law
Bill of Rights
Amendments to the Constitution
Statutory Law
Civil Law
Criminal Law
Tort law
Contract law
Patent law
Oil and gas law
Penal codes
Administrative Law
Judicial Law
Courts of law
Boards of nursing
Regulatory boards
City ordinances
Trial level
Appellate level
Supreme Court level
Legal Concepts and the Judicial Process
is a conflict, federal laws prevail over state laws, and state
laws prevail over local laws.
The U.S. Constitution also places limitations on the
federal government. Such limitations have been enacted
through the Bill of Rights (the first 10 amendments of the
Constitution), which protects a variety of rights such as
one’s right to freedom of speech, trial by jury, free exercise
of religious preference, and freedom from unreasonable
search and seizure (United States Constitution, Amendments
1–10, 1787).
Constitutional law is the highest form of statutory law
(defined in the next section). Statutory laws govern and
meet existing conditions; constitutional laws govern for
the future as well as the present in that the stability of constitutional law protects from frequent and violent fluctuations in public opinion (16 American Jurisprudence, 1995).
Each state has its own constitution, establishing the
organization of the state government, giving the state certain powers, and placing limits on the state’s power. An
important difference between federal and state constitutional law is that the federal government derives positive grants of power from the U.S. Constitution, while
states enjoy plenary or absolute powers subject only to
limitations by their individual state constitution, the U.S.
Constitution, and any limitations necessary for the successful operation of the federal system.
Statutory Laws
Statutory laws are those made by the legislative branch of
government. Statutory laws are designed to declare, command, or prohibit. Generally referred to as statutes, these
laws are created by the U.S. Congress, state legislative
bodies, city councils, or other elected bodies. Statutes are
officially enacted (voted on and passed) by legislative bodies and are compiled into codes, collections of statutes, or
city ordinances. Examples include the United States Code
and Black’s Statutes.
The federal and state governments have broad powers
to legislate for the general welfare of the public. The U.S.
Constitution grants the federal government’s power, while
the states have inherent power to act except where the
Constitution restricts the power to the federal government.
The states’ power to legislate and govern is often referred
to as police power. This term is generally seen as allowing
the states to make laws necessary to maintain public order,
health, safety, and welfare.
An example of statutory laws is nursing licensure
laws, which regulate health care providers within individual states. These nursing licensure laws are designed
to protect the general public from incompetent health care
providers. Known generally as nurse practice acts or nursing
practice acts depending on the individual state, these statutory laws give authority to qualified and licensed practitioners to practice nursing within a given state, the District
of Columbia, and/or U.S. territories. Other statutory laws
that affect the practice of professional nursing include statutes of limitations, protective and reporting laws, natural
3
death acts, and informed consent laws. Nurse practice acts
are described more fully in Chapter 12.
Administrative Laws
Administrative laws are enacted by means of decisions
and rules of administrative agencies, which are specific
governing bodies charged with implementing particular
legislation. When statutes are enacted, administrative
agencies are given the authority to carry out the specific
intentions of the statutes by creating rules and regulations that enforce the statutory laws. For example, legislative bodies pass the individual nurse practice acts
(statutory laws) and create state boards of nursing or state
boards of nurse examiners (state administrative agencies). These state boards implement and enforce the state
nurse practice act by writing rules and regulations for
the enforcement of the statutory law and by conducting
investigations and hearings to ensure the law’s continual
enforcement.
Such authority is given to administrative agencies by
the state legislature, since the elected legislative body has
neither the resources nor the needed expertise to ensure
that statutory laws are properly enforced. Administrative
agencies are normally composed of persons with specific
qualifications and experience and are given the single
charge to implement and regulate the enforcement of a
given statutory law. State boards of nursing are usually
composed of predominantly registered nurse members,
who are actively employed in educational or practice settings within nursing. Their charge is the enforcement of the
state nurse practice act.
EXERCISE 1–1
Read the table of contents of your state nurse practice act. Can
you distinguish the state administrative body (board of nursing)
that is created by the legislature? Which sections of your nurse
practice act create the administrative body and which sections
serve to distinguish legislative intent?
Administrative rules and regulations have validity only to
the extent that they are within the scope of the authority
granted by the legislative body. Legislative bodies have
some limitations placed on them by state constitutional
law. There must be specificity in the charge as given to the
administrative agency, and the legislative body remains
ultimately responsible for the rules and regulations the
administrative body passes.
Some procedural acts may also govern administrative bodies. Such procedural acts delineate how the agency
promulgates rules and regulations and provides for comments from the public before the rules and regulations are
enforceable. The procedural acts may also provide for publication in a state register prior to the enforcement of the
new rules and regulations.
4 Chapter 1
The administrative agency has the initial authority to
decide how its rules and regulations are enforced, and the
decisions of the administrative agency may be appealed
through the state court system. If appealed, courts have
limited their review of the agency’s actions to one of the
following five areas:
1. Was the delegation of power to the specific administrative agency constitutional and proper?
2. Did the specific administrative agency follow proper
procedures in enforcing the statutory law?
3. Is there a substantial basis for the decision?
4. Did the administrative agency act in a nondiscriminatory and nonarbitrary manner?
5. Was the issue under review included in the delegation
to the agency?
Attorney General’s Opinions
A second example of administrative law is the attorney
general’s opinion. The national or state attorney general
may be requested to give an opinion regarding a specific interpretation of a law. Individuals or agencies may
request such an opinion, and the opinion is binding until a
subsequent statute, regulation, or court order amends the
attorney general’s opinion.
The attorney general’s opinions provide guidelines
based on both statutory and common law principles.
Sometimes statutes are written in such vague terms that
nurses seek opinions concerning the interpretation of the
statute. For example, a board of nursing may request a
state attorney general’s opinion regarding enforcement of
the nurse practice act in agencies that fail to comply with
the provision of the act. Such a request would seek guidance on how the board of nursing should proceed to ensure
compliance with the nurse practice act.
Opinions can also be formal or informal. The greater
the liability risks, the more likely it is that a formal opinion
will be issued. If legal issues then arise and the nurse has
a formal attorney general’s opinion, the court is more apt
to rule that the nurse acted in a reasonable and responsible
manner in seeking clarification on the matter.
Judicial Laws
Judicial (or decisional) laws are made by the courts and
interpret legal issues that are in dispute. Depending on the
type of court involved, the judicial or decisional law may
be made by a single justice, with or without the assistance
of a jury, or by a panel of justices. As a rule, the initial trial
courts have a single justice or magistrate, intermediary
appeal courts have three justices, and the highest appeal
courts have a panel of nine justices.
All courts serve to rule on issues in dispute. In deciding cases, the courts interpret statutes and regulations or
may decide which of two conflicting statutes or regulations
apply to a given fact situation. Courts may also decide if
the statute or regulation violates a constitution (federal
or state), because all statutes and regulations must be in
harmony with the governing constitution. The landmark
case of Marbury v. Madison (1803) established the power of
the judiciary in interpreting constitutional law. For example, a nurse who questions the authority of the state board
of nursing may file a court action if the nurse has cause to
believe that there has been a legal or procedural error on
the part of the board’s action against him or her.
Two important legal doctrines, which are directly
derived from the U.S. Constitution, guide courts in their
decision-making role:
1. The doctrine of precedent or stare decisis literally
means to “let the decision stand.” This doctrine is applied by courts of law in cases with similar fact patterns that have been previously decided by the court
system. The court looks at the facts of the current case
before it reviews previous decisions that applied the
same rules and principles with a similar fact situation
and then arrives at a similar decision in the case currently before the court. This doctrine has great implications for nurses, because it gives nurses insight into
ways in which the court has previously fixed liability
in given fact situations. Nurses are cautioned to avoid
two important pitfalls when deciding if the doctrine of
precedent should apply to a given fact situation:
a. The previous case must be within the jurisdiction
of the court hearing the current case. For example,
a previous New York case decided by an appellate
court within the state of New York does not set
precedent for a California state court, although the
California court may model its decision after the
New York case. It is not compelled to do so because
two separate jurisdictions are involved. Within the
same jurisdiction, the case would set precedent. A
New York appellate decision would be relied on by
the lower courts in New York State.
b. The court hearing the current case may depart from
precedent and set a landmark decision, which is a
term that signifies that precedent is being changed
by the current court decision. Such a landmark decision is usually reached for one of several reasons.
Societal needs may have changed, or technology
may have become more advanced. In addition, a
court may find that to follow the previous decision
would further harm an already injured person. A
well-known example of a landmark decision was
the U.S. Supreme Court holding in Roe v. Wade
(1973). That court, for the first time in American history, recognized the right of a woman to seek and
receive a legal abortion during the first two trimesters of pregnancy.
2. A second doctrine that courts employ in duplication
of litigation and seemingly apparent contradiction in
decisions is termed res judicata, which means literally
“a thing or matter settled by judgment.” Res judicata
applies only when a legal dispute has been decided
by a competent court of jurisdiction, and no further
appeals are possible. This doctrine then prevents the
Legal Concepts and the Judicial Process
same parties in the original lawsuit from retrying the
same issues that were involved in the first lawsuit. Res
judicata prevents multiple litigation by parties who
lost in the original suit by not allowing those parties to
take the same issues to another trial court in the hope
of persuading that court to find in their favor.
Res judicata does not apply to competent appeals
to an appellate court, nor does it apply to parties who
were not named in the original lawsuit. Res judicata
likewise does not apply to issues that were not decided by the original trial court so that a second lawsuit
could be filed by the same parties on different specific
issues.
All laws, regardless of origin, are fluid and subject to
change. Constitutional laws may be amended. Statutory
laws may be amended, repealed, or expanded by future
legislative action. Administrative bodies may be dissolved,
expanded, or redefined. Judicial or decisional laws may be
modified or completely altered by new court decisions.
Classifications (Types)
of Law
Laws may be further classified into several different types.
Many nurses may have wondered about classifications such
as (1) common law, (2) civil law, (3) public law, (4) criminal
law, (5) substantive law, and (6) procedural law.
Common Law
Law may be classified according to the court in which it
was first instituted. The federal courts and forty-nine state
courts follow the common law of England. Common law
is defined as law derived from principles rather than rules
and regulations. It is based on justice, reason, and common sense. During the colonial period, the English common law was uniformly applied in the 13 original colonies.
After the American Revolution, individual states adopted
various parts of the common law, and differences in interpretation and enforcement began that still exist to this
day. Individual state statutory and judicial findings also
account for the variation of common law principles from
state to state.
Civil Law
Louisiana elected to adopt civil or Napoleonic laws,
because the origins of that state were of a predominantly
French influence. Derived from the civil laws of the French,
Romans, and Spaniards, Napoleonic or civil law may be
said to be based on rules and regulations.
Civil law may also be used to distinguish that area of
the law concerned with the rights and duties of private
persons and citizens. Civil law is administered between
citizens (private persons) and is enforced through the
courts as damages or money compensation. No fine or
imprisonment is assessed in civil law, and injured parties
5
usually collect money damages from individuals who have
harmed them. For example, in West Texas v. US Department
of Health and Human Services (2016), the court assessed a
$350 per day civil monetary fine until a skilled nursing
facility enacted policies and procedures that were in compliance with Medicare standards.
The court, however, may also decide that an action,
known as specific performance, be performed rather than
allow money damages, if the court deems that specific
performance best aids the injured party. For example, in
a contract dispute, the court may compel an employer to
reinstate a previously discharged worker and to pay the
worker compensation for the time he or she was without
employment rather than merely paying the worker for the
time spent without work.
Civil law may be further divided into a variety of
legal specialties, including contract law, labor law, patent
law, and tort law. Perhaps the most important area of law
to the professional nurse, tort law involves compensation
to those wrongfully injured by others’ actions. This area of
law is normally involved in malpractice claims that name
specific health care providers. Tort law is covered in depth
in Part III of this book.
Public Law
Public law is the branch of law concerned with the state
in its political capacity. The relationship of a person to the
state is at the crux of public law. Perhaps the best example
of public law is the entire field of criminal law.
Criminal Law
Criminal law refers to conduct that is offensive or harmful to society as a whole. If an act is expressly forbidden
or prohibited by statute or by common law principles, it
is referred to as a crime. Most often, crimes are viewed as
offenses against the state rather than against individuals,
and the state, city, or administrative body brings the legal
action against the offender. Examples of crimes include
minor traffic violations, theft, arson, and unlawfully taking
another’s life. Punishment for the commission of crimes
ranges from simple fines to imprisonment to execution.
Crimes can be classified as either misdemeanors or
felonies. Misdemeanors are lesser criminal actions and
are generally enforced through monetary fines rather than
actual jail time. An example of a misdemeanor could be
the theft of less than $500 dollars from a vulnerable adult.
Fines that are imposed for misdemeanors are less than
$1,000, and imprisonment, if it occurs, is for time periods
of less than one year. Felonies are more serious criminal
actions, most often involving fines of greater than $1,000,
and punishment by prison terms of greater than one year.
The theft of greater than $500 dollars from a vulnerable
adult would be considered a felony in most states.
The same action by a given individual may be the
basis for both a civil lawsuit and a criminal wrong. For
example, if a nurse removes a ventilator-dependent patient
6 Chapter 1
from a ventilator and the patient subsequently dies, the
state board of nursing may revoke the nurse’s license to
practice nursing (a criminal action) and the family may file
a wrongful death suit (a civil suit) against the nurse. In the
criminal case, the court would consider the intent of the
defendant as well as the actual action. In the civil case filed
out of the same action, the court only considers the action
performed and the standard of evidence is less stringent.
Standards of evidence are more thoroughly discussed in
the next chapter.
There are situations within nursing in which the
nurse may be said to have violated criminal laws, and
the number of criminal cases against nurses appears to
be increasing. Examples include backdating of records
(Nevada State Board of Nursing v. Merkley, 1997), narcotics/
medication diversion (Alterra Healthcare, 2011; Ferguson
v. United States, 2016; Grall v. State, 2011; Lewis v. State
Board of Nursing, 2009; State Board v. Abington, 2016; State
v. Gradisher, 2009; Sygula v. Regency, 2016), mistreatment
of patients (Loglisci v. Stamford Hospital, 2011; Mississippi
Board of Nursing v. Hanson, 1997; State v. Simmons, 2011),
falsifying records (Frazer v. Delaware Board, 2016; MacLean
v. Board of Registration in Nursing, 2011; Matter of Kun,
2016), substandard nursing care (Davis v. State Board of
Nursing, 2013; Leahy v. North Carolina Board of Nursing,
1997; Stevenson v. State, 2015; Zablonty v. State Board, 2014),
practicing without a license (People v. Odom, 1999), driving
under the influence of alcohol (Owens v. State Board, 2015;
Sulla v. Board of Registered Nursing, 2012), and the administration of drugs that cause or hasten a patient’s death
(Jones v. State of Texas, 1986).
A case example is State v. Kirby (2013) and the companion
case State v. Williams (2013). These two nurses were indicted
on criminal charges for failure to provide for a functionally
impaired person (a felony) and failure to report child abuse (a
misdemeanor) after the death of a 14-year-old individual with
cerebral palsy and quadriplegia who was cognitively impaired.
She lived with her parents. One of the nurses was the case
manager responsible for reviewing the child’s care on a semiannual base, and the other nurse was the supervisor for the
home-care personnel who cared for the child on a daily basis.
On autopsy, the child weighed 28 pounds and had bedsores all
over her body, an impacted rectum, a dilated colon, and pneumonia in both lungs. The court held in their conviction for both
charges that failure to provide for a functionally impaired individual and failure to report child abuse did not create double
jeopardy, which is a risk incurred from two sources simultaneously. As the court further explained, these individuals had
a duty to provide safe and adequate care for this individual
about whom a reasonable person could suspect had suffered
physical or mental injury or a condition that reasonably indicated abuse or neglect.
Sulla v. Board of Registered Nursing (2012) concerned
the three-year probation restrictions placed on a nurse’s
license after he pled no contest to a misdemeanor drunk
driving charge after losing control of his car on the way
home from a party and colliding with the center divider.
His blood alcohol level was 0.16. The nurse had an exemplary work record, character witnesses noted that he
seldom drank, and the psychiatrist who evaluated him testified that he did not meet the criteria for alcohol abuse or
dependency and that this was a single, isolated episode of
poor judgment. Additionally, there was no evidence that
consumption of alcohol in any way affected this nurse’s
ability to practice his profession. Thus, the nurse appealed
the restrictions on his license.
The California Court of Appeals upheld the disciplinary actions as imposed by the Board of Nursing. Driving
while intoxicated is a behavior that is dangerous to oneself and others. As such, the court found that it met the
legal definition of unprofessional conduct for a nurse. To
be grounds for discipline with respect to a professional
license, it is not necessary to show that unprofessional
conduct occurred during professional practice or had any
effect on one’s ability to practice. Additionally, it is not necessary to show that the unprofessional conduct is evidence
of an ongoing state of impairment that could have an effect
on one’s practice.
A case that supports a nurse’s actions is Shipman v.
Hamilton (2008), which began as a criminal suit against
a nurse for obstruction of a police officer. Two officers
came to the intensive care unit at midnight to deliver in
person an emergency protective order to a 60-year-old
male patient. The officers announced their purpose and
requested to speak to the patient’s nurse. The nurse readily
pointed out the patient’s room and, when asked about the
patient’s condition, said it would be better for the officers
to speak with the patient’s doctor before seeing the patient.
The nurse at this point was worried that the patient could
experience serious complications if confronted by a stressful stimulus.
The officers then requested that the nurse call her
supervisor. After phoning the on-call physician, the nurse
notified the officers that the patient would be in the unit
overnight and to come back in the morning. The on-call
physician also advised the nurse to contact the supervisor,
which she did. While speaking with the supervisor, one of
the officers became agitated and took the telephone from
the nurse’s hand. He then spoke with the nursing supervisor, who requested he return in the morning to deliver the
protective order.
During the time that the officer was speaking with
the nursing supervisor, the nurse caring for the patient
returned to the nursing station. The officer went into the
nursing station, arrested the nurse for obstructing service
of process and obstructing a police officer, and had her
taken from the hospital in handcuffs.
In the subsequent trial, the court noted that an arrest
requires a warrant or probable cause. There was no way, the
court ruled, that the officer could have thought the nurse’s
actions amounted to either of the offenses for which she
was arrested. The nurse told the officer where the patient
was located and did nothing to prevent him from contacting the patient. When the nurse informed the officer that it
Legal Concepts and the Judicial Process
was not advisable for him to contact the patient, she had
two responsible staff members collaborate that fact, leaving the officer to either leave or serve the patient with the
emergency order. The court in finding for the nurse noted
that obstruction of a police officer, by definition, requires
physical resistance intended to obstruct the officer in the
execution of his lawful duties. While the nurse refused to
give the officer permission to enter the patient’s room, permission was not hers to give or withhold. Thus, she did not
obstruct the officer.
EXERCISE 1–2
Describe instances in which the conduct of the professional
nurse (with regard to the treatment of patients) might be cause
for possible criminal charges. For example, the administration of
toxic chemotherapeutic agents may place a patient in a more
life-threatening condition than the disease process does. How
might a court of law distinguish such a case?
Substantive Law
Substantive law, which defines the substance of the law,
may be further classified into civil, administrative, and
criminal law. Thus, substantive law concerns the specific
wrong, harm, or duty that caused the lawsuit or an action
to be brought against an individual. Lawsuits brought to
remedy violations of these laws must eventually prove the
existence of the elements that comprise the actual claims.
Procedural Law
Procedural law, which governs the procedure or rules to
create, implement, or enforce substantive law, may vary
according to the type of substantive law involved and the
jurisdiction in which the lawsuit is brought. Procedural
law concerns the process and rights of the individual
charged with violating substantive law. Procedural issues
that may be contested include admissibility of evidence,
the time frame for initiating lawsuits, and the qualifications of expert witnesses.
Due Process of Law and
Equal Protection of the Law
Due process of law, a phrase often misquoted, applies
only to state actions and not to actions of private citizens.
Basically, the due process clause of the U.S. Constitution is
intended to prevent a person from being deprived of “life,
liberty, or property” by actions of state or local governments (Amendment 14, Section 1, 1787). Although difficult
to define, the due process clause is founded on the fundamental principle of justice rather than a rule of law, and
ensures that the government will respect all of a person’s
7
legal rights, not just some or part of those legal rights,
when it deprives a person of life, liberty, or property.
Due process protects the public from arbitrary actions.
Laws must operate equally among all persons, and laws
must be definite, not vague. Due process is violated if a
particular person of a class or community is singled out
by the law. A “person of ordinary intelligence who would
be law abiding can tell what conduct must be to conform
to (the law’s) regulation, and the law is susceptible to uniform interpretation and application by those charged with
enforcing it” (State v. Schuster’s Express, Inc., 1969, at 792).
The two primary elements of due process are (1) the
rule as applied must be reasonable and definite, and (2) fair
procedures must be followed in enforcing the rule. This latter provision ensures that adequate notice be given before
the rule is enforced so that persons who will be affected by
it will have time to explain why the rule should or should
not be enforced. Nurses become involved in the application of due process when requested to appear before state
boards of nursing, in that they must be given proper notice
of the upcoming hearing and of the charges that the board
will be evaluating during the hearing. In the hospital setting, the concept of due process has been interpreted to
include a hospital’s right to licensure by the state and the
right of qualified medical personnel to staff appointments
in public hospitals.
An older case example concerning due process of
the law affecting boards of nursing is Slagle v. Wyoming
State Board of Nursing (1998). In that case, an inmate in
the Wyoming correctional system filed a complaint with
the Wyoming Board of Nursing, claiming an advanced
geriatric nurse practitioner was practicing illegally as an
advanced practitioner in adult nursing. The board of nursing sent notice to the nurse, requesting that she substantiate her qualifications in adult advanced practice nursing.
The nurse sent back numerous materials, including a letter of recommendation from the head of the University of
Utah nursing program that she had attended.
The nurse thought that the board was in the process
of updating her qualifications and would be enlarging the
scope of her license to include adult advanced practice.
In fact, the board of nursing was conducting a disciplinary investigation to see whether the nurse had practiced
beyond the scope of her geriatric advanced nurse practitioner standing.
In the subsequent lawsuit, the Supreme Court of
Wyoming dismissed the board of nursing sanctions against
the nurse because the notice the board of nursing had sent
was so misleading that it violated the nurse’s constitutional
right to due process of law. The final conclusion was that
the board of nursing gave this nurse adult advanced nurse
practitioner standing.
Note, however, that minor errors will not be seen
as failing to give proper notice. In Colorado State Board
of Nursing v. Geary (1997), the notice from the board of
nursing was mailed to the nurse at an incorrect address.
In Colorado, notice had to be sent to the nurse at the last
8 Chapter 1
known address and to the attorney, if any, who had notified the board that he or she was representing the nurse.
In this case, the attorney received the notice, corrected the
incorrect address, and sent the notice to the nurse at her
correct address. The nurse received this latter notice from
her attorney, but she decided not to appear at her disciplinary hearing. Because she was not at the hearing, the board
placed a two-year probation on the nurse’s license.
In the subsequent lawsuit, the nurse argued that she
had not received notice, as the original notice was misaddressed. The court ruled that when an agency mails out
an administrative notice, the law presumes the notice
was properly addressed and the person to whom it was
addressed received it. The board does not have to prove
the nurse received its notice. The nurse must prove she did
not receive the notice and, because her attorney had been
sent the notice, she had been “duly served.” Thus, the court
upheld the two-year probation for the underlying charges
of professional misconduct. A similar finding was upheld
in Beverly Enterprises v. Jarrett (2007).
Like due process, the equal protection clause of the
Fourteenth Amendment also restricts state actions and
has no reference to private actions. More than an abstract
right, the equal protection of the law clause guarantees
that all similarly situated persons will be affected similarly.
Laws need not affect every man, woman, and child alike,
but reasonable classifications of persons must be treated
similarly (Dorsey v. Solomon, 1984). Thus, states may not
enforce rules and regulations based solely on classifications as determined by race, religion, and/or gender. The
due process clause does not preclude states from resorting
to classifications of persons for the purpose of litigation,
but “the classification must be reasonable and not arbitrary
and must rest upon some ground of difference having a
fair and substantial relationship to the object of legislation
so that all persons similarly circumstanced shall be treated
alike” (Ex Parte Tigner, 1964, at 894–895).
In determining whether equal protection of the law
has been achieved, courts use the rational basis test, which
essentially states that persons in the same classes must be
treated alike. In addition, this test states that reasonable
grounds that further legitimate governmental interests
exist in making a distinction between those persons who
fall within the class and those persons who fall outside the
class (Ohio University Faculty Association v. Ohio University,
1984).
A case decided under the equal protection clause of
both the U.S. and Arizona Constitutions held that it was
unreasonable to allocate treatment within a service category solely on the criterion of age (Salgado v. Kirschner,
1994). In that case, a middle-aged Medicaid recipient was
denied a lifesaving liver transplant based on an Arizona
statue that limits Medicaid coverage for medically necessary transplants to persons under the age of 21. The court
found that age was the only criterion used and that age
was medically irrelevant to liver transplant outcomes, in
that no evidence linking age to a greater survival rate was
shown. This case is significant in that age, if used to set
restrictions on care, cannot be the sole factor considered
nor can it be medically irrelevant.
The distinction between due process and equal protection was perhaps best summarized in a 1983 case in which
the court stated that “the difference between due process
and equal protection of the law is that due process emphasizes fairness between state and individual regardless of
how other individuals in the same situation are treated
while equal protection emphasizes disparity in treatment
by a state between classes of individuals whose situations arguably are indistinguishable” (Peterson v. Garvey
Elevators, Inc., 1983, at 897).
The Judicial Process
To fully appreciate the various types and classifications of
laws, substantive and procedural law, and the application
of these specific procedures, an understanding of the court
system is helpful. The next section addresses the judicial
process in the United States.
Questions of Law or Fact
Facts are determined by evidence presented by both sides
in a legal controversy. Questions of fact present the dispute that the jury answers. Facts are not necessarily what
actually happened, because persons on both sides will
have perceived a given incident through their own eyes.
Thus, each party to the controversy brings unique perceptions to the trial setting. The fact-finder has the responsibility to weigh admissible evidence as presented and to
decide where the facts of the case really lie. For example,
a question of fact could concern such issues as admission
to a hospital. Was the patient formally admitted to a hospital so that a patient–hospital relationship was established?
Questions of fact could also include the cost of an operation, the cost of a particular hospital service, or the people
involved in a particular incident. Typically, questions of
fact have concerned professional practice standards and
whether these practice standards have set the standard of
care for individual patients.
An interesting question of fact occurred in Estate of
Fazio v. Life Care Centers (2009). In that case, the issue at
trial level concerned damages for decubiti ulcers that had
developed and progressed while the deceased was a resident of a nursing facility. The judge allowed photographs
to be shown to the jury, noting that they were “gruesome,”
but that they also accurately depicted the extent and severity of the pressure lesions. On appeal, the appellate court
upheld the judge’s decision to allow the photographs to be
introduced, noting that a piece of evidence that proves a
point that is material to the lawsuit should not be excluded
merely because it might cause an unpleasant emotional
reaction by the jury.
Sometimes both sides in a controversy agree to certain
facts prior to the trial. In these cases, the only questions to
Legal Concepts and the Judicial Process
be resolved concern questions of law, which involve the
application or interpretation of laws and are determined
by the judge in the court. For example, the judge may rule
that a particular provision in a nurse’s contract was against
public policy and is therefore unenforceable. Or the judge
may rule that a particular provision in the contract is reasonable and thus enforceable. Federal and state statutes,
rules and regulations, prior court decisions, new technology, and societal needs may all play a part in determining
the law as it applies to a specific trial.
Fact-finders, usually the jurors at trial, determine the
facts that are admissible. These selected people are charged
with weighing the admitted evidence, while the judge or
magistrate determines questions of law. If there is a trial
without a jury, then the judge serves as both the fact-finder
and the determiner of questions of law.
A case example may help illustrate this distinction. In
McGothlin v. Christus St. Patrick Hospital (2011), the facts
were relatively simple. It was undisputed that the patient
had somehow sustained a patellar dislocation at some
point after knee replacement surgery. The original surgery
was followed by nine subsequent procedures, including
the eventual removal of the patient’s patella, which left her
permanently disabled. The question concerned how the
patellar dislocation occurred.
The patient noted that there were two incidents that
could have caused this event. One possibility is that the
injury occurred when a single staff member was assisting
the patient to use the commode. As she was being positioned, the high seat, which was not clamped to the commode, became unsteady, and the patient fell to the floor.
The second possibility was that the injury occurred when
the patient was dropped during a two-person transfer
from the bed to the chair.
Attorneys for the institution noted that none of the
nurses who had cared for this patient had any recollection of either event and that there was no documentation
in the patient’s chart about these events. Similarly, there
were no incident reports concerning either of these alleged
falls. The defense did have an orthopedic expert testify
that dislocation of the patella is a possible and sometimes
unavoidable complication during necessary post-operative
ambulation of a patient.
In this case, the jury found that that there was no liability on the part of the defendant nurses and institution. The
court concluded that the jury was led by inconsistencies in
the testimony of family members and the patient herself in
deciding this outcome. As the court noted, the jury is the
final authority on the credibility of the witnesses and thus
on the facts of the case.
Jurisdiction of the Courts
Jurisdiction, the authority by which courts and judicial
officers accept and decide cases, is the power and authority of a court to hear and determine a judicial proceeding
(Garner, 2014). Jurisdiction determines the court’s ability
9
to hear and rule on a given lawsuit. Jurisdiction may be
divided into three categories.
Subject matter jurisdiction, sometimes called res
jurisdiction, refers to the court’s competency to hear and to
determine a given case within a particular class of cases.
For example, a court may have jurisdiction only in cases
that involve probate matters (wills and estates), family matters (adoptions, divorces, and child custody), or criminal
matters. Subject matter jurisdiction, along with the nature
of the cause of action, may be determined by the amount
or value of the claim as pled. For example, courts may have
jurisdiction of a given case up to $1,000 or to cases that
have a pled-damage figure of between $1,000 and $5,000.
Personal jurisdiction, also known as in personam jurisdiction, refers to the power of a given court regarding a particular person. Personal jurisdiction is the legal power of a
court to render a judgment against a party or parties to the
action or proceeding. For example, personal jurisdiction
often involves the county of the defendant. A court situated in the county of the defendant would have personal
jurisdiction over the defendant. A court situated in the
county of the plaintiff’s residence can also have personal
jurisdiction over the parties to the lawsuit.
The third jurisdictional issue concerns the court’s ability to render the particular judgment sought. Any court
possesses jurisdiction over matters only to the extent
granted it by the constitution or legislation of the sovereignty on behalf of which it functions. Territorial jurisdiction, or the court’s ability to bind the parties to the action,
is a part of this third meaning of jurisdiction. Territorial
jurisdiction determines the scope of federal and state court
power. State court territorial power is determined by the
U.S. Constitution’s Fourteenth Amendment, and federal
court jurisdiction is determined by the Fifth Amendment.
Courts may be either state or federal in origin. Federal
courts seek to ensure that laws created through the U.S.
Congress are enforced, and state courts have their sole
jurisdiction within the given state. Overseeing the process
is the U.S. Supreme Court, which has jurisdiction over all
of the United States and its territories.
Overlapping or concurrent jurisdiction may occur
when more than one court is qualified to hear a given
dispute. In some areas of overlapping or concurrent jurisdiction and in some instances of specific subject matter
jurisdiction, the federal Constitution gives guidance. For
example, the federal courts have original jurisdiction over
admiralty cases, crimes involving federal laws, bankruptcy
cases, and patent laws. The U.S. Constitution gives the U.S.
Supreme Court original jurisdiction (that which is inherent
or conferred to the court) over cases “involving ambassadors, other public ministers and consuls and those in which
a state is a named party” (Article III, Section 2, 1787).
If there is no mandatory court of jurisdiction, the attorneys representing the party filing the lawsuit will advise
their client of the optimal court in which to file the lawsuit. Concurrent jurisdiction frequently occurs in cases
with multiple defendants and in cases that involve parties
10 Chapter 1
residing in different states. There are many reasons why
one court may be more favorable to the party filing the
lawsuit, including shorter length of time to trial, more
favorable damage awards, and shorter distances for witnesses to travel.
State Courts
Trial Courts
The court of original jurisdiction in most states is the
trial court, and it is the first court to hear legal disputes.
At this level, applicable law is determined, evidence is
presented and evaluated to ascertain the facts, and either
a judge or a jury functioning under the guidance of a
judge applies the law to the admissible facts. As stated in
the preceding sections, the judge determines questions of
law and then guides the jury in applying this law to the
questions of fact.
Even though the jury’s tasks are to determine facts
and, after proper instructions, to apply the law to the facts,
the judge retains control over the entire trial process. The
judge may find that the evidence is inadmissible or that
the evidence as presented is insufficient to establish a factual issue for the jury to resolve. The judge may dismiss the
case or may overrule a jury decision if he or she finds that
justice has not been served.
Most state courts operate on a three-tier system.
Sometimes called inferior courts, trial courts are the courts
with original jurisdiction in most states with three-tier systems. Other names for this first court in which the lawsuit
is filed include circuit courts, superior courts, supreme courts
(New York), courts of common pleas, chancery courts, and district courts.
State Appellate Courts
The side that loses the case at trial level may decide to pursue the case at the appellate level if there are procedural or
legal grounds on which to base an appeal. In a three-tier
system, these state appellate courts, or courts of intermediate appeals, do not rehear the entire trial but base their
decisions on evidence as presented in a record of the trial
hearing. There are no witnesses, new evidence, or jurors.
The intermediate court may concur (agree) with the previous decision, reverse the prior decision, remand (send the
case back to the trial level), or order a new trial.
Intermediate courts of appeal have different names
throughout the states. They may be called courts of appeal,
intermediate appellate courts (Hawaii), appellate divisions of the
supreme court (New York), superior courts, courts of special
appeals (Maryland), courts of civil appeals, and courts of criminal appeals. Nine states have a two-tier system (Delaware,
Maine, Montana, New Hampshire, Rhode Island, South
Dakota, Vermont, West Virginia, Wyoming, and the
District of Columbia) and thus have no intermediate appellate courts.
State Supreme Courts
The ultimate court of appeal in the state is usually named
the state supreme court. This court hears appeals from
the intermediate appellate courts and also serves to adopt
rules of procedure for the state and to license attorneys
within the individual state. This court is the final authority for state issues, unless a federal issue or constitutional
right is involved. The state supreme court may hear cases
directly from the trial level. For example, if the trial court
case concerned the interpretation of the state constitution
or a state statute, the case can be appealed directly to the
state supreme court. An example of such a direct appeal
involving the interpretation of the Missouri nurse practice
act occurred in Sermchief v. Gonzales (1983).
Other names for this highest court of appeals within the
state include supreme court of appeals (West Virginia), supreme
judicial court (Maine, Maryland, and Massachusetts), and
court of appeals (New York and the District of Columbia).
Some states may also have a separate supreme court of
criminal appeals (Texas and Oklahoma).
EXERCISE 1–3
Explore your own state court system. What types of trial courts
exist and what is their jurisdiction? Which court would most likely
hear nursing malpractice cases? To which court would appeals
be sent in your state system?
Federal Courts
The structure of the federal court system has varied a
great deal throughout the history of the United States. The
Constitution provides merely that the judicial power of
the United States be “vested in one Supreme Court, and in
inferior courts as Congress may from time to time ordain
and establish” (Article III, Section 8, 1787). Thus, the only
indispensable court is the Supreme Court. Congress has
established and abolished other U.S. courts as national
needs have changed over time.
Courts are presided over by judicial officers. In the
Supreme Court, the judicial officers are called justices. In
the courts of appeals, district courts, and specialty courts,
most of the judicial officers are called judges. The authority,
duties, and benefits assigned to judicial officers are enacted
and amended by Congress.
District Courts
The federal court system mimics the majority of state court
systems. The original trial courts in the federal three-tier
system are the U.S. district and territorial courts and the
specialty courts such as the U.S. court of claims, the U.S.
bankruptcy courts, and the U.S. patent courts. There are
currently 94 district and territorial courts, with at least
Legal Concepts and the Judicial Process
one district court in each state as well as the District of
Columbia. There are also federal specialty courts, including
the Tax Court, Court of Federal Claims, Court of Veterans
Appeals, and the Court of International Trade. The district
and territorial courts normally hear cases in which a federal
question (questioning a federal statute or violations of the
rights and privileges granted by the U.S. Constitution) is
involved or in which the parties to the suit have citizenship
in different states (diversity of citizenship). In cases involving diverse citizenship, the federal court system applies
rules of federal procedure in deciding applicable state law.
Courts of Appeal
The intermediary courts are the U.S. courts of appeal.
These courts were known as the circuit courts of appeal prior
to June 25, 1948. There are currently 13 courts of appeal,
not including the U.S. Court of Appeals for the Armed
Forces, and they are frequently called U.S. circuit courts
even today. These courts are located in 13 areas (or circuits)
of the country. The U.S. courts of appeal are numbered 1
through 11, with the District of Columbia Court of Appeals
being the 12th court. Each of the first 12 courts of appeal
consists of one to nine state regions and territories. The
13th district includes all of the United States and territories
and is named the United States Court of Appeals for the
Federal Circuit. These courts serve to hear cases originating from the federal trial courts.
Supreme Court
The highest level of the federal court system is the U.S.
Supreme Court, and its decisions are binding in all st…