LEGAL LIABILITIES IN NURSING PRACTICE

NEGLIGENCE

Definition

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

Civil Code, Article 19

One shall act with justice, give every man his due, observe honesty and good faith.

Civil Code, Article 20

Those who, in the performance of their obligations through negligence cause any injury to another, are liable for damages.

Common Acts of Negligence

Burns Objects left inside the patient’s

body Falls of elderly Falls of children Failure to observe and take

appropriate action as needed

Specific Examples

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

Conditions for Res ipsa loquitor

That the injury was of such nature that it would 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

MALPRACTICE

Definition

Implies the idea of improper or unskillful care of a patient by a nurse

Denotes stepping beyond one’s authority with serious consequences

Is a term for negligence or carelessness of professional personnel

Refers to a negligent act committed in the course of professional performance (1962)

MEDICAL ORDERS,DRUGS,AND MEDICATIONS.

RA 6675

Only validly registered medical, dental and veterinary practitioners, whether in private institution, corporation or in the government, are authorized to prescribed drugs.

RA 5921 (PHARMACY ACT)

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 , sex Date of prescription.

RA 6675

Requires that the drug be written in their generic names.

Only when these orders are legal writing and bear the doctor’s signature thus the nurse have the legal right to follow them

The nurse must not execute an order if she is reasonably certain it will result in harm to the patient.

INTRAVENOUS THERAPY AND LEGAL IMPLICATIONS

Philippine nursing act of 1991 section 28 “ in the administration of intravenous

injections, special training shall be required according to protocol established”.

Basis of nurses legal right to give IV injection.

Board of nursing resolution no. 8 states that any registered nurse without such training and who administers IV injections to patients should be held liable, either criminally or administratively or both.

TELEPHONE ORDERS

Only in an extreme emergency and when no other resident or intern is available should a nurse receive telephone orders.

The nurse should read back such order to the physician to make certain the order has been correctly written.

Such order should be sign by the physician on his next visit within 24 hours.

MEDICAL RECORDS

Supplies rich material for medical and nursing research

Serves as a legal protection for the hospital, doctor, and nurse by reflecting the disease or condition of the patient and his management.

“if it was not charted, it was not observed or done”.

CONTINUATION..

Nurses are expected to record fully, accurately, legibly and promptly their observations from admission to the time of the patient’s discharge.

Nurses are legally and ethically bound to protect the patient’s chart from unauthorized person.

CHARTING DONE BY STUDENT NURSES

When a nurse or clinical instructor counter signs the charting of the 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.

Liabilities of nurses for the work of nursing aides Nurses should not delegate their

functions to nursing aides since the Philippine nursing act specifies the scope of nursing practice of professional nurses.

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

Nursing aids are responsible for their actions.

Nurses should not delegate their functions to nursing aides.

Nursing aides perform selected nursing activities under the direct supervision of nurses.

LIABILITY FOR THE WORK OF NURSING STUDENTS

RA 9173 – nursing students do not perform professional nursing duties.

Nursing students should be under supervision of their clinical instructors.

In order that the errors committed by nursing students will be avoided or minimized, the following measures should be taken: Nursing students should always be

under supervision of their clinical instructors.

They should be given assignments that are their level of training experience and competency.

They should be advised to seek guidance if they are performing a procedure for the first time.

They should be oriented to the policies where they are assigned.

Their performance should be assessed frequently to determine their strength and weaknesses.

TORT

Definition

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.

Examples

Assault and Battery. Assault is the imminent threat of a

harmful or offensive bodily contact. Battery is an intentional, unconsented

touching of another person. False Imprisonment or Illegal Detention.

It means that the unjustifiable detention of a person without legal warrant within boundaries fixed by the defendant by an act or violation of duty intended to result in such confinement.

Defamation. 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, or held in contempt or to tend to injure him in his work

CRIMES

Crime defined

It is an act committed or omitted in violation of the law. It is composed of two elements: (1) criminal act and (2) evil/criminal intent

Conspiracy to commit a crime A conspiracy to commit a crime

exists when two or more persons agree to commit a felony and decide to do it.

Criminal Liability

nurse may incur criminal liability or subject herself to criminal prosecution either by committing a felony or by performing an act which would be an offense against person or property.

Ignorance of the law is not an excuse for failure to comply therewith.

Violators of the criminal law cannot escape punishment on the ground of ignorance of the law

Circumstances affecting criminal liability

Justifying circumstances Exempting circumstances

- an imbecile or insane person, unless the latter has acted during a lucid interval.

-below 9 years old-over 9 years of age and under

fifteen unless he/she acted with discernment

- causes an injury which is merely an accident without fault or intention or causing it

-acts under the compulsion of an irresistible force

-acts under the impulse of an uncontrollable fear of an equal or greater injury

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 degree of moral culpability.

Aggravating circumstances Are those attending the commission

of crime and which increase the criminal liability of the offender or make his guilt or more severe.

Some of the ff circumstances:When the offender takes advantages of his public position.

When the crime is commited in place of worship

When the act is committed with evident premeditation or after an unlawful entry.

Alternative circumstances -are those which must be taken into

consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attending in commission.

Should be taken consideration when the offended party is the spouse, ascendant or descendant, legitimate, natural or adopted or relatives.

Points in order to avoid criminal liability:

1. Be very familiar with the Philippine nursing law.

2. Beware of laws that affecting nursing practice

3. At the start of employment, get a copy of your job description, the agency’s rules, regulations and policies.

4. Upgrade you skills and competence

5. Accept only such responsibility that is within the scope of your employment and your job description.

6. Do not delegate your responsibilities to others.

7. Determine whether your subordinates are competent in the work you are assigning them.

8. Develop good interpersonal relationships with your co-workers, whether they be your supervisors, peers or subordinates.

9. Consult your superior for problems that maybe too big for you to handle.

10. Verify orders that are not clear to you or those that seem to be erroneous.

11. The doctors should be informed about the patients conditions

12. Keep in mind the values and necessity of keeping accurate and adequate records

13. Patients are entitled to an informed consent.

Examples liabilities of Nursing: Liability for injury to patient Liability for sponge left in the

patient’s abdomen Liability for a safety pin left in

patient’s abdomen Liability for defective equipment Liability for death for patient who

jump from window of his room

Liability for negligence of surgical nurse Liability for rapture of surgical wound. Liability for burns for suffered by

patient Liability for burns from hot water bags Liability for negligence of nurse

employees Liability fro death of infant resulting

from injection of digitalis Liability of nurse performing

administrative work

Principals

Are those who take a direct part in the execution of the act; who directly force or induce others to commit; or who cooperate in the commission of the offense by another act without which it would not have been accomplished.

Accomplices

Are those persons who, not being principals, cooperate in the execution in the offense by previous or simultaneous act.

Accessories

Are those who, having knowledge of the commission of the crime, either as principals or accomplices, take part in the subsequent to its commission by profiting themselves or assisting the offender to profit from the effects of the crime.

Criminal Actions

Deal with acts or offenses against public welfare.

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.

Is committed with deceit and fault.

Criminal negligence

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 damage was not immediate or the impending danger was not evident or manifest.

Criminal intent

Is the state of mind of a person at the time the criminal act is committed.

Two elements of deliberate intent: freedom and intelligence