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Malpractice, Negligence, torts and crimes

 Malpractice- a failure to exercise an ordinary degree of professional skill
which results to injury, damage, loss.
 Negligence- failure to take proper care in doing something.
 Torts-an act or omission that gives rise to injury or harm to
another and amounts to a civil wrong for which courts impose
liability.
 Crimes- intentional commission of an act usually deemed socially
harmful or dangerous
1. Malpractice
 Acts or conducts that are not authorized or licensed,
competent, or skilled to perform, resulting to injuries or non-
injurious consequences
 Negligent act committed in the course of professional
performance
Elements of Malpractice

 Duty of the nurse

 Dereliction or breach of duty
 Direct result
 Damages
 Exceeds the limits of the standards of care
Examples of Malpractice

 Failure to diagnose
 Birth Injuries
 Failure to provide treatment
 Surgical complications
Legal defense in negligence

 Nurses should know and attain that standard of care in giving

service and that they have documented the care they give in a
concise and accurate manner.
 If the patient’s careless conduct contributes to his own injury, the
patient cannot bring suit against the nurse.
2. Negligence
 Failure to do something which a reasonable and prudent
person should have done
 2 types of negligence
o Commission- wrong doing
o Omission- total neglect of care (didn’t do anything)
 Elements of Negligence

 Failure to meet the standard of due care

 The foreseeability of harm resulting from failure to meet the
standard.
 The fact that the breached of this standard resulted in an injury to
the plaintiff.
CIVIL CODE ARTICLE 19- One shall act with justice, give every man
his due, observe honesty and good faith.
Those who, in the performance of their obligation through
negligence cause any injury to another, liable for damages.
TYPES OF NEGLIGENCE

 As a crime (culpa criminal)- Felony committed by culpa or fault due

to imprudence, lack of foresight, lack of skills, negligence.
 As torts (culpa contractual)-
Malfeasance- performance of an act which ought not to be
done
Misfeasance- improper performance of some act which
lawfully be done
non-feasance- omission of some act which ought to be
performed.
 Examples of negligence
 Burns
 Objects left inside the body of the client
 Falls of elderly
 Falls of children
 Failure to observe and take appropriate action as needed.
Torts
• 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.
• A person who has been wronged seeks compensation for the injury or wrong
he has suffered from the wrong doer.
Examples of tort
ASSAULT AND BATTERY
• Assault is an unjustifiable attempt to touch another person or even the threat
of doing so.
• Battery is the actual carrying out of the threatened physical contact
DEFAMATION OF CHARACTER occurs where a person discusses another
individual in terms that diminish reputation.
Defamation of character
Slander – oral defamation of a person by speaking unprivileged or false words
by which his reputation is damaged.
Libel – 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.
FALSE IMPRISONMENT
• It is making someone wrongfully feel that he or she cannot leave the place.
• The unjustifiable detention of a person without a legal warrant within
boundaries fixed by the defendant by an act or violation of duty intended to
result in such confinement.
USE OF RESTRAINT
• Restraints should be used with caution and discretion.
• All patients should have the right to independence and freedom of movement.
• Restraints require a physician’s order.
• If a patient or his legal guardian refuses to be restrained, this should be
documented in the patient’s medical record.
INVASION OF PRIVACY
• The right to privacy is the right to be left alone, the right to be free from
unwarranted publicity and exposure to public view as well as the right to live
one’s life without having anyone’s name, picture or private affairs made public
against one’s will.
• Nurses may become liable for invasion of right to privacy if they divulge
information from a patient’s chart to improper sources or unauthorized
persons
CRIME - act committed or omitted in violation of the law.
Criminal offenses are composed of two elements:
1. Criminal Act
2. Evil/criminal intent A conspiracy to commit a crime exists when two or more
persons agree to commit a felony and decide to do it.
Conspiracy to commit a crime
• Principals - are those who take a direct part in the execution of the act, who
directly force or induce others to commit it; or who cooperate in the
commission of the offense by another act without which it would not have been
accomplished.
• Accomplices - are those who, not being principals, cooperate in the
execution of the offense by previous and simultaneous act.
• Accessories - are those who, having the knowledge of the commission of the
crime. Assisting the offender to profit from the crime either by disposing the
body, concealing or assisting in escape of the principal of the crime.
Criminal actions
• Misdemeanor - a general name for criminal offense which does not in law
amount to felony.
• Felony - a public offense for which a convicted person is liable to be
sentenced to death or be imprisoned in a penitentiary or prison. It is committed
with deceit and fault.
Criminal negligence

✓ Reckless Imprudence - when a person does an act or fails to do involuntary

without malice, from which damage results immediately.

✓ Simple Imprudence - means that the person or nurse did not use
precaution and the damage was not immediate or the impending danger was
not evident or manifest.
Criminal intent

✓ Is the state of mind of a person at the time the criminal act is committed,
that is, he/she knows that an act is lawful and still decided to do it anyway.

✓ Deliberate intent includes two other elements without which there can be
no crime. These are freedom and intelligence.
✓ When a person accused of the crime offers evidence showing insanity,
necessity, compulsion, accident, or infancy the court will decide if he did not
commit a criminal offense and will declare the person not guilty.

Contract
• Is a meeting of minds between two persons where they bind themselves to
give something or to render some services.
• Anything could be subjected to a contract as long as these are not contrary to
law, morals, good customs, public order and public policy.
Kinds of contract
• Formal Contracts - refers to an agreement b/w parties and is required to be
in writing e.g. marriage contracts
• Informal Contracts - one in which concluded as the result of a written
document where the law does not require the same to be in writing.
• Express Contracts - The one in which the conditions and terms of contract
are given orally or in writing by the parties concerned.
• Implied Contracts - one that is concluded as a result of acts of conduct of
the parties to which the law ascribes an objective intentions to enter into a
contract.
• Void contracts - one that is inexistent from the very beginning and therefore
may not be enforced.
• Illegal contracts - one that is expressly prohibited by law

Illegal contracts
• Those that are made in protection of the law
• Consent obtained by fraud
• Those obtained under duress
• Those obtained under undue influence
• Those obtained through material misrepresentation
Wills
• It is a legal declaration of a person’s intentions upon death.
 • DECEDENT - a person whose property is transmitted through
succession whether or not he left a will. If he left a will he is called a
TESTATOR. If a woman TESTATRIX
• HOLOGRAPHIC WILL - a will that is written and signed by the testator
• HEIR is a person called to succession either by the provision of a will or
by operation of law
• There should be a witness who knows the handwriting and signature of
the testator explicitly declares that the will and the signature are in the
handwriting of the testator
Nurse’s obligation in the execution of a will
• The nurse should note the soundness of the patient’s mind and that there
was free from fraud or undue influence and that the patient was above 18
years or of age.
• The patient should write that the will was signed by the testator, that the
witnesses were all present at the same time and signed the will I the presence
of the testator
Living will
• Is an individual’s signed request to be allowed to die when life can be
supported only mechanically or by heroic measures.
• It also includes the decision to accept or refuse any treatment, service or
procedure used to diagnose or treat his/her physical or mental condition and
decisions to provide
Advance directive & health care proxy
• The patient designates a health care representative, usually a member of the
family, a friend or a family physician to make decisions for him/her when
he/she is unable, due to physical or mental incapacity, accept or refuse
treatment, service or procedure used to diagnose or treat his/her physical or
mental condition and decisions to provide, withhold or withdraw life sustaining
measures
• A nurse especially those taking care of well-to-do patients should remember
that the main requisite for making a will is testamentary capacity or sanity.
• The person who makes a will should at least be 18 years old and is not
prohibited by law.
• The will is written and should be witnessed by three credible witnesses,
unless it is holographic will.
• A holographic will is one that is entirely written, dated and signed by hand. •
There is no legal reason for the nurse to refuse to witness the preparation of a
will.

BY: JESTIAN RYLL DELACRUZ