MODULE IV: DECISION MAKING BASE ON PUBLIC AND PRIVATE LAW

Ethical, legal, and professional practice requires serious reflection, constant vigilance,
continued study, and honest self-evaluation. Private law is concerned with the recognition and
enforcement of rights and duties of private citizens and organizations. Torts and contract law are
two types of private law.
The most common civil claim in medical law is an action called tort in a form of negligence
or malpractice. A tort is a private or civil wrong or injury, other than a breach of contract, for which
the court will provide remedy in form of an action for damages. The legal wrong committed upon
the person may be a direct invasion of some legal right of the individual, the infraction in some
public duty by which special damages accrue to the individual or the violation of some private
obligation by which the damages accrue to the individual. The basic objectives of the tort law are:
(1) preservation of peace between individuals, (2) determining of fault, and (3) compensation for
injury.

Every tort action has three elements:

1. The existence of a legal duty owing from defendant to plaintiff.
2. A breach of that duty
3. And damages that are a proximate result

Philippine tort is classified into three broad categories:

1. Intentional tort or Felonies committed by means of Dolo (deceit)
2. Negligent tort or Felonies committed by means of Culpa (fault)
3. Tort committed by a violation of special law.

Negligent tort or felonies committed by means of Dolo (deceit) have the following elements.

1. Freedom
2. Intelligence
3. Intent/ malice

Freedom: Thus, when a person acts under the compulsion of irresistible force is exempt
from criminal liability.

Intelligence: Necessary to determine the morality of human act, no crime can exist. (eg..
imbecile, insane, children under nine years of age or above nine but below fifteen years
old, and acting without discernment, have no criminal liability, because they are acting
without intelligence)

Intent: to commit the act with malice, being purely a mental process, is presumed and
the presumption arises from the proof of the commission of unlawful act.

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Negligent tort or Felonies committed by means of Culpa (fault)
1. Freedom
2. Intelligence
3. Negligence and imprudence

Elements of Negligence
1. Harm must occur to the individual (Injury)
2. One person must be in a situation where she/he had duty towards the person harmed (Duty)
3. The person must be found to have failed to fulfill his or her duty (Breach of Duty)
4. The harm must be shown to have been cause by breach of duty. (Proximate cause)

Negligence is the unintentional commission or omission of an act that a reasonably prudent person
would or would not do under the same similar circumstances. Negligence or carelessness of a
professional health provider (physical therapist, pharmacist, nurses, physician) is generally
describe as malpractice. Negligence is the charge when something just happens—when there is no
intent, when the outcome is unexpected, but the injury occurs. Negligence takes many forms; the
most common are:
 Malfeasance- the execution of an unlawful or improper act
 Misfeasance- the improper performance of an act that leads to injury
 Nonfeasance- the failure to perform an act, when there is a duty to act
 Criminal negligence- the reckless disregard for the safety of another

COMMON NEGLIGENCE ACTS OF COMMISSION AND OMISSION

Example of negligent act of commission

 Administering wrong medications
 Administering wrong dosage
 Performing the wrongful surgical procedure
 Performing a surgical procedure without patient consent
 Performing a procedure on the wrong patient

Examples of negligent act of omission

 Failing to conduct a thorough history and examination
 Failing to assess and reassess a patient’s nutritional needs
 Failing to administer medication as prescribed
 Failing to follow up on critical laboratory tests

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CIVIL ACTION IN NURSING PRACTICE

Civil Action in nursing may arise from either Contracts or Torts

Culpa Contractual: if there is a pre-existing contractual relation, a nurse is certainly accused of

fraud, negligence or delay or violation of contractual obligation resulting in a
damage, injury or even death.

When a nurse is contractually obligated to perform a particular health service or intervention to

a patient and causes death or injury to the latter.

Culpa aquiliana (quasi-delict): If there is no pre-existing contractual relation, nurse causes

damage, injury or death.

Art. 2176 NCC: Whoever by acts or omission causes damage to another, there being fault or
negligence, is obliged to pay for damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provision of this chapter

CONTRACTS
Art. 1305: A contracts is a meeting of minds between two persons whereby one binds himself,
with respect to the other, to give something or to do some service.
Art. 1315: Contracts are perfected by mere consent, and from the moment the parties are bound
not only to the fulfillment of what has been expressly stipulated but also to all the consequences
which, according to their nature, may be in keeping with good faith, usage and law.
Art. 1170: Those who in the performance of their obligation are guilty of fraud, negligence, or
delay, and those who in any manner contravene the tenor, thereof, are liable for damages.

WHAT ARE THE ESSENTIAL REQUISITES OF A CONTRACT?

There is no contract unless the following requisites concur:
1. consent of the contracting party
2. Object certain which is the subject matter of the contract
3. Cause of obligation which is established
Consent: concurrence of the minds of the contracting parties with respect to the object and the
cause which shall constitute the contract.
Object: maybe defined as the things, right, service.
As a general rule, all things, rights or services may be the object of contracts. It is,
however, essential that the following must concur:
1. The object should be within the commerce of men;
2. The object must be real or possible;
3. The object should be licit;
4. The object should be determinate or at least, possible of determination, as to its kind.

Cause: The why of the contract or the essential reason which moves the contracting parties enter
into the contract.

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VITAL LEGAL DOCTRINE IN NURSING PRACTICE

Res Ipsa Loquitur: “The thing or the transaction speaks for itself”
Example: Leaving a foreign object in the body of the patient after the
operation.

“When a thing has caused an injury is shown to be under the management of the party
charge 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 it arose from the want of proper
care”

The reason for the rule is that the thing causing the accident lies within the exclusive control
of the defendant (the person charged with negligence); that the defendant has better opportunity to
know the conditions of the thing under his control and management than the person injured; and
the accident would not have happened had the defendant or his servants used the thing in a proper
and careful manner. The doctrine is applied as an exception to the ordinary rule that “negligence
is never presumed” and is given application because, from the facts and circumstances, a
probability arises that the defendant was negligent.

Three conditions are necessary for the application of doctrine of res ipsa loquitor, namely:
First the accident must be of a kind which ordinarily does not occur in the absence of someone’s
negligence; second, the accident must have caused by an agency or instrumentality within the
exclusive control of the defendant; and third, the accident must not have been due to any voluntary
action or contribution on the part of the plaintiff (injured party).

Respondeat Superior: The latin phrase respondeat superior literally means “let the superior answer;
let the principal answer the acts of his agent.” As legal doctrine, the import of the maxim
“respondent superior” is that the principal or master should be answerable for the acts of his agent
or servant. Otherwise stated, the rule simply provides that the one who acts through the agency of
another, then, in the contemplation of law, he is himself acting so as to make him responsible for
the acts of his agent. Under this doctrine, the master is 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 his employment.

The doctrine applies only when the relation of master and servant is shown to exist between
the wrongdoer and the person sought to be charged for the result of some neglect or wrong, at the
time and in respect to the very transaction out of which the injury arose. The doctrine does not
apply where the injury occurs while the servant is acting outside the legitimate scope of his
authority.