Ohio Nursing Law: Standards and Practice Issues
Online Course #2222 - 1 Contact Hour

Author: Shelda L. Shank, RN, BSN, PHN
Author: Joanne E. Souza, RN, BSN, MBA
©2008 National Center of Continuing Education, Inc.

Specific sections of information contained in this course are derived from the
Ohio Administrative Code, Section 4723, Chap. 4.

Purpose and Goals

The goal of this course is to provide information regarding current laws and rules related to the practice of nursing in Ohio. And to educate healthcare professionals regarding the complex issues involved in basic legal situations.

Instructional Objectives

Upon completion of this course, the motivated learner will be able to:

1. List and describe the three sources of law in the U.S.
2. Define and compare the terms battery, malpractice and negligence.
3. Define HIPPA and it’s significance to the healthcare industry.
4. Outline the standards for competent nursing practice of RNs and LPNs in Ohio.
5. Review standards for the promotion of client safety in nursing practice.
6. Identify responsibilities of licensed nurses within the scope of the nursing process.

Background

As in many other industries, laws and regulations significantly impact the functioning of the healthcare industry. All licensed medical professionals work under established standards, comprising local, state, and federal laws as well as specific guidelines. Professional nurses fall under these guidelines and this is where the scope of practice comes into play followed by individual state Nurse Practice Acts (NPA). Some laws, such as those relating to malpractice affect the manner in which the industry operates. Others affect the organization and the environment itself. Therefore, it is increasingly important that nurses understand this complex and dynamic legal minefield.

Healthcare professionals are required to make decisions or complete tasks that can result in legal action initiated by coworkers or clients. Most nurses have the dedication, motivation, education and training to accomplish their jobs and responsibilities accurately and professionally. However, there are instances when regardless of the application of strict standards and practices and attention to detail, incidents can occur which result in litigation. To help avoid these instances, you must be educated and informed of current laws, statutes, standards that directly apply to daily practice and options available to you if your professional conduct is questioned in a court of law.

Introduction to Law

*Sources of Law*

There are basically three sources of law in the U.S.: statutory, administrative, and common law.

1. Statutory law includes those principles and rules enacted by legislative bodies. These “statutes” become laws after they are first approved by the Senate and House of Representatives and then signed by the governor or the President. These enacted laws rest in a specific hierarchical order so that the Constitution, federal law, and federal treaties take precedence over the constitutions and laws of states and local jurisdictions. Often cases involving statutory laws are heard in courts where judgments are made as an interpretation of a statute as it relates to a specific case pending.

2. Administrative law takes the form of rules and regulations enacted by agencies created by legislatures. Examples include: the Federal Trade Commission (FTC), and the Food and Drug Administration (FDA).

            3.Common Law is law originating from individual case decisions in the various federal, state, and local courts. When a common law principle has been declared in a state court decision, the principle must be followed for similar cases in the future by other courts within the state where the decision was rendered.

A decision that yields a new legal principle establishes a precedent. However, a precedent set in one state does NOT set a precedent for another state. Also, prior decisions can be overruled if there is a change in social attitudes, public needs or contemporary political thinking. Most laws involving malpractice cases come from common law, therefore malpractice suits that have already been decided serve as a guide for future decisions.

*Tort Law*

A tort is a civil wrong committed against a person or property (real or personal) and is punishable by damages (monetary compensation) rather than imprisonment. There are three basic categories of torts: intentional, negligent, and strict liability torts where liability is assessed irrespective of fault. This last tort falls under the product liability umbrella, which will NOT be discussed in this course.

1. Intentional Torts occur when the plaintiff must prove that the willful act committed by the tort-feasor (see glossary) was “intentional”, meaning it was known with a high degree of certainty that harm to another would result. Potential tortuous conduct includes: assault, battery, false imprisonment, invasion of privacy, disclosure of information, defamation of character and infliction of mental distress. A few of these will be discussed in detail below.

Assault: The causing of an apprehension of an immediate harmful, offensive, or unauthorized contact to a person.

Battery: The harmful, offensive, or unauthorized touching of another person. A client may be the receiver of the battery and not be aware that it has occurred. This is seen in the case of the unconscious person who undergoes surgery without consent, either implied or expressed. Nurses should keep in mind that clients get touched by many people during their hospital stay. Every client is not seeking an opportunity to sue, however, realize that procedures from bed baths to medication administration to actual surgery all involve TOUCHING.

REMEMBER: In the eyes of the law, the fact that the patient benefited from your unconsented touching is not as important as whether or not you had permission to touch them in the first place.

REMEMBER: An adult client who is alert and oriented has the right to refuse any aspect of treatment.

Disclosure of Information: This is similar to invasion of privacy. It occurs when a client’s problems, condition or diagnosis is inappropriately discussed with any third party (including family members). Information given to nurses by clients is often personal and detailed. The Patient’s Bill of Rights states that the client has the right to expect confidentiality in the healthcare relationship. Be careful of what you say and whom you say it to.

            REMEMBER: You are still responsible for reporting certain information as imposed by state law. However, if you report “legally reportable” information and later learn that your finding was erroneous, you may be held liable for the disclosure, BUT you can be protected if your error was in good faith.

            Case In Point: Cochrane v. Sears Roebuck and Co., 34 S.E. 2d 296

(Ga.1945). A woman went to a company nurse after feeling ill while at her place of employment. The problem was diagnosed as venereal disease and this finding was reported to the woman’s supervisor. Subsequently, she was fired from her job. Later, it was discovered that the diagnosis was incorrect. The court held that no damages could be recovered because the nurse made a mistake in good faith and had the legal duty to report.

1. Negligent Torts: Although the terms “negligence” and “malpractice” are often used interchangeably, you should be aware of the difference.

Negligence: Carelessness or a failure to act that is owed to another person that a “reasonable and prudent” person, facing the same circumstances, would not commit or omit.

Malpractice: This is similar to negligence but is more specific in that the act is committed or omitted by a professional person who has deviated from a standard of care. There are four elements of malpractice that must be proven in order for a plaintiff to recover damages.

1. Duty of Due Care: This is the easiest to prove especially if you practice in a hospital setting. The only proof needed is that a relationship existed between the nurse and client at the time of the alleged injury. This relationship exists merely by having the client ON YOUR FLOOR, event if the client is not assigned to your care. For example, if you walk past a room of a client NOT assigned to you and the client requests assistance.
2. Breach of Duty: This is defined as the failure to adhere to the standard of care set by the nursing profession thus departing from the specific duty owed to the client. Evidence of breach of duty presented to a jury includes: testimony (i.e. expert witnesses), circumstantial evidence, or res ipsa loquitor (see glossary). Reasonably Prudent Person Doctrine: This “test” relies on the doctrine that asks, “Did the defendant (nurse) act reasonably under the circumstances?”
3. Injury (Damages): This element not only includes physical harm but also mental anguish and other invasions of plaintiff’s (client) rights. The nurse may be negligent but not liable if no injury results to the client. Damages: A plaintiff must show some measurable harm occurred to win the case.
4. Proximate Cause (Causation): This involves the concept of “foreseeability”. A logical link must exist between the nurse’s act and the injury suffered. It also relies on the “but for” test: “But for the ‘act’ the injury would not have occurred. It must be clearly understood that the mere departure from a standard procedure alone in not enough evidence to allow a client to recover damages. Therefore, if there exists a logical link, but NO proximate cause, there is NO liability.

REMEMBER: After hearing the facts and testimony of a case, the jury will be asked to examine two questions:

1. Did the nurse fail to adhere to the standard of care practiced by the nursing profession in this situation, if so, was it foreseeable that harm would result?
2. Was the negligence the immediate cause of the injury?

ALSO: The sole fact that injury is suffered without proof that the nurse deviated from the practice of competent members of the profession, is NOT sufficient for imposing liability upon the nurse.

            The constant changing and shifting of healthcare issues and patient privacy, thrust our society into an era of putting into practice the core of nursing: patient privacy and protection. This brought about positive changes and the regulation of the Health Insurance Portability and Accountability Act or HIPAA.

HIPAA—Health Insurance Portability and Accountability Act

            In 1996, Health Insurance Portability and Accountability Act (HIPAA) was enacted into law. This law has had significant impact on the healthcare industry including the need for numerous changes in the way we communicate with our patients, their families, and with each other. This law provides rights to patients and safeguards for nurses. It affects everyone in the healthcare setting. Since the days in which the Nightingale Pledge was written, nursing has stressed the importance of confidentiality regarding all patient matters. The current Code of Ethics for Nurses established by the American Nurses Association is clear in intent and meaning as it relates to the nurses’ role in promoting and advocating for patient’s rights related to privacy and confidentiality. For nurses, HIPPA is an endorsement of our previously articulated responsibility to our patients.

With the legal foundation laid and the framework of laws, standards, and practice issues in place, let’s delve into some specifics of how Ohio Laws and Rules apply to everyday practice in protecting ourselves and our patients.

The mission of the Ohio Board of Nursing is to promote and protect the health of citizens through safe nursing practice. It accomplishes this mission by establishing educational criteria for schools of nursing, endorsing rules to regulate the scope and practice of nursing, issuing licenses, and disciplining those who fail to carry out the rules effectively and efficiently (OAC, 2003).

 Section 4723 of the Ohio Administrative Code describes the Ohio Nurse Practice Act (NPA). The Act contains rules and regulations for all aspects of nursing practice in the state of Ohio.

Ohio Administrative Code (OAC)/ Ohio Revised Code 2006

The rules of the board of nursing regulate nursing practice in Ohio and are contained in Section 4723 of the Ohio Revised Code (ORC). Chapter 4 outlines the scope of practice and the standards of safe nursing practice for registered nurses (RNs) and licensed practical nurses (LPNs). Other chapters of the code deal with aspects of nursing practice, such as licensure, delegation, continuing education, chemical dependency abuse, and other standards related to nursing practice.

The NPA establishes an Ohio Board of Nursing (OBN) and defines its structure and function. The NPA authorizes the board to create and enforce rules for registered nurses, practical nurses, dialysis technicians, certified nurse-midwives, certified nurse practitioners, and certified registered nurse anesthetists (ORC, 2006).

            The ‘Board’ differs from the Ohio Nurses Association (ONA) in that the OBN derives its authority from state law and is part of the state government, while the association is a professional, voluntary membership organization for professional nurses living and working in the state. The ONA has no legal authority, but provides legislative, educational, practice consultation, and collective-bargaining services for its members. Its mission is to “advance professional nursing practice in Ohio in the service of quality health care” (ONA, 2005).

Competency Standards for RNs

Registered nurses provide nursing care within the scope of practice described in the Ohio Revised Administrative Code and the rules of the Ohio Board of Nursing and maintain current knowledge of the duties, responsibilities, and accountabilities of safe nursing practice. (ORC, 2006)

Registered nurses must be competent and accountable in all areas of practice, including consistent performance of all aspects of nursing care and appropriate recognition, referral or consultation, and intervention when complications arise.

RNs may provide nursing care beyond basic nursing preparation for an RN provided they obtain additional education, demonstrate appropriate knowledge, skills, and abilities, and document their action. Such nursing care cannot involve a function or procedure that is prohibited by any law or rule (ORC, 2006).

An RN must clarify and implement any prescribed regimen, direction, or treatment for a client in a timely manner unless the RN believes the prescribed treatment is inaccurate, not properly authorized, not current or valid, harmful, or potentially harmful to a client or contraindicated by other documented information (ORC, 2006).

When an RN decides not to follow a direction or administer a prescribed medication, they must notify the prescribing practitioner, document that fact, and state the reason for not following the direction. No matter what the circumstances, however, the RN takes action to ensure the safety of the client.(ORC, 2006).

Registered nurses maintain the confidentiality of client data, only communicating appropriate client information to other members of the healthcare team for healthcare purposes. They do not disclose identifiable client healthcare information unless the client gives consent through a properly executed document. Only in limited circumstances, in accordance with authorized law, rule, or legal authority, may an RN give out identifiable client information (see section on HIPAA).

`An RN uses acceptable standards of safe nursing care as a basis for any observation, advice, instruction, teaching, or evaluation and communicates information that is consistent with acceptable standards of safe nursing care (ORC, 2006).

When an RN gives direction to a LPN, the RN first assesses the condition of the client who needs nursing care, including the type, complexity, and frequency of care. The RN also assesses the skill and ability of the LPN who is to perform the care and the availability and accessibility of resources needed to perform the procedure.

Competency Standards For LPNs

A licensed practical nurse (LPN) functions within the scope of practice of a LPN as set forth in the Ohio Revised Code and the rules of the Ohio Board of Nursing. An LPN maintains current knowledge of the duties, responsibilities, and accountabilities for safe nursing practice. An LPN demonstrates competence and accountability in all areas of practice, including consistent performance of all aspects of nursing care and appropriate recognition, referral or consultation, and intervention when complications arise.

An LPN may provide nursing care beyond basic preparation for an LPN provided the LPN obtains appropriate education and demonstrates knowledge, skills, and abilities and maintains satisfactory records of meeting these requirements (ORC, 2006). When an LPN is directed to do a specific function or procedure by an authorized professional practitioner and the action is not illegal, harmful, inaccurate, or contradicted by other documentation, the nurse clarifies and implements the order. If an LPN decides not to follow the direction, the nurse documents the decision and notifies the practitioner of his or her reason and takes action to ensure the safety of the client.

An LPN reports to and consults with other nurses or other members of the healthcare team and make referrals as appropriate. An LPN maintains the confidentiality of client information obtained in the course of nursing practice. The LPN communicates appropriate client information with other members of the healthcare team for healthcare purposes only. An LPN does not disclose identifiable client healthcare information unless the client gives written consent by a properly executed release of information.

Client Safety Standards (adapted from ORC 4723-4-06, Standards of Nursing Practice Promoting Client Safety)

Promoting client safety is a top priority in professional nursing practice. The purpose of this section is to establish: (1) Minimal acceptable standards of safe and effective nursing practice for a registered nurse and a licensed practical nurse in any setting; (2) Minimal acceptable standards of safe and effective practice for advanced practice nurses.

A registered nurse shall maintain current knowledge of the duties,

responsibilities, and accountabilities for safe nursing practice. At all times when a licensed nurse is providing direct nursing care to a client the licensed nurse shall display the applicable title or initials to identify the nurse's relevant licensure as a registered nurse or as a licensed practical nurse (ORC, 2004).

A registered nurse shall demonstrate competence and accountability in all areas of practice in which the nurse is engaged that includes, but is not limited to, the following:

(1) Consistent performance of all aspects of nursing care; and

(2) Appropriate recognition, referral or consultation, and intervention, when a complication arises.

The nurse obtains appropriate education that emanates from a recognized body of knowledge relative to the nursing care to be provided. Licensed nurses must implement measures to promote a safe environment for clients and maintain a professional boundary between themselves and clients. They must provide privacy during examination and care and treat clients with individual dignity, courtesy, and respect. Licensed nurses shall not engage in behavior that causes or may cause physical, verbal, mental, or emotional abuse to a client or engage in behavior that a reasonable person would interpreted as abuse (ORC, 2004).

A licensed nurse may not engage in behavior that constitutes an inappropriate personal relationship or engage in sexual conduct with a client, or engage in conduct that may be interpreted as sexual, seductive, or demeaning to a client.

When licensed nurses function in administrative roles, they must make sure that there are procedures in place and implemented to verify that every nurse working under their direction has a current valid license to practice nursing in the role to which the nurse is assigned. Only RNs may supervise or evaluate the nursing practice of RNs and LPNs; however, non-nursing supervisors may evaluate nurse employees in matters other than the practice of nursing (ORC, 2004).

Standards For the Nursing Process (RNs)

This section is adapted from 4723-4-07, Standards for Applying the Nursing Process as a Registered Nurse.

Registered nurses and advance practice nurses give care to clients using the steps of the nursing process that are cyclical in nature so that the nurse's actions are directed by the client's changing status throughout the process. The nurse collaborates, as appropriate, with the client, family, significant others, and other members of the health care team in applying the steps of the nursing process. The following standards shall be used by a registered nurse, using critical thinking and clinical judgment, in applying the nursing process for each client under the registered nurse's care:

RNs assess, analyze, plan, implement, and evaluate the changing status of clients. They apply the nursing process in various practice settings and collaborate with clients, family, significant others, and members of the healthcare team according to the following standards (ORC, 2004).

Assessment

Assessment involves the accurate and timely collection of both subjective and objective information about a client’s condition from the client, family members, significant others, and members of the healthcare team. The RN may delegate the gathering of data, but must document and report it, as appropriate, to other members of the healthcare team.

Analysis

In an accurate and timely way, RNs analyze data, identifying, organizing, and interpreting it. They then establish, accept, or modify the nursing diagnosis that is used as a basis for nursing interventions.

Planning

Registered nurses establish, maintain, or improve the nursing care plan, including desired client outcomes and interventions. They communicate the plan to appropriate members of the healthcare team.

Implementation

Registered nurses implement the current nursing care plan. They execute current valid orders or directions by a licensed practitioner, and give direct nursing care commensurate with their education, knowledge, skills, and abilities. They assist with care of the client as necessary; collaborate with other healthcare team members, and delegate nursing tasks appropriately.

Evaluation

In an accurate and timely way, RNs evaluate, document, and report client responses to nursing interventions to appropriate members of the healthcare team. They assess the client’s response to nursing interventions; and progress towards expected outcomes of the plan of care. Evaluation includes the always important step of documentation and communication of the client's response to nursing interventions (ORC, 2004).

          For purposes of this rule, standards for implementing the nursing process also apply to advanced practice nurses as well.

Standards For the Nursing Process (LPNs)

This section is adapted from 4723-4-08, Standards for Applying the Nursing Process as a Licensed Practical Nurse.

Licensed practical nurses participate in the nursing process set in place in the Ohio Administrative Code and rules of the board. The steps of the nursing process are cyclic in nature, so that the client’s changing status affects the action of nurses as they assess, plan, implement, and evaluate the client’s status. The nurse collaborates, as appropriate, with the client, family, significant others, and members of the healthcare team. The standards for applying the nursing process follow (ORC, 2004).

Assessment

The LPN contributes to the nursing assessment of a client. In an accurate and timely manner, nurses collect and document objective and subjective data related to the client’s health status and report the data to appropriate members of the team.

Planning

In an accurate and timely manner, LPNs contribute to the development, maintenance, or modification of the nursing component of the care plan and report the nursing component and all modifications of the plan to appropriate members of the healthcare team.

Implementation

LPNs implement the nursing care plan in an accurate and timely manner by:

Administering medications and treatments prescribed by an authorized person.

Giving direct basic nursing care and assist in the care of the client at the direction of an RN, physician, advanced nurse practitioner, and other legally licensed personnel. They work together with other nurses and members of the healthcare team, delegating appropriate nursing tasks such as administering oral or topical medications.

Evaluation

LPNs contribute to the evaluation through documentation and reporting information to appropriate members of the healthcare team, and contribute to the revision of the nursing components of the plan of care on the basis of the evaluation.

Conclusion

Nursing is the protection, promotion, and optimization of health and abilities, prevention of illness and injury, alleviation of suffering through the diagnosis and treatment of human response, and advocacy in the care of individuals, families, communities, and populations.

Essential Features of Professional Nursing

Provision of a caring relationship that facilitates health and healing.

Attention to the range of human experiences and responses to health and illness within the physical and social environments.

Integration of objective data with knowledge gained from an appreciation of the patient's or group's subjective experience.

Application of scientific knowledge to the processes of diagnosis and treatment through the use of judgment and critical thinking.

Advancement of professional nursing knowledge through scholarly inquiry.

Influence on social and public policy to promote social justice.

From ANA's Nursing's Social Policy Statement, Second Edition, 2003.

Listed below are select terms defined in the Ohio Standards of Practice as well as legal terms discussed in the first half of the course.

Client: The recipient of nursing care, including an individual, group, or community.

Consent: A voluntary act by which one person agrees to allow someone else to do       something. For medical liability, consents must be in writing with an explanation of procedures to be performed.

Delegation: Transfer of responsibility to perform a nursing task from a licensed nurse authorized to perform a task to an person who is not authorized to perform the task.

Direction: Communicating a plan of care to a (LPN). Direction by An RN is not meant to imply the RN is supervising the LPN in the employment context.

Liability: An obligation one has incurred or might incur through an act or failure to act.

Licensed nurse: Either a registered nurse (RN) or a licensed practical nurse (LPN) who holds a current valid license to practice nursing in Ohio.

Malpractice: Professional misconduct, improper discharge of professional duties, or failure to meet the standard of care, which results in harm to another.

Nursing diagnosis: An identified client need or problem that is amenable to nursing intervention.

Nursing process: The cyclic four or five step process used by professional nurses to provide care to clients: assessment, planning, implementation, and evaluation.

Nursing task: Activities that constitute nursing practice, performed to maintain or improve the well being of clients who are unable to perform such actions for themselves.

Res Ipsa Loquitur: Latin for “the thing speaks for itself”. A doctrine of law applicable to cases where the defendant had exclusive control of the thing that caused the harm and where harm would NOT have ordinarily occurred without negligent conduct.

Scope of practice: The range of knowledge, skills, and responsibilities of LPNs, RNs, and certified nursing specialties as identified and authorized by the Ohio Board of Nursing.

Standards of care: Guidelines for nursing practice as defined by state and federal laws, professional organizations, and employing institutions.

Tort: A civil wrong—intentional or unintentional.

Tort-feasor: One who commits a tort.

To access the entire section of the Ohio Administrative Code and Nursing Scope of Practice issues, go to http://www5.state.oh.us/nur/Law_and_Rule.htm

References and Suggested Reading

Bostrom, BA. (2005). In the matter of Christine B. Biersach. In the Ohio Court of Appeals. Issues Law Med Spring;20(3); p267-70.

D'Arcy Y. (2005). “Pain management standards, the law, and you.” Nursing, Apr;35(4); p17.

Ives Erickson, J.; Millar, S. (2005). “Caring for patients while respecting their privacy: renewing our commitment.” Online J Issues Nurs, May; 10(2); p2.

McKeon, E.(2005) “New legislation receiving ANA endorsements: Medicaid, Johanna's law, and the SHARE Act.” Am J Nurs, Jul;105(7) p37.

Moskowitz, E. (2005)”Recent developments in health law.” J Law Med Ethics Spring;33(1), p168-70.

Priest, C.(2005). “Held liable.” Reflect Nurs Leadersh;31(1); p20-2,36.

Ruger, TW. (2005) “The United States Supreme Court and health law: the year in review.” J Law Med Ethics  Fall;33(3): p611-5.

Ohio Nurses Association (ONA). (2005). Nursing Practice Information. Retrieved September 27, 2006 from http://www.ohnurses.org/displaycommon.cfm?an=l&subarticlenbr=126.

State of Ohio. (2006). Ohio Administrative Revised Code (ORC4732V2), Section 4723-4, Chapter 4, Standards of Safe Nursing Practice for Registered Nurses and Licensed Practical Nurses. Compiled from Andersons Online 06/2006
Retrieved September 27, 2006 from http://www.nursing.ohio.gov/Law_and_Rule.htm.