Defining Misdemeanor and Felony: Legal Aspects in Health Care Delivery System
As the roles and duties of nurses expand, so also does their legal accountability. In the past, many nurses worked under the supervision of a physician, few carried liability insurance, and even if nurse’s action were the direct cause of harm to a patient, the primary liability for the nursing action fell on the employing agency or physician. In modern practice, nurses asses and diagnose patients and plan, implement, and evaluate nursing care independently. Full legal responsibility and accountability for these nursing action rest with the nurse. Nurses are increasingly the subject of both civil and criminal negligence cases and are being brought to court to defend their practice. Although many nurses continue to work in traditional settings like hospitals and nursing homes, more nurses are working in nontraditional community settings., such as home care agencies, clinics, day care centers, and nurse-managed health centers (Gibelman, & Whiting, (1999). Advanced practice nurses may have independent practices. It has never been more important for nurses to document their actions carefully and act in ways to prevent malpractice accusations. Nurses who wish to avoid legal conflicts need to develop trusting nurse-patient relationships (satisfied patients rarely sue), practice within the scope of their competence, and identify potential liabilities in their practice and work to prevent them (Clevette, Erbin-Roesemann & Kelly, 2007).
Nursing liability is usually involved with tort law. It is important for the nurse to know the differences between malpractice (an unintentional tort) and intentional torts. Nurses must also recognize those nursing situations in which negligent action are most likely to occur and to take measure to prevent them.
A Crime is an act committed in violation of public (criminal) law and punishable by a fine or imprisonment (California Penal Codes, 2003). A crime does not have to be intended in order to be a crime. For example, a nurse may accidentally give a client an additional and lethal dose of a narcotic to relieve discomfort. When a crime is committed, the factor of intent to commit wrong is present in most cases. Nonetheless, people who break certain law are guilty of a crime regardless of a whether they intended it. For example, failure to observe the federal food, drug, and cosmetic act may constitute crime. Criminal law is in most cases statutory law (eg, federal controlled substance acts and kidnapping laws or state criminal codes that defined murder, manslaughter, criminal negligence, rape, fraud, illegal possession of drugs, theft, assault, and battery); only infrequently is it common law. Example of common law are informed consent and the right to refuse treatment. Crimes are classified as either (1) Felonies or (2) Misdemeanors.
A Felony is a crime of a serious nature, such as murder, punishable by a term in prison. In some areas, second-degree murder is called manslaughter. A nurse who accidentally gives an additional and lethal dose of a narcotic can be accused of manslaughter. Crimes are punished through criminal action by the state against an individual. A crime is considered as felony is an individual is using battery, treason, murder, rape, fraud etc. A felony is punishable by imprisonment in a state or federal penitentiary for more than 1 year or death if the case is found to be serious like of murder, treason and espionage. Aside from the fines and imprisonment, an individual is said to face many consequences, this includes the following: loss of voting rights, exclusion from the job, prohibition of obtaining certain licenses and may be subjected to deportation.
A Misdemeanor is an offense of a less serious nature and is usually punishable by a fine or short-term jail sentence, or both. A nurse who slaps a client’s face could be charged with a misdemeanor. As in most criminal cases, a misdemeanor prosecution starts with an arrest. However, unlike of a felony arrest, most persons charged with misdemeanors are detained only for a short time before they are released by police after promising to appear at their next court date by signing a citation that is known as a "promise to appear." Many misdemeanors still require a bail bond in order to be released from custody.
A tort is a civil wrong committed against a person or a person’s property. Tort are usually litigated in court by civil action between individuals. In other words, the person or persons claimed to be responsible for the tort are sued for damage. Tort liability almost always is based on fault, which is something that was done incorrectly(an unreasonable act of commission) or something that should have been done but was not (act of commission). Torts may be classified as unintentional or intentional.
Nurses may need to report nursing colleagues or other health professional for practices that endanger the health and safety of clients. For instance, alcohol and drug use, theft from a client or agency, and unsafe nursing practice should be reported. Reporting a colleague is not easy. The person reporting may feel disloyal, incur the disapproval of others, perceive chances for promotion are endangered. When reporting an incident or series of incidents, the nurse must be careful to describe observe behavior only and not make inferences as to what might be happening. Here are the guidelines for reporting a crime, tort, or unsafe practice include this (Physicians News Digest, 2003):
§ Write a clear description of the situation you believe you should report.
§ Make sure that your statements are factual and complete.
§ Make sure you are credible.
§ Obtain support from at least one trustworthy person before filing the report.
§ Report the matter starting at the lowest possible level in the agency hierarchy.
§ Assume responsibility for reporting the individual by being open about it. Sign your name to the letter.
§ See the problem through once you have reported it.
Laws and strategies are in place to protect the nurse against litigation. Good Samaritan acts are an example of laws designed to help protect nurses when assisting at the scene of an accident. Providing safe, competent practice by following the practice act and standards of practice is a major legal safeguard for nurse. Accurate and complete documentation is also a critical component of legal protection for the nurse. Since the client’s medical record is a legal document, nurses must need to keep the accurate and complete records can constitute negligence and be the basis for tort liability. Insufficient or inaccurate assessments and documentation can hinder proper diagnosis and treatment and result in injury to the client. And lastly, nurses must carry out the physician’s order accurately to seek clarification of ambiguous or seemingly erroneous orders from the prescribing physician. If the order is neither ambiguous nor apparently erroneous, the nurse is responsible for carrying it out. For example physicians orders oxygen to be administered at 4 liters per minute, the nurse must administer oxygen at that rate and not at 2 or 6 liters per minute. If the orders state that the client is not to have solid food after a bowel resection, the nurse must ensure that no solid food is given to the client.
Both of the crimes presented above is really punishable, especially when the crime is so severe that it would lead to rebuke, suspend and terminate the license of an registered nurse. A nurse can be avoided those things if a nurse is competent to his or her hob. There was these identified legal protection for nurses in all crimes and tort that a patient may accused to the nurse these includes the following:
§ The nurse function is only within the scope of the education, job description, and the nurse practice act.
§ Follow the procedures and policies of employing agency.
§ Build and maintain good rapport with the clients.
§ Always check the identity of the client accurately. Communicate and record significant changes in the client’s condition to the physician.
§ Promptly and accurately document all assessments and care given
§ Be alert when implementing nursing interventions and give each task your full attention and skill.
§ Perform procedures correctly and appropriately.
§ Make sure the correct medications are given in the correct dose, by the right route, at the scheduled time and to the right client.
§ When delegating nursing responsibilities, make sure that the person who is delegated a task understands what to do and that the person has the required knowledge and skill.
§ Protects clients from injury
§ Report all incidents involving clients
§ Always check any order that a client questions.
§ Know your own strengths and weakness. Ask for assistance and supervision in situations for which you feel inadequately prepared and
§ Maintain your clinical competence. For students. This demands study and practice before caring for clients. For graduate nurses, it means continued study to maintain and update clinical knowledge and skills.
California Penal Codes (2003). Section 11160-11163. Retrieved on May 22, 2008, from http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=11001-12000&file=11160-11163.6.
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