The concept of autonomy appears in all ancient writings and early Greek philosophy. In health care, autonomy can be viewed as the freedom to make decisions about one’s own body without the coercion or interference of others. Autonomy is a freedom of choice or a self-determination that is a basic human right. It can be experienced in all human life events. Involving the patient and family in decision making is also an indication of respect and family-centered care.5

The critical care nurse is often “caught in the middle” in ethical situations, and promoting autonomous decision making is one of those situations. As the nurse works closely with patients and families to promote autonomous decision making, another crucial element becomes clear. Patients and families must have all the information about a particular situation before they can make a decision that is best for them. They not only should be given all the pertinent information and facts but also must have a clear understanding of what was presented.⁶ In this situation the nurse assumes one of the most important roles of the health care team, that is, as patient advocate, providing more information as needed, clarifying points, reinforcing information, and providing support during the decision-making process.

Veracity, or truth telling, is an important ethical principle that underlies the nurse-patient relationship. Communication trust, or the trust of disclosure, is rooted in respect and based on veracity.7

Veracity is important when soliciting informed consent because the patient needs to be aware of all potential risks of and benefits to be derived from specific treatments or alternative therapies.^8–10 Again, the critical care nurse may be in the middle of a situation where all the facts and information about a particular treatment option are not disclosed. Sometimes information has been given accurately to the patient and family but has been delivered with bias or in a misleading way. Veracity must guide all areas of practice for the nurse, that is, in colleague relationships and employee relationships, as well as in the nurse-patient relationship.

Fidelity, or faithfulness and promise keeping to patients, is also a sine qua non for nursing. It forms a bond between individuals and is the basis of all relationships, both professional and personal. Regardless of the amount of autonomy that patients have in the critical care areas, they still depend on the nurse for many types of physical care and emotional support. A trusting relationship that establishes and maintains an open atmosphere is positive for all involved.11 Making a promise to a patient is voluntary for the nurse, whereas having respect for a patient’s decision making is a moral obligation.¹²

Fidelity extends to the family of the critical care patient. When a promise is made to the family that they will be called if an emergency arises or that they will be informed of any other special events concerning the patient, the nurse must make every effort to follow through on the promise. Fidelity not only will uphold the nurse-family relationship but also will reflect positively on the nursing profession as a whole and on the institution where the nurse is employed.

Confidentiality is one element of fidelity that is based on traditional health care professional ethics. Confidentiality is described as a right whereby patient information can be shared only with those involved in the care of the patient. An exception to this guideline might be when the welfare of others will be put at risk by keeping patient information confidential. Again in this situation, the nurse must balance ethical principles and weigh risks with benefits. Special circumstances, such as the existence of mandatory reporting laws, will guide the nurse in certain situations.

Privacy also has been described as being inherent in the principle of fidelity. Privacy may be closely aligned with confidentiality of patient information and a patient’s right to privacy of his or her person, such as maintaining privacy for the patient by pulling the curtains around the bed or making sure that the patient is adequately covered.

The principle of justice is often used synonymously with the concept of allocation of scarce resources. With escalating health care costs, expanded technologies, an aging population with their own special health care needs, and in some cases a scarcity of health care personnel, the question of how to allocate health care becomes even more complex. With the recent passage of landmark legislation that will lead to major changes in health care, numerous questions are presently unanswered about the impact on our citizens.13

The application of the justice principle in health care is concerned primarily with divided or portioned allocation of goods and services, which is termed distributive justice. As health care resources become increasingly scarce, allocation of resources to certain programs and rationing of resources within certain programs will become more evident.

The American Nurses Association (ANA) provides the major source of ethical guidance for the nursing profession. The Code of Ethics for Nurses serves as the basis for nurses in analyzing ethical issues and decision making (Box 2-3).²¹

In general, ethical cases are not always clear-cut or “black and white.” The most common ethical dilemmas encountered in critical care are forgoing treatment and allocating the scarce resources of critical care. Before the application of any decision model is made, it must be determined whether a true ethical dilemma exists. Thompson and Thompson22 delineate the following three criteria for defining moral and ethical dilemmas in clinical practice:

One must pause, expand group consciousness about the issue, validate assumptions, look for patterns of thoughts or behaviors, and facilitate reflection and inquiry prior to making any decision.²³

To facilitate the ethical decision-making process, a model or framework must be used so that all parties involved will consistently and clearly examine the multiple ethical issues that arise in critical care. There are various ethical decision-making models in the literature.24,25 Box 2-4 lists steps in a model that will be briefly discussed in this chapter.

The area of civil law is divided into many categories, two of which are contracts and torts. The law of contracts contains a set of rules governing the creation and enforcement of an agreement between two or more parties (entities or individuals). For example, contract law may apply to a dispute between the nurse, as employee, and an institution, as employer. In contrast, a tort is a type of civil wrong or injury that results from a breach of a legal duty. Tort law is generally divided into intentional and unintentional torts, strict liability, and specific torts (Box 2-5).

Intentional torts involve (1) a mind-set indicative of purpose and (2) an act. Intent exists when the person forms a mental design to achieve a particular outcome and consequence. Assault, battery, false imprisonment, trespass, and intentional infliction of emotional distress are all examples of intentional torts. In each of these torts, a specific act is required, and there is purposeful interference with a person or property.

In assault the act is a behavior that places the plaintiff (person being wronged who later sues) in fear or apprehension of offensive physical contact; in civil law the defendant is the person being sued for wronging another. Battery is the unlawful or offensive touching of or contact with the plaintiff or something attached to the plaintiff. False imprisonment is detaining, confining, or restraining another against the person’s will. The two types of trespass involve (1) a person’s land and (2) an individual’s personal property. These acts are defined as “unauthorized entry onto land of another” or “unauthorized handling of another’s personal property.” In addition, the law protects a person’s interest in peace of mind through the tort claim of infliction of mental or emotional distress. The act in this case, however, must involve extreme misconduct or outrageous behavior.

Unintentional torts involve failures or breach of nursing duties that lead to harm, including negligence, malpractice, and abandonment. Negligence is the failure to meet an ordinary standard of care, resulting in injury to the patient or plaintiff. Malpractice is a type of professional liability based on negligence and includes professional misconduct, breach of a duty or standard of care, illegal or immoral conduct, or failure to exercise reasonable skill, all of which lead to harm (see later discussion). Abandonment is a type of negligence in which a duty to give care exists, is ignored, and results in harm to a patient. It is the absence of care and the failure to respond to a patient that may give rise to an allegation of abandonment.

Specific torts involve privacy and reputation interests and include invasion of privacy and defamation. Defamation is composed of two torts: slander (oral defamation) and libel (written defamation). Defamation is not the mere statement or writing of words that injures a person’s reputation or good name; the words also must be communicated to another. If the words are true, this may provide a defense against a defamation claim. Invasion of privacy involves the violation of a person’s right to privacy. Nurses can invade another’s privacy by revealing confidential information without authorization or by failing to follow the patient’s health care decisions.

Nurses can avoid allegations of these specific claims by (1) making statements about another’s reputation only when necessary and substantiated by fact and (2) respecting another’s privacy and autonomy and maintaining a confidential relationship with the patient.

A state has the power to regulate nursing because the state is responsible for the health, safety, and welfare of its citizens. Therefore, establishing minimal entry-level requirements, standards of nursing practice, and educational requirements are acceptable state actions. State legislatures create laws governing nursing practice, generally termed nurse practice acts, and a unit of the state government within the executive branch is responsible for the enforcement of nursing laws. This unit is often called the State Board of Nursing or Board of Nurse Examiners; however, the name varies by state. Standards also vary by state, which is another important reason that nurses should seek advice from counsel licensed to practice law in their own state. Because law is the minimum expected behavior, the profession oftentimes sets a higher standard. Additional methods to ensure competency are continuing education for renewal of license, work-based orientation programs, and certification in specialty practice areas. Self-reflection and assessment of one’s current competencies and level of technical knowledge can serve to elevate practice.26

The law recognizes four elements of negligence and malpractice. The first element, a duty, or legal obligation, requires the person (“actor”) to conform to a certain standard of conduct for the protection of others against unreasonable risks. The critical care nurse’s legal duty is to act in a reasonable and prudent manner, as any other critical care nurse would act under similar circumstances. The standard is that of a critical care nurse, a professional with special knowledge and skill in critical care. The standard is that owed at the time the incident or injury occurred, not at the time of litigation. In most jurisdictions the standard of care is a national standard, as opposed to a local or community standard. General critical care nursing duties are implied by statute and administrative rules and regulations and are stated explicitly in judicial decisions (Box 2-6).

The second element, breach of duty, involves a failure on the actor’s part to conform to the standard required. Causation, the third element, involves proving that the actor’s breach was reasonably close or causally connected to the resulting injury. This is also referred to as proximate cause. The fourth element, injury or damages, must involve an actual loss or damage to the plaintiff or his or her interest. A plaintiff may claim different types of damages, such as compensatory and punitive. Patient injury can range in value, depending on what happened to the patient. The plaintiff must produce evidence of the damages and their value. If the nurse breaches a standard of care that leads to injury, the plaintiff must show what amount of money will compensate for his or her injuries. The goal of the compensation is to provide the amount of money that will return the plaintiff to the position that existed before the injury occurred.

Res ipsa loquitur, “the thing speaks for itself,” is a rule of evidence used by plaintiffs in negligence or malpractice litigation. It is a rebuttable presumption or inference of negligence by the defendant, which arises on the plaintiff’s proof that (1) the injury is one that ordinarily does not happen in the absence of negligence and (2) the instrumentality causing the injury was in the defendant’s exclusive management and control. The burden then shifts to the defendant to prove absence of negligence. For example, negligence can be inferred when muscle ischemia and necrosis occur as a result of improper body positioning and the application of splints or restraints. Negligence can also be inferred from a foreign object left in a patient’s body cavity after surgery.

Because critical care nurses deal with life-threatening situations, any patient injury is potentially severe or may result in death. Should the injury occur as a result of alleged negligence, the nurse may be held liable for the patient’s death and also for the resulting loss to surviving family members. All states have “wrongful death” acts, and a number of states have both “death” acts and “survival” acts, which are prosecuted concurrently. With the two causes of action, the expenses, pain and suffering, and loss of earnings of the decedent up to the time of death are allocated to the survival action, and loss of benefits to the survivors is allocated to the wrongful death action.

Specific critical care nursing actions have resulted in litigation (Box 2-7). In such cases the nurse’s action is central to the lawsuit. However, nurses are named as sole defendant or codefendant in a comparatively small percentage of cases. Although this pattern is changing, physicians and hospitals are generally named as defendants.

Typically, nursing negligence cases involve breach or failure in six general categories (Box 2-8). The first category includes the use of defective equipment or the failure to perform safety and maintenance assessments. Nurses have made errors in drug identification, administration, and dosages. Nurses have failed to report changes in patient status to physicians in a timely manner. Nurses have not communicated to supervisors a physician’s failure to respond to the nurse’s communication. Failure to supervise and assist patients who subsequently fall is also a source of nursing negligence. Improper wound care with resulting infection and incorrect instrument and sponge counts in the surgical setting have also led to patient injury and lawsuits.

It is important to report and document any adverse event or unexpected outcome in an honest and genuine manner. Disclosure should take place as soon as possible after the event has been identified. This information needs to be orally discussed with the patient and family and documented. Documentation, also upon identification of the issue, needs to include the date, time, place, and all individuals involved, including the discussion with the patient and family. Document the discussion with the patient and family (use quotations of any key statements of anyone involved), the follow-up plan, and any subsequent discussions. The documentation must be accurate and concise with no admission of guilt or negligence.²⁷

In tort law the nurse’s action may be examined and legal duties defined according to the following theories of liability:

Under the theory of personal liability, each individual is responsible for his or her own actions, including the critical care nurse, supervisor, physician, hospital, and patient. Each has responsibilities that are uniquely his or her own. In contrast to personal liability, the individual may be afforded the protection of personal immunity.

Vicarious liability is indirect responsibility, such as the liability of an employer for the acts of the employee. Under the doctrine of respondeat superior, a “master” is liable for certain wrongful acts of a “servant,” as is a principal for those of an agent. An employer may be liable for an employee’s acts that are performed within the legitimate scope of employment. In critical care the nurse typically is an employee of a hospital. However, nurses may be independent contractors with the hospital through critical care nursing agencies or businesses. If the latter is the case, the nurse is not an employee of the hospital, and the hospital is not vicariously liable for the nurse’s action.

Corporate liability is the liability attached to the corporate entity (e.g., the hospital) for its own corporate activities and decisions.

Other doctrines, such as temporary servant or borrowed servant and captain of the ship, may apply to the critical care nurse and the critical care unit. These doctrines are used when the plaintiff argues that the physician is responsible for the nurse’s actions, even though the nurse is an employee of the hospital, not of the physician. If it can be shown that the nurse acted under the direction and control of the physician, the physician may be accountable for the nurse’s actions. However, these doctrines are becoming increasingly uncommon. What viability remains is typically found in cases involving nurse anesthetists and operating room nurses.

Valid consent must be (1) voluntary, (2) obtained, and (3) informed. Although consent can be verbal or written, most hospital policies require that informed, voluntary consent to nonroutine procedures be obtained and confirmed in writing, as signed and dated by the patient, physician, and witness (if required). Most informed consent statutes provide that a consent in writing to a medical or surgical procedure that meets the consent and disclosure requirements of the statute creates a legal presumption that informed consent was given. Research has shown that participant comprehension of the informed consent process continues to be deficient in how much the persons who sign consents actually know and/or understand.28

In the vast majority of jurisdictions the decision maker (person giving consent) must be a legally competent adult (i.e., having reached age of majority, or age 18 years in most states). Competence is a legal judgment, and as a general rule, there is a legal presumption of patient competence.²⁹ A person is mentally incompetent (thereby rendering a consent invalid) if adjudicated incompetent. A person must likewise have the capacity (a medical and nursing judgment) to give consent. The patient must be oriented and understand what he or she has been told, and current medications must be documented. For adults legally adjudicated incompetent, the guardian may give consent if the guardian has been given this authority.

Minors are legally incompetent, and consent is obtained from the parent or guardian. In many jurisdictions, however, there are two important exceptions to this rule: (1) mature minors may consent to treatment for substance abuse, sexually transmitted disease, and matters involving contraception and reproduction; and (2) emancipated minors may consent to treatment in general. Minors are considered “emancipated” if married or divorced before the age of majority, if in the military service, or if living independently with parental consent.

Consent must also be informed and timely. The physician has a duty to disclose the diagnosis, condition, prognosis, material risks/benefits associated with the treatment or procedure, explanation of the treatment, providers of the treatment (who is performing, supervising, and assisting in procedure), material risks and benefits of alternative therapy, and the probable outcome (including material risks/benefits) if the patient refuses the treatment or procedure. Failure to disclose such information or inadequate disclosure with resultant injury may constitute negligence and give rise to tort claims of malpractice, battery, negligent nondisclosure, and abandonment. Consent is generally valid for 7 to 30 days. However, the time at which consent expires must be explicitly stated in the institutional policy and procedure manual.

There are many exceptions to consent requirements and the duty to disclose, and clearly the exceptions vary according to jurisdiction. Emergencies constitute one exception, unless the patient refuses treatment or has previously made a competent and informed refusal. States vary significantly in the following treatment situations: endangered fetal viability, alcohol or other drug detoxification, emergency blood transfusion, cesarean birth, and substance abuse during pregnancy. Jurisdictions also vary on the issue of sources of consent (informal directives) for the incompetent patient or the patient in an emergency who has no legal guardian. Alternatives include consensus from as many next of kin as possible, with evidence that (1) the treatment is reasonable and necessary and (2) the family’s decision would not be contrary to the patient’s wishes, known as substituted judgment (made by a surrogate decision maker). Another alternative is a court order for treatment. In the absence of substituted judgment, many courts use the “best interests” standard.

The U.S. Congress passed landmark legislation known as the Patient Self-Determination Act/Omnibus Budget Reconciliation Act (OBRA) of 1990.35–44 The statute requires that all adults must be provided written information on an individual’s rights under state law to make medical decisions, including the right to refuse treatment and the right to formulate advance directives.

The law mandates that providers of health care services under Medicare and Medicaid must comply with requirements relating to patient advance directives, which are written instructions recognized under state law for provisions of care when persons are incapacitated. Providers may not be reimbursed for the care they provide unless the requirements of this provision are met. Despite various methods to inform patients about the importance of having advance directives, there are still persons seeking health care who do not have completed advanced health care directives in place.⁴⁵

Providers must have written policies and procedures (1) to inform all adult patients at initiation of treatment of their right to execute an advance directive and of the provider’s policies on the implementation of that right, (2) to document in the medical record whether an individual has executed an advance directive, (3) not to condition care and treatment or otherwise discriminate on the basis of whether a patient has executed an advance directive, (4) to comply with state laws on advance directives, and (5) to provide information and education to staff and the community on advance directives.

Patients themselves can provide clear direction by preparing in advance written documents that specify their wishes.⁴⁶ These documents are termed advance directives and include the living will and durable power of attorney for health care. To be effective in a jurisdiction, both these directives must be statutorily or judicially recognized. The living will specifies that if certain circumstances occur, such as terminal illness, the patient will decline specific treatment, such as cardiopulmonary resuscitation and mechanical ventilation. The living will does not cover all treatment; in some states, for example, nutritional support may not be declined through a living will. The durable power of attorney for health care is a directive through which a patient designates an “agent,” someone who will make decisions for the patient if the patient becomes unable to do so. Critical care nurses whose patients have executed advance directives must follow state law provisions and the hospital’s policies and require education regarding advance directives and their important role in patient advocacy.⁴⁷

Hospital policies that address orders to withhold or withdraw treatment should exist in all critical care units. For example, orders not to resuscitate, typically referred to as do-not-resuscitate (DNR) orders, should be governed by written policies, including (but not limited to) the following:

Other orders to withhold or withdraw treatment may involve mechanical ventilation, dialysis, nutritional support, hydration, and medications such as antibiotics. The legal and ethical implications of these orders for each patient must be carefully considered. Hospitals should have written policies on all orders to withhold and withdraw treatment. Policies must cover how decisions will be made, who will decide, and what roles the patient, family, health care providers, and the institution will play. Policies must be developed that consider state laws and judicial opinions.