Fundamentals - Principles, part 4: Intentional vs. Unintentional Torts and Mandatory Reporting

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

Intentional Torts

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

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.

Battery

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 say assault 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

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.

This is an important tort to understand in the context of restraints, which we will cover later on in this Fundamentals series and in our Fundamentals of Nursing Flashcards.

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

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

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

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.

Negligence

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

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.

Abandonment

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.

Mandatory Reporting

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.

Other responsibilities

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 the National 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.