SERVICE OF PROCESS Process (in law practice) legal document by which a lawsuit is started; compelling the defendant in an action

to appear in court Service of Process giving notice to the defendant which makes him a part of the proceeding - defendant is obligatory or incumbent to appear and answer to the suit or run the risk of having valid judgment rendered against him in consequence of his default *non-appearance means admission of guilt k DUE PROCESS a fundamental constitutional guarantee that all legal proceedings will be fair - that one will be given notice of proceedings - an opportunity to be heard before the government acts to take away one s life, liberty or property -no person may be arrested without warrant of arrest issued by the judge y The constitutional rights of the accused are the following: 1. 2. 3. The accused is presumed innocent until the contrary is proved The right to free access to the courts and adequate legal assistance The right to remain silent and to have competent and independent counsel preferably of his or her own choice

Examples of the Process most commonly served 1. WARRANT- judicial writ authorizing the arrest of a person or the seizure of property, authorization for a policeman to search the premises of a private citizen 2. SUMMON- a paper that tells the defendant that he is being sued in a specific court that the plaintiff believes has jurisdiction -notify the defendant that an action has been instituted against him -to notify to appear in court *COMPLAINT- served together with summon 3. SUBPOENA- a judicial writ requiring a person to appear at the specific time and place under penalty for default - an order to a witness to appear before a court at a fixed time to give testimony - process by which attendance of witness is required 4. SUBPOENA DUCES TECUM (under penalty to bring with you) does not only compel the personal attendance of a witness in court but commands a person to bring certain evidence, usually documents, papers, books or the like which may be in his hands or possession and which tend to elucidate the matter in issue

DAMAGE AND DAMAGES Damage- a loss, injury or harm caused to one s person, property or rights by negligence, design (plan), accident or wrongful act or omission of another - loss, injury or harm Damages- is the sum of money that is awarded by law to a person for his loss, injury or harm by negligence, design (plan), accident or wrongful act or omission of another - monetary compensation y TYPES of Damages: 1. Actual or compensatory damages- losses that are actually sustained by the plaintiff - natural & direct consequences of a wrongful act 2. Moral Damages- physical suffering, mental anquish, fright, serious anxiety, besmirched of reputation, wounded feelings - compensate the plaintiff for the injuries he may have suffered; not intended to penalize
GAYATAO, Johanna BSN 4-D k

3.

Nominal Damages- vindication (justify) or recognition of legal right e.g. freedom of speech 4. Temperate or moderate damages- calculate moderate damages if he is convinced that there has been a loss, but there is no certain proof to it e.g. pecuniary (monetary) 5. Liquidated Damages breaches a contract - compensation agreed upon by the parties entering a contract 6. Exemplary or corrective Damages also termed punitive damages - awarded not as compensation but to punish the wrong doer

k Nursing Jurisprudence- department of law which comprises all the legal rules and principles affecting the practice of nursing Nursing Ethics- the branch of moral science which treats of the duties of a member of the nursing profession towards her co-professional nurses, to her profession and other professions, other members of the health team, to patients and to the public in general -refers to the conduct or behavior which has become customary among professional nurses k Nursing Legislation Legislation- the act or process of making a law or laws; or the law or laws made Nursing Legislation: the making of laws or the body of laws already enacted (approved) *Accountability - being required to answer for your actions explaining why something was or was not done *Responsibility- answerability, obligation *Confidentiality the principle of keeping secret and secure from others, information given by or about an individual in the course of a professional relationship *CONTRACT a legally binding agreement; which means you can be sued for breaking it The present challenges to nursing profession in general are: 1. 2. 3. The advent of medical tourism program The many doctors taking up nursing to leave the country to work as nurses abroad The alarming number of nurses going overseas for employment

A single professional misconduct of nurses may lead to: 1. 2. Three-fold lawsuit e.g. criminal, civil / tort and administrative The consequent three-fold legal liability is determined after due proceedings or trial and the application of relevant laws, jurisprudence and legal doctrines RESPONSIBILITIES AND ACCOUNTABILITY FOR THE PRACTICE OF NURSING y y y Nurses undertake to practice their profession are held responsible and accountable for the quality of performance of their duties Nurses employed in an agency, institution or hospital are directly responsible to their immediate superiors or supervisors Private duty nurses, being independent practitioners are held to a standard of conduct that is expected of reasonably prudent nurse -The standard is clearly defined, legal expectation to which nurses are held accountable TORT- latin word: torquere, meaning to twist - French word for a wrong

GAYATAO, Johanna BSN 4-D k

k NEGLIGENCE- a tort, a civil or personal wrong. It is the unintentional commission or omission of an act that a reasonably prudent person would or would not do under given circumstances and the action or inaction would bring about harm, injury or death to the person or to his property y Commission- performing an act that a reasonably prudent person under similar circumstance would not do E.g. A nurse can be held liable for improper administration of a drug that causes sciatic nerve injury Omission- failure to perform an act that a reasonably prudent person under similar circumstance would do E.g. Failure to give prescribed medications

3 Three (3) forms of Negligence: 1. Malfeasance: performing an act ought not to be done 2. Misfeasance: improper performance of an act 3. Nonfeasance: omission of an act 3 Four (4) elements present for negligence or malpractice to apply: 1. Duty of Care: exists when there is legal obligation of care, performance or observance imposed on one party to guard the rights of other; exists when there is professional relationship between two persons 2. Breach of Duty: failure to meet a prevailing standard of care; something wrong with what the nurse was doing in accordance with the standard of care 3. Injury: without a proof of harm or injury, a defendant cannot be found liable 4. Causation or Proximate cause: injury was brought about by the things done by the nurse; refers to the idea that the defendant s negligence must be a substantial factor in having caused an injury Common Acts of Negligence: y y Burns resulting from hot water bags, heat lamps, vaporizers, hot sitz bath Objects left inside the patient s body such as sponge and instruments during surgery

Specific Examples of Negligence: Failure to report observations to attending physicians Failure to exercise the degree of diligence which the circumstances of the particular case demand 3. Mistaken identity 4. Wrong medicine, wrong concentration, wrong route, wrong dose 5. Defects in the equipment such as stretchers and wheelchairs may lead to falls thus injuring the patient 6. Errors due to family assistance 7. Administration of medicine without doctor s prescription 1. 2. MALPRACTICE y y Nursing negligence conduct that is unreasonable under the circumstances and fail to meet the appropriate standard of care Malpractice implies the idea of improper or unskillful care of a patient by a nurse. Professional negligence -denotes stepping beyond one s authority with serious consequences A negligent act committed in the course of professional performance E.g. The giving of anesthesia by a nurse or prescribing medications
GAYATAO, Johanna BSN 4-D k

Malpractice occurs when the standard of care that can be reasonably expected from such professionals as lawyers, accountants, nurses and physician is not met; hence it is also known as Professional negligence. Cause of Malpractice: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Providing birth control and abortion to minors Prescribing and administering drugs inappropriately Illegal search Libel and slander Violating the client s or patient s right of privacy Physical injuries sustained by members in an encounter group Striking or physically assaulting a client or patient as a part of treatment Sexual relations with clients or patients Failure to exercise reasonable cases of suicide Failure to warn and protect victims in cases involving violent clients or patients Misinterpretation of one s professional training *Only a professional can be sued for malpractice. Any other misconduct would be classified as negligence. *A negligent act is considered malpractice, however, only if it was committed by a professional carrying out professional duties, not under other circumstances k Doctrine of Res Ipsa Loquitor- also known as doctrine of common knowledge -the thing speaks for itself -it is self-evident; a rule of evidence - mistake is so obvious PURPOSE: to reduce the plaintiff s (patient) handicap in proving his injury under certain selected circumstances Classic example: a. A sponge or instrument is left in the patient s operative site b. Administering injection to the buttocks, patient experienced extreme pain, leg felt weak and become paralyzed c. Fracture on a newborn delivered by breech presentation For this doctrine to apply against a nurse, 3 circumstances must be meet: 1. 2. 3. The act that caused the plaintiff s injury was exclusively in the nurse s control (defendant) inference of negligence The injury would not have happened in the absence of the defendant - Exclusive control of the defendant The patient (plaintiff) must not have contributed to the act; incident must not have been due to any voluntary action or contributions of the plaintiff - Freedom from contributory negligence

Doctrine of Force Majeure Force Majeure an irresistible force, one that is unforeseen or inevitable -it corresponds in general way to the Act of God of the common law or to the latin Vis Mayor or to tge Spanish Fuerza Mayor E.g. Floods, fire, earthquake and accident fall. Nurses who fail to render service during these circumstances are not held negligent *Under the civil code of the Philippines, no person shall be responsible for those events which can t be foreseen or which though foreseen are inevitable. *However, habitual tardiness due to heavy traffic is not considered an excuse for force majeure
GAYATAO, Johanna BSN 4-D k

For example: In the course of the transfer, the nurse and patient were trapped in the elevator due to earthquake and the patient died of asphyxiation despite the proper nursing intervention k Doctrine of Damnum Absque Injuria Although there was physical damage there was no legal injury -means that even if a victim suffered from physical injury, the same is not considered legal injury which entitles him to recover for damages. *As a hypothetical example, a certified IV therapy nurse who carefully performed his/ her duty hurt a patient because the lighting strikes his eyes. Doctrine of Respondeat Superior Let the master answer for the acts of the subordinate -the principal or the master should be answerable for the acts of his agent or servant -one of the most important defenses -actions are performed by the employee with in the scope of his employment -does not apply where the injury occurs while the servant is acting outside the legitimate scope of the authority -also called the Theory of Vicarious Liability -Deep pocket doctrine- attractive to plaintiff as well as employees because facilities usually have enough money available to pay claims than nurses do

GAYATAO, Johanna BSN 4-D k