Legal Aspects of Nursing

Nelia B. Perez RN, MSN

PCU - MJCN

Legal Terms

• Negligence• A general term that refers to conduct

that does not show due care• Occurs when someone fails to do

something that a reasonably prudent person would do in a similar situation

• Four essential characteristics• Duty• Breach of duty• Harm• Causation

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

Legal Terms• Duty

• Duty of a professional toward an individual

• That duty is established when the nurse patient relationship is started

• Breach of duty• Nursing care fell below acceptable

standards or the nurse was negligent

Legal Terms• Harm

• The patient has been injured in some way

• Causation• The breach of duty caused the harm

Legal Terms

• Malpractice• Specific type of negligence• Applied to professionals who fail to

follow a standard of care prevalent for the profession and thereby harms another person

• Ranges from being negligent when caring for a patient to betraying a confidence

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.

Legal Terms

• Standard of Care• Level of care a reasonably prudent

nurse would have maintained• Standards of care change with

each new medical advance• Must keep up with the latest

information in your field• Must read journals, attend

conferences• Be familiar with the policy and

procedure manuals and clinical pathways in your facility

Legal Terms

• Liability• And obligation or debt that can be

enforced by law• In cases of malpractice a person

found guilty of a tort is considered legally liable, or legally responsible for the outcome

Liability

• Common sources of liability• Most malpractice claims come from

routine functions• Falls• Medication errors• Burns• Failure to observe• Failure to notify MD• MDs failure to respond• Violation of policies and procedures• Defective equipment• Improper pt teaching

Liability

• Falls• Identify pt who is at risk for a fall and

take action• Blind• Elderly• Sedated• Dizzy• Confused• Immediately post-op

Liability

• Document use of• Restraints• Side rails• Monitoring of pt

• Use care with restraints• Side rails are considered a restraint• May be chemical or physical• Should use the least restrictive

method• Continually monitor the pt• Careful documentation

Liability

• Medication errors• Perhaps 98,000 Americans dies each

year from med errors • Remember the five rights

• Right patient, drug, dose, time, route• Check the med label three times before

administering the med• Know the correct dose• Know the correct route• Know the potential side effects• Clarify any order with the physician who

ordered the drug

The 5Ps of Incident Reporting among Filipino Nurses

• Policy• Probity• Peril• Punishment• Preservation

Liability

• Burns• Hot water• Heating pads• Heating lamps• Sitz bath

Liability

• Failure to observe• Keep monitors on the pt• Monitor vital signs after

administration of pain meds• Monitor pt closely and report any

complications

Liability

• Failure to notify the physician• Must communicate any pertinent

information to the pt’s MD in a timely manner

• Must speak with MD, not leave messages

• Should go up the chain of command if unable to get MD

• Notify MD if there is a change in the pt’s condition

Liability

• Physician's failure to respond• If you feel that the MD does not

respond in a satisfactory manner, must notify the supervisor, hospital administrator, or medical director

Liability

• Violation of policies and procedures• You are responsible for knowing

them• Defective equipment

• Must select the appropriate equipment for a particular pt or procedure

• Maintain that equipment• Use the equipment properly• Report any problems immediately

Liability

• Improper patient teaching• Liable for what you teach or fail to

teach• Give written instructions to reinforce

the verbal instructions• Document teaching in the chart• Must provide it in the patient’s

primary language

Incident Reports• Allows hospital administration to

identify problems within the hospital system

• Alert administration of an event that may end up in a lawsuit

• Important to fill out one to identify problematic situations and create a safe environment

• Keep statements factual, objective, do not draw conclusions

• Do not mention incident report in charting

• May or may not be allowed into court

• Remember that patients who feel that doctors and nurses have done their best are not as likely to sue as a patient who feels ignored or neglected• A little kindness goes a long way!

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 are those where

the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability.

• These circumstances, enumerated in Article 11 of the Revised Penal Code, are (1) self-defense; (2) defense of relatives; (3) defense of a stranger; (4) avoidance of greater evil or injury; (5) fulfillment of duty or lawful exercise of right or office, and; (6) obedience to an order issued for some lawful purpose.

• 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 circumstancesAre 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

Criminal Negligence, mala in se and mala prohibita• Criminal Negligence – committed by

means of faulty (culpa); deceit (dolo) (mala in se) and those which are punished by special law (mala prohibita).

Kinds of criminal negligence

• Reckless imprudence – doing or failing to do an act resulting to injuries or death due to an inexcusable lack of precaution.

• Simple imprudence - mere lack of precaution in a situation where threatened harm is not immediate or the impending danger is not openly visible or manifest.

• Culpa Contractual (breach of Contract) – when a nurse is contractually obligated to perform a particular health service or intervention to a patient and he/she causes death or injuries to the latter.

• Culpa aquiliana a tortous liability which arises from the breach of a professional duty to any person fixed by the laws and such breach constitutes violation of a private legal right, not created by any contract.

End of Life Decisions and the Law

• Do Not Resuscitate Orders• Advance Directives• Contracts/ wills/ testaments• Durable Power of Attorney• Incident Report

LEGAL BASES OF NURSING EDUCATORS, NURSING REGULATION

AND NURSING PRACTICE

R.A. 9173

• AN ACT PROVIDING FOR A MORE RESPONSIVE NURSING PROFESSION, REPEALING FOR THE PURPOSE REPUBLIC ACT NO. 7164, OTHERWISE KNOWN AS "THE PHILIPPINE NURSING ACT OF 1991" AND FOR OTHER PURPOSES

R.A. No. 9173 – Nursing Law• Aims to provide a sound general

and professional foundation for the practice of nursing through quality nursing education.

• The first policy encourages nursing schools and colleges to implement some standards for admission, qualifying exams for 3rd year level promotion and quality part indices for the continuance of nursing student in their respective nursing degree programs to ensure the quality of their nursing graduates.

• The 2nd policy – total quality education can only be achieved when the government makes it accessible to all who are fit and prepared for it.

• Uplift standard of nursing education for this country to produce quality nursing graduates and ultimately globally competitive Filipino Nurses.

• Not to discriminate against student where spirits are willing but in intellectual, they are wanting.

• Every Filipino has the right to education however; every Filipino has the responsibility to know his limitation and to change the course for which he is suited.

R.A. No, 9173 – Nursing Law (cont)

• Nursing Education and nursing practice are constantly interacting while in the process of rapid change to adopt to the existing demands and condition of the health care delivery system.

• They are complimenting each other.

• The success of nursing practice rest upon a sound educational foundation of the nurse.

• The goal of nursing education is to prepare the nursing student for nursing practice.

• Goal of nursing practice is to provide quality nursing service and improve nursing care.

• This is when nursing regulation comes into play.

• Everyone has a right to nursing education as a constitutionally guaranteed right.

Art. XIV, Sec. 1 of the 1987 Constitution

• To protect and promote the right of all citizen to quality education at all level and to take all appropriate steps to make such education accessible to all.

Nursing education

NURSING EDUCATION• R.A. 7164

Required a certification by the school that the applicant belong to the upper 40% of the graduating class, as a general requirement to the nursing degree course.

• R.A. 9173> deletion of said admission requirement> one high school performance is not an accurate basis for college admission and students’ mental competence and psychological preparedness for college education.> More nursing students because more graduating students will be eligible to enroll in nursing degree program and more nursing schools will be opened and offer the degree of BSN.

• R.A. 7722 – CHED

Provide standard or minimum requirement for the operation and regulation of educational institution offering tertiary courses such as BSN.

NURSING EDUCATION (Cont)

CHED Memo Circular No. 30, s. 2001

• Updated policies and standards for nursing education.

• New policy directing the CHED to regulate the establishment and operation of review center.

• Duly authorized government agency that approves the opening and regulates the operation of nursing schools all over the country.

• Created through R.A. 7722, May 18, 1994

CHED Policy on Nursing schools and colleges

• Nurses are needed in every part of the world, with the tremendous global demand, nursing schools and colleges are sprouting everywhere like mushrooms.

• Authority to open and close nursing schools / colleges

CMO No. 30• The authorization to open a nursing school

shall be based upon:

1. written recommendation of BON, PRC and NSA (National Student Affiliation), DOH

2. approval of CHED• The power of BON as to authorization of

opening or closing nursing schools is recommendatory pursuant to COM No. 30 and RA 9173.

B. ADMINISTRATION AND FACULTY• Fulltime Dean and Faculty

Qualification of Dean• Perform vital role and function in nursing

school, required to work fulltime because she is in charge to administer and manage the nursing school, faculty and staff, the nursing student and degree program.

• Filipino Citizen• Currently registered nurse in the

Philippines• Holder of Master’s Degree in Nursing• 5 years of competent teaching and

supervisory experience in college or institute of nursing.

• Member of good standing (ADPCN) and accredited national nursing organization (PNA)

Qualification and Rank of Faculty Members

• A Filipino Citizen• Currently RN in the Philippines• Holder of Master’s degree• At least 3 years of Clinical

experience• Member of good standing

accredited national nursing organization.

R.A. 10609

• AN ACT PROTECTING THE RIGHT OF STUDENTS ENROLLED IN COURSES REQUIRING PROFESSIONAL LICENSING EXAMINATIONS TO ENROLL IN REVIEW CENTERS OF THEIR CHOICE AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF.

NURSING REGULATION

NURSING REGULATION• Professional Regulatory Board of Nursing

* created under new nursing law (RA 9173)

* Primary agency responsible for the regulation of the admission, registration and practice of nursing profession in the Philippines.

* Composition of BON

* one Chairperson

* Six Members

* Appointed by the President of

the Philippines

Qualification of Chairperson and Members of BON

• Representative of 3 areas of nursing (education, service and community health nursing)

• Natural born citizen and resident of the Philippines.

• Member of good standing accredited professional organization of nurses.

• Registered nurses and holder of Master’s Degree

• 10 years of continuous practice of the profession prior to appointment

• No conviction of any offense involving sound turpitude.

Powers, Duties and Responsibilities of the BON

• Conduct licensure examination for nurses (R.A. 8981)

• Prepare adopt and issue the syllabi or tables of specification of the subject for examination in consultation with the academe.

• Determine and prepare the questions for the licensure examinations which shall strictly be within the scope of syllabi or table of specification of the subject for examination.

• To score and rate the examination papers with the name and signature of the board members concerned appearing thereon and sublit the result in all subjects duly signed by the members of the board to the commission within 10 days from the last day of examination unless extended by the commission for justifiable cause and subject to the approval of the commission.

• Determine the appropriate passing general average rating in an examination if not provided for in the law regulatory thru profession.

Conduct licensure examination for nurses (R.A. 8981)-Cont

Our duty is to be useful, not according to our

desires but according to our powers.