Professional Adjustment or Negligence

Definition

• Refers to the commission or omission of an act, pursuant to a duty, that a reasonably person in the same or similar circumstance 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. When this occurs person or persons might look for legal aid from someone similar to these MRH Solicitors.

Elements of Professional Negligence

• Existence of a duty on the part of the person charged to use due care under circumstances
• Failure to meet the standard of due care can result in neglicence, if you suspect negligence within a care environment it is important that it is reported so those affected can get the assistance required.
• The foreseeability of harm resulting from failure to meet standard
• The fact that the breach of this standard resulted in an injury to the plaintiff

Specific Examples of Negligence

1. Failure to report observations to attending physicians.
2. Failure to exercise the degree of diligence which the circumstances of the particular case demands.
3. Mistaken identity.
4. Wrong medicine, wrong concentration, wrong route, and wrong dose.
5. Defects in equipments that may result in injuring the patients.
6. Errors due to family assistance.
7. Administration of medicine without a doctor prescription.

The Doctrine of Res Ipsa Loquitor

1. “The thing speaks for itself.”
2. It means that the nature of the wrongful act or injury is suggestive of negligence
3. Three conditions are required to establish a defendant’s negligence without proving specific conduct.
   • That the injury was of such nature that it would not normally occur unless there was a negligent act on the part of someone.
   • That the injury was caused by an agency within the control of the defendant
   • That the plaintiff himself did not engage in any manner that would tend to bring about the injury.

Malpractice

• “you do things beyond your scope of practice”
• Also denotes stepping beyond one’s authority with serious consequences.

Doctrine of Force Majeure

• It means an irresistible force, one that is unforeseen or inevitable.
• “you cannot stop it from happening”
• circumstances such as floods, fire, earthquakes and accidents fall under this doctrine

Doctrine of Respondeat Superior

• “let the master answer for the acts of the subordinate”
• the liability is expanded to include the master as well as the employee and not a shift of liability from the subordinate to the master
• this doctrine applies only to those actions performed by the employee within the scope of his employment

Incompetence

• Is the lack of ability, legal qualifications or fitness to discharge the required duty.
• Although a nurse is registered, if in the performance of her duty she manifests incompetency, there is ground for revocation or suspension of her certificates of registration.

Liability of Nurses for the Work of Nursing Aides

• Nursing aides perform selected nursing activities under the direct supervision of nurses.
• Nurses should not delegate their functions to nursing aides since the Philippine Nursing Act specifies the scope of nursing practice of professional nurses.
• If a nurse delegates, he is responsible.

Liability for the Work of Nursing Students

• Under the Philippine Nursing Act of 2002, nursing students do not perform professional nursing duties.
• They are to be supervised by their Clinical Instructors.

Assumption of Risk

• A nurse cannot bring suit against the patient if she gets hurt or contacts the disease since upon accepting the case, the nurse agreed to assume the risk of harm or infection.

Consent

• Is defined as a “free and rational act that presupposes knowledge of the thing which consent is being given by a person who is legally capable to give consent.”
• It is the NURSE who actually secures the consent of the patient upon admission.

1. Informed Consent

• “it is established principle of law that every human being of adult years and sound mind has the right to determine what shall be done with his on body”
• Essential elements of Informed Consent
  • Diagnosis and explanation of the condition
  • A fair explanation of the procedures to be done and used and the consequences
  • A description of alternative treatment or procedures
  • A description of benefits to be expected
  • Material rights if any
  • The prognosis, if the recommended care, procedure, is refused.

2. Proof of Consent

• A written consent should be signed to show that the procedure is the one consented to and that the person understands the nature of procedure
• A signed special consent is necessary before any medical or surgical treatment is done such as X-rays etc.

3. Who Must Consent

• Normally the patient himself is the one who gives the consent,
• If he is incompetent (minors or mentally ill) or physically unable, consent must be taken from another who is authorized to give it in his behalf.

4. Consent of Minors

• Parents, or someone standing in their behalf
• If emancipated minor consent is signed by them.

5. Consent of Mentally Ill

• They cannot legally give consent. Parents or guardians.

6. Emergency Situation

• When an emergency situation exists, no consent is necessary because inaction at such time may cause greater injury.

7. Refusal to Consent

• Patients other than those who are incompetent to give consent can refuse consent.
• If refuses to sign, this should be noted in his chart

8. Consent for Sterilization

• Is the termination of the ability to produce offspring.
• The husband and wife must consent to the procedure if the operation is primarily to accomplish sterilization.
• If it’s medically necessary or an incidental result, the patient alone is sufficient.

Medical Records

• As a record of illness and treatment, it saves duplication in future cases and aids in prompt treatment
• It serves as a legal protection for the hospital, doctor, and nurse by reflecting the disease or condition of patient and its management.
• “If it was not charted, it was not observed or done.”
• Nurses have the responsibility of keeping the patient’s right to confidentiality.
• Permission has to be taken from the Medical Records Division of the Hospital.

Intentional Wrongs

• nurse may be held liable for intentional wrongs

Torts

• Is a legal wrong, committed against a person or property, independent of a contract which renders the person who commits it liable for damages in a civil action.
• The person who has been wronged seeks compensation for injury or wrong he has suffered

Examples of Torts are:

1. Assault and Battery
   • Assault is the imminent threat of harmful or offensive bodily contact; “banta”
   • Battery is an intentional, unconsented touching of another person.
2. False Imprisonment or Illegal Detention
   • Unjustifiable detention of a person without legal warrant within the boundaries fixed by the defendant by an act or violation of duty intended to result in such confinement
3. Invasion of Right to Privacy and Breach of Confidentiality.
   • The right to privacy is the right to be left alone, the right to be free from unwarranted publicity and exposure to public view
4. Defamation
   • Character assassination, be in written or spoken
   • Slander is oral defamation of a person by speaking unprivileged or false words by which his reputation is damaged.
   • Libel is defamation by written words, cartoons or such representations that cause a person to be avoided, ridiculed or held in contempt or tend to injure him in his work.

Reference: Mr. Reynaldo A. Donghit, Jr. R.N.