Legal Concepts And Issues In Nursing Lect Hand Outs

LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

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 property. ELEMENTS OF PROFESSIONAL NEGLIGENCE 1. Existence of a duty on the part of the person charged to use due care under circumstances 2. Failure to meet the standard of due care 3. The foreseeability of harm resulting from failure to meet the standard 4. The fact that the breach of this standard resulted in an injury to the plaintiff 5. Errors due to family assistance 6. Administration of medicine without a doctor’s prescription

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. Failure to report observations to attending Physicians

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

2. Failure to exercise the degree of diligence which the circumstances of the particular case demands 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 patients

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 contribution on the part of the plaintiff (injured party)

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

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

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 answer for the acts of his agent”

the principal

 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 which the accident arose, the servant was representing the master at the time 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 laparotomy pack is left in a patient’s abdomen

case

a

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

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

LIABILITY OF NURSES FOR THE WORK OF NURSING AIDES  Nursing aides perform selected nursing activities under the direct supervision of nurses. They usually given onjob-training by the Training staff. Their responsibilities usually pertains to the routine care of chronically ill patients. They are therefore responsible for their own actions. 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. GUIDELINES TO AVOID MISTAKES OF NURSING STUDENTS 1. Nursing students should always be supervision of their clinical instructors

under

the

2. They should be given assignments that are at their level of training , experience, and competency 3. They should be advised to seek guidance especially if they are performing procedure for the first time 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 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 solutions may be provided.

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

LEGAL DEFENSE IN NEGLIGENCE  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  If the patient’s careless conduct contributes to his own injury, the patient cannot bring suit against the nurse.

MEDICAL ORDERS, DRUGS, AND MEDICATIONS  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 requires that the drugs be written in their generic names.

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 -

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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

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

administratively under sec 21 Art III or both (whether causing or not an injury or death to the patient) SCOPE OF DUTIES AND RESPONSIBLITIES IN IV THERAPY 1. Interpretation of the doctor’s orders for IV therapy 2. Performance of venipuncture, insertion cannulas except TPN and cutdown

of

needles,

3. Preparation, administration, monitoring and termination of intravenous solutions such as additives, intravenous medications, and intravenous push 4. Administration of blood/blood products as ordered by the physicians 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 of intravenous equipment 9. Nursing management of total parenteral nutrition, outpatient 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.

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

Telephone Orders  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”

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Nature of consent- an authorization by the patient or a person authorized by the law to give the consent on the patient’s behalf.

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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

 The 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.

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

ESSENTIAL ELEMENTS OF INFORMED CONSENT: 1. The diagnosis and explanation of the condition 2. A fair explanation of the procedures to be done and used and the consequences 3. A description of alternative treatments or procedures 4. A description of the benefits to be expected 5. Material rights if any 6. The prognosis, the recommended care, procedure is refused

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 in his own behalf. 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

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

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 competency

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 concerned.

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 to submit to treatment. 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 placentae, consent from patient is sufficient. 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

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

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 not done or observed” 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 nonobservable and non-discoverable defect in the equipment. 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 order and public policy. 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 under the doctrine of “facio ut des” means I do that you may give.  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

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LSU BSN 4 – Leininger

CI: Mr. Dennis Montemor, RN

 Those obtained under duress  Those obtained under undue influence  Those obtained through material misrepresentation INTENTIONAL 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

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