You are on page 1of 11

LSU BSN 4 – Leininger CI: Mr.

Dennis Montemor, RN

LEGAL CONCEPTS AND ISSUES IN NURSING
RESPONSIBILITY AND ACCOUNTABILITY FOR THE PRACTICE OF PROFESSIONAL
NURSING

 Nurses employed in an agency, institution or hospital are directly
responsible to their immediate supervisors. Private duty nurses, being
independent practitioners, are held to a standard of conduct that is
expected of reasonable prudent nurse

 WHAT IS LIABILITY? Is an obligation or debt that can be enforced by
law. A person who is liable for malpractice is usually required to pay for
damages. Damages refer to compensation in money recoverable for a
loss of damage.

PROFESSIONAL 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 to, and acting or the non-acting of
which is the proximate cause of injury to another person to his
property.

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

5. Errors due to family assistance

6. Administration of medicine without a doctor’s prescription

THE DOCTRINE OF RES IPSA LOQUITUR

 The thing speaks for itself” When the harm that resulted from
negligence and the responsibility for the harm are clear that anyone
would agree on it, the term res ipsa loquitur is used

SPECIFIC EXAMPLES OF NEGLIGENCE

1. Failure to report observations to attending Physicians

/kai.jed
1
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN
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

CONDITIONS THAT ARE NECESSARY FOR THE APPLICATION OF THE DOCTRINE:

1. The accident must be a kind which ordinarily does not occur in the
absence
of someone’s negligence
2. The accident must be caused by an agency or instrumentality within
the exclusive control of the defendant

3. The accident must not have been due to any voluntary action or
contribution on the part of the plaintiff (injured party)

MALPRACTICE
 Implies the idea of improper or unskillful care of a patient by a nurse. It
also denotes stepping beyond one’s authority with serious
consequences

EXAMPLES OF MALPRACTICE:

 Misdiagnosis of an illness, failure to diagnose or relay diagnosis

 Birth Injuries

 Surgical Complications

 Prescription errors

 Failure to provide treatment

 Anesthesia related complications

 Failure to follow advance directive

 Failure of hospital or pharmacy to dispense the right medicine, dosage

/kai.jed
2
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN
DOCTRINE OF FORCE MAJEURE
 It is an irresistible or superior force, one that cannot be foreseen or
prevented; a fortuitous event, and “act of God”. No person shall be
held liable for nonperformance of what was expected of him/her if the
cause of the nonperformance was a force majeure (e.g. devastating
typhoons, earthquakes and other calamities)

DOCTRINE OF RESPONDEAT SUPERIOR

 Means “let the superior answer; let the principal
answer for the acts of his agent”

 The doctrine is founded on the principle that he who
expects to derive advantage from an act which is done
by another for him must answer for any injury which a
third person may sustain from it. The doctrine rests
upon the proposition that, in doing the acts out of which
the accident arose, the servant was representing the
master at the time

EXAMPLES:

 The hospital will be held liable, if, in an effort to cut
down on expenses it decides to hire underboard nurses
or midwives in place of professional nurses, and these
persons prove to be incompetent

 The surgeon will be held responsible in case a
laparotomy pack is left in a patient’s abdomen

INCOMPETENCE

 Is the lack of ability, legal qualifications or fitness to
discharge the required duty

 Although a nurse is registered, if in the performance of
her duty she manifests incompetency, there is ground
for revocation or suspension of her certificate of
registration

/kai.jed
3
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN

LIABILITY OF NURSES FOR THE WORK OF NURSING AIDES

 Nursing aides perform selected nursing activities under
the direct supervision of nurses. They usually given on-
job-training by the Training staff. Their responsibilities
usually pertains to the routine care of chronically ill
patients. They are therefore responsible for their own
actions.

LIABILITY FOR THE WORK OF NURSING STUDENTS

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

GUIDELINES TO AVOID MISTAKES OF NURSING STUDENTS

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 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. Discussion of these
problems will iron out doubts and possible solutions
may be provided.

/kai.jed
4
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN
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

 If the patient’s careless conduct contributes to his own
injury, the patient cannot bring suit against the nurse.

MEDICAL ORDERS, DRUGS, AND MEDICATIONS

 R.A. 6675 states that only validly registered medical,
dental, and veterinary practitioners, whether in private
institution/corporation or in the government, are
authorized to prescribe drugs.

 In accordance with R.A. 5921, or the pharmacy Act as
amended, 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, and sex,
and date of prescription. R.A. 6675 requires that the
drugs be written in their generic names.

IV Therapy and Legal Implications
Philippine Nursing Act of 1991 Section 28

- states that in the administration of intravenous injection,
special training shall be required according to protocol
established

Board of Nursing Resolution No. 8

- states that without such training and who administers
intravenous injections to patients shall be held liable
either criminally under Sec 30 Art. VII of said law or

/kai.jed
5
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN
administratively under sec 21 Art III or both (whether
causing or not an injury or death to the patient)

SCOPE OF DUTIES AND RESPONSIBLITIES IN IV THERAPY

1. Interpretation of the doctor’s orders for IV therapy

2. Performance of venipuncture, insertion of needles,
cannulas except TPN and cutdown

3. Preparation, administration, monitoring and termination
of intravenous solutions such as additives, intravenous
medications, and intravenous push

4. Administration of blood/blood products as ordered by
the physicians

5. Recognition of solutions and medicine incompatibilities

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 proficient
technical ability in the use/care, maintenance, and
evaluation of intravenous equipment

9. Nursing management of total parenteral nutrition, out-
patient intravenous care

10. Maintenance of established infection control and aseptic
nursing interventions

11. Maintenance of appropriate documentation, associated
with the preparation, administration and termination of all
forms of intravenous therapy.

/kai.jed
6
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN

Telephone Orders
 Doctors should limit telephone orders to extreme emergency
where there is no alternative. The use of telephone in a non
emergency as a substitute for the physician himself can lead to
serious error and may border on malpractice.

 Nurse should read back such order to the physician to make
certain the order has been correctly written.

 Such order should be signed by the physician within 24 hours

 The nurse should sign the physician’s name per her own and note
the time and order was received

CONSENT TO MEDICAL AND SURGICAL PROCEDURE
 Consent is defined as a “ free and rational act that
presupposes knowledge of the thing to which consent
is being given by a person who is legally capable to give
consent”

 Nature of consent- an authorization by the patient or a
person authorized by the law to give the consent on the
patient’s behalf.

 Informed Consent-A written consent should be signed to
show that the procedure is the one consented to and
that the person understands the nature of the
procedure

 The nurse’s responsibility in witnessing the giving of
informed consent involves:

 (1) witnessing the exchange b/w the client and the
physician (2) witnessing the client affix his signature (3)
establishing that the client really understood.

/kai.jed
7
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN

ESSENTIAL ELEMENTS OF INFORMED CONSENT:

1. The diagnosis and explanation of the condition

2. A fair explanation of the procedures to be done and
used and the consequences

3. A description of alternative treatments or procedures

4. A description of the benefits to be expected

5. Material rights if any

6. The prognosis, the recommended care, procedure is
refused

WHO MUST CONSENT?

Patient must consent in his own behalf

If he is incompetent, or physically unable, and is not in
emergency case, consent must be taken from another who is
authorized to give it in his own behalf.

CONSENT OF MINORS

Parents or someone standing in their behalf, gives the
consent to medical or surgical treatment of a minor.
Parental consent is not needed if the patient is married or
emancipated

CONSENT OF MENTALY ILL

A mentally incompetent person cannot legally consent to
medical or surgical treatment. The consent must be taken
from parents or legal guardian

/kai.jed
8
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN

MENTAL COMPETENCY

 All patients are presumed to be competent unless
declared incompetent by a court of law. Supporting
documentation of the patient’s behaviors, speech,
decision making and physical and mental status are
very useful in establishing his/her mental competency

EMERGENCY SITUATION

No consent is necessary because inaction at such time may
cause greater injury. If time is available and an informed
consent is possible, it is best that this be taken to protect all
the parties concerned.

REFUSAL TO CONSENT

A patient who is mentally and 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, nor
how imminent the danger to his life or health if he fails to
submit to treatment.

CONSENT FOR STERILIZATION

Sterilization is the termination of the ability to produce
offsprings. The husband and the wife must consent to the
procedure if the operation is primarily to accomplish
sterilization. If emergency cases like ectopic pregnancy and
abruptio placentae, consent from patient is sufficient.

MEDICAL RECORDS

 Was created as a means of communication among health care
practitioners. Today medical records serve two important
functions: to provide legal documentation, and obtain third party

/kai.jed
9
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN
payments (e.g. Medicare) They are good evidence in legal suits
but are not admissible evidence against the patient.

 “ If information is not charted, it was not done or observed”

LEGAL RISKS FOR SAFETY EQUIPMENT

The nurse should exercise reasonable care in selecting equipment to
be used in patients. Generally, a nurse is not liable for a non-
observable and non-discoverable defect in the equipment.

WHAT IS A CONTRACT?

 Is a meeting of minds between two persons where they bind
themselves to give something or to render some services.
Practically anything could be subjected to a contract as long as
these are not contrary to law, morals, good customs, public order
and public policy.

Kinds of Contracts

 Formal Contracts- refers to an agreement b/w parties and is
required to be in writing. E.g. marriage contracts

 Informal Contracts- one in which concluded as the result of a
written document where the law does not require the same to be
in writing.

 Express Contracts- The one in which the conditions and terms of
contract are given orally or in writing by the parties concerned.
E.g. PDN under the doctrine of “facio ut des” means I do that you
may give.

 Implied Contracts- one that is concluded as a result of acts of
conduct of the parties to which the law ascribes an objective
intentions to enter into a contract.

 Void contracts- one that is inexistent from the very beginning and
therefore may not be enforced.

 Illegal contracts- one that is expressly prohibited by law

Illegal Contracts

 Those that are made in protection of the law

 Consent obtained by fraud

/kai.jed
10
LSU BSN 4 – Leininger CI: Mr. Dennis Montemor, RN

 Those obtained under duress

 Those obtained under undue influence

 Those obtained through material misrepresentation

INTENTIONAL WRONGS

A nurse may be held liable for intentional wrongs

TORTS

 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. A person who has been wronged seeks
compensation for the injury or wrong he has suffered
from the wrong doer.

EXAMPLES OF TORT:

 ASSAULT AND BATTERY. Assault is a unjustifiable
attempt to touch another person or even the threat of
doing so while Battery is the actual carrying out of the
threatened physical contact

 DEFAMATION of character occurs where a person
discusses another individual in terms that diminish
reputation. Libel is written defamation. Slander is oral
Defamation

/kai.jed
11