Jurisprudence

NCM 105 – Nursing Jursiprudence Ailyn B. Pineda Lecturer

LEGAL CONCEPTS AND ISSUES IN NURSING

RESPONSIBILITY AND ACCOUNTABILITY FOR THE PRACTICE OF PROFESSIONAL NURSING 

Nurses employed in an agency, institution or hospital are directly responsible to their immediate supervisors. Private duty nurses, being independent practitioners, are held to a standard of conduct that is expected of reasonable prudent nurse

WHAT IS LIABILITY?  Is

an obligation or debt that can be enforced by law. A person who is liable for malpractice is usually required to pay for damages. Damages refer to compensation in money recoverable for a loss of damage.

PROFESSIONAL NEGLIGENCE  “NEGLIGENCE”

refers to the commission or omission of an act, pursuant to a duty, that a reasonably prudent person in the same or similar circumstance would or would not to, and acting or the non-acting of which is the proximate cause of injury to another person to his

ELEMENTS OF PROFESSIONAL NEGLIGENCE 1.

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Existence of a duty on the part of the person charged to use due care under circumstances Failure to meet the standard of due care The foreseeability of harm resulting from failure to meet the standard The fact that the breach of this standard resulted in an injury to

Errors due to family assistance 2. Administration of medicine without a doctor’s prescription 1.

THE DOCTRINE OF RES IPSA LOQUITUR  “The

thing speaks for itself” When the harm that resulted from negligence and the responsibility for the harm are clear that anyone would agree on it, the term res ipsa loquitur is used

SPECIFIC EXAMPLES OF NEGLIGENCE 1. 2.

3. 4. 5.

Failure to report observations to attending Physicians 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 Defects in the equipment such as stretchers and wheelchairs may lead to falls

CONDITIONS THAT ARE NECESSARY FOR THE APPLICATION OF THE DOCTRINE:

1. The accident must be a kind which ordinarily does not occur in the absence of someone’s negligence 2. The accident must be caused by an agency or instrumentality within the exclusive control of the defendant 3. The accident must not have been due to any voluntary action or

MALPRACTICE  Implies

the idea of improper or unskillful care of a patient by a nurse. It also denotes stepping beyond one’s authority with serious consequences

EXAMPLES OF MALPRACTICE: Misdiagnosis of an illness, failure to diagnose or relay diagnosis  Birth Injuries  Surgical Complications  Prescription errors  Failure to provide treatment  Anesthesia related complications  Failure to follow advance directive  Failure of hospital or pharmacy to dispense the right medicine, dosage 

DOCTRINE OF FORCE MAJEURE 

It is an irresistible or superior force, one that cannot be foreseen or prevented; a fortuitous event, and “act of God”. No person shall be held liable for nonperformance of what was expected of him/her if the cause of the nonperformance was a force majeure (e.g. devastating typhoons, earthquakes and other calamities)

DOCTRINE OF RESPONDEAT SUPERIOR Means “let the superior answer; let the principal answer for the acts of his agent”  The doctrine is founded on the principle that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it. The doctrine rests upon the proposition that, in doing the acts out of 

EXAMPLES: The hospital will be held liable, if, in an effort to cut down on expenses it decides to hire underboard nurses or midwives in place of professional nurses, and these persons prove to be incompetent  The surgeon will be held responsible in case a laparotomy pack is left in a patient’s abdomen 

INCOMPETENCE Is the lack of ability, legal qualifications or fitness to discharge the required duty  Although a nurse is registered, if in the performance of her duty she manifests incompetency, there is ground for revocation or suspension of her certificate of registration 

LIABILITY OF NURSES FOR THE WORK OF NURSING AIDES  Nursing

aides perform selected nursing activities under the direct supervision of nurses. They usually given on-job-training by the Training staff. Their responsibilities usually pertains to the routine care of chronically ill patients. They are therefore responsible for their own

LIABILITY FOR THE WORK OF NURSING STUDENTS  Under

the Philippine Nursing Act of 2002 R.A. 9173, nursing students do not perform professional nursing duties. They are to be supervised by their clinical instructors.

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GUIDELINES TO AVOID MISTAKES OF NURSING STUDENTS Nursing students should always be

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 procedure for the first time

5. Their performance should be assessed frequently to determine their strengths and weaknesses 6. Frequent 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

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LEGAL DEFENSE IN NEGLIGENCE

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  If the patient’s careless conduct contributes to his own injury, the patient cannot bring suit against

MEDICAL ORDERS, DRUGS, AND MEDICATIONS 

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R.A. 6675 states that only validly registered medical, dental, and veterinary practitioners, whether in private institution/corporation or in the government, are authorized to prescribe drugs. In accordance with R.A. 5921, or the pharmacy Act as amended, all prescriptions must contain the following information: name of the prescriber, office address, professional registration number, professional tax receipt number, patient’s/client’s name, age, and sex, and date of prescription. R.A. 6675

IV Therapy and Legal Implications

Philippine Nursing Act of 1991 Section 28 states that in the administration of

intravenous injection, special training shall be required according to protocol established Board of Nursing Resolution No. 8 states that without such training and who administers intravenous injections to patients shall be held liable either criminally under Sec 30 Art. VII of said law or administratively under sec 21 Art III

SCOPE OF DUTIES AND RESPONSIBLITIES IN IV THERAPY 1. 2.

3.

4.

Interpretation of the doctor’s orders for IV therapy Performance of venipuncture, insertion of needles, cannulas except TPN and cutdown Preparation, administration, monitoring and termination of intravenous solutions such as additives, intravenous medications, and intravenous push Administration of blood/blood products

5. Recognition of solutions 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

9. Nursing management of total parenteral nutrition, out-patient intravenous care 10. Maintenance of established infection control and aseptic nursing interventions 11. Maintenance of appropriate documentation, associated with the preparation, administration and termination of all forms of intravenous therapy.

Telephone Orders 

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Doctors should limit telephone orders to extreme emergency where there is no alternative. The use of telephone in a non emergency as a substitute for the physician himself can lead to serious error and may border on malpractice. Nurse should read back such order to the physician to make certain the order has been correctly written. Such order should be signed by the physician within 24 hours The nurse should sign the physician’s name per her own and note the time and order was received

CONSENT TO MEDICAL AND SURGICAL PROCEDURE

Consent is defined as a “ 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- an authorization by the patient or a person authorized by the law to give the consent on the patient’s behalf.  Informed 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 

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nurse’s responsibility in witnessing the giving of informed consent involves:  (1) witnessing the exchange b/w the client and the physician (2) witnessing the client affix his signature (3) establishing that the client really understood.

ESSENTIAL ELEMENTS OF INFORMED CONSENT:

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The diagnosis and explanation of the condition A fair explanation of the procedures to be done and used and the consequences A description of alternative treatments or procedures A description of the benefits to be expected Material rights if any

WHO MUST CONSENT? Patient must consent in his own behalf If he is incompetent, or physically unable, and is not in emergency case, consent must be taken from another who is authorized to give it

CONSENT OF MINORS Parents or someone standing in their behalf, gives the consent to medical or surgical treatment of a minor. Parental consent is not needed if the patient is married or emancipated

CONSENT OF MENTALY ILL A mentally incompetent person cannot legally consent to medical or surgical treatment. The consent must be taken from parents or legal guardian

MENTAL COMPETENCY  All

patients are presumed to be competent unless declared incompetent by a court of law. Supporting documentation of the patient’s behaviors, speech, decision making and physical and mental status are very useful in establishing his/her mental

EMERGENCY SITUATION No consent is necessary because inaction at such time may cause greater injury. If time is available and an informed consent is possible, it is best that this be taken to protect all the parties

REFUSAL TO CONSENT A patient who is mentally and 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, nor how imminent the danger to his life or health if he fails

CONSENT FOR STERILIZATION Sterilization is the termination of the ability to produce offsprings. The husband and the wife must consent to the procedure if the operation is primarily to accomplish sterilization. If emergency cases like ectopic pregnancy and abruptio

MEDICAL RECORDS Was created as a means of communication among health care practitioners. Today medical records serve two important functions: to provide legal documentation, and obtain third party payments (e.g. Medicare) They are good evidence in legal suits but are not admissible evidence against the patient.  “ If information is not charted, it was 

CHARTING DONE BY NURSING STUDENTS

LEGAL RISKS FOR SAFETY EQUIPMENT The nurse should exercise reasonable care in selecting equipment to be used in patients. Generally, a nurse is not liable for a non-observable and nondiscoverable defect in the

WHAT IS A CONTRACT?  Is

a meeting of minds between two persons where they bind themselves to give something or to render some services. Practically anything could be subjected to a contract as long as these are not contrary to law, morals, good customs, public

Kinds of Contracts Formal Contracts- refers to an agreement b/w parties and is required to be in writing. E.g. marriage contracts  Informal Contracts- one in which concluded as the result of a written document where the law does not require the same to be in writing.  Express Contracts- The one in which the conditions and terms of contract are given orally or in writing by the parties concerned. E.g. PDN 

Implied Contracts- one that is concluded as a result of acts of conduct of the parties to which the law ascribes an objective intentions to enter into a contract.  Void contracts- one that is inexistent from the very beginning and therefore may not be enforced.  Illegal contracts- one that is expressly prohibited by law 

Illegal Contracts  Those

that are made in protection of the law  Consent obtained by fraud  Those obtained under duress  Those obtained under undue influence  Those obtained through material misrepresentation

INTENTIONA L WRONGS A nurse may be held liable for intentional wrongs

TORTS A

tort 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. A person who has been wronged seeks compensation for the injury or wrong he has suffered from the wrong doer.

EXAMPLES OF TORT: ASSAULT AND BATTERY. Assault is a unjustifiable attempt to touch another person or even the threat of doing so while Battery is the actual carrying out of the threatened physical contact  DEFAMATION of character occurs where a person discusses another individual in terms that diminish reputation. Libel is written defamation. Slander is oral Defamation 

FALSE IMPRISONMENT Is the infringement of upon an individual’s freedom of movement. It is making someone wrongfully feel that he or she cannot leave the place.  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 

USE OF RESTRAINTS

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Restraints should be used with caution and discretion. All patients should have the right to independence and freedom of movement. Restraints require a physician’s order. If a patient or his legal guardian refuses to be restrained, this should be documented in the patient’s medical record.

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INVASION OF RIGHT TO PRIVACY AND BREACH OF CONFIDENTIALITY

The right to privacy is the right to be left alone, the right to be free from unwarranted publicity and exposure to public view as well as the right to live one’s life without having anyone’s name, picture or private affairs made public against one’s will. Nurses may become liable for invasion of right to privacy if they divulge information from a patient’s chart to improper sources or

DEFAMATION 

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Occurs when a person discusses another individual in terms that diminish reputation. SLANDER- is oral defamation of a person by speaking unprivileged or false words by which his reputation is damaged LIBEL- is defamation by written words, cartoons or such representations that cause a person to be avoided, ridiculed

CRIMES, MISDEMEANORS, AND FELONIES

 CRIME

is defined as an act committed or omitted in violation of the law. Criminal offenses are composed of two elements: (1) Criminal Act (2) Evil/criminal intent  In criminal action, the state seeks the punishment of the wrongdoers

Conspiracy to commit a crime 

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Principals- 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- are those who, not being principals, cooperate in the execution of the offense by previous and simultaneous act. Accessories- are those who, having the knowledge of the commission of the crime. Assisting the offender to profit from the crime either by disposing the body, concealing or assisting in escape of the principal of the crime.

Criminal Actions Deal with acts or offenses against public welfare.  Misdemeanor- a general name for criminal offense which does not in law amount to felony.  Felony- a public offense for which a convicted person is liable to be sentenced to death or be imprisoned in a penitentiary or prison. It is committed with deceit and fault. 

Criminal Negligence  Reckless

Imprudence- when a person does an act or fails to do involuntary without malice, from which damage results immediately.  Simple Imprudence- means that the person or nurse did not use precaution and the damage was not immediate or the impending danger was not

Criminal Intent 

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Is the state of mind of a person at the time the criminal act is committed, that is, he/she knows that an act is lawful and still decided to do it anyway. Deliberate intent includes two other elements without which there can be no crime. These are freedom and intelligence. When a person accused of the crime offers evidence showing insanity, necessity, compulsion, accident, or infancy the court will decide if he did not commit a criminal offense and will declare the person not guilty.

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Classes of Felonies

Felonies are classified according to degree of the acts of execution 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. Attempted- when the offender commences the commission of the same directly by overt acts, and does not perform the acts which shall produce the felony. Consummated felonies as well as attempted and frustrated are all punishable by law.

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Felonies according to degree of punishment

Grave Felonies- are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive. (imprisonment ranging from 6 yrs and 1 day with fine not exceeding P6,000) Less Grave Felonies- are those which the law punishes with penalties which in their maximum period are correctional (imprisonment ranging from 1 month and 1 day to 6 yrs or fine not exceeding 6,000 but not below 200) Light Felonies- are those infractions of law for the commission of which the penalty of “arresto menor” (imprisonment for 1 day to 30 days or a fine not exceeding 200 or both of which are

Circumstances Affecting Criminal Liability PREPARED BY: ailyn brillo pineda

Circumstances affecting Criminal Liability

J-E-M-A-A

Circumstances affecting Criminal Liability 

Justifying Circumstances SELF-DEFENSE These are the defenses in which the accused is deemed to have acted in accordance with the law and therefore the act is lawful. Since the act is lawful, it follows that there is no criminal, no criminal

Justifying Circumstances A person may not incur criminal liability under the following circumstance:  There is no mens rea or criminal intent  The circumstances pertain to the act and not to the actor. Hence all who participated in the act will be benefited. Thus if the principal is acquitted there will be no accomplices and accessories.  These apply only to intentional felonies, not to acts by omissions or to culpable felonies or to violations of special laws  When he acts in defense of his rights  When he acts in defense of his relatives rights  When he acts in defense of a strangers rights and that the person defending is not induced by revenge or evil motives.  When any person who, in order to avoid an injury does an act which causes damage to another provided that an evil sought to be avoided actually exists.

Circumstances affecting Criminal Liability 

ExemptingCircumstan ces These are defenses where the accused committed a crime but is not criminally liable. There is a crime, and there is civil liability  but

Exempting Circumstances There are certain circumstances under which the law exempts a person from criminal liability  The basis is the lack of any of the elements which makes the act/omission voluntary, i.e. freedom, intelligence, intent or due care.  These defenses pertain to the actor and not the act. They are personal to the accused in whom they are present and the effects do not extend to the other participants. Thus if a principal is acquitted, the other principals, accessories and accomplices are still liable.  They apply to both intentional and culpable felonies and they may be available in violations of special laws.  An imbecile or an insane person, unless the latter has acted during a lucid interval  A person under nine years of age  A person over nine years of age and under fifteen unless he acted with discernment.  A person while performing a lawful act with due care causes an

MITIGATING CIRCUMSTANCES Are those which do not constitute justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability. 2. Circumstances which are otherwise justifying or exempting were it not for the fact that all requisites necessary to justify the act or to exempt the offender from criminal liability in the respective cases are not attendant 3. When the offender has no intention to commit so grave a wrong as the one committed 

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When sufficient provocation or threat on the part of the offended party immediately precedes the act When the act is committed in the immediate vindication of a grave offense to the one committing the felony, his/her spouse, ascendants, descendants, legitimate, natural or adopted brothers, or relative by affinity within the same degree When a person acts upon an impulse so powerful as naturally to have produced an obfuscation When the offender voluntarily surrenders himself to a person in authority or confesses before the court prior to the presentation of

AGGRAVATING CIRCUMSTANCES Are those attending the commission of a crime and which increase the criminal liability of the offender or make his guilt more severe. 2. When the offender takes advantage of his public position 3. When the crime is committed in contempt of or with insult to public authorities 4. When the act is committed with insult or disregard of the respect of the offended party on account of his rank, age, sex 

AGGRAVATING CIRCUMSTANCES

4. When the act is committed with abuse or confidence or obvious ungratefulness 5. when a crime is committed in a place of worship 6. When the crime is committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune 7. When the crime is committed in consideration of a price, reward or promise 8. When the crime is committed by means

AGGRAVATING CIRCUMSTANCES 9. When the act is committed with evident premeditation or after unlawful entry 10. When craft, fraud, or disguise is employed when the wrong done in the commission of the crime is deliberately augmented by causing

ALTERNATIVE CIRCUMSTANCES  those

which may either be appreciated as mitigating or aggravating according to the nature and effects of the crime and other conditions attending its commission.

LACK OF EDUCATION IS NOT MITIGATING IN: 1. 2. 3. 4. 5. 6.

Rape Forcible abduction Arson Treason In crimes against chastity like seduction and acts of lasciviousness Those acts committed in a merciless or heinous manner

MORAL TURPITUDE  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

MURDER - is the unlawful killing of a human being with intent to kill. It is a very serious crime. Nurses should keep in mind that death resulting from a criminal abortion is murder. Euthanasia is also considered murder.

HOMICIDE - is the killing of a human being in another. It may be committed without criminal intent, by any person whom kills another, other than his father, mother, or child or any of his ascendants or descendants, or his spouse, without any of the circumstances attendant the crime of murder

ABORTION - is illegal according to the revised penal code. The patient should assume responsibility for her abortion. She should be made to sign a statement relieving the hospital and its personnel from liability

INFANTICIDE- IS THE KILLING OF A CHILD LESS THAN THREE DAYS OF AGE. The mother of the child who commits this crime shall suffer penalty of imprisonment ranging from two years and four months and 1 day to 6 years  PARRICIDE- is a crime committed by one who kills her/his father, mother or child whether legitimate or illegitimate, or any of his/her ascendants or descendants or his/her spouse.  ROBBERY- is a crime against a person or 

CONTROLLED SUBSTANCES R.A. 6425 known as the Dangerous Drug Act of 1972 covers the administration and regulation of the manufacture, distribution, dispensing of controlled drugs.  Persons authorized to prescribe or dispense these drugs are required to register and have a special license for this purpose 

POINTS TO OBSERVE IN ORDER TO AVOID CRIMINAL LIABILITY

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Be very familiar with the Philippine Nursing Law Beware of laws that affect nursing practice At the start of employment, get a copy of your job description, the agency’s rules, regulations and policies Upgrade your skills and competence Accept only such responsibility that is

6. Do not delegate your responsibility to others 7. Determine whether your subordinates are competent in the work are assigning them 8. Develop good interpersonal relationships with your co-workers, whether they be your supervisors, peers, or subordinates 9. Consult your superiors for problems that may be too big for you to handle 10. Verify orders that are not clear to you

11. The doctors should be informed about the patient’s condition 12. Keep in mind the value and necessity of keeping accurate and adequate records 13. Patients are entitled to an informed consent

WILLS It is a legal declaration of a person’s intentions upon death.  It is called testamentary document because it takes effect after the death of its maker  DECEDENT- a person whose property is transmitted through succession whether or not he left a will. If he left a will he is called a TESTATOR. If a woman TESTATRIX  HOLOGRAPHIC WILL- a will that is 

HEIR is a person called to succession either by the provision of a will or by operation of law  There should be a witness who knows the handwriting and signature of the testator explicitly declares that the will and the signature are in the handwriting of the testator  ORAL WILL is also called as NUCUPATIVE WILL or NUNCUPATION it is during the last illness, that it is done in the place in which a he dies, that he asked one or 

NURSE’S OBLIGATION IN THE EXECUTION OF A WILL The nurse should note the soundness of the patient’s mind and that there was free from fraud or undue influence and that the patient was above 18 years or of age .  The patient should write that the will was signed by the testator, that the witnesses were all present at the same time and signed the will I the presence of the testator 

LIVING WILL  Is

an individual’s signed request to be allowed to die when life can be supported only mechanically or by heroic measures.  It also includes the decision to accept or refuse any treatment, service or procedure used to diagnose or treat his/her physical or mental condition and

ADVANCE DIRECTIVE & HEALTH CARE PROXY The patient designates a health care representative, usually a member of the family, a friend or a family physician to make decisions for him/her when he/she is unable, due to physical or mental incapacity, accept or refuse treatment, service or procedure used to diagnose or treat his/her physical or mental condition and decisions to provide, withhold or withdraw life sustaining measures

WHAT SHOULD A NURSE REMEMBER ABOUT WILLS? 

A nurse especially those taking care of well-to-do patients should remember that the main requisite for making a will is testamentary capacity or sanity. The person who makes a will should at least be 18 years old and is not prohibited by law. The will is written and should be witnessed by three credible witnesses, unless it is holographic will. A Holographic will is one that is entirely written, dated and signed by hand. There is no legal

WHAT IS AN INCIDENT REPORT

It is an administrative report that is required of nurses if there are violations of standards and policies whether or not injury occurs.  Through incident reports, hospital administration can monitor quality of patient care and institute some measures to prevent similar incidents in the future. 

COMMON LEGAL TERMS THAT A NURSE SHOULD KNOW: 

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Affidavit- is a written statement made under oath before a notary public or other person duly authorized Contempt of Court- is the willful disobedience to, or open disrespect for, the rules of court Defendant- the person being accused of a wrongdoing; the therefore needs to defend themselves Day in court- the right of a person to

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Due process- is fair and orderly process which aims to protect and enforce a person’s rights False Testimony- is punishable both criminal and civil law Hearsay Evidence- is evidence that is derived from something the witness heard from others Inquest- is the legal inquiry into the cause or manner of a death Perjury- is the willful telling of a lie under oath Plaintiff- the person who files the lawsuit and is seeking for a perceived wrongdoing

Prima facie Evidence- evidence, which if unexplained or uncontradicted would establish the fact alleged  Privileged Communication- statements uttered in good faith. These are not permitted to be divulged in court justice.  Statute of Limitations- define the length of time following the event during which the plaintiff may file the lawsuit  Subpoena- is an order that requires a person to attend at a specific time and place to testify as witness 

Subpoena Duces Tecum- is a subpoena that requires a witness to bring required papers/ documents and the like which may be in his possession  Summons- is a writ commanding an authorized person to notify a party to appear in court to answer a complaint made against them  Warrant- is writing from a competent authority in pursuance of law, directing the doing of an act, and addressed to a person competent to do it 

GOD BLESS!!! THE END