COMMON LAW

Common law is the term used to describe the body of principles that arises from court decisions. More generally, it is known as case law and consists of the accumulation of judicial opinions prepared by judges at the trial and appellate levels from lawsuits initiated by parties (litigants) to a controversy. Common law traces its roots back to eleventh-century England. The underlying principle of the common law is stare decisis, which means the law will provide continuity by deciding cases consistent with the precedents set by earlier cases. This means only that controversies between two litigants that are the same factually and that raise the same legal issues will be decided the same way. This continuity is dependent on there being no changes in statutory law and no changes in public policy. Because both evolve as society changes, common law also evolves. The reliance on precedent in judicial decrees generally guarantees controlled change in the common law on which the public can rely.

Over the years judges have recognized the existence of a number of rights that are necessary for the orderly operation of society. Many of these have been embodied in the law of torts. For nursing, the area of common law that is most relevant is tort law, which is more commonly known as negligence (malpractice), assault and battery (unauthorized and unprivileged contact between two people), and the judicially recognized right to privacy.

Torts are civil (as opposed to criminal) “wrongs” committed by one person against another. Typically these wrongs can be “righted” through an action brought before a judge or jury. For example, hundreds of years ago courts established the individual’s right to be free of the negligent acts of another that cause harm, and it established the right to the remedy to this harm (i.e., monetary compensation to the injured party). Whereas civil law speaks to the relations between people, criminal law speaks to actions prohibited by society as a whole. Legal actions under civil law are between private parties; actions under criminal law are brought by the government (society) against individuals (or corporations).

STATUTORY LAW

Statutes are the acts of Congress and state legislatures that regulate the lives of the people. Unlike common law, statutory law does not change through time and evolution but rather by the deliberate acts of the legislatures to create, amend, or repeal statutes. Statutory law deals with such diverse topics as taxation, interstate commerce, and the regulation of professions, which is pertinent to nursing.

Trauma nursing, like all nursing, is affected by state laws that define the minimum standards required of a licensed nurse. These laws, generally called Nurse Practice Acts, exist to protect citizens from untrained or incompetent persons who offer to practice nursing.^4,5 They regulate nursing by defining the types of acts that licensed practical nurses and registered nurses can perform and by providing a mechanism to exclude from the profession those who are incompetent.

Trauma nursing is also affected by statutes dealing with brain death and by laws requiring that nurses report incidents of child or spousal abuse, abuse of the elderly, and certain criminal acts. Other legislative acts prescribe the manner in which criminal evidence must be handled for it to be admissible in a criminal action. These statutes have been the subject of many judicial proceedings over the past 40 years, so the law relative to the handling of criminal evidence is grounded in common law and statutory law.

ADMINISTRATIVE LAW

Administrative law is created when a regulatory agency is empowered by the legislature through a statute to make rules to control the actions of a class of individuals. These rules and regulations are the clarification of statutes passed by the legislature or Congress and must be consistent with the intent of the legislature.

Administrative law is a relatively modern form of law unique to the United States. Rules and regulations can be and are changed by the administrative agencies that administer them as the circumstances underlying them change. The administrative procedure statutes of the state and federal governments control the process for developing and changing regulations. This means that regulatory agencies are empowered to make rules and to change them only after the class of individuals affected has had the opportunity to comment on the changes. The purpose of these requirements is to ensure that regulations reflect the reality of, for example, nursing practice and that they not be unreasonable. Furthermore, the rules cannot be made in an arbitrary or capricious manner. Regulations change not exclusively as a result of societal evolution and not solely by the act of a legislative body. Rather, they are the result of statutory changes and changes in the work of the people regulated.

Trauma nursing is affected by administrative law through the state boards of nursing. They exist as a result of the legislature empowering the boards to regulate nursing through Nurse Practice Acts.⁴ These boards establish and enforce the rules that define requirements for licensure, but they also are empowered to further define allowable nursing acts and the education requirements for nurses. State boards of nursing decide cases involving violations of the professional standards of care embodied in these regulations or set forth in the enabling legislation. The board of nursing can discipline nurses if they violate the standards established for practice. While fundamentally the same, these standards do vary slightly from state to state, and the reader is encouraged to investigate the particulars of the state in which he or she is licensed. Some of the bases for disciplinary action common to all states include fraud in obtaining or in using a nursing license, conviction of a felony or other crime involving moral turpitude (acts involving abusive behavior, dishonesty, or immodesty), knowingly failing to file a required record or report, knowingly filing a false record or report, and drug or alcohol addiction or other physical or mental condition rendering the individual nurse incapable of acting as a nurse. The grounds for disciplinary action also may include refusing to provide, withholding of, denial of, or discrimination in providing nursing services to patients who have tested positive for the human immunodeficiency virus.⁴ A nurse’s license is likely to be suspended or revoked for a serious violation of the standards of practice or for repeated violations.

Another area of law that may significantly affect trauma nurses is local ordinances. In many regions the trauma system is controlled locally. That is, a county may be empowered to designate and adopt rules regulating trauma centers. These local rules (ordinances) frequently contain reporting and educational requirements for nurses.

Law affects the lives of all professionals. The types of laws and the manner in which they come into being have been briefly explained. What remains is to relate these concepts to the specific aspects of trauma nursing practice.

CONSENT TO TREATMENT

The nature of trauma practice requires that nurses touch patients and administer therapeutic care. The law, on the other hand, has as a basic principle the right of the individual to determine who shall touch him or her and in what manner and that the competent individual can refuse to be treated. Violation of this right of the individual is a violation of common law.⁶

Every human of adult years and sound mind has a right to determine what shall be done with his or her own body. A professional who provides treatment without the patient’s consent commits an assault for which he or she is liable in damages.⁷ About this right the law is quite rigid, and failure to obtain consent for a treatment may subject the professional to a lawsuit.

Three elements must be present if consent is to be valid: (1) capacity, (2) information, and (3) voluntariness. Capacity refers to the right of the patient to give consent. Minors and incompetent adults, legally, lack the capacity to give consent. Information refers to the sufficiency of the patient’s understanding of what is being consented to. If the descriptions of treatments given on consent forms or made verbally fail to state clearly what is to be done in a way the patient can understand, then consent is not valid. Voluntariness refers to lack of coercion. Consent obtained by trick or by threat is not valid.

The requirement to obtain consent applies to all treatments done to a patient. Specific consent for invasive procedures must be obtained by the person performing the procedure, generally the physician. Nurses frequently are involved in witnessing consent for such procedures. Although the nurse is not directly responsible for the performance of these procedures and the particulars of such consent, it is prudent to be aware of them. For nursing practice separate from physician practice, the reasonable act for the nurse is to inform the patient of any touching to be performed and the reason for the touching and to obtain the patient’s consent.

Violations of common law for obtaining valid consent require that the patient shows that the treatment caused some harm and that the treatment would not have been permitted if the possibility of this harm were known. This is true even if there is no lack of care in administering the treatment. It is therefore critical to obtain consent to stay within the law. Note that harm does not necessarily equate to injury, and nonconsensual contact, even if beneficial to the health of the patient, is not permitted under the law.

INFORMED CONSENT

Over the years, the concept of consent has been refined so that it is now referred to generally as informed consent. The adjective informed is not superfluous in this concept. It exists because the courts mandate that consent can be given only if the patient is knowledgeable about the effects of the treatment and has made an affirmative decision to receive the treatment.

Hospitals and trauma centers all require patients to sign a consent to treatment form upon admission. Nurses should look on this form as constituting consent by the patient to be taken care of in the facility and not as consent to all procedures, treatments, and therapies. Each time the patient is to be touched, the action involved should be explained, and either verbal or written agreement or some action demonstrating willingness to participate in the treatment should be received from the patient. Consent forms that specifically list the procedures to be performed and the risks or consequences are gaining increasing favor under the law. Note, however, that a signed consent form obtained from a patient who does not understand its contents is not valid consent.

The general rule of consent is that the patient should be told everything that is to be done each time something is to be done to or for the patient and that the patient should agree to the treatment or procedure. The patient should be informed of the nature of the treatment, its benefits and risks, and any reasonable alternatives. Furthermore, the explanation should be couched in terms understandable to patients because courts tend to favor what the “reasonable patient would expect to know to make an informed decision regarding consent for treatment” as opposed to the prior practice of relying on what a “reasonable practitioner” would tell the patient.

Of course, not all patients are capable of giving consent. The law has permitted exceptions to the requirement of informed consent.

EMERGENCY DOCTRINE

The first such exception is one that has great application in trauma care. When a patient is unconscious or otherwise incapable of giving consent, treatment may proceed under the emergency doctrine, which implies consent.⁸ This implication frees the nurse from liability for violation of common law. Implied consent means that the patient would have consented to the treatment required to maintain his or her health had that patient been able because the alternative would have been death or serious disability.⁸ The law assumes that the patient would act reasonably, and the maintenance of bodily integrity is a reasonable act. Note, however, that the emergency doctrine’s implication of consent terminates as soon as the patient’s disabling condition (e.g., unconsciousness) abates.

COMPETENCY TO GIVE CONSENT

A second exception to the informed consent rule relates to competency. Consent is legally valid only if it is given by someone who is recognized as being of “adult years and sound mind.”⁷ This means that someone not of legal age or who is judged to be in some way incompetent cannot give the consent that would constitute a valid defense to a lawsuit for battery. A parent or legal guardian must give consent for the treatment of a minor. Even in an emergency, an attempt to contact a parent or guardian must be made and some notation that the parent or guardian was unavailable should be made in the chart. A listing of the steps taken to find the parent will be critical in the event a lawsuit is filed.

There are further considerations to this exception to the informed consent rule. A minor is generally considered to be anyone under the age of 18 years. In some states an individual under the age of 18 years who is married, has a child, or is otherwise emancipated from his or her parents is considered an adult for purposes of giving consent to medical treatment.⁹ Additionally, some states permit a minor to consent to emergency medical treatment without a parent’s consent.⁹ Most hospitals have written policies and procedures that specifically deal with many of these circumstances. A second consideration, and one that bears some watching, is consent by the state as legal guardian. The majority of the states protect parents from criminal liability for denying life-saving medical care to their children on religious grounds. Although uncommon, the state may consent to the treatment of a minor after the parents have refused consent. The reason some states consent to the life-saving treatment when the parents will not is to protect the child’s rights. This will most likely occur when the parents’ religious beliefs preclude the use of blood transfusions or other medical interventions. This type of consent is not common and is given only under extreme circumstances because the states are typically loath to interfere in the parent-child relationship. The consent, when given by the state, is effective in the same way as described previously.

Some patients, although not minors, may not be competent to give consent. The concept of being of sound mind is the second half of the competency equation. Any person who is not competent because of some mental disability (e.g., lack of mental capacity or senility) or physical disability or disease that renders the individual incapable of making reasoned judgments should be under the control of a guardian.⁹ Another common cause of incompetency is the injury that caused the patient to be brought to the hospital or the sequelae from trauma. Examples are shock, severe pain, severe emotional distress, head injuries, and the presence of mind-altering drugs (legal and illegal).¹⁰ In cases where there is no guardian, one may have to be appointed by the court. Consent for this type of patient is obtained in the same manner as for minors, with the guardian substituting for the parent. Consent is implied by law for such patients when emergency medical treatment is required.⁹ Where there is no guardian and no durable power of attorney relative to medical care (a document by which a person grants a designated individual the authority to make health care decisions in the event of the person’s incapacity to make decisions), state law may provide that the consent of a spouse, adult child, adult sibling, adult grandchild, or a grandparent be substituted.^9,11

Issues of consent must be considered before each treatment or procedure is commenced, whether in the resuscitation, operative, critical care, intermediate, or rehabilitative phase. It is important that the nurse be knowledgeable about consents obtained because the patient’s nurse is the consistent coordinator of care.