legal aspect in edit)

8/6/2019 Legal Aspect in Edit)

1/79

LEGAL ASPECTSLEGAL ASPECTS

AND THE NURSEAND THE NURSE


2/79

MALPRACTICE ANDMALPRACTICE AND

NAGLIGENCE ACTNAGLIGENCE ACTMALPRACTICE

yMeans that you DID something

wrong that you should haveknown was wrong.

yThe failure of a person with

professional training to act inreasonable and prudent manner.


3/79

NEGLIGENCEy 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 notdo.

>reasonable and prudent the average

judgment , foresight, intelligence, andskills that would be expected of a person

with similar training and experience.


4/79

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. Notify the physician.

b. Make an incident report.

c. Attend to the patient first.

d. Pick up the peel of banana first.


5/79

ELEMENTS OFELEMENTS OF

PROFE

SSIONAL

PROFE

SSIONAL

NEGLIGENCE :NEGLIGENCE :

y The existence of a duty on the part of the

person charged to use due care undercircumstances

y failure to meet the standard of due care

y The foreseeability of harm resulting from

failure to meet the standard


6/79

y The fact that the breach of this standard resulted

in an injury to the plaintiff

y ARTICLE 19

y Civil Code states that one shall act with justice,

give every man his due, observe honesty and goodfaith.

y ARTICLE 20

y states that those who, in the performance of their

obligations through negligence cause any injury to

another, are liable for damages.


7/79

SPECIFICEXAMPLES OFSPECIFICEXAMPLES OF

NEGLIGENCE: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

y Mistaken Identity

y wrong Medicine, wrong concentration, wrong route,

wrong dose


8/79

y Defects in the equipment such

as stretchers and wheelchairsmay lead to falls thus injuring the

patients

y Errors due to Family assistance

y Administration of medicine

without a doctors prescription


9/79

DOCTRINE OFDOCTRINE OF RES IPSARES IPSA

LOQUITURLOQUITURy Res Ipsa Loquitur means the thing

speaks for itselfy injury could not happened if someone

was not negligent that no further proof

is required.


10/79

THREECONDITIONS ARETHREECONDITIONS AREREQUIRED TO ESTABLISH AREQUIRED TO ESTABLISH A

DEFENDANTS NEGLIGENCEDEFENDANTS NEGLIGENCE

WITHOUT PROVING SPECEFICWITHOUT PROVING SPECEFIC

CONDUCTCONDUCT


11/79

that the injury was such of nature that

it would not normally occur unless therewas a negligent act on the part of

someone

that the injury was caused by anagency within control of the defendant

that the plaintiff himself did not engage

in any manner that would tend to bringabout the injury


12/79

DOCTRINE OF FORCE MAJEURE

y The term force majeure means an

irresistible force, one that is or inevitable.

y Under the Civil Code of the Philippines,

no person shall be responsible for those

events which cannot be foreseen, orwhich, though foreseen, are inevitable,

except in cases expressly specified by law.


13/79

DOCTRINE OF RESPONDEAT

SUPERIOR

y The term means let the master answer

for the acts of the subordinate.

y 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.


14/79

Incompetence

yIs the lack of ability, or legal

qualifications and being unfitto discharge the required

duty.


15/79

LIABILITY FOR WORK OF NURSELIABILITY FOR WORK OF NURSE

TRAINEES AND

VOLUTEERSTRAINEES AND

VOLUTEERSy There are thousands of nursing graduateseach year. Ironically, there are not enough

vacancies both in public and private

sectors to accommodate them.

y They flock to hospitals to work as

volunteers or as trainees.


16/79

y These volunteers pay a minimum of P1,000

monthly as training fees.

y They are rotated in the various clinical areas

and under the direct supervision of the nursing

staff in the unit for basic nursing care topatients.

y They train for at least 3 months to 1 year then

apply again as casual or part-time nurses andif lucky, they are taken in as regular staff nurses


17/79

y Opportunities for work abroad often require

experience of at least 1year in hospital, hence

their willingness to volunteer.

y Many hospital take advantage of the situation

though. Instead of hiring replacements for staff

who have resigned, they take in volunteer to save

money.


18/79

LIABILITY OF NURSES FOR THELIABILITY OF NURSES FOR THE

WORK OF NURSING AIDESWORK OF NURSING AIDESy Nursing aides perform selected nursing

activities under the direct supervision of

nurses.

y They are usually given on-the-job training

by the Training Staff

y Their responsibilities usually pertain to

the routine care of chronically ill patient.


19/79

y Nurses should not delegate their functions to

nursing aides since the Philippine Nursing Act

specifies the scope of nursing practice ofprofessional nurses.

y If a nurse delegates her functions to a nursingaide and the latter commits mistake then the

person responsible is the nurse.


20/79

y Nurses are enjoined to supervise their

subordinates and see to it that they

perform only those which they have beentaught to do and those which they are

capable of doing.


21/79

LIABILITY FOR THE WORK OFLIABILITY FOR THE WORK OF

NURSING STUDENTSNURSING STUDENTSPhilippine Nursing Act of 2002 (R.A.

9173)

y Nursing students do not perform

professional nursing duties.

y They are to be supervised by their clinical

instructors.


22/79

y In order that the errors committed by nursing

students will be avoided and/or minimized, the

following measures should be taken:

1. Nursing students should always be under the

supervision of their Clinical Instructors.

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 a procedure

for the first time


23/79

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 williron out doubts and possible solutions may be

provided.


24/79

y Both C.I. and the staff nurse in the clinical area

where nursing students are assigned shouldcoordinate 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.


25/79


26/79

MEDICAL ORDERS,DRUGS, AND

MEDICATIONSRepublic Act 6675

y States that only validly registered medical,dental and veterinary practitioners, whether inprivate institution/corporation or in the

government, are authorized to prescribe drugs.

y Prescription made by unauthorized personsconstitute illegal practice of medicine, dentistryor veterinary medicine and is punishable by R.A.2832 or the Medical Act of 1959, R.A. 4419or the Dental Act, and R.A. 382 or theVeterinary Act.


27/79

R.A.5921 or the Pharmacy Act

y

Amended that all prescriptions must containthe following information:

Name of prescriber

Office address

Professional registration number

Professional tax receipt number

Patients/clients name

Age and sex Date of prescription


28/79


29/79

INTRAVENOUS THERAPY AND

LEGAL IMPLICATIONSPhilippine Nursing Act of 1991 Section 28

y States that in the administrationof IVinjections,

special trainingshall be required accordingto

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 theAssociation of Nursing Service Administrators

of the Philippines.


30/79

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).


31/79

SCOPE OF DUTIES AND

RESPONSIBILITIES IN IV THERAPY

The duties and responsibilities of

nurses in IV therapy include the

following:


32/79

1. Interpretation of the doctors orders for IV

therapy;

2. Performance of venipuncture, insertion of needles,

cannulas except TPN and cutdown;

3. Preparation, administration, monitoring and

termination of IV solution such as additives, IVmedications, and IV push;

4. Administration of blood/blood products as

ordered by physicians;

5. Recognition of solution and medicineincompatibilities;


33/79

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 proficienttechnical 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; and11. Maintenance of appropriate documentation,

associated with the preparation, administration andtermination of all forms of IV therapy.


34/79

TELEPHONE ORDERS

RISKS:

y May be misunderstood or misinterpretedby the receiving nurse.

y Sometimes, message from telephones maysound unclear or garbled.

y Most importantly the handwriting of thenursing physician may be illegible, hissignature is not present and this may laterbe denied in case errors happen or courtlitigations arise.


35/79


36/79

CONSENT TO MEDICAL AND

SURGICAL PROCEDURESy Consent is defined as free and rational act that

presupposes knowledge of the thingtowhich

consent is beinggiven by a personwhois legally

capable togive consent.

y Nature of consent. Consent is an

authorization, by a patient or a person

authorized by law to give the consent on thepatients behalf, that changes touching, for

example, from non-consensual to consensual.


37/79

y Informed Consent. Hayt and hayt state that it

is establishedprinciple of law that every human

beingofadult years andsound mind has the right to

determine what shall be done with hisown body.

y Proof of Consent. A written consent should besigned to show that the procedure is the one

consented to and that the person understands

the nature of the procedure, the risk involvedand the possible consequences.


38/79

yWho Must Consent. Ordinarily, the patient isthe one who gives consent in his own behalf.

However, if he is incompetent or physicallyunable and is not an emergency case, consentmust be taken from another who is authorizedto give it in his behalf.

y Consent of Minors. Parents, or someonestanding in their behalf, give the consent to

medical or surgical treatment of a minor.Parental consent is not needed, however, if theminor is married or otherwise emancipated.


39/79


40/79

y 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.

y Consent for Sterilization. Sterilization is the

termination of the ability to produce

offsprings.


41/79

MEDICAL RECORDS

y The value is both scientific and legal.

y It saves duplication in future cases and aids in

prompt treatment.

y It supplies rich material for medical and nursingresearch.

y It serves as a legal protection for the hospital,doctor, and nurse by reflecting the disease orcondition of the patient and his management.


42/79

Nurses must remember the rule, ifit was

not charted,it wasnot observed and done.


43/79

CHARTING DONE BY NURSING

STUDENTSy 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.

y Anyone who countersigns without

verification commits herself to possiblelegal risks.


44/79


45/79

LEGAL RISKS FOR DEFECTIVE

EQUIPMENTy One important duty of the nurse is to make

sure that the equipment used in the procedures

and treatments is not defective.

y 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.


46/79

y 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.

y Such equipments include Wheel chairs

Stretchers

Suction machines Anesthesia apparatus

X-ray tables


47/79

INTENTIONAL WRONGS

A nurse may be held liable for

intentional wrongs. Intentional

tortous acts may arise in the

performance of her duties.


48/79

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 civilaction.


49/79

Example of torts are:

Intentional torts

are any intentional acts that are reasonablyforeseeable to cause harm to an individual,

and that do so.

Example:

y

Assault imminent threat.y Battery physical contact without

consent.


50/79

y False Imprisonment or Illegal Detention

Means the unjustifiable detention of a person

without a legal warrant within boundaries fixedby the defendant by an act or violation of dutyintended to result in such confinement.

y Invasion ofRight to Privacy and Breachof Confidentiality

Nurses may become liable for invasion of right

to privacy if they divulge information from apatients chart to improper sources orunauthorized persons.


51/79

Defamation

is tarnishing the reputation of someone; it

has two varieties, slanderand libel.

Slander- Oral communication of falsestatements injurious to a person's

reputation.Libel- A false publication, as in writing,

print, signs, or pictures, that damages aperson's reputation.


52/79

CRIMES, MISDEMEANORS, AND

FELONIESy Crime is defined as an act committed or

omitted in violation of the law.

Conspiracy to commit a crimey Exists when 2 or more persons agree to

commit felony and decide to do it.

y Persons who commit felonies are eitherprincipals, accomplices or accessories.


53/79

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 actwithout 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 thecrime, either as principals or accomplices, take part subsequent

to its commission by profiting themselves of assisting theoffender to profit the effects of the crime by concealing ordestroying the body of the crime or assisting in the escape ofthe principal.


54/79


55/79

Criminal Negligence may be classified into:

recklessimprudence 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 damagewas not immediate or the impeding danger was

not evident or manofest.


56/79

Criminal Intent is the state of mind of a person et thetime the criminal act is committed, that is, he/she knowsthat an act is not lawful and still decided to do it anyway.

Classes of Felonies. Felonies are classified according tothe degree ofthe actsofexecutionwhich produces thefelony into:

Consummated when all the elements necessary forits execution and accomplishment are present.

Frustrated when the offender performs all the actsor execution which will produce the felony as aconsequence but which nevertheless, do not produce itby reason of causes independent of the will of theperpetrator.


57/79

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 executionwhich shall produce the felony, by reason of

some cause or accident other than his own

spontaneous desistance.


58/79

Felonies are also classified to the degree ofpunishment:

Grave Felonies

y Capital punishment (death), or

y 6 years and 1 day to life imprisonment, or

y Fine not exceeding P6,000.00

LessGrave Felonies

y Imprisonment ranging from 1 month and 1 day to 6years, or

y A fine not exceeding P6,000.00 but not less thanP200.00


59/79

Light Felonies

yArresto 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.


60/79

CIRCUMSTANCES AFFECTING

CRIMINAL LIABILITYJustifying Circumstancesy When a person acts in defense of his own

rights provided that:

a. There is an unlawful aggression on the part ofthe offended or injured party;

b. There is reasonable necessity for the meansemployed by the person defendinghimself/herself to prevent such aggression;and

c. There is lack of sufficient provocation on thepart of the person defending himself.


61/79

Exempting Circumstances

y The following persons under the circumstances

stated are expressly exempted by law from criminalliability for the crime they may have committed:

a. An imbecile or an insane person, unless the latter has

acted during a lucid interval.

b. A person under 9 years of age.

c. A person over 9 years and under 15 years unless

he/she acted with discernmentd. Any person who acts under the impulse of an

uncontrollable fear of an equal or greater injury.


62/79

Mitigating Circumstances

y Are those which do not constitute justification orexcuse of the offense in question, but which, in

fairness and mercy, may consider as extenuating orreducing the degree of moral culpability.

a. When the offender has no intention to commit so

grave a wrong as the one committed.b. When the offender is under 18 or over 70 years old.

c. When sufficient provocation or threat on the part oifthe offended party immediately precedes the act.

d. When the offender voluntarily surrendershimself/herself.

e. When the offender is physically and mentally disabled.


63/79

Aggravating Circumstances

y Are those attending the commission of the

crime and which increase the criminal liability ofthe 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 crimeand other conditions attending its commission.


64/79

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 actcontrary to the accepted and customary rule of

right and duty between men.


65/79

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 hisspouse, without any of the circumstances above

being present.


66/79

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.


67/79

Robbery

y The taking of personal property of another

person from him or in his presence constitutesrobbery.

Controlled Substancey 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.


68/79

PLAINTIFF (Civil Case)

The injured partyEquivalent to Complainant (CriminalCase)

DEFFENDANT (Civil Case)The professional who was alleged to have

caused the injury.

Equivalent to Respondent (CriminalCase)

TYPES OF LAWS ANDTYPES OF LAWS AND


69/79

TYPES OF LAWS ANDTYPES OF LAWS AND

COU

RTSC

OU

RTSCRIMINAL CASESy 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


70/79

CIVIL CASESy One individual sues other for money to

compensate for a perceived loss.

Ex. Defamation, Trespassing, Public andPrivate Nuisance

ADMINISTRATIVE CASESy An individual is sued by a state or federal

government agency assigned the

responsibility of implementinggovernmental programs.

Ex. TaxEvasion

GROUNDS FOR THEGROUNDS FOR THE


71/79

GROUNDS FOR THEGROUNDS FOR THE

REVOCATION OF LICENSEREVOCATION OF LICENSE

y ImpersonatingAnotherLicensed

Practitioner(Miss-representation)

yProviding a False Copy ofLicenseyFalsifying Patient Records

yUnprofessional Conduct

yPatientAbuse and NeglectyViolating Probation


72/79

WILLSWILLS

A legally

enforceable declaration directing the

disposal of

a decedent's property. also

called testament.


73/79

HandwrittenWills

Power of Attorney

allows a person to give legal permission to anotherperson or organization to act on his or her behalf in a

variety of legal and financial situations.

Complete Will ALast 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.


74/79

yLivingWill

A living will is a legal document

that a person uses to make

known his or her wishes

regarding life prolonging medicaltreatments.


75/79

CONTRACTSCONTRACTS-A binding agreement between two or more parties for

performing, or refraining from performing, somespecified act(s) in exchange for lawful consideration.

Express Contracts

y In this type of contract, the parties to the contract statethe terms and conditions either by word of mouth or inwriting, at the time of forming the contract.

Implied Contracts

y Contracts implied in factand contracts implied in lawareboth a part of implied contracts. But a real impliedcontract consists of certain obligations that arise from amutual agreement and intention of promise, which is notexpressed verbally.

Executed Contracts


76/79

An executed contract is termed as anagreement 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 theexecution of an act, an obligation or atransaction or forbearance from executionof an act or an obligation, with respect to

every party involved in the contract, istermed as bilateral contract in thelanguage of law.

A unilateral contract is a promise made by

only one party.


77/79

Aleatory Contracts

yAmutual agreement which comesinto effect only in case of anoccurrence of an uncertain event or anatural calamity, is termed as an

aleatory contract.

Unconscionable Contracts

yUnconscionable contracts are thosethat are unfair and unduly one-wayfavors of the party who stand at a

superior end of the bargaining power.


78/79

Adhesion Contracts

yAdhesion contracts are the ones thatare drafted by a party who has a

larger advantage in bargaining. This

means that the party who has abargaining advantage leaves the

other party with no other option than

to either accept the contract or toreject it.


79/79

Void and Voidable Contracts

yAvoid contractimplies that theinvolved parties are not liable to any

legal obligations or rights, meaning

that the parties are not legally boundwith reference to that contract.

yAvoidable contract, on the other

hand, is an agreement between anytwo or more parties, that has a legal

binding.

legal aspect in edit)

Documents