Legal Aspects of ER Nursing

1. Legal Aspects of ER Nursing Mary Corcoran RN, BSN, MICN, CNE Arrowhead Regional Medical Center

2. Federal Regulations • Congress proposes laws that, once enacted, become statues that are controlling throughout the nation • Most of these statues are often accompanied by federal funding • eg: Medicare, or medicaid • Some are non-funded such as EMTALA and HIPAA (more on those later)

3. Federal Regulations • Federal regulatory agencies you will deal with in ER are: • Centers for Medicare and Medicaid Services (CMS)- formerly called the Health Care Financing Administration • Occupational Safety and Health Administration (OSHA) • National Labor Relations Board (NLRB) • Food and Drug Administration (FDA)

4. State Regulations • A few common state regulatory agencies you will see in ER are: • State Licensing Boards • State Health Departments • Office of the Attorney General • Child Protective Services

5. Office of Civil Rights (OCR) • OCR requires hospitals to communicate effectively with patients, family members, and visitors who are deaf or hard of hearing and to take reasonable steps to provide meaningful access to their programs for persons who have limited English proficiency.

6. OCR • “Qualified Interpreter” means a person who is able to interpret competently, accurately, and impartially both receptively and expressively, using any specialized terminology necessary for effective communication • *use of volunteers or family members as translators may not meet the required standards and may violate privacy laws

7. Medical Records • Written Records or patient care are kept to meet legal, regulatory, managed care, and billing requirements. • In the event of a malpractice lawsuit, the medical record is also used as evidence of the care provided

8. Medical Records • Charting DO’s • Write Clearly and Legibly* • Clearly demonstrate the chronology of treatment • Use “Late Entry” when appropriate • Every Entry must be dated, timed and signed • Dates must be complete (inc. year) • Times must be in military time or state am/pm • Signatures must include status- RN,LVN etc

9. Medical Records • Charting DON’Ts • Avoid vague statements such as “MD Aware” • State the name of the physician • State personal opinion • Only state what is ‘observed’ • Falsify or Make-up information • All charting must be accurate and factual • *Remember if you didn’t chart it you didn’t do it*

10. Electronic Medical Records (EMR) • Federal Mandates state that all hospitals should be charting on an EMR system by 2012 • Goals of EMR charting are to • Improve pt health status • Reduce errors • Improve pt safety • Check with your specific facility to orient to their specific charting system

11. HIPAA Health insurance portability and Accountability Act

12. HIPAAwhy it exists? • Developed in 1996, by congress to address concerns about healthcare fraud and abuse, the portability or health insurance, and the potential for compromising patient privacy regarding personal medical information though the use of electronic media, and for collecting claims data, and payments

13. HIPAAwhat does it do? • Privacy regulations require that covered entities protect personal health information (PHI) from disclosure • And that PHI access be limited to authorized entities with access restricted to the information necessary

14. HIPAAWhat happens if it’s violated? • “knowingly” obtaining or disclosing PHI can lead to fines up to $50,000 and 1 year in prison • Using false pretenses to commit offenses can allow for fines up to $100,000 and 5 years in prison • Committing offences with intent to sell, transfer or use PHI for commercial advantage, personal gain, or malicious harm can allow for fines of $250,000 and up to 10years in prison

15. HIPPAwhen is it ok to release info? Confusion and misinterpretation of the laws have resulted in the inappropriate withholding of information, it is ok to release information : • When it is required by law for health oversight • Law enforcement • Crime reporting • Military and veterans activities • National security and intelligence activities • Organ and tissue donation • Abuse and neglect reporting • Judicial and administrative proceedings • Public health surveillance • Public health and safety • Public benefits programs • Treatment • Payment • Healthcare fraud reporting • Health plan audits • Health care operations • And certain research purposes

16. HIPAA CASES • As of July 2007, the federal government has secured a few other convictions. An employee at a doctor’s office in Texas, Liz Arlene Ramirez, pled guilty and was convicted of selling confidential medical information belonging to a Federal Bureau of Investigation Special Agent to someone she believed was working for a drug trafficker. She was sentenced to six months in prison.

17. HIPAA CASES • A licensed practical nurse who pled guilty to wrongfully disclosing a patient’s health information for personal gain faces a maximum penalty of 10 years imprisonment, a $250,000 fine or both. Andrea Smith, LPN, 25, of Trumann, Arkansas, and her husband, Justin Smith, were indicted on federal charges of conspiracy to violate and substantive violations of the Health Insurance Portability and Accountability Act (HIPAA) in December. At the time, Smith worked as a nurse at Northeast Arkansas Clinic, a multispecialty clinic in Jonesboro, Arkansas. Smith accessed a patient’s private medical information on November 28, 2006, according to the indictment. She then shared that information with her husband, who on that same day, called the patient. Justin Smith reportedly told the patient he intended to use the information against the patient in an upcoming legal proceeding.

18. HIPAA CASES • Fifteen employees were fired for improperly accessing medical records of NadyaSuleman, the mother of octuplets, a Kaiser Permanente spokesman said Monday.-CNN

19. CONSENT • Usually done by physician staff (but witnessed by RN’s) consent should indicate that the pt understands the risks, benefits, and alternatives to proposed treatment • In the absence of consent treatment may be considered assault or battery, even if clinically appropriate • The consent should not have blanks or lack a date, complete forms are important

20. ConsentChildren • Must be obtained by parents, legal guardian, or responsible adult (ie school official, or child welfare) acting with parental permission • Exceptions include emancipated minors, mature minors, and emergent situations

21. ConsentEmancipated minors • Criteria for emancipation: • Marital status • Member of the armed forces • Living apart from ones parents • Financial independence • Pregnancy/parenthood • Court appointed

22. ConsentNon-emancipated minors • Certain treatments may be obtained without consent (differs from state to state) examples: • HIV/STD testing • Pregnancy testing • Vaccination • Abortion • Alcohol or chemical dependency • Mental health programs • *note that parental notification may violate privacy rights

23. ConsentImplied • Removes liability for the treatment of life, limb, or organ threatening conditions • In an emergency situation incapacitated person or minor may be treated under the assumption that a reasonable person would consent to care • Court orders for treatment may be obtained when time permits

24. ConsentRefusal • Parents can not refuse life, limb, or organ saving treatment on behalf of their children for religious reasons • In 1944 the supreme court stated the parents can make martyrs of themselves but not of their children until they are of legal age to make decisions for themselves

25. ConsentAdults • Adults unable to make their own decisions medically (aloc, mental illness, chemical) in absence of an emergency, consent must be obtained from: • Next of kin • Legal guardian • Health care proxy • Durable power of attorney • Or court order

26. AMA (Against Medical Advise) • Documentation of an AMA must include a discussion and the pts understanding of the risks of leaving (“up to and including death”) before the formal discharge. • Pts who “elope”, or leave the ER without notifying the physician or RN, may need to be recalled- specific ER policy will guide you on this situation

27. Emergency Medical Treatment and Active Labor Act (EMTALA) • Enacted in 1985 the statute was intended to address patient “dumping” or “economic triage” in which uninsured patients were refused care or transferred to other facilities while clinically unstable

28. EMTALA • States that any patient who “comes to the emergency department” requesting “examination or treatment for a medical condition” must be provided with “an appropriate medical screening examination” to determine if he/she is suffering from an “emergent medical condition” • If he/she is the hospital must treat the patient until stable or transfer the patient

29. EMTALA • To transfer a patient the following criteria must be met: • The transferring hospital has stabilized the patient to the extent possible within it’s capacity • The patient requires the services of the receiving facility • The medical benefits out-weigh the medical risks of transfer • The risk/benefit analysis is documented in a medical certificate by a physician • The receiving hospital has accepted the transfer and has the facilities and personnel to provide the necessary treatment • And the patient is escorted in transfer by all required equipment and personnel, as well as treatment records from the sending facility

30. EMTALA • Triage- the statute prohibits examination and treatment delays caused by insurance inquires. As a result many legal authorities advise the ED to triage patients before registration, thus avoiding the appearance of determining payer status before performing treatment • Meaning we are not to provide care based on financial status or ability to pay

31. EMTALA • Hospitals with “specialized capabilities or facilities” such as burn units, shock-trauma units, NICU, etc may not refuse to accept a transfer if they have the capacity to treat the patient

32. EMTALA REPORTING • Receiving hospitals must also report EMTALA violations when receiving patients transferred in unstable condition

33. EMTALA VIOLATON • Monetary penalties very depending on hospital bed size • 100+beds= $50,000 per violation • 100 or less= $25,000 per violation • A hospitals medicare funding may be revoked regardless of size (totaling millions of dollars in some cases)

34. EMTALA VIOLATION • Patients may sue hospitals directly for EMTALA violations, which are classified into 2 categories • Failure to conduct an appropriate medical screening examination • Failure to stabilize the emergency medical condition or provide an appropriate transfer

35. EMTALA-CAUTION • ED’s must carefully screen for emergency medical conditions on patients that are intoxicated or suffer from psychiatric illness • Intoxication may mask head injuries, which must be ruled out • A psych patient is considered stable for purposes of discharge under EMTALA when he/she is no longer considered to be a threat to him/herself or others

36. EMTALA Case Discussion & Questions

37. Negligence • Negligence is the failure to act in a manner in which a reasonably prudent person would act in same or similar circumstances • Expert witness are generally not required in negligence lawsuits because reasonably intelligent lay-people are able to anticipate the consequences of negligent behavior

38. Malpractice • Unlike negligence Malpractice does require and expert witness because it pertains to professional standards

39. Malpractice • In order to successfully prosecute a medical or nursing malpractice claim, the plaintiff must establish 4 elements • Duty • Breach • Proximate Cause • Harm

40. Elements of Nursing Malpractice • Duty- In a provider-patient relationship the nurse provides care as her professional standards • Breach of Duty-Departure from the standard of care, failure to act as reasonably prudent nurse would act in same or similar circumstances • Substantial factor- The nurse’s departure from the standard of care was more likely than not a substantial factor in the patients injury • Proximate cause- The injury would not have occurred but for the departure form the standards of practice • Damages- Compensation for physical, emotional, and/or financial losses, as well as pain and suffering/ punitive damages are allowed in some jurisdictions for particularly egregious willful injuries

41. Common Nursing Malpractice Cases • Medication Errors • Failure to Observe and Report • Failure to rescue • Falls

42. What would you do? • 38yo woman presents to ER at 0345 with c/o cough and chest pain…