INTRODUCTIONIn every nurse’s career, thenurse is faced with many legal or ethical dilemmas. One of the professionalcompetencies for nursing states that nurses should ” integrate knowledge ofethical and legal aspects of health care and professional values into nursingpractice”. It is important to know what types of dilemmas nurses may faceduring their careers and how they may have been dealt with in the past. Itis also important for nurses to understand what malpractice is and how theymay protect themselves from a malpractice suit.
LAW VS. ETHICSIt is importantto first understand the difference between law and ethics. Ethics examinesthe values and actions of people. Often times there is no one right courseof action when one is faced with an ethical dilemma. On the other hand, lawsare binding rules of conduct. When laws are broken, it is punishable by anauthority figure.
There are four types of situations that pertain to lawvs. ethics. The first would be an action that is both legal and ethical. Anexample of this would be a nurse carrying out appropriate doctor’s orders asordered. A nurse may also be faced with an action that may be ethical butnot legal, such as allowing a cancer patient to smoke marijuana for medicinalpurposes. 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 nursemakes a medication error and does not report it.
ETHICAL DUTIES Nurseshave many ethical duties to their clients. The main ethical duties are: nonmaleficence,beneficence, fidelity, veracity, and justice.
The duty of nonmaleficenceis the duty to do no harm. The nurse first needs to ask him or herself whatharm is. When a nurse gives an injection she is causing the patient pain butshe is also preventing additional harm such as disease development or prolongedpain. Therefore, the nurse must ask herself a second question about how muchharm 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 tokeep to your promises. Therefore, if a nurse tells his patient that he willbe back with her pain medication within fifteen minutes then he has an ethicalduty to follow through with what he has said.
Truth telling or, informationdisclosure, is the principle behind the duty of veracity. The main argumentagainst information disclosure is that the disclosure of bad news may shatterthe patient’s hope. Those in favor of information disclosure state that itis part of the patient’s rights to know what is happening and that patientswith potentially fatal illnesses are capable of handling the truth.
Theirare three types of justice: distributive justice, compensatory justice, andprocedural justice. Distributive justice concerns the comparative treatmentof individuals in the allotment of benefits and burdens (Purtilo, 1993). Anexample in which a question of distributive justice may arise is when thereis a limited amount of federal grants and research money is needed for AIDS,cancer, and many other deserving medical research projects. Compensatory justicedeals 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 andsuffering from medical malpractice.
Finally, procedural justice deals withordering something in a “fair” manner (Purtilo, 1993). An example would bethe process in which people are eligible to receive organ transplants, thesickest patients are at the top of the list.
ETHICAL RIGHTSThere arethree ethical rights that are relevant to health care. These rights are: theright to life, autonomy, and health care.
Most people think of antiabortionactivists when they hear the phrase “right to life”. However, this right goesfar beyond the boundaries of abortion. The idea of right to life has comefrom both religious and philosophical backgrounds. Many hot topics in ethicsrelate to the right to life. These topics include euthanasia and the discontinuationof life support treatments.
The right to autonomy is also referred to asthe right of self-determination.
This right allows for the patient to maketheir own decisions, such as: determining what course of treatment he may takefor a disease, refusing treatment, or refusing medications.
The right tohealth care requires that a society shall provide the funding, personnel, andfacilities necessary to ensure that individuals have access to necessary healthcare. Health care for everyone alsorelates to distributive justice. The questionbeing asked today is shall we take what health care resources we have and spreadit very thin but so that everyone has equal access of care, or shall we takewhat resources we have any distribute them in such a way that we will do themost good to for the overall population? American Nursing Association (ANA)Code of EthicsIn 1985, the ANA established a Code of Ethics for nurses thatcontains eleven points. Each of the eleven points is a general principle ratherthan specific guidelines. For instance, a nurse faced with an ethical dilemmainvolving resuscitation will find no mention of resuscitation in the Code ofEthics. 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. Inthis section, each of the eleven points will be stated and discussed.
(1)”The nurse provides services with respect for human dignity and the uniquenessof the client unrestricted by considerations of social or economical status,personal attributes, or the nature of the health problem.” According to thisstatement, 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 viewsof her own, she may ask for a reassignment. However, if the supervisor refusesto reassign or a reassignment is not possible, the nurse can not refuse careto that patient and must give the same standard of care to that patient asshe would any other patient.
(2) “The nurse safeguards the client’s rightto 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 patienthas 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 ofEthics and therefore has a duty to not sway from it. In the next section isa real life case study about how a nurse with a special interest in ethicsdealt with an ethical dilemma about HIV and confidentiality in a prominentPhiladelphia hospital. “The nurse’s ethical belief in the patient’s rightto maintain autonomy must outweigh the temptation to gossip” (Nurse’s Handbookof Law & Ethics, 1992).
(3) “The nurse must safeguard the client and publicwhen health care and safety are affected by the incompetent, unethical, orillegal practice of any person.” Under this ethical statement a nurse hasthe duty to report cases of child abuse, domestic abuse, or any act of negligenceor incompetence by another health care worker. Often times, it is hard fora 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) tohelp determine whether or not to report on a colleague, and if so, how to doso 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 incidentsin which they occurred. Avoid making any statements that may be consideredpersonal. Next, state the problem. Again, avoid making any personal statementsand consider any possible causative factors. It may help to enlist the helpof a trusted colleague to review the problem with. Thirdly, identify yourobjectives. In other words, your purposes for wanting to confront the problem.
If you feel that whistle blowing is warranted proceed to the last step whichis to confront the problem. When confronting the problem, be direct but non-threatening.
(4)”The nurse assumes accountability and responsibility for individual nursingjudgments and actions.” If a nurse makes a medication error, not only doeshe have a legal obligation to report that error, but according to the abovestatement, he has an ethical obligation as well.
(5) “The nurse maintainscompetence 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 someonewho is more familiar with the procedure to guide you through it. Also, a nursehas the ethical obligation to never stop learning. The field of nursing keepsdeveloping with the technology. Therefore, each nurse shall continue his orher education by attending in services, seminars, or earning “X” amount ofcontinuing education points per year.
(6) “The nurse exercises informed judgmentand 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 statein which he works. Nurses can not handle all situations and they need to understandwhen it is appropriate to consult with a psychiatrist, social worker, or aphysician about a patient’s condition. On the opposite ends a nurse needsto 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 LPNbecause RNs are the only ones that may legally make an initial assessment.
(7)”The nurse participates in activities that contribute to the ongoing developmentof 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 statementrefers to being involved in nursing research. The most obvious way to be involvedis to conduct your own nursing research. However, for many nurses, this maynot seem feasible. There are other ways to be involved with nursing researchbesides actively conducting it. Nurses can greatly contribute to the profession’sknowledge by reading nursing journals and implementing the findings or interventionsthat are shown to be positive to the patient or the profession.
(8) “Thenurse participates in the profession’s efforts to implement and improve standardsof nursing.” It is under this statement where being involved in professionalorganizations, such as the ANA and NYSNA, comes in. Another way to participatein improving nursing as a profession is to become politically involved. Anurse can become politically involved by attending town or state meetings andvoicing their concerns, lobbying for bills at both the state and federal level,and by writing to their state and federal congressmen about issues that concernthem and bills that are up for vote. A nurse can find out about politicalissues by being attuned to the world around them, being active in their statenursing association, and even by contacting the ANA itself. On their web page,the ANA has a section called “Capitol Watch” which discusses current issuesof importance and how to contact your government representatives.
(9) “Thenurse participates in the profession’s efforts to establish and maintain conditionsof employment conducive to high quality nursing care.” Nurse’s have an ethicalobligation to keep their work places safe, not only for the patients, but forthemselves so that they will have the staffing and equipment to perform qualitynursing care. (10) “The nurse participates in the profession’s efforts toprotect the public from misinformation and misrepresentation and to maintainthe integrity of nursing.” This statement speaks of the importance of patienteducation. Teaching is a very big part of a nurses role. Patient advocacywould fit under this statement as well as informed consent. In a studydone by Deborah Taplin (Hunt, 1994), twenty-three males that had undergonea TURP and eighteen females that had undergone a D&C were interviewed abouthow much information they knew about their procedure from the informed consent.
Deborah found the following results: (1) 56% of the men did not know exactlywhat the operation was. (2) 21% of the men thought that their prostate wasremoved. (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 treatmentoptions. (6) 56% of the men and 39% of the woman stated that there were norisks involved in the procedure. (7) None of the subjects mentioned the majorrisks 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.
Thisstudy concludes that nurses can not assume that a patient has fully consentedto 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 patientseven after it is signed. Many patients feel more comfortable asking questionsto a nurse than a physician.
(11) “The nurse collaborates with members ofthe health profession and other citizens in promoting community and nationalefforts to meet the health needs of the public.”A REAL LIFE ETHICAL DILEMMASallyJohnson RN, MS is a nurse in a substance abuse center at a prominent Philadelphiahospital. Sally has been active with her hospital’s ethical committee forthe past four years. Sally shared with me an ethical dilemma that she facedthat stands out in her mind. It happened a number of years ago at a independentsubstance abuse treatment center before her involvement with the ethical committeeat the hospital in which she now works. Here is her experience in her ownwords:”Only once did I take a very direct (and in PA illegal) controversialcourse of action. In this case, the patient was an active prostituteaddictedto IV heroin. She already conceived and delivered threeHIV infected babiesand had no compunction to stop any of herbehavior. In fact, she would tellme, ‘I plan to take as many of those SOBs with me as I can… I’m spreadingthe wealth to as many peopleas possible and as often as possible!’ I didan anonymous disclosureto the appropriate division of our local public healthdepartment. I sleptbetter that night for doing so.”Sally also discussedhospital ethics committees with me. There are many functions of an ethicscommittee. 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 closelywith patients, they are often the first to identify a potential ethical dilemma.
Ethical committees allow these nurses to voice their concerns and share withthe other people of the committee potential ethical dilemmas in the hospital.
NURSINGLIABILITY AND LAWSUIT CAUSESBefore 1932, nurses were expected to followevery 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 befound liable (Nurse’s Handbook of Law & Ethics, 1992). After World War Two,nursing education and licensure requirements increased and tasks became morecomplex. This allowed nurses greater autonomy but also increased the riskof them being held liable for mistakes.
The two major reasons for lawsuitsagainst nurses are medication errors and falls (Nurse’s Handbook of Law ;Ethics, 1992). Other common reasons include: operating room errors (i.e. problemswith a sponge count), mix-ups during patient transfers, communication breakdownbetween nurses and physicians, and inadequate observation of a patient.
AVOIDINGMALPRACTICE LIABILITYAccording to the article, “Avoiding a Malpractice Nightmare”in Nursing 90, there are twelve steps to avoiding malpractice liability. Thesesteps are listed below.
1. Know your strengths and weaknesses2. Evaluateyour assignment3. Delegate carefully4. Carry out orders cautiously5.
Administer medications carefully6. Maintain a rapport with the patient7.
Watch what you say8. Read before you sign9. Document carefully and accurately10.
Exercise caution when assisting with procedures11. Follow hospital policiesand procedures12. Keep policies and procedures up to dateMALPRACTICEDEFENSESIf a nurse is sued for malpractice, there are two common defensesthat he or she can use: respondeat superior and borrowed servant (Nurse’s Handbookof Law & Ethics, 1992).
Respondeat superior is Latin for “let the masteranswer”, it is also known as the “Theory of Vicarious Liability.” This theorystates that if a nurse is found negligent doing something under her supervisor’sdirection, 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 healthcare.
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. Thisdefense may be used when a nurse commits a negligent act under the direct supervisionof someone else (i.e. assisting in a procedure at the emergency department).
Resipsa loquitur allows for the plaintiff to prove negligence with circumstantialevidence. This is useful when the defendant may be the only one who has knowledgeabout 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 courtthat the defendant was negligent. When res ipsa loquitur is applied, the responsibilityshifts to the defendant and he or she must prove that the injury was causedby some other reason than his or her negligence. One of the most common caseswhere res ipsa loquitur is applied is in cases where a foreign object (i.e.
sponge) was left in the body after surgery.
SUMMARYFacing legal and ethicalissues 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 ANACode of Ethics are guidelines to help a nurse determine which course of actionto take. Many times, an ethical decision may be made that holds to one ofthe guidelines but may infringe on another or the action may be ethical butnot legal (or vice versa).
ReferencesNurse’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.
Lancombe, D.C. (1990). Avoiding a malpractice nightmare.
Nursing 90, 20(6), 42-43.
Purtilo, R. (1993). Ethical dimensionsin the health professions (2cd ed.).