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Legal Aspects of

Nursing
Law
Definition: In general, a rule of being or of conduct,
established by an authority able to enforce its will;
a controlling regulation; the mode or order
according to which an agent or a power acts.
Why is there a need to study the
law?

To minimize the violations;
to contribute to the orderly progress and general welfare
of society;
to protect ourselves; and
to exercise our rights.
Classification of Laws
1. Divine Law
are those that have GOD as their author.

2. Human Law
are those authored by man.
exists to regulate all persons.
General Groups of Human Laws
Public Law
- That branch or department of law which is
concerned with the state in its political or sovereign
capacity.
1. Criminal Law
2. International Law
3. Political law

Private Law
- That which relates to private matters which do not
concern the public at large

Criminal Law concerned with relationship between
individuals and governments and with acts that threaten
society and its order; a crime is an offense against society
that violates a law and is defined as a:

misdemeanor (less serious in nature) or
felony (serious in nature)

Civil Law concerned with relationships among
people and protection of a persons rights.
Violation may cause harm to an individual or
property, but no grave threat to society exists.

Common Legal Terms
Affidavit - is a written statement made under oath before a
notary public or other person duly authorized.
Due Process - is fair and orderly process which aims to
protect and enforce a persons right.
Liability - an obligation or debt that can be enforced by law.
A person who is liable for negligence is usually required to
pay for damages.

Common Legal Terms
Perjury - is the willful telling of a lie under oath. This can be
committed by a nurse who is a witness in a legal case.
Plaintiff - the person who files the lawsuit and is seeking
damages for a perceived wrongdoing.
Summon/s - is a writ commanding an authorized person to
notify a party to appear in court to answer a complaint
made against him.

Common Legal Terms
Subpoena - a written legal order summoning a witness or requiring
evidence to be submitted to a court or similar deliberative body.
Subpoena Ad Testificandum a subpoena that requires a person to
attend a specific time and place to testify as a witness.
Subpoena Duces Tecum - is a subpoena that requires a witness to
bring required papers/documents and the like which maybe in
his/her possession.

Common Legal Terms
Expert Witness a witness who is qualified to testify based
on special knowledge, skill, experience and training.
Testimony of facts may only be given by an expert
witness. Testimony what the expert knows based solely on
facts.

Common Legal Terms
Warrant - a writing from a competent authority in
pursuance of law, directing the doing of an act, and
addressed to a person competent to do it.
Writ - a legal document issued by a court or judicial officer.

Authorization To Practice Nursing

To legally engage in the practice of nursing, an individual
must hold on an active license issued by the state in which
he or she intends to work.

NURSE PRACTICE ACT
A series of statutes enacted by each state legislature to
regulate the practice of nursing in that state. Topics that
are included are the following a. scope of nursing,
education, licensure, grounds for disciplinary actions &
related topics.

*** RA 9173

NURSE PRACTICE ACT
Provides legal authority for nursing practice including
delegation of nursing tasks.
Many boards of nursing also provide decision and
delegation checklist.
Set educational requirements for the nurse distinguishing
Nursing Practice from Medical Practice & defines the
Scope of Nursing.

Crimes,
Misdemeanors,
Felonies
Criminal action
CRIME : Act committed in violation of social law.

Criminal offenses are composed of 2 elements:
(1) Criminal act
(2) Evil/Criminal intent

Conspiracy to commit a crime
Exist when two or more persons agree to commit felony and decide to
do it.

Person who commit felonies are:
1. Principal
2. Accomplices
3. accessories
Principals 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 act without which it would
not have been accomplished

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

- To hold the person liable as an accomplices, it must be shown that he
had knowledge of the criminal intention of the principal.

Accessories Those who, having the knowledge of the commission
of the crime, either as principals or accomplices, take part of the
subsequent to its commission by profiting themselves or assisting the
offender to profit from the effects of the crime by concealing or
destroying the body of the crime.
Criminal action
Misdemeanor is a general name for a criminal offense
which does not in law amount to felony. Punishment is
usually a fine or imprisonment for a term of less than one
year.

Criminal action
A felony is a public offense for which a convicted person is
liable. It is far more atrocious in nature than misdemeanor.

A felony is committed with deceit and fault. A deceit exists
when the act is performed with deliberate intent and there
is fault when the wrongful acts result from imprudence,
negligence or lack of skill or foresight.

Criminal intent
Is the state of mind of a person at the time the criminal
act is committed, that is, he/she knows that an act is not
lawful and still decided to do it anyway.

Deliberate intent includes 2 other elements without which
there can be no crime. These are freedom and intelligence.

Criminal intent
When a person accused of the crime offers evidence
showing insanity, necessity, compulsion, accident or
infancy the court will decide if he did not commit a
criminal offense and will declare the person not guilty.

Classes of felonies
According to the degree of the acts of execution:
Consummated when all the elements necessary for its execution
and accomplishment are present.
Frustrated when the offender performs all the acts or execution do
not produce the felony as a consequence but which nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator.
There is an Attempt to commit a felony when the offender commences
the commission of the same directly by overt acts and does not
perform all the acts or execution which shall produce the felony, by
reason of some cause or accident other than his own spontaneous
distance.
Classes of felonies
Moral Turpitude 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 act contrary to the accepted and customary rule of right
and duty between men.

Murder the unlawful killing of a human being with intent to kill. It is a
very serious crime. Nurses should keep in mind that death resulting
from a criminal abortion is murder. Euthanasia is also considered
murder.
Classes of felonies
Homicide killing of a human being by another. Can be committed
without criminal intent, by any person who kills another, other than
his/her family.

Abortion Expulsion of the product of conception before the age of
viability.
The Philippine Constitution protects the life of the unborn from
conception (Art II Sec 15).
In the US, legal abortion is practiced under certain conditions.

Classes of felonies
Infanticide killing of a child less than 3 days of age.
Parricide crime committed by one who kills his/her
father, mother or child whether legitimate or illegitimate.
Robbery crime against a person or property. The taking
of personal property of another person from him or in his
presence.

Classes of Felonies
According to the degree of punishment

1. Grave felonies are those to which the law attaches the capital
punishment or penalties which in any of their periods are afflicted.

- Imprisonment ranging from 6 years and 1 day to life imprisonment or
fine not exceeding 6,000.00

2. Less Grave Felonies are those which the law punishes with
penalties which in their maximum period are correctional.

- Imprisonment ranging from 1 month and 1 day to 6 years or a fine not
exceeding 6,000.00 but not less than 200.00
3. Light Felonies are those infractions of law for the commission
of which the penalty of arresto menor (imprisonment for 1 day to thirty
days or a fine exceeding 200.00 or both of which are imposed)

- Punishable only by when they have been consummated with the
exception of those committed against a person or property.
Tort
a. Legal wrong committed against a person, his rights &
property. Wrongful act which causes injury to another
individual.

Intentional
Unintentional

Unintentional Tort
Negligence failure to do what a prudent person
would/would not do in a circumstance; the acting or non-
acting of which is the proximate cause of injury to another
person or property.


Classification of Tort


Negligence misconduct or practice that is below the
standard expected of ordinary, reasonable and prudent
person
- Failure to do something due to lack of foresight or
prudence
- Failure of an individual to provide care that a reasonable
person would ordinarily use in a similar circumstance.

- Person/persons responsible for the tort are sued for DAMAGES
- Is based on:


ACT OF COMMISSION something that was done incorrectly or


ACT OF OMMISION something that should have been done but was not.
Elements of Professional Negligence
1. Existence of a duty on the part of the person
charged to use due care under circumstances
2. Failure to meet the standard of due care
3. The foreseeability of harm resulting from failure
to meet the standard
4. The fact that the breach of this standard resulted
in an injury to the plaintiff
Specific Examples of Negligence
1. Failure to report observations to attending physicians.
2. Failure to exercise the degree of diligence which the circumstances of
the particular case demands.
3. Mistaken identity
4. Wrong medicine, wrong concentration, wrong route, wrong dose
5. Defects in the equipment such as stretchers and wheelchairs may
lead to falls thus injuring the patients
6. Errors due to family assistance
7. Administration of medicine without doctors order prescription
Doctrines of Negligence:
1.Res ipsa loquitor the thing speaks for itself the injury is
enough proof of negligence
2.Respondeat Superior let the master answer command
responsibility
3.Force majuere unforeseen event, irresistible force


(1) THE DOCTRINE OF RES IPSA LOQUITUR
Injury was of such nature that it would not normally occur
unless there was negligent act
Injury was caused by an agency within control of the
defendant
Plaintiff himself did not engage in any manner that would
tend to bring about the injury
(2) DOCTRINE OF RESPONDEAT SUPERIOR
Let the master answer for the acts of the subordinate
The liability is expanded to include the master as well as
the employee
(3) DOCTRINE OF FORCE MAJEURE
Irresistible force; unforeseen or inevitable
No person shall be responsible for those events which
cannot be foreseen
Floods fire, earthquakes
Examples of negligence
Bed sores in the buttocks
Fecal impaction which resulted in acute rectal
bleeding and anemia
Misuse of appropriate antibiotics
Phlebotomists draw out blood from her lower
extremity which is a contraindication for a
diabetic

Patient sustained first and second degree burns
because PT applied the ultrasonic heat without
even bothering to test beforehand

b. MALPRACTICE
stepping beyond ones authority
Professional negligence that occurred while the person
was performing as a professional
The failure of the professional to act as a reasonable &
prudent professional with the same education &
experience would act in similar situation

TYPES OF MALPRACTICE
1. Failure to make referral to provide the patient with
appropriate teaching before discharge
2. Learning a foreign object inside patients abdomen after
surgery
3. Negligence on supervision of subordinate


The idea of improper or unskillful care of a patient
by a nurse
Stepping beyond ones authority with serious
consequences
Carelessness of professional personnel
LESNIK- negligent act committed in the course of
professional performance

( 6) elements of nursing malpractice:
1. Duty the nurse must have a relationship with
the client that involves providing care and
following an acceptable standard of care.

2. Breach of duty the standard of care expected in
a situation was not observed by the nurse
-is the failure to act as a reasonable, prudent
nurse under the circumstances
-something was done that should not have been
done or nothing was done when it should have
been done
3.Foreseeability a link must exist between the
nurses act and the injury suffered

4.Causation it must be proved that the harm
occurred as a direct result of the nurses failure to
follow the standard of care and the nurse should
or could have known that the failure to follow the
standard of care could result in such harm.


5.Harm/injury physical, financial, emotional as a
result of the breach of duty to the client
Example: physical injury, medical cost/expenses,
loss of wages, pain and suffering

6.Damages amount of money in payment of
damage/harm/injury

Negligence vs. Malpractice

NEGLIGENCE

MALPRACTICE

DEFINITION:

- Unintentional failure of an individual to
perform an act or omission to do
something that a reasonable prudent
would do or would not do.
- Most common unintentional tort.
- Failure to observe the protection of
ones interest, the degree of care, and
vigilance of circumstances.

DEFINITION:

- Any professional misconduct which
involves any conduct that exceeds the
limits of ones professional standards.
- Means going beyond the context or
scope of allowed nursing practice
resulting to injury.
- Stepping beyond ones authority.
Negligence vs. Malpractice

Negligence

Malpractice
EXAMPLE:

Incorrect sponge counts
Burns
Failure to take and observe
appropriate actions
Falls
Loss of or damage to a patients
property
Failure to report to superiors and/or
family/SOs
Mistaken identity, wrong medication,
wrong route
EXAMPLE:

Prescribing drugs
Giving anesthesia
Doing surgery
Elements

NEGLIGENCE LAWSUIT

MALPRACTICE

B Breach of duty (cause of the
injury by the plaintiff)

R Real or actual proof injuries to the
standards of care

O Owed specific nursing duty

D Defendant breached duty

P Professional specific standards of
care is required

R Required obedience

E Exceeds the limits of the
standards of care
Proof of Liability
A a duty
B breach of duty (failure)
C cause
D damage (injury/harm)
F forseeability of harm

To further explain
A Duty: At the time of injury, a duty existed between the
plaintiff and the defendant
Breach of Duty: The defendant breached duty of care to
the plaintiff
Cause/Proximate Cause: The breach of the duty was the
legal cause of injury to the client
Damage or injury: the plaintiff experienced injury or
damages or both and can be compensated by law

Intentional Torts

Proof of liability:
willful act
consequence intended
cause of injury

Intentional Torts
Assault threat
Battery contact; unconsented/unwarranted touch
False Imprisonment illegal detention
Defamation character assassination
Oral slander
Written libel
Breach/Invasion of confidentiality/privacy

Intentional Torts
Physical touch through willful
touching of person or clothing
without consent.
Actually touching or injuring a
person in offensive manner.
Hitting or striking a client.
Immediately injecting a surgical
needle without informing the
patient about the said procedure.

Mental or physical threat.

Threatening or attempting
to do violence to another.
Forcing a medication or
treatment when the patient
doesnt want it.
Threatening children to
take the medication.
ASSAULT BATTERY
Intentional Torts
False imprisonment occurs when

The person is not allowed to leave a health care facility
when there is no legal justification to detain the client.

Restraining devices are used without an appropriate
clinical need.


Defamation communication that is false or
made with a careless disregard for the truth and
results in injury to the reputation of a person

(2) Types:
Libel
>defamation by means of print, writing or picture
Example:
writing in the chart/nurses notes that doctor A is
incompetent because he didnt respond
immediately to a call

Slander
> defamation by the spoken word stating
unprivileged (not legally protected) or false word
by which a reputation is damaged

Example:
Nurse a telling a client that nurse B is
incompetent
Person defamed may bring the lawsuit
The material (nurses notes) must be
communicated to a 3rd party in order that the
persons reputation maybe harmed

3. Invasion Of Privacy intrusion into the clients
private domain

Right to be left alone


Types of Invasion the client
must be protected from:
a. use of clients name for profit without consent
using ones name, photograph for advertisements
of Health Care agency or provider without clients
permission
b. Unreasonable intrusion observation or taking of
photograph of the client for whatever purpose
without clients consent.

c. Public disclosure of private facts private
information is given to others who have no
legitimate need for that.

d. Putting a person in a false/bad light publishing
information that is normally considered offensive
but which is not true.

Criminal Negligence

A flagrant and reckless disregard of the safety of others, or
willful indifference to the injury liable to follow.

Criminal Negligence
Reckless imprudence when a person does an act or fails
to do it voluntarily but without malice, from which a
material damage results immediately.

Simple Imprudence the person did not use precaution
and the damage was not immediate or the impending
danger was not evident or manifest.

Common Cases Filed
Failure/incorrect counting of sponge/instrument.
Improper exercise of judgment in the use of restraints.
Failure to contact or notify physician of changes in clients
condition.
Failure to recognize giving emergency treatment.

Common Cases Filed
Health providers attitude
Delayed response time
Patients awareness as to information
Changes of procedures during management
Cost of the medical service
Choice of doctors / Nurses