Question

Part 2

How are hospitals liable for acts of individual nurses, even if no lawsuit is brought against the individual nurse?

Review the American Disabilities Act of 1990 and the Civil Rights Act of 1991. How do nurses comply with these two acts in providing competent care to patients?

Why should nurses be concerned about learning contract law? How does such knowledge assist in their future employment?

Answer 1

Ans1=

Liability of Hospital for act if individual nurse

According to Salmond’ Law of Torts, negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is the breach of a legal duty of care. A breach of this duty gives the patient a right to initiate action against negligence .All medical professionals, doctors, nurses, and other health care providers are responsible for the health and safety of their patients and are expected to provide a high level of quality care. Unfortunately, medical professionals and health care providers can fail in this responsibility to their patients by not giving them proper care and attention, acting maliciously, or by providing substandard care, thus causing far-reaching complications like personal injuries, and even death. Over the years the function of the hospital has slowly changed from ‘a venue for treatment’ to ‘a provider of treatment.’ It is important to remember that virtually every country in the world operates its own unique legal system. Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of health care providers.

Ans2=According to the Bureau of Labor Statistics, there were nearly three million registered nursing jobs in the United States in 2016. The Department of Labor has predicted that the number of nurses in the workforce will grow by 15% in the next 10 years, which is much faster than average. If disabilities affect one-fifth of all Americans (Census Bureau, 2012), then close to 600,000 registered nurses could be in need of job accommodations. This number doesn't include nurse practitioners, midwives, anesthetists, and licenses practical and vocational nurses and nursing assistants.

With the high standards nurses are held to, along with the myriad skills they are required to master and the tasks they accomplish on a daily basis, those in the nursing profession with disabilities may need reasonable accommodations to effectively perform their jobs. They may need accommodations related to cognitive, mental health, motor, sensory, and other disabilities.

ADA regulates when employers can ask medical questions of job applicants, new hires, and employees. During the application stage, employers are not allowed to ask medical questions and applicants are not required to disclose their disabilities unless they need an accommodation. Employers are required to provide accommodations for job applicants with disabilities to participate in the application process, but only if they know about the disability and need for accommodation (EEOC, 1992).

Once an employer makes a job offer, but before the new hire actually starts working, employers can ask any medical questions they want as long as they ask all new employees in the same job category the same questions. At this stage, the new hire must disclose a disability if asked (EEOC, 1992).  

Once working, employees only need to disclose their disabilities if they want to request an accommodation

Disability-related inquiries and examinations of employees must be “job-related and consistent with business necessity.” According to the Equal Employment Opportunity Commission (EEOC, 2005), the federal agency charged with enforcing the ADA, a medical inquiry or examination is job-related and consistent with business necessity when:

• an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition; or
• an employer has a reasonable belief, based on objective evidence, that an employee will pose a direct threat due to a medical condition; or
• an employee asks for a reasonable accommodation and the employee’s disability or need for accommodation is not known or obvious; or
• required in positions that affect public safety, such as police and fire fighters.

Ans3-

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