LEGAL PROBLEMS IN NURSING

MODULE ONE

THE LAW AND THE NURSE

PRACTITIONER

SPECIFIC OBJECTIVES

At the end of the modules, you should be able to:

1. explain the meaning of the law as it relates with nursing practice

2. define legal terminologies
3. enumerate the source of the law
4. state the classification of the law
5. develop a better understanding of the nursing law and the nursing practice
6. discuss other current laws related to nursing and health services
7. discuss other laws related to nursing practice and health care services
8. develop sensitivity to the legal boundaries of the practice of nursing

1
 THE MEANING OF THE LAW, ITS SOURCES AND
LESSON 1 CLASSIFICATION

THE NATURE OF THE LAW

What is Law? The essence of most definitions is that law is a system of principle and
process by which people who live in a society attempt to control human conduct in an
effort to minimize the use of force as a means of resolving conflict of interest. Through
law, society specifies standards of behavior, the means to enforce those standards and a
system for resolving conflict. Laws govern the relationships of private individuals with
each other and with the government. The law serves as a guide to conduct, since most
disputes or controversies between persons and/or organizations are resolved without
lawyers or the court.

The Branches of Government and Their Functions

1. The Legislative Branch - enacts laws that may amend or repeal existing statues or
may be entirely a new legislation. The legislature determines the nature and extent of
the need for new laws and for changes in existing ones. Congress and legislatures use
a committee system under which proposed bills are assigned or referred for study to
committees with described areas of concern or interest.
2. The Executive Branch - enforces and administers the law.
3. The Judicial Branch is for adjudication, the resolution of disputes in accordance
with the law.

Sources of Law

Each of the branches of government produces a source of law that directly or

indirectly affects nursing practice. In addition, the constitution, which creates the
distribution of power and authority to enact laws affects nursing practice. The four
primary sources of law are:

1. Constitution
2. Statutes
3. Court Decisions
4. Rules of Administrative agencies and decisions

2
Constitution

A. Due Process of law – applies to state actions that deprive a person of “life
or property”

The process that is due varies somewhat depending on the situation or primary elements.

1. The rules being applied must be reasonable and not vague

2. Fair procedures must be followed in enforcing the rules.

B. Equal protection of the law – means that like persons must be dealt with in
a like fashion. The equal protection clause concerned with the justifiability of the
classification used to distinguish a particular difference in a rule or procedure can be
difficult.

Statutes

These are measures that are enacted by a legislature.

Administrative Agencies Decisions and Rules

The decisions of legislature have delegated the responsibility and power to

implement various laws to numerous administrative agencies. The power of an
administrative agency includes the quasi-legislative power to adopt regulations and quasi-
judicial power to decide how the statues and regulations apply to individual cases.

Court Decisions: (judicial)

These are the result of the court role in the dispute resolution. In deciding cases, the
courts interpret statutes and regulations, determine their validity under the appropriate
constitution and create the common law when deciding cases that are not controlled by
statutes, regulations, or a constitution.

C. CLASSIFICATION OF LAWS

Public Law

1. Criminal Law
2. International Law
a. Public International Law
b. Private International Law

3. Political Law

3
 a. Constitutional Law
b. Administrative Law
c. Law of public administration
d. Law of public corporations

Private Laws

1. Civil Law
2. Commercial Law
3. Remedial Law

DEFINITIONS OF LEGAL TERMS:

VETO = the power of rejecting a piece of legislative or preventing it from coming into
effect.

LAWYER = (variously termed attorney, counselor, or advocate) is a person who has

completed certain requirements of study and experience that have qualified him to
prosecute and defend clients with cases before the courts. He seeks to enforce the rights
of individuals and communities.

Because he is a sworn officer of the court and in a position of trust, he has great
responsibility to the public and to his clients.

COURT = the place where legal justice is administered.

SUBPOENA = is a process directed to a person requiring him to attend and to testify at

the hearing or trial of actions, a written order to appear in court.

SUBPOENA DUCES TECUM = documents or other things which contain a reasonable

description of the books, documents or things demanded which must appear in the court
prima facie.

PRIMA FACIE = is an evidence established when left alone by itself would be

sufficient as proof of a particular fact until overcome by another evidence.

LAWSUIT = is an action (case) in court.

LITIGANT = a party in a lawsuit

PLAINTIFF = person presenting a civil suit or criminal suit against a defendant.

DEFENDANT = the person charged with a crime.

WITNESS = the person giving testimony in a court hearing.

4
 NURSING JURISPRUDENCE may be defined as that department of law which
comprises all the legal rules and principles affecting the practice of nursing. It is also the
interpretation of all these rules and principles and their application in the practice of
nursing.
NURSING LEGISLATION – the act or process of making a law or laws and
also “the law or laws made”. It is defined as the making of laws or the body of laws
already enacted, affecting the science or art and practice of nursing.
WARRANT – is a writing from a competent authority in pursuance of law,
directing the doing of an act, and addressed to an officer or person competent to do the
act, and affording him protection from damage.
SEARCH WARRANT – is an order in writing to the people or the state, signed
by a magistrate (public officer) and directed to a peace officer, commanding him to
search for personal property and bring it before the magistrate.

COMPETENT COURT – is a court having lawful jurisdiction.

JURISDICTION – is the authority to hear and decide a legal controversy; it is

the authority by which judicial officers take cognizance of and decide cases.

INCOMPETENCY – lack of ability, legal qualifications or fitness to discharge

the required duty.

IGNORANCE – want or absence of knowledge in general or in relation to a

particular subject.

NEGLIGENCE – is the lack of due diligence or care failure to exercise the case
which an ordinary prudent person would use under the circumstances in the discharge of
duty then resting upon him.

CRIMINAL LIABILITY – is incurred by a person committing a felony

although the wrongful act done is different from that which he intended.

FELONIES – are acts or omissions punishable by law and may be committed not
only by means of deceit (dito) but also by means of fault (culpor)

DECEIT – when the act is performed with deliberate intent.

MALPRACTICE – is any profession misconduct, unreasonable lack of skill or
fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.
DISHONORABLE CONDUCT – is a personal behavior deportment or course
of action that is shameful, reproachful, base, or that conduct of a person which stains his
character or lessens his reputations.

5
 UNPROFESSIONAL CONDUCT – is a behavior or a course of action
unbecoming of a professional practitioner.
LESSON 2 THE NURSING LAW AND NURSING PRACTICE

INTRODUCTION

Nurses make decisions daily that affect the well being of their patients. They
often know very personal information about patients fraught with legal risk.

As nurses begin professional obligations, their legal responsibilities begin as well;

they are held responsible and accountable for the quality of performances of their duties.
Their license to practice attest that they are qualified under the law to practice their
profession.

The Philippine Nursing Act of 2002 RA9173 is the best guide the nurse can
utilize as it defines the scope of nursing practice. There are also standards of care that
may be used as criteria in evaluating their work.

These should be understood so that the scope and limitations may be defined and
identified, in order that the performance of daily tasks are assumed with more confidence
and safety.

However, failure to meet the standard of due care will mean a legal implication in
nursing practice.

Philippine Nursing Act of 2002

RA 9173 – AN ACT REGULATING THE PRACTICE OF NURSING IN THE

PHILIPPINES

This portion focuses on the nurse practicing her Nursing Profession Article I –
Section 1 with the title – The Philippine Nursing Act of 2002.

Article VI: Nursing Practice

Section 28. Scope of Nursing. - A person shall be deemed to be practicing

nursing within the meaning of this Act when he/she or in collaboration with another,
initiates and performs nursing services to individuals, families and communities in any
health care setting. It includes, but not limited to, nursing care during conception, labor,
delivery, infancy, childhood, toddler, preschool, school age, adolescence, adulthood, and
old age. As independent practitioners, nurses are primarily responsible for the promotion
of health and prevention of illness. A member of the health team, nurses shall collaborate
with other health care providers for the curative, preventive and rehabilitative aspects of

6
care, restoration of health, alleviation of suffering, and when recovery is not possible,
towards a peaceful death. It shall be the duty of the nurse to:

(a) Provide nursing care through the utilization of the nursing process.
Nursing care includes, but not limited to, traditional and innovative
approaches, therapeutic use of self, executing health care techniques and
procedures, essential primary health care, comfort measures, health
techniques, oral topical and parenteral medications, internal examination
during labor in the absence of antenatal bleeding and delivery. In case of
suturing of perineal laceration, special training shall be provided according
to protocol established;
(b) Establish linkages with community resources and coordination with the
health team;
(c) Provide health education to individuals, families and communities;
(d) Teach, guide and supervise students in nursing education programs
including the administration of nursing services in varied settings such as
hospitals and clinics; undertake consultation services; engage in such
activities that require the utilization of knowledge and decision-making
skills of a registered nurse; and
(e) Undertake nursing and health human resource development training and
research, which shall include, but not limited to, the development of
advance nursing practice;

Provided, That this section shall not apply to nursing students who perform nursing
functions under the direct supervision of a qualified faculty: Provided, That in the
practice of nursing in all settings, the nurse is duty-bound to observe the Code of Ethics
for nurses and uphold the standards of safe nursing practice. The nurse is required to
maintain competence by continual learning through continuing professional education to
be provided by the accredited professional organization or any recognized professional
nursing organization: Provided, finally, that the program and activity for the continuing
professional education shall be submitted to and approved by the Board. (Venzon &
Venzon, 2005)

Scope of Nursing Practice

The scope of nursing practice is specifically enumerated in Republic Act No. 9173. This
new nursing law encourages nurses to expand their practice by pursuing advanced or
specialty trainings for advanced nursing practice.

Scope of nursing. The scope of nursing means the extent or range of health care activities
which a nurse can do or perform pursuant to law. Whether for free or a fee, salary, or
reward or compensation, it is a legal nursing practice under section 28 of R.A. No. 9173,
when a licensed nurse initiates and performs (a) nursing services, whether singly or
collaboratively, to individuals, families and communities in any health care setting; (b)
nursing care, whether singly or collaboratively, during conception, labor, delivery,
infancy, childhood, toddler, pre-school, school age, adolescence, adult and old age

7
(stages of development); (c) nursing action as independent practitioners for the promotion
of health and prevention of illness; and (d) collaborative work with other health care
professionals for the curative, preventive, and rehabilitative aspects of care, restoration
of health, alleviation of suffering, and when recovery is not possible, toward a peaceful
death.

The widened scope of nursing care in the said law allows a nurse to advance its nursing
clinical practice to cover areas such as internal examination during labor and delivery;
suturing of perineal lacerations, ,and parenteral medications. In fact, the law defines
nursing care in this wise:

Nursing care includes, but not limited to, traditional and innovative approaches,
therapeutic use of self, executing health care techniques and procedures, essential
primary health care, comfort measures, health teachings and administration of written
prescription for treatment, therapies, oral, topical, and parenteral medications, internal
examination during labor in the absence of antenatal bleeding and delivery. In case
of suturing of perineal laceration, special training shall be provided according to
protocol established (Sec. 28(a), R.A No. 9173) (Emphasis ours). (De Belen, and De
Belen 2007)

8
LESSON 3 LAWS RELATED TO HEALTH CARE SERVICES

Nursing and other allied medical professions are responsible for insuring that its
members act in the public interest providing a unique service that society has entrusted
to them. The shared values of people are the bases of the law.

RA # 1082 as amended provides for the creation of rural health units. Public
health nursing in the Philippines is in great demand particularly in the rural areas. For
this reason and to provide these areas with competent public health nursing service, the
government has established rural health units staffed with technical personnel including
public health nurses.

PD 996 – requires compulsory immunization for all children below eight years old
against CA Circular #14 1965 which requires health examination and immunization of all
prospective Grade I pupils against small pox Diphtheria and Tuberculosis as a
prerequisite for enrollment.

RA 7305 approved last March 26, 1992 entitled the Magna Carta for Public Health
Workers – its significant objectives are:

1. Promote and improve the social and economic well being of health workers.
2. Develop their skills and capabilities
3. Encourage those qualified and with abilities to remain in government services.

RA 6111 of 1969 – Known as the Philippine Medicare Act

RA 7600 Approved last 1992 – Rooming in breast-feeding provides that babies born in
private and government hospitals should be roomed in with their mothers to promote
breast-feeding and ensure safe and adequate nutrition to children. This is enforced by the
milk code (Executive Order #51)

RA 7432 – Senior’s Citizen Act – This law does honor and justice to our peoples’ long
tradition of giving high regard to our elderly; it entitles the elderly a twenty percent
(20%) discount in all public establishment such as restaurants, vehicles and
hospitalization. It also entitles them to free medical and dental checkup and
hospitalization in all government hospitals.

RA 7719 – National Blood Services (1994) An Act promoting voluntary blood donation,
providing for an adequate supply of safe blood, regulating blood banks and providing
penalties for violation thereof.
RA 6425 – Dangerous Drug Act of 1972 – controls the sale, administration, delivery,
distribution and transportation of prohibited drugs.
RA 7875 – The National Health Insurance Law
The National Health Insurance Act of 1995 was passed by congress of February 7, 1995
and became a law on February 14, 1995.

9
LEARNING ACTIVITIES

Answer the following and submit your typewritten answers/reactions/comments to

your professor.

1. In one or two statements use the following legal terms in a simple situation within
the field of nursing.

- Dependent – allegation – license – prima facie

- Affidavit – accused – plaintiff – search warrant
- Subpoena dues tecum

2. State and explain the specific section of the nursing law affecting the practice of
nursing.

3. Discuss five current other law directly affecting nursing practice and health care
services. How do these laws affect our practice as nurses?

10
 LEGAL PROBLEMS IN NURSING

MODULE TWO

THE NURSES AS A PROFESSIONAL

PRACTITIONER

SPECIFIC OBJECTIVES

At the end of the module, you should be able to:

1. discuss the specific provisions of the Nursing law relating to the professional
nurse practitioner

2. explain the role of the Professional Regulation Commission and specifically the
Board of Nursing to the Professional Nurse and her professional practice.

3. appreciate the significance of the attributes/ trademarks of a professional as they

relate to the professional nurse.

11
INTRODUCTION

As Professional nurses we are expected to be always competent and maintain the

highest standard of nursing care. That’s why in every procedure activity that we are
doing, presence of mind is very important. A prudent nurse should always consider the
needed skills, knowledge and attitude in rendering nursing care to their patient. They
also have the right to receive prompt and adequate medical treatment for any ailments. In
giving them information, the patient feels their importance and will facilitate their
cooperation to whatever treatment they are given. They will realize that you care for
them and value them as a person.

A nurse must be careful in doing her work because she is dealing with life.
Whatever will happen to the patient, the nurse will be held liable for it. We must be
cautious and consider even the most simple and basic responsibilities for the welfare of
the patient. Under the civil code a nurse is liable for negligence if she fails to do what
should have been done which causes risk to the life of the patient.

A nurse work is to provide nursing care to the patient regardless of its race and
status in the society. According to the Code of Ethics the nurse is expected to serve and
care for her patient with utmost solitude, giving him always the best of her talent and
skill. That’s why in every thing that we do we should be competent in our profession.

According to the Patient’s Bill of Rights, the patients have the right to be given
information and rationale about the medications given to them as well as other medical
procedures rendered to them.

12
LESSON 1 THE NURSING LAW AND THE PROFESSIONAL NURSE
PRACTITIONER

REPUBLIC ACTS NO. 9173

PHILIPPINE NURSING ACT OF 2002

ARTICLE II

DECLARATION OF POLICY

Sec. 2. Declaration of policy – it is hereby declared the policy of the state to

assume responsibility for the protection and improvement of the nursing profession by
instituting measures that will result in relevant nursing education and in humane working
conditions, better career prospects and a dignified existence for our nurses. (Venzon &
Venzon 2005)

The state hereby guarantees the delivery of basic health services through an
adequate nursing personnel throughout the country.

By implication from the provision of the nursing act, a nurse who performs the
procedure, undertakes to hold herself responsible for the performance or execution of
every nursing techniques and procedures for the administration of comfort measures and
prescribed treatments. Minimal handling technique by all involved in the care of patients
is done to avoid infection and complications. Giving instructions for instance to
mother/watcher on how to dress the wounds properly upon discharge, and if necessary
demonstrate with return demonstration the procedure/s which are highly recommended.

If problem arises when the nurse is unavailable to perform her duties through
negligence that causes damage to the patient, she will be liable for damages. If she is at
fault or negligent because who ever act or omit any prescribed activity that causes
damage to another, it is considered a fault or negligence, she is obliged to pay for the
damage done. The courts will not hesitate to find a nurse guilty of negligence in the
supervision of patients if she fails or omits to take precautions or to undertake steps to
safeguard the patients against possible injury that may arise in the course of treatment and
care due to negligence or careless execution of procedure thus the patient suffered an
injury.

13
 PROFESSIONAL ACCOUNTABILITY

I. HOW CAN A PROFESSIONAL STATUS BE ACHIEVED?

An individual can achieve a professional status when an occupation involves a

unique practice which carries great individual responsibility and is based upon theoretical
knowledge from a highly specialized education with continuous development through
research.

ACCOUNTABILITY – is one of the identifying characteristics of a profession.

It is the ability and willingness to take responsibility for one’s behavior while engaged in
the practice of one’s profession. The accountable person is one who is expected to be
able to distinguish between right and wrong and to think and act rationally.

II. PROFESSIONAL ACCOUNTABILITY

1. TOWARDS THE CLIENTELE, INSTITUTION and the

SOCIETY / PUBLIC

The profession’s concern for the quality of its service constitutes the hearts of its
responsibility to patients/clientele/Institution and the public/society. The more expertise
required to perform the service, the greater is society’s dependence upon those who carry
it out.

2. TOWARDS THE PROFESSION

The professionals should practice within the standards of their respective professions and
within the precepts of their own law and Code of Ethics. The control in the practice of
the profession guarantees the quality of service which has two fold purpose:

1) Protection of self and 2) protection of patient.

3. TOWARDS THE INDIVIDUAL

There is individual accountability for the quality of their practice, their expertise, their
competence. It is their responsibility to utilize the standards set by their respective
professions to assure quality of health care.

This also includes the individual’s commitment to the ideals of the profession, regardless
of creed, race, political affiliation and economic status.

14
Trademarks of a Real Professional

Knowledge: You know your field of activity thoroughly. You studied and worked to
gain your knowledge and you are not likely to be fooled or bluffed about your field.

Experience: You have much meaningful experience. You have been exposed to the
tough situations and can react spontaneously with the right response.

Skill: You are an expert. You do a tough quality job. You out-perform the amateurs.
You have learned the best method, practiced it, and can deliver in the pinches.

Confidence: Your abilities and knowledge have bred a justifiable confidence. It shows.
Others respect it. Your confidence is not only in yourself, but in your fellow team
workers.

Mobility: You are fully mobile. You are secure in your ability, and have no concern for
job security as such. You are welcome in anybody’s team.

Performance: You like to win. You use all of your talents to come out on top, to get the
results you can be proud of.

Recognition: You get much satisfaction from your work, and you are realistic about
your own worth. You know that adequate compensation takes many forms.

Leadership: You are willing to provide leadership in your field, devoting a portion of
your time and effort to this end, to be known as a giver rather than a taker. You see the
value and need of service pro bono publico.

15
LESSON 2 THE ROLE OF THE BOARD OF NURSING, PHILIPPINE
REGULATION COMMISSION

Article III of RA 9173 entitled – Organization of the Board of Nursing

Section 3 – Creation and Composition of the Board – There shall be created a

Professional Regulatory Board of Nursing, hereinafter referred to as the Board, to be
composed of a Chairperson and six (6) members. They shall be appointed by the
president of the Republic of the Philippines from among two (2) recommendees per
vacancy of the Professional Regulation Commission, hereinafter referred to as the
Commission, chosen and ranked from a list of three (3) nominees per vacancy of the
accredited professional organization of nurses in the Philippines who possess the
qualifications prescribed in Section 4 of this Act.

Section 4. Qualifications of the Chairperson and Members of the Board – The

Chairperson and Members of the Board shall, at the time of their appointment, possess
the following qualifications:

(a) Be a natural born citizen and resident of the Philippines;

(b) Be a member of good standing of the accredited professional organization of

nurses;
(c) Be a registered nurse and holder of a master’s degree in nursing, education or
other allied medical profession conferred by a college or university duly
recognized by the Government: Provided, that the majority of the members of the
Board shall be holders of a master’s degree in nursing: Provided, further: That
the Chairperson shall be a holder of a master’s degree in nursing;
(d) Have at least ten (10) years of continuous practice of the profession prior to
appointment: Provided however, That the last five (5) years of which shall be in
the Philippines; and
(e) Not have been convicted to any offense involving moral turpitude; Provided, That
the membership to the Board shall represent the three (3) areas of nursing,
namely: nursing education, nursing service and community health nursing.

Section 5. Requirements Upon Qualification as Member of the Board of Nursing – Any

person appointed as Chairperson or Member of the Board shall immediately resign from
any teaching position in any school, college, university or institution offering Bachelor of
Science in Nursing and/or review program for the local nursing board examination or in
any office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries as well as those employed in the private sector. He/she shall not have any
pecuniary interest in or administrative supervision over any institution offering Bachelor
of Science in Nursing including review classes.

16
Section 6. Term of Office. - The Chairperson and Members of the Board shall hold
office for a term of three (3) years and until their successors shall have been appointed
and qualified: Provided, That the Chairperson and members of the Board may be re-
appointed for another term.

Any vacancy in the Board occurring within the term of a Member shall be filled for the
unexpired portion of the term only. Each Member of the Board shall take the prior oath of
office prior to the performance of his/her duties.

The incumbent Chairperson and Members of the Board shall continue to serve for the
remainder of their term under Republic Act No. 7164 until their replacements have been
appointed by the President and shall have been duly qualified.

Section 7. Compensation of the Board Members - The Chairperson and Members of the
Board shall receive compensation and allowances comparable to the compensation and
allowances received by the Chairperson and members of other professional regulatory
boards.

Section 8. Administrative Supervision of the Board, Custodian of the Records,

Secretariat and Support Services. – The Board shall be under the administrative
supervision of the Commission. All records of the Board, including applications for
examinations, administrative and other investigative cases conducted by the Board shall
be under the custody of the Commission. The Commission shall designate the Secretary
of the Board and shall provide the secretariat and other support services to implement the
provisions of this Act.

Section 9. Powers and Duties of the Board. – The Board shall supervise and regulate the
practice of the nursing profession and shall have the following powers, duties and
functions:

(a) Conduct the licensure examination for nurses;

(b) Issue, suspend or revoke certificates of registration for the practice of nursing;
(c) Monitor and enforce quality standards of nursing practice in the Philippines and
exercise the powers necessary to ensure the maintenance of efficient, ethical and
technical, moral and professional standards in the practice of nursing taking into
account the health needs of the nation;
(d) Ensure quality nursing education by examining the prescribed facilities of
universities or colleges of nursing or departments of nursing education and those
seeking permission to open nursing courses to ensure that standards of nursing
education are properly complied with and maintained at all times. The authority to
open and close colleges of nursing and/or nursing education programs shall be
vested on the Commission on Higher Education upon the written recommendation
of the Board;
(e) Conduct hearings and investigations to resolve complaints against nurse practitioners
for unethical and unprofessional conduct and violations of this Act, or its rules and

17
 regulations and in connection therewith, issue subpoena ad testificandum and
subpoena duces tecum to secure the appearance of respondents and witnesses and
the production of documents and punish with contempt persons obstructing,
impeding and/or otherwise interfering with the conduct of such proceedings, upon
application with the court;
(f) Promulgate a Code of Ethics in coordination and consultation with the accredited
professional organization of nurses with one (1) year from the effectivity of this
Act;
(g) Recognize nursing specialty organizations in coordination with the accredited
professional organization; and
(h) Prescribe, adopt issue and promulgate guidelines, regulations, measures and
decisions as may be necessary for the improvements of the nursing practice,
advancement of the profession and for the proper and full enforcement of this Act
subject to the review and approval by the Commission.

Section 10. Annual Report. – The Board shall at the close of its calendar year submit an
annual report to the President of the Philippines through the Commission giving a
detailed account of its proceedings and the accomplishments during the year and making
recommendations for the adoption of measures that will upgrade and improve the
conditions affecting the practice of the nursing profession.

Section 11. Removal or Suspension of Board Members. – The president may remove or
suspend any member of the Board after having been given the opportunity to defend
himself/herself in a proper administrative investigation, on the following grounds:

(a) Continue neglect of duty or incompetence;

(b) Commission or toleration of irregularities in the licensure examination; and
(c) Unprofessional, immoral or dishonorable conduct (Venzon & Venzon 2005)

18
LEARNING ACTIVITIES

Answer the following and submit your typewritten answers/reactions to your

professor.

1. Among the trademarks / attributes of a professional, describe at least five as

applied to a professional nurse practitioner.

2. Discuss the rule of the PRC affecting professionals in general and

specifically the BON, affecting the nursing profession and the professional nurse.

3. How can the Board of Nursing help to make the nursing profession truly respected
and recognized by the government and all sectors of the society?

4. What is the role of BON to make the Filipino nurses globally competitive and in
demand in the international market?

5. Discuss a process/training on how we can develop competent, responsible and

accountable graduate nurses.

19
 LEGAL PROBLEMS IN NURSING

MODULE THREE

THE NURSE AS AN EMPLOYEE

SPECIFIC OBJECTIVES

At the end of the module, you should be able to:

1. discuss the employer and employee`1 relationship

2. explain the role of the DOLE and CSC relating to the nurse as an
employee

3. appreciate the importance of these agencies in the practice of the

nurse within the agency.

INTRODUCTION

The hospital and other health care facilities are part of the whole health care
delivery system. All of these facilities employ many and various health care providers.
This module will focus on nurses as employees. Once the nurse signs her contract of
employment, there is already an employer (the institution or any health facility) employee
(the nurse) relationship. Nursing comprises approximately 50% or more of most hospital
budgets. Nursing therefore can be linked between quality and cost.

20
LESSON 1 PROFESSIONAL EMPLOYEE – EMPLOYER RELATIONSHIP

A professional nurse, like any other health care provider and professional once
accepted to work in any health care facility, the relationship commence. This is
established by accomplishing or performing the roles and responsibilities of the employer
and employee. On the side of the professional nurse, there is a need to continuously
monitor patterns of patient care because of its relationship to its labor-intensive nature, so
that nursing must document what it does, how it does it, what difference it makes to the
patients and their length of stay in the hospital. A nurse’s level of knowledge activity and
skilled care should be commensurate with the level of patients’ category which in turn
will shorten the length of stay of patients in a health facility decreasing hospital cost.

The resulting emphasis on efficiency and productivity, forces nurses to sharpen

the approaches to planning nursing care. This plan of care should be realistic, measurable
and achievable in the time allotted for care and that discharge planning be initiated at the
time of admission to provide continuity of care in the home and community. Using the
skills of professional in the most efficient and effective manner in terms of patient
outcomes surely maintain and sustain a smooth and good employer-employee
(professional) relationship. On the other hand the employer takes cognizance of the
efforts and quality care outcomes by the employee producing a balanced relationship
between them.

21
LESSON 2 THE ROLE OF THE CIVIL SERVICE COMMISSION AND
DEPARTMENT OF LABOR AND EMPLOYMENT

The Omnibus Rules implementing Book V of Executive order 292 otherwise

known as Administrative Code of 1987 are presented in a comprehensive, consolidated
and updated all operating procedures in the bureaucracy’s personnel management and
administrative system. This was made effective November 23, 1989 with Resolution No.
91-1631 dated December 27, 1991. The following rules are hereby adapted and
prescribed in order to carry out the provisions of said Code and other pertinent Civil
Service laws.

The Omnibus Code and the Labor Code provide necessary guidelines/directions
for employers in preparing their own policies, rules and regulations and Standard
Operating Procedures (SOP) on personnel activities from recruitment to separation. This
in turn will be used or served as guidance for employees to follow, hence their
performance will be efficient and effective for good service without fear of committing
any infractions. This will assure them freedom from liabilities as employees,
professional and non-professional.

If they have been made aware of these rules and regulations, then they will be
given appropriate directions in every function/ duty they do in their everyday activities
within their respective agencies.

Specifically, The Labor Code of the Philippines has a decree instituting a labor
code thereby revising and consolidating labor and social laws to afford protection to
labor, promote employment and human resources development and insure industrial
peace based on social justice. In its declaration of basic policies it is mentioned that the
state shall afford protection to labor, promote full employment, ensure equal work
opportunities regardless of sex, race or creed and regulate the relations between workers
and employers. The state shall assure the right of workers to self-organization in
collective bargaining, security of tenure and just and human conditions of work.

22
LESSON 3 THE RIGHTS AND RESPONSIBILITIES OF THE NURSE
PRACTITIONER VIS-À-VIS THE RIGHTS OF THE
CLIENTELE

The List of Some Important Responsibilities of the Nurse. They reflect both
common sense judgment and high moral and professional standards. The nurse that
follows this may avoid the situations that may lead to serious accidents or lawsuits.

1. A nurse is courteous, cheerful, and understanding with her

patients, but careful not to arouse dissatisfaction. She does not let a sympathetic
nature cause her to utter indiscretions.

2. If a nurse feels with good reason that an immediate associate or a

patient present an incompatibility problem, she discusses the matter frankly with her
immediate superior.

3. A nurse is honest with herself and her superiors about her

capabilities, training and experience. She does not let false pride cause her to
undertake a procedure or duty for which she knows she is unqualified.

4. A nurse who does not undertake a nursing responsibility that

calls for more energy or mental effort when she is available and emotionally upset
can be readily reflected in her performance.

5. A nurse keeps herself informed. She studies the procedures, plan

of organization, and layout of the hospital, home, or agency wherein she is employed.
She keeps up with the latest development in her field.

6. A nurse maintains carefully written notes and records of her

orders and nursing activities and she makes sure that they are received by the proper
custodian.

7. A nurse studies the relationship of her co-professionals at the

hospital. She joins with the nursing service, in close scrutiny of the care and
treatment of patients and equipment.

8. A nurse keeps in mind her right and duty to question when she is
in doubt about the propriety of procedures, the condition of equipment, or proper drug
or dosage in medication and takes the necessary steps to clear that doubt to her
satisfaction.

9. If a nurse makes an error or discovers the error of another, she

does what is needed to correct it. She does not conceal it. The judge and the jury are
more sympathetic toward professional people as dependents than others except when
there is evidence of concealment.

23
 10. They represent the best chance to keep her free from suit.
Meanwhile, she obeys the rules and helps others abide by them whether it is a stop
order on certain drugs or a rule about clothing in the operating room.
Civil rights of the Nurses

According to Webster, one of the definitions of right is the power or privilege to

which one is justly entitled. To have a right implies the ability to demand with
justification, that which is moral and legal. Nurses have many rights and responsibilities
depending on their relationship and obligations to others. Among the civil rights of the
nurse are the following:

1. The right to economic reward – this reward implies the salary; paid vacation; paid
sick leave and holidays, insurance pension plans and other benefits. Nurses, like
other individuals, cannot live on the good will earned for dedication and service
alone. She needs money in order to survive, therefore nurses have the right to
demand salary and benefits which reflect their value and level of responsibility.

2. The right to working conditions that do not jeopardize their physical or mental
health or well being. Nurses should not be expected to work in an environment that is
not safe, nor should they be expected to work an excessive number of hours or days
without adequate off duty time.

3. The right to pursue activities leading to professional development. Such activities

include educational meetings, workshops, conferences and formal structured
academic courses offered by colleges or universities.

4. The right to control professional practice as defined by state law. This means that
nurses have the right to participate in any decision making that affects nursing.
Nurses have the right to be informed because nurses have been legally mandated to
assume responsibility for nursing.

5. The right to collective bargaining/action. Not only do nurses have the right to
join nursing organizations, but they also have the right to take political action on
behalf of nursing and the health care consumer.

6. The right to set standards for nursing practice, education and research. They also
have the right to enforce such standards and to promote optimal health care service
and delivery.

7. The Nurse has the right to be free from sexual harassment or sex discrimination.
This may involve a man or woman being refused employment because the job is
usually filled by some of the opposite sex. It can involve promotions, paying less for
the same work or being treated as inferior.

Title VII of the Civil Rights Act of 1964 defines sexual harassment as
“unwelcome sexual advances; request for sexual favors and other verbal or physical

24
conduct of a sexual nature when submission or rejection of this conduct explicitly or
implicitly affects an individual’s work performance or creates an intimidating hostile or
offensive work environment”. Sexual harassment can occur in a variety of circumstances.
It may include but is not limited to:

1. The victim as well as the harasser may be a woman or a man.

The victim does not have to be of the opposite sex.

2. The harasser can be the victim’s supervisor, an agent of the

employer, a supervisor in another area, a co-worker or non-employee.

3. The victim does not have to be the person harassed but could be
anyone affected by the offensive conduct.

4. Unlawful sexual harassment may occur without economic injury

to, or discharge of the victim.

5. The victim has a responsibility to establish that the harasser’s

conduct is unwelcome.

To top this, it is to the victim’s best interest to directly inform the harasser that the
conduct is unwelcome and must stop at once. Each instance reported to authorities is
handled on a case to case basis and involves a thorough investigation.

Bill of Rights of the Patients:

1. The patient has the right to consider and respect care.

2. The patient has the right to obtain from his physician complete
current information concerning his diagnosis, treatment and prognosis which he/she is
reasonably expected to understand.
3. The patient has the right to know what hospital rules and
regulations apply to his conduct as patient.
4. The patient has the right to examine and receive an explanation
of his bill regardless of source of payment.
5. The patient has the right to refuse treatment to the extent
permitted by law and to be informed of the medical consequences of his action.
6. The patient has the right to expect communications and records
pertaining to his care which should be treated as confidential.
7. The patient has the right to every consideration of his privacy
concerning his own medical care program.
8. The patient has the right to expect that the hospital must make
reasonable response to the request for patient service. The hospital must provide
evaluation service and/or referral as indicated by the urgency of the case.
9. The patient has the right to expect reasonable continuity of care.
He has the right to know in advance what time physicians are available and where.

25
 10. The patient has the right to be advised if the hospital proposes to
engage in or perform human experimentation affecting his care or treatment. The
patient has the right to refuse to participate in such a research project.

LEARNING ACTIVITIES

Submit your typewritten answer/reactions/ comments on the following:

1. Illustrate in a situation a specific and significant professional

nurse employee – employer relationship.

2. State two provisions of each of the labor law and the CSC MC
30, that govern and dictate two specific activities of a professional nurse while
working as an employee.

3. Discuss in outline form the rights of a nurse vis-à-vis the rights

of a client.

4. How do we educate our patients/nurses regarding their rights?

5. How do we develop licensed nurses who are professional and

legally conscious individuals about their rights?

6. Patients are now very much aware of the “Patients Rights”, how
do we communicate to them their rights and privileges?

26
 LEGAL PROBLEMS IN NURSING

MODULE FOUR

THE LIABILITIES OF A NURSE

PRACTITIONER

SPECIFIC OBJECTIVES

At the end of module, you should be able to:

1. recognize the causes of multifaceted errors committed by a nurse

2. discuss the two types of liabilities confronting a nurse
practitioner
3. explain the factors affecting the liabilities of nurses
4. appreciate the importance and significance of knowing the
liabilities of nurses
5. apply critical thinking in analyzing administrative and clinical
cases.
6. understand the liabilities of the nurse practitioner

INTRODUCTION

Like any member of the other professions, the professional nurse has legal
responsibilities to assume in the practice of her profession. These legal responsibilities
are in every service she renders to patients and may have problems involving negligence
in the performance of her duties or in the care or supervision of care to patients or in the
fulfillment of contractual obligations. The nurse should know her responsibilities (legal)
to her professional practice so that she may be properly guided by her functions to avoid

27
incurring criminal liability. It is sufficient that the nurse possesses such working
knowledge of her legal responsibility to enable her to minimize legal entanglements and
avoid criminal liabilities as well as *civil liabilities.

LESSON 1 FACTORS AFFECTING THE LIABILITIES OF A NURSE

PRACTITIONER

Nursing liability would involve ethnic or state violation and would result either in
a civil or criminal proceeding. Certain elements of liability must exist for such a court
proceeding to take place. First, there must be a legal basis such as statutory law, for
finding liability. Second, there must exist a casual relationship between harm to the
patient and the act of or commission to act by the nurse. Finally there must be some
damage or harm sustained by the patient.

The following are the factors to be considered in liabilities

1. JUSTIFYING CIRCUMSTANCES

- An offender does not render himself criminally liable in defense of his person or
rights provided that:

a. There is an unlawful aggression on the part of the offended or injured

party.

b. There is reasonable necessity of the means employed by the person

defending himself to prevent such aggression.

c. There is lack of sufficient provocation on the part of the offenders.

Anyone who acts in the defense of the person or right of his spouse or relative
does not likewise incur any criminal liability.

Any person who acts in the fulfillment of a duty or in the lawful exercise or right
of office shall not also incur any criminal liability where such an act results in the
commission of a crime.

When a nurse is under an order from her superior she should be able to discern
whether the order is lawful or not because if such an order would result in the
commission of a crime, she would be criminally liable.

2. EXEMPTING CIRCUMSTANCES

28
- The following persons under these circumstances are expressly exempted by the
law from criminal liability for the crime they may have committed.

a. An imbecile or an insane person, unless the latter has acted during a lucid
interval.

b. A person under nine years of age.

c. A person over nine years of age and under fifteen unless he has acted with
discernment.

d. Any person who, while performing a lawful act with due care, causes an
injury merely by accident without fault or intention of causing it.

e. Any person who acts under the impulse of an uncontrollable fear of an

equal or greater injury.

f. Any person who fails to perform an act as required by law when prevented
by some lawful or insuperable cause.

3. MITIGATING CIRCUMSTANCES

- Those which do not constitute justification or excuse of the offense in question,

but which, in fairness and mercy, may be considered as extenuating or reducing
the degree of moral culpability are:

a. Circumstances which are otherwise justifying or exempting were it not for

the fact that all requisites necessary to justify the act or to exempt the offender
from criminal liability in the respective cases are not attendant.

b. That the offender had no intention to commit so grave a wrong as that

committed.

c. That the offender is under eighteen years of age or over seventy years old.

d. That sufficient provocation or threat on the part of the offended party

immediately preceded the act.

e. That the act was committed in the immediate vindication of a grave

offense to the one committing the felony, his spouse, ascendants, legitimate,
natural or adopted brothers or sisters, or relative by affinity within the same
degrees.

f. That of having acted upon an impulse so powerful as naturally to have

produced passion obfuscation.

29
 g. That the offender had voluntarily surrendered himself to a person in
authority or his agents, or that he had voluntarily confessed his guilt before the
court prior to the presentation of the evidence for the prosecution.

h. That the defender is deaf and dumb, blind or otherwise suffering from
some physical defect which thus restricts his means of action, defense or
communication with his fellow beings.
i. Such illness of the offender as would diminish the exercise of his will-
power without, however, depriving him of consciousness of his acts.

4. AGGRAVATING CIRCUMSTANCES

- These are the circumstances attending the commission of a crime which increase
the criminal liabilities of the offender or make his guilt more serve are:

a. That advantage may be taken by the offender of his public position.

b. That the crime he committed in contempt of or which insult public

authorities.

c. That the act be committed with abuse of confidence or obvious

ungratefulness.

d. That the crime committed is in consideration of a price reward or promise.

e. That the crime be committed by means of inundation, fire, poison,

explosion, standing of a vessel or intentional damage thereto, derailment of a
locomotive or the use of any other artifice involving great waste and ruin.

f. That the act be committed with evident premeditation.

g. That craft, fraud or disguise be employed.

h. That the crime be committed on the occasion of the crime deliberately

augmented by causing other wrong not necessary for its commission.

5. ALTERNATIVE CIRCUMSTANCES

These are those which must be taken into consideration as aggravating or

mitigating depending on the nature and effects of the crime and on the conditions
attending the commission of the same. These alternative circumstances are the
relationship, intoxication and degree of instruction and education of the offender.

30
LESSON 2 CIVIL LIABILITIES OF A NURSE PRACTITIONER

ACCOUNTABLE means responsible or answerable. The accountability of a

nurse to the patient, physician, employer, or to the public at large has reference to the
quality of nursing care she renders. The accountability of a nurse practitioner to the
public for the quality of her nursing service is presumed because the primodial aim of
nursing law is primarily to protect the public. Consequently, it is not only the power but
the duty of the Board of Nursing or PRC to discipline a nurse practitioner who is found to
be professionally incompetent or guilty of unethical practices.

A. NEGLIGENCE – refers to the commission/omission of an act, pursuant, to a

duty, that a reasonably prudent person in the same or similar circumstance would or
would not do, and acting or non – acting is the proximate cause of injury to another
person or to his property.

PROFESSIONAL NEGLIGENCE – is defined as doing that thing which a

reasonably prudent person would not have done or the failure to do that thing which a
reasonably prudent person would have in like or similar circumstances; it is the failure to
exercise the degree of care and prudence which a reasonably prudent person would have
exercised in like or similar circumstances.

In every case involving actionable negligence, there must exist three elements:

a. existence of a duty on the part of the person charged and to the

complaining party from the injury received

b. failure to perform that duty or to meet that standard of due care.

c. injury resulting from such failure.

TEST OF NEGLIGENCE – Would a prudent man in the position of the person

to whom negligence is attributed, foresee harm to the person injured as a reasonable
consequence of the course about to be pursued? If so, the law imposes a duty on the
actor to refrain from that course or to take precaution against its mischievous results and
the failure to do so constitutes negligence.

31
 Under the Revised Penal Code Article 16, 18 and 19 failure to foresee harm to the
person injured followed by ignorance of the admonition born of provisions constitutes in
fact a negligence.

SOME COMMON ACTS OF NEGLIGENCE:

1. Injury to a delirious patient under the care of a nurse.

2. Burns as a result of the negligent administration of hot water bags, heat lamps,
vaporizers, hot sits bath.

3. Any object left in a patient’s abdomen in the course of a surgical operation.

4. The use of defective equipment to patient.

5. Careless execution of doctor’s order or prescription.

6. Falls of patients from bed causing injury thereof.

7. Death of patients resulting from injection of digitalis, and/ or other similar drugs.

8. Failing to report case history and observation about the patient to the attending
physician.

9. Administering medicine without doctor’s prescription.

DOCTRINE OF DEFENSE

1. Doctrine of Imputed Negligence or Command Responsibility – means that the

responsibility of a person, who is not negligent for the wrongful conduct or
negligence of another, may be in a form of:

a. Doctrine of Ostensible Agent

b. Captain of the ship doctrine

2. Respondent Superior – literally means “let the superior answer: let the principal
answer for the acts of his agent.” Under this doctrine founded on the principles that
he who expects to derive the advantage from an act which is done by another for him
must answer for any injury which a third person may sustain from it. In doing the act
of which the accident arose, the servant was representing the master at that time.

32
3. Doctrine of RES IPSA LOQUITUR /Common Knowledge – literally means “the
thing speaks for itself”. It means that any wrongful act or injury disputably presumes
negligence. Three conditions are necessary for the application of this doctrine:

a. The accident must be of a kind which ordinarily does not occur in the
absence of someone’s negligence.

b. The accident must be caused by an agency or instrumentality within the

exclusive control of the defendant.

c. The accident must not have been due to any voluntary action or
contributions on the part of the plaintiff.

4. Doctrine of Contributory Negligence or Common Fault – means it is the careless

act or omission on the part of the complaining party which concurring with the
defendant’s negligence is the proximate cause of injury.

5. Doctrine of Assumption Risk – it means that if one assumes voluntarily the risk of
injury from a known danger, then he is leaned from recovery; that “a person who
asserts and was injured is not regarded in law to be injured”.

6. Doctrine of Continuing Negligence – it contemplates of an unfailing duty of a

defendant nurse to appraise, make necessary investigation or examination of his
patient’s injury with reasonable care and skill, failure of which constitutes a
continuing act of negligence.

7. Doctrine of Last Clear Chance – it implies “thought, appreciation, mental

direction and lapse of sufficient time to effectually act upon impulse to save the life
or prevent injury to another”.

8. Doctrine of Foreseeability – contemplates a condition of foreseeability wherein

the duty of care, skill and training of all persons are foreseeably endangered by his
conduct, with respect to the risks which make the conduct unreasonably dangerous.
Failure to prevent or avoid foreseeable injury makes him answerable for the injury
sustained.

9. Doctrine of Force Majeure or Acts of God – means an irresistible force, one that
is foreseen as inevitable. Under the civil code of the Philippines no person shall be
responsible for those events which could not be foreseen or which, though foreseen
were inevitable except in cases express specified by law.

10. Fellow Servant Doctrine – provides that if a servant or employee is injured on

account of the negligence of his fellow servant or employee, the master or employer
cannot be held liable.

33
 11. Rescue Doctrine – provides that if a person who goes to the rescue of a victim in
an accident is injured, the original wrongdoer must be held liable for such injury.

• Legal defense in negligence – the most common defense in negligence

action is when nurses know and attain that standard of care in giving service
and they have documented the care they gave in a concise and accurate
manner.

• Liability of nurse for the work of nursing aides – nurses should not
delegate their functions to nursing aides since the Philippine Nursing Law
specifies the scope of nursing practice of professional nurses. If a nurse
delegates her function to a nursing aide and the latter commits a mistake
then the person responsible is the nurse.

• Liability for the Work of Nursing Student – Republic Act 877, nursing
students do not perform professional nursing, they are to be supervised by
their Clinical Instructor. In order that the errors committed by nursing
students will be avoided or minimized.

B. MALPRACTICE – is defined as any professional misconduct or any

unreasonable lack of skills or fidelity in the performance of professional
or fiduciary rules; it means objectionable practice, or a practice contrary to
established rules.

As it concerns nurses – this means the neglect of a physician or a nurse to apply

the degree of skill and learning in the treatment of a patient, which is customarily applied
in treating and caring for the sick or wounded similarly suffering in the same community.

34
LESSON 3 CRIMINAL LIABILITIES OF A NURSE PRACTITIONER

CRIMINAL LIABILITY

A nurse may incur criminal liability or subject herself to criminal liability or

criminal prosecution either by committing a felony or by performing an act which would
be an offense against persons or property.

FELONY – acts or omissions punished by law and they may be committed not
only by means of deceit (dolo) but also by means of fault (culpa).

a. Deceit – when the act is performed with deliberate intent.

b. Fault – when the wrongful acts result from imprudence, negligence, lack
of skill.
c. Mala prohibita – acts which are made offenses by positive laws &
prohibited as such. The mere doing of an act/commission punishable by law
is not a felony by itself. In order that such act/omission may be considered a
crime, it must have been done with criminal intent or willfulness, hence the
well – known maxi: “Actus non facit reum, nisi mens sit rea,” A crime is not
committed if the mind of the person performing the act is innocent".

Deliberate intent – includes two other elements without which there can be no crime
arising from the criminal act/ omission. These are freedom and intelligence.

a. A person who acts without freedom cannot act with deliberation. He

cannot decide freely for himself whether a thing proposed ought to be done or
not nor weigh on his own free judgment the motives of the act and its
consequences.
b. Without intelligence, a person is incapable of distinguishing what act is
good or bad and what act is right or wrong.

 Under the law, a person can be criminally liable for the consequences if
his act is felonious. A person, therefore, who does an act which is not a felony cannot
be held criminally liable even if such act may have resulted in the injury of another.

35
  Criminal liability is incurred by any person committing a felony although
the wrongful act done is different from that which he intended. In other words, the
author of a crime shall be held liable for all the natural consequences of his illegal
acts even if such results have not been intended by him. The law does not excuse one
from liability for the natural consequences of his illegal act merely because he did not
intend to produce such consequences.

IMPOSSIBLE CRIME – any person who performs an act which would be an offense
against a person or property but fails to consummate it due to the inherent impossibility
of its accomplishment or because of the inadequate or ineffectual means he has employed
to accomplish it, shall also incur his criminal tendencies.

CLASSIFICATION OF FELONIES

A. According to the degree of the acts of execution which would produce

felony:

1. Consummated – when all the elements necessary for its execution and
accomplishment are present.

2. Frustrated – when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, does not produce
it by reason or causes independent of the will of the perpetrator.

3. Attempted – to commit a felony when the offender commences the

commission of the same directly by overt (open or manifest) acts, and does not
perform all the acts of execution which should produce the felony, by reason of some
cause accident other than his own spontaneous resistance (stopping to act by a natural
feeling or impulse).

B. According to the degree of punishment attached to the following:

1. Grave – those to which the law attached the capital punishment (death) or
penalties which in any of their periods are afflictive (imprisonment ranging
from six years and one day to life imprisonment or a fine exceeding P
6,000.00)

2. Less Grave – those which the law punishes with penalties which in their
maximum period are correctional or imprisonment ranging from one month
and one day to six years or a fine not exceeding P 6,000.00 but not less than P
200.00.

3. Light felonies – those infractions of law or the commission of which the

penalty of arresto menor (imprisonment ranging from one day to thirty days or
a fine not exceeding P 200.00 or both is imposed).

36
 Conspiracy to commit a crime – a crime maybe committed by a person
alone or it may involve others who conspired with him to commit it.

• A conspiracy exists when two or more persons come to an

agreement concerning the commission of the felony and decide to commit it.

• Proposal – when a person who has decided to commit a felony

proposes its execution to some other person or persons.

 In conspiracy, no formal agreement between the parties to do the act

charged is necessary. It is sufficient that the minds of the parties meet
understandingly so as to bring about an intelligent and deliberate agreement to
commit the offense charged, although such agreement is not manifested by any
formal words; a mutual implied understanding is sufficient, so far as the combination
or confederacy is concerned, to constitute the offense.

 Person criminally liable as classified – where there are several persons

who are parties to a crime, their criminal liabilities are not necessarily equal, for while
many might have taken part in the commission of a crime, they might not have equal
participation in the execution of the criminal act, hence it is not just that they should
have shared criminal responsibilities.

 Law classifies persons criminally liable to felonies:

a. Principal – those who take a direct part in the execution of the act or those
who directly forced or induced others to commit it or those who cooperate in
the commission of the offense by another act without which the crime would
not have been accomplished.

b. Accomplices – those persons who, not being principals by direct

participation, inducement, or cooperation through another act essential to the
consummation of the crime, cooperate in the execution of the offense by
previous or simultaneous acts, “accessories before the fact”

c. Accessories – those who having knowledge of the commission of the

crime and without having participated therein either as a principal or
accomplice take part subsequently in its commission in any of the following
manners:

1. by profiting themselves or assisting the offender to profit by the

effects of the crime
2. by concealing or destroying the body of the crime or the effects or
instrument thereof in order to prevent its discovery.
3. by harboring, concealing or assisting in the escape of the principal
of the crime provided the accessory had acted with abuse of his public

37
 functions or the author of the crime is guilty of treason, parricide,
murder, or an attempt to take the life of the Chief Executive or known
to be habitually guilty of some other crimes. (accessory after the fact)

CONTRACT – is a promise or a set of promises which the law recognizes as duty and
when the duty is not performed, the law provides a remedy.

 it is a meeting of the minds between two persons whereby one binds

himself with respect to the other to give something or to render some service
(Art. 135).
 When a nurse enters into a contract with an employer, it is usually an
agreement to be paid a certain amount of money and be provided certain
working conditions and benefits in exchange for such services.

Requisites of a Contract

1. To have a contract, two or more persons must participate

2. Parties involved must consent to the contract:

a. parties must be competent to contract

b. free
c. spontaneous

3. Object which is the subject matter of the contract must be specified such
as:

a. all things which are not outside the commerce of men

b. all which are not intransmissible
c. future inheritance in cases expressly authorized by law
d. all services which are not contrary to law, morals, good customs,
public order and public policy

4. The cause of obligation is established – time, price and subject matter are
expressed. Generally, the length of time of a contract for services is at least
equal to the period of which wages or salary is payable. Thus, if you are
engaged on yearly rates, the length of time of the contract would be at least
one year.

5. Contracting parties must have the legal capacity to enter into a contract:

a. Legal age
b. Sound of mind
c. Not under the influence of intoxicating drugs or fear of bodily
harm
d. Is not suffering from physical disability such as those who are
mentally incompetent

38
Kinds of Contract

1. Formal Contract – one which by some special law is required to be in

writing.

Ex. Marriage contract, mortgage deeds of sale or work contracts

2. Informal Contract – one which is concluded as the result of a written

document or correspondence where the law does not require the same to be in
writing or as the result of oral and spoken discussion between the parties or
conduct between the parties evidence an intention to contract.
3. Expressed is one in which the conditions and terms of the contract are
given orally or in writing by the parties concerned. Ex. Formal contract states
the kind of services, offered salary, date and time of affectivity including
fringe benefits.

4. Implied – that is concluded as the result of acts or conduct of the parties to

which the law ascribes an objective intention to enter into a contract. It may
be in the form of innominate contract, under the principle of “facio ut des” (I
do that you may give) under this doctrine, a valid and enforceable contract
result from implied consent where one party renders service to another and the
latter accepts such service in the absence of any proof that the same is given
gratuitously.

5. Voidable or Annullable Contract – one that is inexistent from the very

beginning and therefore may not be enforced;

a. Those where one of the parties is incapable of giving consent to

contract
b. Those where the consent is vitiated by mistake, violence,
intimidation, undue influence or fraud
c. Those which are absolutely simulated or fictitious
d. Those expressly prohibited or declared void by law
e. Those which contemplate an impossible service
f. Those which object is outside the commerce of man

6. Illegal Contracts – contracts obtained through use of fraud (deception and

trickery), undue (unlawful) influence or duress (coercion) in serving such as
those expressly prohibited by law are illegal.

7. Unenforceable – the following are unenforceable unless ratified;

a. Those entered into in the name of another person by one who has
been given no authority or legal representation or who has acted
beyond his power.

39
 b. Those who do not comply with the Statute of Fraud
c. Those where both parties are incapable of giving consent to a
contract

BREACH OF CONTRACT – It is a violation or non-performance of an express or

implied agreement without valid ground or just cause. The following constitute breach of
contract which may involve a nurse;

a. Refusal of a nurse to perform a duty.

b. Failure to employ due diligence in the care of patient.
c. Negligence or failure to do one’s duty due to inconvenience or difficulty.
d. Abandoning one’s responsibility.
e. Failing to prevent the performance of acts that may do harm or cause
damage.
f. Failing to cooperate that may necessarily do good for the health of a
patient.

 Valid grounds that a nurse may interpose as defenses against complaint of

breach of contract are;

a. performance of contract which is patently illegal,

b. physical impossibility of performing a contract due to serious illness,
c. presence of material misrepresentation in the contract or patient,
or
d. absence of any of the essential elements that negate the validity of a contract.

QUASI-DELECT OR TORTS – is the negligence of a person arising from his act or

omission, independent of a contract, which causes damage to another, the former is
obliged to pay for the damages done to the latter.

 Tort is a legal wrong, committed against a person or a person’s property. Torts

are usually litigated in court by civil action between individuals.

ASSAULT – imminent threat of harmful or offensive bodily contact; an unjustifiable

attempt to touch another person or the threat to do in such circumstances as to cause the
other reasonable to believe that will be carried out or can be described as an attempt or
threat to touch another person unjustifiably. Assault precedes battery; it is the act that
causes the person to believe a battery is about to occur.

BATTERY – intentional, unconsented touching of another person. It is therefore,

important before one can be touched examined or treated or subjected to medical and
surgical procedure, he must give consent to this effect.

FALSE IMPRISONMENT – 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.

40
INVASION OF PATIENT’S PRIVACY & BREACH OF
CONFIDENTIALITY

The right to privacy, to be left alone, 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.

 The nurse becomes liable for invasion of the right to privacy if she divulges
information from a patient’s chart to improper sources or unauthorized persons.

DEFAMATION – character assassination, be it written or spoken.

a. Slander – oral defamation of a person by speaking unprivileged or false

words by which his reputation is damaged.
b. Libel – printed defamation by written words, cartoons or such
representations that cause a person to be ridiculed or held in contempt or tend
to him in his work.

CRIME – act committed or omitted in violation of law. Criminal offenses are composed
of two elements;

a. Criminal act – deals with acts or offenses against public welfare

(misdemeanor – general name of a criminal offense which does not in law
amount to the grade of felony and felony public offense for the conviction of
which a person is liable to be sentenced to death (to imprisonment in a
penitentiary or prison).

b. Criminal intent – state of mind a person has at the time the criminal act is
committed, that is, knowing an act is not lawful and deciding to do it anyway.

 To be criminal an act must be defined as crime

 Deliberate intent has two elements without which there can be no crime

a. freedom
b. intelligence

 When a person accused of the crime offers an evidence, the

court will decide if he has committed a criminal offense or not. Example:

a. insanity
b. necessity
c. compulsion
d. accident
e. infancy

41
 The nurse may commit or encounter in the practice of her
profession:

a. Parricide – a crime committed by one who kills his father, mother or child
whether legitimate or illegitimate, or any of his ascendants or his spouse.

- penalty of reclusion perpetua (life imprisonment to death)

b. Murder – a crime committed by a person who kills another, other than the
father, mother or child or any of his ascendants or his spouse.

- penalty ranging from seventeen years, four months and one day to 20
years to death, if the crime is committed with any of the following
attendant circumstances;

1. With treachery, talking advantage of superior strength, with the aid

of armed men or means to weaken the defense, or with the aid of means or
persons to insure or afford impunity.

2. In consideration of a price, reward, or promise.

3. By means of inundation, fire, poison, explosion, shipwreck,

standing of a vessel, derailment or assault upon a street car or locomotive, fall
of an airship, by means of motor vehicles, or with the use of any other means
involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the precedent

paragraph, or of an earthquake, eruption of a volcano, destructive cycle,
epidemic, or any other public calamity.

5. With evident premeditation.

6. With cruelty, be deliberate and inhumanly augmenting the

suffering of the victim, or outraging or scoffing at this person or corpse.

c. Homicide – is the killing of any human creature; it is not necessarily a

crime; it may be committed without criminal intent and without criminal
consequence, where it is done in self-defense. Under the law, it is the crime
committed by a person who kills another, other than his father, mother or
child or any of his ascendant or descendant or his spouse. Without any of the
circumstances attendant to the crime of murder enumerated above being
present.

d. Infanticide – is the killing of a child less than three days of age. The
penalty for parricide and for murder shall be imposed upon any person who
shall be convicted of the crime of infanticide; if this crime is committed by the

42
 mother of the child for the purpose of concealing her dishonor. She shall
suffer the penalty of imprisonment ranging from two years, four months and
one day to six years.

e. Abortion – means the termination of pregnancy before the fetus is viable

(able to live after birth). When this occurs during the first twelve to twenty-
four weeks (three to six months) of pregnancy, the termination is called
abortion. The expulsion of the fetus before it is viable, that is, in the period
between the fourth and seventh month of pregnancy, is turned miscarriage.
When the delivery of expulsion of the fetus occurs during the period after the
fetus has reached viability (after the 28th week of pregnancy) but before full
term, the delivery is referred to as premature delivery. In law, however, this
distinction is not provided. Legal jurisprudence defines abortion as the
“expulsion of the fetus at a period of uterogestation (pregnancy within the
womb) so early that it has not acquired the power of sustaining an
independent life” or “the unlawful destruction, or the bringing forth
prematurely, of the fetus or unborn off-spring of a pregnant woman at anytime
before its natural birth”. Under the Revised Penal Code, criminal abortion is
classified into four categories, namely;

1. Intentional abortion
2. Unintentional abortion
3. Abortion practiced by the woman herself or her parents
4. Abortion practiced by a physician or midwife

A person who intentionally causes an abortion is liable to a criminal

penalty of imprisonment ranging from twelve years and one day to twenty years,
if he uses violence upon the person of the pregnant woman; or imprisonment for
six years and one day to twelve years if using no violence, he causes the abortion
without the consent of the pregnant woman; or imprisonment for two years, four
months and one day to six years, if he causes the abortion with the consent of the
pregnant woman.

If a person causes an abortion by violence, but unintentionally, he is liable

to a criminal penalty of imprisonment ranging from six months and one day to
four years and two months.

When a pregnant woman performs an abortion on herself or gives her

consent to another to do it, she is subject to the penalty of imprisonment lasting
from two years, four months and one day to six years. A pregnant woman who
performs an abortion on herself, or gives her consent to another to do it for the
purpose of concealing her dishonor is likewise criminally liable and can suffer the
penalty of imprisonment lasting from six months and one day to four years and
two months; if the abortion is done by the parents of either of them, with the
consent of the pregnant woman, for the purpose of concealing her dishonor, the

43
 defenders can also be criminally liable and can be penalized with imprisonment
from two years, four months and one day to six years.

A physician or midwife who takes advantage of his scientific knowledge

or skill and by it causes an abortion, with the use of violence upon the person of
the pregnant woman, is liable to the penalty of imprisonment from seventeen
years, four months and one day to twenty years; if the physician or midwife
causes an abortion or assists in causing an abortion without using violence but
without the consent of the pregnant woman, he or she can be punished with
imprisonment from ten years and one day to twelve years; if the pregnant woman
has consented to her abortion, the physician or midwife is liable to imprisonment
ranging from four years and two months and one day to six years.

Giving assistance to suicide – any person who shall assist another to

commit suicide (intentionally taking one’s own life), shall suffer imprisonment from six
years and one day to twelve years, if such person lends his assistance to another to the
extent of doing the killing himself, he shall suffer the penalty of imprisonment from
twelve years and one day to twenty years. However, if the suicide is not consummated,
the penalty of imprisonment from two months and one day to six months shall be
imposed.

Illegal detention – any individual who shall detain another or any other
manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua (life
imprisonment) or death, if the committed crime is under the following circumstances;

1. Detention has lasted for more than five days,

2. The offended was simulating public authority (pretending to be a

government authority) when he committed the crime,

3. Serious physical injuries had been inflicted on the detained or kidnapped

victim, or threats to kill him had been made,

4. Detained or kidnapped victim is a minor female or public officer

The penalty of death shall be imposed on the offender, even if none of the
aforementioned circumstances were present, if he detained a person for the purpose of
extorting ransom from the detained or kidnapped victim or from any other person. The
phrase extorting ransom means demanding or forcing the payment of money from a
person, through violence or intimidation as the price for the delivery or release of a
detained or kidnapped victim. The penalty of imprisonment from twelve years and one
day to twenty years shall be imposed upon any private individual who shall detain
another or, in any other manner, deprive him of his liberty, without the presence of any of
the aggravating circumstances enumerated above. The same penalty shall be incurred by
any one who shall furnish the place for the perpetration of the crime. If the offender shall
voluntarily release the person so detained within three days from the commencement of

44
the detention, without having attained the purpose intended, and before the institution of
criminal proceedings against him, the penalty shall be imprisonment from six years and
one day to ten years and a fine not exceeding P 700.00.

Simulation of birth – crime against the civil status of persons for which the
law imposes the penalty of imprisonment from six years and one day to twelve years and
a fine not exceeding P 1,000.00. The same penalties shall be imposed upon any person
who shall substitute one child for another or who shall conceal or abandon any legitimate
child with intent to cause such child to lose its civil status. Any physician or surgeon or
public officer who, in violation of the duties of his profession or office, shall cooperate in
the commission of the crime aforementioned, shall suffer the same penalties as stated
above and also the penalty of temporary special disqualification.

Criminal negligence – is negligence of such a character, or occurring

under such circumstances, as to be punishable as a crime by statute; or such a flagrant
and reckless disregard of the safety of others, or willful indifference to the injury liable to
follow as to convert an act otherwise lawful into a crime when it results in a person’s
injury or death.
Two classes of criminal negligence;

a. Reckless imprudence or reckless negligence

b. Simple imprudence or simple negligence,

Misdemeanor – is a term used to express every offense inferior to felony,

punishable by indictment or by particular prescribed proceedings. Misdemeanors
comprehend all indictable offenses which do not to felony; in its usual acceptation, the
term amount “misdemeanor” is applied to all those crimes and offenses for which the law
has not provided as particular name.

RELATIVE TO NURSING PROFESSION, MALPRACTICE MEANS:

a. Neglect of a nurse to use the required skill and knowledge in the treatment
of patient.

b. Ignorance, negligence, unskillfulness resulting in some injury to the

patient

c. Omission of duty to a patient which makes the nurse either civilly or

criminally liable

d. Failure to perform properly the duty which devolves upon his/her

professional relation to the patient and which results in some injury to the
patient.

HOW IS MALPRACTICE OF A NURSE PROVEN?

45
 The law never presumes negligence. It presumes that the nurse exercised the
ordinary care and skill required of him/her in treating his/her patient. The burden is on
the patient to prove negligence by the nurse. However, if the doctrine of RES IPSA
LOQUITUR (the thing speaks for itself) is invoked because negligence is grossly
apparent or evident, the nurse-defendant must establish his/her innocence rather than the
patient-plaintiff having to prove his guilt.

PRESUMPTION – it is an inference as to the existence of a fact, not actually known

arising from its usual connection with another which is known.

 Kinds of presumption

a. Presumption of law – deduction which the law expressly directs to be

made from particular facts.

1. Conclusive – those which are legally satisfactory and may

not be contradicted and overcome by proof of the contrary.
2. Disputable – those satisfactory if uncontradicted but may
be overcome by other evidence.
b. Presumption of the fact – deduction which reason draws from the facts
proven without an expressed direction of law to that effect. It is an influence
drawn from the subordinate / evidentiary facts.

THE EVIDENCE THAT INJURED PARTY SHOULD PROVE

BEFORE THE COURT

A. The nurse is legally authorized to practice nursing.

B. The nurse attended to him giving the diagnosis and administering the
treatment

C. That in the performance of his/her duties as a nursing practitioner, his/her

failure to exercise reasonable and ordinary care and diligence or to use best
judgment.

D. That the patient suffered damages with impairment of his earning

capabilities, pecuniary loss and loss of time, permanent disfigurement /
deformity / moral and physical pain and suffering.

E. That due to the negligence, ignorance / incompetence of the nurse / to the

proceedings circumstances, the patient suffered injury.

46
EVIDENCE THAT A PARTY – DEFENDANT SHOULD PRESENT FOR
HIS/HER DEFENSE.

A. That he/she possesses, at least, ordinary learning skill and training

B. That he/she exercises due care and diligence while attending to the patient

C. That he uses his/her best judgment in executing the nursing process

D. That the injury to the patient is the result either of the patient’s own and
exclusive negligence or a mere accident.

What is evidence?

It means, sanctioned by law, of ascertaining in judicial proceedings, the truth

respecting a matter of fact.

INCOMPETENCE – lack of ability, legal qualification or fitness to discharge the

required duty.

Although a nurse is registered, if in the performance of her duty she

manifests incompetence, this is a ground for revocation or suspension of
her certificate of registration.

POINTS TO OBSERVE IN ORDER TO AVOID CRIMINAL

CIVIL AND ADMINISTRATIVE LIABILITY

1. Be familiar with the Philippine Nursing Law

2. Be aware of the laws that affect nursing practice

3. At the start of employment get a copy of the agency’s rules, regulations and policies

4. Upgrade your skills and competence

5. Accept only such responsibility that is in the scope of your employment and your
job description

6. Do not delegate your responsibility to others

7. Determine whether your subordinates are competent in the work you are assigning them

47
 8. Develop good interpersonal relationship with your co-workers, whether they are
your superiors, peers or subordinates

9. Consult your superiors for problem that may be too big for you to handle

10. Verify orders that are not clear to you or those that seem to be erroneous

11. The doctors should be informed about the patients’ conditions, the effects of
medication and treatments or the patients lack of progress

12. The nurse should be aware of the value necessity of keeping accurate and
adequate records

13. Patients are entitled to informed consent

14. Be familiar with Article 19 of the Revised Penal Code; Every person must, in the
exercise of his/her right and in the performance of his/her duties, act and justice,
give everyone his/her due and observe honesty and good faith and follow the
golden rule

Case Analysis #1

THINK TWICE ABOUT REPORTING SECOND – HAND NEWS

I heard through a friend of a friend that a nurse at my hospital has a serious

drinking problem. What’s my duty in a situation like this? (Advice of Counsel,
November 1996, RN)

Case Analysis #2

Ms. Gamp is a staff nurse on the oncology unit. She has been caring for Mrs.
Feliciana, an elder 72-year old female patient. Mrs. Feliciana has been having trouble
breathing for several days. It is getting progressively worse. Dr. Chan thinks Mrs.
Feliciana’s thoracic cavity has fluid as a result of her lung cancer. Dr. Chan wants to do a
thoracentesis.

Dr. Chan also tells Ms. Gamp to get a consent form signed by Mrs. Feliciana that
she consents to the procedure for a thoracentesis. As Ms. Gamp begins to explain the
procedure to Mrs. Feliciana, Mrs. Feliciana asks that her daughter be contacted to give
permission before the procedure begins. Ms. Gamp has tried several times to contact
Mrs. Feliciana’s daughter but is unable to reach her. Dr. Chan states he has to go ahead
with the procedure or the patient will go into heart failure.

48
 • What should the nurse do in this kind of situation?
• Can Dr. Chan proceed with the thoracentesis? If so, under what
circumstances?
• What, if any, legal liabilities could be involved?

LEARNING ACTIVITIES

Submit your typewritten answer/reactions/analysis

1. State and discuss four causes of errors committed by nurses and give one
example each.

2. Differentiate and discuss criminal from civil liabilities.

3. Discuss why a nurse should know her liabilities

4. Analyze the sample on a clinical case involving the liabilities of nurses by

identifying the following;

1. What is the case

2. How it happened

3. Conclusion

4. Recommendation for disciplinary action

49
5. Design a training program that will highlight the development of a legally
competent and accountable nurse.

6. How do we eliminate exposure to law suits?

7. How can we establish a legally, morally and ethical conscience in our nurses?

LEGAL PROBLEMS IN NURSING

MODULE FIVE
INSTITUTIONAL AND COURT TRIALS

SPECIFIC OBJECTIVES

At the end of the module, you should be able to:

• understand the legal processes both in the employing agency and in court
• analyze administrative legal problems/ issues involving nurses
• know the procedure in making/ passing a law
• make critical decisions

50
INTRODUCTION

This module will help acquaint you with systems/ procedures for court cases.
This is a must for all nurses to know and to enable them to understand court proceedings.
They should be aware that every function / task and activities either directly or indirectly
done in the provision of care to patients have legal implications. These, therefore, are
bases potential legal suits. Procedural investigative processes both within the institutions
and in the courts should be a basic knowledge of every practicing professional. Included
in this module is the system and process being used in court outside the Philippines
specifically in the United States. It is fitting to include this in this module considering
that most of our nurses abroad have opted to be employed and are permanently residing
in the U.S. with their family as an immigrant or citizen. And surely this migration of
nurses is an on-going process. Recent statistics per PRC registry showed that
approximately one-half of our list of registered nurses are abroad. A greater percentage
are in the United States. There are already legal-court cases that reached the Philippines.
The Philippine government has mediated for them.

Their legal knowledge will provide necessary protection, first to the clientele, the
recipient of care; second, to the institution where nurses are employed; and third to
themselves as professionals and as person. Their awareness of the legal implications of
every nursing intervention will now be performed with due care and prudence preventing
them from omitting/committing any nursing activities that will cause legal suits.
LESSON 1 EVIDENCES FOR THE INVESTIGATIVE PROCESS AND
COURT TRIALS

EVIDENCE – is the means by which disputed facts are proven to be true or untrue in
any trial court of law or an agency that functions like a court.

Evidence distinguished from:

a) Rule of Evidence – the facts in issue in a case are those pleaded by one and
denied by the other. And in a judicial trial, the truth as to those facts may be
established only by means of evidence. In other words evidence is the means,
sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting
a matter of fact.

b) PROOF – Evidence differs from proof as a cause differs from effect. PROOF is
that which convinces, evidence is that which tends to convince, proof is the perfection
of evidence, for without evidence there is no proof. Though there may be evidence
which may not amount to proof.

c) Testimony – Evidence is more comprehensive than testimony. The latter being

the statement or the declarations of a witness, and evidence being the conclusion from
all the facts established at the trial by testimony, by events, by circumstances, by

51
 writing, records, or other memorials. Testimony is a kind of evidence which is
presented either in writing or verbally.

TYPES AND FORMS OF EVIDENCE

A. Two Basic Types of Evidence

1. Direct Evidence. Evidence, which proves a proposition without relying on

any inference.

2. Indirect or Circumstantial Evidence. Evidence of a subsidiary fact from

which existence of an ultimate fact may be inferred.

B. Rules of Admissibility

1. Direct evidence is almost always admissible.

2. Circumstantial evidence is more often subject to exclusionary

rules of evidence and rules of relevancy

C. Other types of evidence

1. Direct or positive evidence is that which proves the fact in disputes directly
without need of any inference or presumption. If true, it will be conclusive of the
disputed facts.

2. Indirect or circumstantial evidence is that which tends to establish a fact by

providing another fact. It does not itself conclusively established a disputed fact,
but merely creates an inference or presumption of its existence. By showing other
facts, the ultimate fact sought to be established is sustained.

3. Cumulative evidence is the additional evidence of the same kind and to the same
state of facts. Its admission is within the discretion of the trial court except
REQUISITES Circumstantial evidence is considered sufficient for conviction if
the following circumstances are present:

a. There is more than one circumstance.

b. The facts from which the inference is derived are proven.
c. The combination of all the circumstances is such as to produce conviction
beyond reasonable doubt.
d. The rule is that before conviction upon circumstantial evidence, the
circumstances proven should constitute an unbroken chain, which leads to one

52
 fair and reasonable conclusion pointing to the accused to the exclusion of all
others as author of the crime.
e. To warrant a conviction in a criminal case upon circumstantial evidence,
such evidence must be more than one, derived facts duly proven and the
combination of all of them must be such as to produce conviction beyond
reasonable doubt.
f. Confessions of other suspects admissible as circumstantial evidence to
show probability of co-accused’s participation in a crime.

4. Corroborative evidence is the additional evidence of a different character to the

same point. While it has no direct bearing on the facts of the issue, it reflects on
other facts from which logical interference may be drawn as to the very facts in
issue.

EXAMPLES

1. The testimony of the appellant’s co-accused Mercado linking her to the slaying of
her husband is corroborated by written statements of the other co-accused and
appellant’s admission that they met in a hotel.

2. Son of the victim saw the way his father was killed by the appellant corroborating
that of the doctor’s finding.

However

a. Proof that marijuana leaves were recovered from a person does not necessarily
prove that the accused had been seen selling marijuana leaves including the recovered
marijuana from the person.

b. The testimony of the witness to corroborate the alibi that she slept in the house of
one of the appellants for the first time is quite weak for she could have slept at the
house of her brother only two kilometers away.

PRIMARY OR BEST EVIDENCE is that which affords the greatest certainty of the
fact in question.

EXAMPLE

A physician’s report, is the best evidence of work in connection with the workmen’s
ailments and can be a basis for award even if the physician has not presented a
witness.

However, testimony of an examining physician when purely speculative will not be given
credence.

53
SECONDARY EVIDENCE is that which is inferior to primary evidence, and which
upon its face shows that better evidence exists.

Best evidence rule;

a. The rule of law – in the language of Chief Justice Marshall, “the rule of law” is
the best evidence that must be given in which the description of the nature of the case
is stated. In other words, the best evidence of the nature of the case as admissible
shall always be required, it is possible to be presented, if not possible, then the best
evidence that can be had shall be allowed.

b. Reason for the rule – the rule requiring the production of the best evidence in
which the case in its nature is susceptible, is adopted for the prevention of fraud and
is declared to be essential to the pure administration of justice.

c. Effects of the rule – the effects of the best rule on real evidence and in the
testimony of witnesses in court is not the same as in documentary evidence. To prove
the condition or nature of articles and other physical objects, it is not essential that
they be produced in court, they may be described by witness. For instance, to prove
the death of a person, it is not necessary to produce him in court, the testimony of the
witnesses who have seen him is sufficient.

The kind of evidence on which the best evidence rule operates, as a rule of
exclusion is documentary evidence. The original of the writing must, as general a rule,
be produced and secondary evidence of its contents is not admissible except where the
original cannot be had. The doctrine is that the best evidence rule applies with
exclusionary effect, only to evidence classified by law into primary and secondary.

REAL EVIDENCE

1. Sources of Evidence

In making its decision, the court may acquire knowledge through three modes
namely;

a. Testimonial evidence is the testimony of man, which may be oral or written.

Examples are: documents, depositions, and affidavits.

b. Autopic preference, from which interference may be taken as to the existence or

non-existence of a fact in dispute.

c. Object evidence consists of tangible things submitted for inspection which enable
the court by direct use of its senses to perceive facts about these things in evidence. It

54
 is tangible evidence presented to the trial of the facts for inspection as relevant to an
issue in the case. Examples; Guns, bullets, contracts…

LESSON 2 LEGAL PROCEDURE AND TRIAL

MAJOR STEPS IN LAWSUIT

In trial, the judicial procedure is to ascertain facts by hearing evidence, determine

which facts are relevant, apply the appropriate principle of law and pass judgment. This
procedure in a lawsuit can be divided into commencement, pleading, pre-trial and
execution.

1. Commencement of the Action

The first step in the trial process is to determine what kind of legal action is to be
determined. If the action relates to negligence the correct action would be on negligence
and if it relates to contract, proper action would be for breach of contract.

Lawsuits must be brought within a certain time limit that has been proscribed by
law in a statute of limitations – a time span that varies with the cause of action.

Note: A suit to recover damages for personal injury caused by negligence must be
brought within two years of the injury. If that case is not brought within the prescribed
time, the action is barred.

55
 In criminal cases, statutes of limitation varies from two (2) to six (6) years except
in cases where murder is committed in which there is no time limit.

The first necessary element in the trial process is a person who believes a cause of
action exists against another person. The first person, called the plaintiff, brings the
action and makes the complaints; the defendant is the person against whom the suit is
brought.

STEPS IN TRIAL

1. Determine what kind of legal action may be instituted.

2. Determine where the suit will be filed.

FACTORS TO CONSIDER

1. Which court has jurisdiction over the subject of the controversy.

2. Which geographic district includes the area where one party resides or where the
alleged injury occurred.

Two major methods by which a Lawsuit may be begun:

Filing of a complaint

1. In some courts an action is commenced by filing an order with the court clerk to
issue a paper called the “writ or summons”, to the designated officials. This will
order the official to inform the defendants that they must appear before the court on a
particular date.

2. Suits are begun by filing and delivery of the complaint itself, which is called
service. Upon service of the summons or complaints, the defendants should promptly
notify their attorneys or insurance companies. Their attorneys will investigate, decide
on a strategy, and respond to the complaint.

Examples of process most commonly served are:

Warrant – is a writing from a competent authority in pursuance of law, directing

the doing of an act, and addressed to an officer or person competent to do the act.

56
 Search Warrant – is an order in writing, in the name of the people of the
Philippines signed by a judge and directed to a peace officer, commanding him to search
for personal property and bring it before the court.

Summons – is the name of writ commanding the sheriff or other authorized

officer to notify a party to appear in court to answer a complaint made against him, and in
said writ specified, on a day therein mentioned.

Subpoena – is the process by which the attendance of a witness is required; it is a

writ or order directed to a person requiring his attendance at a particular time and place to
testify as a witness.

Subpoena Duces Tecum – is a subpoena which does not only compel the
personal attendance of a witness in court but also requires such witness to bring with him
and produce to the court; books, papers, and the like, which may be in his hands or
possession, and which tend to elucidate the matter in issue.

Pleading

Once an action is commenced, each party must present a statement of facts, or

pleadings, to the court. The modern system of pleading requires a setting forth of the
facts, which serves to notify the other party of the basis for the legal claim. The first
pleading is the “complaint or petition” in which the plaintiff outlines the factual basis for
the claim. (*In less serous crimes known as misdemeanor, these pleadings are called
“complaints”, while in crimes or more serious nature known as felonies, the pleadings
are called indictments.)

A copy then is served on the defendant, who must reply within a specified period
of time, usually 15 to 20 days. If the defendant fails to answer within that time, the
plaintiff will win by default and judgment will be entered against the defendant. In
certain instances a default judgment will be set aside if the defendant can demonstrate
valid reasons for failing to respond.

Upon receiving a copy of the complaint, the defendant also has the right to file
preliminary objections before answering the complaint. In these objections, the
defendant cites possible errors that would defeat the plaintiff’s case. (example: The
defendant may object that the summon or complaint was improperly served, that the
action was brought in the wrong country, or that there was something technically wrong
in the document. The court may permit the plaintiff to correct the errors by filing a new
or amended complaint; however, in some instances, the defects may be so significant that
the case is dismissed.)

The defendant also may present a motion to dismiss the action alleging that the
plaintiff’s complaint does not set forth a claim or cause of action recognized by the law.
If the case is dismissed, the plaintiff has the right to amend the complaint or appeal the

57
lower court’s action to an appellate court. On the other hand, if the court declines to
dismiss the case, the defendant then is required to file an answer to the complaint.

In some cases, the defendant may have a claim against the plaintiff and will file a
counterclaim. (example: the plaintiff may have sued a hospital for personal injuries and
property damage caused by a collision with the hospital ambulance. The hospital may
file a counterclaim on the ground that the driver was careful and that it was the plaintiff
who was responsible for the accident and should be liable to the hospital for damages.)

When the defendant files an answer, the plaintiff generally can file preliminary
objections to that answer. The plaintiff may assert that the counterclaim is legally
insufficient, the form of the answer is defective, or the counterclaim cannot be asserted in
the court in which the case is pending. The objectives are addressed by the court.

After the complaint is filed, the defendant must make some reply within a specific
time. He must be aware of his fundamental rights to due process of law.

Fundamental Requirements of Due Process

Sec. 12. (1) Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. The rights cannot be waived except in
writing and in the presence of a counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places, solitary,
incommunicable, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of these or Section 17

thereof, shall be inadmissible as in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this
section as well as compensation to the rehabilitation of victims of torture or similar
practices, and their families.

Section 13. All persons except those with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released as may be provided by law. The right to bail shall be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall
not be required.

Section 14. (1) No person shall be held to answer for a criminal offense without due
process of law.

58
 (2) In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proven, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and to have production of
evidence in his behalf. However, after arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been duly notified and his failure to
appear is unjustifiable.

LESSON 3 THE INSTITUTION’S / AGENCY’S INVESTIGATION PROCESS

This lesson presents two systems: The Philippine court system and the American
court system.

I. The Philippine Court System

In a hospital setting, the private institutions are guided by the labor laws in
settling complaints and disputes. In the government institutions they are guided more by
the Omnibus Code. While in government owned and controlled institutions /
corporations, the office of the government corporate counsel handles these kinds of
complaints and disputes. If and when formal complaints are filed in court then each party
shall be advised to have their own lawyer. The following steps are used:

ANATOMY OF A TRIAL

Plaintiff files a petition

59
 Court serves as summon of the defendant

Defendant pleads the petition

Depositions and/or written queries are taken by both parties

Defendant may file a motion for dismissal or Plaintiff may drop the lawsuit

Trials held if the lawsuit is not dismissed or dropped

Decision of the judge

If the decision is in favor of the defendant the case is dismissed

If the decision is in favor of the plaintiff a remedy is assessed

Appeal by the defendant

The revised Penal code stated that the procedures in the resolution of disputes are
the same in the Barangay, Municipal, Provincial and Regional trial courts. The filing of
complaints or information shall be in writing in the name of the people of the Philippines
against all persons responsible for the offense involved and directly forwarded with the
said courts or with the fiscal’s office. However in the Metropolitan Manila and other
chartered cities, the complaints may be filed only with the office of the fiscal.

All prosecutions of complaints shall be tried in the courts of the municipality or

territory wherein the offense was committed.

Court decisions emerge from the resolution of disputes through a lawsuit that is
tried in court. The goal of a trial is to reach an orderly resolution of a dispute between
two or more parties who have differing interests. The procedure is designed to ascertain
facts by hearing evidence, determine which facts are relevant, apply the appropriate
principles of law and pass judgment based on the facts and applicable law.

Example of a lawsuit in a hospital proceeding

60
 A lawsuit is initiated when a person files a petition with a court, setting forth a
cause that is an allegation. For example, parents could allege that negligence on the part
of the nurse caused their child to sustain a fall from the bed while the child was sleeping
resulting in a fracture of the right femur. A summon is then delivered by the court to the
defendant who is in this case might be the supervisor of the hospital because that
individual is responsible for the nurse who is on duty that night. The supervisor and the
nurse together with the Attorney will be required to appear in court on a given date for
the purpose of answering the allegation set forth in the petition. If the nurse states that
she is not guilty of negligence, the next step involves clarifying the allegation and the
material facts that support it. This may be accomplished by the parties to the lawsuits
who are required to answer questions posed by the respective attorney. Written questions
may also be required in lieu of or in addition to the depositions. If the nurse Attorney
believes that the material facts do not appear to support the allegation, a motion may be
filed to dismiss the case. If the judge does not do so, a trial date is set. If the decision is
rendered in favor of the plaintiff, a remedy is assessed against the defendant that may
involve a number of options, depending on the nature of the case. There are certain
circumstances under which the decision in a trial may be appealed to a higher court for
review. Most commonly this occurs when a question arises regarding the law or the
impartiality of the trial proceeding.

II. The American Court System

The Major Steps in Court Trials

1. Pre-Trial Procedures

After the statement of facts or pleadings are completed, these are presented in
court. The court in many states permit to move for a judgment based on the pleadings.
In some states the moving is permitted to introduce sworn statements called “affidavits”,
showing that a claim or defense is false. This procedure cannot be used when there is
substantial dispute concerning the matters presented by the affidavits.

In federal courts, as well as in most state courts, the parties have the right to
“discovery” that is, the examination of witnesses before the trial. This process of
discovery can last for several weeks to several years. A nurse may become involved in
the case as witness or an expert witness. The usual manner of conducting the discovery
is to present questions to the opposing parties and witnesses.

61
 Interrogatories are questionnaires that are answered under oath, usually in writing,
concerning the facts of the case. When the interrogatories are presented orally by an
examiner, the answers are also given under oath, which is called “disposition”. Either
party may obtain a court order permitting the examination and reproduction of books and
records. A court order may be obtained to allow the physical and mental examination of
a party when that condition is important to the case. In certain instances it may be
desirable to record witnesses’ testimony outside the court before the trial. In such a case
one party, after giving proper notice to the other and to the respective witness, may
require the witness to answer questions and submit to cross-examination under oath. The
testimony is recorded and filed with the court and is entered as evidence if the witness is
unavailable at the trial. This procedure may be used when a witness is aged or infirm or
may die or too ill to testify at the trial.

Pre-trial conference will be ordered at the judge’s discretion or upon the request
of one of the parties. This is an informal discussion in which the judge and the attorneys
of both sides eliminate matters that are not in dispute, agree on the issues, and set
procedural matters related to the trial. Although the purpose of the pre-trial conference is
not to compel the parties to settle but that often happens at this point.

2. The Trial

At the start of the trial, a jury (if there is one) is selected. A number of qualified
people are selected as panel, from which the jury is chosen and sworn. The attorneys
then make opening statements.

The plaintiff’s attorney then calls the first witness for that side and direct
examination begins. When the direct examination is completed, the opposing attorney
may cross-examine the witness in an effort to challenge or disprove the testimony. The
plaintiff’s attorney may ask the witness additional questions in an effort to overcome the
effect of cross-examination. The plaintiff’s attorney also introduces other evidence such
as documents and tangible items.

After the plaintiff’s entire case has been presented, the defendant may move for a
direct verdict in its favor on the ground that the plaintiff has failed to present sufficient
facts to prove the case or that the evidence does not supply a legal basis for a verdict in
the plaintiff’s favor. If the motion is overruled, the defendant’s case is presented in the
same manner as the plaintiff’s. Either party then may ask the judge to rule that the claim
has not been proven or that the defense has not been established and direct the jury to
render a verdict to that effect. If these motions are overruled, the attorneys make oral
arguments to the jury and the judge instructs the jury on the appropriate law. Some
judges summarize the facts, integrate them with the applicable legal principles, and
comment on the evidence as well. Other judges merely state controlling legal principles.
The jury then retires to a separate place to deliberate and reach a verdict; when it has
done so, it reports to the judge, who then renders a judgment based on the verdict.

62
 At the time the judgment is rendered, the losing party has an opportunity to move
for a new trial. If a new trial is granted, the entire process is repeated; if not the judgment
becomes final, subject to a review of the trial record by an appellate court if the losing
side appeals.

The TRIAL COURT in some states are divided into special courts that deal with
specific issues, such as: family, juvenile, probate and limited ones, that deal only with
lesser crimes, such as misdemeanors or with civil cases involving limited amounts of
money. In this level, applicable law is determined and the evidence is assessed to know
what the “facts” are. The applicable law then is applied to those by a jury, the judge
instructs the jury as to what the law is and the jury determines what the facts are and
applies the law. If there is no jury, the judge will also be the one to determine the facts.

To determine the facts for the purpose of deciding the case, the credibility of the
witnesses and the weight to be given are measured. Also, other evidences must be
determined.

The judge has the significant control over the trial even when a jury is involved.
If the judge finds that insufficient evidence has been presented to establish a factual issue
for the jury to resolve, the judge can dismiss the case or in civil cases, direct the jury to
decide the case in a specific way. In civil cases, even after the jury has decided, the judge
can decide in favor of the other side.

3. Appeals

An appellate court reviews a case on the basis of the trial record as well as written
summaries of the applicable legal principles and short oral arguments by the attorneys.
The court then takes the case under advisement while judges consider it and agree upon a
decision. They then issue an opinion explaining their reason. Appellate court decisions
and opinions are published and are a source of continuing legal information for lawyers.

INTERMEDIATE COURTS OF APPEAL. This court decides only appeals

from trial court decisions. When an appellate court is deciding appeals, it does not accept
additional evidence but makes its decision based on the evidence presented at the trial
court and preserved in that record.

Courts of appeal almost invariably accept the determination of the facts by the
jury or judge in the trial court because they saw the witnesses and can better judge their
credibility. Appellate courts usually base their decision on whether proper procedures
were followed in the trial court and whether it interpreted the law properly. However, an
appellate court occasionally will find that a jury or verdict is so clearly contrary to the
evidence that will either reverse the decision or order a new trial.

4. Execution of Judgments

63
 In lawsuits naming hospitals, physicians, and nurses as defendants, the party
generally will seek to recover money damages. Other forms of relief are available, such
as an order or an injunction requiring the defendant to perform or refrain from performing
an act. The jury decides the amount of damages, subject to review by higher court.

If, after trial and final appeal, the defendant does not comply with the judgment in
the suit, the plaintiff may cause the judgment to be executed. This means that if the
defendant ignores an order to perform or refrain from performing an act, the failure to
obey will be regarded as contempt of court and will result in a fine or imprisonment. If
the judgment is for payment of money, the plaintiff may cause the officials or judicial
officer to sell as much of the defendant’s property as is necessary to pay judgment and
court costs.

SUPREME COURT is the highest court in each state which will decide appeals
from the intermediate appellate courts or in states without the intermediate level, which is
the trial court. The highest court has also other duties, including adopting rules of the
procedure for the state court system and determining who may practice law in the state,
which includes disciplining of lawyers for improper conduct.

CASE

A seventy year old male patient was admitted in the hospital for KUB-IVP. The
protocol for preparing the patient before the procedure was:

1. Bisacodyl (Dulcolux) 2tabs or 30cc castor oil at bedtime

2. NPO post midnight

3. Bisacodyl suppository (2) per rectum at 5 A.M. followed by soap suds enema till
return flow is clear

The night shift nurse (N) prepared the patient and the A.M. nurse sent the patient
to the x-ray dept.

A few minutes after the patient was sent to the x-ray dept., the A.M. nurse
received a call from the x-ray department complaining about the patient’s dirty bowel.

64
This was based on the first x-ray shot taken before the injection of dye. The patient was
sent back to the floor for enema.

The patient and the attending surgeon complained for the delay in the procedure.

After the investigation of the A.M. supervisor (Miss S), she found out that no
enema was rendered, that only laxatives were given to cleanse the bowel.

Miss S talked to N and asked her to make an IR for failure to properly prepare the
patient before the procedure.

The Night shift Supervisor (Ms. M) talked to Miss S defending N, saying that
they did not perform enema because they have asked the patient, and he claimed that his
bowel movement is clear after the suppository had been inserted. Miss S explained that
the incident report must still be written so that there may be proper investigation and
documentation of the case.

The incident report was returned empty and N refused to explain.

LEARNING ACTIVITIES

Submit your typewritten answer, reaction and/or analysis of the following:

1. Discuss the due process of law followed in an investigative process within the
employing agency.

2. Explain and give example of two major types of circumstantial evidences in court.

3. Explain why a practicing Filipino nurse should know the due process of law in the
American court system and in other countries.

4. How do our court system differ from other countries?

5. Analyze the sample administrative case given based on the following:

1. The case

65
 2. How it occurred

3. Circumstantial evidence

4. Conclusion

5. Recommendation for disciplinary action

BIBLIOGRAPHY

BOOKS

Apostol, Sergio. Essential of Evidence. Control Lawbook Publishing Com. Inc. 1991

Bengson, Jose. The Judicial System of the Philippines, 1969.

Berzweig, Eli P. Nurse’s Liability for Malpractice A Programmed Course: N.Y. U.S.A.
Mc Graw-Hill Book Company.

Creighton, Helen. Law Every Nurse Should Know: Philadelphia, WB Saunder Co., 1975.

De Belen, Rustico & De Belen, Donna Vivian, Nursing Law Jurisprudence and
Professional Ethics First Edition C & E Publishing 2007.

Delouhery, Grace. Issues and Trends in Nursing: Missouri, Mosby Publishing Co., 1995.

66
Grippando, Gloria M. Nursing Perspectives and Issues: Third Ed. Delmar Publishers Inc.

Joven, Jose Romano. Nursing Law, Jurisprudence and Ethics: A Primer Review. Rex
Bookstore.

Kozier, Etal. Fundamental of Nursing: Concepts, Process and Practice: New York
Addison-Wesley Congman Inc. 1998

Legarda, Navals. Administration in the Philippines Organizational Structures and

Management of the Judiciary: Groiler Electronic Publishing Inc., 1995

Milton, Lesnik and Bernice Anderson. Nursing Practice and the Law Ed. 2 with Revision,
J.B. Lippincott Co. Philadelphia, 1962. p.p. 2-3.

Nolledo, Jose N. The Revised Penal Code: Annotated revised Ed. 1991.

Phodes, A.M. and Miller, R.D. Nursing and the Law 4th Edition. Maryland; Aspen
Publication, Rockville, 1984.

Robles, G. and Sand A. Philippine Nursing Law and Jurisprudence: Manila Philippines;
Professional Publishing Co., 1992.

Robles, Dionisio. Phil. Nursing Law, Jurisprudence and Ethics – 12th Ed. Revised,
Educational Publishing house, Manila 1988.

Rowland, Howard. Nursing Administration Handbook, 4th Edition Aspen Publishers, Inc.
1997.

William, P. and Tungpalan, L. Fundamentals of Nursing JMC: Press Inc. 1981.

Venzon, Lydia M. Professional Nursing in the Philippines: 4th Edition Printing Quezon
City Philippines, 1991.

Venzon, Lydia and Venzon, Ronald M., Professional Nursing in the Phil. Fourth Edition.
C & E Publishing Inc. 2005.

MAGAZINES/JOURNALS PAMPHLETS

1. American Journal of Nursing 1990-1999

2. Civil Service Laws and Rules (Book V of Executive Order No. 292)

67
3. Journal of Nursing Administration 1990-1999

4. Nurse forum magazine

5. Philippine Daily Inquirer

6. RN (Journal Magazine) 1990-1999

7. The Labor Code of the Philippines

8. The New Philippine Constitution 1987

9. The New Rules of Court in the Philippines 1964 Edition – M. Colcol and Co. Inc.

68