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LEGAL ASPECT OF NURSING

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kevin rubino

on 22 September 2013

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Transcript of LEGAL ASPECT OF NURSING

LEGAL ASPECT OF NURSING

CRIMINAL AND ADMINISTRATIVE LIABILITIES OF A NURSE
JORELLE MAE A. ABARQUEZ, RN
MICHAEL KEVIN R. RUBINO, RN

LEARNING OBJECTIVES:

At the end of the discussion, the M.A.N. students will be able to:

1. Analyze the legal aspect that govern the nursing practice.

2. Internalize the liabilities of nursing profession in criminal and administrative aspect.

3. Share experiences of committed or witnessed act of negligence.

4. Apply the knowledge learned as a guide in nursing practice to prevent occurrence of negligence and other potential liabilities.
LAWSUIT
Refers to any action, complaint, charge, case, or legal proceeding brought before the court of law, in which the party commencing the case seeks legal remedy.
LIABILITY
The legal responsibility for acts or failure to act according to standards, protocols, or policies of hospital, resulting in another person’s injury or death.
According to De Belen, R. T., et al. Nursing Law and Jurisprudence(2007), there are three basic lawsuits or legal actions in nursing practice in the Philippines.
CRIMINAL LAW
CIVIL LAW
ADMINISTRATIVE LAW

The branch of law which defines crimes treats of their nature and provides for their punishment. Criminal Law covers offenses resulting to injuries or deaths of patients.

In the prosecution of a criminal offense resulting to injuries, the court is very particular with the following features with the following features of injuries:

Nature
Location
Size, shape,
incursion
Color
Number and other appearance

Manner / classifications of death:
Natural – death due to disease / senility

Suicide - self-inflicted

Homicide – The killing of one human being by another human being. Absence of any proof as to how the victim was killed (ART 249 RPC)

Murder – Crime committed by a person who kills another other than his father, mother or child, whether legitimate or illegitimate (Art, 248 RPC)

Parricide- committed when one kills his father, mother, or child, whether legitimate or illegitimate, or any ascendants, descendants, and spouse

Accident

The useful pieces of evidences for the criminal offenses resulting to injuries or death of the patients are the: body, object on or with the body, injuries sustained,tissues and body fluids, and other medical evidences or findings.

The branch of law that pertains to the organization of the family and the regulation of property.

CIVIL LAW
Republic Act No. 386, popularly called the New Civil Code(NCC) or the Civil code of the Philippines, is the principal legal document in the study of civil law in the Philippines.
It took effect on August 30, 1950 and covers the following aspects of human life: persons and family relations, property rights and ownership, the modes of acquiring ownership, obligations and contracts, and special contracts.
The branch of law which deals with the activities or functions of executive or administrative agencies such as the “departments, bureaus, “boards”, or “commissions”, or all other offices under the administrative supervision of the office of the president, which are created and vested by law with quasi-judicial, quasi-legislative and executive powers.

Executive Order No. 292 is the principal law in the study of administrative law in the Philippines. The late former President Corazon Aquino promulgated E.O. No. 292 dated July 25, 1987, otherwise known as the Administrative code of 1987.

CRIMINAL ACTION IN NURSING PRACTICE
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 do, and acting or the non-acting of which is the proximate cause of injury to another person or his property.
Malpractice
is defined as the improper or unethical conduct by a professional, resulting in harm, injury or death of another person.
(DE BELEN et. al. Nursing Law and Jurisprudence 2007)
ELEMENTS OF NEGLIGENCE
DUTY
Existence of a duty on the part of the person charged to use due care under circumstances.
BREACH OF
DUTY

Failure to meet the standard of due care
FACTUAL CAUSATION
The foreseeability of harm resulting from failure to meet the standard.
DAMAGE
The fact that the breach of this standard resulted in an injury to the plaintiff.
ARTICLE 19 of the Civil code of the Philippines states that one shall act with justice, give every man his due, observe honesty and good faith.

ARTICLE 20 of the Civil code states that those who, in the performance of their obligations through negligence cause any injury to another are liable for damages.

Liabilities of Nurses
LIABILITY FOR WORK OF NURSE TRAINEES AND NURSE VOLUNTEERS
There are thousands of nursing graduates and they go on training for at least 3 months to one year. Opportunities to work abroad often require experience of at least one year in hospitals, hence their willingness to volunteer.
Since nurses are responsible and accountable for their practice, nurse volunteers should exercise utmost caution, critical thinking and independent judgment to prevent incurring liabilities. (Venzon, Lydia M., et. al. Professional Nursing in the Philippines (2005)

SPECIFIC EXAMPLES OF NEGLIGENCE
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 equipments such as stretchers and wheelchairs may lead to falls thus injuring the patients.
Errors due to family assistance.
Administration of Medicine without a doctor’s prescription
COMMON ACTS OF NEGLIGENCE

BURNS
Hot water bags, heat lamps, heating pads, vaporizers, sitz bath

OBJECTS LEFT INSIDE THE PATIENT’S BODY
Sponges, suction tips, loose dentures lodged in the patient’s trachea

FALLS
Side rails of beds were not pulled up and locked, those who are confused, unconscious, sedated patients, or those who are not fully recovered from anesthesia

VARIOUS DOCTRINES AFFECTING THE LIABILITIES OF NURSES
RES IPSA LOQUITOR
"the thing speaks for itself"
RESPONDEAT SUPERIOR
“Let the master answer for the acts of the subordinate”.
means an irresistible force, one that is unforeseen or inevitable.
FORCE MAJEURE
LIABILITY OF NURSES FOR THE WORK OF NURSING AIDES

Nursing Aides perform selected nursing activities under the direct supervision of registered nurses. Registered nurses should not delegate their functions to nursing aides since the Philippines Nursing Act specifies the scope of nursing practice of professional nurses. If a nurse delegates her functions to a nursing aide and the latter commits a mistake then the person responsible is the nurse.

LIABILITY FOR THE WORK OF NURSING STUDENTS

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

However, it must be emphasized that although nursing students are not employees of the hospital they are entrusted with the responsibility of providing supervised nursing care to patients.
MEDICAL ORDERS, DRUGS AND MEDICATIONS

Republic Act 6675 states that only validly registered medical, dental, and veterinary practitioners, whether in private institution/ corporation, or in the government, are authorized to prescribed drugs.

The dependent and coordinated function of the nurse pertains to the application and execution of written legal orders of physicians concerning treatment and medications. Only when these orders are legal in writing and bear the doctor’s signature does the nurse have the legal right to follow them.
Verbal orders can be minimized if the nurse seeks a clear understanding or raising clarification to the physician in an acceptable manner.

TELEPHONE ORDERS

The use of a telephone in a non emergency as a substitute for the physician himself can lead to serious errors and may border on malpractice. Only in an extreme emergency and when no other resident or intern is available should a nurse receive a telephone orders.
- The nurse should read back such order to the physicians to make certain the order has been correctly received and written on patient’s chart.
-Such order should be signed by his physician on his/her next visit within 24 hours
-The nurse should sign the name of physician per her own and note the time the order was received.
-Should any problem arise, the order should refer back to the ordering physician.
-It is safer that when a telephone order is given, another resident physician or intern in the same service should receive it.

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.

However, if the patient’s careless conduct contributes to his own injury, the patient cannot bring suit against the nurse. On the other hand, if the nurse has expressly given advanced consent in performing a duty that involves risk, such as caring for a psychiatric patient or a patient with communicable disease, the nurse cannot bring suit against the patient if she gets hurt or contracts the disease since upon accepting the case, the nurse assume the risk of harm or infection thereby relieving the patient or his relatives from legal obligations. This is termed as “Assumption of risk”.

HOW TO PREVENT
OCCURRENCE OF NEGLIGENCE
REDUCING POTENTIAL LIABILITY




Eileen M. Croke EdD, ANP, LNC-C
AJN, American Journal of Nursing
Maintain open, honest, respectful relationships and communication with patients and family members.
* Patients are less likely to sue if they feel that a nurse has been caring and professional.
* Don't offer opinions when a patient asks what you think is wrong with him-you may be accused of making a medical diagnosis.
* Don't make a statement that a patient may interpret as an admission of fault or guilt.
* Don't criticize health care providers or their actions when you are with patients.

* Maintain confidentiality in the health care setting.
Maintain competence in your specialty area of practice.
* Attend relevant continuing education classes.
*
Attend relevant hospital in-service programs.
* Expand your knowledge and technical skills.
Know legal principles and incorporate them into everyday practice.
* Keep up to date on your state's nurse practice act.
* Keep up to date on hospital policies and procedures.

Practice within the bounds of professional licensure.
* Perform only the nursing skills allowed within your scope of practice and that you are competent to perform.
Know your strengths and weaknesses. Don't accept a clinical assignment you don't feel competent to perform.
* Evaluate your assignment with your supervisor.
* Accept only those duties you can perform competently
* Let an experienced nurse on the unit assume responsibilities for the specialized duties.
* If care is not documented, courts assume it was not rendered.
What is not written did not happen.
* When documenting care on the patient's chart, use the
FACT
mnemonic: be
f actual, accurate, c omplete, and t imely.

ADMINISTRATIVE ACTION
IN NURSING PRACTICE
DE BELEN, et. al. Nursing Law and Jurisprudence (2007)
An administrative disciplinary action against a nurse may arise from an administrative offense or any ground for disciplinary action. An administrative offense means every act or omission which amounts to, or constitutes to, any ground for disciplinary action.
Article III, Section 1,
1987 Constitution –

“No person shall be deprived of life, liberty or property without due process of law”

Due process does require notice and hearing.
It is generally a law which hears before it condemns which proceeds upon inquiry and renders judgment only after trial.
The principal legal document in the study of Criminal Law in the Philippines is Act No. 3815, as amended, otherwise known as the Revised Penal Code (RPC), which was approved on December 8, 1930. The RPC is the law that defines crimes, treats of their nature, and provides for their punishment.

ADMINISTRATIVE LAW
REFERENCES:

De Belen, R.T. & De Belen, V. V. (2007) Nursing Law and Juris prudence and Professional Ethics. Quezon City. C&E Publishing, Inc.

Venzon, L. M. & Venzon R.M. (2005) Professional Nursing in the Philippines. Quezon City. C&E Publishing, Inc.

Croke, E. M. (2003) Reducing Potential Liabilities. Retrieved August 2013, from: http://www.nursingcenter.com/lnc/journalarticle?article_id=423284
All nurses who work in government offering their services to the public, whether in the government offices, hospitals, clinics, and government owned controlled corporations are governed by Civil Service Laws.
Art XII, Sec. 1 of 1987 Constituion
Aside from the Civil Service Commission, administrative complaints against nurses in government service may be instituted before the office of the Ombudsman or the head of the Government office concerned.
DE BELEN, et. al. Nursing Law and Jurisprudence (2007)
Administrative Penalties Against
Nurses in Public Service
Under the CSC Omnibus Rules and Regulations, the disciplining authority may impose any of the following penalties:

a.) removal/dissmissal from the service
b.) forced resignation with or without prejudice to benefits
c.) demotion in rank
d.) suspension for not more than one year without pay
e.) fine in the amount of not exceeding six months salary
f.) transfer or
g.) reprimand
Sec. 8 , Rule XIV, CSC Omnibus Rules
Nurses in Private Sector are those working with private employers such as private hospitals and clinics, private nursing school and colleges, and private companies.
The private sector where a nurse is employed has usually an in-house mechanism for administrative disciplinary action of its employees.
In this kind of in house mechanism for administrative discipline, the Labor code provides for the guidelines and the basic requirements for the investigation and the subsequent imposition of punishment against employees.

To determine whether there exists an employer-employee relationship, the four way test should be applied.
The four way test

1.) the selection and engagement of the employee
2.) payment of wages
3.) power of dismissal
4.) and the power to control the employee's conduct
Under Article 282 of the New Labor Code, an employer may terminate an employment for any of the following causes:
1.) serious misconduct or willful disobedience
2.) gross and habitual neglect by the employee of his duties
3.) fraud or willful breach by the employee
4.) commission of a crime

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