Sources of Law in The United States: Nursing Practice, Medical Malpractice, and Negligence

There are four main sources of law within the legal system of the United States. These include Statutes, Case Law (Judicial), Constitution and Administrative Regulations.

Within the source of laws under Statutes, it includes State Legislatures, Congress, as well as, county and municipal governments. The State Legislatures will pass the state laws, while local or county government pass the laws that only apply to their specific localities. Statutes are made to pronounce, order, or disallow laws within each of their locality. An example of a statutory law is when one obtains their nursing license.

Case Law (Judicial) is another source of laws in the United States. These case laws consist of opinions which will help to determine various decisions issued by the court and help shape and determine the actual law. For instance, Supreme Court’s ruling on same-sex marriages helped shape the actual law. The constitution now recognizes this right. Judicial laws are developed by the court system and clarify legal issues that are in debate (Guido, 2014).

Constitution is another source of laws. Within the Constitution are the laws established for the government. These laws set the limits of what the government can and cannot do. This limits the government’s overall power. The constitution is referred to as the backbone of the legal system in the United States because it states the basic freedoms and rights for individuals including nurses (Fremgen, 2019). The Constitution overrides laws that may contradict it. Such that, no law will be passed if it violates the constitution.

Other sources of laws include Administrative regulations. These are basically the rules and procedures of the various government agencies. These laws do not focus on what is done, but how things are done. An example of an administrative regulation would be the number of days allowed for someone to file a complaint regarding freedom of speech as it pertains to the constitution. There are many different administrative agencies that issue rules on how laws should and will be enforced. The legislative branch gives this power to develop these rules to the executive branch to develop these rules (Fremgen, 2019). Although the legislative branch is able to remove this power through a legislative action.

The sources of laws discussed above support and protect the nursing practice. Licenses are granted to each group of health care professionals by the state or the government. Regulations and laws for each which outline its scope of practice. Because the constitution law states the right to life for every individual, this requires nurses and other health care professionals to protect life at all cost (Fremgen, 2019). Nurses were identified as profession in 1975, which helped identify nurses of being worthy of protection by state laws and affected how nursing is practiced under the rules of the law. Later that same year, nurses began to receive negligence claims against them. This negligence was considered malpractice. Therefore, the law required nurses to utilize the principles of nursing to provide care to their patients. Each state has statutes that offer protection for its nurses and that state’s court will determine the laws. Different state statutes as well as the federal law can impact nursing practice differently. Others impose liability. Health practitioners and nurses should be acquainted with different legal risks regarding the care of their patients. They should follow State’s nurse practice act to the end (Shecaira, 2015).

There are several classifications of law, they include civil law, common law, public law, criminal law, procedure law and substantive law. Civil law is commonly involved in the nursing profession. Within civil law, tort law is a specific division that the nursing profession needs to be familiar with. This is the area of law, which is most often affiliated with malpractice claims. This is seen often when nurses wrongfully injure a patient and may need to compensate their patients they may have harmed. (Guido, 2014). This is why civil law is commonly utilized for assisting in setting the rules and regulations of practice. This is done to prevent similar injuries from recurring. This is all needed with how often people sue for just about anything. Some do not take into consideration the many reasons why errors occur. A few examples include short staffing, long work hours and just plain human errors.

One of the most controversial topics within healthcare ethics are those related to medical malpractice and negligence. Nurses, therefore need to be very diligent when caring for their patients. The definition of malpractice is described as the unethical and improper practice of one’s profession. Negligence is usually referred to as the omission of the utilization of care and caution (Shecaira, 2015). Negligence is sometimes referred to as not doing the right thing at the right time. While malpractice is described as professionals not practicing at the standards of care while causing harm to the clients. This is sometimes due to lack of skills in their profession.

Medical malpractice is when a medical professional intentionally does not provide acceptable standard of care to their patients and causes injury or death (Raz, 2013). Medical negligence occurs when a medical professional ignores their responsibilities and causes injury or sometimes death. These professionals do not intend to cause harm, but because of ignorance or lack of action, they end up harming them. Medical ignorance cases sometimes involve unintended mistakes or oversight (Shecaira, 2015).

Medical negligence and medical malpractice can be interchangeable. They both require medical professionals and their actions or lack of actions that may lead to an injury or possibly death of their patients. These cases can be taken to court if there is enough evidence to do so (Raz, 2013). Medical malpractice and negligence cases are usually extremely complex. They require special lawyers that are qualified to determine whether a case falls into the category of medical malpractice or medical negligence.

When claims are successfully filed by victims of any medical malpractice and/or medical negligence, damages are awarded in order to compensate the victims. Payments are made to cover the costs of medical expenses current and future. These damages can also include compensation for a few different items. These include the loss of current wages, amount of future earning capacity as well as in many cases compensation for mental distress or suffering. The court requires medical professionals to pay for punitive damages if found guilty of medical malpractice (Raz, 2013). It is sometimes beneficial to hire a medical witness to increase the chances of being successful in a medical malpractice case.

In conclusion, the laws discussed above may help in special circumstances when determining whether wrongful doing actually took place or not. These laws help to decide if a medical professional is required to pay when an injury or death occurs due to their actions. They also assist in creating new policies and procedures to help prevent future injuries or possibly deaths from happening again in similar situations. In certain situations, these laws can often protect a medical professional. “Nurses don’t often get sued for malpractice, but when they do, it’s important for them to be aware of what the person suing them is required to prove. To prevail, a plaintiff must demonstrate duty, breach, causation, and harm.” (Brous. 2019, p.42)

References

1. Brous, E. (2019). The Elements of a Nursing Malpractice Case, Part 2: Breach. AJN American Journal of Nursing, 119(9), 42–46. https://doi- org.proxy.library.stonybrook.edu/10.1097/01.NAJ.0000580256.10914.2e
2. Fremgen, B. F. (2019). Medical law and ethics (6th ed.). Upper Saddle River: Pearson.
3. Guido, G. W. (2014). Legal and ethical issues in nursing (6th ed.). Upper Saddle River: Pearson, 2-5.
4. Raz, J. (2013). Legal positivism and the sources of law. Arguing About Law, 117.
5. Shecaira, F. P. (2015). Sources of law are not legal norms. Ratio Juris, 28(1), 15-30.