Month: August 2012

Who Can Give Informed Consent and What is the Nurse’s Role in Obtaining Consent for Treatment?
August 31, 2012

Who Can Give Informed Consent and What is the Nurse’s Role in Obtaining Consent for Treatment?

Avoiding Liability Bulletin – May 15, 2015

Nurses are often confused as to what their role is when obtaining consent for treatment.  In most employment settings, the employer has adopted a policy concerning the nurse’s role and when such a policy exists, it should be followed.  If questions arise about the policy, seeking information out from resources within the facility, including the nurse manager or the risk manager, is a good idea.

As you know from previous Bulletins, informed consent for treatment is essential in order to avoid allegations of assault and battery and other possible legal accusations.  What may not be as clear is who can give consent for treatment.

An adult 18 years of age and older can give consent for his or her own treatment, unless they have a guardian who is designated to provide consent for the individual.  Since there is a presumption of competency of all adults, including an elderly patient, when there is a question that the individual patient cannot give his or her consent for treatment, a judicial determination and/or a medical evaluation by a neurologist, psychiatrist or other specific health care providers must take place and be documented.  1  In short, incompetency cannot be presumed.

If a patient designates another to provide informed consent for him or her during a specific procedure, the employer’s policy should provide such a form and the patient can fill it out.  Or, a patient may come into your facility with a durable power of attorney for health care appointing someone, such as a daughter or husband, to provide consent.  Again, the policy should be consulted and followed.

A minor, someone who is 17 years and younger, is generally considered not competent to make informed consent decisions.  As a result, it is the minor’s parents who provide the informed consent for treatment.  There are exceptions to this rule, however, and they include if the minor is married, if the minor is pregnant, or if the minor is considered “emancipated”. 2  Each state has its own laws concerning exceptions to the general rule, so your employer’s policy should include those exclusions.

In an emergency situation, if the patient, including a minor, is unable to provide his or her own consent, consent is presumed and treatment is provided absent directions to the contrary (e.g., a living will or durable power of attorney for health care or other such form).

Another general principle of informed consent is that it is the health care provider doing the procedure or treatment that obtains the informed consent of the patient, including a nurse midwife or nurse anesthetist, as examples. Obtaining informed consent is a process that requires a detailed exchange of information concerning the treatment or procedure so that the patient can make a knowledgeable choice about the proposed plan.

So, with your employer’s policy as a guide, what is your role in obtaining the informed consent of the patient? Generally, you are responsible for:

  • Ensuring that the consent form is signed by the appropriate person—e.g., the patient, the guardian, the agent under a durable attorney for health care. Your only role is as a witness to the person putting his or her signature on the form and dating the form.  The forms provide a place for your signature as the witness and the date as well;
  • Document that the signature was obtained, including the date and time in the nursing notes;
  • If the patient seems confused about the procedure or has additional questions, your role is one of an advocate for the patient.  Instruct the patient not to sign the form until the requested information  is obtained, notify the appropriate health care provider (e.g., physician, surgeon, nurse practitioner) and document same;
  • You can explain the nursing care that will take place after the procedure or treatment, what medications you administered or will administer, and any other aspect of nursing care; and
  • Provide comfort and support to the patient and his family or guardian while waiting for the procedure or treatment to begin.

FOOTNOTES

        See, as examples, Elena Nichols and Peter Buckley  (2007), “Informed

Consent And Competency: Doctor’s Dilemma On The Consultation Liaison Service”, 4(3) Psychiatry, 53-55.  Available at http://ncbi.nlm.nih.gov/pmc/articles/PMC29223591.   Accessed 5/15/13; Deborah Bowman, John Spicer and Rehana Iqbal  (2012).  Informed

Consent: A Primer For Clinical Practice.  NY: Cambridge University Press.

  1. See, Ann Maradiegue (2003), “Minor’s Rights Versus Parental Rights: A

Review Of Legal Issues In Adolescent Health Care”, 48 (3) Journal

Of Midwifery And Womens’ Health.  Available at http://medscape.com/viewarticle/456472 .  Accessed 5/14/13.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

Download PDF
CPH Insurance

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

Avatar photo

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

How Does Contract Law Affect Nurses?

How Does Contract Law Affect Nurses?

Avoiding Liability Bulletin – April 15, 2013

Contract law involves promises, either current or in the future, that are enforceable or otherwise recognizable at law. 1 Contract law does not involve the law of torts but rather is created by agreement of the parties to a written or oral agreement. 2 There are many types of contracts: a contract for the sale of property for a specific price, a performance contract, a marriage contract, and a service contract, as examples.

In order for a contract to be valid, certain elements must exist: (1) capacity to enter into the contract; (2) an offer and an acceptance of the offer; (3) legal consideration (e.g., money or conduct ); and (4) no defense that would render the contract void (e.g., minority, bad faith). 3

Surprisingly, contract law is an important aspect of nursing practice.  If you have been hired under a contract of employment  or an employment agreement, for example, your position is governed by that contract.  The contract most probably includes provisions regarding your stated salary, your benefits, the length of the contract, how it can be terminated by either you or your employer, what your job requirements are, defines a breach of the contract and the consequences thereof, and how the contract can be altered or changed by either party.  

If not hired under an explicit contract of employment, you are an employee-at-will and therefore have no definite length of time for your employment at the facility where you were hired.  Likewise, it is fairly well settled that the employee handbook that governs your employment is not a contract of employment.

Most employee handbooks contain a disclaimer to avoid the interpretation of the handbook as a contract of employment.  The disclaimer states clearly that the handbook is not a contract of employment and the employer retains the right to make changes to the handbook as it sees fit.

If you are a member of a union, your bargaining agreement is a contract that governs your employment with your employer.  As you know, such agreements contain provisions for hiring and firing of union members, seniority rights, and rights and responsibilities of both the employer and employee under the National Labor Relations Act. 4

Contract law also applies to health care generally.  For example, if you are an advanced practice nurse and promise or warrant to a patient that you will cure the health problem the patient initially saw you for, and that does not happen, the patient can file a suit alleging an express contract was formed but he was not cured.  The damages the patient would seek in this suit are the monies he expended during the treatment.

Another application of contract law to the health care setting is when a patient requests that you, as his or her nurse, witness a legal document such as a testamentary will or a living will while the patient is hospitalized or when you see him in his or her home.  Although as a nurse you may witness a patient’s signature on a consent form, for example, witnessing the patient’s signature on a personal legal document not related to the patient’s nursing care is quite different and may involve the nurse in a lawsuit concerning personal issues of the patient and the document (e.g., What were your observations of the patient when witnessing his signature?  Who was present when you witnessed the patient’s signature?).

So, what do you need to keep in mind about contract law and your nursing practice?  Some tips include:

  • Contract law is different from tort law;
  • If you have a contract of employment, read it over carefully and have it reviewed by an attorney ; it is a legally binding document, both on you and your employer;
  • Do not rely on your employee handbook as a contract of employment.  Read its disclaimer carefully. If a problem arises with your job, seek legal advice and take the employee handbook with you for the attorney to review;
  • If you are a member of a union, always seek advice from your union representative if employment problems arise;
  • Never promise or warrant any outcome to a patient;
  • Check your facility or agency policy regarding witnessing a patient’s personal legal documents; and
  • When a prospective employer promises you something when applying for a job (e.g., “We want you to be our employee for at least 4 years.”), ask for the promise in writing.

FOOTNOTES

  1. Brian A. Garner, Editor In Chief (1990).  Black’s Law Dictionary.  8th Edition.

St. Paul, MN: Thomson West, 341.

  1. Id.
  2. Daniel Bussel and Arthur Rosett (2011).  Contract Law And Its Application.  8th Edition.  St. Paul, MN: Thomson Reuters, 28.
  3. 29 U.S.C. Sections 151-169 (1935).

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

Download PDF
CPH Insurance

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

Avatar photo

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Have You read it Recently?

Have You read it Recently?

Avoiding Liability Bulletin – April 1, 2013

The American Nurses Association Code of Ethics for Nurses With Interpretive Statements  1 has been since 2001. It is an important document and its purposes are to: (1) provide a succinct statement of the ethical obligations and duties of every individual who enters the nursing profession; (2) establish the profession’s nonnegotiable ethical standard; and (3) express nursing’s own understanding of its commitment to society. 2 The document provides a framework for use by the nurse to evaluate and decide about ethical issues when they arise.

The Code  itself has nine (9) provisions that serve as ever-present guideposts the nurse must adhere to.  The provisions include directions that the nurse’s primary commitment is to the patient (Provision 2), that the nurse’s role is to advocate for and strive to protect the health, safety and rights of the patient (Provision 3), and that the nurse collaborates with other health care professionals and the public in efforts to meet health needs locally, nationally and internationally (Provision 8).

You may ask why a bulletin focusing on professional liability would focus on the Code and its interpretive statements.  Aren’t ethics and the law separate topics, separate issues for the practicing nurse?  Don’t they sometimes collide with one another when a patient care issue arises?

The answer to these questions is not always clear cut.  Many times principles of ethics and those of the law do collide.  When that happens, the nurse needs guidance from both the law and of ethics in order to resolve a particular issue.  With the Code’s  interpretive statements, the nurse is helped to analyze and hopefully determine a resolution that is ethically correct.  The legal analysis must also occur, with the help of the facility’s risk manager, legal counsel, or a private attorney who the nurse consults.

However, the principles of law and ethics do not always collide.  Take, for example, Principle 4 in the Code.  It deals with a nurse’s accountability and responsibility for his or her nursing practice, something that is clearly true in the law as well.  Principle 4 also outlines the role of the nurse in delegating patient care tasks in order to provide optimum care for the patient.

When you read the interpretive statements under Principle 4, you may be surprised that many of the points discussed in the previous bulletin concerning delegation of patient care are exactly the points discussed in the interpretive statement.  This principle is a clear example of where the law and ethics meet.  When you delegate patient care consistent with legal mandates, you are also doing so in conformity with ethical nursing practice.

Remember, too, that specialty nursing professional associations have also developed codes of ethics for their members.  They include The National Association of School Nurses (NASN) and The American Association of periOperative Registered Nurses (AORN).

If you haven’t reviewed the Code and any other code of ethics that pertains to your practice, you need to do so and do so regularly.  In the case of the American Nurses Association’s Code, its interpretive statements may change when current issues in nursing practice develop. 3

Also, it is important to keep in mind that in any legal proceeding, whether in a case alleging professional negligence or in a professional disciplinary proceeding, the Code and other applicable codes will be utilized by the jury or board of nursing in deciding if a code’s mandates have been adhered to.

In short, as a nurse, you must ensure your practice is legal and ethical.  When in doubt, seek out the resources you need in order to make a decision that will be as legally and as ethically correct as possible.

FOOTNOTES

  1. American Nurses Association (2001).  Code of Ethics for Nurses With Interpretive Statements.  Silver Spring, MD: author.
  2. Id., at 9.
  3. Id., at 10.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

Download PDF
CPH Insurance

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

Avatar photo

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

What is Delegation and to Whom Should I Delegate Aspects of Nursing Care?

What is Delegation and to Whom Should I Delegate Aspects of Nursing Care?

Avoiding Liability Bulletin – March 15, 2013

One author has stated that the delegation of patient care, the assignment of patient care to another member of the health care team, and the supervision of the care delegated are “core competencies for the 21st Century (registered) nurse”.1  Although delegation by the registered profession nurse has been around for a long, long time, it is becoming an increasingly important tool in the delivery of patient care due to limited resources (including nursing staff) and the number of patients or individuals who need nursing care in all health care delivery settings.  

Delegation of patient care by the registered nurse is also essential because it is necessary to keep professional nursing practice as just that.  If the registered nurse is doing inappropriate work or work that others could do (e.g., an L.P.N. or U.A.P.), the very essence of registered professional nursing is eroded.2

Delegation has been defined by various organizations and professional associations.  For example, the National Council of State Boards of Nursing defines it as a “complex, skillful process that requires sophisticated clinical judgment and final accountability for patient care”.3  The Council also defined delegation as giving someone a task from the delegator’s practice based on job descriptions and policies. 4  

Delegation is also often defined in state nurse practice acts; 44 state nurse practice acts currently do so.  When it is defined by the state board of nursing, the definition, and any additional guidance nt the act or rules, are constant parameters for the registered nurse as to how delegation is to take place.

Although delegation of patient care is important, it is imperative that the registered nurse remember that the nursing process itself, including the assessment of a patient’s condition and the evaluation of the patient’s care, cannot be delegated to an L.P.N. or a U.A.P.5  These individual team members certainly assist the registered nurse in the assessment and evaluation process, but they cannot do it alone or be responsible for the nursing process.

There is a wealth of information available on delegation by the registered professional nurse and I encourage you to search for resources in addition to those listed in the Footnotes.  

So what should you keep in mind about delegation of patient care to other staff on your unit, in your school setting, in your out-patient clinic?  Here are some guidelines:

  • Know your nurse practice act and rules inside and out, paying special attention to sections governing delegation and scope of practice of those who are licensed under the act;
  • Read and incorporate information on delegation and the registered nurse’s role in it;
  • Be open to using delegation in your nursing practice—You can’t do everything for the patient/client, so you need to use your skills and expertise as a registered nurse for those who need that care and allow competent, skilled other health team members, including other registered nurses, to participate in the provision of quality, safe patient care;
  • Utilize the 5 rights of delegation:  right task, right circumstances, right person, right direction/communication, and right supervision and evaluation; 6
  • Utilize resources in your workplace to support the delegation process: policies, procedures, organizational support people (CNO, risk management);
  • Remember that the purpose of delegation is to provide safe and efficient care to patients/clients;
  • The ANA Code of Ethics for Nurses and other professional association codes also provide baselines for delegation; and
  • Establish good interpersonal relationships with fellow staff and open lines of communication with them as well to help with the delegation process.

FOOTNOTES

  1. American Nurses Association and the National Council of State Boards of

Nursing (2006).  Joint Statement on Delegation.  Available at: http://www.ncsbn.org/Jointstatement.pdf .  Accessed 2/2/13.

  1. Murphy, E., S. Ruch and J. Pepicello and M. Murphy (1997), “Managing

An Increasingly Complex System”, 28(10) Nursing Management, 33-38.

  1. Weydt, Alice (2010), “Developing Delegation Skills”, 15(2) The Online

Journal of Issues in Nursing.  Manuscript 1.  Available at: htpp://www.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OIJN.  Accessed 2/1/13.

  1. Id. at 2.
  2. ANA and NCSBN, Joint Statement on Delegation , supra note 1, Appendix A.
  3. National Council of State Boards of Nursing (1997).  The Five Rights of Delegation.  https://www.ncsbn.org/fiverights/pdf .  Accessed 2/2/13.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

Download PDF
CPH Insurance

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

Avatar photo

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

What Does it Mean to “Testify Under Oath?”

What Does it Mean to “Testify Under Oath?”

Avoiding Liability Bulletin – February 15, 2013

If you have ever given a deposition, either as a witness or as a named party, in any type of legal proceeding, sworn to an affidavit, or testified at a trial or hearing, before you signed the document or before you spoke, you were sworn to “tell the truth, the whole truth, and nothing but the truth so help you God”, or something to that effect.  Although you might think such an oath is more “pro forma” than anything else, it is far from that.

The oath is a solemn declaration and, if not followed, can result in legal liability for the person testifying. (1)  At a minimum, the legal liability that would occur is perjury, also known as false swearing. (2) In order for testimony to be considered perjury, the person testifying must intentionally make a statement (to another) about a material matter at issue that is to be taken as true. Depending on whether the legal proceedings are in a federal or state court (laws vary), the person testifying may be fined, imprisoned or both.

Despite this liability, legal authors have written that few courts charge and sentence an individual for perjured testimony.  The more common charge courts utilize is that of contempt of court. (3)  Contempt of court occurs when conduct occurs that defies the authority or dignity of the courts and interferes with the administration of justice. (4)  Contempt can be direct  (when it occurs in front of a judge), indirect ( an out-of-court failure to follow a court order), civil (failure to follow an order that was issued for another person’s benefit) or criminal (an act that obstructs justice or attacks the integrity of the court). (5)  Contempt is punishable by fine and/or imprisonment as well.

An allegation against you of intentionally making a statement that is not true can be defended.  For example, your testimony may have been mistaken, rather than knowingly false.  Or, you may have answered a question that you misunderstood.  Or, when you answered a question during a deposition or at a hearing, you may not have been “technically” under oath.  Last, the false statement you made was not concerning a significant issue but rather concerned a minor issue in the case at hand. (6)

How can you avoid ever having to worry about whether you may be charged with perjury or contempt of court? Some guidelines to keep in mind are:

  • Always answer truthfully any question or written document when you are under oath;
  • If you don’t understand a question asked of you, ask that the question be repeated, or ask that it be stated in a different way;
  • Don’t be tempted to “help” a colleague or a family member out by changing your true testimony to something that is untrue;
  • Always conduct yourself with respect for the court and the judicial system when in court or during a deposition;
  • Do not violate a court order issued against you;
  • If you do not know the answer to a question being asked of you, do not guess at an answer; simply say “I don’t know”;
  • Never assault or batter any person in the court room or attending a deposition at any time; and
  • When ordered by a judge to answer a question, carefully consider a refusal to answer the question during court proceedings or in a deposition.

Your attorney will go over these guidelines with you prior to a deposition or a judicial proceeding and will be present during your testimony to assist you in complying with these, and other, protections against possible perjury or contempt of court.

Please note: It is your duty as an insured to notify your professional liability insurance of any subpoenas, depositions or incidents that may result in a claim / suit against you. As a CPH & Associates policy holder, you may do so by logging into your CPH Customer Portal and selecting “Report a claim or incident” or “Report a subpoena or deposition” to fill out the appropriate form to notify CPH & Associates.

FOOTNOTES

  1. Bryan A. Garner, Editor In Chief (1999).  Black’s Law Dictionary.  8th Edition.

  St. Paul, MN: Thomson West, 1101.

  1. Id. at 1175.
  2. Robert Dickerson and Aurora Marshall (2008), “Perjury In Our Family

   Courts: Lawyers Beware!”, Findlaw .  Available at https://corporate.findlaw.com/litigation-disputes/perjury-in-our-family-courts-family-lawyers-beware.html.  Accessed February 14, 2013.

  1. Black’s Law Dictionary, supra note 1, at 336-337.
  2. Id.
  3. Honorable John Shonkwiler (2003).  Principles of Contempt.  Available at: http://ija.org/bb/contempt.htm.  Accessed February 14, 2013.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

Download PDF
CPH Insurance

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

Avatar photo

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

Which is it: Assault or Battery?

Which is it: Assault or Battery?

Avoiding Liability Bulletin – January 15, 2015

The words “assault” and “battery” are often used and often interchanged.  However, in the eyes of the law, the two are very different.   And, these two torts can, and do, occur in health care delivery.

In one of the early Bulletins, I discussed the torts of negligence and professional negligence.  These torts, if you recall, do not rest on the intention of the nurse to harm a patient but rather occurs due to a breach of the standard of care in a particular  situation.  In contrast, the intentional torts of assault and battery require intent; that is, they require purposeful conduct that interferes with another’s—e.g., the patient’s—interest and with a specific outcome in mind. (1)

Assault involves an individual’s interest in not being placed in fear of harmful or offensive contact. (2)  There is no requirement of actual contact with the person.  Rather, the harm or offense felt by the individual is fear, anxiety or fright, as examples, in addition to any physical injury that might occur. (3)

For an assault to be legally sufficient, the person who is fearful or anxious about a contact must be aware of the possibility of the harmful or offensive contact.  As an example, a patient who is unconscious could not successfully allege an assault had taken place by a nurse because the patient was unaware of the potential harmful contact.

Words alone are not legally sufficient to satisfy the requirements of an assault. If words are accompanied by a show of force that would give a person reason to fear or expect immediate bodily harm, then an assault would take place. (4)  For example, if a nurse in the ED department forcefully yells at an unruly family member, walks towards the family member quickly grasping a key, and shouts that if he does not calm down, he will be locked in a room by himself, an assault has arguably occurred.

In a health care setting, most assaults alleged are not criminal in nature.  However, such assaults do take place in society at large, such as assault with a deadly weapon, aggravated assault, and assault with intent to commit rape.

An assault can occur without any other intentional tort.  Nevertheless, it often is alleged with the tort of battery.

A battery is an intentional and wrongful physical contact with another person without that person’s consent that includes some injury or offensive touching. (5)  The interest that is protected in a battery is the freedom from such a touching or physical touching.  A battery can occur when the individual is actually touched or when any extension of his body is  touched without permission or there is a wrongful contact  (e.g., clothing).

In contrast to an assault, the individual does not need to be aware of the touching or contact.  So, as an example, if a patient is operated on without his or her consent, a battery has occurred.  Even though there is no injury to the patient as a result of the surgery (e.g., the ovaries of the patient were removed during a procedure for a  D & C only), a battery has still taken place due to the invasion of the patient’s right to provide consent and in the interest of the patient’s right to be free from anxiety and humiliation that the battery took place.  If there is injury to the patient, however, the physician would also be liable to the patient for that injury.

A battery can also be a violation of the criminal law, including aggravated battery.

Assault and battery allegations are fairly easy to avoid if you keep certain things in mind when working with patients and their families:

  • Obtain consent from a patient before initiating any treatment.  This may be evidenced by a consent form, when needed, or simply by asking the patient if you can take his blood pressure, change his bandage, or administer his medications;
  • If a patient refuses treatment and there is no threat to his life or well-being, do not force treatment, notify those who need to be notified, and document the refusal and the notifications;
  • Never threaten a patient or a family member in any way or act in a menacing manner toward the patient or family member;
  • Never hold a patient down to force treatment or administer a medication;
  • Never threaten to hit a patient or family member or actually do so; and
  • Never make sexual advances toward a patient or a family member.

There are defenses available to you if a patient alleges you have assaulted him or her or committed a battery on the patient.  These will be discussed in the next Bulletin.

FOOTNOTES

  1. Henry Campbell Black (1991).  Blacks’ Law Dictionary.  6th Edition. St. Paul, MN:

    West Publishing Company, 1036.

  1. Id., at 75.
  2. Id.
  3. Id.
  4. Id., at 104-105.

GENERAL REFERENCE

Brent, Nancy J. (2001), “Other Torts And Civil Rights”, in Nurses And The Law:  A Guide To Principles And Applications. Nancy J. Brent (with three contributors)   2nd Edition.  Philadelphia:  W.B. Saunders Company, 114-115, 127-128.

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

Download PDF
CPH Insurance

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

Avatar photo

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).