Legal Aspects and the Nurse

Professional Negligence

Negligence

• refers to the commission or omission of an act, pursuant to a duty , that a reasonably prudent person in the same or similar situation would or would not do, and acting or the non-acting of which is the proximate cause of injury to another person or his property

Elements of a Professional Negligence

1. Existence of a duty on the part of the person charged to use due care under circumstances
2. Failure to meet standard of due care
3. The foreseeability of harm resulting from failure to meet the standard
4. The fact that the breach of this standard resulted in an injury to the plaintiff

Examples of Negligence

1. Burns resulting from hot water bags, heat lamps, vaporizers or sitz baths
2. Objects left inside the patient's body such as sponges
3. Drugs given to the wrong person
4. Wrong medicine, wrong concentration, wrong route or wrong dose

Doctrine of RES IPSA LOQUITUR "The thing speaks for itself"

• Rule: When a thing which has caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence in the absence of explanation by the parties charged, that rose from the want of proper care
• Three conditions required to establish a defendant's negligence without proving specific conduct:
1. that the injury was of such nature that it would not normally occur unless there was a negligent act on the part of someone
2. that the injury was caused by an agency within control of the defendant
3. that the plaintiff himself did not engage in any manner that would tend to bring about the injury
• Example of such case is the presence of sponges in the patient's abdomen after an operation

Malpractice

• implies the idea of improper or unskillful care of a patient by a nurse
• denotes stepping beyond one's authority with serious consequences
• term for negligence or carelessness of professional personnel

Doctrine of FORCE MAJEURE

• means an irresistible force, one that is unforeseen or inevitable
• RULE: When a debtor is unable to comply with his obligation because of force majeure he cannot be held liable for such performance. In the absence of stipulations to the contrary, impossibility of performance, without the negligence of the parties, prevents the enforcement of bond or contract
• Circumstances such as floods, fire earthquakes and accidents falls under this doctrine and nurses who fail to render service during these circumstances are not held negligent

Doctrine of RESPONDEAT SUPERIOR

• let the master answer for the acts of the subordinates
• RULE: The masters are responsible for the want of care on the part of the servant toward those to whom the master is under the duty to use care, provided the failure of the servant to use such care occurred in the course of employment
• Example of this is that if the hospital will decide to hire under board nurses or midwives in place of professional nurse in an effort to cut down on expenses and these persons prove to be incompetent then the hospital will be held liable

Incompetence

• lack of ability, legal qualifications of fitness to discharge the required duty

Medical Orders, Drugs and Medications

• RA 6675 states only validly registered medical, dental and veterinary practitioners are authorized to prescribe drugs
• In accordance with RA 5921, or the Pharmacy Act all prescriptions must contain the following information:
1. name of the prescriber
2. office address
3. professional registration number
4. professional tax receipt number
5. patient's/client's name
6. age and sex
7. date of prescription
8. RA 6675 requires that drugs be written in their generic name
• Only when these orders are legal in writing and bear the doctor's signature does the nurse have the legal right to follow them
• The nurse must not execute an order if she is reasonably certain it will result in harm to the patient
• The nurse must demonstrate courage and determination in verifying orders which are not clear or which, to her, seems erroneous
• A nurse must see to it that she understands the action of a drug, its minimum and maximum dosages, route of administration and untoward effects so that she may skillfully, safely and effectively carry them out
• Tests and treatments should be explained to the patient in accordance with the general plan of his care so that the client can give full consent and cooperate in its implementation
• Nurses must be able to report and record the effects of medication to the patient so that the doctor can judge its therapeutic value and know when to discontinue their use