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Frequently asked legal questions

Editor’s note: The following questions are excerpts from the book Frequently Asked Legal Questions Keeping Nurses Awake at Night, by the author, copyright 2015. Reprinted with permission.

Question: Is it appropriate to take orders over the telephone from another nurse (who is not an advanced practice nurse)?

Answer: It depends on whom the order originated from and what the order is for. If the order originated from a physician or advanced practice provider (advanced practice nurse or physician assistant), and the nurse is simply transmitting the order at the direction of the physician or advanced practice provider, that is legal. For example, a nurse practitioner could ask a nurse to call another nurse and transmit an order for a test or treatment. Though legal, the practice of passing orders along through multiple individuals is risky. Anytime there are more than two people in the chain of communication, the likelihood of error in transmission increases.

If the order is for medical treatment or services and originates from a nurse, then the nurse who gives the order has no authority to do so, and is practicing medicine without a license. The nurse who is on the listening/receiving end should not follow the order, and should state that he or she is not going to follow the order, and state why. It is appropriate for a nurse on the receiving end to question the nurse on the giving end about where the authority for the order comes from and whether the order is in writing and signed by the authorized practitioner.

Question: We nurses discuss our patients in the break room. Are there any HIPAA [Health Insurance Portability and Accountability Act] implications to this?

Answer: Yes. If a nurse is discussing a patient with another nurse who needs to know the information because he or she will cover the patient while the other nurse goes to a meeting, then, as long as the discussion is audible only between the two of them, they are complying with HIPAA. If the nurses are discussing a patient simply to pass the time, then they are violating HIPAA. And, if others in the break room can hear the nurses’ conversation, even if they are having a discussion for treatment purposes, then the nurses are violating HIPAA because the others don’t need that information to carry on the patient’s treatment.


Question: Can you clarify the legal ramifications of photographing anesthetized patients in the operating room without the consent of the photographed patient, when these photos are used for appropriate documentation purposes?

Answer: Any clinician who photographs a patient must give the patient an opportunity to agree or decline. Surgical staff must obtain that consent before the patient is sedated. HIPAA gives clinicians the authority to communicate for treatment, payment, and operations purposes, but it is not clear that a photograph would be needed to accomplish any of those three purposes. One could argue that photographs are needed to track the healing of a wound or progression of a skin lesion, but those photos would not be taken while a patient was anesthetized. If the photographs taken in surgery are to be used for teaching purposes or publishing purposes, the patient’s consent is needed, pre-sedation.

Question: If I give a presentation at a nursing conference and use a patient as an example, what must I do to prevent violating HIPAA?

Answer: “De-identify” the patient; that is, change some of the information so it is not possible for anyone to identify the patient based on your description. Obviously if the patient is the only individual with the medical condition, then it may not be possible to de-identify the patient and still make the points you want to make. Usually, speakers can de-identify the patient and still make their points. For example, if the patient is an 85-year-old woman, make the patient a 66-year-old man, assuming that doesn’t affect the clinical picture. Don’t give any information that would definitively identify the patient, such as “This was the president of a pharmaceutical company in this state.”

Question: I received a letter from my state Board of Nursing that there is a complaint against me. They gave me a sketchy description of the complaint. I am to respond by a certain date. What should I do?

Answer: Prepare a written explanation of your side of the story. If you can’t remember the case, state that. If you can recall anyone who was a witness and can corroborate your explanation, give that person’s name and contact information. Most likely, you will need an attorney. Optimally, you will hire an attorney experienced with defending nurses in Board actions and the attorney can review your response before you send it to the Board.

Board processes differ from state to state. Usually the nurse provides a written explanation in response to the complaint, and often an investigator will meet with the nurse as well. For that meeting it is best to take your attorney. Boards have significant authority in making determinations on complaints. Nurses need to take complaints very seriously and respond with care and on time.

Question: Can a hospital mandate that nurses float to any location and force the nurse to sign an agreement that he/she will float or be fired?

Answer: Yes. Legally, an employer can assign nurses however the employer deems necessary. An employee who refuses an assignment may be fired. Under an at-will employment situation, which is the situation for most nurses, an employee may be fired for cause or without cause.

Nurses who are required to float may be uncomfortable with their experience with a new type of patient or condition. A nurse may argue, accurately, that he or she is not trained to function in the unit to which the nurse is forced to float. The nurse may maintain that floating threatens patient safety. In response, supervisors usually contend that a registered nurse can assess, plan, implement, and evaluate in any setting and can seek consultation as needed. There is some truth in both arguments. Generally, nurses are not at their best when forced to rotate to an unfamiliar unit. However, usually the floating nurse can perform the basics, and that is helpful when a unit is desperately short-staffed due to illness or vacation. The more complex patients usually are assigned to regular staff rather than a floating nurse. If a floating nurse is asked to perform a procedure with which he or she has no experience and that requires special training, for example, placing an arterial line, the nurse should inform the charge nurse that he or she lacks experience with the procedure and cannot perform it. At that point, there is a patient safety issue. If necessary, the floating nurse should take the matter to a supervisor. Usually, in this type of situation, the charge nurse can find an experienced nurse to perform the procedure.

Hospitals will want to minimize involuntary floating in order to retain their nurses and to maximize the expertise of the nurses on every unit. That is why some hospitals have “float pools” made up of nurses who are comfortable in many settings. However, occasional floating probably is unavoidable. Nurses should reserve refusals for specific procedures for which the nurse has had no training and therefore is not competent to perform.

Carolyn Buppert is a healthcare attorney in Boulder, Colorado.

Editor’s note: Consult an attorney for legal advice.

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One thought on “Frequently asked legal questions”

  1. Kathleen Metzler says:

    I agree that is the reality of being a nurse. However is that really what is best for our patients? Should a nurse be able to be fired without just cause? Doesn’t that put a nurse in the position of having to choose between her livelihood and being a patient advocate? Nurses and those in healthcare are exempt from certain labor laws that offer some meager protections, shouldn’t they be exempt from at will employment laws too? If only for the simple fact that the public safety and well being is at stake. A nurse should be able to voice concerns without fear of retaliation. Hospital policy does not protect nurses, as hospitals will violate their own policies with impunity when it serves them. Nurses need legal and enforceable protections. If we don’t protect nurses, they can’t protect us.

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