Nurse and Contracts

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Contract

• Meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service
• An agreement between two or more competent persons upon sufficient consideration to do or not do some lawful act
• Can be written or oral

Kinds of Contract

1. Formal Contract - refers to an agreement among parties involved and is required to be in writing by some special laws
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 parties or conduct between the parties, evidence and intention to contract
3. Express Contract - is one in which the conditions and terms of contract are given orally or in writing by the parties concerned
4. Implied Contract - is one that is concluded as a result of acts of conduct of the parties to which the law ascribes an objective intention to enter into contract
5. Void Contract - is one that is inexistent from the very beginning and therefore may not be enforced
6. Illegal Contract - is one that is expressly prohibited by the law

Requisites of a Contract

• Two or more persons must participate
• Parties involved must give consent to the contract
• The object must be specified such as:
1. All things which are not outside the commerce of man
2. All rights which are not intransmissible
3. Future inheritance in cases expressly authorized by law
4. All services which are not contrary to law, morals, good customs, public order and public policy
• The cause of obligation is established
• Contracting parties mus have legal capacity to enter into a contract. They must:
1. be of legal age
2. be of sound mind
3. not under the influence of intoxicating drugs, or fear of bodily harm
4. not be suffering from physical disability such as those who are mentally incompetent

Breach of Contract

• failure to perform an agreement, whether expressed or implied, without cause
• the following constitute breach of contract for nursing services:
1. prevention of performance
2. failure to perform because of inconvenience or difficulty
3. failure of cooperation in performance
4. abandonment of duty
5. substitution of performance
6. failure to use due care
• Legal excuses in Refusing, Neglecting or Failure to Perform a Contract
1. discovery of materials misrepresentation made and relied upon
2. where performance will be illegal
3. where performance is made possible by reason of illness
4. where performance is made possible by death of patient or nurse
5. where performance is made for other reasons
6. where contract in insufficient

Consent to Medical and Surgical Procedures

Consent

• free and rational act that presupposes knowledge of the thing to which consent is being given by a person who is legally capable to give consent

Nature of Consent

• an authorization, by a patient or a person authorized by law to give the consent on the patient's behalf, that changes touching, for example, from non-consensual to consensual

Informed Consent

• It is established principle of the law that every human being of adult years and sound mind has the right to determine what shall be done with his own body
• Elements of Informed Consent:
1. diagnosis and explanation of the condition
2. fair explanation of the procedures to be done and use and the consequences
3. a description of alternative treatments or procedures
4. a description of the benefits to be expected
5. material rights if any
6. the prognosis, if the recommended care, procedure, is refused

Proof of Consent

• A written consent should be signed to show that the procedure is the one consented to and that person understands the nature of the procedure, the risks involved and possible consequences

Who Must Consent

• Ordinarily, the patient is the one who gives the consent in his own behalf
• However, if he is incompetent or physically unable and is not an emergency case, consent must be taken from another who is authorized to give it in his behalf

Consent of Minors

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

Emergency Situation

• No consent is necessary because inaction at such time may cause greater injury

Refusal to Consent

• A patient who is mentally and legally competent (sane mind and of legal age) has the right to refuse the touching of his body or to submit to a medical or surgical procedure no matter how necessary, nor how imminent the danger to his life if he fails to submit to treatment

Consent for Sterilization

• the husband and wife must consent to the procedure if the operation is primarily to accomplish sterilization
• When sterilization is medically necessary and the sterilization in an incidental result such as ectopic pregnancies, the patient's consent alone is sufficient

WILL

• legal declaration of a person's intentions upon death
• called a testamentary document because it takes effect after the death of its maker
• an act whereby a person is permitted with the formalities prescribed by law, to control to a certain degree the deposition of his estate, to take effect after his death

Decedent

• a person whose property is transmitted through succession whether or not he left a will

Heir

• is a person called to succession either by the provision of a will or by operation of law

Holographic Will

• a will which is written, dated and signed by the testator

Nuncupative Will

• an oral will

Legal Requirements

• must be of right age - under 18 years of age cannot make a will
• of sound mind and have clear thinking ability
• free from undue influence
• the testator shall name the person who will be in-charge of carrying out the provisions of the will
• properties must be disposed in accordance with legal requirement
• the will must be signed by the testator, attested and signed by at least three witnesses in his presence and of one another
• Every will must be acknowledged before a notary public by the testator and witnesses
• Witnesses to the wills shall be of sound mind, 18 years of age or more, not blind, deaf or dumb and able to read and write

Nurse's Obligations

• the nurse should note the soundness of the patient's mind
• that there was freedom from fraud or undue influence
• that the patient was above 18 years of age
• he should note that the will was signed by the testator, that the witnesses were all present at the same time and signed the will in the presence of the testator
• for the protection of the nurse, she should make notation on the patient's chart of the apparent mental and physical condition of the patient at the time of making the will and also the fact of his making the will

Legal Procedure and Trial

Commencement of Action

• the first step in the trial process is to determine what kind of legal action to take

Statutes of Limitation

• complaint must be made within a specific time or the right to complain may be lost forever
• claims for negligence or malpractice vary from two (2) or three (3) years
• in criminal cases, statutes of limitation carry from two (2) to six (6) years except in cases where murder is committed in which there is no time limit

Announcement of Legal Proceedings

• the primary functions of the court is to determine a controversy between two disputants, technically called litigants
• accuser, complainant, plaintiff
• accused, respondent, defendant
• Attorney or counselor files an order to issue writ of summons to the sheriff to inform the defendants that they must appear before the court on a particular date
• The complaint is filed and served
• The defendants attorney will now study the case and prepare a strategy and defense

Pleadings

• 1st Pleading
• complaint or petition (less serious crimes) - misdemeanor
• indictments (more serious crimes) - felonies

Pre-Trial

• informal discussion between judge and attorney to eliminate matters not in dispute, agree on issues and settle procedural trial

Trial

• facts of the case are determined
• the judge determine the facts and applies the law
• witness
• subpoena - court summons directing a witness to appear and give testimony on the date and time ordered
• subpoena duces tecum - requires witness to bring records, papers and the like which may be in his possession
• testimony of facts - testifying only on what she knows based on facts
• testimony of opinion - may only be given by expert witnesses
• perjury - false swearing under oath
• hearsay evidence - or a repetition of what the witness has heard others say
• privileged communications - are statements uttered in good faith
• dying declarations or ante-mortem statements - hearsay evidence except when made by a victim of a crime

Appeals

• an appellate court reviews the case and when the case is decided by it, the final judgment results and matter is ended

Execution of Judgment

• generally, lawsuits against hospitals or physicians and nurses involve recovery of money damages

Rights of the Accused at Trial on all Criminal Prosecution

• be presumed innocent
• be informed on the nature of the case
• be exempt from being compelled to be a witness
• confront/cross examine a witness against him/her
• be given compulsory process
• be given speedy and impartial trial

Self-Protection of the Nurse

• familiarity with the laws, code of ethics, rules and regulations and standards of practice
• clinical competence
• self-awareness
• sound management
• concept of personal liability
• documentation/recording