The field of obstetrics has commonly served as an example for scope of practice issues. A case in Ohio, Marion Ob/Gyn v State Med. Bd.,³ established that delivering infants was beyond the scope of physician assistant practice in Ohio. At the same time, nurses could deliver infants as the scope of nursing practice allowed licensed nurses to practice midwifery. In Kansas, lay midwives can deliver infants without infringing on the scope of nursing or medical practice. In State Board of Nursing v Ruebke,⁴ the Kansas Supreme Court held lay midwifery was a common and longstanding exception to the prohibition against the unauthorized practice of medicine if the midwife is working under the supervision of a physician.

Standards of Practice

NPAs establish the scope of nursing practice while BONs usually develop standards of practice at the state level through administrative rulemaking. These standards of practice communicate the expectations of safe and effective nursing practice within the scope of practice. State standards of practice also assist BONs in evaluating the ongoing practice of nursing. Thus, to fully understand the expectations for and limits of nursing in any particular state, it is necessary to review both the NPA and the rules or regulations of the BON.

In addition to standards developed by BONs, many specialty nursing organizations have developed standards of practice. While the BON standards establish broad expectations of safety and efficacy, specialty standards are more targeted and aimed at fostering excellence in the specialized field. An example of specialty standards are those developed by the American Association of Critical-Care Nurses (AACN).⁵

The Model Nursing Act (Model Act) and Model Administrative Rules (Model Rules) developed by the NCSBN serve as example NPAs and standards of practice for individual states in regulating nursing practice.⁶ Actual state laws governing professional nursing practice vary from state to state in the degree to which they have adopted all or part of the current or previous model acts and rules. Nonetheless, the Model Act scope of practice provisions (Box 3-1) and the Model Rules for standards of practice (Box 3-2) are useful in illustrating the differences between scope and standards. For example, the seventh activity listed within the scope of practice is “advocating the best interest of clients.” Within the standards of practice in Box 3-2, standard 3 lists eight specific obligations or expectations of nurses in advocating for clients.

Box 3-1

Scope of Practice (Activities of Professional Nurses)

Model Nursing Act, Scope of Nursing Practice (Model Statutory Law)

1. Providing comprehensive nursing assessment of the health status of clients.

2. Collaborating with health care team to develop an integrated client-centered health care plan.

3. Developing a strategy of nursing care to be integrated within the client-centered health care plan that establishes nursing diagnoses; sets goals to meet identified health care needs; prescribes nursing interventions; and implements nursing care through the execution of independent nursing strategies and regimens requested, ordered or prescribed by authorized health care providers.

4. Delegating and assigning nursing interventions to implement the plan of care.

5. Providing for the maintenance of safe and effective nursing care rendered directly or indirectly.

6. Promoting a safe and therapeutic environment.

7. Advocating the best interest of clients.

8. Evaluating responses to interventions and the effectiveness of the plan of care.

9. Communicating and collaborating with other health care providers in the management of health care and the implementation of the total health care regimen within and across care settings.

10. Acquiring and applying critical new knowledge and technologies to the practice domain.

11. Managing, supervising and evaluating the practice of nursing.

12. Teaching the theory and practice of nursing.

13. Participating in development of policies, procedures, and systems to support the client.

14. Other acts that require education and training as prescribed by the BON commensurate with the RN’s continuing education, demonstrated competencies, and experience.

Modified from National Council of the State Boards of Nursing (NCSBN). NCSBN Model Nursing Practice Act and Model Nursing Administrative Rules. Chicago: NCSBN; 2011.

Box 3-2

Standards of Practice *

Model Nursing Administrative Rules, Standards of Nursing Practice (Model Regulations or Administrative Rules)

The RN:

a. Practices within the legal boundaries for nursing through the scope of practice authorized in the NPA and rules governing nursing.

b. Demonstrates honesty and integrity in nursing practice.

c. Bases professional decisions on nursing knowledge and skills, the needs of clients, and the expectations delineated in professional standards.

d. Accepts responsibility for judgments, individual nursing actions, competence, decisions, and behavior in the course of nursing practice.

e. Maintains continued competence through ongoing learning and application of knowledge in the client’s interest.

The RN:

a. Conducts a comprehensive nursing assessment that is an extensive data collection (initial and ongoing) regarding individuals, families, groups, and communities.

b. Detects faulty or missing patient/client information.

c. Applies nursing knowledge effectively in the synthesis of the biologic, psychologic, and social aspects of the client’s condition.

d. Uses this broad and complete analysis to plan strategies of nursing care and nursing interventions that are integrated within the client’s overall health care plan.

e. Provides appropriate decision making, critical thinking, and clinical judgment to make independent nursing decisions and nursing diagnoses.

f. Seeks clarification of orders when needed.

g. Implements treatment and therapy, including medication administration and delegated medical and independent nursing functions.

h. Obtains orientation/training for competence when encountering new equipment and technology or unfamiliar care situations.

i. Demonstrates attentiveness and provides client surveillance and monitoring.

j. Identifies changes in client’s health status and comprehends clinical implications of client signs, symptoms, and changes as part of expected and unexpected client course or emergent situations.

k. Evaluates the impact of nursing care, the client’s response to therapy, the need for alternative interventions, and the need to communicate and consult with other health team members.

l. Documents nursing care.

m. Intervenes on behalf of client when problems are identified and revises care plan as needed.

n. Recognizes client characteristics that may affect the client’s health status.

o. Takes preventive measures to protect client, others, and self.

The RN:

a. Respects the client’s rights, concerns, decisions, and dignity. (This standard includes respecting the client’s concerns regarding end-of-life care.)

b. Identifies client needs.

c. Attends to client concerns or requests.

d. Promotes safe client environment.

e. Communicates client choices, concerns, and special needs with other health team members regarding:

1. Client status and progress.

2. Client response or lack of response to therapies.

3. Significant changes in client condition.

f. Maintains appropriate professional boundaries.

g. Maintains client confidentiality.

h. Assumes responsibility for nurse’s own decisions and actions.

The RN:

a. Assigns to another only those nursing measures that fall within that nurse’s scope of practice, education, experience, and competence or unlicensed person’s role description.

b. Delegates to another only those nursing measures for which that person has the necessary skills and competence to accomplish safely.

c. Matches client needs with personnel qualifications, available resources, and appropriate supervision.

d. Communicates directions and expectations for completion of the delegated activity.

e. Supervises others to whom nursing activities are delegated or assigned by monitoring performance, progress, and outcomes; and assures documentation of the activity.

f. Provides follow-up on problems and intervenes when needed.

g. Evaluates the effectiveness of the delegation or assignment.

h. Intervenes when problems are identified and revises plan of care as needed.

i. Retains professional accountability for nursing care as provided.

The RN:

a. Functions as a member of the health care team, collaborating and cooperating in the implementation of an integrated client-centered health care plan.

b. Respects client property and the property of others.

c. Protects confidential information.

^*Methods by which nurses safely and effectively deliver care within the scope of practice.

Modified from National Council of the State Boards of Nursing (NCSBN). NCSBN Model Nursing Practice Act and Model Nursing Administrative Rules. Chicago: NCSBN; 2011.

In addition, nursing standards developed by professional and specialty nursing organizations complement BON standards, provide detail and specificity, and are typically drafted to promote excellence in clinical practice. Foundational organizations such as the American Nurses Association (ANA) and the AACN publish standards of practice and standards of care.⁷ The AACN standards appear in Box 3-3. These specialty standards are helpful in establishing and measuring quality care and often reflect a consensus opinion of experts in the particular specialty of appropriate nursing care.

Box 3-3

Standards for Acute and Critical Care Nursing

Standards of Care for Acute and Critical Care Nursing Practice

Standard 1: Assessment

The nurse caring for the acutely and critically ill patient collects relevant data pertinent to the patient’s health or situation.

Measurement Criteria

1. Data are collected from the patient, family, other health care providers, and the community, as appropriate, to develop a holistic picture of the patient’s needs.

2. The priority of data collection activities is driven by the patient’s characteristics related to immediate condition and anticipated needs.

3. Pertinent and sufficient data are collected using appropriate evidence-based assessment techniques and instruments.

4. Analytical models and problem-solving tools are used.

5. Relevant data are documented.

6. Relevant data are communicated to other healthcare providers.

Standard 2: Diagnosis

The nurse caring for the acutely and critically ill patient analyzes the assessment data in determining diagnosis and care issues.

Measurement Criteria

1. Diagnoses and care issues are derived from the assessment data.

2. Diagnoses and care issues are validated throughout the nursing interactions with the patient, family, other health care providers, the community, and across the healthcare system when possible and appropriate.

3. Diagnoses and care issues are prioritized and documented in a manner that facilitates prioritizing outcomes and developing or modifying the plan.

Standard 3: Outcomes Identification

The nurse caring for the acutely and critically ill patient identifies outcomes for the patient or the patient’s situation.

Measurement Criteria

1. Outcomes are derived from actual or potential diagnoses and care issues.

2. Outcomes are formulated in collaboration with the patient, family, and other health care providers, in relation to the level of participation in care and decision making.

3. Outcomes recognize, appreciate, and incorporate differences.

4. Outcomes are attainable in relation to resources available; outcomes consider associated risks, benefits, current evidence, clinical expertise, and cost.

5. Outcomes provide direction for continuity of care.

6. Outcomes are modified on the basis of changes in patient characteristics or evaluation of the situation.

7. Outcomes are documented as measurable goals.

Standard 4: Planning

The nurse caring for the acutely and critically ill patient develops a plan that prescribes interventions to attain outcomes.

Measurement Criteria

1. The plan is individualized and considers patient characteristics and the situation.

2. The plan is developed collaboratively with the patient, family, and healthcare providers in a way that promotes each member’s contribution toward achieving the outcomes.

3. The plan reflects current best evidence.

4. The plan provides for continuity of care and matching the nurse’s competencies with the patient’s characteristics.

5. The plan establishes priorities for care.

6. The plan includes strategies for promotion and restoration of health and prevention of further illness, injury, and disease.

7. The plan considers economic impact and resources available.

Standard 5: Implementation

The nurse caring for the acutely and critically ill patient implements the plan, coordinates care delivery, and employs strategies to promote health and a safe environment.

Measurement Criteria

1. Interventions are delivered in a manner that minimizes complications and life-threatening situations.

2. The patient and family participate in implementing the plan according to their level of participation and decision-making capabilities.

3. Interventions are responsive to the uniqueness of the patient and family and create a compassionate and therapeutic environment, with the aim to promote comfort and prevent suffering.

4. The implemented plan and modifications are documented.

5. Collaboration to implement the plan occurs with the patient, family, healthcare providers, and the healthcare system.

6. The plan facilitates learning for patients, families, nursing staff, other members of the healthcare team, and the community including but not limited to health teaching, health promotion, and disease management according to patient characteristics.

Standard 6: Evaluation

The nurse caring for the acutely and critically ill patient evaluates progress toward attaining outcomes.

Measurement Criteria

1. Evaluation is systematic and ongoing using evidence-based techniques and instruments.

2. The team of patient, family, and healthcare providers is involved in the evaluation process as appropriate.

3. Evaluation of the effectiveness of interventions toward achieving the desired outcome occurs.

4. Evaluation occurs within an appropriate time frame after interventions are initiated.

5. Ongoing assessment data are used to revise the diagnoses, outcomes, and plan as needed.

6. Results of the evaluation are documented.

Standards of Professional Performance

Standard 1: Quality of Practice

The nurse caring for the acutely and critically ill patient systematically evaluates and seeks to improve the quality and effectiveness of nursing practice.

Measurement Criteria

1. The nurse participates in clinical inquiry through quality improvement activities.

2. The nurse uses systems thinking to initiate changes in nursing practice and the healthcare delivery system.

3. The nurse ensures that quality improvement activities incorporate the patient’s and family’s beliefs, values, and preferences as appropriate.

4. The nurse questions and evaluates practice in an ongoing process, providing informed practice and innovation through research and experiential learning.

5. The nurse identifies organizational systems barriers to quality care and patient outcomes.

6. The nurse collects data to monitor the quality and effectiveness of nursing practice.

7. The nurse develops, implements, evaluates, and updates policies, procedures, and/or guidelines to improve the quality and effectiveness of nursing practice.

Standard 2: Professional Practice Evaluation

The nurse caring for the acutely and critically ill patient evaluates his or her own nursing practice in relation to professional practice standards, institutional guidelines, relevant statutes, rules, and regulations.

Measurement Criteria

1. The nurse engages in a self-assessment and/or formal performance appraisal on a regular basis, identifying areas of strength as well as areas where professional development would be beneficial.

2. The nurse seeks and reflects on constructive feedback regarding his or her own competencies from the team of patient, family, and other healthcare providers.

3. The nurse takes action to achieve performance goals.

Standard 3: Education

The nurse acquires and maintains current knowledge and competency in the care of acutely and critically ill patients.

Measurement Criteria

1. The nurse participates in ongoing learning activities to acquire and refine knowledge and skills needed to care for acutely and critically ill patients and their families.

2. The nurse seeks learning opportunities that reflect evidence-based practice in order to maintain clinical skills and competencies needed to care for acutely and critically ill patients and their families.

3. The nurse participates in ongoing learning activities related to professional practice.

4. The nurse maintains professional records that provide evidence of competency and lifelong learning.

Standard 4: Collegiality

The nurse caring for the acutely and critically ill patient interacts with and contributes to the professional development of peers and other healthcare providers as colleagues.

Measurement Criteria

1. The nurse shares knowledge, skills, and experiences with peers and colleagues.

2. The nurse provides peers and colleagues with constructive feedback regarding their practice.

3. The nurse interacts with peers and colleagues to enhance his or her own professional practice and promote optimal patient outcomes.

4. The nurse contributes to a supportive and healthy work environment that is conducive to the education of healthcare professionals.

5. The nurse contributes to a healthy work environment by working with others in a way that promotes mutual respect and meaningful recognition of each person’s contribution.

Standard 5: Ethics

The nurse’s decisions and actions are carried out in an ethical manner in all areas of practice.

Measurement Criteria

1. The nurse’s practice is guided by the ANA Code of Ethics for Nurses with Interpretive Statements, the AACN Ethic of Care, and ethical principles.

2. The nurse maintains patient confidentiality within legal and regulatory parameters.

3. The nurse works on another’s behalf and represents the concerns of patients, their families, and the community.

4. The nurse delivers care in a nonjudgmental and nondiscriminatory manner that meets the diverse needs, strengths, and weaknesses of the patient and preserves patient autonomy, dignity, and rights.

5. The nurse uses available resources in formulating ethical decisions.

6. The nurse demonstrates a commitment to self-care and self-advocacy.

7. The nurse reports illegal, incompetent, or impaired practices.

Standard 6: Collaboration

The nurse caring for the acutely and critically ill patient uses skilled communication to collaborate with the team of patient, family, and healthcare providers in providing patient care in a safe, healing, humane, and caring environment.

Measurement Criteria

1. The nurse uses skilled communication to foster true collaboration.

2. The nurse partners with others to effect change and generate optimal outcomes through knowledge of the patient or situation.

3. The nurse commits to establishing and maintaining a healthy work environment.

4. The nurse initiates referrals as appropriate to promote continuity of care.

5. The nurse collaborates with the patient’s family and significant others to promote effective transition across care settings.

Standard 7: Research/Clinical Inquiry

The nurse caring for the acutely and critically ill patient uses clinical inquiry and integrates research findings into practice.

Measurement Criteria

1. The nurse continually questions and evaluates practice and uses best available evidence, including research findings, to guide practice decisions.

2. The nurse participates in activities to support clinical inquiry as appropriate to the nurse’s skills, knowledge, and experience.

Standard 8: Resource Utilization

The nurse caring for the acutely and critically ill patient considers factors related to safety, effectiveness, cost, and impact in planning and delivering nursing services.

Measurement Criteria

1. The nurse considers factors related to safety, effectiveness, availability, cost, and impact on outcomes when choosing among practice options.

2. The nurse assists the patient and family in identifying and securing appropriate and available services to address health-related needs according to resource availability.

3. The nurse assigns or delegates aspects of care as defined by the state nurse practice acts, based on an assessment of the needs and condition of the patient, the potential for harm, the stability of the patient’s condition, the predictability of the outcome, the availability and competence of the healthcare provider, and the availability of resources.

5. The nurse assists the patient and family to become informed consumers by facilitating learning of the options, alternatives, risks, benefits, and costs of treatment and care.

Modified from American Association of Critical-Care Nurses. Standards for Acute and Critical Care Nursing Practice. Aliso Viejo, CA: AACN; 2008.

The extent to which specialty standards are introduced in a legal context varies widely from state to state. It is critical to understand that the legal term of art, “standard of care,” is not the same as the standards of practice. In some cases, specialty standards of practice or care have been introduced in court to help establish a legal “standard of care,” but not all courts will consider these. The legal standard of care and the use of specialty standards will be discussed further in the Tort Law section.

Tort Law: Negligence and Professional Malpractice, Intentional Torts

Many civil lawsuits for injuries fall under the legal heading of torts. Anyone can find themselves as a party in such a lawsuit. Torts are civil lawsuits based on unintentional acts (failure to act or negligence that results in harm) or intentional acts, such as assault, battery, or defamation. For the lay public, the standard for behavior for negligence is based on reasonableness, or what a reasonably prudent person would do in the same situation. This is also known as ordinary negligence.

In a professional capacity, individuals are judged based on their professional standard of care. Nurses caring for acutely and critically ill patients may be alleged to have acted in a manner that is inconsistent with standards of care or standards of professional practice and may find themselves involved in civil litigation that focuses in whole or in part on the alleged failure. This is professional malpractice or negligence law applied to professional behavior.

There are many types of cases based in tort law but this chapter will focus on negligence and professional malpractice, intentional torts of assault and battery, and some cases based on specific clinical circumstances. These include the respiratory management of acutely and critically ill patients, as well as liability associated with blood transfusions, infection control, and informed consent.

Ordinary Negligence

Generally, the standard for negligence is failing to act as a reasonably prudent person would under similar circumstances. There are four criteria or elements for all negligence cases: 1) duty to another person; 2) breach of that duty; 3) harm that would not have occurred in the absence of the breach (causation); and 4) damages that have a monetary value. All four elements must be satisfied for a case to go forward. For example, suppose a grocery store employee mops the floor but fails to block off the area or put up a wet floor sign and a customer walks in the area, falls and breaks a hip, and is left with hospital bills and lost wages. The grocery store has a duty to its customers to provide a reasonably safe environment and warn customers of areas of danger. Warning customers and/or blocking off the wet area is what a reasonably prudent grocery store would do. Failing to warn customers was a breach of that duty. Because the customer had no warning, she walked on the wet floor, fell, and suffered the harm of a broken hip. She would not have suffered the broken hip if the area had been blocked off. Finally, there are monetary damages in the form of hospital bills and lost wages. This is an example of ordinary negligence in which any person could make a determination of what is reasonable in a given circumstance. A juror need not hear from a professional to determine what is a reasonably prudent practice for the grocery store (standard for non-negligent behavior) in this case. On the other hand, negligence in the professional health care context differs in that expert testimony is needed to establish the standard of care. These cases are referred to as professional negligence or professional malpractice.

Professional Malpractice

Whereas negligence claims may apply to anyone, malpractice requires the alleged wrongdoer to have special standing as a professional. If a nurse caring for acutely and critically ill patients is accused of failing to act in a manner consistent with the standard of care, that nurse is subject to liability for professional malpractice (negligence applied to a professional). Just as in ordinary negligence, the person bringing the lawsuit must prove the elements of negligence. In the health care context, patient/plaintiffs (person[s] bringing the lawsuit) must prove: 1) that the nurse had a duty to care for the patient; 2) that the nurse breached that duty by deviating from the standard of care; 3) that the breach caused harm that would not have occurred in the absence of negligence; and 4) that the plaintiff should be compensated for the resulting damages.

In civil cases alleging wrongdoing by health care professionals, the terms “malpractice” and “negligence” are used interchangeably, although there are courts that distinguish between the two causes of action. The malpractice-negligence distinction was addressed in Candler General Hospital Inc. v McNorrill.⁸ In that case, the court concluded that malpractice was merely a negligence action applied to a professional.

The legal standard of care for nurses is established by expert testimony and is generally “the care that an ordinarily prudent nurse would perform under the same circumstances.”⁹ The standard of care determination focuses more on accepted practice of competent nurses rather than best practice of excellent nurses (which may be reflected in some specialty standards of practice). In addition to expert testimony, courts may rely on multiple types of evidence to establish the standard of care.

In Gould v NY City Health and Hospital,¹⁰ the court looked more closely at the standard of care and determined that there were three obligations inherent in a malpractice cause of action. The nurse should 1) possess the requisite knowledge and skill possessed by an average member of the profession; 2) exercise reasonable and ordinary care in the application of professional knowledge and skill; and 3) use best judgment in the application of professional knowledge and skill.

Duty

Duty to the injured party is the first element of a malpractice case and is premised on the existence of a nurse-patient relationship. Nurses assume a duty to the patient to provide care that is consistent with the standard of care when the nurse-patient relationship is established. Cases from a number of states recognize the nurse-patient relationship as a separate and distinct relationship ¹¹ and as a prerequisite for determining whether a nurse owes the patient a duty to provide care in accordance with the requisite standard of care. If a nurse shows that he or she 1) was not assigned to that particular patient on the date that the negligence allegedly occurred or 2) was not working on the day or at the time the negligence allegedly occurred, no duty will be imposed on the nurse. Because no duty is imposed on the nurse, negligence allegations will fail.¹²

Although courts have been willing to construct parameters around a nurse’s duty to his or her patient, if the patient establishes that a specific nurse actually rendered care, the nurse will be found to have assumed a duty to provide reasonable care for the patient. This duty cannot be waived or overridden by the instructions of a physician or hospital administrator. A nurse’s failure to provide reasonable care subjects the nurse to civil liability for negligence provided the patient proves that the failure caused damage or injury.

Lunsford v Board of Nurse Examiners¹³ illustrates this principle. In this case, Donald Floyd arrived at an emergency department in Texas complaining of chest pain and pressure that radiated down his left arm. Mr. Floyd was accompanied by Francis Farrell, who attempted to have Mr. Floyd examined by a physician who was sitting at the nurses’ station in the emergency department. The physician told Ms. Farrell that Mr. Floyd would need to first be seen by a nurse. The physician then instructed Nurse Lunsford to transfer Mr. Floyd to a neighboring hospital located 24 miles away because the equipment that would likely be needed to treat Mr. Floyd was already in use by another patient.

Lunsford interviewed Mr. Floyd and suspected cardiac involvement. Because of the transfer instruction that she received from the physician, Lunsford instructed Ms. Farrell to drive with her flashers on and to speed to get to the neighboring hospital. Reportedly, Lunsford also asked Ms. Farrell if she knew cardiopulmonary resuscitation (CPR) and suggested that she might need to perform CPR at some point on the way. Unfortunately, within approximately 5 miles of the Harlingen emergency department, Mr. Farrell died from cardiac arrest.

An administrative complaint was subsequently filed with the Texas Board of Nurse Examiners alleging negligence and challenging Lunsford’s nursing licensure. After a hearing on the matter, the Texas Board of Nurse Examiners suspended the license of Lunsford for 1 year. Lunsford appealed the decision and the court determined that Lunsford, as well as other nurses who are similarly situated, have a duty to evaluate the status of persons who are ill and seeking professional help. The court also determined that Lunsford, as well as other nurses, have a duty to implement care needed to stabilize a patient’s condition and to prevent complications. According to this Texas Court of Appeals, Lunsford failed to act reasonably and breached her duty to Mr. Floyd when she failed to 1) assess him; 2) inform the physician of the life-and-death nature of his condition; 3) take appropriate action to stabilize him and prevent his death. The court also pointed out that hospital policy or physician orders do not relieve a nurse of his or her duty to a patient.

Breach

Breach is the failure to act consistently within applicable standards of care. For a nurse to be found negligent, the patient-plaintiff must establish that the nurse had a duty to provide care and that the nurse failed to provide care consistent with those standards. Moreover, the nurse’s failure, or breach, must have caused the damages about which the patient-plaintiff seeks redress. A breach of duty does not exist if the standard of care is met.

In Sparks v St. Luke’s Regional Medical Center,¹⁴ the family of Thomas Sparks sued St. Luke’s Regional Medical Center and treating physicians, alleging that their negligence resulted in Thomas Sparks sustaining brain damage after he was extubated. The case reached the Idaho Supreme Court. The court concluded that although Mr. Sparks suffered severe harm, no breach of duty existed and the evidence established that the standard of care regarding extubation and subsequent hospital care was met by the St. Luke’s personnel.

Sparks demonstrated that some courts will consider many sources of evidence in determining the standard of care. These may include applicable NPAs, specialty practice standards, job descriptions, and organizational policies, procedures, protocols, and pathways, together with other reference sources including case law, journal articles, textbooks, and other manuscripts.

Actions that are consistent with professional practice standards may be used as evidence that the nurse did not breach his or her duty to patients. Even if not used as evidence for the standard of care, these standards provide guidance on quality nursing care. Nurses caring for acutely and critically ill patients should practice in accordance with the practice specialty standards issued by the AACN (Box 3-3). These standards provide guidance for nurses, and they increasingly provide definitive guidance in courtrooms.

For example, in Koeniguer v Eckrich¹⁵ standards promulgated by the ANA were used in a case in which the plaintiff alleged that standards of care were breached. In Koeniguer, Winnifred Scoblic was admitted to Dakota Midland Hospital for surgical correction of incontinence. Two days later, J.A. Eckrich performed the surgery. After surgery, Ms. Scoblic had a temperature that fluctuated. On the day of discharge, Ms. Scoblic’s temperature was 100.2° F. Despite her temperature, Ms. Scoblic was discharged. Sixteen days after her original surgery, Ms. Scoblic was readmitted because of a fever and severe abdominal pain. She was diagnosed with septicemia. Two days later, Ms. Scoblic was transferred to the University of Minnesota Hospital. She died from multiple organ failure several weeks later.

On behalf of Ms. Scoblic, her daughter, Patricia Koeniguer, filed a malpractice cause of action contending that the care rendered to her mother deviated from the standard of care. An expert retained by Koeniguer used the standards published by the ANA and other general nursing treatises to conclude that the nursing staff failed to adhere to standards of care applicable to Ms. Scoblic as a postoperative urologic patient.

Documents or policies specific to the nurse’s employer or practice setting may also be used to inform the appropriate standard of care. For example, a nurse’s job description or employment contract may contain provisions that require a nurse to act or to refrain from acting in a specific manner and within a specific period of time. Failure to adhere to those provisions could give rise to negligence causes of action wherein the patient-plaintiff asserts that the nurse failed to act in accordance with his or her job description or employment contract. Accordingly, job descriptions and employment contracts must be reflective of the standard of care, and expectations must be articulated in a manner that is reasonable.

Nurses caring for acutely and critically ill patients are required to act in a manner that is consistent with organizational policies, procedures, protocols, and clinical pathways. Failure to do so may result in liability if a patient is harmed because of the failure. For example, in Teffeteller v University of Minnesota,¹⁶ a nurse’s failure to follow a protocol resulted in a critically ill pediatric patient’s death from narcotic toxicity.

Harm Caused by the Breach

Patient-plaintiffs must prove that the nurse breached his or her duty to the patient and that the breach caused the patient to sustain injuries or damages for which he or she seeks monetary remuneration. Causation of the harm is a pivotal element in civil cases filed against nurses. If patient-plaintiffs fail to establish that some act or omission directly resulted in the harm or if something else can be shown to have caused the harm, recovery will be denied.

McMullen v Ohio State University Hospitals¹⁷ dealt with the causation issue and was ultimately decided by the Ohio Supreme Court. In McMullen, a patient had been intubated and placed on a ventilator. Three days after she was intubated, her oxygen saturation level suddenly dropped, as did her blood pressure, and she became cyanotic and dyspneic. The patient also developed a squeak, which the nurse thought was a cuff leak on the endotracheal tube. The nurse believed that the patient was dying and made a “stat” page so that on-call physicians would be notified. Before the arrival of the physicians, the nurse removed the patient’s endotracheal tube. When the physicians arrived, they attempted to reintubate the patient. It took more than twenty minutes for their reintubation attempts to be successful. The patient never resumed consciousness and died seven days later.

The patient’s estate brought a wrongful death cause of action against the Ohio State University Hospitals. The case went to trial, through several appeals and eventually to the Ohio Supreme Court. The court held the nurse’s actions caused the harm. The removal of the patient’s endotracheal tube was negligent and set into motion a chain of events that directly caused the patient to die.

Damages

The fourth element of negligence is damages. Damages are derived from the harm or injury suffered by the acutely or critically ill patient and are calculated as a dollar amount. In order for liability to be imposed against a nurse caring for an acutely or critically ill patient, that patient must prove that something the nurse did or failed to do was inconsistent with the standard of care and that the inconsistency caused harm or injury for which the patient should be compensated. Patient-plaintiffs in a malpractice case can usually point to additional medical bills associated with their injuries to satisfy this element.

The number of nurses being named defendants in these cases is increasing, and this is especially true for advanced practice nurses. Accordingly, nurses caring for acutely and critically ill patients need to carefully consider whether to purchase professional liability insurance and, if so, the amount and type of coverage that is needed. Most institutions will provide some level malpractice insurance coverage for nurses, but the amount and circumstances under which each nurse is covered are important considerations.

Professional Malpractice and the Nursing Process

Malpractice claims may be premised on care delivered at any point from the moment a nurse-patient relationship is established to patient discharge. What constitutes reasonable care has been the focus of many cases filed against health care professionals and the hospitals in which they practice. For nurses, there seems to be an emerging trend. If the nurse reasonably executes every component of the nursing process by assessing, planning, implementing, and evaluating the care in accordance with the requisite standard of care, reasonable care will have been provided. However, if the nurse fails with regard to a single component of the nursing process, care provided to an acutely or critically ill patient will be deemed insufficient, unreasonable, and negligent. The following cases are examples of malpractice resulting from failures in particular stages of the nursing process.

Assessment Failure: Failure to Assess and Analyze the Level of Care Needed by the Patient.

Nurses caring for acutely and critically ill patients have a duty to assess and analyze the level of care needed by their patients. Where a nurse allegedly fails to fulfill this responsibility, liability for negligence may be threatened. Brandon HMA, Inc. v Bradshaw¹⁸ demonstrates how courts handle failure to assess and analyze the level of care needed by acutely and critically ill patients.

In Brandon, Dawn Bradshaw contended that, while hospitalized at Rankin Medical Center (RMC) to be treated for bacterial pneumonia, she sustained permanent injuries because of negligence on the part of the nursing staff. The case was tried before a jury, and the jury agreed that Ms. Bradshaw sustained permanent, severe, oxygen deprivation–related brain damage because of the negligence of the nursing staff. They awarded her $9,000,000 in damages.

The alleged failure occurred after a chest tube had been inserted; on the night shift, a nurse allegedly failed to take vital signs between 11:00 pm and 3:30 am until Ms. Bradshaw’s condition had significantly worsened. At 3:30 am, Ms. Bradshaw was found to be nauseated, disoriented, sweating profusely, and unable to follow verbal commands. Approximately 10 minutes later, she stopped breathing and had no pulse. A code was called, and CPR was administered. The code team arrived, and Ms. Bradshaw was revived. Subsequently, she was transferred to a rehabilitation facility specializing in the treatment of brain injury and filed this negligence cause of action against RMC.

To withstand allegations of failure to assess and analyze, it is important for nurses not only to assess and analyze the level of care needed by patients but also to document their assessment findings, as well as all actions taken to properly care for patients. Failure to assess and analyze the situation and to document the assessment findings, the interventions, and the patient’s response to those interventions exposes the nurse and, as in the case of Brandon, the hospital to liability for negligence.

Assessment Failure: Failure to Ascertain a Patient’s Wishes with Regard to Self-Determination.

Nurses caring for acutely and critically ill patients have a legal and ethical obligation to act in accordance with a patient’s wishes with regard to self-determination. The patient’s rights are discussed further in the Constitutional Law section below but nurses must determine and abide by those wishes or risk facing disciplinary action and civil liability.

Anderson v St. Francis-St. George Hospital¹⁹ demonstrated how self-determination issues were dealt with in Ohio. In this case, Edward H. Winter was admitted to the hospital because he was having chest pain and was fainting. After discussing treatment options with Mr. Winters, his physician, Dr. Russo, entered a “no code” order in Mr. Winter’s chart. Three days later, Mr. Winter began having ventricular tachycardia and a nurse defibrillated Mr. Winter. After he regained consciousness, he thanked the nurse for saving his life. When Russo was informed of Mr. Winter’s condition, he ordered that lidocaine be administered. Two hours later, Mr. Winter experienced another ventricular tachycardia episode, but it resolved spontaneously.

The next day, Russo ordered the discontinuation of lidocaine and heart monitor. The day after that, Mr. Winter suffered a stroke that paralyzed his right side. Mr. Winter was eventually discharged, but his right side paralysis persisted until his death almost 2 years after his admission to St. Francis-St. George Hospital. Before his death, Mr. Winter sued the hospital, alleging that it was negligent in failing to obey the “no code” order that had been issued. The Ohio Supreme Court eventually heard the case and concluded that the failure to honor Mr. Winter’s wishes constituted a breach of care.

Planning Failure: Failure to Appropriately Diagnose.

Nurses caring for acutely and critically ill patients must plan effective courses of treatment. Such a course of treatment depends on a proper diagnosis. Historically, cases of failure to diagnose have been filed against physicians, rather than nurses. However, nurses who diagnose patient conditions may find themselves the target of a failure to diagnose case and need to be aware that liability may be imposed if the plan of care is based on an erroneous diagnosis.

Implementation Failure: Failure to Timely Communicate Patient Findings.

Nurses spend more time with patients than any other health care professionals do, and this is especially true for nurses caring for acutely and critically ill patients. As a result, these nurses are in the best position to promptly detect changes in a patient’s condition. Detection, however, is only the first step. Nurses caring for acutely and critically ill patients must promptly communicate troublesome patient findings. Failure to properly communicate patient findings can be devastating for patients and can be the reason that patients file malpractice causes of action. Denesia v St. Elizabeth Community Health Center²⁰ exemplifies how courts handle these kinds of cases.

In Denesia it was alleged that the death of Lucille Denesia was the result of the nursing staff’s administering anticoagulation therapy and failure to timely notify the physician of an alarmingly high partial thromboplastin time (PTT). Initially, Lucille Denesia was thought to be suffering a transient ischemic attack because of her history of atrial fibrillation. As a result, anticoagulation therapy was ordered which included an injection of heparin, a heparin drip, and the administration of oral Coumadin. After this treatment regimen commenced, a PTT test was ordered and obtained. The lab notified the nurse 90 minutes later that the PTT was greater than 200 seconds. The nurse caring for Ms. Denesia called the primary treating physician to report the values, but the answering service that the nurse called never contacted the physician. Approximately 70 minutes after the nurse first called the answering service, Ms. Denesia was alert but had symptoms including a headache, vomiting, and ECG changes of six seconds of atrial beats with no corresponding ventricular response. Approximately seven minutes later, the nurse called and spoke with Ms. Denesia’s cardiologist, although the nurse could not recall what she told the cardiologist. The nurse stated that her practice would be to report the patient’s headaches, the vomiting, and the results of the PTT test. However, the cardiologist contended that the nurse only reported that the PTT test had been done and that the nurse was waiting on the primary treating physician to return her call.

Approximately 75 minutes after the telephone conversation with the cardiologist, the nurse spoke with the primary treating physician. Again, she could not remember what she told him but said that her practice would be to report the PTT test result and the nausea and vomiting, as well as the headache Ms. Denesia was having. The primary treating physician testified that he was not informed of the PTT result but that he ordered the IV infusion of heparin to be reduced. Twenty minutes after this conversation, Ms. Denesia vomited again. Antinausea medication was administered, but Ms. Denesia vomited again about 45 minutes later.

After these two vomiting episodes, Ms. Denesia rested comfortably for approximately 2 hours and 5 minutes. When she awoke, she vomited again, became lethargic, could not sit up, and her right hand grasp was found to be stronger than her left. The nurse called the primary treating physician again. The heparin infusion was discontinued. It was at this point, the primary treating physician testified, that he learned of the abnormal PTT result. Twenty-five minutes later, Ms. Denesia was transferred to the critical care unit because of continuing neurologic impairment. Two hours and 45 minutes later, her PTT was down to 27 seconds. However, Ms. Denesia lapsed into a coma and died from a massive cerebral hemorrhage.

The case was appealed to the Supreme Court of Nebraska, where the justices ordered that the case be retried because prejudicial jury instructions were given during the first trial. The results of the subsequent trial are not available, likely because the parties settled. Nonetheless, the case provides a cautionary tale on the importance of monitoring patient status, communicating changes, and documenting those communications. For nurses caring for acutely and critically ill patients, it is imperative that interactions with physicians be documented, whether in person or over the telephone, as well as the information conveyed during those interactions. Had the nurse taken the time to document what she told the cardiologist and the primary treating physician, this litigation might have been avoided.

Implementation Failure: Failure to Take Appropriate Action.

Cases from across the country continue to affirm that it is the nurse’s responsibility to take affirmative action when action is indicated. Garcia v United States²¹ is one such case. In Garcia, Candido Garcia was admitted to a Veterans Administration Medical Center for removal of a subdural hematoma. After surgery, he began making snorting noises and emitting white bubbles at his mouth. Mr. Garcia’s wife reported the occurrence to the nurse caring for him. The nurse, Margaret John, reportedly told the Mrs. Garcia that the extent of her responsibility was to ensure that the surgically inserted drainage tubes were kept clear. Doctors from a neighboring hospital were eventually called but were not informed of the emergency nature of the situation. The result was that Mr. Garcia did not receive proper medical assistance for a period of about 45 to 50 minutes. Following medical intervention, including a return trip to the operating room, Mr. Garcia was quadriplegic. At trial, the hospital was found to be negligent and liable for the damages sustained by Candido Garcia; more than $2.3 million in damages, interest, and the cost of litigation was awarded to Mr. Garcia and his wife. In reaching its decision, the court found that the nursing staff should have recognized the emergency nature of the situation and taken proper steps to notify the attending physician.

Failure to take appropriate action in cases involving acutely and critically ill patients has included not only physician-notification issues but also failure to follow physician orders,22,23 failure to properly treat,²⁴ and failure to appropriately administer medication.^24–26 To avoid allegations of failure to take appropriate action, nurses caring for acutely and critically ill patients need to recognize signs and symptoms of complications and patient compromise. Nurses must also ensure that those signs and symptoms are timely communicated to the physician and take other affirmative action that is authorized and appropriate. Patient findings, interventions and actions taken, and patient responses to those interventions must be documented.

Implementation Failure: Failure to Document.

Nurses caring for acutely and critically ill patients are required not only to take appropriate action but also to accurately document their findings, interventions performed, and patients’ response to those interventions. Failure to thoroughly and accurately document any aspect of care gives rise to negligence causes of action.

Haney v Alexander,²⁷ a case from North Carolina, demonstrates how courts and juries deal with a nurse’s failure to properly document. In Haney, a nurse caring for a patient who was experiencing atrial fibrillation failed to take, record, and communicate all of the patient’s vital signs, failed to properly document the order for Librium, and failed to document the administration of Librium. Reportedly, Librium had already been administered, but the on-call physician was told that Librium had not been administered based on the lack of documentation. Therefore, the physician ordered another dose, a nurse gave the medication, and 45 minutes later, the patient was found dead. The court of appeals concluded that the nurse was negligent in several respects, including that the events that led to the double administration of Librium could have prevented the patient from being able to communicate his worsening condition and receiving lifesaving medical assistance.

Haney and Denesia are indicative of the need for nurses caring for acutely and critically ill patients to thoroughly document the care that is given, interventions and actions taken, and the response of the patient to those interventions and actions. Failure to thoroughly document opens the door for patient-plaintiffs to allege that the absence of documentation signals a breach of the standard of care.

Implementation Failure: Failure to Preserve Patient Privacy.

Nurses have a duty to preserve patient privacy. State and federal statutes and case law affirm this duty. Doe v Ohio State University Hospital and Clinics²⁸ explores the issue. In Doe, a nurse taking care of a patient who was positive for the human immunodeficiency virus (HIV) wrote his HIV status on a laboratory requisition slip in the “other test” section of the form. This was done so that laboratory personnel could be alerted to the patient’s HIV status. The patient was to have a complete blood count and potassium level drawn prior to a lithotripsy to remove kidney stones. The laboratory staff interpreted the notation made by the nurse as an instruction to perform an HIV screen, and not a message regarding the patient’s HIV status. The patient found out that the HIV screen had been done and was outraged that the HIV testing had been done without his consent. This facility had a policy that prohibited HIV testing without informed consent being obtained by the physician.

The case was ultimately dismissed, but it serves as a reminder to guard the privacy of every patient. Nurses can ensure that the privacy of acutely and critically ill patients is protected by following privacy-related regulations, such as state privacy laws and the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA),²⁹ as well as institutional policies and procedures in place to protect patient privacy.

Nurses should also refrain from having discussions about specific patients with anyone except other health care professionals involved in the care of the patient. When discussing specific patients with other health care professionals, it is imperative that patient-specific discussions occur in non-public settings. Discussions about specific patients are never appropriate in public areas such as elevators, cafeterias, gift shops, and parking lots.

In Allman v Holleman,³² Linda Allman was a 28-year-old patient who had been hospitalized because of a ruptured spleen. After surgery, Ms. Allman’s endotracheal tube (ETT) became dislodged, and she was reintubated. Subsequently the ETT became dislodged again, and efforts to revive her were unsuccessful. This case was filed, and a jury returned a verdict in favor of Ms. Allman.

In a 1993 case, Dixon v Taylor,³³ Willie L. Dixon was admitted to Watauga County Hospital for treatment of pneumonia. Later that day, she was transferred to the critical care unit because her condition began to deteriorate. In the early morning hours, just after she was transferred to the critical care unit, a Code Blue was called because Mrs. Dixon was in cardiac and respiratory arrest. During the code, she was intubated and her physiologic condition stabilized. Approximately 17.5 hours after she was intubated, a critical care nurse and respiratory therapist extubated Mrs. Dixon. Nasal prongs were applied initially, but an oxygen mask was needed, so the respiratory therapist left the room to get the mask. When the respiratory therapist returned to the room, he realized that the patient was not breathing normally. The respiratory therapist examined her and found no air movement. Reintubation activities commenced.

However, bed rails had to be removed, the bed rolled down, and the restraints placed on Mrs. Dixon removed. In the process, Mrs. Dixon’s heart stopped beating, and a Code Blue was called. During the second code, the nurse recording events on the Code Sheet noted that the respiratory therapist was unsuccessful at attempting to reintubate Mrs. Dixon. The issue was that the laryngoscope blade he was using was too small, and an appropriately sized blade could not be found in the crash cart. The crash cart had not been restocked after the first code, so the blade had to be obtained from the cardiac care unit across the hall.

When the appropriately sized blade was found and taken to her room, Mrs. Dixon was quickly reintubated by a physician. She was placed on a ventilator but never regained consciousness. After the second code, Mrs. Dixon was found to be brain-dead secondary to suffocation. She was eventually discharged from the hospital to a nursing home, where she died approximately 10 months later.

This cause of action was subsequently filed and tried before a jury. The jury returned a verdict in the amount of $900,000 to the estate of Mrs. Dixon, citing that the hospital, because of the actions of the respiratory therapist and nurse, was negligent in failing to adequately assess Mrs. Dixon as a candidate for extubation, failing to communicate concerns about her readiness for extubation to the physician before extubation, failing to stock the crash cart, and failing to properly position Mrs. Dixon after extubation for possible reintubation.

Five years later, Moon v St. Thomas Hospital³⁴ was published. In this case, a portion of Mr. Moon’s ETT had to be extricated from his airway after he transected it by biting through it. The family of Mr. Moon alleged that permitting him to bite on the ETT to the extent that it was transected was negligent and that a bite block should have been inserted or the ETT repositioned to avoid the transection.

At the trial court level, the transection of this ETT was determined to be not reasonably foreseeable, and the court dismissed the case. That decision was appealed, and, 1 year later, the appellate court ordered the case to trial, concluding that a jury should determine whether inserting a bite block or repositioning the ETT was consistent with the standard of care.

In Owensboro Mercy Health System v Payne,³⁵ a jury awarded a man $2,270,000 in damages for the negligent transfer of Mr. Payne from the operating room to the critical care unit. Mr. Payne had been involved in a motor vehicle accident and, because of extensive internal injuries, had spent between 8 and 8.5 hours in the operating room. At the conclusion of surgery, he was transferred to the critical care unit without supplemental oxygen being administered. This failure caused Mr. Payne to sustain a serious brain injury, resulting in a persistent vegetative state.

A year after Owensboro, a verdict for the defense was rendered in Martin v St. Vincent Medical Center.³⁶ In Martin, the family alleged that a certified registered nurse anesthetist (CRNA) punctured Mr. Martin’s trachea while inserting an internal jugular line during a quadruple coronary artery bypass graft procedure. After surgery, Mr. Martin developed mediastinitis and died. His family filed this wrongful death cause of action, but the defense verdict was affirmed on appeal, citing in part the inability of Mr. Martin’s family to affirmatively establish causation.

As in Martin, the patient-plaintiff in Kent v Baptist Memorial Hospital³⁷ was denied a verdict in her favor. The patient in Kent was a 16-year-old person with diabetes who experienced a diabetic seizure and went into septic shock. On arrival at the hospital, she was unresponsive and had to be intubated. After she was intubated, she was transferred to another hospital. She was eventually extubated and filed this cause of action, contending that she sustained vocal cord damage at intubation because the ETT was too large for her height and weight.

In Miller v Marymount Medical Center,³⁸ a 31-year-old pregnant woman, Mrs. Miller, was admitted to Marymount Medical Center to give birth. Two days later, she gave birth via cesarean section to a healthy baby girl. After the C-section, respiratory problems began. A chest radiograph obtained on the morning after the C-section revealed that Mrs. Miller had pneumonia. A blood gas analysis done that same morning indicated that her Po₂ was 64.4 mEq/L. Antibiotic therapy was started, and a nasal cannula was applied to improve oxygenation. Mrs. Miller was also treated for pain and stress with Demerol and Vistaril injections. Throughout the day, respiratory distress continued.

At 9:45 that same night, her physician told the Miller family that a pulmonologist was going to be called. Five minutes later, the nurse administered Demerol and Vistaril injections. Ten minutes after the injections, Mrs. Miller’s physician returned to her room to find Mrs. Miller unresponsive and in respiratory arrest. A code was called, and 5 minutes later Mrs. Miller was intubated, placed on an oxygen bag delivering 100% oxygen, and transferred to the critical care unit. After she was intubated, another blood gas determination was made, and the Po₂ was 90 mEq/L. Twelve minutes after she was intubated and transferred to the critical care unit, Mrs. Miller was breathing without assistance. However, she never regained consciousness. She was eventually transferred to a nursing home, where she remains in a comatose state.

Mrs. Miller’s family filed this case. With regard to the nursing care rendered to Mrs. Miller, they alleged that the nursing staff failed to furnish treating physicians with up-to-date information about Mrs. Miller’s symptoms and to obtain repeat blood gas analyses as required by an order entered by Mrs. Miller’s physician. They also contended that the administration of Demerol 10 minutes before her respiratory arrest was negligent, because Demerol accelerates the progression of acute respiratory distress syndrome (ARDS). ARDS is the condition the experts retained by the family concluded that Mrs. Miller had on the morning the chest radiograph was obtained.

The trial lasted 7 days, and the jury returned a defense verdict because they were unable to definitively determine that negligence was the proximate cause of Mrs. Miller’s injuries. This verdict was affirmed by the Court of Appeals and the Kentucky Supreme Court.

In a 2008 case from Philadelphia, Small v Temple Univ. Hosp.,³⁹ a patient in the critical care unit died after his ETT became obstructed by mucous and the nurses failed to suction the tube or act based on patient reports. Hours before he died, the patient wrote a note to his daughters saying he could not breathe. The daughters informed the nurses, who failed to communicate this information to the physicians. Later, when the man’s breathing struggles worsened, he became agitated and tried to remove the tube. The physician, thinking he was suffering from critical care unit psychosis, gave him sedatives and had him restrained.

Regardless of the verdict rendered, these cases serve as a stark reminder of the life-altering and life-ending implications associated with management of the respiratory status of an acutely or critically ill patient. Consequently, nurses caring for patients with respiratory compromise must diligently assess, plan, implement care, and evaluate these patients with laser-like precision. The life of the acutely or critically ill patient depends on it.

Blood Transfusions

Tobin v Providence Hospital⁴⁰ serves as a reminder that blood transfusions carry with them considerable risks. In Tobin, Rollin Tobin underwent hip replacement surgery but died from sepsis and disseminated intravascular coagulation. The wife of Mr. Tobin asserted that he died because blood contaminated with Yersinia bacteria was administered to him during surgery.

Before surgery, Mr. Tobin donated three units of his own blood, and all three of those units were transfused in the operating room, as well as an additional, allogeneic unit. After Mr. Tobin’s death, the American Red Cross and the Centers for Disease Control and Prevention investigated the situation and determined that the fourth unit administered to Mr. Tobin was contaminated with Yersinia bacteria.

Mr. Tobin’s family filed a wrongful death cause of action, contending that failure to monitor or record his temperature before, during, and after the operation caused his death. This case went to trial, and the jury returned a verdict in the amount of $6,485,681.06 in favor of the estate of Mr. Tobin. However, because there was an absence of testimony asserting failure to monitor or record the patient’s temperature before, during, and after the operation and because of other evidentiary errors, the Michigan Court of Appeals ordered a new trial.

Like managing a patient’s respiratory status, the administration of blood and blood products, although routine in critical care settings, is a high-risk intervention that can prove to be deadly. Tobin is an example. To avoid liability associated with administration of blood and blood products, nurses must carefully follow organizational procedures and protocols that govern these interventions. They must then take the time to thoroughly document the care that was taken to protect the patient.

Infection Control

In Carroll v Sisters of St. Frances Health Services,⁴¹ Bessie Mae Carroll was visiting her sister, who was a patient in the critical care unit at St. Joseph Hospital, when, after washing her hands, she attempted to remove a paper towel from the container located adjacent to the wash basin she was using. She thought the container was a paper towel dispenser and inserted her right hand into the opening at the top of the container. When she did so, three of her fingers were stuck by sharp objects. After she told a nurse that she hurt her fingers on the paper towel dispenser, the nurse told Ms. Carroll that the container was not a paper towel dispenser but a receptacle for contaminated needles.

Ms. Carroll developed a fear of contracting acquired immunodeficiency syndrome (AIDS) and filed this negligence-based cause of action, contending that the container had been placed too close to the wash basin and that a warning should have been placed on the container indicating its purpose and contents.

At the trial court level the case was dismissed, but on appeal a trial was ordered so that the jury could determine whether Ms. Carroll’s fear of acquiring AIDS was reasonable.

The case of Piedmont Hospital v Reddick,⁴² like Carroll, arose out of an allegation that appropriate infection control standards were not followed. In Piedmont, James Davis died after contracting a fungal infection. His estate filed this cause of action, contending that construction work performed in or near the critical care unit where Mr. Davis was being treated caused the Aspergillus fungus to become airborne and transmitted to him.

The complaint asserted that construction work was performed without proper safeguards and that this failure led to a breach of industry standards. Although a number of issues were addressed by the Georgia Court of Appeals Second Division, the court ordered the case be tried as to the alleged negligence of the construction company and hospital.

Carroll and Piedmont demonstrate that infection control issues find their way to courtrooms across America. To minimize risks associated with alleged infection control failures, sharps containers must be clearly labeled and positioned away from wash basins and paper towel dispensers. Before remodeling or other construction begins, the environment must be safeguarded from the airborne spread of deadly microorganisms.

Constitutional Law: Patient Decision Making

The right of competent adult patients to refuse treatment is well established. This right has evolved from the common law doctrine of informed consent, the laws of assault and battery (the right to be free from fear of harm and unwanted touching), and the common law right to “possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”⁴³

A competent adult patient has the right to refuse even life-sustaining treatment for any reason, without regard for that individual’s motivations. Bouvia v Superior Court⁴⁴ is representative of this principle. In Bouvia, a young woman with significant mobility disabilities refused to eat and accept treatment. The facility in which she resided subjected her to countless competency and psychiatric evaluations, all of which indicated she was fully competent (or had decision-making capacity). The court held that because she was a competent adult who understood the consequences of her decisions, she could not be compelled to accept even food against her wishes.

In general, American law values individual autonomy to such a degree that a competent patient’s wishes can almost never be legally overruled. It is important to note that no constitutional right is absolute and there are legal frameworks for determining when a competing right or obligation may outweigh an individual right. For example, the right to refuse unwanted touching can be compromised by considerations such as the health and safety of citizens, as is the case with mandatory vaccinations. Even within that example, there are exceptions based on constitutional considerations such as religious freedom. In practice, there have been no legally justified reasons to override the wishes of a competent patient to refuse medical treatment.

Critical care nurses will participate in the withholding or withdrawing of treatment. This is difficult whether or not the patient has decision-making capacity, and it is important for nurses to keep in mind that there are times when the legal rights of patients and ethical decisions will match and times when these will seem at odds. Health care decisions become most complex when patients lose the capacity to make their own decisions personally. These decisions can also be difficult in patients who were never competent to make their own decisions. Navigating the law surrounding the right to refuse treatment in patients who do not have decision-making capacity is much more legally complicated than for those with capacity.

Patients Without Decision-Making Capacity

Patients without decision-making capacity include individuals who were previously competent (those who reached adulthood but lost competence), those who were never competent (those born with severe to profound cognitive disabilities), those who are not yet competent (primarily children under 18), and those with fluctuating competence, such as individuals with cyclical disorders such as the manic phase of bipolar disorder that can seriously impair decision making. The law also imposes standards of judgment for surrogate decision makers to guide and evaluate decisions.

A number of legal mechanisms exist that can simplify at least the legal issues surrounding decision making for patients without decision-making capacity (admittedly, the ethical and emotional issues are much more nuanced). These include state probate laws that may allow courts to appoint guardians for all or some decisions. There are also a variety of state law based procedures for individuals with decision-making capacity to direct their future care through documents and/or the appointment of a surrogate decision maker in the event they should lose capacity. These include living wills, advance directives, durable powers of attorney, and physician orders for life-saving treatment (POLSTs). The legal requirements and analyses are more stringent for decisions that may directly impact life, including decisions to forgo or withdraw treatment at the end of life.

Never and Not Yet Competent Patients

Competent adults can refuse treatment for any reason, even if others believe it is in opposition to their best interests. On the other hand, in the absence of a competent adult decision maker or their documented wishes, the law imposes a best interest standard. The standard is self-explanatory; parents and legal guardians of children have a legal obligation to make informed decisions based on the best interests of the patient. As a child matures, there are increased legal obligations to involve the patient in health care decision making based on what is developmentally and situationally appropriate.

It is inevitable that on occasion a parent or guardian’s judgment will clash with that of the provider or the maturing child. Every effort should be made by the nurse and the extended health care team to facilitate discussion, understanding, and resolution without resorting to the courts. However, there are procedures in every state to petition the court on an emergent basis to evaluate and rule on what is in the best interest of the patient. The majority of legal authority surrounds cases that involve a decision to withdraw or forgo life-sustaining treatment in patients without decisional capacity and who have not specified their wishes at an earlier time when they had capacity.

Previously Competent Patients

Several highly publicized cases beginning in the 1970s concerned the withdrawal of treatment in young women who were previously competent. In each of these cases, the patient had sustained devastating neurologic injury and a legal challenge was presented to their families’ ability to withdraw treatment, including nutrition and hydration.45–47 In each case, those same family members were entrusted for years with medical decisions for complex and life-threatening procedures on behalf of the patients, but the request to withdraw care or artificial nutrition or hydration was met with years of struggle in the legal system. This was, in part, because of a state’s right to establish high standards for evidence of what the patient herself would have wanted in regard to those decisions likely to ultimately result in death when the patient had not clearly communicated their wishes before their incapacity. In addition to affirming the states’ ability to set high evidence standards in favor of preserving life, these cases established that in the absence of specific directions from the patient, surrogate decision makers should make a substituted judgment standard. This means that decision makers must base their decisions on the patient’s preferences and values and what the patient would have done if then competent. The surrogate decision maker’s own judgment about what should be done may differ from what the law requires. He or she must abandon personal values and preferences and instead assume the preferences and values of the patient in making the decision. Obviously, this is an enormous responsibility as well as a difficult task. To the extent patients can make their wishes known, in advance, the agony already associated with these difficult decisions can by lessened.

These decisions, beginning with In re Quinlan in 1976, initiated the slow process of state-by-state legislation to provide competent adults with a way to legally direct their care in the event of future incapacity. Today, there are a wide variety of state law-based procedures for individuals with decision-making capacity to direct their future care through documents and/or the appointment of surrogate decision makers in the event they should lose capacity. These include, but are not limited to, living wills, advance directives, durable powers of attorney, and POLSTs.