22 unit 1 | Professional Considerations
The courtroom seemed cold and sterile. Scanning her
surroundings with nervous eyes, Germaine decided
she knew how Alice must have felt when the Queen
of Hearts screamed for her head. The image of the
White Rabbit running through the woods, looking
at his watch, yelling, “I’m late! I’m late!” flashed
before her eyes. For a few moments, she indulged
herself in thoughts of being able to turn back the
clock and rewrite the past. The future certainly
looked grim at that moment. The calling of her
name broke her reverie. Mr. Ellison, the attorney
for the plaintiff, wanted her undivided attention
regarding the fateful day when she committed a
fatal medication error. That day, the client died
following a cardiac arrest because Germaine failed
to check the appropriate dosage and route for the
medication. She had administered 40 mEq of potas-
sium chloride by intravenous push. Her 15 years of
nursing experience meant little to the court. Because
she had not followed hospital protocol and had vio-
lated an important standard of practice, Germaine
stood alone. She was being sued for malpractice.As client advocates, nurses have a responsibility to
deliver safe care to their clients. This expectation
requires that nurses have professional knowledge at
their expected level of practice and be proficient in
technological skills. A working knowledge of the
legal system, client rights, and behaviors that may
result in lawsuits helps nurses to act as client advo-
cates. As long as nurses practice according to estab-
lished standards of care, they will be able to avoid
the kind of day in court that Germaine experienced.
General Principles
Meaning of Law
The word lawhas several meanings. For the pur-
poses of this chapter,lawmeans those rules that
prescribe and control social conduct in a formal and
legally binding manner (Bernzweig, 1996). Laws
are created in one of three ways:
- Statutory lawsare created by various legislative
bodies, such as state legislatures or Congress.
Some examples of federal statutes include the
Patient Self-Determination Act of 1990 and
the Americans With Disabilities Act. State
statutes include the state nurse practice acts,
the state boards of nursing, and the Good
Samaritan Act. Laws that govern nursing
practice are statutory laws.
2. Common lawdevelops within the court system
as judicial decisions are made in various cases
and precedents for future cases are set. In this
way, a decision made in one case can affect
decisions made in later cases of a similar nature.
This feature of American law is based on the
English tradition of case law: “judge-made law”
(Black, 2004). Many times a judge in a subse-
quent case will follow the reasoning of a judge
in a previous case. Therefore, one case sets a
precedent for another.
3. Administrative lawis established through the
authority given to government agencies, such
as state boards of nursing, by a legislative body.
These governing boards have the duty to meet
the intent of laws or statutes.
Sources of Law
The Constitution
The U.S. Constitution is the foundation of
American law. The Bill of Rights, comprising the
first 10 amendments to the Constitution, is the
basis for protection of individual rights. These laws
define and limit the power of the government and
protect citizens’ freedom of speech, assembly, reli-
gion, and the press and freedom from unwarranted
intrusion by government into personal choices.
State constitutions can expand individual rights but
cannot deprive people of rights guaranteed by the
U.S. Constitution.
Constitutional law evolves. As individuals or
groups bring suit to challenge interpretations of the
Constitution, decisions are made concerning appli-
cation of the law to that particular event. An exam-
ple is the protection of freedom of speech. Are
obscenities protected? Can one person threaten or
criticize another person? The freedom to criticize is
protected; threats are not protected. The definition
of what constitutes obscenity is often debated and
has not been fully clarified by the courts.Statutes
Localities, state legislatures, and the U.S. Congress
create statutes. These can be found in multivolume
sets of books and databases.
At the federal level, conference committees
comprising representatives of both houses of
Congress negotiate the resolution of any differ-
ences on wording of a bill before it becomes law. If
the bill does not meet with the approval of the
executive branch of government, the president can