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The Nurse And The Law
Date Posted: 21/Oct/2018
Good evening my professional colleagues, I feel honored to deliver a paper to like minds in this group. You will all agree with me that, since the inception of this group, the group has impacted positively on most of its members. At the end of this presentation,  the audience will be able to gain knowledge on the types, sources, principles of laws, The legal role of the nurse, Tort law, Common causes of malpractice, Expected conduct of a nurse in court And ways of minimizing litigations
 
INTRODUCTION
Nursing is a caring profession, which has its relevance and direct impact on the life, health, and well-being of individual, families and communities. It is therefore important to regulate the practice of nursing to ensure that standards are maintained to achieve safe practice. The regulation of nursing is achieved though credentialing, and standard of practice. Nursing practice is governed by legal concepts, knowledge of which helps the nurse to make decisions and take actions that are consistent with legal principles and thereby protecting the nurse from liability.
 
I am very much in no doubt that; we all know who a nurse is? What it takes to be a nurse, the act establishing NMCN, duties and functions of the council? As such, I will not stress you with all that…. Therefore, Law on the other hand is define as those rules made by humans that regulate social conduct in a formally prescribed and legally binding manner. It could be said to refer to some written and unwritten rules derived from customs and as formal enactment, which are recognized by the people as binding on them and could be imposed upon them by some appropriate sanctions. The implication of the above is that when you do not keep to these rules, the law will punish you.
 
 
According to a new report by the Nurses Service Organization, there has been a significant increase in malpractice claims against nurses in recent years. Furthermore, Between January 1st, 2010 and December 31st, 2014, over $90 million was paid in malpractice claims against registered nurses. Report by the Nurses Service Organization, stated that, there has been a significant increase in malpractice claims against nurses in recent years. Furthermore, Between January 1st, 2010 and December 31st, 2014, over $90 million was paid in malpractice claims against registered nurses According to the report, 85% of claims filed against nurses were against nurses with at least 16 years of practice, but the largest indemnity payments involved nurses with experience of no more than 5 years.
 
Functions of Law in Nursing
The law serves a number of functions in nursing which are to:
- Provides a framework for establishing which nursing actions in the care of clients are legal
- Differentiates the nurses’ responsibilities from those of other health professionals
- Helps establish the boundaries of independent nursing action 
- Assists in maintaining standard of nursing practice by making nurses accountable under the law.
 
SOURCES OF LAW
There are several sources of Law which are as follows ;
- Legislative (Statutes) –this law is enacted by statute or Acts of parliament or the legislature is known as statutory law. Statutory laws can be made at the federal, state or local government levels. When federal and state laws conflict, federal laws supersedes, likewise state laws supersede local laws.
- Customs and Traditions - Laws that derive from customs and tradition of the people over the years but which are recognized by the constitution is known as customary laws. Examples include marriage rights, property ownership etc.
- Courts cases– Laws that evolve from court decisions are referred to as common laws or decisional laws. In addition to interpreting and applying constitutional or statutory laws, courts are also asked to resolve disputes between two parties. In the process of doing this, decisions are made and this result in common laws.
 Common laws are continually being adapted and expanded. In deciding specific controversies, courts generally adhere to the doctrine of “to stand by things decided”, which usually refer to following precedence. In other words, to arrive at a ruling in a particular case, the court applies the same rules and principles applied in previous similar cases until it is either modified or overruled. 
- Constitution- The constitution of a country is the supreme law of the country. It establishes the general organization of the federal governments, grants certain powers to them, and places limits on what federal and state governments may do. Constitutions create legal right and responsibilities and are the foundation for a system of Justice.
- Administrative authorities –In most cases, the process of law making follow some basic steps but occasionally, some administrative authorities such as the president, governors, ministers or 
Commissioners make some general rules. Since such rules are not made by legislatures they are simply referred to as regulation or ordinances. An ordinance may simply be defined as the statement of general norms made by a chief executive of government without passing through the parliament.
 
TYPES OF LAW
Laws are categorized base on the type of relationship that it is supposed to govern. That is, whether it governs the relationship of private individuals with government and or with each other. This implies that there are two main types of law, PUBLIC and PRIVATE law.
 
What is public law?
Public law refers to the body of law that deals with relationships between individuals and government agency. It includes constitutional, international, criminal laws and other numerous regulations designed to enhance societal objectives. Failure to comply with such laws might lead to criminal legal actions and penalties. Criminal law is an important aspect of public law and it deals with actions against the safety and welfare of the public. Examples of such actions include; homicide, manslaughter, theft, arson, rape, and illegal possession of controlled drugs or arms. The implication is that if you commit a crime, you have committed an offense against society.
 
PRIVATE LAW OR CIVIL LAW
Is the body of law that deals with relationships between private individuals. It is categorized as contract law and tort law.
 
Contract law: This involves enforcement of agreement among private individuals or payment of compensation for failure to fulfill the agreements.
 
PRINCIPLES OF LAW
According to Anarado (2002), the system of law rests on four principles that include: Law is based on a concern for justice and fairness. The purpose of law is to protect the rights of one party from the transgressions of another by setting guidelines for conduct and mechanisms to enforce those guidelines. Law uses punishment to inhibit antisocial behaviour and to apply a just measure of retribution. This may be in form of a fine or a period of time in prison. However for claims of damages for negligence, financial reparation are regarded as compensation for injury sustained and not as a punishment for wrong inflicted. The court relies on the evidence before it in order to pass judgment. Actions are judged based on a universal standard of what a similarly educated, reasonable and prudent person would have done under similar circumstances. Legal rules are flexible: The law sets the parameters for adjudication, leaving room for the courts to interpret it further. For the sake of time, I will limit this presentation to tort law
TORT LAW
Tort Law is designed to protect individuals and organisations from civil wrongs other than breach of contract. Knowledge of the law of tort is important for all because most of the civil cases that resulted from nursing activities belong to the category of tort. Examples of such laws include malpractice, invasion of privacy, assault, battery, libel, slander, and false imprisonment. Assault and battery give rise to criminal and civil liability.
 
Malpractice is a broad term that is use to incorporate negligence, misconduct, or breach of duty by a professional that results in injury/damage to a patient (Reising & Allen, 2007). According to Reising and Allen, common malpractice claims arise against nurses when nurses fail to:
Assess and monitor.
Follow standards of care.
Use equipment in a responsible manner.
Communicate.
Kindly note that there are two types of tort law which are intentional and non intentional tort law
 
The Civil Judicial Process
The judicial process primarily functions to settle disputes peacefully and in accordance with the law: In other words, this is a process of filing a law suit against a defender. A lawsuit has strict procedural rules. 
 
There are generally five steps in the process viz.
- A document known as complaint is filed by a person referred to as the plaintiff, who claims that his/her legal rights have been infringed upon by one or more persons, referred to as defendant(s)
- A written response, called an answer, is made by the defendant(s)
- Both parties engage in pre-trial activities referred to as discovery in an effort to gain all the facts of the situation.
- In the final of the case, all the relevant facts are presented to a jury or a judge.
- The judge renders a decision, or the jury renders a verdict. If the outcome is not acceptable to one of the parties, an appeal can be made for another trial.
 
During a trial, a plaintiff must offer evidence of the defendant’s wrongdoing. This duty of proving an assertion is called the burden of proof. As a nurse may be called to testify in a legal action for a variety of reasons. You may be a defendant in a malpractice or negligence action or may have been a member of the health team that provided care to plaintiff. It is advisable that any time you are asked to testify in such a situation to seek the advice of an attorney before providing testimony. In most cases the attorney for the employer will provide support and counsel during the legal case. If you are the defendant, however, it is advisable that you retain an attorney to protect your own interests.
Again, you may be asked to provide testimony as an expert witness. An expert witness is one who has special training, experience or skill in a relevant area and is allowed by the court to offer an opinion on some issues within the nurse’s area of expertise. Such a witness is usually called to help a judge or jury understand the evidence pertaining to the extent of damage or the standard of care.
 
LEGAL CONSIDERATION INVOLVING NURSING PRACTICE
Aside the regulation of nursing practice and standard, each hospital has their rules and codes of practice laid down to ensure safety and wellbeing of the patients. Any nurse, who do not oblige to these rules, codes of the hospital, and causes harm or injury to any patient, may be liable. Certainly, not all rules or policies covers every eventuality, hence the need for the nurse to ensure that the right patient gets the right treatment, use her professional judgment while caring  for patients, do not attempt anything beyond her competence and should not exceed the limits of nursing procedures laid down…The laws governing nursing profession oblige nurses to perform their duties and responsibilities within the scope of nursing practice. Nurses have the duty to care for patients and should be cared for in the process of carrying out their lawful duties.
 
WHAT IS LITIGATION?
Litigation Is an act of being involved in a court case to defend a charge against a person or an organization. As a nurse, you can be invited to a court for any kind of professional misconduct, which the court often refers to as malpractice or negligence arising from her action.
 
COMMON CAUSES OF MALPRACTICE
According to Reising and Allen, common malpractice claims arise against nurses when nurses fail to:
Assess and monitor.
Follow standards of care.
Use equipment in a responsible manner.
Communicate.
Document.
 
WAYS OF MINIMIZING THE RISK OF MALPRACTICE
Nurses should be cognizant of legal risks in providing care. Reising (2012) suggests that the following actions can help minimize a nurse's risk of being sued for malpractice:
. Know and follow your state's nurse practice act and your facility's policies and Stay up to date in your field of practice
. Assess your patients in accordance with policy and their physicians' orders and, more frequently, if indicated by your nursing judgment
. Promptly report abnormal assessments, including laboratory data, and document what was reported and any follow-up
. Follow up on assessments or care delegated to others
. Communicate openly and factually with patients and their families and other health care providers
. Document all nursing care factually and thoroughly and ensure that the documentation reflects the nursing process; never chart ahead of time
. Promptly report and file appropriate incident reports for deviations in care.
 
EXPECTATIONS OF THE NURSE DURING LIGATION
Should the unfortunate occur, and the nurse discovers herself in the midst of a legal entanglement. The first step to take is to share your observation with your immediate superior, who will in turn notify her manager or advice you on what to do immediately. It is worthy to note that you should relay information factually and accurately to your confider. It’s also necessary to observed and complete all institutional procedural requirements. For instance, if your facility policy stipulated that an incident form be completed and forwarded, please endeavor to do so. Furthermore,  contact your facility legal department/unit, which will assign an attorney to guide you through the case. Do not discuss the case with anyone other than your supervisor, employer, or legal representative.
 
EXPECTATIONS OF EMPLOYER DURING LIGATION PROCESS INVOLVING A NURSE
The nurse is a staff of the hospital and therefore, she cannot be disclaimed according to the doctrine of respondent superior (let the master answer)
The employer will notify the legal unit of the hospital for onward action
Set up an investigation panel to find out the truth
If possible, the hospital may employ the service of a lawyer to face the court etc.
 
EXPECTATIONS OF THE PROFESSIONAL BODIES DURING LIGATION OF ITS MEMBERS
Contact her lawyer
Set up investigation panel
Follow the accused to the court
Give necessary moral and financial support to the accused provided the nurse practice within her professional boundaries.
 
IMPLICATION OF LIGATION ON THE ACCUSED NURSE
If a nurse was found guilty, she may lose her job or be suspended from work
She may be fined or be made to pay compensation 
Her license may be revoked
Litigations serve as lesson to others
If the nurse was NOT FOUND GUILTY:
She may be compensated adequately
She will be a public figure 
The image of the nurses will improve etc.
 
THE NURSE AS A WITNESS IN THE COURT 
A nurse may be require in the course of his professional duties to give account (evidence) of something he did or saw during his clinical duties in court as a professional witness or expert witness. 
 
EXPECTED CONDUCT OF A NURSE IN COURT
The nurse should be punctual to court on the day he was ask to appear
He should be corporately dressed 
His conduct should portray the image of nursing profession The nurse should listen thoughtfully to all the questions put to him
He should think before he gives his answers or opinions
His answers should be audible clear and firm and addressed to the judge and not to the counsel
The nurse should be courteous when answering questions. 
 
He should be avoid temptation to be rude or hostile especially when being deliberately provoked during cross examination by the adverse counsel. Notably, the law allows the provocation, therefore a tit for tat policy maybe counterproductive. When it’s necessary to give a point to enable the court to understand the true state of affairs, the nurse should resist answering yes or no  as may be demanded by the adverse counsel, It is expected that the nurse should use simple and clear language when responding to questions The nurse should always stand up when addressing the court to show respect to whom respect is due.
 
In conclusion, 
Ethico-legal issues are far less common in developing countries compared with developed countries. This is partly because the populaces in developing countries are less well informed of their rights and because of fatalistic and religious beliefs in many societies in developing countries. With more awareness of the people, ethico-legal issues are likely to increase even in the developing nations. 
 
It is therefore worthy of mention that, it is imperative for the Nurses to imbibe the characteristics of the profession and scope of practice as listed out by the ICN and by by NMCN; these would help a lot in the practice of nursing in Nigeria.
 
Thank you all for your attention
Source: Nurse Halliru LKabeer

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