Essay/Term paper: Nursing ethics and malpractice

Essay, term paper, research paper:  Miscellaneous

INTRODUCTION

In every nurse's career, the

nurse is faced with many legal or ethical dilemmas. One of the professional

competencies for nursing states that nurses should " integrate knowledge of

ethical and legal aspects of health care and professional values into nursing

practice". It is important to know what types of dilemmas nurses may face

during their careers and how they may have been dealt with in the past. It

is also important for nurses to understand what malpractice is and how they

may protect themselves from a malpractice suit.



LAW VS. ETHICS

It is important

to first understand the difference between law and ethics. Ethics examines

the values and actions of people. Often times there is no one right course

of action when one is faced with an ethical dilemma. On the other hand, laws

are binding rules of conduct. When laws are broken, it is punishable by an

authority figure.

There are four types of situations that pertain to law

vs. ethics. The first would be an action that is both legal and ethical. An

example of this would be a nurse carrying out appropriate doctor's orders as

ordered. A nurse may also be faced with an action that may be ethical but

not legal, such as allowing a cancer patient to smoke marijuana for medicinal

purposes. The opposite may arise where an action may be legal but not ethical.

Finally, an action may be neither legal or ethical. For example, when a nurse

makes a medication error and does not report it.



ETHICAL DUTIES

Nurses

have many ethical duties to their clients. The main ethical duties are: nonmaleficence,

beneficence, fidelity, veracity, and justice.

The duty of nonmaleficence

is the duty to do no harm. The nurse first needs to ask him or herself what

harm is. When a nurse gives an injection she is causing the patient pain but

she is also preventing additional harm such as disease development or prolonged

pain. Therefore, the nurse must ask herself a second question about how much

harm should be tolerated.

The duty of beneficence is to do good. In a sense,

it is at the opposite end of nonmaleficence or at the positive end of the nonmaleficence

> beneficence continuum.

The duty of fidelity means to be faithful, or to

keep to your promises. Therefore, if a nurse tells his patient that he will

be back with her pain medication within fifteen minutes then he has an ethical

duty to follow through with what he has said.

Truth telling or, information

disclosure, is the principle behind the duty of veracity. The main argument

against information disclosure is that the disclosure of bad news may shatter

the patient's hope. Those in favor of information disclosure state that it

is part of the patient's rights to know what is happening and that patients

with potentially fatal illnesses are capable of handling the truth.

Their

are three types of justice: distributive justice, compensatory justice, and

procedural justice. Distributive justice concerns the comparative treatment

of individuals in the allotment of benefits and burdens (Purtilo, 1993). An

example in which a question of distributive justice may arise is when there

is a limited amount of federal grants and research money is needed for AIDS,

cancer, and many other deserving medical research projects. Compensatory justice

deals with the compensation for wrongs that have been done (Purtilo, 1993).

An example of this would be a jury awarding a victim money based on pain and

suffering from medical malpractice.

Finally, procedural justice deals with

ordering something in a "fair" manner (Purtilo, 1993). An example would be

the process in which people are eligible to receive organ transplants, the

sickest patients are at the top of the list.



ETHICAL RIGHTS

There are

three ethical rights that are relevant to health care. These rights are: the

right to life, autonomy, and health care.

Most people think of antiabortion

activists when they hear the phrase "right to life". However, this right goes

far beyond the boundaries of abortion. The idea of right to life has come

from both religious and philosophical backgrounds. Many hot topics in ethics

relate to the right to life. These topics include euthanasia and the discontinuation

of life support treatments.

The right to autonomy is also referred to as

the right of self-determination.

This right allows for the patient to make

their own decisions, such as: determining what course of treatment he may take

for a disease, refusing treatment, or refusing medications.

The right to

health care requires that a society shall provide the funding, personnel, and

facilities necessary to ensure that individuals have access to necessary health

care. Health care for everyone alsorelates to distributive justice. The question

being asked today is shall we take what health care resources we have and spread

it very thin but so that everyone has equal access of care, or shall we take

what resources we have any distribute them in such a way that we will do the

most good to for the overall population?



American Nursing Association (ANA)

Code of Ethics

In 1985, the ANA established a Code of Ethics for nurses that

contains eleven points. Each of the eleven points is a general principle rather

than specific guidelines. For instance, a nurse faced with an ethical dilemma

involving resuscitation will find no mention of resuscitation in the Code of

Ethics. The ANA has stated that the Code of Ethics is not open to negotiation,

they are also currently in the process of updating the Code of Ethics. In

this section, each of the eleven points will be stated and discussed.

(1)

"The nurse provides services with respect for human dignity and the uniqueness

of the client unrestricted by considerations of social or economical status,

personal attributes, or the nature of the health problem." According to this

statement, a nurse can not refuse to care for someone because they may be homosexual,

black, have AIDS, had an abortion, etc. If the nurse has strong ethical views

of her own, she may ask for a reassignment. However, if the supervisor refuses

to reassign or a reassignment is not possible, the nurse can not refuse care

to that patient and must give the same standard of care to that patient as

she would any other patient.

(2) "The nurse safeguards the client's right

to privacy by judiciously protecting information of a confidential nature."

This statement talks about the importance of confidentiality and privacy.

The underlying ethical principles are autonomy and fidelity. The patient

has a right to maintain control over his personal information.



Fidelity deals with being faithful to one's agreements,

i.e. just by being a nurse the nurse has agreed to abide by the ANA Code of

Ethics and therefore has a duty to not sway from it. In the next section is

a real life case study about how a nurse with a special interest in ethics

dealt with an ethical dilemma about HIV and confidentiality in a prominent

Philadelphia hospital. "The nurse's ethical belief in the patient's right

to maintain autonomy must outweigh the temptation to gossip" (Nurse's Handbook

of Law & Ethics, 1992).

(3) "The nurse must safeguard the client and public

when health care and safety are affected by the incompetent, unethical, or

illegal practice of any person." Under this ethical statement a nurse has

the duty to report cases of child abuse, domestic abuse, or any act of negligence

or incompetence by another health care worker. Often times, it is hard for

a nurse to determine whether or not "whistle blowing" on a colleague is warranted.

There is a systematic approach (Nurse's Handbook of Law & Ethics, 1992) to

help determine whether or not to report on a colleague, and if so, how to do

so in an ethical manner. The nurse should begin by gathering all the facts.

Document why you feel that whistle blowing may be warranted and the incidents

in which they occurred. Avoid making any statements that may be considered

personal. Next, state the problem. Again, avoid making any personal statements

and consider any possible causative factors. It may help to enlist the help

of a trusted colleague to review th

e problem with. Thirdly, identify your

objectives. In other words, your purposes for wanting to confront the problem.

If you feel that whistle blowing is warranted proceed to the last step which

is to confront the problem. When confronting the problem, be direct but non-threatening.

(4)

"The nurse assumes accountability and responsibility for individual nursing

judgments and actions." If a nurse makes a medication error, not only does

he have a legal obligation to report that error, but according to the above

statement, he has an ethical obligation as well.

(5) "The nurse maintains

competence in nursing." This statement can be applied to many different things.

For example, if you as a nurse are unsure about doing a procedure, asks someone

who is more familiar with the procedure to guide you through it. Also, a nurse

has the ethical obligation to never stop learning. The field of nursing keeps

developing with the technology. Therefore, each nurse shall continue his or

her education by attending in services, seminars, or earning "X" amount of

continuing education points per year.

(6) "The nurse exercises informed judgment

and uses individual competence and qualification as criteria in seeking consultation,

accepting responsibilities, and delegating nursing activities to others."

In a nutshell, a nurse needs to know his scope of practice within the state

in which he works. Nurses can not handle all situations and they need to understand

when it is appropriate to consult with a psychiatrist, social worker, or a

physician about a patient's condition. On the opposite ends a nurse needs

to understand which tasks she can delegate and to whom. For instance, in NYS,

an RN would not delegate the responsibility of assessing a patient to an LPN

because RNs are the only ones that may legally make an initial assessment.

(7)

"The nurse participates in activities that contribute to the ongoing development

of the profession's body of knowledge." When some people first read this statement,

they may think that it is in regards to being involved in professional organizations.

I too first thought this but upon further thought, I believe that this statement

refers to being involved in nursing research. The most obvious way to be involved

is to conduct your own nursing research. However, for many nurses, this may

not seem feasible. There are other ways to be involved with nursing research

besides actively conducting it. Nurses can greatly contribute to the profession's

knowledge by reading nursing journals and implementing the findings or interventions

that are shown to be positive to the patient or the profession.

(8) "The

nurse participates in the profession's efforts to implement and improve standards

of nursing." It is under this statement where being involved in professional

organizations, such as the ANA and NYSNA, comes in. Another way to participate

in improving nursing as a profession is to become politically involved. A

nurse can become politically involved by attending town or state meetings and

voicing their concerns, lobbying for bills at both the state and federal level,

and by writing to their state and federal congressmen about issues that concern

them and bills that are up for vote. A nurse can find out about political

issues by being attuned to the world around them, being active in their state

nursing association, and even by contacting the ANA itself. On their web page,

the ANA has a section called "Capitol Watch" which discusses current issues

of importance and how to contact your government representatives.

(9) "The

nurse participates in the profession's efforts to establish and maintain conditions

of employment conducive to high quality nursing care." Nurse's have an ethical

obligation to keep their work places safe, not only for the patients, but for

themselves so that they will have the staffing and equipment to perform quality

nursing care.

(10) "The nurse participates in the profession's efforts to

protect the public from misinformation and misrepresentation and to maintain

the integrity of nursing." This statement speaks of the importance of patient

education. Teaching is a very big part of a nurses role. Patient advocacy

would fit under this statement as well as informed consent.

In a study

done by Deborah Taplin (Hunt, 1994), twenty-three males that had undergone

a TURP and eighteen females that had undergone a D&C were interviewed about

how much information they knew about their procedure from the informed consent.

Deborah found the following results: (1) 56% of the men did not know exactly

what the operation was. (2) 21% of the men thought that their prostate was

removed. (3) The women responded vaguely about the D&C and hysteroscopy procedures.

(4) 15% of all those interviewed did not know what a consent form was for.

(5) 61% of the men and 66% of the women stated that there were no other treatment

options. (6) 56% of the men and 39% of the woman stated that there were no

risks involved in the procedure. (7) None of the subjects mentioned the major

risks of the treatments and only two subjects mentioned anesthetic risks.

(8) Only 17% of the men and 61% of the women actually read the consent form.

This

study concludes that nurses can not assume that a patient has fully consented

to a procedure just because the consent form is signed. As the patients' advocates,

nurses should take the initiative to go over the consent form with their patients

even after it is signed. Many patients feel more comfortable asking questions

to a nurse than a physician.

(11) "The nurse collaborates with members of

the health profession and other citizens in promoting community and national

efforts to meet the health needs of the public."



A REAL LIFE ETHICAL DILEMMA

Sally

Johnson RN, MS is a nurse in a substance abuse center at a prominent Philadelphia

hospital. Sally has been active with her hospital's ethical committee for

the past four years. Sally shared with me an ethical dilemma that she faced

that stands out in her mind. It happened a number of years ago at a independent

substance abuse treatment center before her involvement with the ethical committee

at the hospital in which she now works. Here is her experience in her own

words:



"Only once did I take a very direct (and in PA illegal) controversial



course of action. In this case, the patient was an active prostitute

addicted

to IV heroin. She already conceived and delivered three

HIV infected babies

and had no compunction to stop any of her

behavior. In fact, she would tell

me, 'I plan to take as many of those

SOBs with me as I can... I'm spreading

the wealth to as many people

as possible and as often as possible!' I did

an anonymous disclosure

to the appropriate division of our local public health

department. I slept

better that night for doing so."

Sally also discussed

hospital ethics committees with me. There are many functions of an ethics

committee. These functions include: policy development, education, case consultation,

addressing a single issue and addressing issues pertinent to a specific population.

Sally's committee is devised of 1/3 physicians. 1/3 nurses, and 1/3 clergy,

social workers, or other health professionals. Because nurses work so closely

with patients, they are often the first to identify a potential ethical dilemma.

Ethical committees allow these nurses to voice their concerns and share with

the other people of the committee potential ethical dilemmas in the hospital.



NURSING

LIABILITY AND LAWSUIT CAUSES

Before 1932, nurses were expected to follow

every doctors' orders without question. In Byrd v. Marion General Hospital

(1932), the North Carolina Supreme Court ruled that nurses should follow doctors'

orders unless they were obviously negligent, in which case, a nurse can be

found liable (Nurse's Handbook of Law & Ethics, 1992). After World War Two,

nursing education and licensure requirements increased and tasks became more

complex. This allowed nurses greater autonomy but also increased the risk

of them being held liable for mistakes.

The two major reasons for lawsuits

against nurses are medication errors and falls (Nurse's Handbook of Law &

Ethics, 1992). Other common reasons include: operating room errors (i.e. problems

with a sponge count), mix-ups during patient transfers, communication breakdown

between nurses and physicians, and inadequate observation of a patient.





AVOIDING

MALPRACTICE LIABILITY

According to the article, "Avoiding a Malpractice Nightmare"

in Nursing 90, there are twelve steps to avoiding malpractice liability. These

steps are listed below.



1. Know your strengths and weaknesses

2. Evaluate

your assignment

3. Delegate carefully

4. Carry out orders cautiously

5.

Administer medications carefully

6. Maintain a rapport with the patient

7.

Watch what you say

8. Read before you sign

9. Document carefully and accurately

10.

Exercise caution when assisting with procedures

11. Follow hospital policies

and procedures

12. Keep policies and procedures up to date



MALPRACTICE

DEFENSES

If a nurse is sued for malpractice, there are two common defenses

that he or she can use: respondeat superior and borrowed servant (Nurse's Handbook

of Law & Ethics, 1992).

Respondeat superior is Latin for "let the master

answer", it is also known as the "Theory of Vicarious Liability." This theory

states that if a nurse is found negligent doing something under her supervisor's

direction, then that nurse should not have to bear the brunt of the damages.

This theory can be used as a defense for all occupations, not just health

care.

The borrowed servant theory is also known as the "Captain of the Ship"

doctrine. This defense is still used but less often than in the past. This

defense may be used when a nurse commits a negligent act under the direct supervision

of someone else (i.e. assisting in a procedure at the emergency department).

Res

ipsa loquitur allows for the plaintiff to prove negligence with circumstantial

evidence. This is useful when the defendant may be the only one who has knowledge

about the patient's injury. It is Latin for, "The thing speaks for itself".

Normally in court, the plaintiff has the responsibility to prove to the court

that the defendant was negligent. When res ipsa loquitur is applied, the responsibility

shifts to the defendant and he or she must prove that the injury was caused

by some other reason than his or her negligence. One of the most common cases

where res ipsa loquitur is applied is in cases where a foreign object (i.e.

sponge) was left in the body after surgery.



SUMMARY

Facing legal and ethical

issues during one's nursing career may be as common as taking vital signs.

Often times, there's not just one right course of action to take. The ANA

Code of Ethics are guidelines to help a nurse determine which course of action

to take. Many times, an ethical decision may be made that holds to one of

the guidelines but may infringe on another or the action may be ethical but

not legal (or vice versa).



References





Nurse's handbook of law & ethics. (1992). Springhouse, PA: Springhouse Corporation.



Catalano, J.T. (1996). Contemporary professional nursing. Philadelphia:

F.A.

Davis Company.

Hunt, G. (Ed.). (1994). Ethical issues in nursing.

London: Routledge.

Lancombe, D.C. (1990). Avoiding a malpractice nightmare.

Nursing 90, 20

(6), 42-43.

Purtilo, R. (1993). Ethical dimensions

in the health professions (2cd ed.).