Civil law systems, which trace their roots to ancient Rome, are governed by doctrines developed and compiled by legal scholars. When it comes to filing lawsuits against nursing homes, the cases fall under tort law. against the nursing license or another denial of administrative privilege. This is sometimes referred to as ‘balancing the risks’. You’re probably left with even more questions, so let’s dig into some of the basic differentiators between civil and criminal law. The duty of care is to avoid unreasonable risk of harm to another. Civil laws can branch from either statutory or common law. Firstly, because I am the author of a text book called “Nursing and The Law”, which is a recommended text book for nursing and allied health professionals. Provided the nurse exercises reasonable care and skill in the circumstances, there would be no breach of the duty of care. For example if a nurse is found guilty of diverting drugs which is a crime against the state and the public, leads to incarceration. ... nursing policies, nursing education and nursing practice are worth examining. Thus a duty of care can be shown to exist when a person can reasonably foresee that his or her acts or omissions are likely to place another at risk (see the case of. The standard expected of the healthcare worker is that which is attributed to the class of healthcare workers to which the defendant belongs. The law will often determine an unreasonable risk of harm by looking at the harm that is likely to be caused and/or the frequency of its occurrence. A breach of a civil law right or obligation does not usually lead to criminal processes and sanctions. Upon completion of this chapter, the reader will have gained insights into: The author acknowledges that material for this chapter was drawn from a previously published work: Mair J, Blackmore K 1992. (Berman and Synder, 2012) Civil Law: Civil law, also part of public law, covers torts and contract laws. The primary source of law in common law countries is a combination of common law and legislation. Complete the form below, and your case will be reviewed within 24 hours. If you have questions or concerns about a particular matter, please request a free consultation with a lawyer. Cases that have an important impact on the common law are reported in law reports relevant to particular courts. As the independent regulator for nurses, midwives and nursing associates, what we do is set out by legislation. It is an objective test and therefore is not dependent upon the particular skills and knowledge of the practitioner. • legal rules governing the registration and discipline of nursing. Legislation in all jurisdictions provides for limitation periods to apply for civil claims in the courts (e.g. Nurse Practice Acts (NPAs) are laws in each state that are overseen by the state boards of nursing. This is called the ‘egg-shell skull rule’. Licensure protects the consuming public and insures that the nurse has completed a state approved nursing school, has successfully passed their licensure examination and has also continuously met the requirement(s) for relicensure each biennium without any suspensions or revocations of their license. Examples are defamation (including libel and slander), breach of contract, negligence resulting in injury or death, and property damage. The standard differs from that of a criminal case, in which the prosecution must prove a case “beyond a reasonable doubt.”. from a person whose brain has ceased to function but whose heart and lung activity is being sustained artificially. • Register a child’s birth – an example of the law requiring a particular action, in this case under the Birth and Deaths Registration Act 1875. For example, while advanced practice nurses have an expanded scope of practice, they may be held to a medical standard of care by courts. Legislation in one jurisdiction (state/territory) does not bind people in another jurisdiction unless the legislation has valid extraterritorial application. Thus an injured person is required to take reasonable steps to reduce the effects of (ameliorate) the harm caused. Note: Australian legislation relating to negligence is mostly aligned, however, small differences do exist between States and Territories. Common law is a type of law that is established by particular cases, as compared to law that uses statutes as its guide. For example, not all states/territories have legislated to control the reproductive technologies and those that have are not identical. Less important cases are unreported but can still be accessed. Technology, skill development and empowerment in nursing, 14. Lawis defined as a code which regulates nurses' conduct (their actions). Nursing includes professionals in clinical nursing, nursing management, healthcare quality assurance and healthcare risk management. Because medical malpractice is a civil law action, physicians are frequently preoccupied with civil law concerns. Examples of such laws include malpractice, invasion of privacy, assault, battery, libel, slander, and false imprisonment. A person practising a profession (‘a professional’) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent practice (section 5O). Civil law actions must be brought by an attorney hired by the injured party (the plaintiff) against the alleged wrongdoer (the defendant). A person acting as ‘tutor’ for the child may take action on behalf of the child in the child’s name prior to majority. When a person is negligent or careless in a way that causes harm to someone else, the victim of the negligence can sue. Examples from the workplace will be used to guide a discussion. This branch of civil law deals with torts or civil wrongs and personal injuries, which resulted from the actions of another person or an entity, such as a nursing home. The text of the legislation for regulating nurses, midwives and nursing associates. A body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and Family Law; distinct from criminal or public law. Common examples of civil cases include child custody, child support, contract violations, personal injury, property damage and divorce. n Defines the practice of nursing n Each state has its own n Establishes requirements for obtaining a license to practice nursing such as the passing score on the NCLEX – RN/LPN n Is a statutory law Consent n Necessary for Ø All routine treatment Ø Hazardous procedures (surgery) Ø Chemotherapy the fact that giving Thalidomide to pregnant women to treat morning sickness can cause phocomelia in the unborn). Tingle and Cribb (2002) identify that one of the key areas that highlights the development and maturing of nursing practice within recent years is that there is more of a focus on developing nurses understanding and knowledge surrounding the concept of ethics and law. This law requires all nurses to immediately report any suspected or known neglect, abuse, or exploitation of any patient (adult or minor) encountered in the professional setting. Nurses at all levels and in all facets of specialization should comply with strict ethical guidelines and operates as per various governmental and regulatory statutes. There are lots of examples of negligence that can lead to a civil lawsuit. A civil case settles a personal or business conflict when an individual or group feels wronged by a defendant or cannot come … 18.14). Differences in law from state to state and territory are less obvious in common law cases. When a plaintiff has suffered harm as a result of another’s negligence, the plaintiff is required by law to minimise (mitigate) any loss. Florida negligence case example: nursing home negligence. Nurse Practice Acts (NPAs) are laws in each state that are overseen by the state boards of nursing. It is within these jurisdictions, as well as in England, that law relevant to nursing practice has developed. a person who contracts HIV through a blood transfusion may not be aware that they have contracted the disease until sometime after the expiration of a limitation period). For example, while advanced practice nurses have an expanded scope of practice, they may be held to a medical standard of care by courts. If you have been hired under a contract of employment or an employment agreement, for example, your position is governed by that contract. Common law is a term used to refer to law that is developed through decisions of the court, rather than by relying solely on statutes or regulations. By the very nature of their practice, nurses are engaged in close physical contact with patients. One of the most notable laws related to nursing is known as 'mandated reporting'. second negligent act must be such that the chain of causation flowing from the first negligent act is broken. Under common law, healthcare professionals have a duty of care towards their clients. (An example is the requirements to report incompetent or unethical nurshing condcut to the state board of nursing) Common law laws that are a result from judicial decisions made in courts when individual legal cases are decided (examples: infromed consent, negligence and malpractice) Note: Australian legislation relating to negligence is mostly aligned, however, small differences do exist between States and Territories. Once known, the question arises as to whether the newly discovered ‘foreseeable’ risk is an ‘unreasonable risk’. To the extent that there is an unreasonable failure to mitigate, a court will discount the amount of compensation that the plaintiff would have received. This field is for validation purposes and should be left unchanged. A nurse can lose his or her license to practice if he or she violates a public law. The circumstances in which care is being provided can also be a relevant consideration in determining the standard of care required. Several categories fall under civil law. If a patient suffers harm as a result of a nurse’s failure to perform nursing duties at the standard to be expected of the nurse in the circumstances, then the patient has a right to sue in negligence to recover compensation. For example, if a nurse’s negligence caused brain damage to a child, necessitating intensive care, and the negligence of a second nurse in the intensive care unit exacerbated the harm to the child, then the first nurse could still be held liable for the increased harm as it was the original tortfeasor’s act or omission which exposed the child to a subsequent risk of harm. Nurses need to work within the context of civil law, as it relates to: patient safety; negligent advice; patient consent; patient freedom of movement; and patients’ property. The negligent practitioner is normally referred to as the defendant in the case. It is within parliamentary law that significant differences can arise. Whether or not a breach of the duty of care has occurred requires consideration of the standard of care required in the circumstances. Precedents are either binding or authoritative. Some of the procedures performed by nursing staff pose risks to patients should the procedures be performed without due care and skill. When a person is negligent or careless in a way that causes harm to someone else, the victim of the negligence can sue. sources of law 7khuh duh edvlfdoo\ wkuhh vrxufhv ri odz lq wkh 8qlwhg 6wdwhv vwdwxwru\ odz dgplqlvwud-wlyh odz dqg frpprq odz 1. statutory law lv zulwwhq odz vhw grzq e\ d ohjlvodwxuh 7khvh odzv pd\ ruljlqdwh zlwk qdwlrqdo vwdwh ru orfdo pxqlflsdolwlhv 6wdwx-wru\ … An example of this is the statutory definition of brain death, which has enabled the removal of organs, Nurses practising in Australia need to be aware that, under the Australian system of Federation, the law can and often does differ from state to state or territory. Nursing includes professionals in clinical nursing, nursing management, healthcare quality assurance and healthcare risk management. Finally, the plaintiff must prove causation—that is, that the breach of duty caused the alleged harm. Some risks are unknown and are therefore unknowable until such time as research and experience reveal them (e.g. The standard of care required can vary according to the condition of the patient and the patient’s capacity for self-care. Knowledge of the law of tort is important for all because most of the civil cases that resulted from nursing activities belong to the category of tort. In some cases the law will hold that a particular risk, which may normally be considered ‘unreasonable’, may be taken to avoid a greater risk of harm. Thus a nurse who causes the death of a patient intentionally or recklessly could be charged with murder or manslaughter many years after the event should evidence to support such a charge arise. Public laws protect the public while civil law deals with conflicts between a nurse and a patient. Many legal issues focus on nurses’ professional negligence, employment, discrimination and licensing. However, judges generally adhere to the principles developed in previous common law cases heard locally, or from other respected common law courts. Common examples of civil cases include child custody, child support, contract violations, personal injury, property damage and divorce. Many legal issues focus on nurses’ professional negligence, employment, discrimination and licensing. Our legislation. Saunders Book Company, 032007. An introduction to legal aspects of nursing practice. Examples from the workplace will be used to guide a discussion. The plaintiff, Arlene Townsend, had repeatedly fallen while living at the nursing home and was not properly supervised. If you worry your loved one is a victim of nursing home abuse or neglect, get help from a nursing home abuse lawyer. Frequently, the interaction between ethics and law is complex; however, professional nursing ethics mainly followed within the confines of the law are highly likely to be legally defensible. Even when an act or omission can be shown to have been negligent, a claim for damages will fail if the plaintiff cannot prove that the alleged harm was caused or materially contributed to by the defendant’s negligent conduct. All registered and licensed practical, or vocational, nurses must be currently licensed to practice nursing in their state of practice. For example: WB Saunders/Baillière Tindall, Sydney. For example, the law relating to assault, false imprisonment, negligence and negligent advice is found within cases in which relevant principles of law recognising the right of a person to individual autonomy and bodily integrity have been developed. Under common law, healthcare professionals have a duty of care towards their clients. Thus a higher standard of care will be required for a patient recovering from a general anaesthetic following surgery than for a patient who is fully conscious and has been returned to the ward. Courts issue rulings on challenges to board or agency rules, disciplinary actions, the constitutionality of statutes and in civil and criminal cases. But for the act or omission of the defendant, would the plaintiff have suffered the alleged harm? In 2013, a Polk County jury handed down a verdict of $1.1 billion dollars to the plaintiffs in a nursing home negligence suit. If someone damages another person's property, the victim may sue the perpetrator in civil court for the cost of the damage. Find out more below. Our order and rules. Example of statutory regulation is The Nursing and Midwifery Board of Australia (NMBA) that regulates nurses and midwives under health practitioner regulation National Law (2009). There are three main defences to an action in negligence. Thus the English common law forms the basis of the legal systems of, among others, Australia, New Zealand, Canada and the United States. Therefore, a child who suffers an injury as a result of alleged negligence is not affected by a limitation period until reaching majority. For example: What it means is that if the victim suffers greater harm because they have a particular disability, disorder or trait that renders them vulnerable to greater harm, then the tortfeasor must compensate for the full cost of the harm even though it is greater than that for other victims (. However, the law does not require that there be an identified person in existence at the time that a negligent act or omission occurs. Practicing without a current and valid license is illegal and it amounts to pra… This is called civil liability or civil negligence. 23. Nursing and the Law Ms Pat Staunton President Australian Nurses Federation (NSW) I I was asked to speak on this issue for two reasons I suspect. 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