Tuesday, September 14, 2010

Nurses and Criminal Liability

Felonies - act or omission punishable by law (RPC)

1.      omission - inaction; failure to perform a (+) duty; there should be a law requiring to perform the act
2.      intent - purpose to use a particular means to effect a result ( deliberate intent - freedom and in intelligence)
3.      motive - moving power which impels one to act for a definite result

Stages of execution
  1. Consummated – when all the elements necessary for its execution and accomplishment are present
  2. Frustrated – when the offender performs all the acts or execution which will produce the felony as a consequence but which nevertheless produce it by the reason of causes independent to the will of the perpetuator
  3. Attempted – when the offender commences the commission of the same directly by overt acts and does not perform the acts which shall produce the felony.

ü conspiracy - two or more person agreed and committed  the felony, a means by which another person is held liable for the commission of a crime; each criminal is responsible for the acts of his associates provided such act is a result of a common plan
ü proposal - a person who decided to commit a felony proposes its execution to another

Persons criminally liable
1. Principal
ð by direct participation
ð by inducement
ð by indispensable cooperation
2. Accomplice - accessory before the fact
3. Accessory - accessory after the fact
ð profiting themselves or assisting others to profit
ð concealing, destroying body of the crime, effects, instruments to prevent its discovery
ð harboring concealing, assisting the escape of the principal

Felonies according to degree of punishment

Grave offense, 1st offense - punishable of dismissal
1.      Dishonesty
2.      Gross neglect of duty
3.      Grave misconduct
4.      Notoriously undesirable
5.      Conviction of a crime involving moral turpitude
6.      Falsification of documents
7.      Physical and mental incapacity due to vicious habits
8.      Receiving for personal use of a fee and gift
9.      Contracting loans or money from persons whom the office of the employee has business relations
10. Soliciting or accepting directly or indirectly any gift, favor etc.
11. Disloyal to RP
12. Nepotism

Grave offense, 1st offense – punishable with suspension without pay for six months and 1 day to 1 yr; 2nd offense punishable with dismissal
1.      Oppression
2.      Disgraceful/immoral conduct
3.      Incompetent/inefficient
4.      Habitual absenteeism – exceeds 2.5 days monthly allowable leave for at least in 3 months in a semester or at least 3 consecutive months in a year
5.      Habitual tardiness – regardless of the number of minutes, 10 times a month for at least 2 months in a semester or at least 2 consecutive months in a yr.
6.      Refusal to perform duty
7.      Gross insubordination
8.      Financial interest in any transaction requiring the approval of his office
9.      Engaging in the private practice of his profession unless authorized by law
10. Disclosing confidential information

Less grave offense, 1st offense punishable with suspension without pay for 1 month and 1 day to 6 months; 2nd offense, punishable with dismissal
1.      Simple neglect of duty
2.      Simple misconduct
3.      Gross discourtesy in the course of official duties
4.      Gross violation of civil service law
5.      Insubordination
6.      Habitual drunkenness
7.      Discrimination
8.      Failure to file assets and liabilities

Light offense, 1st offense punishable with reprimand; 2nd offense punishable with suspension without pay for 1 day to 30 days; 3rd offense punishable with dismissal
1.      Discourtesy
2.      Unauthorized solicitation from subordinates
3.      Violation of office rules
4.      Gambling
5.      Refusal to render overtime
6.      Disgraceful, immoral and dishonesty prior to entering the service
7.      Borrowing money from subordinates
8.      Lending money at usurious rates of interest
9.      Willful failure to pay debts and taxes
10. Failure to process documents and complete action in documents

Circumstances affecting criminal liability
1.      Justifying Circumstances - free from criminal and civil liability
J  Self - defense
1.      Unlawful aggression
2.      Reasonable necessity of the
3.      Means employed prevent/repel it
4.      Lack of sufficient provocation
5.      On the person defending himself
J  Defense of relatives - up to 4th degree by consanguinity; that in the case of provocation was given by the attacked, that the one making defense had no part therein
J  Defense of a stranger - defending not induced by resentment, revenge or other evil motive
J  Who acts in fulfillment of a duty or in a lawful exercise of a right or office
J  Who acts in obedience to an order by a superior for some lawful purpose

2.      Exempting Circumstances - no criminal liability only civil liability
1.      Mistake of fact - (ignorantia facti excusat) must be committed in good faith or under an honest belief
2.      An insane or imbecile unless acted during lucid interval
3.      Under 9 years of age
4.      Over 9 under 15, unless acted with discernment
5.      While performing a lawful act with due care causes an injury by mere accident without fault or intention of doing it
6.      Who acted under the compulsion of an irresistible          force from a third person
7.      Impulse of uncontrollable fear of an equal or greater injury
8.      Insuperable or lawful cause

3.      Mitigating Circumstances
1.      Under 18 or over 70
2.      No intention to commit so grave a wrong
3.      Sufficient provocation or threat on the part of the offended party immediately preceded the act
4.      Voluntary surrender
5.      Deaf, dumb or blind or suffering from physical defect
6.      Such illness that would diminish the exercise of  his will power
7.      Committed in the immediate vindication of a grave   offense to the one committing the felony, his/her spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, relative by affinity   within the same degree
8.      Acted upon an impulse so powerful as naturally to have produced an obfuscation

4.      Aggravating Circumstances
1.      Advantage of public position
2.      In contempt or insult to public authorities
3.      Abuse of confidence or obvious ungratefulness
4.      Committed on occasion of epidemic, conflagration, shipwreck or other  calamity or misfortune
5.      In consideration of a price or reward or promise
6.      Committed by means of fire, explosion, stranded of a vessel
7.      With evident premeditation
8.      Craft, fraud or disguise

5.      Alternating (either mitigating or aggravating)
1.      Relationship, intoxication, degree of education
2.      Education is not mitigating in rape, forcible abduction, arson, treason, seduction, acts of lasciviousness, heinous crimes

Criminal Negligence – crime committed by means of fault (culpa)
1.      Reckless imprudence – doing or failing to do an act resulting to injuries or death due to an inexcusable lack of precaution
2.      Simple Imprudence – lack of precaution; impending danger is not openly visible

Nurses and Crimes

1.      Parricide – killing of his father, mother or child or any of his ascendants, descendants (legitimate or illegitimate) and spouse
2.      Murder - with intent to kill
3.      Homicide - without intent to kill; absence of proof on how the victim was killed
4.      Infanticide - less than 3 days of age
5.      Abortion - termination of pregnancy before fetus is viable (3-6 mos)

Under Philippine Law, Child Abuse refers to the maltreatment, whether habitual or not, of the child, and such maltreatment includes any of the following:
a.      Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment
b.      Any act, by deeds or words, which debases, degrades, or demeans the intrinsic worth and dignity of a child as a human being
c.      Unreasonable deprivation of the child's basic needs for survival, such as food, shelter or
d.      Failure to immediately give medical treatment to an injured child, resulting in serious impairment of his growth and development or in his permanent incapacity or death

6.      Sexual harassment - words, gestures actions which tend to annoy and verbally abuse another person
7.      Simulation of birth - crime against status by substitution of one child with another; concealing or abandoning any legitimate child with intent to lose civil status
8.      Misdemeanor - use to express every offense inferior to felony and punishable by indictment or by particular prescribed proceedings
a.      a person who practices nursing without certificate of registration     
b.      any person assuming or using title advertising as registered nurse without being conferred such title   
c.      any person advertising any title to convey the impression that she is a nurse (e.g. using nurse's uniform and cap)
9.      Physical Injuries
1.      Slight physical Injuries – 1-9 days of incapacity/requires medical attention
2.      Less serious physical injury – 10 days or more
3.      Serious physical injury – more than 30 days

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.      assault and battery
b.      false imprisonment or illegal detention
c.      Invasion of right of privacy and breach of confidentiality

J  Assault – attempt to touch or threat another person unjustifiably
J  Battery – willful touching of a person that may or may not cause harm; unconsented touching of another person
J  Defamation – communication that is false and results in injury to the reputation of the patient
ð Libel – by means of print, writing or pictures
ð Slander – spoken words
J  False Imprisonment of Illegal Detention
Þ   Unjustifiable detention of a person without a legal warrant within boundaries
J  Invasion of Right to Privacy and breach of confidentiality
Þ   Right to privacy is the right to be left alone
Þ   Right to be free from unwarranted publicity
Þ   Exposure to public view
Þ   Divulge information from patient’s chart to improper sources or unauthorized person

Jurisprudence in Nursing Practice

ü Imprudence – deficiency of action; lack of skill
ü Negligence – lack of foresight; deficiency of perception
ð Specific examples of negligence:
1.      Failure to report observations to attending Physicians
2.      Failure to exercise the degree of diligence which the circumstances of the particular case demands
3.      Mistaken Identity
4.      Wrong medicine, wrong concentration, wrong route, wrong dose
5.      Defects in the equipment such as stretchers and wheelchairs may lead to falls thus injuring the patients

ü Malpractice – failure to follow a reasonable professional standard of care, thereby resulting to injury to a patient; professional negligence (Kozier, 2004)
ð Specific examples of malpractice:
1.      Misdiagnosis of an illness, failure to diagnose or relay diagnosis
2.      Birth Injuries
3.      Surgical Complications
4.      Prescription errors
5.      Failure to provide treatment
6.      Anesthesia related complications
7.      Failure to follow advance directive
8.      Failure of hospital or pharmacy to dispense the right medicine and dosage

Concept of Accountability
ð Accountability of the nurse to the patient, physician or to the public has a reference to the quality of nursing care she renders
ð A contractual obligation which the nurse assumed exposes her to a certain degree of accountability; the term accountability carries the idea of sanction or penalty.

Documentation – recording/ charting
C – Communication
A – Assurance of quality
R – Research purposes
L – Legal document
S – Statistics source

SUBPOENA – an order from court
ð Duces Tecum (papers) documents obj, materials, papers, chart
ð Ad Testificadum (person) witness

Do’s & Don’ts of charting

Do’s                                                                            Don’ts
F – Full, factual & accurate                                      L – language – unacceptable
L – Legible                                                                 I – Improper corrections
I – Immediately after procedure                              S – Spaces, skips
P – Personal notes, not delegated                         A – Avoid using too much abbreviations

ü “addendum” – late entry

Doctrines in Nursing Practice

1.      Bonus Pater Familias (good father of a family) – employer is liable on his own negligence
ð Culpa In Eligiendo – liable for being negligent in the selection of employees
ð Culpa In Vigilando – liable for being negligent in the supervision of employees
2.      Respondeat Superior (Let the master/superior answer) – employer is responsible for the action of the employee within the course of employment
3.      Professional Negligence - Commission or omission of an act, pursuant to a duty
4.      Res Ipsa Loquitor (the thing speaks for itself) – Ex. Scalpel left behind after appendectomy
5.      Force Majeure – event which cannot be foreseen; an act of God; unexpected event. Ex. The nurse and the patient trapped in the elevator because of an earthquake and the patient died despite proper intervention.
6.      Damnun Absque Injuria (although there was a physical damage, there is no legal injury) – Ex. Expert IVT nurse who carefully performed her duty hurt a patient because of the lighting that strikes the room causing injury to the patient
7.      Stare Decisis (stand by decisions) – court should stand with its previous decision
8.      Nolo Contendere (I will not defend it) – plea of guilty
9.      Malfeasance – performance of some act which ought not to be done
10. Misfeasance – improper performance
11. Nonfeasance – omission of some act which ought to be performed
12. Captain of the Ship Doctrine
13. Doctrine of Corporate Liability
14. Doctors order rule 
ü General rule - no telephone order
ü “Whatever is not written is not an order”
ü Exception – Emergency!
ü After MD says order – repeat instruction on phone
ü Have resident MD sign within 24 hrs! Administer meds.
ü When MD arrives – have him counter sign his order
15. Nurse as witness rule
1.      Ordinary witness – one who can testify  as to the conditions present in the issue or surrounding the case
2.      Expert witness – testify on the issue by giving his opinion or advice from the facts presented


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