Panel discussion-

A panel discussion, or simply a panel, involves a group of people gathered to

discuss a topic in front of an audience, typically at scientific, business, or academic
conferences, fan conventions, and on television shows.

Advantages of a panel discussion-

-It facilitates clarification on knotty issues.
-It highlights the multi-dimensionality of the issue under discussion.
-It helps to develop critical thinking in both panelists and the audience.
-It fosters logical thinking.
-It develops presentation skills

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 LEGAL ISSUES IN NURSING

INTRODUCTION
The contribution of nursing to the alleviation of suffering and to protection and promotion and
restoration of health is a proud chapter in the history. The image of any organization depends
upon the behavior of people who constitute it. So, there is great obligation on the part of
employees to behave in an ethical way at the work place. This is equally applicable to the
nurses who are working in different sectors of health care delivery system. The way nurses
behave, reflect the image of that organization. Today the nurses face a variety of ethical
problems than ever before. The word Ethics is derived from Greek word “Ethos” which the
Consumers are patients with complex needs. With increased awareness of health care, health
care facilities and Consumer Protection Act, patients are getting aware about their rights.
Nurses also have now the expanded role. Issues which seem not feasible, and ideal, may
become practice . In a civilized society, a system of law promotes order, protects the rights of
citizen and provides the framework for a wide variety of relationships. In today’s complex
world, with advancing technologies and an array of societal problems, legal issues are an
important aspect of life. For nurses in practice within the current health care system,
knowledge of basic legal concepts is vital. Interesting and important development in the
system of law affect both the nurse and her practice of time. These issues are base for the future
trends in care. means customs or guiding beliefs .

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LAWS

Law is the result of the minimum level of shared values or ethics of a community of

people. Law and ethics are related. Nurses may act in ways that are legal but not ethical.

Both law and ethics are related to politics. Law means a body of rules to guide human

action

DEFINITION

Laws are “rules of conduct, establishedand enforced by authority, whichprohibit extremes in

behaviour so that one can live without fear for oneself or one’s property”.

According to sullivan and decker

TYPE OF LAW

 Common law

 Criminal law

 Civil law

COMMON LAW

Common law results from judicial decisions made in courts when individual legal cases are

decided.

examples of common law include

Informed consent,

The patient's right to refuse treatment

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 CRIMINAL LAW
Criminal actions are brought by the state against a defendant accused of breaking a law.
Nurses have been prosecuted for crimes such as
Negligent homicide,
Man- slaughter,
Theft of narcotics,
Insurance fraud,
Falsifying medical records.
Medication errors resulted in the patient's death
CIVIL LAW
TORT

A tort law allows an injured person to seek damages a person who caused the injury.

TYPE OF TORTS
INTENTIONAL TORTS
1) Assault.
2) Battery.
3) Invasion of privacy.
4) Defamation of character

1. Assault - make a physical attack on.

2. Battery: - purposely touching or applying force on other persons or things related to the
person without his consent with the intention to harm the person is known as a battery.

3. Invasion of privacy: - Invasion of privacy is the intrusion of an unwanted individual into

the private affairs of a person without consent.
4. Defamation of character: - Defamation is the damaging of someone's good
reputation by saying something bad and untrue about them.

There are two type of defamation:-

a. Libel
b. Slander

1. LIBEL: - Libel refers to defamation made in some permanent form, that is in written,
printed or similar manner.

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 2. SLANDER ;- Refers to the form of defamation that is transient in nature, i.e. Oral
defamation.

UNINTENTIONAL TORTS
1. Malpractice
2. Negligence
1. Negligence: - knowing the right thing and not doing it.
2. Malpractice: - knowing the right thing to do and doing it incorrectly due to lack of skill.

LEGAL RESPONSIBILITY OF NURSES

To prevent the legal issues, it is very necessary for nurses to follow some responsibilities-

WHILE PROVIDING NURSING CARE IN ANY MEDICO LEGAL CASE NURSE

MUST TAKE CARE OF FOLLOWING-

1. After receiving the patient from OPD to ward, immediately inform the doctor on duty of
that unit
2. All the records of patient like OPD slip, admission slip, and admission files must be kept
under lock and key to prevent legal issues.
3. It is nurse responsibility not to show the patients records to anybody.
4. It is nurse responsibility not to show or hand over to any police personnel.
5. It is also a nurse responsibility not to throw any discharge of patient without the permission
of physician.
6. Take consent of relative or patient for any kind of procedure or treatment.
7. The condition of patient should be reported verbally to relatives.
8. Maintain all records of the patient accurately.

RESPONSIBILITY OF NURSE DURING THE DISCHARGE OF PATIENT-

1. On discharge, no record should be handed over to the police by nurse.

2. Entered clearly, if patient is transferred to another ward or hospital.

3. Before allowing the patient to leave the hospital, nurse should clearly enter or write the name
of relatives of the patient.

4. It is nurse responsibility to keep all the records concerning to patient under lock and key after
discharge of the patient.

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IN CASE OF DEATH OF THE PATIENT-
After death of the patient, if patient is medico legal nurse must get written instruction from the
medical officer for handing over the body of the person to mortuary/police officer.

 Note complete name and address of patient.

 Note identification number.
 Signature of witness.
 Note list of belongings of the patients.
 Maintain privacy and give full respect to dead body.

LEGAL RESPONSIBILITY OF A NURSE IN ADMISSION AND

DISCHARGE OF MENTALLY ILL PATIENTS-

 As per Indian Mental Health Act 1987 major patient (mental ill) gets admitted on a
voluntary adult basis.
 After admission, nurse should check the application form for admission is accompanied by
report of two medical officers out of which one should be government doctor.

RESPONSIBILITIES DURING DISCHARGE OF MENTALLY ILL

PERSONS-

 Check the signature of patient or relative after discharge of the patient.

 Note permanent and correspondence address of patient.

RESPONSIBILITIES OF A NURSE IN CASE OF ABSCONDING OF

PATIENT-

 Check the number of patients admitted with actual number of patients present in the ward
while handing over and taking over charges from one nurse to another.
 Inform immediately to in-charge of the unit and keep the record of patient under lock and
key.

LEGAL RESPONSIBILITIES DURING STERILIZATION AND

ABORTION-

For permanent sterilization, it is essential to-

 Get informed consent signed by both (husband and wife).

 Eugenic sterilization to prevent procreation of unfit such as mentally retarded, mentally ill,
habitual criminal and sexual deviates is prescribed in some part of the world. But each case
is taken independently.

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LEGAL RESPONSIBILITIES OF A NURSE DURING ORGAN
TRANSPLANT-
As a nurse, she should be aware that an uninformed donor prepared under sedation for removal
of any part is criminal in the court of law. So it is nurse's responsibility to get the consent signed
by relatives as per the desire of the deceased.

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RESPONSIBILITIES OF A NURSE DURING EXAMINATION OF A
FEMALE PATIENT-

 Nurse must present during the examination.

 Little exposure of patient is to be made.

 Protect the right of the patient during examination of female patients.

 It is nurse responsibility to discourage if repeated examination of breast/perineal part by the

male doctor.

PATIENT ADVOCATE-

 A nurse has the legal responsibility to be the advocate for the patient in all health care

instances, including emergencies. The nurse will be the liaison between the physician and

the patient. The nurse has the legal duty to monitor the patient and watch for any

abnormalities or complications that may occur. If any occur, the nurse must access a

physician to provide immediate care for the patient.

ADMINISTERING MEDICATION-

 Any nurse who is certified to administer medication to a patient must do so accurately and

timely. The nurse has the legal responsibility to interpret the charts and files of a patient and

to understand what allergic reactions patients may or may not have to a certain medication.

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 If a nurse does not administer the correct dosage or medication to a patient, the patient could

suffer major health risks or even death. This is grounds for a malpractice suit against the

nurse and health care facility.

PATIENT NEGLECT

 The nurse will provide care for the patient he or she is monitoring at all times. If the patient

needs assistance with any issues, such as hygiene, the nurse has the legal responsibility to

assist the patient. If a nurse does not monitor and provide care to the patient, this can be

considered patient neglect, which is unethical and illegal. The patient may try to move and

use the restroom on his or her own and may be physically injured in the process. Some

patients may harm themselves while under the influence of medication, which should not

happen if the nurse is paying proper attention to his or her patient.

CONSENT FORMS-

 Nurses have the legal responsibility to explain all treatment, medications and lab results to

patients or authorized family members of patients. Before a patient may undergo surgery, he

or she will need to sign a consent form. If the nurse is administering the treatment, such as

anesthesia, it is the nurse’s legal obligation to explain the negatives and positives of the

anesthesia. The patient or family member must then sign a consent form acknowledging that

the patient understands the procedure. If this form is not signed and complications occur, the

nurse may face legal consequences.

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10
 LEGAL ISSUES IN NURSING:

MEANING OF LEGAL ISSUES-

Law is standard or rules of conduct established & enforced by government. Legal issues in
nursing are those in which a person lead to face legal problems in which nurse face problem
when not meeting proper patient care.

PATIENT CARE ISSUES-

Nursing covers a wide range of disciplines and health-care issues that are always
changing and at the fore front of what guides this career path.

MEDICO LEGAL ISSUES

DUTY TO SEEK MEDICAL CARE FOR THE PATIENT

It is the legal duty of the nurse to ensure that every patient receives safe and
competent care. If a nurse determines that a patient in any setting needs medical care, and she
does not do everything within power to obtain that care for the patient, you have breached your
duty as a nurse.

CONFIDENTIALITY

The law requires you to treat all such information with strict
confidentiality. This is also an ethical issue. Unless a patient has told something that
indicates danger to self or others, you are bound by legal and ethical principles to keep
that information confidential.

PERMISSION TO TREAT-

When people are admitted to hospitals, nursing homes, and home

health services, they sign a document that gives the personnel in the organization
permission to treat them.

INFORMED CONSENT-

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NEGLIGENCE-

Negligence occurs when a person fails to perform according to the standards of

care or as a reasonably prudent person would perform in the same situation. It is the
responsibility of the nurse to monitor the patient.

MALPRACTICE-

Malpractice specifically refers to negligence by a professional person with a

license. Nurse can be sued for malpractice once have your LPN license.

ASSAULT & BATTERY-

Assault is the threat of unlawful touching of another, the willful attempt to harm someone.
Battery is the unlawful touching of another without consent, justification, or exercise. In legal
medicine battery occurs if a medical or surgical procedure is performed without patient
consent. Assault can be verbally threatening a patient.

FALSE IMPRISONMENT-

Preventing movement or making a person stay in a place without

obtaining consent is false imprisonment. • This can be done through physical or non
physical means. Physical means include using restraints or locking a person in a room. •
In some situations, restraints and locking patients in a room are acceptable behavior. This
is the case when a prisoner comes to the hospital for treatment or when a patient is a
danger to self or others.

INVASION OF PRIVACY-

Clients have claims for invasion of privacy, e.g. their private affairs, with
which the public has no concern, have been publicized. • Clients are entitled to
confidential health care. All aspects of care should be free from unwanted publicity or
exposure to public scrutiny. The precaution should be taken sometimes an individual
right to privacy may conflict with public‘s right to information for e.g. in case of poison
case.

REPORT IT / TORT IT-

Allegations of abuse are serious matters. • It is the duty of the nurse to report to
the proper authority when any allegations are made in regards to abuse (emotional,
sexual, physical, and mental) towards a vulnerable population (children, elderly, or

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 domestic). • If no report is made, the nurse is liable for negligence or wrongdoing
towards the victimized patient.

ETHICAL PRINCIPLEs-
Ethical principles actually control professionalism nursing practice much more than to ethical
theories. Principles are the moral norms that nursing, as a profession, both demands and strives
to implement to every day clinical practice. Ethical principles that the nurses should consider
when making decisions are as follows
1. Respect for persons
2. Respect for autonomy
3. Respect for freedom
4. Respect for beneficence (doing good)
5. Respect for non-malfeasance(avoiding harm to others)
6. Respect for veracity (truth telling)
7. Respect for justice (fair and equal treatment)
8. Respect for rights
9. Respect for fidelity (fulfilling promises)
10. Confidentiality (protecting privileged information)

1. Respect for persons

This principle not only applied to clinical situation, but it applies to all life situations it directs
individuals to treat themselves and other with a respect inherent to main humans. The respect to
person's a need to be simplified as not affects nursing practice.

2. Autonomy
Autonomy means that individuals are able to act for themselves to the level of their capacity. It is
the rights of individuals, governing their action according to their own purpose and reason.

3-Freedom
Nurses a group believes that patient should be
Observed freedom of choice within the nation's
Health care system. This principle should be

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 Observed by staff nurses when planning patient care,
by nurse's manager when leading subordinates

4. Beneficence: (the ethical principles of upholding doing well)

The beneficence principles states that the actions one takes should promote good. It requires the
balancing the harms and benefits. Benefits promote the clients welfare and health whereas harms
or risks detract from the client's health and welfare, In other words, providing benefits that
enhance the other welfare. Whereas balancing the benefits and harms of intervention made on
the others half.

5. Non- Malfeasance
The principle of non- malfeasance states that one should do no harm. The nurses should interpret
the term harm to mean emotional and social as well as physical injury. Harm is threading,
defeating or setting back one person's interest through invasive action by another.

6. Veracity
Veracity concerns truth talking and incorporates the concept that individuals should always tell
the truth. It requires professional care givers to provide with accurate, reality based information
about their health status and care or treatment prospective.

7. Justice
Justice concerns the issue that persons should be treated equally and fairly. This principle of
justice requires treating others fairly and giving persons their due.

8. Rights
Rights is an entitlement to behave in a certain way under circumstances, such as nurses
entitlement to freely express personal beliefs and preferences by voting in a political election.
Right is also used to mean agreement with justice, law and morality. So right may be mental
rights or legal rights to respective profession.

9. Fidelity
Fidelity is keeping one's promises or commitment's the principles of fidelity hold that a person
should faithfully fulfil his duties and obligations.

1-0.Confidentiality
Confidentiality is the duty to respect privileged information. The principle of confidentiality
provides that care-givers should respect a patient need for privacy and by personal information
about him other only to improve care. Nurses should practice confidentiality to decrease patient
vulnerability and share from widespread knowledge of personal information divulged during
care.

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ETHICAL DILEMMAS-
In ethical dilemma each alternative course of action can be justified by two ways in which a
person views the course of action based on his or her value system. Increasingly, staff nurses and
nurse managers face difficult decisions caused by tensions between technological capabilities,
budgetary strictures, and quality of life concerns.

DILEMMA –
A dilemma is defined as a situation requiring a choice between two equally desirable or
undesirable alternatives.

ETHICAL DILEMMAS- Common Nursing Ethics Dilemmas

Informed Consent
Informed consent can sometimes be an ethical battle for nurses. A dilemma can occur when there
is concern that patients and their families have not been informed or do not understand the
treatments used on a patient. There is a concern as sometimes patients do not feel comfortable
asking questions and giving consent without fully realizing the implications of their treatment.

If patients feel supported and trust their doctors and nurses, they are more likely to follow a
treatment plan and experience better outcomes. To avoid ethical dilemmas, nurses should ensure
that patients fully understand all the facets of their treatment plans. The details include knowing
all the risks and the layout of how a procedure will take place or how certain medications and
treatments will affect them. If they do not, this could jeopardize patient health and result in high
costs for the hospitals. Therefore, healthcare workers should take every measure to assure their
patients understand the treatment plan to obtain informed consent securely.

Protecting Patient Privacy and Confidentiality

Patient privacy and confidentiality are significant ethical issues faced by nurses. If not done
correctly, this can have legal ramifications and result in severe consequences for healthcare
professionals. With patients' medical information protected by the Health Insurance Portability
and Accountability Act (HIPA), there are definite boundaries and guidelines for protecting
patients' privacy.

Although nurses must protect their patient's rights and act in their best interest, they are still
obligated to respect patient autonomy. Patient autonomy, the right of patients to independently
make decisions about their care based on personal or cultural belief systems, is a prime principle

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of nursing and should be respected by all healthcare professionals. With patient autonomy,
patients have the right to refuse medications, treatments, or procedures. Although this may
conflict with suggestions made by nurses and doctors, nurses will still have to respect this
decision and operate accordingly.

Shared Patient Decision-Making

Shared decision-making is a far more ethical approach to patient care than years ago when
healthcare professionals fully controlled patient treatment. Share patient decision-making
extends patient autonomy where patients and healthcare professionals work together to make the
best decision possible regarding patient care. With shared decision-making, patients and
healthcare professionals have open conversations about a patient's background, values, beliefs,
and culture, building a trusting relationship between patient and doctor.

Without a relationship, it will be extremely difficult for nurses and healthcare professionals to
get patients to communicate and cooperate properly. When patients are actively involved in
decision-making, they are more likely to be satisfied with their care and trust the doctor's
treatment plans.

Addressing Advanced Care Planning

Advanced care planning is always a difficult conversation for healthcare professionals to have,
predominately when end-of-life care conversations surround it. These conversations are between
patients and doctors when they need to make plans for their future health care if they pass away
or are left too ill to make their own decisions. Patients will explore, discuss, and document their
personal preferences regarding their healthcare. This process helps them identify their personal
goals and values about future medical treatment. They also will share who they would like to
make decisions on their health care if they can't make decisions for themselves.

Nurses tend to have the difficult task of ensuring these preferences are laid out and honored in a
medical emergency. For example, an issue might be if a patient has asked not to be on a
ventilator, but their immediate family demands. Despite the problematic scenario, nurses must
put the needs and wants of patients first, especially in end-of-life care.

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Inadequate resources and staffing
Although this may not be an ethical issue put on individual nurses, healthcare executives and
nurse managers should understand the lack of resources and inadequate staffing regarding patient
care. As healthcare costs continue to rise, nurse managers are at odds regarding budgeting
constraints and patient needs. When medical facilities have scarce resources, patients are at risk
of not receiving proper care—leaving nurses to make difficult decisions.
Hard decisions may also need to be made when facilities are faced with inadequate staffing
levels. When there is not enough staff for patients, nurses do not have the time to do everything
needed for each patient. Patient needs can include recovery times or even addressing the patient's
emotional and physical needs. A nurses' moral obligations to patients are compromised due to
work restraints and stress overload. They are left with mental struggles trying to decipher where
they should focus their priorities.

HOW TO SOLVE AN ETHICAL DILEMMA?

The biggest challenge of an ethical dilemma is that it does not offer an obvious solution that
would comply with ethics al norms. Throughout the history of humanity, people have faced such
dilemmas, and philosophers aimed and worked to find solutions to them.

The following approaches to solve an ethical dilemma were deduced:

Refute the paradox (dilemma): The situation must be carefully analyzed. In some cases,
the existence of the dilemma can be logically refuted.

Value theory approach: Choose the alternative that offers the greater good or the lesser
evil.

Find alternative solutions: In some cases, the problem can be reconsidered, and new
alternative solutions may arise.

MEDICAL NEGLIGENCE-
Commission of mistakes or Negligence within the health profession could result in minor
injuries or even lead to some serious injuries and these mistakes could even lead to death. Since

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no one is perfect in this world, a person who is skilled and has knowledge of a particular subject
can also commit mistakes. To err is human but to replicate the same mistake due to one’s
carelessness is negligence.

The fundamental reason behind medical negligence is that the carelessness of the doctors or
medical professionals are often ascertained in various cases where reasonable care is not taken
during the diagnosis, during operations, while injecting anesthesia, etc.

MEDICAL NEGLIGENCE DEFINITION

We can define ‘Medical negligence’ as the improper or unskilled treatment of a patient by a
medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon,
pharmacist, or any other medical practitioner. Medical negligence leads to ‘Medical
malpractices’ where the victims suffer some sort of injury from the treatment given by a doctor
or any other medical practitioner or health care professional.

Examples of medical negligence-

Some examples of medical negligence are as follows:

 Improper administration of medicines.

 Performing the wrong or inappropriate type of surgery.

 Not giving proper medical advice.

 Leaving any foreign object in the body of the patient such as a sponge or bandage, etc. after
the surgery.

What does not come under medical negligence

A doctor is not liable in all cases where a patient has suffered an injury. He might have a valid
defense that he has not breached the duty of care.

The error of judgment can be of two types:

1. An error of judgment – In such cases, it has been recognized that it doesn’t amount to a
breach of duty. Merely because a doctor’s decision turned out to be wrong, we cannot make him
liable for medical negligence.

2.The error of judgment due to negligence – If all the factors were considered before
coming to a decision then it would be called an error of judgment due to negligence. This
amounts to a breach of duty.

Types of medical negligence

Medical negligence can occur in different ways. Generally, it occurs when a medical
professional deviates from the standard of care that is required.

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So, we can say that any kind of deviation from the accepted standards of medication and care is
considered to be medical negligence and if it causes injury to a patient then the doctor who
operated on him, other staff and/or hospital may be held liable for this.

Some of the common categories of medical negligence are as follows:

 Wrong diagnosis – When someone goes to a hospital, clinic or medical room, etc. the first
step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and
important to provide medical care to any patient. However, if a patient is not treated properly
due to any mistake in diagnosis, the doctor can be made liable for any further injury or
damages caused as a result of the wrong diagnosis.

 Delay in diagnosis – A delayed diagnosis is treated as medical negligence if another doctor

would have reasonably diagnosed the same condition in a timely fashion. A delay in
diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with
time rather than being treated. Obviously, any delay in the identification and treatment of an
injury can reduce the chance of recovery for the patient.

 Error in surgery – Surgical operations require an enormous level of skill and it should be
done with due care and caution because even the slightest mistakes can have profound effects
on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or
a foreign object being left in the body of the patients, all this comes under Surgical error.

 Unnecessary surgery – Unnecessary surgery is usually associated with the misdiagnosis of

patient symptoms or a medical decision without proper consideration of other options or
risks. Alternatively, sometimes surgery is chosen over conventional treatments for their
expediency and ease compared to other alternatives.

 Errors in the administration of anesthesia – Anesthesia is a risky part of any major

medical operation and requires a specialist (anesthesiologist) to administer and monitor its
effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist
has to review the patient’s condition, history, medications, etc. to determine the most
suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-
operation medical review or during the procedure itself.

 Childbirth and labor malpractice – Childbirth is a difficult event for a woman and it
becomes worse if not handled properly by the doctors and nurses. There are many instances
of medical negligence during childbirth including the mishandling of a difficult birth,
complications with induced labor, misdiagnosis of a newborn medical condition, etc.

 Long-Term negligent treatment – Medical negligence can also occur in subtle ways over
the course of a long treatment period. Usually, the negligence can take the shape of a failure
to follow up with treatment, or a doctor’s failure to monitor the effects of the treatment
properly

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Steps to proving a medical malpractice claim

 The first thing you need to prove is that there exists a doctor-patient relationship. This is the
easiest step that one can take in order to prove medical negligence.

 The next thing you should do is prove that your doctor did not meet the set standards
required as an obligation for this profession.

 Then prove that you have suffered an injury as a result of that medical negligence.

 The proof of damages must be presented and this includes all the harm you have suffered
due to the negligent behavior of the doctor.

 All the above-mentioned elements should be proved in order to succeed in a claim against
medical negligence.

Res ipsa loquitur

The Latin maxim “res ipsa loquitur” means that “the thing speaks for itself.”

In terms of medical malpractice, it refers to the cases where the doctor’s treatment was far below
the set standards of care under that negligence is assumed.

The doctrine assumes the following:

 Nature of injury gives the clue that without negligence it could not have happened.

 There was no involvement of the patient himself in the injury in any way.

 The injury happened under the circumstances which were under the supervision and control
of the doctor.

It means that by applying the principle the judge has accepted that the negligence has occurred.
After this, the doctor will have to rebut this thing and if he fails to do so then the patient would
be considered as successful in the case of medical negligence.

How to prove a res ipsa loquitur case?

The injured party must prove that the physician breached the duty of care by failing to adhere to
the set standards of care a doctor must follow. The breach must be demonstrated by an expert’s
attestation. In res ipsa negligence cases expert declaration about the standard of care is not really
required.

In order to prove a res ipsa case, the following must be done:

 It is well known to everyone that if a case seems like it could never happen without
negligence on the part of the doctor then this directly proves that it falls under the category
of res ipsa cases.

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  The equipment or manner of treatment that caused the damage was under the doctor’s
control at all times.

 The injury was the one which the injured person couldn’t assume voluntarily.

Some Examples of Res Ipsa Medical Cases

Some common scenarios of res ipsa cases are given below:

 Leaving some object inside the body of the patient after surgery.

 If a wrong patient gets operated.

 If the wrong part of the patient gets operated.

Necessary test to determine Medical Negligence

The name of the test is the Custom Test.

 In this test, it must be proved that the hospital or any of its staff weren’t negligent in
performing its duties.

 The next thing which should be proved is the method adopted by the concerned doctor was
not ethical.

 In most of the cases, the burden of proof lies upon the Complainant but sometimes it shifts
to the doctor if there is no proper management done on his part.

Medical negligence complaint in civil cases

 The position concerning negligence under civil law is extremely important because it
encompasses various elements in it.

 Under the tort law or civil law, this principle is applicable even if doctors provide free
services. Thus, it can be stated that where the Consumer Protection Act (CPA) ends, the tort
law begins.

 In cases where the services offered by the doctor or the hospital don’t fall within the
definition of ‘services’ under CPA, patients can claim compensation under the tort law.

 The onus (burden) of proof is on the patient and he needs to prove that because of the
doctor’s actions, the injury has been caused to him.

Compensation claim
In Civil liability, the claim for damages is suffered in the form of compensation. If there is any
breach of the duty of care while operating or under the supervision of the hospital or any doctor.

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They are vicariously liable for such wrong committed and are liable to pay damages in the form
of compensation.

If someone is an employee in a hospital then it is the responsibility of the hospital if an employee

causes harm to a patient by acting negligently.

Who is a consumer
According to the Consumer Protection Act, 1986, the consumer is the one who:

 Buys any goods or hires any service.

 Uses the goods or hires any service with the approval of any buyer or the service provider.

 Uses the goods and services to earn a livelihood.

When can a complaint be filed

In the following cases a complaint about medical negligence can be filed:

 The liability of a doctor arises only when the patient has suffered an injury due to his reckless
or negligent conduct which was not appropriate according to the set standards of the medical
profession.

 He is liable only for those consequences which resulted from a breach of his duties.

 The plaintiff must prove the breach of duty and causation.

 In case there is no breach then neither the doctor nor the hospital authorities can be made
liable.

 If the possible causes of an injury is the negligence of a third party, an accident, etc. then it
must be proved that the doctor’s negligence was the most probable cause of the injury to
discharge the burden of proof on the patient (plaintiff).

 Sometimes, ‘res ipsa loquitur’ which means “the thing speaks for itself” comes into play. In
such cases, it can be clearly seen that the doctor was negligent in performing his duties. This
discharges the burden of proving negligence on the plaintiff.

 Normally a person is liable for his own acts but when the concept of vicarious liability comes
into play when a doctor can be held liable for the acts of other persons who are responsible
for the injury caused to the plaintiff.

Who can file a complaint

The below mentioned can file a complaint; A consumer or Any recognized consumer association
whether the consumer is a member of such association or not, or The central or state government.

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A “Recognized consumer association” is a voluntary consumer association, the one i.e.,
registered under the Companies Act, 1956 or any other law for the time being in force.

Forums in which one can file a complaint

The complaints under the Consumer Protection Act for medical negligence can be filed at:

Forum/Commission Pecuniary jurisdiction

The District Forum Less than 20 lakh rupees

The State Commission More than 20 lakhs but less than 1 crore

The National Commission More than 1 crore

Compensation claim
The CPA will not be able to help the patients who availed a doctor’s service free of charge or if
he has paid only a nominal registration fee.

However, if a patient did not pay because of some financial problems or incapacity to pay, they
will still be covered under the Act and will be considered to be consumers and can sue under the
Consumer Protection Act.

Medical negligence cases in India

Medical Negligence cases
In the case of Dr M. Kochar vs Ispita Seal , the National Consumer Dispute Redressal
Commission discussed the issue of failure in the IVF procedure. The patient filed a complaint
against the doctor for medical negligence for the failure of this procedure. The National
Commission held that no success in operating a patient cannot make a doctor liable for medical
negligence.

Supreme Court judgment on medical negligence

Listed below are some of the landmark Supreme Court judgments on medical negligence:

 The landmark judgment in medical negligence cases and the first judgment that comes
into our mind with the highest amount of compensation granted till date is Dr. Kunal
Saha Represented By Sri … vs Dr. Sukumar Mukherjee And Ors. which is famous as the
Anuradha Saha Case. In this case, the wife was suffering from drug allergy and the
doctors were negligent in prescribing appropriate medicines for the same which
ultimately aggravated her condition and led to the death of the patient. The court held the
doctor liable for medical negligence and awarded compensation amounting to Rs. 6.08
crore.

 In the case of V.Kishan Rao Vs Nikhil Super Speciality Hospital, where a lady who was
to undergo the treatment for malaria fever was treated differently. An officer in the
Malaria Department filed a suit against the hospital authorities for performing the
treatment of his wife negligently, who was undergoing the treatment for typhoid fever

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 instead of malaria fever. The husband got the compensation of Rs 2 lakhs and in this
case, the principle of res Ipsa loquitor was applied.

 In Jacob Mathew .V. State of Punjab, the Supreme Court held that in some cases doctors
are bound to take make difficult choices. Sometimes situations make them go for things
involving greater risk because of higher chances of success in taking that decision. And
there are some cases in which there is lesser risk involved and higher chances of failure.
So, the decision will depend upon the facts and circumstances of the case.

 In Juggan Khan v. State of Madhya Pradesh, the appellant who was a registered
Homoeopathic medical practitioner. After seeing an advertisement a woman went to him
for the treatment of guinea worms. After taking the medicine prescribed by him, she
started feeling restless and even after the administration of some antidotes, she died in the
evening. The appellant was convicted for murder under Section 302 of the IPC. The court
held that it was a negligent act to prescribe poisonous medicines without proper checking
and knowledge of the same.

 In A.S. Mittal and another V State of UP and Others, the Apex Court dealt with the case
of a mishap in an ‘Eye Camp’ in Uttar Pradesh. In the camp, about 108 patients were
operated out of which 88 underwent cataract surgery. Out of all these people 84 suffered
permanent damage to the eyesight. It was found that this mishap was due to normal saline
which was used in the operations. The court held the doctor liable as this amounts to
medical negligence. A PIL was filed in this case under Article 32 of the Constitution.

In the case of Poonam Verma v Ashwin Patel and others, the respondent had a diploma
degree in Homoeopathic Medicine and he administered some allopathic drugs to a
patient who was suffering from high fever. Subsequently, the patient was shifted to a
nursing home where he died. The court held the respondent liable as he was registered
for providing Homoeopathic treatment but not under the Allopathy system and his
actions amounted to medical negligence. The Supreme court has also defined the term
“Medical Negligence”.

In Spring Meadows Hospital and another v Harjol Ahluwalia, a child who was
suffering from typhoid was admitted to the appellant’s hospital. The nurse gave an
injection to the child after that he collapsed. After taking all the possible steps the child
was shifted to AIIMS. The doctors there informed the parents about the critical
condition of the child. The child had a cardiac arrest because of the overdose injection
that was given to him. The court held the doctor and the nurse liable to compensate for
this negligence.

In Bhalchandra Alias Bapu & Another v. State of Maharashtra, the Supreme Court
opined that while negligence is an omission to do something which a reasonable man
would do or doing something that a reasonable man would never do; criminal
negligence is the gross neglect to exercise reasonable care and precaution to guard
against the public as well as against an individual.

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PATIENTS RIGHT-

The government is concerned about the deteriorating services in medical care both in private
nursing homes and public hospitals. Consumer organizations are also pressing for a charter of
right of consumers of medical services.

The legislative controls of nursing practice primarily protect the rights of the patients. Until the
1960's patients had few rights; in fact, patients often were denied basic human rights during a
time when they were vulnerable. In 1973, however, the American Hospital association published
its first patient bill of rights. The patient has the right to considerate and respectful care

 The patient has the right to and is encouraged to obtain from physicians and their direct
care givers relevant, current, and understandable information concerning diagnosis,
treatment and prognosis.

 The patient has the right to make decisions about the plan of care prior to and during the
course of treatment and to refuse a recommended treatment or plan of care to the extent
permitted by law and hospital policy and to be informed of the medical consequences of
this action. In case of such refusal, the patient is entitled to other appropriate care and notify
patients of any policy that might affect patient choice within the institution.

 The patient has the right to have an advance directive (such as living will, health care proxy
or durable power of attorney for health care) concerning treatment or designating a surrogate
decision maker with the expectation that the hospital will honor the intent of that directive to
the extent permitted by law and hospital policy

 The patient has the right to every consideration of privacy, Case discussion, consultation,
examination, and treatment should be conducted so as to protect each patient’s privacy.

 The patient has the right to expect that all communications and records pertaining to his/her
care will be treated as confidential by the hospital, except in cases such as suspected abuse
and public health hazards when reporting is permitted or required by law. The patient has the
right to expect that the hospital will emphasize the c dentiality of this information when it
releases it to any other parties entitled to review information in these records

 The patients has the right to review the records. pertaining to his/her medical care and to
have the information explained or interpreted as necessary, except when restricted by law

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  The patient has the right to expect that, within its capacity and policies, a hospital will
make reasonable response to the request of a patient for appropriate and medically
indicated care and services. The hospital must provide evaluation, service, and/or referral
as indicated by the urgency of the case. When medically appropriate and legally
permissible, or when a patient has so requested, a patient may be transferred to another
facility. The institution to which the patient is to be transferred must first have accepted
the patient for transfer. The patient must also have the benefit of complete information
and explanation concerning the need for, risks, benefits, and alternatives such a transfer

 The patient has the right to ask and to be informed of the existence of business
relationships among the hospital, educational institutions, other health care providers, or
payers that may influence the patient’s treatment and care

 The patient has the right to consent to or decline to participate in proposed research studies or
human experimentation affecting care and treatment or requiring direct patient involvement,
and to have those studies fully explained prior to consent. A patient who declines to
participate in research or human experimentation is entitled to the most effective care that the
hospital can otherwise provide

• The patient has the right to expect reasonable continuity of care when appropriate and to be
informed by physicians and other care givers of available and realistic patient care options when
hospital care is no longer appropriate

 The patient has the right to be informed of hospital policies and practices that relate to patient
care, treatment and responsibilities. The patient has the right to be informed of available
resources for resolving disputes, grievances and conflicts, such as ethics committees, patient
representatives, or other mechanisms available in the institution. The patient has the right to
be informed of the hospitals charges for services and available payment methods.

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RIGHT OF SPECIAL GROUP-

RIGHTS OF CHILDREN

1. Right to develop in an atmosphere of affection and security and protection against all forms of
neglect, cruelty, exploitation and traffic.

2. Right to enjoy the benefits of social security. Including nutrition, housing and medical care. 3,
Right to a name and nationality.

4. Right to free education.

5. Right to full opportunity for play and recreation. 6. Right to special treatment, education and
appropriate care, if handicapped.

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7. Right to be among the first to receive protection

and relief in times of disaster.

8. Right to learn to be useful member of society and to develop in a healthy and normal manner
and in conditions of freedom and dignity.

9. Right to be brought up in spirit of understanding, tolerance, friendship among people, peace

and universal brotherhood

10.Right to enjoy these rights, regardless of race, color, sex, religion, national or social origin

RIGHTS OF HIV

People living with HIV and AIDS have been discriminated throughout the world. So, to reduce
these disparities and violating acts some rights have been laid down by the government and made
the part of constitution to protect them. People with HIV infection/ AIDS have same basic right
responsibilities like:

1. Liberty, autonomy, security of the person and freedom of movement.

2. HIV testing

3 Confidentiality and privacy

4. Health and support services, public benefits, medical schemes and insurance.

5. Education on HIV and AIDS.

6. The responsibility of media.

7. The right of safer sex 8. The right of prisoners

9. Duties of persons with HIV or AIDS

LEGAL RIGHTS OF THE DISABLED IN INDIA

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1. General legal provisions

2. The disabled and the constitution 3. Education Law for the Disabled

4. Health Laws

5. Family Laws

6. Succession Laws for the Disabled

7. Labour Laws for the Disabled

8. The rights of the disabled

9. Judicial procedures for the disabled 10.Income Tax Concessions

The persons with disabilities (equal opportunities protection of rights and full participation)
act,1995

Prevention and early detection of disabilities

Education

Employment

Affirmative Action

Non-Discrimination

- Research and Manpower Development

• Social Security - Grievance Redressal

-The Mental Health Act, 1987

- The Rehabilitation Council of India Act, 1992

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The national trust for welfare of persons with autism, cerebral palsy, mental retardation and
multiple disabilities act, 1999

Safeguard from legal issues in nursing-

1-Duty to seek Medical Care for the patient
It is the legal duty of the nurse to ensure that every patient receives safe and competent care. The
nurse cannot guarantee the patient will receive medical care that the nurse be a strong advocate
for the patient and use every resource to ensure medical care is received. If you determine that a
patient in any setting needs medical care, and you do not do everything within your power to
obtain that care for the patient, you have breached your duty as a nurse.

2-Confidentiality
It is a privilege to care for other people. At times, your patients will relate to you in a personal
way. One of the outcomes of your relationship is that you may be told information of a personal
nature. In addition to what a patient may share with you, you have access to the person's hospital
records. The law requires you to treat all such information with strict confidentiality. This is also
an ethical issue. Unless a patient has told you something that indicates danger to self or others,
you are bound by legal and ethical principles to keep that information confidential.

3-Permission to treat
When people are admitted to hospitals, nursing homes, and home health services, they sign a
document that gives the personnel in the organization permission to treat them. Every time the
nurse provides nursing care to person, however, permission must be obtained. The courts have
ruled that people are expected to have some understanding of basic care, which means the nurse
should explain briefly what he or she is about to do. The concept of permission to treat should be
in your mind as you give nursing care. For example, mostpersonnel who pass food trays
automatically ask, "Are you ready to go for a walk now? These automatic questions actually are
permission to treat questions. When you are giving medication, you may say, "Here are your
pills," Here is the new medication the doctor ordered for you." If the patient takes the
medication, he or she has given you permission to treat.

4-Informed consent
The concept of permission to treat is closely tied to the concept of informed consent. The law
states the persons receiving health care must give permission to treat based on informed consent.
The principle of informed consent states that the person receiving the treatment fully understands
the possible outcomes, alternatives to treatment, and all possible consequences.
The physician is responsible for obtaining informed consent for medical procedures, such as
surgery, whereas the nurse is responsible for obtaining informed consent for nursing procedures.
Each institution has forms for informed consent for complex or serious procedures, such as

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surgery, chemotherapy, or electroshock therapy. Check with your institution and review the
forms available for informed consent.

Surgical procedures commonly require informed consent. Although the law states that either
verbal or written consent is acceptable, most institutions require written consent because it is the
most legally binding. It is the physician's responsibility to give the surgical patient the
information necessary to meet the requirements for informed consent. It often is the
responsibility of the nurse to get the surgical consent from signed.

5-Advance Directives
Although the Patient Self-Determination Act was passed by the U.S. Congress in 1990, it was
not implemented until 1992. The act states that all the health care institutions are required to give
clients or patients an opportunity to determine what life saving measures or life-prolonging
actions they want implemented. This requirement applies to all hospitals, long term care
facilities, and home health agencies and is to be done at the time of admission. The institution is
required to give adequate information to the person and assist in completingany forms. In most
situations, the nurse is sponsible for educating patients if there is not information to make an
informed decision
The purpose of advanced directives is to give the person an opportunity to make decisions
regarding healthcare before an illness or a need for t that would prohibit making such critical
decisions

6-Negligence
The law requires nurses to provide safe and competent care. The measure of safe and competent
care is the standards of care. A standard of care is the level of care that would be given by a
comparable nurse in a similar situation. Negligence occurs when a person fails to perform
according to the standards of care or as a reasonably prudent person would perform in the same
situation.
It is the responsibility of the nurse to monitor the patient. If a patient calls for a nurse to come
and assist him in going to the restroom for example, the nurse is to assist, or if the is busy with
another patient, have another nurse assist the patient. Ignoring the patient or responding after a
lengthy delay could be considered negligence, and if the patient is hurt from trying to move
himself, the nurse could face legal suits. Also, it could be considered negligence if a physician
orders the nurse to administer a prescription, and the nurse did not do SO.

Requirements to establish Negligence-

There are four legal requirements that must be met for negligence to be proved: . A standard of
care exists.
A breach of duty or failure to meet the standard of care has occurred.

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Damages or injury has resulted from the breach of duty. (This could be commission of an
inappropriate action or omission of a necessary or appropriate act).
The injury or damage must result from the nurse's
negligence. I have never met a nurse whose goal was to be negligent, but it doesn't happen.
Examples of negligent acts are:
. Leaving a patient's bed in high position with the side rails down and the patient gets confused
during the night and falls out of bed.
Committing medications errors of either omission (not giving the drug) or commission (giving
the wrong drug).
Breaking sterile technique when changing a dressing, with a resultant wound infection. •
Mistakenly ambulating a patient who is on bed rest. Nurses are not supposed to make mistakes,
yet the
best educated and well intentioned nurse can. To avoid neglect, you need to pay attention to the
details of your assignment and focus on managing your workload efficiently. It is important to
practice such skills now while you are a student and have an instructor to help you determine the
most effective way to get your work done.
Malpractice
Malpractice is a term used for negligence. Malpractice specifically refers to negligence by a
professional person with a license. You can be sued for malpractice once you have your LPN
license. If you are a nursing assistant right now, you may be negligent, but it wouldn't be
malpractice because you are not licensed.
Fraud
Few cases of fraud exist in nursing, but it does need to be mentioned. Fraud is a deliberate
deception for the purpose of personal gain and usually is prosecuted as a crime. Most courts are
harder on cases of fraud compared with cases of negligence or malpractice because fraud is
deliberate and results in personal gain.
Assault and Battery It is found that most nurses do not understand the definitions for assault and
battery. It is important to your practice that you do understand them.
Assault is the threat of unlawful touching of another, the willful attempt to harm someone.
Battery is the unlawful touching of another without consent, justification, or exercise. In legal
medicine battery occurs if a medical or surgical procedure is performed without patient consent.

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In both situations, it is not necessary for harm to occur. The events simply need to happen. If you
understand and practice the caring and empowering concepts shared in this test, you should
never have to be concerned about assault and battery.
Assault can be verbally threatening a patient. Rather than threaten a patient, you need to use your
creative tactics to assist the patient in whatever is his or her choice in the matter. You do not
have to hurt the person. If you practice transpersonal caring, however you should not have to be
concerned with these legal issues
False Imprisonment
Preventing movement or making a person stay in a place without obtaining consent is false
imprisonment. This can be done through physical or non physical means. Physical means include
restraints or locking a person in a room. In unique situations, restraints and locking patients in a
room are acceptable behaviours. This is the case when a prisoner comes to the hospital for
treatment or when a patient is a danger to self or others. In these situations, be sure you know the
standards of care and the institution's policies regarding physical restraints. To restrain a person
is a serious decision. It requires a physician's order and permission of the patient or the patient's
family members.
It used to be common practice to use restraints on nursing home residents who wandered or had
other behaviors that were difficult to manage. This is no longer an acceptable standard of care.
The best approach to avoiding a charge of false imprisonment is to work closely with patients
who seem at risk for confinement. Talk to them, do an ongoing assessment, assign extra staff to
assist the person, or implement some other creative way to manage the problem. To resolve such
complex issues is truly practicing the art of nursing.
Invasion of privacy
Clients have claims for invasion of privacy', e.g. their private affairs, with which the public has
no concern, have been publicized. Clients are entitled to confidential health care. All aspects of
care should be free from unwanted publicity or exposure to public scrutiny. The precaution
should be taken sometimes an individual right to privacy may conflict with public's right to
information for e.g. in case of poison case.
Nurse Practice Act
Each state has what is called a Nurse Practice Act. The guidelines and laws outlined in the act
pertain to all nurses who are licensed in that particular state.
Nurse limitation is one of those laws. Each nurse has a limitation on what he is allowed and
trained to do. He must follow the chain of command, especially with the care of a patient. If he
does not have the authority or knowledge to give a prescription, analyze a lab report, or advise
the patient on treatment, he may not legally do so. Any wrong information or practice he
commits is punishable by the law and the patient or family may file a suit against him and the
health agency or hospital he works for.

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Patient's Advocate
A nurse has a legal obligation to act as the patient's advocate in case of emergency. The nurse is
to act as the liaison between the patient and the health care provider, such as a physician. The
nurse will monitor the patient, ensuring that if any complications or abnormalities arise, a
physician notified immediately. The nurse is legally obligated to keep the personal data and
information of the patient private; not doing so is a violation of the code of ethics for nurses.
Administering Medication
Nurses are responsible for administering the correct doses and medications to patients. If the
nurse gives a fatal dosage amount, she may face legal malpractice suits. It is also the
responsibility to research the patient's records, or ask the patient and family members if there are
any allergies or complications that may pose a risk if a certain medication is administered.
Report It or Tort It
Allegations of abuse are serious matters. It is the duty of the nurse to report to the proper
authority when any allegations are made in regards to abuse (emotional, sexual, physical, and
mental) towards a vulnerable population (children, elderly, or domestic). If no report is made, the
nurse is liable for negligence or wrongdoing towards the victimized patient.
Examples of legal torts
. Invasion of Privacy example: a nursing student observing a procedure without the client's
consent or taking photos of the client.
False imprisonment example is telling the client that he/she may not leave the hospital or the use
of restraints.
Battery example: performing procedure without consent such as resuscitation.
Rights to Privacy
The nurse is responsible for keeping all patient records and personal information private and only
accessible to the immediate care providers. according to the Health Insurance Portability and
Accountability Act of 1996 (HIPAA). If records get out or a patient's privacy is breached, the
liability usually lies on the nurse because the nurse has immediate access to the chart.
Document, Document, Document
It is the nurse's responsibility to make sure everything that is done in regards to a patient's care
(vital signs, specimen collections, noting what the patient is seen doing in the room, medication
administration, etc.), is documented in the chart. If it is not documented with the proper time and
what was done, the nurse can be held liable for negative outcomes. A note of caution: if there
was an error made on the chart, cross it out with one line (so it is still legible) and note the
correction and the cause of the error.
b. Legal Issues in specialty and practice area Maternal and infant Nursing

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Many legal issues are involved in the of mother and her infant. Generally the cases of lawsuits
for malpractice in this area may be divided into reo categories who handling the mother and child
Lawsuits brought against physicians doctors and nurses differ reflecting the well recognized
differences ber these professions and their responsibilities
A likely against a doctor who is in charge looking aher mother and infant might be one The foll
Failure to diagnose a high risk pregnancy
Delay in performing a caesarean section
Improper vaginal delivery or failure to perform a
caesarean section
Improper use of forceps locidence surrounding including labour a of Oxytocin

Delay in arriving at the hospital Non attendance at the delivery

SUMMARY
From we were very young we began to learn what was right and what wrong behavior was. We
learned this from our parents, relatives, friends and teachers. By the time we became adults, we
had a personal set of ethics to guide our behavior in daily life. We may believe, for example, that
honesty is important and necessary and important. We will try to be honest because we believe it
is right to do so. Being dishonest would then be wrong for us. This is ethical behavior.

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