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  1. 1. Jurisprudence in Nursing Practice Nelia B. Perez RN, MSN Northeastern College College of Nursing
  2. 2. Jurisprudence on Negligence, Contracts and Wills <ul><li>Somera Case </li></ul>
  3. 3. Examples of Imprudence or negligence cases <ul><li>Giving drugs to the wrong patient </li></ul><ul><li>Wrong medicine, wrong concentration, wrong route and wrong dosage </li></ul><ul><li>Using defective equipment </li></ul><ul><li>Omission or failure to report or record his or her nursing observations in the patient’s chart </li></ul><ul><li>Errors in executing a physician's order </li></ul><ul><li>Infusing the wrong type of blood </li></ul><ul><li>Administering parenteral medications without doctor’s order and special training </li></ul><ul><li>Other professional misconduct which causes damage or injuries to the patient. </li></ul>
  4. 4. Malpractice in Nursing <ul><li>Malpractice is defined as the improper or unethical conduct by a professional, resulting in harm, injury or death of another person. </li></ul><ul><li>It is the type of lawsuit which has been called medical malpractice or more appropriately medical negligence, is that type of claim which a victim has available to him or her as redress for a wrong committed by a medical professional which has caused bodily harm. </li></ul>
  5. 5. Elements of Nursing Malpractice <ul><li>Duty </li></ul><ul><li>Breach </li></ul><ul><li>Injury </li></ul><ul><li>Proximate causation </li></ul><ul><li>*whether the nurse’s actions, in fact, causes harm to the patient, and, </li></ul><ul><li>* whether these are the proximate cause of the patient’s injury. </li></ul>
  6. 6. PROXIMATE CAUSE <ul><li>As that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury and without which the result would not have occurred. </li></ul>
  7. 7. CONTRACTS AND WILLS <ul><li>A contract is a meeting of minds between two persons whereby one binds himself with respect to the other, to give something or render some service. </li></ul><ul><li>A will is an act whereby a person is permitted with the formalities prescribed by law to control to a certain degree the disposition of his / her estates or properties to take effect after his / her death. </li></ul>
  8. 8. Kinds of Will <ul><li>Notarial will requires among other things, an attestation clause and an acknowledgement before a notary public. </li></ul><ul><li>Hologrophic will is a will which is entirely written, dated and signed by the testator. It does not need any attestation or acknowledgement. </li></ul>
  9. 9. Jurisprudential Doctrines in Nursing Practice <ul><li>Bonus Pater familias </li></ul><ul><li>( good father of a family ) </li></ul><ul><li>“ whereby the employer ultimately becomes liable on his own negligence”. </li></ul><ul><li>This means that the employer is liable upon a finding that he has been negligent in the selection of his employees ( culpa in eligiendo ) o in the supervision of his employee ( culpa in vigilando ). </li></ul>
  10. 10. <ul><li>Juris tantum – disputable presumption </li></ul><ul><li>Jure et de jure – conclusive presumption </li></ul>
  11. 11. Respondeat Superior <ul><li>An Americal doctrine whereby the negligence of the employee is conclusively presumed to be the negligence of the employer. </li></ul><ul><li>It is a Latin phrase which literally means “ let the master or superior answer” or “let the principal answer for the act of his agent”. </li></ul><ul><li>It is a legal doctrine which means that the employer is responsible for his employee’s action within the course of employment. </li></ul>
  12. 12. Doctrine of negligent conduct <ul><li>Under this doctrine, the nurse is liable for damages or injuries to the patient as a result of negligent performance or non-performance of the nurse's obligation in the hospital. </li></ul><ul><li>Breach of contract </li></ul>
  13. 13. Basic Elements of Malpractice Action <ul><li>The defendant has the duty to conform to a particular standard of conduct for the plaintiff’s protection; </li></ul><ul><li>The defendant’s conduct failed to measure up to the standard; </li></ul><ul><li>The defendants conduct is the legal or proximate cause of damage sustained by the plaintiff. </li></ul>
  14. 14. Doctrines of res ipsa loquitor and common knowledge <ul><li>Res ipsa loquitor is a latin phrase which literally means “the thing itself speaks”. It is often translated as “the thing or transaction speaks for itself”. It is applied to physical torts in which the res (thing) need not be explained beyond the obvious facts as shown. It can be applied in conjunction with the doctrine of common knowledge”. </li></ul>
  15. 15. Use of res ipsa loquitor <ul><li>The harm would not ordinarily have occurred without someone’s negligence; </li></ul><ul><li>The instrumentality of the harm was under the exclusive control of the defendant at the time of the likely negligent act; </li></ul><ul><li>The plaintiff did not contribute to the harm by his own negligence. </li></ul>
  16. 16. Doctrine of damnum absque injuria <ul><li>Means that “although there was physical damage there was no legal injury”. </li></ul><ul><li>Danmun et injuria – the act is not only hurtful but wrongful as well. </li></ul><ul><li>To counteract : Art. 21 of the Civil Code – “the essential ellements of abuse oif right are a) the defendant should havee actred in a manner that is contrary to morals, good customs, or public policy; b) the acts should be willful and c)there was damage or injury to the plaintiff. </li></ul>
  17. 17. Force Majeure <ul><li>Refers to an event which cannot be foreseen, or which being foreseen, is inevitable. </li></ul><ul><li>It implies an extraordinary circumstance independent of the will of the actor. </li></ul><ul><li>An act of God or unexpected event which takes place by accident and can neither be foreseen nor resisted. </li></ul><ul><li>“greater force” </li></ul>
  18. 18. Stare decisis <ul><li>Stare decisis et non quieta movere, literally means “stand by decisions and not move that which is quiet” (let sleeping dogs lie) </li></ul><ul><li>“ to stand by that which is decided. </li></ul><ul><li>The court stand by its previous decision or precedent. To stand by which has been settled means to adhere and not be disturb or change it in order to ensure and maintain the integrity and consistency of the court. </li></ul>
  19. 19. <ul><li>Obiter dictum is an opinion of the justice of the court on a point of law not directly bearing on the case in question and therefore has no binding effect. </li></ul><ul><li>Law of case operates only in the particular case and only as a rule of policy and not as one of law. </li></ul>
  20. 20. nolo contendere <ul><li>Latin legal phrase for “I will not defend it”. </li></ul><ul><li>It is a plea of “no contest which has the effect of pleas of guilty in some jurisdictions because it is considered as an admission of guilt for a crime charged. </li></ul>
  21. 21. Malfeasance, misfeasance, nonfeasance <ul><li>Malfeasance is the performance of some act which ought not be done. </li></ul><ul><li>Misfeasance is the improper performance of some act which might lawfully be done. </li></ul><ul><li>Nonfeasance is the omission of some act which ought to be performed. </li></ul>
  22. 22. Informed consent <ul><li>Information </li></ul><ul><li>Consent </li></ul><ul><li>Elements: </li></ul><ul><li>1. full disclosure </li></ul><ul><li>2. voluntary consent </li></ul>
  23. 23. Elements of Informed Consent <ul><li>The consent must be voluntary. </li></ul><ul><li>The patient has the legal capacity to give consent </li></ul><ul><li>The patient has sufficient understanding of the situation. </li></ul><ul><li>The patient must make an enlightened decision. </li></ul>
  24. 24. Types of Consent <ul><li>Express consent </li></ul><ul><li>Implied consent </li></ul><ul><li>Administrative consent </li></ul>
  25. 25. Doctor’s order rule <ul><li>A dependent and coordinated function. </li></ul><ul><li>May be written or verbal. </li></ul><ul><li>Verbal orders may be made in person or by phone. </li></ul>
  26. 26. Nurse as a witness rule <ul><li>May be considered as ordinary witnesses or expert witnesses. </li></ul><ul><li>Two common types of expert witness </li></ul><ul><li>a) percipient or fact witness </li></ul><ul><li>b) non- percipient or non fact witness </li></ul>
  27. 27. Legal Advice to Nurses <ul><li>Ignoratia legis neminem excusat </li></ul><ul><li>For nurses, law is not everything </li></ul>
  28. 28. Professional Ethics and Standards in Nursing
  29. 29. Universal principles in nursing <ul><li>That “the need for nursing is universal” and </li></ul><ul><li>That “the respect for human rights is inherent in nursing”. </li></ul>
  30. 30. Universal declaration of Human Rights (art. 25) <ul><li>Everyone has the right to standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or lack of livelihood in circumstances beyond his control. </li></ul>
  31. 31. <ul><li>Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. </li></ul>Universal declaration of Human Rights (art. 25) (Cont)
  32. 32. Why nurses need to study professional ethics? <ul><li>To deal with the problems of a moral and ethical nature in their day-to-day work; </li></ul><ul><li>Need to know and fathom the ethical and moral challenges of advancement in medical knowledge and technology such as organ transplants, amniocentesis, in vitro fertilization, genetic engineering and cryogenics </li></ul><ul><li>Need to be aware of the ever changing world of health care which always poses a challenge to the shared values of the community. </li></ul><ul><li>Need to understand the nature of health care which is a moral endeavor or morally good in itself”. </li></ul>
  33. 33. Approaches to nursing ethics <ul><li>Deontological approach </li></ul><ul><li>Ethical skepticism </li></ul><ul><li>utilitarianism </li></ul>
  34. 34. Concepts of Nursing Ethics