LEGAL ASPECTS AND THE NURSE

MALPRACTICE AND NAGLIGENCE ACT

MALPRACTICE y Means that you DID something wrong that you should have known was wrong. y The failure of a person with professional training to act in reasonable and prudent manner.

NEGLIGENCE
means that you failed to do something that you should have done. y Is the omission to do something that a reasonable and prudent person would not do. >reasonable and prudent the average judgment , foresight, intelligence, and skills that would be expected of a person with similar training and experience.
y

SAMPLE QUESTION: You are a newly hired nurse and you saw a patient who fell after stepping on a peel of banana. What would you do?
a. b. c. d.

Notify the physician. Make an incident report. Attend to the patient first. Pick up the peel of banana first.

ELEMENTS OF PROFESSIONAL NEGLIGENCE :

y The existence of a duty on the part of the person charged to use due care under circumstances
y y

failure to meet the standard of due care The foreseeability of harm resulting from failure to meet the standard

y The fact that the breach of this standard resulted in an injury to the plaintiff
y y

ARTICLE 19 Civil Code states that one shall act with justice, give every man his due, observe honesty and good faith. ARTICLE 20 states that those who, in the performance of their obligations through negligence cause any injury to another, are liable for damages.

y y

SPECIFIC EXAMPLES OF NEGLIGENCE:

y Failure to report observations to attending physicians
y

Failure to exercise the degree of diligence which the circumstances of the particular case demands Mistaken Identity wrong Medicine, wrong concentration, wrong route, wrong dose

y y

Defects in the equipment such as stretchers and wheelchairs may lead to falls thus injuring the patients Errors due to Family assistance Administration of medicine without a doctors prescription

y y

DOCTRINE OF RES IPSA LOQUITUR

y Res Ipsa Loquitur means the thing
speaks for itself y injury could not happened if someone was not negligent that no further proof is required.

THREE CONDITIONS ARE REQUIRED TO ESTABLISH A DEFENDANTS NEGLIGENCE WITHOUT PROVING SPECEFIC CONDUCT

 

that the injury was such of nature that it would not normally occur unless there was a negligent act on the part of someone that the injury was caused by an agency within control of the defendant that the plaintiff himself did not engage in any manner that would tend to bring about the injury

DOCTRINE OF FORCE MAJEURE

y

The term force majeure means an irresistible force, one that is or inevitable. Under the Civil Code of the Philippines, no person shall be responsible for those events which cannot be foreseen, or which, though foreseen, are inevitable, except in cases expressly specified by law.

DOCTRINE OF RESPONDEAT SUPERIOR

y

The term means let the master answer for the acts of the subordinate. Under this doctrine, the liability is expanded to include the master as well as the employee and not a shift of liability from the subordinate to the master.

Incompetence
y Is

the lack of ability, or legal qualifications and being unfit to discharge the required duty.

LIABILITY FOR WORK OF NURSE TRAINEES AND VOLUTEERS

y

There are thousands of nursing graduates each year. Ironically, there are not enough vacancies both in public and private sectors to accommodate them. They flock to hospitals to work as volunteers or as trainees.

These volunteers pay a minimum of P1,000 monthly as training fees. They are rotated in the various clinical areas and under the direct supervision of the nursing staff in the unit for basic nursing care to patients. They train for at least 3 months to 1 year then apply again as casual or part-time nurses and if lucky, they are taken in as regular staff nurses

Opportunities for work abroad often require experience of at least 1year in hospital, hence their willingness to volunteer. Many hospital take advantage of the situation though. Instead of hiring replacements for staff who have resigned, they take in volunteer to save money.

LIABILITY OF NURSES FOR THE WORK OF NURSING AIDES

y

Nursing aides perform selected nursing activities under the direct supervision of nurses. They are usually given on-the-job training by the Training Staff Their responsibilities usually pertain to the routine care of chronically ill patient.

Nurses should not delegate their functions to nursing aides since the Philippine Nursing Act specifies the scope of nursing practice of professional nurses. If a nurse delegates her functions to a nursing aide and the latter commits mistake then the person responsible is the nurse.

Nurses are enjoined to supervise their subordinates and see to it that they perform only those which they have been taught to do and those which they are capable of doing.

LIABILITY FOR THE WORK OF NURSING STUDENTS

Philippine Nursing Act of 2002 (R.A. 9173)
y

Nursing students do not perform professional nursing duties. They are to be supervised by their clinical instructors.

In order that the errors committed by nursing students will be avoided and/or minimized, the following measures should be taken: Nursing students should always be under the supervision of their Clinical Instructors. They should be given assignments that are at their level of training, experience, and competency. They should be advised to seek guidance especially if they are performing a procedure for the first time

1. 2.

3.

4. They should be oriented to the policies of the nursing unit where they are assigned. 5. Their performance should be assessed frequently to determine their strength and weaknesses. 6. Frequently conferences with the students will reveal their problems which they may want to bring to the attention of their instructors or vice-versa. Discussion of these problems will iron out doubts and possible solutions may be provided.

Both C.I. and the staff nurse in the clinical area where nursing students are assigned should coordinate in assessing the competence of nursing students before they are allowed to give care to patients so that the risks of injury to the same will be avoided.

LEGAL DEFENSE IN NEGLIGENCE

y

The most common defense in a negligent action is when nurses know and attain that standard of care in giving service and that they have documented the care they give in a concise and accurate manner. However, if the patients careless conduct contributes to his own injury, the patient cannot bring suit against the nurse.

MEDICAL ORDERS, DRUGS, AND MEDICATIONS

Republic Act 6675 y States that only validly registered medical, dental and veterinary practitioners, whether in private institution/corporation or in the government, are authorized to prescribe drugs.
y

Prescription made by unauthorized persons constitute illegal practice of medicine, dentistry or veterinary medicine and is punishable by R.A. 2832 or the Medical Act of 1959, R.A. 4419 or the Dental Act, and R.A. 382 or the Veterinary Act.

R.A. 5921 or the Pharmacy Act y Amended that all prescriptions must contain the following information:
Name of prescriber Office address Professional registration number Professional tax receipt number Patients/clients name Age and sex Date of prescription

R.A. 6675 y Also requires that the drugs should be written in their generic names.

INTRAVENOUS THERAPY AND LEGAL IMPLICATIONS

Philippine Nursing Act of 1991 Section 28 y States that in the administration of IV injections, special training shall be required according to protocol established.
y

Therefore have to undertake a certified training course on IV therapy. Nurses should use the IV Nursing Standards of Practice developed by the Association of Nursing Service Administrators of the Philippines.

Board of Nursing Resolution No. 8

y

States that any R.N. without such training and who administer IV injections to patients, shall be held liable, either criminally under Sec. 30 ( c ) Art.VII of the said law or administratively under Sec. 21 Art. III or both (whatever causing or not an injury or death to the patient).

SCOPE OF DUTIES AND RESPONSIBILITIES IN IV THERAPY

The duties and responsibilities of nurses in IV therapy include the following:

1. 2. 3.

4. 5.

Interpretation of the doctors orders for IV therapy; Performance of venipuncture, insertion of needles, cannulas except TPN and cutdown; Preparation, administration, monitoring and termination of IV solution such as additives, IV medications, and IV push; Administration of blood/blood products as ordered by physicians; Recognition of solution and medicine incompatibilities;

6. Maintenance and replacement of sites, tubings, dressings, in accordance with established procedures; 7. Establishment of flow rates of solutions, medicines, blood and blood components; 8. Utilization of thorough knowledge and proficient technical ability in the use/care, maintenance, and evaluation of IV equipment. 9. Nursing management of Total Parenteral Nutrition, out-patient IV care; 10. Maintenance of established infection control and aseptic nursing interventions; and 11. Maintenance of appropriate documentation, associated with the preparation, administration and termination of all forms of IV therapy.

TELEPHONE ORDERS
RISKS: y May be misunderstood or misinterpreted by the receiving nurse. y Sometimes, message from telephones may sound unclear or garbled. y Most importantly the handwriting of the nursing physician may be illegible, his signature is not present and this may later be denied in case errors happen or court litigations arise.

Doctors should limit telephone orders to extreme emergency situations when there is no alternative. The use of telephone in a non-emergency as a substitute for the physician himself can lead to serious errors and may border on malpractice.

CONSENT TO MEDICAL AND SURGICAL PROCEDURES

y

Consent is defined as free and rational act that presupposes knowledge of the thing to which consent is being given by a person who is legally capable to give consent. Nature of consent. Consent is an authorization, by a patient or a person authorized by law to give the consent on the patients behalf, that changes touching, for example, from non-consensual to consensual.

Informed Consent. Hayt and hayt state that it is established principle of law that every human being of adult years and sound mind has the right to determine what shall be done with his own body. Proof of Consent. A written consent should be signed to show that the procedure is the one consented to and that the person understands the nature of the procedure, the risk involved and the possible consequences.

Who Must Consent. Ordinarily, the patient is the one who gives consent in his own behalf. However, if he is incompetent or physically unable and is not an emergency case, consent must be taken from another who is authorized to give it in his behalf. Consent of Minors. Parents, or someone standing in their behalf, give the consent to medical or surgical treatment of a minor. Parental consent is not needed, however, if the minor is married or otherwise emancipated.

Consent of Mentally Ill. A mentally incompetent person cannot legally consent to medical or surgical treatment. The consent must be taken from the parents or legal guardian. Emergency Situation. When an emergency situation exists, no consent is necessary because inaction at such time may cause greater injury.

Refusal to Consent. A patient who is mentally or legally competent has the right to refuse the touching of his body or to submit to a medical or surgical procedure no, matter how necessary. Consent for Sterilization. Sterilization is the termination of the ability to produce offsprings.

MEDICAL RECORDS
y y

The value is both scientific and legal. It saves duplication in future cases and aids in prompt treatment. It supplies rich material for medical and nursing research. It serves as a legal protection for the hospital, doctor, and nurse by reflecting the disease or condition of the patient and his management.

Nurses must remember the rule, if it was not charted, it was not observed and done.

CHARTING DONE BY NURSING STUDENTS

y

When a nurse or a C.I. countersigns the charting of a nursing student, he/she has personal knowledge of information and that such is accurate and authentic. Anyone who countersigns without verification commits herself to possible legal risks.

MEDICAL RECORDS IN LEGAL PROCEEDINGS

y

Medical records are usually used to give important evidence in legal proceedings such as police investigations, determining cause of death, extent of injury incurred by the patient, among others. It usually the medical records librarian, by virtue of subpoena duces tecum, who testifies that the patients records are kept and protected from unauthorized handling and charge Only complete and accurate records are accepted in court.

LEGAL RISKS FOR DEFECTIVE EQUIPMENT

y

One important duty of the nurse is to make sure that the equipment used in the procedures and treatments is not defective. While the nurse may or may not be responsible for inspecting the equipment for optimum functioning, she should see to it that all pieces of equipment are regularly inspected, maintained and are functioning properly.

She should document the times she requested these to show that she was able to foresee the improper functioning of equipment which might cause possible injury to the patients. Such equipments include
Wheel chairs Stretchers Suction machines Anesthesia apparatus X-ray tables

INTENTIONAL WRONGS

A nurse may be held liable for intentional wrongs. Intentional tortous acts may arise in the performance of her duties.

TORTS
y

Is a legal wrong, committed against a person or property independent of a contract which renders the person who commits it liable for damages in a civil action.

Example of torts are: Intentional torts  are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Example: y Assault imminent threat. y Battery physical contact without consent.

False Imprisonment or Illegal Detention  Means the unjustifiable detention of a person without a legal warrant within boundaries fixed by the defendant by an act or violation of duty intended to result in such confinement.
y

Invasion of Right to Privacy and Breach of Confidentiality  Nurses may become liable for invasion of right to privacy if they divulge information from a patients chart to improper sources or unauthorized persons.
y

 Defamation
 is

tarnishing the reputation of someone; it has two varieties, slander and libel. Slander - Oral communication of false statements injurious to a person's reputation. Libel - A false publication, as in writing, print, signs, or pictures, that damages a person's reputation.

CRIMES, MISDEMEANORS, AND FELONIES

y

Crime is defined as an act committed or omitted in violation of the law.

Conspiracy to commit a crime y Exists when 2 or more persons agree to commit felony and decide to do it.
y

Persons who commit felonies are either principals, accomplices or accessories.

Principals y Are those who take a direct part in the execution of the act; who directly force or induce others to commit it; or who cooperate in the commission of the offense by another act without which it would not have been accomplished. Accomplices y Are those persons who, not being principals, cooperate in the execution of the offense by previous or simultaneous act. Accessories y Are those who, having knowledge of the commission of the crime, either as principals or accomplices, take part subsequent to its commission by profiting themselves of assisting the offender to profit the effects of the crime by concealing or destroying the body of the crime or assisting in the escape of the principal.

Criminal Actions. Deals with acts or offenses against public welfares. These vary from minor offenses and misdemeanor to felonies. misdemeanor is a general name for a criminal offense which does not in law amount to felony. felony is a public offense for which a convicted person is liable to be sentenced to death or to be imprisoned in a penitentiary or prison.

Criminal Negligence may be classified into: reckless imprudence when a person does an act or fails to do it voluntarily but without malice, from which material damage results immediately. simple imprudence means that the person or nurse did not use precaution and the damage was not immediate or the impeding danger was not evident or manofest.

Criminal Intent is the state of mind of a person et the time the criminal act is committed, that is, he/she knows that an act is not lawful and still decided to do it anyway. Classes of Felonies. Felonies are classified according to the degree of the acts of execution which produces the felony into: Consummated when all the elements necessary for its execution and accomplishment are present. Frustrated when the offender performs all the acts or execution which will produce the felony as a consequence but which nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

Attempt to commit a felony when the offender commences the commission of the same directly by overt (open or manifest) acts, and does not perform all the acts or execution which shall produce the felony, by reason of some cause or accident other than his own spontaneous desistance.

Felonies are also classified to the degree of punishment: Grave Felonies y Capital punishment (death), or y 6 years and 1 day to life imprisonment, or y Fine not exceeding P6,000.00 Less Grave Felonies y Imprisonment ranging from 1 month and 1 day to 6 years, or y A fine not exceeding P6,000.00 but not less than P200.00

Light Felonies y Arresto menor (imprisonment for 1 day to 30 days, or y A fine not exceeding P200.00. y punishable only when they have been consummated, with the exception of those committed against a person or property.

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY

Justifying Circumstances y When a person acts in defense of his own rights provided that:
a. b.

c.

There is an unlawful aggression on the part of the offended or injured party; There is reasonable necessity for the means employed by the person defending himself/herself to prevent such aggression; and There is lack of sufficient provocation on the part of the person defending himself.

Exempting Circumstances y The following persons under the circumstances stated are expressly exempted by law from criminal liability for the crime they may have committed:
a. b. c. d.

An imbecile or an insane person, unless the latter has acted during a lucid interval. A person under 9 years of age. A person over 9 years and under 15 years unless he/she acted with discernment Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury.

Mitigating Circumstances y Are those which do not constitute justification or excuse of the offense in question, but which, in fairness and mercy, may consider as extenuating or reducing the degree of moral culpability.
a. b. c. d. e.

When the offender has no intention to commit so grave a wrong as the one committed. When the offender is under 18 or over 70 years old. When sufficient provocation or threat on the part oif the offended party immediately precedes the act. When the offender voluntarily surrenders himself/herself. When the offender is physically and mentally disabled.

Aggravating Circumstances y Are those attending the commission of the crime and which increase the criminal liability of the offender or make his guilt more severe. Alternative Circumstances y Are those which must be taken into considerations as aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission.

Moral Turpitude y Is an act of baseness, vileness or depravity in social or private duties which a man owes to his fellow man or to society in general, an act contrary to the accepted and customary rule of right and duty between men.

Murder y Unlawful killing of a human being with intent to kill. Homicide y The killing of a human being by another. It may be committed without criminal intent, by ay person who kills another, other than his father, mother, or child or any of his ascendants, or his spouse, without any of the circumstances above being present.

Abortion y The expulsion of the product of conception before age of viability. Infanticide y Is the killing of a child less than 3 days of age. Parricide y Is a crime committed by one who kills his/her father, mother, or child whether legitimate or illegitimate, or any of his/her ascendants or descendants or his/her spouse.

Robbery y The taking of personal property of another person from him or in his presence constitutes robbery. Controlled Substance y Republic Act 6425 known as the Dangerous Drugs Act of 1972 covers the administration and regulation of the manufacture, distribution, and dispensing of controlled drugs.

PLAINTIFF (Civil Case)  The injured party  Equivalent to Complainant (Criminal Case) DEFFENDANT (Civil Case)  The professional who was alleged to have caused the injury.  Equivalent to Respondent (Criminal Case)

TYPES OF LAWS AND COURTS

CRIMINAL CASES y The individual faces charges generally filed by the state or federal attorney general for crimes committed against an individual or society. Ex. Murder, Homicide, Theft, Robbery

CIVIL CASES y One individual sues other for money to compensate for a perceived loss. Ex. Defamation, Trespassing, Public and Private Nuisance ADMINISTRATIVE CASES y An individual is sued by a state or federal government agency assigned the responsibility of implementing governmental programs. Ex. Tax Evasion

GROUNDS FOR THE REVOCATION OF LICENSE

y Impersonating Another

Licensed Practitioner (Miss-representation) y Providing a False Copy of License y Falsifying Patient Records y Unprofessional Conduct y Patient Abuse and Neglect y Violating Probation

WILLS
A legally enforceable declaration directing the disposal of a decedent's property. also called testament.

Handwritten Wills

Power of Attorney allows a person to give legal permission to another person or organization to act on his or her behalf in a variety of legal and financial situations. Complete Will A Last Will and Testament is an important part of every individual's estate plan. This will is appropriate for a variety of individuals. The easy interview process will allow you to state your intentions for your estate after your death, including who will receive your property and who will carry out your wishes.

y Living

Will A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments.

CONTRACTS
- A binding agreement between two or more parties for
performing, or refraining from performing, some specified act(s) in exchange for lawful consideration. Express Contracts y In this type of contract, the parties to the contract state the terms and conditions either by word of mouth or in writing, at the time of forming the contract. Implied Contracts y Contracts implied in fact and contracts implied in law are both a part of implied contracts. But a real implied contract consists of certain obligations that arise from a mutual agreement and intention of promise, which is not expressed verbally.

Executed Contracts An executed contract is termed as an agreement in which no other transaction is left out to be executed by either party. Bilateral and Unilateral Contracts If two entities exchange a mutual and reciprocal promise that implicates the execution of an act, an obligation or a transaction or forbearance from execution of an act or an obligation, with respect to every party involved in the contract, is termed as bilateral contract in the language of law. A unilateral contract is a promise made by only one party.

Aleatory Contracts y A mutual agreement which comes into effect only in case of an occurrence of an uncertain event or a natural calamity, is termed as an aleatory contract. Unconscionable Contracts y Unconscionable contracts are those that are unfair and unduly one-way favors of the party who stand at a superior end of the bargaining power.

Adhesion Contracts
y Adhesion

contracts are the ones that are drafted by a party who has a larger advantage in bargaining. This means that the party who has a bargaining advantage leaves the other party with no other option than to either accept the contract or to reject it.

Void and Voidable Contracts

y A void

contract implies that the involved parties are not liable to any legal obligations or rights, meaning that the parties are not legally bound with reference to that contract. y A voidable contract, on the other hand, is an agreement between any two or more parties, that has a legal binding.