LEGAL PROBLEMS IN NURSING

MODULE ONE

SPECIFIC OBJECTIVES

At the end of the modules, you should be able to:

1. explain the meaning of the law as it relates with nursing practice2. define legal terminologies3. enumerate the source of the law4. state the classification of the law5. develop a better understanding of the nursing law and the nursing practice6. discuss other current laws related to nursing and health services7. discuss other laws related to nursing practice and health care services8. develop sensitivity to the legal boundaries of the practice of nursing

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THE LAW AND THE NURSE PRACTITIONER

LESSON 1

THE NATURE OF THE LAW

What is Law? The essence of most definitions is that law is a system of principle and process by which people who live in a society attempt to control human conduct in an effort to minimize the use of force as a means of resolving conflict of interest. Through law, society specifies standards of behavior, the means to enforce those standards and a system for resolving conflict. Laws govern the relationships of private individuals with each other and with the government. The law serves as a guide to conduct, since most disputes or controversies between persons and/or organizations are resolved without lawyers or the court.

The Branches of Government and Their Functions

1. The Legislative Branch - enacts laws that may amend or repeal existing statues or may be entirely a new legislation. The legislature determines the nature and extent of the need for new laws and for changes in existing ones. Congress and legislatures use a committee system under which proposed bills are assigned or referred for study to committees with described areas of concern or interest.

2. The Executive Branch - enforces and administers the law.3. The Judicial Branch is for adjudication, the resolution of disputes in accordance with

the law.

Sources of Law

Each of the branches of government produces a source of law that directly or indirectly affects nursing practice. In addition, the constitution, which creates the distribution of power and authority to enact laws affects nursing practice. The four primary sources of law are:

1. Constitution2. Statutes3. Court Decisions4. Rules of Administrative agencies and decisions

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THE MEANING OF THE LAW, ITS SOURCES AND CLASSIFICATION

Constitution

A. Due Process of law – applies to state actions that deprive a person of “life or property”

The process that is due varies somewhat depending on the situation or primary elements.

1. The rules being applied must be reasonable and not vague2. Fair procedures must be followed in enforcing the rules.

B. Equal protection of the law – means that like persons must be dealt with in a like fashion. The equal protection clause concerned with the justifiability of the classification used to distinguish a particular difference in a rule or procedure can be difficult.

Statutes

These are measures that are enacted by a legislature.

Administrative Agencies Decisions and Rules

The decisions of legislature have delegated the responsibility and power to implement various laws to numerous administrative agencies. The power of an administrative agency includes the quasi-legislative power to adopt regulations and quasi-judicial power to decide how the statues and regulations apply to individual cases.

Court Decisions: (judicial)

These are the result of the court role in the dispute resolution. In deciding cases, the courts interpret statutes and regulations, determine their validity under the appropriate constitution and create the common law when deciding cases that are not controlled by statutes, regulations, or a constitution.

C. CLASSIFICATION OF LAWS

Public Law

1. Criminal Law2. International Law

a. Public International Lawb. Private International Law

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3. Political Law

a. Constitutional Lawb. Administrative Lawc. Law of public administrationd. Law of public corporations

Private Laws

1. Civil Law2. Commercial Law3. Remedial Law

DEFINITIONS OF LEGAL TERMS:

VETO = the power of rejecting a piece of legislative or preventing it from coming into effect.

LAWYER = (variously termed attorney, counselor, or advocate) is a person who has completed certain requirements of study and experience that have qualified him to prosecute and defend clients with cases before the courts. He seeks to enforce the rights of individuals and communities.

Because he is a sworn officer of the court and in a position of trust, he has great responsibility to the public and to his clients.

COURT = the place where legal justice is administered.

SUBPOENA = is a process directed to a person requiring him to attend and to testify at the hearing or trial of actions, a written order to appear in court.

SUBPOENA DUCES TECUM = documents or other things which contain a reasonable description of the books, documents or things demanded which must appear in the court prima facie.

PRIMA FACIE = is an evidence established when left alone by itself would be sufficient as proof of a particular fact until overcome by another evidence.

LAWSUIT = is an action (case) in court.

LITIGANT = a party in a lawsuit

PLAINTIFF = person presenting a civil suit or criminal suit against a defendant.

DEFENDANT = the person charged with a crime.

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WITNESS = the person giving testimony in a court hearing.

NURSING JURISPRUDENCE may be defined as that department of law which comprises all the legal rules and principles affecting the practice of nursing. It is also the interpretation of all these rules and principles and their application in the practice of nursing.

NURSING LEGISLATION – the act or process of making a law or laws and also “the law or laws made”. It is defined as the making of laws or the body of laws already enacted, affecting the science or art and practice of nursing.

WARRANT – is a writing from a competent authority in pursuance of law, directing the doing of an act, and addressed to an officer or person competent to do the act, and affording him protection from damage.

SEARCH WARRANT – is an order in writing to the people or the state, signed by a magistrate (public officer) and directed to a peace officer, commanding him to search for personal property and bring it before the magistrate.

COMPETENT COURT – is a court having lawful jurisdiction.

JURISDICTION – is the authority to hear and decide a legal controversy; it is the authority by which judicial officers take cognizance of and decide cases.

INCOMPETENCY – lack of ability, legal qualifications or fitness to discharge the required duty.

IGNORANCE – want or absence of knowledge in general or in relation to a particular subject.

NEGLIGENCE – is the lack of due diligence or care failure to exercise the case which an ordinary prudent person would use under the circumstances in the discharge of duty then resting upon him.

CRIMINAL LIABILITY – is incurred by a person committing a felony although the wrongful act done is different from that which he intended.

FELONIES – are acts or omissions punishable by law and may be committed not only by means of deceit (dito) but also by means of fault (culpor)

DECEIT – when the act is performed with deliberate intent.

MALPRACTICE – is any profession misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.

DISHONORABLE CONDUCT – is a personal behavior deportment or course of action that is shameful, reproachful, base, or that conduct of a person which stains his character or lessens his reputations.

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UNPROFESSIONAL CONDUCT – is a behavior or a course of action unbecoming of a professional practitioner.LESSON 2 THE NURSING LAW AND NURSING PRACTICE

INTRODUCTION

Nurses make decisions daily that affect the well being of their patients. They often know very personal information about patients fraught with legal risk.

As nurses begin professional obligations, their legal responsibilities begin as well; they are held responsible and accountable for the quality of performances of their duties. Their license to practice attest that they are qualified under the law to practice their profession.

The Philippine Nursing Act of 2002 RA9173 is the best guide the nurse can utilize as it defines the scope of nursing practice. There are also standards of care that may be used as criteria in evaluating their work.

These should be understood so that the scope and limitations may be defined and identified, in order that the performance of daily tasks are assumed with more confidence and safety.

However, failure to meet the standard of due care will mean a legal implication in nursing practice.

Philippine Nursing Act of 2002

RA 9173 – AN ACT REGULATING THE PRACTICE OF NURSING IN THE PHILIPPINES

This portion focuses on the nurse practicing her Nursing Profession Article I – Section 1 with the title – The Philippine Nursing Act of 2002.

Article VI: Nursing Practice

Section 28. Scope of Nursing. - A person shall be deemed to be practicing nursing within the meaning of this Act when he/she or in collaboration with another, initiates and performs nursing services to individuals, families and communities in any health care setting. It includes, but not limited to, nursing care during conception, labor, delivery, infancy, childhood, toddler, preschool, school age, adolescence, adulthood, and old age. As independent practitioners, nurses are primarily responsible for the promotion of health and prevention of illness. A member of the health team, nurses shall collaborate with other health care providers for the curative, preventive and rehabilitative aspects of

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care, restoration of health, alleviation of suffering, and when recovery is not possible, towards a peaceful death. It shall be the duty of the nurse to:

(a) Provide nursing care through the utilization of the nursing process. Nursing care includes, but not limited to, traditional and innovative approaches, therapeutic use of self, executing health care techniques and procedures, essential primary health care, comfort measures, health techniques, oral topical and parenteral medications, internal examination during labor in the absence of antenatal bleeding and delivery. In case of suturing of perineal laceration, special training shall be provided according to protocol established;

(b) Establish linkages with community resources and coordination with the health team;

(c) Provide health education to individuals, families and communities;(d) Teach, guide and supervise students in nursing education programs

including the administration of nursing services in varied settings such as hospitals and clinics; undertake consultation services; engage in such activities that require the utilization of knowledge and decision-making skills of a registered nurse; and

(e) Undertake nursing and health human resource development training and research, which shall include, but not limited to, the development of advance nursing practice;

Provided, That this section shall not apply to nursing students who perform nursing functions under the direct supervision of a qualified faculty: Provided, That in the practice of nursing in all settings, the nurse is duty-bound to observe the Code of Ethics for nurses and uphold the standards of safe nursing practice. The nurse is required to maintain competence by continual learning through continuing professional education to be provided by the accredited professional organization or any recognized professional nursing organization: Provided, finally, that the program and activity for the continuing professional education shall be submitted to and approved by the Board. (Venzon & Venzon, 2005)

Scope of Nursing Practice

The scope of nursing practice is specifically enumerated in Republic Act No. 9173. This new nursing law encourages nurses to expand their practice by pursuing advanced or specialty trainings for advanced nursing practice.

Scope of nursing. The scope of nursing means the extent or range of health care activities which a nurse can do or perform pursuant to law. Whether for free or a fee, salary, or reward or compensation, it is a legal nursing practice under section 28 of R.A. No. 9173, when a licensed nurse initiates and performs (a) nursing services, whether singly or collaboratively, to individuals, families and communities in any health care setting; (b) nursing care, whether singly or collaboratively, during conception, labor, delivery, infancy, childhood, toddler, pre-school, school age, adolescence, adult and old age

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(stages of development); (c) nursing action as independent practitioners for the promotion of health and prevention of illness; and (d) collaborative work with other health care professionals for the curative, preventive, and rehabilitative aspects of care, restoration of health, alleviation of suffering, and when recovery is not possible, toward a peaceful death.

The widened scope of nursing care in the said law allows a nurse to advance its nursing clinical practice to cover areas such as internal examination during labor and delivery; suturing of perineal lacerations, ,and parenteral medications. In fact, the law defines nursing care in this wise:

Nursing care includes, but not limited to, traditional and innovative approaches, therapeutic use of self, executing health care techniques and procedures, essential primary health care, comfort measures, health teachings and administration of written prescription for treatment, therapies, oral, topical, and parenteral medications, internal examination during labor in the absence of antenatal bleeding and delivery. In case of suturing of perineal laceration, special training shall be provided according to protocol established (Sec. 28(a), R.A No. 9173) (Emphasis ours). (De Belen, and De Belen 2007)

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LESSON 3 LAWS RELATED TO HEALTH CARE SERVICES

Nursing and other allied medical professions are responsible for insuring that its members act in the public interest providing a unique service that society has entrusted to them. The shared values of people are the bases of the law.

RA # 1082 as amended provides for the creation of rural health units. Public health nursing in the Philippines is in great demand particularly in the rural areas. For this reason and to provide these areas with competent public health nursing service, the government has established rural health units staffed with technical personnel including public health nurses.

PD 996 – requires compulsory immunization for all children below eight years old against CA Circular #14 1965 which requires health examination and immunization of all prospective Grade I pupils against small pox Diphtheria and Tuberculosis as a prerequisite for enrollment.

RA 7305 approved last March 26, 1992 entitled the Magna Carta for Public Health Workers – its significant objectives are:

1. Promote and improve the social and economic well being of health workers.2. Develop their skills and capabilities3. Encourage those qualified and with abilities to remain in government services.

RA 6111 of 1969 – Known as the Philippine Medicare Act

RA 7600 Approved last 1992 – Rooming in breast-feeding provides that babies born in private and government hospitals should be roomed in with their mothers to promote breast-feeding and ensure safe and adequate nutrition to children. This is enforced by the milk code (Executive Order #51)

RA 7432 – Senior’s Citizen Act – This law does honor and justice to our peoples’ long tradition of giving high regard to our elderly; it entitles the elderly a twenty percent (20%) discount in all public establishment such as restaurants, vehicles and hospitalization. It also entitles them to free medical and dental checkup and hospitalization in all government hospitals.

RA 7719 – National Blood Services (1994) An Act promoting voluntary blood donation, providing for an adequate supply of safe blood, regulating blood banks and providing penalties for violation thereof.

RA 6425 – Dangerous Drug Act of 1972 – controls the sale, administration, delivery, distribution and transportation of prohibited drugs.

RA 7875 – The National Health Insurance Law

The National Health Insurance Act of 1995 was passed by congress of February 7, 1995 and became a law on February 14, 1995.

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LEARNING ACTIVITIES

Answer the following and submit your typewritten answers/reactions/comments to your professor.

1. In one or two statements use the following legal terms in a simple situation within the field of nursing.

- Dependent – allegation – license – prima facie- Affidavit – accused – plaintiff – search warrant - Subpoena dues tecum

2. State and explain the specific section of the nursing law affecting the practice of nursing.

3. Discuss five current other law directly affecting nursing practice and health care services. How do these laws affect our practice as nurses?

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LEGAL PROBLEMS IN NURSING

MODULE TWO

THE NURSES AS A PROFESSIONAL PRACTITIONER

SPECIFIC OBJECTIVES

At the end of the module, you should be able to:

1. discuss the specific provisions of the Nursing law relating to the professional nurse practitioner

2. explain the role of the Professional Regulation Commission and specifically the Board of Nursing to the Professional Nurse and her professional practice.

3. appreciate the significance of the attributes/ trademarks of a professional as they relate to the professional nurse.

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INTRODUCTION

As Professional nurses we are expected to be always competent and maintain the highest standard of nursing care. That’s why in every procedure activity that we are doing, presence of mind is very important. A prudent nurse should always consider the needed skills, knowledge and attitude in rendering nursing care to their patient. They also have the right to receive prompt and adequate medical treatment for any ailments. In giving them information, the patient feels their importance and will facilitate their cooperation to whatever treatment they are given. They will realize that you care for them and value them as a person.

A nurse must be careful in doing her work because she is dealing with life. Whatever will happen to the patient, the nurse will be held liable for it. We must be cautious and consider even the most simple and basic responsibilities for the welfare of the patient. Under the civil code a nurse is liable for negligence if she fails to do what should have been done which causes risk to the life of the patient.

A nurse work is to provide nursing care to the patient regardless of its race and status in the society. According to the Code of Ethics the nurse is expected to serve and care for her patient with utmost solitude, giving him always the best of her talent and skill. That’s why in every thing that we do we should be competent in our profession.

According to the Patient’s Bill of Rights, the patients have the right to be given information and rationale about the medications given to them as well as other medical procedures rendered to them.

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LESSON 1 THE NURSING LAW AND THE PROFESSIONAL NURSE PRACTITIONER

REPUBLIC ACTS NO. 9173PHILIPPINE NURSING ACT OF 2002

ARTICLE II

DECLARATION OF POLICY

Sec. 2. Declaration of policy – it is hereby declared the policy of the state to assume responsibility for the protection and improvement of the nursing profession by instituting measures that will result in relevant nursing education and in humane working conditions, better career prospects and a dignified existence for our nurses. (Venzon & Venzon 2005)

The state hereby guarantees the delivery of basic health services through an adequate nursing personnel throughout the country.

By implication from the provision of the nursing act, a nurse who performs the procedure, undertakes to hold herself responsible for the performance or execution of every nursing techniques and procedures for the administration of comfort measures and prescribed treatments. Minimal handling technique by all involved in the care of patients is done to avoid infection and complications. Giving instructions for instance to mother/watcher on how to dress the wounds properly upon discharge, and if necessary demonstrate with return demonstration the procedure/s which are highly recommended.

If problem arises when the nurse is unavailable to perform her duties through negligence that causes damage to the patient, she will be liable for damages. If she is at fault or negligent because who ever act or omit any prescribed activity that causes damage to another, it is considered a fault or negligence, she is obliged to pay for the damage done. The courts will not hesitate to find a nurse guilty of negligence in the supervision of patients if she fails or omits to take precautions or to undertake steps to safeguard the patients against possible injury that may arise in the course of treatment and care due to negligence or careless execution of procedure thus the patient suffered an injury.

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PROFESSIONAL ACCOUNTABILITY

I. HOW CAN A PROFESSIONAL STATUS BE ACHIEVED?

An individual can achieve a professional status when an occupation involves a unique practice which carries great individual responsibility and is based upon theoretical knowledge from a highly specialized education with continuous development through research.

ACCOUNTABILITY – is one of the identifying characteristics of a profession. It is the ability and willingness to take responsibility for one’s behavior while engaged in the practice of one’s profession. The accountable person is one who is expected to be able to distinguish between right and wrong and to think and act rationally.

II. PROFESSIONAL ACCOUNTABILITY

1. TOWARDS THE CLIENTELE , INSTITUTION and the SOCIETY / PUBLIC

The profession’s concern for the quality of its service constitutes the hearts of its responsibility to patients/clientele/Institution and the public/society. The more expertise required to perform the service, the greater is society’s dependence upon those who carry it out.

2. TOWARDS THE PROFESSION

The professionals should practice within the standards of their respective professions and within the precepts of their own law and Code of Ethics. The control in the practice of the profession guarantees the quality of service which has two fold purpose:

1) Protection of self and 2) protection of patient.

3. TOWARDS THE INDIVIDUAL

There is individual accountability for the quality of their practice, their expertise, their competence. It is their responsibility to utilize the standards set by their respective professions to assure quality of health care.

This also includes the individual’s commitment to the ideals of the profession, regardless of creed, race, political affiliation and economic status.

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Trademarks of a Real Professional

Knowledge: You know your field of activity thoroughly. You studied and worked to gain your knowledge and you are not likely to be fooled or bluffed about your field.

Experience: You have much meaningful experience. You have been exposed to the tough situations and can react spontaneously with the right response.

Skill: You are an expert. You do a tough quality job. You out-perform the amateurs. You have learned the best method, practiced it, and can deliver in the pinches.

Confidence: Your abilities and knowledge have bred a justifiable confidence. It shows. Others respect it. Your confidence is not only in yourself, but in your fellow team workers.

Mobility: You are fully mobile. You are secure in your ability, and have no concern for job security as such. You are welcome in anybody’s team.

Performance: You like to win. You use all of your talents to come out on top, to get the results you can be proud of.

Recognition: You get much satisfaction from your work, and you are realistic about your own worth. You know that adequate compensation takes many forms.

Leadership: You are willing to provide leadership in your field, devoting a portion of your time and effort to this end, to be known as a giver rather than a taker. You see the value and need of service pro bono publico.

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LESSON 2 THE ROLE OF THE BOARD OF NURSING, PHILIPPINE REGULATION COMMISSION

Article III of RA 9173 entitled – Organization of the Board of Nursing

Section 3 – Creation and Composition of the Board – There shall be created a Professional Regulatory Board of Nursing, hereinafter referred to as the Board, to be composed of a Chairperson and six (6) members. They shall be appointed by the president of the Republic of the Philippines from among two (2) recommendees per vacancy of the Professional Regulation Commission, hereinafter referred to as the Commission, chosen and ranked from a list of three (3) nominees per vacancy of the accredited professional organization of nurses in the Philippines who possess the qualifications prescribed in Section 4 of this Act.

Section 4. Qualifications of the Chairperson and Members of the Board – The Chairperson and Members of the Board shall, at the time of their appointment, possess the following qualifications:

(a) Be a natural born citizen and resident of the Philippines;

(b) Be a member of good standing of the accredited professional organization of nurses;

(c) Be a registered nurse and holder of a master’s degree in nursing, education or other allied medical profession conferred by a college or university duly recognized by the Government: Provided, that the majority of the members of the Board shall be holders of a master’s degree in nursing: Provided, further: That the Chairperson shall be a holder of a master’s degree in nursing;

(d) Have at least ten (10) years of continuous practice of the profession prior to appointment: Provided however, That the last five (5) years of which shall be in the Philippines; and

(e) Not have been convicted to any offense involving moral turpitude; Provided, That the membership to the Board shall represent the three (3) areas of nursing, namely: nursing education, nursing service and community health nursing.

Section 5. Requirements Upon Qualification as Member of the Board of Nursing – Any person appointed as Chairperson or Member of the Board shall immediately resign from any teaching position in any school, college, university or institution offering Bachelor of Science in Nursing and/or review program for the local nursing board examination or in any office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries as well as those employed in the private sector. He/she shall not have any

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pecuniary interest in or administrative supervision over any institution offering Bachelor of Science in Nursing including review classes.

Section 6. Term of Office. - The Chairperson and Members of the Board shall hold office for a term of three (3) years and until their successors shall have been appointed and qualified: Provided, That the Chairperson and members of the Board may be re-appointed for another term.

Any vacancy in the Board occurring within the term of a Member shall be filled for the unexpired portion of the term only. Each Member of the Board shall take the prior oath of office prior to the performance of his/her duties.

The incumbent Chairperson and Members of the Board shall continue to serve for the remainder of their term under Republic Act No. 7164 until their replacements have been appointed by the President and shall have been duly qualified.

Section 7. Compensation of the Board Members - The Chairperson and Members of the Board shall receive compensation and allowances comparable to the compensation and allowances received by the Chairperson and members of other professional regulatory boards.

Section 8. Administrative Supervision of the Board, Custodian of the Records, Secretariat and Support Services. – The Board shall be under the administrative supervision of the Commission. All records of the Board, including applications for examinations, administrative and other investigative cases conducted by the Board shall be under the custody of the Commission. The Commission shall designate the Secretary of the Board and shall provide the secretariat and other support services to implement the provisions of this Act.

Section 9. Powers and Duties of the Board. – The Board shall supervise and regulate the practice of the nursing profession and shall have the following powers, duties and functions:

(a) Conduct the licensure examination for nurses;(b) Issue, suspend or revoke certificates of registration for the practice of nursing;(c) Monitor and enforce quality standards of nursing practice in the Philippines and

exercise the powers necessary to ensure the maintenance of efficient, ethical and technical, moral and professional standards in the practice of nursing taking into account the health needs of the nation;

(d) Ensure quality nursing education by examining the prescribed facilities of universities or colleges of nursing or departments of nursing education and those seeking permission to open nursing courses to ensure that standards of nursing education are properly complied with and maintained at all times. The authority to open and close colleges of nursing and/or nursing education programs shall be vested on the Commission on Higher Education upon the written recommendation of the Board;

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(e) Conduct hearings and investigations to resolve complaints against nurse practitioners for unethical and unprofessional conduct and violations of this Act, or its rules and regulations and in connection therewith, issue subpoena ad testificandum and subpoena duces tecum to secure the appearance of respondents and witnesses and the production of documents and punish with contempt persons obstructing, impeding and/or otherwise interfering with the conduct of such proceedings, upon application with the court;

(f) Promulgate a Code of Ethics in coordination and consultation with the accredited professional organization of nurses with one (1) year from the effectivity of this Act;

(g) Recognize nursing specialty organizations in coordination with the accredited professional organization; and

(h) Prescribe, adopt issue and promulgate guidelines, regulations, measures and decisions as may be necessary for the improvements of the nursing practice, advancement of the profession and for the proper and full enforcement of this Act subject to the review and approval by the Commission.

Section 10. Annual Report. – The Board shall at the close of its calendar year submit an annual report to the President of the Philippines through the Commission giving a detailed account of its proceedings and the accomplishments during the year and making recommendations for the adoption of measures that will upgrade and improve the conditions affecting the practice of the nursing profession.

Section 11. Removal or Suspension of Board Members. – The president may remove or suspend any member of the Board after having been given the opportunity to defend himself/herself in a proper administrative investigation, on the following grounds:

(a) Continue neglect of duty or incompetence;(b) Commission or toleration of irregularities in the licensure examination; and(c) Unprofessional, immoral or dishonorable conduct (Venzon & Venzon 2005)

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LEARNING ACTIVITIES

Answer the following and submit your typewritten answers/reactions to your professor.

1. Among the trademarks / attributes of a professional, describe at least five as applied to a professional nurse practitioner.

2. Discuss the rule of the PRC affecting professionals in general and specifically the BON, affecting the nursing profession and the professional nurse.

3. How can the Board of Nursing help to make the nursing profession truly respected and recognized by the government and all sectors of the society?

4. What is the role of BON to make the Filipino nurses globally competitive and in demand in the international market? 5. Discuss a process/training on how we can develop competent, responsible and accountable graduate nurses.

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LEGAL PROBLEMS IN NURSING

MODULE THREE

THE NURSE AS AN EMPLOYEE

SPECIFIC OBJECTIVES

At the end of the module, you should be able to:

1. discuss the employer and employee`1 relationship

2. explain the role of the DOLE and CSC relating to the nurse as an employee

3. appreciate the importance of these agencies in the practice of the nurse within the agency.

INTRODUCTION

The hospital and other health care facilities are part of the whole health care delivery system. All of these facilities employ many and various health care providers. This module will focus on nurses as employees. Once the nurse signs her contract of employment, there is already an employer (the institution or any health facility) employee (the nurse) relationship. Nursing comprises approximately 50% or more of most hospital budgets. Nursing therefore can be linked between quality and cost.

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LESSON 1 PROFESSIONAL EMPLOYEE – EMPLOYER RELATIONSHIP

A professional nurse, like any other health care provider and professional once

accepted to work in any health care facility, the relationship commence. This is established by accomplishing or performing the roles and responsibilities of the employer and employee. On the side of the professional nurse, there is a need to continuously monitor patterns of patient care because of its relationship to its labor-intensive nature, so that nursing must document what it does, how it does it, what difference it makes to the patients and their length of stay in the hospital. A nurse’s level of knowledge activity and skilled care should be commensurate with the level of patients’ category which in turn will shorten the length of stay of patients in a health facility decreasing hospital cost.

The resulting emphasis on efficiency and productivity, forces nurses to sharpen the approaches to planning nursing care. This plan of care should be realistic, measurable and achievable in the time allotted for care and that discharge planning be initiated at the time of admission to provide continuity of care in the home and community. Using the skills of professional in the most efficient and effective manner in terms of patient outcomes surely maintain and sustain a smooth and good employer-employee (professional) relationship. On the other hand the employer takes cognizance of the efforts and quality care outcomes by the employee producing a balanced relationship between them.

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LESSON 2 THE ROLE OF THE CIVIL SERVICE COMMISSION AND DEPARTMENT OF LABOR AND EMPLOYMENT

The Omnibus Rules implementing Book V of Executive order 292 otherwise known as Administrative Code of 1987 are presented in a comprehensive, consolidated and updated all operating procedures in the bureaucracy’s personnel management and administrative system. This was made effective November 23, 1989 with Resolution No. 91-1631 dated December 27, 1991. The following rules are hereby adapted and prescribed in order to carry out the provisions of said Code and other pertinent Civil Service laws.

The Omnibus Code and the Labor Code provide necessary guidelines/directions for employers in preparing their own policies, rules and regulations and Standard Operating Procedures (SOP) on personnel activities from recruitment to separation. This in turn will be used or served as guidance for employees to follow, hence their performance will be efficient and effective for good service without fear of committing any infractions. This will assure them freedom from liabilities as employees, professional and non-professional.

If they have been made aware of these rules and regulations, then they will be given appropriate directions in every function/ duty they do in their everyday activities within their respective agencies.

Specifically, The Labor Code of the Philippines has a decree instituting a labor code thereby revising and consolidating labor and social laws to afford protection to labor, promote employment and human resources development and insure industrial peace based on social justice. In its declaration of basic policies it is mentioned that the state shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The state shall assure the right of workers to self-organization in collective bargaining, security of tenure and just and human conditions of work.

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LESSON 3 THE RIGHTS AND RESPONSIBILITIES OF THE NURSE PRACTITIONER VIS-À-VIS THE RIGHTS OF THE

CLIENTELE

The List of Some Important Responsibilities of the Nurse. They reflect both common sense judgment and high moral and professional standards. The nurse that follows this may avoid the situations that may lead to serious accidents or lawsuits.

1. A nurse is courteous, cheerful, and understanding with her patients, but careful not to arouse dissatisfaction. She does not let a sympathetic nature cause her to utter indiscretions.

2. If a nurse feels with good reason that an immediate associate or a patient present an incompatibility problem, she discusses the matter frankly with her immediate superior.

3. A nurse is honest with herself and her superiors about her capabilities, training and experience. She does not let false pride cause her to undertake a procedure or duty for which she knows she is unqualified.

4. A nurse who does not undertake a nursing responsibility that calls for more energy or mental effort when she is available and emotionally upset can be readily reflected in her performance.

5. A nurse keeps herself informed. She studies the procedures, plan of organization, and layout of the hospital, home, or agency wherein she is employed. She keeps up with the latest development in her field.

6. A nurse maintains carefully written notes and records of her orders and nursing activities and she makes sure that they are received by the proper custodian.

7. A nurse studies the relationship of her co-professionals at the hospital. She joins with the nursing service, in close scrutiny of the care and treatment of patients and equipment.

8. A nurse keeps in mind her right and duty to question when she is in doubt about the propriety of procedures, the condition of equipment, or proper drug or dosage in medication and takes the necessary steps to clear that doubt to her satisfaction.

9. If a nurse makes an error or discovers the error of another, she does what is needed to correct it. She does not conceal it. The judge and the jury are more sympathetic toward professional people as dependents than others except when there is evidence of concealment.

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10. They represent the best chance to keep her free from suit. Meanwhile, she obeys the rules and helps others abide by them whether it is a stop order on certain drugs or a rule about clothing in the operating room.

Civil rights of the Nurses

According to Webster, one of the definitions of right is the power or privilege to which one is justly entitled. To have a right implies the ability to demand with justification, that which is moral and legal. Nurses have many rights and responsibilities depending on their relationship and obligations to others. Among the civil rights of the nurse are the following:

1. The right to economic reward – this reward implies the salary; paid vacation; paid sick leave and holidays, insurance pension plans and other benefits. Nurses, like other individuals, cannot live on the good will earned for dedication and service alone. She needs money in order to survive, therefore nurses have the right to demand salary and benefits which reflect their value and level of responsibility.

2. The right to working conditions that do not jeopardize their physical or mental health or well being. Nurses should not be expected to work in an environment that is not safe, nor should they be expected to work an excessive number of hours or days without adequate off duty time.

3. The right to pursue activities leading to professional development. Such activities include educational meetings, workshops, conferences and formal structured academic courses offered by colleges or universities.

4. The right to control professional practice as defined by state law. This means that nurses have the right to participate in any decision making that affects nursing. Nurses have the right to be informed because nurses have been legally mandated to assume responsibility for nursing.

5. The right to collective bargaining/action. Not only do nurses have the right to join nursing organizations, but they also have the right to take political action on behalf of nursing and the health care consumer.

6. The right to set standards for nursing practice, education and research. They also have the right to enforce such standards and to promote optimal health care service and delivery.

7. The Nurse has the right to be free from sexual harassment or sex discrimination. This may involve a man or woman being refused employment because the job is usually filled by some of the opposite sex. It can involve promotions, paying less for the same work or being treated as inferior.

Title VII of the Civil Rights Act of 1964 defines sexual harassment as “unwelcome sexual advances; request for sexual favors and other verbal or physical

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conduct of a sexual nature when submission or rejection of this conduct explicitly or implicitly affects an individual’s work performance or creates an intimidating hostile or offensive work environment”. Sexual harassment can occur in a variety of circumstances. It may include but is not limited to:

1. The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

2. The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker or non-employee.

3. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

4. Unlawful sexual harassment may occur without economic injury to, or discharge of the victim.

5. The victim has a responsibility to establish that the harasser’s conduct is unwelcome.

To top this, it is to the victim’s best interest to directly inform the harasser that the conduct is unwelcome and must stop at once. Each instance reported to authorities is handled on a case to case basis and involves a thorough investigation.

Bill of Rights of the Patients:

1. The patient has the right to consider and respect care.2. The patient has the right to obtain from his physician complete current information

concerning his diagnosis, treatment and prognosis which he/she is reasonably expected to understand.

3. The patient has the right to know what hospital rules and regulations apply to his conduct as patient.

4. The patient has the right to examine and receive an explanation of his bill regardless of source of payment.

5. The patient has the right to refuse treatment to the extent permitted by law and to be informed of the medical consequences of his action.

6. The patient has the right to expect communications and records pertaining to his care which should be treated as confidential.

7. The patient has the right to every consideration of his privacy concerning his own medical care program.

8. The patient has the right to expect that the hospital must make reasonable response to the request for patient service. The hospital must provide evaluation service and/or referral as indicated by the urgency of the case.

9. The patient has the right to expect reasonable continuity of care. He has the right to know in advance what time physicians are available and where.

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10. The patient has the right to be advised if the hospital proposes to engage in or perform human experimentation affecting his care or treatment. The patient has the right to refuse to participate in such a research project.

LEARNING ACTIVITIES

Submit your typewritten answer/reactions/ comments on the following:

1. Illustrate in a situation a specific and significant professional nurse employee – employer relationship.

2. State two provisions of each of the labor law and the CSC MC 30, that govern and dictate two specific activities of a professional nurse while working as an employee.

3. Discuss in outline form the rights of a nurse vis-à-vis the rights of a client.

4. How do we educate our patients/nurses regarding their rights?

5. How do we develop licensed nurses who are professional and legally conscious individuals about their rights?

6. Patients are now very much aware of the “Patients Rights”, how do we communicate to them their rights and privileges?

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LEGAL PROBLEMS IN NURSING

MODULE FOUR

SPECIFIC OBJECTIVES

At the end of module, you should be able to:

1. recognize the causes of multifaceted errors committed by a nurse2. discuss the two types of liabilities confronting a nurse practitioner3. explain the factors affecting the liabilities of nurses4. appreciate the importance and significance of knowing the liabilities of nurses5. apply critical thinking in analyzing administrative and clinical cases.6. understand the liabilities of the nurse practitioner

INTRODUCTION

Like any member of the other professions, the professional nurse has legal responsibilities to assume in the practice of her profession. These legal responsibilities are in every service she renders to patients and may have problems involving negligence in the performance of her duties or in the care or supervision of care to patients or in the fulfillment of contractual obligations. The nurse should know her responsibilities (legal) to her professional practice so that she may be properly guided by her functions to avoid incurring criminal liability. It is sufficient that the nurse possesses such working knowledge of her legal responsibility to enable her to minimize legal entanglements and avoid criminal liabilities as well as *civil liabilities.

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THE LIABILITIES OF A NURSE PRACTITIONER

LESSON 1 FACTORS AFFECTING THE LIABILITIES OF A NURSE PRACTITIONER

Nursing liability would involve ethnic or state violation and would result either in a civil or criminal proceeding. Certain elements of liability must exist for such a court proceeding to take place. First, there must be a legal basis such as statutory law, for finding liability. Second, there must exist a casual relationship between harm to the patient and the act of or commission to act by the nurse. Finally there must be some damage or harm sustained by the patient.

The following are the factors to be considered in liabilities

1. JUSTIFYING CIRCUMSTANCES

- An offender does not render himself criminally liable in defense of his person or rights provided that:

a. There is an unlawful aggression on the part of the offended or injured party.

b. There is reasonable necessity of the means employed by the person defending himself to prevent such aggression.

c. There is lack of sufficient provocation on the part of the offenders.

Anyone who acts in the defense of the person or right of his spouse or relative does not likewise incur any criminal liability.

Any person who acts in the fulfillment of a duty or in the lawful exercise or right of office shall not also incur any criminal liability where such an act results in the commission of a crime.

When a nurse is under an order from her superior she should be able to discern whether the order is lawful or not because if such an order would result in the commission of a crime, she would be criminally liable.

2. EXEMPTING CIRCUMSTANCES

- The following persons under these circumstances are expressly exempted by the law from criminal liability for the crime they may have committed.

a. An imbecile or an insane person, unless the latter has acted during a lucid

interval.

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b. A person under nine years of age.

c. A person over nine years of age and under fifteen unless he has acted with discernment.

d. Any person who, while performing a lawful act with due care, causes an injury merely by accident without fault or intention of causing it.

e. Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury.

f. Any person who fails to perform an act as required by law when prevented by some lawful or insuperable cause.

3. MITIGATING CIRCUMSTANCES

- Those which do not constitute justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability are:

a. Circumstances which are otherwise justifying or exempting were it not for the fact that all requisites necessary to justify the act or to exempt the offender from criminal liability in the respective cases are not attendant.

b. That the offender had no intention to commit so grave a wrong as that committed.

c. That the offender is under eighteen years of age or over seventy years old.

d. That sufficient provocation or threat on the part of the offended party immediately preceded the act.

e. That the act was committed in the immediate vindication of a grave offense to the one committing the felony, his spouse, ascendants, legitimate, natural or adopted brothers or sisters, or relative by affinity within the same degrees.

f. That of having acted upon an impulse so powerful as naturally to have produced passion obfuscation.

g. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution.

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h. That the defender is deaf and dumb, blind or otherwise suffering from some physical defect which thus restricts his means of action, defense or communication with his fellow beings.

i. Such illness of the offender as would diminish the exercise of his will-power without, however, depriving him of consciousness of his acts.

4. AGGRAVATING CIRCUMSTANCES

- These are the circumstances attending the commission of a crime which increase the criminal liabilities of the offender or make his guilt more serve are:

a. That advantage may be taken by the offender of his public position.

b. That the crime he committed in contempt of or which insult public authorities.

c. That the act be committed with abuse of confidence or obvious ungratefulness.

d. That the crime committed is in consideration of a price reward or promise.

e. That the crime be committed by means of inundation, fire, poison, explosion, standing of a vessel or intentional damage thereto, derailment of a locomotive or the use of any other artifice involving great waste and ruin.

f. That the act be committed with evident premeditation.

g. That craft, fraud or disguise be employed.

h. That the crime be committed on the occasion of the crime deliberately augmented by causing other wrong not necessary for its commission.

5. ALTERNATIVE CIRCUMSTANCES

These are those which must be taken into consideration as aggravating or mitigating depending on the nature and effects of the crime and on the conditions attending the commission of the same. These alternative circumstances are the relationship, intoxication and degree of instruction and education of the offender.

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LESSON 2 CIVIL LIABILITIES OF A NURSE PRACTITIONER

ACCOUNTABLE means responsible or answerable. The accountability of a nurse to the patient, physician, employer, or to the public at large has reference to the quality of nursing care she renders. The accountability of a nurse practitioner to the public for the quality of her nursing service is presumed because the primodial aim of nursing law is primarily to protect the public. Consequently, it is not only the power but the duty of the Board of Nursing or PRC to discipline a nurse practitioner who is found to be professionally incompetent or guilty of unethical practices.

A. NEGLIGENCE – refers to the commission/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 non – acting is the proximate cause of injury to another person or to his property.

PROFESSIONAL NEGLIGENCE – is defined as doing that thing which a reasonably prudent person would not have done or the failure to do that thing which a reasonably prudent person would have in like or similar circumstances; it is the failure to exercise the degree of care and prudence which a reasonably prudent person would have exercised in like or similar circumstances.

In every case involving actionable negligence, there must exist three elements:

a. existence of a duty on the part of the person charged and to the complaining party from the injury received

b. failure to perform that duty or to meet that standard of due care.

c. injury resulting from such failure.

TEST OF NEGLIGENCE – 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.

Under the Revised Penal Code Article 16, 18 and 19 failure to foresee harm to the person injured followed by ignorance of the admonition born of provisions constitutes in fact a negligence.

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SOME COMMON ACTS OF NEGLIGENCE:

1. Injury to a delirious patient under the care of a nurse.

2. Burns as a result of the negligent administration of hot water bags, heat lamps, vaporizers, hot sits bath.

3. Any object left in a patient’s abdomen in the course of a surgical operation.

4. The use of defective equipment to patient.

5. Careless execution of doctor’s order or prescription.

6. Falls of patients from bed causing injury thereof.

7. Death of patients resulting from injection of digitalis, and/ or other similar drugs.

8. Failing to report case history and observation about the patient to the attending physician.

9. Administering medicine without doctor’s prescription.

DOCTRINE OF DEFENSE

1. Doctrine of Imputed Negligence or Command Responsibility – means that the responsibility of a person, who is not negligent for the wrongful conduct or negligence of another, may be in a form of:

a. Doctrine of Ostensible Agentb. Captain of the ship doctrine

2. Respondent Superior – literally means “let the superior answer: let the principal answer for the acts of his agent.” Under this doctrine founded on the principles that he who expects to derive the advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it. In doing the act of which the accident arose, the servant was representing the master at that time.

3. Doctrine of RES IPSA LOQUITUR /Common Knowledge – literally means “the thing speaks for itself”. It means that any wrongful act or injury disputably presumes negligence. Three conditions are necessary for the application of this doctrine:

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a. The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence.

b. The accident must be caused by an agency or instrumentality within the exclusive control of the defendant.

c. The accident must not have been due to any voluntary action or contributions on the part of the plaintiff.

4. Doctrine of Contributory Negligence or Common Fault – means it is the careless act or omission on the part of the complaining party which concurring with the defendant’s negligence is the proximate cause of injury.

5. Doctrine of Assumption Risk – it means that if one assumes voluntarily the risk of injury from a known danger, then he is leaned from recovery; that “a person who asserts and was injured is not regarded in law to be injured”.

6. Doctrine of Continuing Negligence – it contemplates of an unfailing duty of a defendant nurse to appraise, make necessary investigation or examination of his patient’s injury with reasonable care and skill, failure of which constitutes a continuing act of negligence.

7. 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 or prevent injury to another”.

8. Doctrine of Foreseeability – contemplates a condition of foreseeability wherein the duty of care, skill and training of all persons are foreseeably endangered by his conduct, with respect to the risks which make the conduct unreasonably dangerous. Failure to prevent or avoid foreseeable injury makes him answerable for the injury sustained.

9. Doctrine of Force Majeure or Acts of God – means an irresistible force, one that is foreseen as inevitable. Under the civil code of the Philippines no person shall be responsible for those events which could not be foreseen or which, though foreseen were inevitable except in cases express specified by law.

10. Fellow Servant Doctrine – provides that if a servant or employee is injured on account of the negligence of his fellow servant or employee, the master or employer cannot be held liable.

11. Rescue Doctrine – provides that 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.

Legal defense in negligence – the most common defense in negligence action is when nurses know and attain that standard of care in giving service

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and they have documented the care they gave in a concise and accurate manner.

Liability of nurse for the work of nursing aides – nurses should not delegate their functions to nursing aides since the Philippine Nursing Law specifies the scope of nursing practice of professional nurses. If a nurse delegates her function to a nursing aide and the latter commits a mistake then the person responsible is the nurse.

Liability for the Work of Nursing Student – Republic Act 877, nursing students do not perform professional nursing, they are to be supervised by their Clinical Instructor. In order that the errors committed by nursing students will be avoided or minimized.

B. MALPRACTICE – is defined as any professional misconduct or any unreasonable lack of skills or fidelity in the performance of professional or fiduciary rules; it means objectionable practice, or a practice contrary to established rules.

As it concerns nurses – this means the neglect of a physician or a nurse to apply the degree of skill and learning in the treatment of a patient, which is customarily applied in treating and caring for the sick or wounded similarly suffering in the same community.

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LESSON 3 CRIMINAL LIABILITIES OF A NURSE PRACTITIONER

CRIMINAL LIABILITY

A nurse may incur criminal liability or subject herself to criminal liability or criminal prosecution either by committing a felony or by performing an act which would be an offense against persons or property.

FELONY – acts or omissions punished by law and they may be committed not only by means of deceit (dolo) but also by means of fault (culpa).

a. Deceit – when the act is performed with deliberate intent.b. Fault – when the wrongful acts result from imprudence, negligence, lack of

skill.c. Mala prohibita – acts which are made offenses by positive laws & prohibited

as such. The mere doing of an act/commission punishable by law is not a felony by itself. In order that such act/omission may be considered a crime, it must have been done with criminal intent or willfulness, hence the well – known maxi: “Actus non facit reum, nisi mens sit rea,” A crime is not committed if the mind of the person performing the act is innocent".

Deliberate intent – includes two other elements without which there can be no crime arising from the criminal act/ omission. These are freedom and intelligence.

a. A person who acts without freedom cannot act with deliberation. He cannot decide freely for himself whether a thing proposed ought to be done or not nor weigh on his own free judgment the motives of the act and its consequences.

b. Without intelligence, a person is incapable of distinguishing what act is good or bad and what act is right or wrong.

Under the law, a person can be criminally liable for the consequences if his act is felonious. A person, therefore, who does an act which is not a felony cannot be held criminally liable even if such act may have resulted in the injury of another.

Criminal liability is incurred by any person committing a felony although the wrongful act done is different from that which he intended. In other words, the author of a crime shall be held liable for all the natural consequences of his illegal acts even if such results have not been intended by him. The law does not excuse one from liability for the natural consequences of his illegal act merely because he did not intend to produce such consequences.

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IMPOSSIBLE CRIME – any person who performs an act which would be an offense against a person or property but fails to consummate it due to the inherent impossibility of its accomplishment or because of the inadequate or ineffectual means he has employed to accomplish it, shall also incur his criminal tendencies.

CLASSIFICATION OF FELONIES

A. According to the degree of the acts of execution which would produce felony:

1. Consummated – when all the elements necessary for its execution and accomplishment are present.

2. Frustrated – when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, does not produce it by reason or causes independent of the will of the perpetrator.

3. Attempted – to commit a felony when the offender commences the commission of the same directly by overt (open or manifest) acts, and does not perform all the acts of execution which should produce the felony, by reason of some cause accident other than his own spontaneous resistance (stopping to act by a natural feeling or impulse).

B. According to the degree of punishment attached to the following:

1. Grave – those to which the law attached the capital punishment (death) or penalties which in any of their periods are afflictive (imprisonment ranging from six years and one day to life imprisonment or a fine exceeding P 6,000.00)

2. Less Grave – those which the law punishes with penalties which in their maximum period are correctional or imprisonment ranging from one month and one day to six years or a fine not exceeding P 6,000.00 but not less than P 200.00.

3. Light felonies – those infractions of law or the commission of which the penalty of arresto menor (imprisonment ranging from one day to thirty days or a fine not exceeding P 200.00 or both is imposed).

Conspiracy to commit a crime – a crime maybe committed by a person alone or it may involve others who conspired with him to commit it.

A conspiracy exists when two or more persons come to an agreement concerning the commission of the felony and decide to commit it.

Proposal – when a person who has decided to commit a felony proposes its execution to some other person or persons.

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In conspiracy, no formal agreement between the parties to do the act charged is necessary. It is sufficient that the minds of the parties meet understandingly so as to bring about an intelligent and deliberate agreement to commit the offense charged, although such agreement is not manifested by any formal words; a mutual implied understanding is sufficient, so far as the combination or confederacy is concerned, to constitute the offense.

Person criminally liable as classified – where there are several persons who are parties to a crime, their criminal liabilities are not necessarily equal, for while many might have taken part in the commission of a crime, they might not have equal participation in the execution of the criminal act, hence it is not just that they should have shared criminal responsibilities.

Law classifies persons criminally liable to felonies:

a. Principal – those who take a direct part in the execution of the act or those who directly forced or induced others to commit it or those who cooperate in the commission of the offense by another act without which the crime would not have been accomplished.

b. Accomplices – those persons who, not being principals by direct participation, inducement, or cooperation through another act essential to the consummation of the crime, cooperate in the execution of the offense by previous or simultaneous acts, “accessories before the fact”

c. Accessories – those who having knowledge of the commission of the crime and without having participated therein either as a principal or accomplice take part subsequently in its commission in any of the following manners:

1. by profiting themselves or assisting the offender to profit by the effects of the crime

2. by concealing or destroying the body of the crime or the effects or instrument thereof in order to prevent its discovery.

3. by harboring, concealing or assisting in the escape of the principal of the crime provided the accessory had acted with abuse of his 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 known to be habitually guilty of some other crimes. (accessory after the fact)

CONTRACT – is a promise or a set of promises which the law recognizes as duty and when the duty is not performed, the law provides a remedy.

it is a meeting of the minds between two persons whereby one binds himself with respect to the other to give something or to render some service (Art. 135).

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When a nurse enters into a contract with an employer, it is usually an agreement to be paid a certain amount of money and be provided certain working conditions and benefits in exchange for such services.

Requisites of a Contract

1. To have a contract, two or more persons must participate2. Parties involved must consent to the contract:

a. parties must be competent to contractb. freec. spontaneous

3. Object which is the subject matter of the contract must be specified such as:

a. all things which are not outside the commerce of menb. all which are not intransmissiblec. future inheritance in cases expressly authorized by lawd. all services which are not contrary to law, morals, good customs,

public order and public policy

4. The cause of obligation is established – time, price and subject matter are expressed. Generally, the length of time of a contract for services is at least equal to the period of which wages or salary is payable. Thus, if you are engaged on yearly rates, the length of time of the contract would be at least one year.

5. Contracting parties must have the legal capacity to enter into a contract:

a. Legal ageb. Sound of mindc. Not under the influence of intoxicating drugs or fear of bodily harmd. Is not suffering from physical disability such as those who are

mentally incompetent

Kinds of Contract

1. Formal Contract – one which by some special law is required to be in writing.

Ex. Marriage contract, mortgage deeds of sale or work contracts

2. Informal Contract – one which is concluded as the result of a written document or correspondence where the law does not require the same to be in writing or as the result of oral and spoken discussion between the parties or conduct between the parties evidence an intention to contract.

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3. Expressed is one in which the conditions and terms of the contract are given orally or in writing by the parties concerned. Ex. Formal contract states the kind of services, offered salary, date and time of affectivity including fringe benefits.

4. Implied – that is concluded as the result of acts or conduct of the parties to which the law ascribes an objective intention to enter into a contract. It may be in the form of innominate contract, under the principle of “facio ut des” (I do that you may give) under this doctrine, a valid and enforceable contract result from implied consent where one party renders service to another and the latter accepts such service in the absence of any proof that the same is given gratuitously.

5. Voidable or Annullable Contract – one that is inexistent from the very beginning and therefore may not be enforced;

a. Those where one of the parties is incapable of giving consent to contract

b. Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud

c. Those which are absolutely simulated or fictitiousd. Those expressly prohibited or declared void by lawe. Those which contemplate an impossible servicef. Those which object is outside the commerce of man

6. Illegal Contracts – contracts obtained through use of fraud (deception and

trickery), undue (unlawful) influence or duress (coercion) in serving such as those expressly prohibited by law are illegal.

7. Unenforceable – the following are unenforceable unless ratified;

a. Those entered into in the name of another person by one who has been given no authority or legal representation or who has acted beyond his power.

b. Those who do not comply with the Statute of Fraudc. Those where both parties are incapable of giving consent to a contract

BREACH OF CONTRACT – It is a violation or non-performance of an express or implied agreement without valid ground or just cause. The following constitute breach of contract which may involve a nurse;

a. Refusal of a nurse to perform a duty.b. Failure to employ due diligence in the care of patient.c. Negligence or failure to do one’s duty due to inconvenience or difficulty.d. Abandoning one’s responsibility.e. Failing to prevent the performance of acts that may do harm or cause damage.

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f. Failing to cooperate that may necessarily do good for the health of a patient.

Valid grounds that a nurse may interpose as defenses against complaint of breach of contract are;

a. performance of contract which is patently illegal,b. physical impossibility of performing a contract due to serious illness,c. presence of material misrepresentation in the contract or patient, ord. absence of any of the essential elements that negate the validity of a contract.

QUASI-DELECT OR TORTS – is the negligence of a person arising from his 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.

Tort is a legal wrong, committed against a person or a person’s property. Torts are usually litigated in court by civil action between individuals.

ASSAULT – imminent threat of harmful or offensive bodily contact; an unjustifiable attempt to touch another person or the threat to do in such circumstances as to cause the other reasonable to believe that will be carried out or can be described as an attempt or threat to touch another person unjustifiably. Assault precedes battery; it is the act that causes the person to believe a battery is about to occur.

BATTERY – intentional, unconsented touching of another person. It is therefore, important before one can be touched examined or treated or subjected to medical and surgical procedure, he must give consent to this effect.

FALSE IMPRISONMENT – unjustifiable detention of a person without a legal warrant within boundaries fixed by the defendant by an act or violation of duty intended to result in such confinement.

INVASION OF PATIENT’S PRIVACY & BREACH OF CONFIDENTIALITY

The right to privacy, to be left alone, to be free from unwarranted publicity and exposure to public view as well as the right to live one’s life without having anyone’s name, picture or private affairs made public against one’s will.

The nurse becomes liable for invasion of the right to privacy if she divulges information from a patient’s chart to improper sources or unauthorized persons.

DEFAMATION – character assassination, be it written or spoken.

a. Slander – oral defamation of a person by speaking unprivileged or false words by which his reputation is damaged.

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b. Libel – printed defamation by written words, cartoons or such representations that cause a person to be ridiculed or held in contempt or tend to him in his work.

CRIME – act committed or omitted in violation of law. Criminal offenses are composed of two elements;

a. Criminal act – deals with acts or offenses against public welfare (misdemeanor – general name of a criminal offense which does not in law amount to the grade of felony and felony public offense for the conviction of which a person is liable to be sentenced to death (to imprisonment in a penitentiary or prison).

b. Criminal intent – state of mind a person has at the time the criminal act is committed, that is, knowing an act is not lawful and deciding to do it anyway.

To be criminal an act must be defined as crime Deliberate intent has two elements without which there can be no crime

a. freedomb. intelligence

When a person accused of the crime offers an evidence, the court will decide if he has committed a criminal offense or not. Example:

a. insanityb. necessityc. compulsiond. accidente. infancy

The nurse may commit or encounter in the practice of her profession:

a. Parricide – a crime committed by one who kills his father, mother or child whether legitimate or illegitimate, or any of his ascendants or his spouse.

- penalty of reclusion perpetua (life imprisonment to death)

b. Murder – a crime committed by a person who kills another, other than the father, mother or child or any of his ascendants or his spouse.

- penalty ranging from seventeen years, four months and one day to 20 years to death, if the crime is committed with any of the following attendant circumstances;

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1. With treachery, talking advantage of superior strength, with the aid of armed men or means to weaken the defense, or with the aid of means or persons to insure or afford impunity.

2. In consideration of a price, reward, or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, standing of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the precedent paragraph, or of an earthquake, eruption of a volcano, destructive cycle, epidemic, or any other public calamity.

5. With evident premeditation.

6. With cruelty, be deliberate and inhumanly augmenting the suffering of the victim, or outraging or scoffing at this person or corpse.

c. Homicide – is the killing of any human creature; it is not necessarily a crime; it may be committed without criminal intent and without criminal consequence, where it is done in self-defense. Under the law, it is the crime committed by a person who kills another, other than his father, mother or child or any of his ascendant or descendant or his spouse. Without any of the circumstances attendant to the crime of murder enumerated above being present.

d. Infanticide – is the killing of a child less than three days of age. The penalty for parricide and for murder shall be imposed upon any person who shall be convicted of the crime of infanticide; if this crime is committed by the mother of the child for the purpose of concealing her dishonor. She shall suffer the penalty of imprisonment ranging from two years, four months and one day to six years.

e. Abortion – means the termination of pregnancy before the fetus is viable (able to live after birth). When this occurs during the first twelve to twenty-four weeks (three to six months) of pregnancy, the termination is called abortion. The expulsion of the fetus before it is viable, that is, in the period between the fourth and seventh month of pregnancy, is turned miscarriage. When the delivery of expulsion of the fetus occurs during the period after the fetus has reached viability (after the 28th week of pregnancy) but before full term, the delivery is referred to as premature delivery. In law, however, this distinction is not provided. Legal jurisprudence defines abortion as the “expulsion of the fetus at a period of uterogestation (pregnancy within the womb) so early that it has not acquired the power of sustaining an independent life” or “the unlawful

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destruction, or the bringing forth prematurely, of the fetus or unborn off-spring of a pregnant woman at anytime before its natural birth”. Under the Revised Penal Code, criminal abortion is classified into four categories, namely;

1. Intentional abortion2. Unintentional abortion3. Abortion practiced by the woman herself or her parents4. Abortion practiced by a physician or midwife

A person who intentionally causes an abortion is liable to a criminal penalty of imprisonment ranging from twelve years and one day to twenty years, if he uses violence upon the person of the pregnant woman; or imprisonment for six years and one day to twelve years if using no violence, he causes the abortion without the consent of the pregnant woman; or imprisonment for two years, four months and one day to six years, if he causes the abortion with the consent of the pregnant woman.

If a person causes an abortion by violence, but unintentionally, he is liable to a criminal penalty of imprisonment ranging from six months and one day to four years and two months.

When a pregnant woman performs an abortion on herself or gives her consent to another to do it, she is subject to the penalty of imprisonment lasting from two years, four months and one day to six years. A pregnant woman who performs an abortion on herself, or gives her consent to another to do it for the purpose of concealing her dishonor is likewise criminally liable and can suffer the penalty of imprisonment lasting from six months and one day to four years and two months; if the abortion is done by the parents of either of them, with the consent of the pregnant woman, for the purpose of concealing her dishonor, the defenders can also be criminally liable and can be penalized with imprisonment from two years, four months and one day to six years.

A physician or midwife who takes advantage of his scientific knowledge or skill and by it causes an abortion, with the use of violence upon the person of the pregnant woman, is liable to the penalty of imprisonment from seventeen years, four months and one day to twenty years; if the physician or midwife causes an abortion or assists in causing an abortion without using violence but without the consent of the pregnant woman, he or she can be punished with imprisonment from ten years and one day to twelve years; if the pregnant woman has consented to her abortion, the physician or midwife is liable to imprisonment ranging from four years and two months and one day to six years.

Giving assistance to suicide – any person who shall assist another to commit suicide (intentionally taking one’s own life), shall suffer imprisonment from six years and one day to twelve years, if such person lends his assistance to another to the extent of

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doing the killing himself, he shall suffer the penalty of imprisonment from twelve years and one day to twenty years. However, if the suicide is not consummated, the penalty of imprisonment from two months and one day to six months shall be imposed.

Illegal detention – any individual who shall detain another or any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua (life imprisonment) or death, if the committed crime is under the following circumstances;

1. Detention has lasted for more than five days,

2. The offended was simulating public authority (pretending to be a government authority) when he committed the crime,

3. Serious physical injuries had been inflicted on the detained or kidnapped victim, or threats to kill him had been made,

4. Detained or kidnapped victim is a minor female or public officer

The penalty of death shall be imposed on the offender, even if none of the aforementioned circumstances were present, if he detained a person for the purpose of extorting ransom from the detained or kidnapped victim or from any other person. The phrase extorting ransom means demanding or forcing the payment of money from a person, through violence or intimidation as the price for the delivery or release of a detained or kidnapped victim. The penalty of imprisonment from twelve years and one day to twenty years shall be imposed upon any private individual who shall detain another or, in any other manner, deprive him of his liberty, without the presence of any of the aggravating circumstances enumerated above. The same penalty shall be incurred by any one who shall furnish the place for the perpetration of the crime. If the offender shall voluntarily release the person so detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be imprisonment from six years and one day to ten years and a fine not exceeding P 700.00.

Simulation of birth – crime against the civil status of persons for which the law imposes the penalty of imprisonment from six years and one day to twelve years and a fine not exceeding P 1,000.00. The same penalties shall be imposed upon any person who shall substitute one child for another or who shall conceal or abandon any legitimate child with intent to cause such child to lose its civil status. Any physician or surgeon or public officer who, in violation of the duties of his profession or office, shall cooperate in the commission of the crime aforementioned, shall suffer the same penalties as stated above and also the penalty of temporary special disqualification.

Criminal negligence – is negligence of such a character, or occurring under such circumstances, as to be punishable as a crime by statute; or such a flagrant and reckless disregard of the safety of others, or willful indifference to the injury liable to follow as to convert an act otherwise lawful into a crime when it results in a person’s injury or death.

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Two classes of criminal negligence;

a. Reckless imprudence or reckless negligenceb. Simple imprudence or simple negligence,

Misdemeanor – is a term used to express every offense inferior to felony, punishable by indictment or by particular prescribed proceedings. Misdemeanors comprehend all indictable offenses which do not to felony; in its usual acceptation, the term amount “misdemeanor” is applied to all those crimes and offenses for which the law has not provided as particular name.

RELATIVE TO NURSING PROFESSION, MALPRACTICE MEANS:

a. Neglect of a nurse to use the required skill and knowledge in the treatment of patient.

b. Ignorance, negligence, unskillfulness resulting in some injury to the patient

c. Omission 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.

HOW IS MALPRACTICE OF A NURSE PROVEN?

The law never presumes negligence. It presumes that the nurse exercised the ordinary care and skill required of him/her in treating his/her patient. The burden is on the patient to prove negligence by the nurse. However, if the doctrine of RES IPSA LOQUITUR (the thing speaks for itself) is invoked because negligence is grossly apparent or evident, the nurse-defendant must establish his/her innocence rather than the patient-plaintiff having to prove his guilt.

PRESUMPTION – it is an inference as to the existence of a fact, not actually known arising from its usual connection with another which is known.

Kinds of presumption

a. Presumption of law – deduction which the law expressly directs to be made from particular facts.

1. Conclusive – those which are legally satisfactory and may not be contradicted and overcome by proof of the contrary.

2. Disputable – those satisfactory if uncontradicted but may be overcome by other evidence.

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b. Presumption of the fact – deduction which reason draws from the facts proven without an expressed direction of law to that effect. It is an influence drawn from the subordinate / evidentiary facts.

THE EVIDENCE THAT INJURED PARTY SHOULD PROVE

BEFORE THE COURT

A. The nurse is legally authorized to practice nursing.

B. The nurse attended to him giving the diagnosis and administering the treatment

C. That in the performance of his/her duties as a nursing practitioner, his/her failure to exercise reasonable and ordinary care and diligence or to use best judgment.

D. That the patient suffered damages with impairment of his earning capabilities, pecuniary loss and loss of time, permanent disfigurement / deformity / moral and physical pain and suffering.

E. That due to the negligence, ignorance / incompetence of the nurse / to the proceedings circumstances, the patient suffered injury.

EVIDENCE THAT A PARTY – DEFENDANT SHOULD PRESENT FOR HIS/HER DEFENSE.

A. That he/she possesses, at least, ordinary learning skill and training

B. That he/she exercises due care and diligence while attending to the patient

C. That he uses his/her best judgment in executing the nursing process

D. That the injury to the patient is the result either of the patient’s own and exclusive negligence or a mere accident.

What is evidence?

It means, sanctioned by law, of ascertaining in judicial proceedings, the truth respecting a matter of fact.

INCOMPETENCE – lack of ability, legal qualification or fitness to discharge the required duty.

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Although a nurse is registered, if in the performance of her duty she manifests incompetence, this is a ground for revocation or suspension of her certificate of registration.

POINTS TO OBSERVE IN ORDER TO AVOID CRIMINAL CIVIL AND ADMINISTRATIVE LIABILITY

1. Be familiar with the Philippine Nursing Law

2. Be aware of the laws that affect nursing practice

3. At the start of employment get a copy of the agency’s rules, regulations and policies

4. Upgrade your skills and competence

5. Accept only such responsibility that is in the scope of your employment and your job description

6. Do not delegate your responsibility to others

7. Determine whether your subordinates are competent in the work you are assigning them

8. Develop good interpersonal relationship with your co-workers, whether they are your superiors, peers or subordinates

9. Consult your superiors for problem that may be 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, the effects of medication and treatments or the patients lack of progress

12. The nurse should be aware of the value necessity of keeping accurate and adequate records

13. Patients are entitled to informed consent

14. Be familiar with Article 19 of the Revised Penal Code; Every person must, in the exercise of his/her right and in the performance of his/her duties, act and justice, give everyone his/her due and observe honesty and good faith and follow the golden rule

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Case Analysis #1

THINK TWICE ABOUT REPORTING SECOND – HAND NEWS

I heard through a friend of a friend that a nurse at my hospital has a serious drinking problem. What’s my duty in a situation like this? (Advice of Counsel, November 1996, RN)

Case Analysis #2

Ms. Gamp is a staff nurse on the oncology unit. She has been caring for Mrs. Feliciana, an elder 72-year old female patient. Mrs. Feliciana has been having trouble breathing for several days. It is getting progressively worse. Dr. Chan thinks Mrs. Feliciana’s thoracic cavity has fluid as a result of her lung cancer. Dr. Chan wants to do a thoracentesis.

Dr. Chan also tells Ms. Gamp to get a consent form signed by Mrs. Feliciana that she consents to the procedure for a thoracentesis. As Ms. Gamp begins to explain the procedure to Mrs. Feliciana, Mrs. Feliciana asks that her daughter be contacted to give permission before the procedure begins. Ms. Gamp has tried several times to contact Mrs. Feliciana’s daughter but is unable to reach her. Dr. Chan states he has to go ahead with the procedure or the patient will go into heart failure.

What should the nurse do in this kind of situation? Can Dr. Chan proceed with the thoracentesis? If so, under what

circumstances? What, if any, legal liabilities could be involved?

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LEARNING ACTIVITIES

Submit your typewritten answer/reactions/analysis

1. State and discuss four causes of errors committed by nurses and give one example each.

2. Differentiate and discuss criminal from civil liabilities.

3. Discuss why a nurse should know her liabilities

4. Analyze the sample on a clinical case involving the liabilities of nurses by identifying the following;

1. What is the case

2. How it happened

3. Conclusion

4. Recommendation for disciplinary action

5. Design a training program that will highlight the development of a legally competent and accountable nurse.

6. How do we eliminate exposure to law suits?

7. How can we establish a legally, morally and ethical conscience in our nurses?

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LEGAL PROBLEMS IN NURSING

MODULE FIVE

INSTITUTIONAL AND COURT TRIALS

SPECIFIC OBJECTIVES

At the end of the module, you should be able to:

understand the legal processes both in the employing agency and in court analyze administrative legal problems/ issues involving nurses know the procedure in making/ passing a law make critical decisions

INTRODUCTION

This module will help acquaint you with systems/ procedures for court cases. This is a must for all nurses to know and to enable them to understand court proceedings. They should be aware that every function / task and activities either directly or indirectly done in the provision of care to patients have legal implications. These, therefore, are bases potential legal suits. Procedural investigative processes both within the institutions and in the courts should be a basic knowledge of every practicing professional. Included in this module is the system and process being used in court outside the Philippines specifically in the United States. It is fitting to include this in this module considering that most of our nurses abroad have opted to be employed and are permanently residing in the U.S. with their family as an immigrant or citizen. And surely this migration of nurses is an on-going process. Recent statistics per PRC registry showed that approximately one-half of our list of registered nurses are abroad. A greater percentage are in the United States. There are already legal-court cases that reached the Philippines. The Philippine government has mediated for them.

Their legal knowledge will provide necessary protection, first to the clientele, the recipient of care; second, to the institution where nurses are employed; and third to themselves as professionals and as person. Their awareness of the legal implications of every nursing intervention will now be performed with due care and prudence preventing them from omitting/committing any nursing activities that will cause legal suits.

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LESSON 1 EVIDENCES FOR THE INVESTIGATIVE PROCESS AND COURT TRIALS

EVIDENCE – is the means by which disputed facts are proven to be true or untrue in any trial court of law or an agency that functions like a court.

Evidence distinguished from:

a) Rule of Evidence – the facts in issue in a case are those pleaded by one and denied by the other. And in a judicial trial, the truth as to those facts may be established only by means of evidence. In other words evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.

b) PROOF – Evidence differs from proof as a cause differs from effect. PROOF is that which convinces, evidence is that which tends to convince, proof is the perfection of evidence, for without evidence there is no proof. Though there may be evidence which may not amount to proof.

c) Testimony – Evidence is more comprehensive than testimony. The latter being the statement or the declarations of a witness, and evidence being the conclusion from all the facts established at the trial by testimony, by events, by circumstances, by writing, records, or other memorials. Testimony is a kind of evidence which is presented either in writing or verbally.

TYPES AND FORMS OF EVIDENCE

A. Two Basic Types of Evidence

1. Direct Evidence . Evidence, which proves a proposition without relying on any inference.

2. Indirect or Circumstantial Evidence . Evidence of a subsidiary fact from which existence of an ultimate fact may be inferred.

B. Rules of Admissibility

1. Direct evidence is almost always admissible.

2. Circumstantial evidence is more often subject to exclusionary rules of evidence and rules of relevancy

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C. Other types of evidence

1. Direct or positive evidence is that which proves the fact in disputes directly without need of any inference or presumption. If true, it will be conclusive of the disputed facts.

2. Indirect or circumstantial evidence is that which tends to establish a fact by providing another fact. It does not itself conclusively established a disputed fact, but merely creates an inference or presumption of its existence. By showing other facts, the ultimate fact sought to be established is sustained.

3. Cumulative evidence is the additional evidence of the same kind and to the same state of facts. Its admission is within the discretion of the trial court except REQUISITES Circumstantial evidence is considered sufficient for conviction if the following circumstances are present:

a. There is more than one circumstance.b. The facts from which the inference is derived are proven.c. The combination of all the circumstances is such as to produce conviction

beyond reasonable doubt.d. The rule is that before conviction upon circumstantial evidence, the

circumstances proven should constitute an unbroken chain, which leads to one fair and reasonable conclusion pointing to the accused to the exclusion of all others as author of the crime.

e. To warrant a conviction in a criminal case upon circumstantial evidence, such evidence must be more than one, derived facts duly proven and the combination of all of them must be such as to produce conviction beyond reasonable doubt.

f. Confessions of other suspects admissible as circumstantial evidence to show probability of co-accused’s participation in a crime.

4. Corroborative evidence is the additional evidence of a different character to the same point. While it has no direct bearing on the facts of the issue, it reflects on other facts from which logical interference may be drawn as to the very facts in issue.

EXAMPLES

1. The testimony of the appellant’s co-accused Mercado linking her to the slaying of her husband is corroborated by written statements of the other co-accused and appellant’s admission that they met in a hotel.

2. Son of the victim saw the way his father was killed by the appellant corroborating that of the doctor’s finding.

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However

a. Proof that marijuana leaves were recovered from a person does not necessarily prove that the accused had been seen selling marijuana leaves including the recovered marijuana from the person.

b. The testimony of the witness to corroborate the alibi that she slept in the house of one of the appellants for the first time is quite weak for she could have slept at the house of her brother only two kilometers away.

PRIMARY OR BEST EVIDENCE is that which affords the greatest certainty of the fact in question.

EXAMPLE

A physician’s report, is the best evidence of work in connection with the workmen’s ailments and can be a basis for award even if the physician has not presented a witness.

However, testimony of an examining physician when purely speculative will not be given credence.

SECONDARY EVIDENCE is that which is inferior to primary evidence, and which upon its face shows that better evidence exists.

Best evidence rule;

a. The rule of law – in the language of Chief Justice Marshall, “the rule of law” is the best evidence that must be given in which the description of the nature of the case is stated. In other words, the best evidence of the nature of the case as admissible shall always be required, it is possible to be presented, if not possible, then the best evidence that can be had shall be allowed.

b. Reason for the rule – the rule requiring the production of the best evidence in which the case in its nature is susceptible, is adopted for the prevention of fraud and is declared to be essential to the pure administration of justice.

c. Effects of the rule – the effects of the best rule on real evidence and in the testimony of witnesses in court is not the same as in documentary evidence. To prove the condition or nature of articles and other physical objects, it is not essential that they be produced in court, they may be described by witness. For instance, to prove the death of a person, it is not necessary to produce him in court, the testimony of the witnesses who have seen him is sufficient.

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The kind of evidence on which the best evidence rule operates, as a rule of exclusion is documentary evidence. The original of the writing must, as general a rule, be produced and secondary evidence of its contents is not admissible except where the original cannot be had. The doctrine is that the best evidence rule applies with exclusionary effect, only to evidence classified by law into primary and secondary.

REAL EVIDENCE

1. Sources of Evidence

In making its decision, the court may acquire knowledge through three modes namely;

a. Testimonial evidence is the testimony of man, which may be oral or written. Examples are: documents, depositions, and affidavits.

b. Autopic preference , from which interference may be taken as to the existence or non-existence of a fact in dispute.

c. Object evidence consists of tangible things submitted for inspection which enable the court by direct use of its senses to perceive facts about these things in evidence. It is tangible evidence presented to the trial of the facts for inspection as relevant to an issue in the case. Examples; Guns, bullets, contracts…

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LESSON 2 LEGAL PROCEDURE AND TRIAL

MAJOR STEPS IN LAWSUIT

In trial, the judicial procedure is to ascertain facts by hearing evidence, determine which facts are relevant, apply the appropriate principle of law and pass judgment. This procedure in a lawsuit can be divided into commencement, pleading, pre-trial and execution.

1. Commencement of the Action

The first step in the trial process is to determine what kind of legal action is to be determined. If the action relates to negligence the correct action would be on negligence and if it relates to contract, proper action would be for breach of contract.

Lawsuits must be brought within a certain time limit that has been proscribed by law in a statute of limitations – a time span that varies with the cause of action.

Note: A suit to recover damages for personal injury caused by negligence must be brought within two years of the injury. If that case is not brought within the prescribed time, the action is barred.

In criminal cases, statutes of limitation varies from two (2) to six (6) years except in cases where murder is committed in which there is no time limit.

The first necessary element in the trial process is a person who believes a cause of action exists against another person. The first person, called the plaintiff, brings the action and makes the complaints; the defendant is the person against whom the suit is brought.

STEPS IN TRIAL

1. Determine what kind of legal action may be instituted.2. Determine where the suit will be filed.

FACTORS TO CONSIDER 1. Which court has jurisdiction over the subject of the controversy.2. Which geographic district includes the area where one party resides or where the

alleged injury occurred.

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Two major methods by which a Lawsuit may be begun:

Filing of a complaint

1. In some courts an action is commenced by filing an order with the court clerk to issue a paper called the “writ or summons”, to the designated officials. This will order the official to inform the defendants that they must appear before the court on a particular date.

2. Suits are begun by filing and delivery of the complaint itself, which is called service. Upon service of the summons or complaints, the defendants should promptly notify their attorneys or insurance companies. Their attorneys will investigate, decide on a strategy, and respond to the complaint.

Examples of process most commonly served are:

Warrant – is a writing from a competent authority in pursuance of law, directing the doing of an act, and addressed to an officer or person competent to do the act.

Search Warrant – is an order in writing, in the name of the people of the Philippines signed by a judge and directed to a peace officer, commanding him to search for personal property and bring it before the court.

Summons – is the name of writ commanding the sheriff or other authorized officer to notify a party to appear in court to answer a complaint made against him, and in said writ specified, on a day therein mentioned.

Subpoena – is the process by which the attendance of a witness is required; it is a writ or order directed to a person requiring his attendance at a particular time and place to testify as a witness.

Subpoena Duces Tecum – is a subpoena which does not only compel the personal attendance of a witness in court but also requires such witness to bring with him and produce to the court; books, papers, and the like, which may be in his hands or possession, and which tend to elucidate the matter in issue.

Pleading

Once an action is commenced, each party must present a statement of facts, or pleadings, to the court. The modern system of pleading requires a setting forth of the facts, which serves to notify the other party of the basis for the legal claim. The first pleading is the “complaint or petition” in which the plaintiff outlines the factual basis for the claim. (*In less serous crimes known as misdemeanor, these pleadings are called

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“complaints”, while in crimes or more serious nature known as felonies, the pleadings are called indictments.)

A copy then is served on the defendant, who must reply within a specified period of time, usually 15 to 20 days. If the defendant fails to answer within that time, the plaintiff will win by default and judgment will be entered against the defendant. In certain instances a default judgment will be set aside if the defendant can demonstrate valid reasons for failing to respond.

Upon receiving a copy of the complaint, the defendant also has the right to file preliminary objections before answering the complaint. In these objections, the defendant cites possible errors that would defeat the plaintiff’s case. (example: The defendant may object that the summon or complaint was improperly served, that the action was brought in the wrong country, or that there was something technically wrong in the document. The court may permit the plaintiff to correct the errors by filing a new or amended complaint; however, in some instances, the defects may be so significant that the case is dismissed.)

The defendant also may present a motion to dismiss the action alleging that the plaintiff’s complaint does not set forth a claim or cause of action recognized by the law. If the case is dismissed, the plaintiff has the right to amend the complaint or appeal the lower court’s action to an appellate court. On the other hand, if the court declines to dismiss the case, the defendant then is required to file an answer to the complaint.

In some cases, the defendant may have a claim against the plaintiff and will file a counterclaim. (example: the plaintiff may have sued a hospital for personal injuries and property damage caused by a collision with the hospital ambulance. The hospital may file a counterclaim on the ground that the driver was careful and that it was the plaintiff who was responsible for the accident and should be liable to the hospital for damages.)

When the defendant files an answer, the plaintiff generally can file preliminary objections to that answer. The plaintiff may assert that the counterclaim is legally insufficient, the form of the answer is defective, or the counterclaim cannot be asserted in the court in which the case is pending. The objectives are addressed by the court.

After the complaint is filed, the defendant must make some reply within a specific time. He must be aware of his fundamental rights to due process of law.

Fundamental Requirements of Due Process

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. The rights cannot be waived except in writing and in the presence of a counsel.

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(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicable, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of these or Section 17 thereof, shall be inadmissible as in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

Section 13. All persons except those with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released as may be provided by law. The right to bail shall be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proven, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

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LESSON 3 THE INSTITUTION’S / AGENCY’S INVESTIGATION PROCESS

This lesson presents two systems: The Philippine court system and the American court system.

I. The Philippine Court System

In a hospital setting, the private institutions are guided by the labor laws in settling complaints and disputes. In the government institutions they are guided more by the Omnibus Code. While in government owned and controlled institutions / corporations, the office of the government corporate counsel handles these kinds of complaints and disputes. If and when formal complaints are filed in court then each party shall be advised to have their own lawyer. The following steps are used:

ANATOMY OF A TRIAL

Plaintiff files a petition

Court serves as summon of the defendant

Defendant pleads the petition

Depositions and/or written queries are taken by both parties

Defendant may file a motion for dismissal or Plaintiff may drop the lawsuit

Trials held if the lawsuit is not dismissed or dropped

Decision of the judge

If the decision is in favor of the defendant the case is dismissed

If the decision is in favor of the plaintiff a remedy is assessed

Appeal by the defendant

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The revised Penal code stated that the procedures in the resolution of disputes are the same in the Barangay, Municipal, Provincial and Regional trial courts. The filing of complaints or information shall be in writing in the name of the people of the Philippines against all persons responsible for the offense involved and directly forwarded with the said courts or with the fiscal’s office. However in the Metropolitan Manila and other chartered cities, the complaints may be filed only with the office of the fiscal.

All prosecutions of complaints shall be tried in the courts of the municipality or territory wherein the offense was committed.

Court decisions emerge from the resolution of disputes through a lawsuit that is tried in court. The goal of a trial is to reach an orderly resolution of a dispute between two or more parties who have differing interests. The procedure is designed to ascertain facts by hearing evidence, determine which facts are relevant, apply the appropriate principles of law and pass judgment based on the facts and applicable law.

Example of a lawsuit in a hospital proceeding

A lawsuit is initiated when a person files a petition with a court, setting forth a cause that is an allegation. For example, parents could allege that negligence on the part of the nurse caused their child to sustain a fall from the bed while the child was sleeping resulting in a fracture of the right femur. A summon is then delivered by the court to the defendant who is in this case might be the supervisor of the hospital because that individual is responsible for the nurse who is on duty that night. The supervisor and the nurse together with the Attorney will be required to appear in court on a given date for the purpose of answering the allegation set forth in the petition. If the nurse states that she is not guilty of negligence, the next step involves clarifying the allegation and the material facts that support it. This may be accomplished by the parties to the lawsuits who are required to answer questions posed by the respective attorney. Written questions may also be required in lieu of or in addition to the depositions. If the nurse Attorney believes that the material facts do not appear to support the allegation, a motion may be filed to dismiss the case. If the judge does not do so, a trial date is set. If the decision is rendered in favor of the plaintiff, a remedy is assessed against the defendant that may involve a number of options, depending on the nature of the case. There are certain circumstances under which the decision in a trial may be appealed to a higher court for review. Most commonly this occurs when a question arises regarding the law or the impartiality of the trial proceeding.

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II. The American Court System

The Major Steps in Court Trials

1. Pre-Trial Procedures

After the statement of facts or pleadings are completed, these are presented in court. The court in many states permit to move for a judgment based on the pleadings. In some states the moving is permitted to introduce sworn statements called “affidavits”, showing that a claim or defense is false. This procedure cannot be used when there is substantial dispute concerning the matters presented by the affidavits.

In federal courts, as well as in most state courts, the parties have the right to “discovery” that is, the examination of witnesses before the trial. This process of discovery can last for several weeks to several years. A nurse may become involved in the case as witness or an expert witness. The usual manner of conducting the discovery is to present questions to the opposing parties and witnesses.

Interrogatories are questionnaires that are answered under oath, usually in writing, concerning the facts of the case. When the interrogatories are presented orally by an examiner, the answers are also given under oath, which is called “disposition”. Either party may obtain a court order permitting the examination and reproduction of books and records. A court order may be obtained to allow the physical and mental examination of a party when that condition is important to the case. In certain instances it may be desirable to record witnesses’ testimony outside the court before the trial. In such a case one party, after giving proper notice to the other and to the respective witness, may require the witness to answer questions and submit to cross-examination under oath. The testimony is recorded and filed with the court and is entered as evidence if the witness is unavailable at the trial. This procedure may be used when a witness is aged or infirm or may die or too ill to testify at the trial.

Pre-trial conference will be ordered at the judge’s discretion or upon the request of one of the parties. This is an informal discussion in which the judge and the attorneys of both sides eliminate matters that are not in dispute, agree on the issues, and set procedural matters related to the trial. Although the purpose of the pre-trial conference is not to compel the parties to settle but that often happens at this point.

2. The Trial

At the start of the trial, a jury (if there is one) is selected. A number of qualified people are selected as panel, from which the jury is chosen and sworn. The attorneys then make opening statements.

The plaintiff’s attorney then calls the first witness for that side and direct examination begins. When the direct examination is completed, the opposing attorney

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may cross-examine the witness in an effort to challenge or disprove the testimony. The plaintiff’s attorney may ask the witness additional questions in an effort to overcome the effect of cross-examination. The plaintiff’s attorney also introduces other evidence such as documents and tangible items.

After the plaintiff’s entire case has been presented, the defendant may move for a direct verdict in its favor on the ground that the plaintiff has failed to present sufficient facts to prove the case or that the evidence does not supply a legal basis for a verdict in the plaintiff’s favor. If the motion is overruled, the defendant’s case is presented in the same manner as the plaintiff’s. Either party then may ask the judge to rule that the claim has not been proven or that the defense has not been established and direct the jury to render a verdict to that effect. If these motions are overruled, the attorneys make oral arguments to the jury and the judge instructs the jury on the appropriate law. Some judges summarize the facts, integrate them with the applicable legal principles, and comment on the evidence as well. Other judges merely state controlling legal principles. The jury then retires to a separate place to deliberate and reach a verdict; when it has done so, it reports to the judge, who then renders a judgment based on the verdict.

At the time the judgment is rendered, the losing party has an opportunity to move for a new trial. If a new trial is granted, the entire process is repeated; if not the judgment becomes final, subject to a review of the trial record by an appellate court if the losing side appeals.

The TRIAL COURT in some states are divided into special courts that deal with specific issues, such as: family, juvenile, probate and limited ones, that deal only with lesser crimes, such as misdemeanors or with civil cases involving limited amounts of money. In this level, applicable law is determined and the evidence is assessed to know what the “facts” are. The applicable law then is applied to those by a jury, the judge instructs the jury as to what the law is and the jury determines what the facts are and applies the law. If there is no jury, the judge will also be the one to determine the facts.

To determine the facts for the purpose of deciding the case, the credibility of the witnesses and the weight to be given are measured. Also, other evidences must be determined.

The judge has the significant control over the trial even when a jury is involved. If the judge finds that insufficient evidence has been presented to establish a factual issue for the jury to resolve, the judge can dismiss the case or in civil cases, direct the jury to decide the case in a specific way. In civil cases, even after the jury has decided, the judge can decide in favor of the other side.

3. Appeals

An appellate court reviews a case on the basis of the trial record as well as written summaries of the applicable legal principles and short oral arguments by the attorneys. The court then takes the case under advisement while judges consider it and agree upon a

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decision. They then issue an opinion explaining their reason. Appellate court decisions and opinions are published and are a source of continuing legal information for lawyers.

INTERMEDIATE COURTS OF APPEAL. This court decides only appeals from trial court decisions. When an appellate court is deciding appeals, it does not accept additional evidence but makes its decision based on the evidence presented at the trial court and preserved in that record.

Courts of appeal almost invariably accept the determination of the facts by the jury or judge in the trial court because they saw the witnesses and can better judge their credibility. Appellate courts usually base their decision on whether proper procedures were followed in the trial court and whether it interpreted the law properly. However, an appellate court occasionally will find that a jury or verdict is so clearly contrary to the evidence that will either reverse the decision or order a new trial.

4. Execution of Judgments

In lawsuits naming hospitals, physicians, and nurses as defendants, the party generally will seek to recover money damages. Other forms of relief are available, such as an order or an injunction requiring the defendant to perform or refrain from performing an act. The jury decides the amount of damages, subject to review by higher court.

If, after trial and final appeal, the defendant does not comply with the judgment in the suit, the plaintiff may cause the judgment to be executed. This means that if the defendant ignores an order to perform or refrain from performing an act, the failure to obey will be regarded as contempt of court and will result in a fine or imprisonment. If the judgment is for payment of money, the plaintiff may cause the officials or judicial officer to sell as much of the defendant’s property as is necessary to pay judgment and court costs.

SUPREME COURT is the highest court in each state which will decide appeals from the intermediate appellate courts or in states without the intermediate level, which is the trial court. The highest court has also other duties, including adopting rules of the procedure for the state court system and determining who may practice law in the state, which includes disciplining of lawyers for improper conduct.

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CASE

A seventy year old male patient was admitted in the hospital for KUB-IVP. The protocol for preparing the patient before the procedure was:

1. Bisacodyl (Dulcolux) 2tabs or 30cc castor oil at bedtime

2. NPO post midnight

3. Bisacodyl suppository (2) per rectum at 5 A.M. followed by soap suds enema till return flow is clear

The night shift nurse (N) prepared the patient and the A.M. nurse sent the patient to the x-ray dept.

A few minutes after the patient was sent to the x-ray dept., the A.M. nurse received a call from the x-ray department complaining about the patient’s dirty bowel. This was based on the first x-ray shot taken before the injection of dye. The patient was sent back to the floor for enema.

The patient and the attending surgeon complained for the delay in the procedure.

After the investigation of the A.M. supervisor (Miss S), she found out that no enema was rendered, that only laxatives were given to cleanse the bowel.

Miss S talked to N and asked her to make an IR for failure to properly prepare the patient before the procedure.

The Night shift Supervisor (Ms. M) talked to Miss S defending N, saying that they did not perform enema because they have asked the patient, and he claimed that his bowel movement is clear after the suppository had been inserted. Miss S explained that the incident report must still be written so that there may be proper investigation and documentation of the case.

The incident report was returned empty and N refused to explain.

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LEARNING ACTIVITIES

Submit your typewritten answer, reaction and/or analysis of the following:

1. Discuss the due process of law followed in an investigative process within the employing agency.

2. Explain and give example of two major types of circumstantial evidences in court.

3. Explain why a practicing Filipino nurse should know the due process of law in the American court system and in other countries.

4. How do our court system differ from other countries?

5. Analyze the sample administrative case given based on the following:

1. The case

2. How it occurred

3. Circumstantial evidence

4. Conclusion

5. Recommendation for disciplinary action

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BIBLIOGRAPHY

BOOKS

Apostol, Sergio. Essential of Evidence. Control Lawbook Publishing Com. Inc. 1991

Bengson, Jose. The Judicial System of the Philippines, 1969.

Berzweig, Eli P. Nurse’s Liability for Malpractice A Programmed Course: N.Y. U.S.A. Mc Graw-Hill Book Company.

Creighton, Helen. Law Every Nurse Should Know: Philadelphia, WB Saunder Co., 1975.

De Belen, Rustico & De Belen, Donna Vivian, Nursing Law Jurisprudence and Professional Ethics First Edition C & E Publishing 2007.

Delouhery, Grace. Issues and Trends in Nursing: Missouri, Mosby Publishing Co., 1995.

Grippando, Gloria M. Nursing Perspectives and Issues: Third Ed. Delmar Publishers Inc.

Joven, Jose Romano. Nursing Law, Jurisprudence and Ethics: A Primer Review. Rex Bookstore.

Kozier, Etal. Fundamental of Nursing: Concepts, Process and Practice: New York Addison-Wesley Congman Inc. 1998

Legarda, Navals. Administration in the Philippines Organizational Structures and Management of the Judiciary: Groiler Electronic Publishing Inc., 1995

Milton, Lesnik and Bernice Anderson. Nursing Practice and the Law Ed. 2 with Revision, J.B. Lippincott Co. Philadelphia, 1962. p.p. 2-3.

Nolledo, Jose N. The Revised Penal Code: Annotated revised Ed. 1991.

Phodes, A.M. and Miller, R.D. Nursing and the Law 4th Edition. Maryland; Aspen Publication, Rockville, 1984.

Robles, G. and Sand A. Philippine Nursing Law and Jurisprudence: Manila Philippines; Professional Publishing Co., 1992.

Robles, Dionisio. Phil. Nursing Law, Jurisprudence and Ethics – 12th Ed. Revised, Educational Publishing house, Manila 1988.

Rowland, Howard. Nursing Administration Handbook, 4th Edition Aspen Publishers, Inc. 1997.

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William, P. and Tungpalan, L. Fundamentals of Nursing JMC: Press Inc. 1981.

Venzon, Lydia M. Professional Nursing in the Philippines: 4th Edition Printing Quezon City Philippines, 1991.

Venzon, Lydia and Venzon, Ronald M., Professional Nursing in the Phil. Fourth Edition. C & E Publishing Inc. 2005.

MAGAZINES/JOURNALS PAMPHLETS

1. American Journal of Nursing 1990-1999

2. Civil Service Laws and Rules (Book V of Executive Order No. 292)

3. Journal of Nursing Administration 1990-1999

4. Nurse forum magazine

5. Philippine Daily Inquirer

6. RN (Journal Magazine) 1990-1999

7. The Labor Code of the Philippines

8. The New Philippine Constitution 1987

9. The New Rules of Court in the Philippines 1964 Edition – M. Colcol and Co. Inc.

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