Legal Pitfalls in Nursing Care and Supervision

Atty. Pilariza Racho-BaldovinoAssistant Professor

College of LawAteneo de Davao University

Article 19 Civil Code

Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Patients Bill of Rights

(see PDF)

Elements of Actionable Conduct

1. Acts or omission2. Fault or negligence3. Statutory standard of care4. Existence of negligence5. When negligence presumed

Definition of quasi-delict

• Article 2176, CC. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict.

Elements of quasi-delict

1. Damages suffered by the plaintiff2. Fault or negligence of the defendant, or some

other person from whose acts he must respond

3. Connection of cause and effect between the fault of negligence of the defendant and the damages incurred by the plaintiff

Medical Malpractice

A particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances.

Elements of medical negligence

A patient must prove that a health care provider either failed to do something which a reasonable prudent health care provider would have done or that s/he did something that a reasonably prudent health care provider would not have done; and that failure or action caused injury to the patient.

1. Duty2. Breach3. Injury4. Proximate cause

Some acts or omissions of negligence or malpractice

1. Wrong diagnosis, when such results from want of requisite skill or care;

2. Unwarranted abandonment of a case after its assumption, at least where he does not give reasonable notice or provide competent physician in his place;

3. Operating without patient’s consent where a patient is in possession of his faculties and in such physical health as to be able to consult about his condition, and no emergency exists in making it impracticable to confer with him, or without the consent of the parents, spouse or guardian, in the absence of an emergency;

4. Failing to give the patient or his facily or attendants all the necessary and proper instructions as to the care and attention to be given to the patient and the cautions to be observed;

5. Allowing a foreign substance to enter or remain in the body of the person operated on, and this extends to the sponges and pads;

6. failing to give warning when attending to a patient afflicted with contagious or infectious disease;

7. Writing an erroneous prescription;8. Issuing wrongful certificate of insanity or

inebriety (intoxication)

Defense

1. Error in judgment rule. A physician is not liable for error in his judgment when s/he applies

1. ordinary and reasonable skill and care, or 2. his best judgment, or 3. keeps within recognized and approved methods

of common practice, or 4. if he forms his judgment after a careful or proper

examination or investigation

Liability of hospitals

1. For the purpose of allocating responsibility in medical negligence cases, an employer-employee exists between hospitals and their attending and visiting physicians. The hospital then is solidarily responsible for the negligence of the latter.

Defense

Prove that the hospital observed the diligence of a good father of a family to prevent damage

Special or limited practitioners

1. The rules and standards governing the duty and liability of physicians and surgeons in the performance of professional services are APPLICABLE to nurses.

2. Nurses performing acts in the operating room that do not require medical skill and judgment are considered to have acted as employees of the hospital, and the surgeon may not be held liable for the nurses’ negligence therein.

Thank you