Republic of the Philippines ISABELA STATE UNIVERSITY Echague, Isabela COLLEGE OF NURSING

Unit V Legal Liabilities in Nursing Practice

In Partial Fulfillment of the Requirements in NCM 107-A (Nursing Leadership and Management)

Submitted by: DAVID DUENAS MARICAR LUCAS MARLOU DAVE PONTILA MARIZA SAMOY

Submitted to: RIANNE MAIE L. CASTILLO, RN, RM, MSN, MAN

Unit V Legal Liabilities in Nursing Practice A. Criminal Aspect 1. CRIMES Definition of Terms: Crimes are acts contrary to law or statute; wrongs committed against the state, usually intentional and punishable by the state. Criminal Action is one instituted and prosecuted before the courts for the punishment of a crime. In the courts, offenders will have to answer for any criminal liability incurred. Criminal Conspiracy occurs when two or more persons agree to commit a crime. Elements of a Crime: - Criminal Act - Criminal Intent Fundamental Factors in Committing Crimes: - Committing an act contrary to criminal law - Omitting an act when there is a legal obligation to perform such act Classification of Persons who are Criminally Liable: Principals are those who take a direct participation in the execution of the act, or those who directly force or induce others to commit the act. - those who cooperate in the commission of the offense by another act without which the crime would not have been committed or accomplished are also considered principals. Accomplices are those who, having knowledge of the commission of the crime and without having participated therein either as principals or accomplices, take part subsequent to its commission in any of the following manner: a. By profiting themselves or assisting the offenders to profit by the effects of the crime; b. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery; and

c. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory had acted with abuse of his/her public functions, or the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. They are also known as accessories after the fact. Criminal Negligence refers to negligence of such a character, or occurring under such circumstances, as to be punishable as a crime by law, or such a flagrant and reckless disregard for the safety of others or willful indifference to the injury that might result, as to convert an act otherwise lawful into a crime when in results in personal injury or death. Two Classes of Criminal Negligence under the Revised Penal Code: 1. Simple Negligence or Simple Imprudence - occurs when a person shows lack of precaution in those cases in which the damage about to be caused is not immediate or in which the impending danger is not evident or manifest. 2. Reckless Negligence or Reckless Imprudence - occurs if a person does an act or fails to do an act, voluntarily but without malice, from which act or omission, a material damage results because of his/her inexcusable lack of precaution, taking into consideration his/her employment or occupation, degree of intelligence, physical condition, and other circumstances regarding person, time, and place. Falsification of Certificate of Registration Abortion refers to termination of pregnancy before the age viability (first 12-24 weeks or 3-6 months). The death of a fetus of a pregnant woman may be unintentional (miscarriage) or intentional. Intentional abortion involves using any violence on a pregnant woman or administering drugs to a pregnant woman without her consent. Infanticide is a crime committed when one kills a child less than 3 days old. Parricide is a crime committed by a person who kills either his/her father or mother, legitimate or illegitimate child, legitimate ascendant or descendant, or legitimate spice. It is punishable by reclusion perpetua (life imprisonment) to death. Murder is the killing of a person, not falling under the crimes of parricide or infanticide, and with any of the following qualifying circumtances: Treachery

In consideration of a price, reward, or promise During calamities, e.g., fire, earthquake or flood With evident premeditation With cruelty or deliberately and inhumanly augmenting the suffering of the victim

Homicide is a crime committed by one who kills a person not falling under the crime of parricide and without the qualifying circumstances attending the crime of murder (no criminal intent and without criminal consequences, e.g., self-defense). Illegal Detention- refers to unjustifiable confinement without a legal warrant within boundaries fixed by the defendant. Exemptions are those involving patients with communicable diseases and the mentally ill if there is a danger that they may take their own lives or jeopardize others. Simulation of Birth is a crime against the civil status of a person whereby one enters in a birth certificate facts about a birth which has never occurred or existed. Giving assistance to suicide Concealment or abandonment of a legitimate child Theft is a crime against property whereby a person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take the personal property of another without the latters consent. Theft may also be committed by: Failing to return or deliver lost property to the local authorities or to its owner Removing or making use of the fruits or object of the maliciously damaged property of another Entering an enclosed estate or a field where trespassing, hunting or fishing, or gathering fruits and other farm products are forbidden.

Robbery is a crime committed by a person who, with intent to gain, shall take any personal property belonging to another, by means of violence against or intimidation of any person, or using force upon anything. Defamation involves revealing privileged communication from charts, conversations, interviews, or observations to a third party in a way that exposes the person to hatred, contempt, aversion, or lowering opinion. The kinds of defamation are slander or oral defamation, and libel or the written, pictured, or telecast defamation.

2. CRIMES RELATED TO NURSING PRACTICE Misdemeanor is a term used to express every offense inferior to felony, and punishable by indictment or by particular, prescribed proceedings.Misdemeanor is actually a term applied to all those crimes and offenses for which the law has not provided a particular name. Felonies are acts or omissions punishable by law which may be committed not only by means of deceit (dolo) but also by means of fault (culpa). Types of Felonies: 1. Intentional Felony There is deceit when the act is performed with deliberate intent. Deliberate intent includes two elements without which there can be no crime arising from a criminal act or omission. a. Freedom a person who acts without freedom cannot act with deliberation. b. Intelligence without intelligence, a person is incapable of distinguishing what act is good or bad and what act is right or wrong. That is why the law exempts from criminal liability an imbecile; An insane person, unless the latter acted during lucid intervals; and a child over 9 years old but under 15, unless he has acted with discernment, revealing insight and understanding. 2. Unintentional Felony There is fault when the wrongful act resulted from imprudence, negligence, or lack of foresight or skill. Felonies According to Style of Execution: a. Consummated when all the elements necessary for its execution and accomplishment are present. b. Frustrated when the offender performs all acts of execution which would produce the felony as a consequence but which would, nevertheless, not produce it by reasons not independent of the will of the perpetrator. c. Attempted the offender starts the commission of a felony.

Felonies According to Gravity: a. Grave Felonies those to which the law attaches the capital punishment (death) or penalties which in any of their periods are afflictive (imprisonment or fine). b. Less Grave Felonies those which the law punishes with penalties wherein their maximum periods of are correctional (imprisonment ranging from 1 month and 1 day to 6 years, or a fine not exceeding P6,000.00 but not less than P200.00). c. Light Felonies infractions of law the commission of which is penalized arrestomenor (imprisonment ranging from 1 day to 30 days) or a fine not exceeding P200.00, or both, is imposed. 3. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY Justifying Circumstances include: - Self-defense - Defense of spouse, relative, or stranger - Accident - Fulfilment of a duty or in the lawful exercise of a right or office - Obedience to an order issued by a superior for some lawful purpose The following May Be Exempted from Criminal Liability: - A retarded or insane person, unless the latter acted during a lucid interval - A person under 9 years of age - A person over 9 years of age but under 15, unless he acted with discernment - Any person who, while performing a lawful act with due care, causes an injury by mere accident, without fault or intention of causing it - Any person who acts under the compulsion of an irresistible force - Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury - Any person who fails to perform an act required by law, when prevented by some lawful or insuperable cause

Mitigating Circumstances are circumstances which help justify or lessen the gravity of the act. Below are such circumstances: - The offender is under 18 years or over 70 years old - The offender had no intention to commit so grave a wrong as that committed - Sufficient provocation or threat on the part of the offended party immediately preceded the act - The act is committed in the immediate vindication of a grave offense to the one committing the felony, his/her spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree - The offender has acted upon on impulse so powerful as naturally to have produced passion or obsession. - The offender voluntarily surrendered himself/herself or voluntarily confessed his/her guilt before the court and prior to the presentation of the evidence for the prosecution - The offender is deaf and dumb, blind, or otherwise suffering from some physical defect which thus restricts his/her means of action, defense, or communication. - The offender is suffering from an illness which would diminish the exercise of his/her willpower although not depriving him/her of consciousness of his/her act Aggravating Circumstances are circumstances that tend to increase the gravity of the crime charged. Below are such circumstances: The offender has taken advantage of his/her public position The act was committed in contempt of or with insult to public authorities The act was committed with abuse of confidence or obvious ungratefulness The act was committed on the occasion of a fire, shipwreck, earthquake, epidemic, or other calamities or misfortune The crime was committed in consideration of a price, reward, or promise The crime was committed by means of inundation, fire, poison, explosion, or any other means or articles involving great damage and ruin The act was committed with evident premeditation Craft, fraud, or disguise was employed

Alternative Circumstances are those which must be taken into consideration either as aggravating or mitigating, depending on the nature and effects of the crime and on the other conditions attending the commission of the act. Below are examples: Relationship offended party is the spouse, siblings, relatives, children, etc. Intoxication - it is mitigating when not habitual and intentional, but aggravating when habitual and intentional Degree of instruction and education of the offender B. Civil Aspect 1. Torts Tort refers to the negligence of a person arising from his/her act or omission, independent of a contract, which causes damage to another. The former is obliged to pay for the damages done to the latter. It also refers to a legal wrong or fault committed by a person against another, there being no pre-existing contractual relation between the parties. The offender is liable for damages to the offended party by reason of such fault. Torts are violations of civil law caused by failure to use care or to prevent injury. 2. Elements of Torts There must be damage to the offended party There is a legal wrong or fault, or negligence arising from an act or omission for which the offender must account There is the nexus of cause and effect between such fault or negligence and the damage

3. Damages Done to an Offended Party Actual or Compensatory the value of the actual loss and the profits which were not obtained. Moral Damages physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings, social humiliation, etc. Nominal Damages vindication or recognition of the right of the plaintiff which has been violated by the defendant and not for the purpose of indemnifying the loss suffered by the plaintiff.

Temperate or Moderate Damages - more than the nominal, but less than compensatory damages. 4. Unintentional Torts Negligence refers to the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The measurement of negligence is reasonableness and prudence. Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about to be pursued. If so, the law imposes a duty on the actor to refrain from that course or to take precaution against its mischievous results, and the failure to do so constitutes negligence; reasonable foresight of harm, followed by the constitutive fact in negligence. Professional Negligence refers to the failure of a nurse to behave or act as a reasonable, prudent nurse who is charged with a duty to use standard of due care, and to foresee harm that may result from failure to meet such standard which may be the proximate cause of injury to another person or his/her property. The burden is on the patient to prove negligence by the nurse. Common acts of negligence for which a nurse may be held liable: a. Injury to the a delirious patient under the care of a nurse b. Burns as a result of the negligent administration of hot water bags, heat lamps, vaporizers, or sitz baths c. Any object left in a patients abdomen in the course of a surgical operation d. Use of defective equipment e. Careless execution of doctors orders f. Falling of patient from bed causing injury thereof

g. Medication errors h. Administering medicine without the doctors prescription i. Failing to report case history and observations about the patient to the attending physician j. Carelessness in caring for clients belongings, e.g, dentures, clothings, valuables

k. Ignoring complaints of chest pain, causing the death of the patient Essential elements to prove Negligence: a. Legally recognized duty of care to protect others against unreasonable risk b. Failure to perform according to the established standard of conduct and care, which becomes breach of duty c. Physical, emotional, and/or mental damage to the client d. Connection between defendants conduct and the resulting injury referred to as proximate cause or remoteness of damage. Doctrine of res ipsaloquitor means the thing speaks for itself. When a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such that in the ordinary course of things, it will not happen if those who have such management use proper care, then the accident itself affords reasonable evidence in the absence of explanation by the parties charged that it arose from lack of proper care. The following are the necessary conditions for the application of this doctrine: a. The accident must be of the kind which ordinarily does not occur in the absence of someones negligence b. The accident must be caused by an agency or instrumentality within the exclusive control of the defendant c. The accident must have been due to any voluntary act or contribution on the part of the plaintiff (injured party). Doctrine of respondeat superior means let the superior answer; let the principal answer for the acts of his/her agent. This doctrine applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose. It does not apply when the injury occurs while the servant is acting outside the legitimate scope of his/her authority. Doctrine of force majeure means irresistible or superior force. This refers to facts or accidents which human prudence can neither foresee nor prevent, e.g., storms, earthquakes. Malpractice refers to any professional misconduct, or a bad, unskillful practice, or any practice contrary to law or established rules and regulations whereby the health of a person is injured.

Common acts of Malpractice in nursing: a. Neglect of a nurse to use the required skill and knowledge in the treatment of a patient b. Ignorance, negligence, or unskillfulness resulting in some injury to the patient c. Omissions of duty to a patient which makes the nurse either civilly or criminally liable d. Failure to perform properly the duty which devolves upon his/her professional relation to the patient and which results in some injury to the patient Elements of nursing malpractice: duty, breach, injury, and proximate cause: The duty of a nurse to employ his/her training and skill in the care of the patient commences at the time his/her employment is engaged by the patient. The breach of these professional duties, of skill and care, or their improper performance by the nurse resulting to damage or injury to the body or health of the patient constitutes an actionable nursing malpractice. The proximate causation in nursing can be divided into two inquiries: (1) whether the nurses actions, in fact, causes harm to the patient; and (2) whether these are proximate causes of the patients injury. Doctrines Applied in Nursing Malpractice Cases: a. Doctrine of imputed negligence or command responsibility the responsibility of a person who is not negligent, for the wrongful conduct or negligence to another b. Res ipsaloquitor (common knowledge doctrine) any wrongful act or injury disputably presumes negligence c. Doctrine of contributory negligence (doctrine of common fault) the careless act or omission on the part of the complaining party which, concurring with the defendants negligence, is the proximate cause of injury. d. Doctrine of continuing negligence an unfailing duty of a defendant nurse to appraise and make the necessary investigation or examination of his/her patients injury with reasonable care and skill. e. Doctrine of assumption of risk if one assumes voluntarily the risk of injury from a known danger, then he/she is barred from recovery; that a person who asserts and was injured is not regarded in law to be injured.

f. Doctrine of last clear chance it implies thought, appreciation, mental direction, and lapse of sufficient time to effectually act upon impulse to save the life of or prevent injury to another. g. Doctrine of foreseeability it refers to a duty of care, skill, and training to all persons who are foreseeably endangered by their conduct, with respect to the risks which make the conduct unreasonably dangerous. h. Fellow servant doctrine if an employee is injured on account of the negligence of his/her fellow employee, the employer cannot be held liable. i. Rescue doctrine if a person who goes to the rescue of a victim in an accident is injured, the original wrongdoer must be held liable for such injury.