Fundamentals - Principles, part 4: Intentional vs. Unintentional Torts and Mandatory Reporting
July 12, 2021 Updated: December 29, 2021 12 min read 1 Comment
In any industry that you work in, it's important to understand the laws surrounding it. Nurses have certain responsibilities and accountabilities to patients; it's important to know about some of the related legal issues when those responsibilities and accountabilities are broken. In your Fundamentals of Nursing coursework, you will likely need to learn about, and be alert to, some legal requirements of the nursing profession as well as legal violations. This is also knowledge you need for the NCLEX!
Here we'll define some of the legal violations in the nursing practice, including intentional and unintentional torts. This includes assault vs. battery, slander vs. libel, and false imprisonment. These actions go against some or all of the nursing ethics we covered earlier in this series.
We'll also explain a legal requirement for nurses—mandatory reporting of suspicion of abuse, including the information required for reporting, and ways to help your patient get to safety.
The Fundamentals of Nursing video series follows along with our Fundamentals of Nursing flashcards, which are intended to help RN and PN nursing students study for nursing school exams, including the ATI, HESI, and NCLEX.
When you see this Cool Chicken, that indicates one of Cathy's silly mnemonics to help you remember. The Cool Chicken hints in these articles are just a taste of what's available across our Level Up RN Flashcards for nursing students!
What is a tort in nursing?
Torts are wrongful acts that cause someone to suffer harm—in nursing, this can be an action or inaction by a nurse that causes a patient harm. Torts can be categorized as intentional or unintentional
An intentional tort is a willful act that violates a patient's rights. Willful and intentional means that the act was done knowingly and on purpose.
Assault is a threat made against a person that makes them fearful. For example, if you were to say, "If you don't stop acting up, I am going to tie you down," or "I am going to hit you," those would be threats against a patient and thus, assault.
In nursing torts, battery is the touching of a patient, without consent, that causes harm. For example, you administered a medication to a patient after they refused, that would be battery.
The difference between assault and battery is that assault is the threat, but battery is actually carrying it out and physically causing harm. This might be different than what you'd normally assume, as people often sayassault when they mean the physical act of battery, but it's important to know the difference.
A before B: Assault (threat) before Battery (harm).
False imprisonment is the act of keeping someone somewhere against their will, when they should otherwise be free to go. The tort of false imprisonment denies a patient their autonomy; patients have the right to leave even when it's against medical advice.
Examples of false imprisonment in nursing
If you put a patient in seclusion without having a medical order for it, then that would be false imprisonment. If a patient was trying to leave against medical advice and you physically blocked the door, that is false imprisonment and an intentional tort.
Defamation of Character
Defamation of character is making derogatory statements about a person that harms their reputation or character within a community, or has the potential to harm their reputation or character within that community. It's important to note that it does not have to be proved that the victim's reputation was actually harmed, just that the statements could have potentially harmed their reputation.
There are two kinds of defamation of character that you need to know about when you're studying torts in nursing; slander and libel.
Slander is any defamation of character that is spoken. For example, in nursing, if you were to gossip about a patient aloud to another nurse, "Did you hear that this patient did such-and-such?" while knowing that it was untrue.
Libel is any defamation of character that is written. For example, in nursing, if you made an internet post about the aforementioned gossip known to be false, or printed out signs about it and hung them up in the hospital, and you knew these statements were untrue, that would be libel.
Slander is spoken but libel is written, like a book in the library.
Unintentional torts are unintended acts against a patient that cause them harm. So the following unintentional torts would be actions (primarily inactions) that you did not mean to do.
In nursing, negligence is defined as a failure to provide care that a reasonably prudent person would have. Reasonably prudent means someone of sound mind and good reasoning capabilities. Anyone, including nurses, can be liable for negligence.
Malpractice is the specific term for negligence by a professional, like a registered nurse. A professional, or in this case a nurse, has a duty to act to provide care or prevent harm, but failed to act in the correct capacity.
Malpractice is a more specific term than negligence as it speaks to the agent (actor) in the situation. Professionals are held to a standard of care that is higher than a non-professional
If a nurse did not check a medication before administering it, and it resulted in a medication error that caused a patient harm, that would be an example of malpractice.
It's important to understand these unintentional torts so you can be informed enough to do your best to avoid these acts. They are unintentional, but we can find ways to work safer and keep our patients safer.
In nursing, abandonment is the desertion of a patient by anyone who has taken responsibility for their care. For example, if you were the nurse on duty, assigned to a patient, and you just decided to abruptly go home without handing over care to anybody else, that would be abandonment.
In reality, things do happen—a nurse may have a medical or other emergency themselves that needs to be handled, but they would need to transfer care to somebody of lateral licensing (if you are an RN, another RN), that could assume care for the patient.
As nurses we are mandatory reporters, which means that by law, there are specific instances we are required to report. It is mandatory for nurses to report suspicion of abuse that has happened or might be actively happening to their patient. The inverse is also true—nurses have a duty to warn when their patient might harm someone else.
This is another example of nurses being held to a higher standard because of their job and licensing—if a random person suspects abuse, they are not legally required by any laws or regulations to report it, but nurses are.
Reporting Suspicion of Abuse
It is mandatory for nurses to report suspicion of abuse of a child, elder, or vulnerable adult. In our Psychiatric Mental Health series, we cover signs of abuse. This topic, and other facts on abuse including the nursing care of patients experiencing abuse, is covered in our Psychiatric Mental Health Nursing Flashcards.
Burden of Proof
If a nurse suspects abuse is occurring, they are NOT required to have proof or concrete evidence, which means they don't carry the "burden of proof." The nurse just has the requirement to report the facts, circumstances and observations that led them to suspect abuse and neglect.
This is a helpful stipulation because abuse can be hard to prove with concrete evidence; evidence could take inordinate time to gather, and so not having to concretely prove the abuse allows the nurse to help the possibly abused patient sooner.
Priority Nursing Action
A nurse's priority nursing action in the case of suspected abuse is to protect their patient from immediate harm. For example, a nurse may need to separate a patient from their suspected abuser or get security involved.
There are several steps a nurse can follow to handle suspected cases of abuse.
A nurse can interview the suspected abuser and the patient separately, then compare notes and document the consistencies and inconsistencies in the story. For example, if it were a parent and child, the nurse could interview the child and ask, "how did you break your arm?" then separately interview the parent and ask, "how did your child break their arm?" and compare those stories.
A nurse may have a patient who is experiencing intimate partner violence, and they may not be able to help them out of that situation that day, or the patient may not want to leave at that time. But something that the nurse could do in this scenario is develop a safety plan. This is a plan for the patient to escape at a later time, including what to do, where to go, what kind of "go bag" to pack.
A nurse can provide information to any vulnerable adult about safe houses or shelter that they can find refuge in, which would be a safe place for the patient to stay. This can be incredibly useful or important in keeping your patients safe. If your patient is experiencing abuse, they need to know what to do the next time this happens, or when they are ready to leave.
This information on reporting suspicion of abuse is for your nursing exams and nursing practice. But for anyone who is reading this: if you or someone you know is experiencing abuse or domestic violence, you can call theNational Domestic Violence Hotline (external link) at 1−800−799−SAFE(7233). This is an immediate link to lifesaving help where they provide information, assistance, crisis intervention, safety planning, and referrals to shelters. They are open for calls 24 hours a day.
Hi. I'm Meris and today we're going to be talking about unintentional torts, intentional torts, and mandatory reporting for nurses. I'm going to be following along with our Fundamentals of Nursing flashcards. These are available on our website, LevelUpRN.com, so if you are following along with me at home, these are going to be cards 9, 10 and 11.
Remember we do have some cool chicken hints coming up, so these are fun ways of remembering things. I always want you to tell me in the comments if you have a better way to remember it. And the most important information, we always call out by making it bold and red, or putting it with a key point icon. So be on the lookout for those symbols inside these cards.
So let's get started. So first up, on card 9 we are talking about intentional torts. Now an intentional tort is a willful act that violates a patient's rights. So willful and intentional being the key words. It was something that was done with intent. So there's a couple of different kinds, and these get pretty tricky for nursing students sometimes. So let's kind of lay it out in a way that we can understand.
So first is assault. And assault is not what you think it is based on popular culture and TV. Assault is a threat, a threat made against a patient that makes them fearful. So for instance if you don't stop acting up, I'm going to tie you down, right? That is a threat. If we say to a patient that I'm going to hit you or something like that, again, that is assault because it is a threat.
Now battery, on the other hand, is actually the touching of a patient without consent that causes harm. So this is if for instance I then did something to a patient such as administer a medication, if I gave them a shot that they refused and they were capable of refusing, that would be battery. So that is a very important distinction.
Assault is the threat. Battery is actually carrying it out and harming the patient, putting your hands on them. So we have our cool chicken hint right here is A before B, right? It's just alphabetical. Assault before battery meaning that you make the threat before you actually carry it out.
So if you have a better way to remember, please tell me below, but if you like that one, go ahead and like this video for us so that we know.
Okay, next up is false imprisonment. Now this one is really important when it comes to restraints and patients leaving against medical advice. So false imprisonment is keeping somebody somewhere against their will, when they should otherwise be free to go.
So for instance, if we have a patient that we put in seclusion, and we didn't have an order for it, then that would be false imprisonment. If a patient is trying to leave against medical advice and I physically block the door, that's false imprisonment and that is an intentional tort. Very important.
Defamation of character is another one that you might not think of as being a tort but it actually is. So this is making derogatory remarks that harm somebody's reputation or character within a community or just has the potential to do that.
There's two kinds. There is slander and there is libel. Both of them are defamation of character, but they're slightly different. Slander is any defamation of character that is spoken, so if I gossiped and I knew something was untrue and I said to another nurse, "Did you hear so-and-so?" that's slander.
Now, if I made a Facebook post about it, or if I hung up signs in the hospital saying something that was not true that was going to harm a patient or a staff member's reputation, that is libel—L-I-B-E-L, libel—because it was written.
So another cool chicken here, slander is spoken, but libel is written, like a book in the library. So I hope that one is helpful to you in keeping those two straight.
So unintentional torts are up next on card number 10. As the name may suggest, these are unintended acts that may cause a patient harm. So I didn't mean to do it, but it still caused harm. You'll hear two of these come up time and time again. One is negligence, and the other being malpractice.
Now negligence is where there was a failure to provide care that a reasonably prudent person would have, meaning someone of sound mind and good reasoning capabilities would have done something. That's negligence.
Malpractice though is negligence by a professional - for instance a registered nurse. That would be negligence - where you had a duty to act, for instance, and then you failed to act in the correct capacity. You did not meet the standard of care.
So for instance, if I didn't check a medication before administering it, if I didn't verify that what the label says is what I'm supposed to be giving, that's malpractice, and that is something that is very important that we understand so that we can try to do our best to avoid those acts. Again, they are unintentional, but we can find ways to work safer and keep our patients safer.
Up next we're talking about abandonment, and abandonment is what it sounds like. This is going to be desertion of a patient by anyone who has taken responsibility for their care. So for instance if I am the nurse on duty for a patient and I just decide I'm going home, and I don't care over to anybody else, that's abandonment. So certainly things happen, right? There could be emergency situations I need to handle, but I would need to transfer care to somebody of lateral licensing, somebody who is a registered nurse as well, who can then assume care for that patient.
Okay, last, on card 11 we are talking about mandatory reporting. And as nurses we are mandatory reporters, meaning that by law, we are required to report any suspicion of abuse for a child, a vulnerable adult, or an elder. So this does not mean that I have to have proof, that I have concrete evidence. I don't have to have that.
As a mandated reporter, all I need is the suspicion of neglect or abuse, and I need to report that. It's not my job to prove it.
What do I need to do though? I need to document anything that leads me to suspect this. If I see incompatibilities in the stories, if I see suspicious injuries or various injuries in stages of healing that are not consistent with what the story is, that's a big red flag. I need to document that.
The other thing is that priority nursing action and you can see bold in red right here, because it's very important. The priority nursing action is to protect your patient from harm. So for instance, if the person who I believe could be abusing this patient is in this room, they may be putting my patient at risk for further harm, so I may need to ask them to leave, or separate them or get security involved, those sorts of things. That is always my first priority, is keeping my patient safe.
Okay, now what else can I do? Well, I need to interview the suspected abuser and the patient separately, so this way if it's a parent and a child, right, I can ask the child about, so how did you break your arm? And then I ask the parent, so how did your son break his arm? And then I can compare notes, right? I can document the inconsistencies or the consistencies in the stories.
The other thing is, for instance if we have a patient who's experiencing intimate partner violence or something like that, I may not be able to help them out of that situation. They may not want to leave at this time, but what we can do is develop a safety plan. Maybe we talk about what to do, where to go, what kind of "go bag" they could pack to have at the ready, and that would be very helpful for them.
Lastly, I do want provide information to any vulnerable adult about safe houses or shelters that they can find refuge in and they can be safe in. This is incredibly important for keeping our patients safe. They need to know what to do the next time this happens or when they're ready to leave.
Okay, so that's it for intentional torts, unintentional torts, and mandatory reporting. I hope that review was helpful. If it was, please go ahead and like the video. Be sure to leave me a comment below if you thought that was especially helpful, or like I said, if you have a better Cool Chicken hint, I want to hear it. So thank you so much for watching this with us.
Next video is going to be covering the thing you guys just love to hate, which is theoretical foundations such as Kohlberg, Maslow, Erikson and Piaget. So definitely check that out if you need a refresher on those concepts. Be sure to subscribe to the channel so that you can be kept up-to-date with all of our new content. Thanks so much for watching, and happy studying!
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