Professional Adjustment (2)

NURSING JURISPRUDENCE- department of law which comprise all legal rules and principles affecting the practice of nursing. NURSING LEGISLATION - the making of laws, or the body of laws already affecting the practice of nursing. LAW - a rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong. LEGAL RIGHT - a claim which can be enforced by legal means against a person whose duty is to respect it.

COURT MECHANISMS

LAWSUIT- proceeding in court for a purpose. Purpose: 1. to enforce a right 2. to redress a wrong

PARTIES TO CASES: Civil case- Complainant/ defendant Criminal case- Plaintiff/ accused STATUTE OF LIMITATIONS - the length of time following the event during which the plaintiff may file a suit. Example: negligence- filed within 2-3 years from occurrence. DUE PROCESS - is a fair and orderly process which aims to protect and enforce a person’s right. FUNDAMENTAL REQUIREMENTS OF DUE PROCESS: 1. Right to be informed 2. Right to remain silent 3. Right to a competent counsel 4. No use of violence, threat, torture PRE-TRIAL- eliminate matters not in dispute, agree on issues or settle procedural matters. TRIAL- facts are presented and determined; law applied at the end. SUMMONS- is a writ commanding an authorized person to notify a party to appear in court to answer a complaint made against him. WARRANT- presented by an arresting officer SUBPOENA- is an order that requires a person to attend at a specific time and place to testify as a witness. SUBPOENA DUCES TECUM- is a subpoena that requires a witness to bring documents/ papers in his possession. WITNESS- person giving necessary details NURSES AS WITNESS: could not divulge PRIVILEGED COMMUNICATION in a civil case- means that the nurse is incompetent to testify on the communications made to him by the patients, all the device given and all the information gathered by observation during the seal of secrecy. Exceptions: 1. criminal case 2. with the patient’s consent 3. patient sued doctor for damages TESTIMONIES OF FACTS- factual information no opinion unless an expert witness ______________________________________________________________

PERJURY- is the willful telling of a lie under oath. HEARSAY EVIDENCE- rumors, not admissible in evidence DYING DECLARATION or ANTEMORTEM STATEMENTS- considered hearsay unless the dying person is a victim of a crime. APPEALS- review of the case by appellate court and when decided by it, the final judgment results and matter is ended. EXECUTION OF JUDGMENT - failure to comply means contempt of court FELONIES - acts or omissions punishable by law. ELEMENTS OF FELONY: 1. Deceit-( dolo) 2. Fault-(culpa) - due to imprudence, negligence or lack of foresight/ skill STAGES OF FELONIES: 1. Consummated - all elements executed, with successful result 2. Frustrated - all elements executed but no successful result 3. Attempted - not all elements executed, no successful result CLASSIFICATION OF PERSONS CRIMINALLY LIABLE: 1. PRINCIPAL a. by direct participation- doer of the act b. by inducement-directly force or induce others c. by cooperation- indispensable 2. ACCOMPLICE - a person who cooperates - “ accessory before the fact”- absent at the time crime is committed. 3. ACCESSORY - “ accessory after the fact” a. Profits b. Conceals/ destroys evidence c. Assists in the escape of the principal

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY JUSTIFYING CIRCUMSTANCES  SELF-DEFENSE – Unlawful aggression – Reasonable necessity – Lack of sufficient provocation  Fulfillment of Duty  Obedience to an order from superior – Order must be lawful – Superior acting within the scope of practice

EXEMPTING CIRCUMSTANCES  Insane/imbecile  Performance of a lawful act causes injury by mere accident  Under 9 y/o  Under compulsion of uncontrollable force ______________________________________________________________

 Under impulse of uncontrollable fear  Failure to perform an act required by law when prevented by some lawful cause MITIGATING CIRCUMSTANCES  Under 18y/o or over 70 y/o  No intention to commit so grave a wrong  Sufficient provocation/threat preceding the act  Immediate vindication of a grave offense  Voluntary surrender  Deaf & dumb/ with physical defect  Suffer from such illness that diminishes willpower AGGRAVATING CIRCUMSTANCES  Treachery/taking advantage of superior strength or position  Price, reward, promise  Use of fire, poison, explosion  Calamities  Craft, fraud or disguise employed  Evident Premeditation  Cruelty ALTERNATIVE CIRCUMSTANCES - may increase/ decrease criminal liability depending on the nature and effects of the crime Relationship Intoxication Degree of instruction/ education PHYSICAL INJURIES 1. Serious Physical Injuries 2. Less Serious Physical Injuries 3. Slight Physical Injuries ROBBERY - anyone who gets the personal property of force,violence or intimidation.

another with the use of

THEFT -anyone who gets the personal property of another without the latter’s permission. ASSAULT - imminent threat of harmful/ offensive body contact BATTERY - intentional, unconsented touching of another person. INFANTICIDE – crime committed of person killed is age < 72h or <3days old PARRICIDE – killing of a person with relationship, ex. Bro in-law, sis, - relative HOMICIDE – killed a person to whom you have no relationship- product of negligence. MURDER – killing of a person with intension. ILLEGAL DETENTION/ FALSE IMPRISONMENT - deprive another of his freedom of movement or space. SIMULATION OF BIRTH 1. Pretend that a woman gave birth 2. Substitution or exchanging of babies in the nursery 3. intentionally putting wrong information in the birth registration form DEFAMATION- 1. Slander- oral 2. Libel- written ______________________________________________________________

3. INVASION OF PRIVACY - the right to be left alone, free from unwarranted publicity, right to live one’s life. Nurses are liable if they divulge any information from patient’s chart to improper or unauthorized persons. MISDEMEANOR - an act less than a felony. GUIDELINES TO PREVENT CRIMINAL LIABILITY: 1. Be very familiar with the Philippine Nursing law 2. Be familiar with the laws affecting nursing practice 3. Know agency rules, regulations, policies 4. Upgrade skills and competence 5. Develop good relationship with co-workers 6. Consult superior as needed 7. Verify vague/ erroneous orders 8. Always keep doctor updated regarding patient 9. Ensure accurate recording and reporting 10. Get informed consent 11. Do not delegate responsibilities to others LEGAL CONSIDERATIONS IN CHARTING: 1. Don’t tamper with medical records- adding, rewriting and destroying original record 2. Observe agency’s standards on documentation  complete, concise, specific, use standard abbreviation TIPS FOR AVOIDING LEGAL PITFALLS: 1. Patient Falls – do proper assessment – appropriate assistance – use protective measures – document all nursing interventions 2. Medication errors  observe 7 R’s of drug administration  Check dr’s order  Understand the medication you will administer  Consult drug handbook/ pharmacy  Not exempt from liability for following Doctor’s order 3. Equipment injuries  refuse to use a device not know how to operate  report adverse events to superiors  monitor patient regularly  bring questionable orders to the attention of the doctor or superior 1. Failure to communicate  promptly report changes in the patient’s symptoms and signs of distress to the Dr  proper documentation of all assessments and telephone conversations with the Dr NURSES AND CONTRACTS CONTRACT- agreement between at least two parties which create an obligation recognized by law. ELEMENTS OF A VALID CONTRACT: 1. given freely/ voluntarily- no coercion/ pressure 2. competent parties- 18 yrs old, sound mind 3. lawful object- within the bounds of law 4. valid consideration- has monetary value ______________________________________________________________

ESSENTIAL REQUISITES: 1. Consent 2. Object certain 3. Cause of the obligation TYPES OF CONTRACT: 1. Implied- terms are inferred from actions of contracting parties. 2. Expressed- verbal/ written, terms are specified/ given at the time the contract is made. 3. Void or inexistent- inexistent from the very beginning therefore may not be enforced. Ex: contrary to law. 4. Illegal - expressly prohibited by law like obtained through fraud, undue influence or duress. 5. Voidable/annullable- one of the parties is incapable of giving consent 6. Formal- agreement among parties and is required to be in writing by special laws. Ex: marriage, Deed of Sale 6. Informal- concluded as a result of a written document where the law does not require the same to be in writing. BREACH OF CONTRACT- failure without legal excuse to perform any promise which forms the contract. The following constitute breach of contract for nursing service: 1. Prevention of performance 2. Failure of performance because of inconvenience or difficulty 3. Abandonment of duty 4. Substitution of performance LEGAL EXCUSES IN REFUSING OR FAILURE TO PERFORM A CONTRACT: 1. Discovery of material misrepresentation 2. Where performance will be illegal 3. Impossible by reason of illness 4. Impossible by death of patient or nurse 5. Made for other reasons 6. Contract is insufficient WILL - an act whereby a person is permitted with formalities of law to control to certain degree the disposition of a state to take effect after his death. DECEDENT- person whose property is transmitted through succession. TESTATOR- a decedent who left a will HEIR- a person called to succession TYPES OF SUCCESSION: 1. Testate- a person dies leaving a will. 2. Intestate- a person dies without leaving a will. TWO KINDS: 1. Notarial will- acknowledged before a notary public, with attestation clause 2. Holographic will- entirely written, dated and signed in the handwriting of the testator WHO MAKES WILLS: 1. those not expressly prohibited by law 2. 18 yrs old 3. sound mind WHO COULD BE WITNESSES: 1. sound mind ______________________________________________________________

2. 18 and above 3. not blind, deaf or dumb 4. able to read and write NURSE’S OBLIGATION IN THE EXECUTION OF A WILL: 1. Note the soundness of client’s mind and to ensure that there is freedom from fraud/ undue influence. 2. Note that the will is signed by the testator. 3. Note that the witnesses shall be present at the time and sign in the presence of testator. GIFTS MORTIS CAUSA - disposing of gifts by a person in anticipation of death/ belief in approaching death. LIMITATIONS: 1. limited to personal properties 2. acceptance by the recipient 3. gifts are revocable and subject to the claims of creditors without proof of intent of defrauding them

NEGLIGENCE AND MALPRACTICE NEGLIGENCE - an act of omission or commission CRIMINAL NEGLIGENCE 2 TYPES: 1. RECKLESS IMPRUDENCE- A person does an act or fails to do it voluntarily but without malice from which material damage results immediately. 2. SIMPLE IMPRUDENCE- the person or nurse did not use precaution and the damage was not immediate or impending danger was not evident or manifest. 3 ESSENTIAL CONDITIONS FOR ACTIONABLE NEGLIGENCE: 1. Existence of a duty 2. Failure to perform that duty 3. Injury resulting from such failure DOCTRINES UNDER NEGLIGENCE: 1. Doctrine of “Res ipsa Loquitur” – “the thing speaks for itself” Three Conditions required: 1. The injury was of such nature that it would not normally occur unless there was a negligent act; 2. That the injury was caused by an agency within the control of the defendant; 3. That the plaintiff did not engage in any manner that would tend to bring about the injury. * If all present, NO FURTHER PROOF REQUIRED Examples: - Negligence resulting to injury to a delirious patient - Liability for sponge left in the patient’s abdomen 2. Doctrine of “ Respondeat Superior” – “ captain of the ship doctrine”; principal answers for the acts of its agents Example: Liability of a surgeon as head of the team in the operating room 3. Force Majeure - Act of God; fortuitous event MALPRACTICE - any professional misconduct - unreasonable lack of skill ______________________________________________________________

- objectionable practice - practice contrary to established rules  IF PROVEN 1. Criminal liability 2. Damages 3. Ground for suspension or revocation of license

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