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MODULE ONE
SPECIFIC OBJECTIVES
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THE MEANING OF THE LAW, ITS SOURCES AND
LESSON 1 CLASSIFICATION
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.
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
1. Constitution
2. Statutes
3. Court Decisions
4. Rules of Administrative agencies and decisions
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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.
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 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
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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
VETO = the power of rejecting a piece of legislative or preventing it from coming into
effect.
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.
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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.
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.
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)
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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.
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.
This portion focuses on the nurse practicing her Nursing Profession Article I –
Section 1 with the title – The Philippine Nursing Act of 2002.
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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)
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
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(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)
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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 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.
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LEARNING ACTIVITIES
1. In one or two statements use the following legal terms in a simple situation within
the field of nursing.
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?
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LEGAL PROBLEMS IN NURSING
MODULE TWO
SPECIFIC OBJECTIVES
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.
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INTRODUCTION
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.
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LESSON 1 THE NURSING LAW AND THE PROFESSIONAL NURSE
PRACTITIONER
ARTICLE II
DECLARATION OF POLICY
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.
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PROFESSIONAL ACCOUNTABILITY
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.
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:
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.
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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.
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LESSON 2 THE ROLE OF THE BOARD OF NURSING, PHILIPPINE
REGULATION COMMISSION
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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 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:
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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:
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LEARNING ACTIVITIES
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?
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LEGAL PROBLEMS IN NURSING
MODULE THREE
SPECIFIC OBJECTIVES
2. explain the role of the DOLE and CSC relating to the nurse as an
employee
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.
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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.
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LESSON 2 THE ROLE OF THE CIVIL SERVICE COMMISSION AND
DEPARTMENT OF LABOR AND EMPLOYMENT
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.
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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.
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.
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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
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.
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
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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:
3. The victim does not have to be the person harassed but could be
anyone affected by the offensive conduct.
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.
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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
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.
6. Patients are now very much aware of the “Patients Rights”, how
do we communicate to them their rights and privileges?
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LEGAL PROBLEMS IN NURSING
MODULE FOUR
SPECIFIC OBJECTIVES
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
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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.
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.
1. JUSTIFYING CIRCUMSTANCES
- An offender does not render himself criminally liable in defense of his person or
rights provided that:
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
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- 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.
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.
f. Any person who fails to perform an act as required by law when prevented
by some lawful or insuperable cause.
3. MITIGATING CIRCUMSTANCES
c. That the offender is under eighteen years of age or over seventy years old.
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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:
5. ALTERNATIVE CIRCUMSTANCES
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LESSON 2 CIVIL LIABILITIES OF A NURSE PRACTITIONER
In every case involving actionable negligence, there must exist three elements:
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.
2. Burns as a result of the negligent administration of hot water bags, heat lamps,
vaporizers, hot sits bath.
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.
DOCTRINE OF DEFENSE
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.
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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.
c. The accident must not have been due to any voluntary action or
contributions on the part of the plaintiff.
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”.
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.
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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.
• 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.
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LESSON 3 CRIMINAL LIABILITIES OF A NURSE PRACTITIONER
CRIMINAL LIABILITY
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).
Deliberate intent – includes two other elements without which there can be no crime
arising from the criminal act/ omission. These are freedom and intelligence.
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.
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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
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.
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.
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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. 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.
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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.
Requisites of a Contract
3. Object which is the subject matter of the contract must be specified such
as:
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
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Kinds of Contract
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.
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b. Those who do not comply with the Statute of Fraud
c. Those where both parties are incapable of giving consent to a
contract
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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.
CRIME – act committed or omitted in violation of law. Criminal offenses are composed
of two elements;
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.
a. freedom
b. intelligence
a. insanity
b. necessity
c. compulsion
d. accident
e. infancy
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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.
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;
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
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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.
1. Intentional abortion
2. Unintentional abortion
3. Abortion practiced by the woman herself or her parents
4. Abortion practiced by a physician or midwife
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defenders can also be criminally liable and can be penalized with imprisonment
from two years, four months and one day to six years.
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;
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
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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.
a. Neglect of a nurse to use the required skill and knowledge in the treatment
of patient.
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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.
Kinds of presumption
B. The nurse attended to him giving the diagnosis and administering the
treatment
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EVIDENCE THAT A PARTY – DEFENDANT SHOULD PRESENT FOR
HIS/HER DEFENSE.
B. That he/she exercises due care and diligence while attending to the patient
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?
3. At the start of employment get a copy of the agency’s rules, regulations and policies
5. Accept only such responsibility that is in the scope of your employment and your
job description
7. Determine whether your subordinates are competent in the work you are assigning them
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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
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
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.
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• 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
1. State and discuss four causes of errors committed by nurses and give one
example each.
2. How it happened
3. Conclusion
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5. Design a training program that will highlight the development of a legally
competent and accountable nurse.
7. How can we establish a legally, morally and ethical conscience in our nurses?
MODULE FIVE
INSTITUTIONAL AND COURT TRIALS
SPECIFIC OBJECTIVES
• 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
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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.
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.
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writing, records, or other memorials. Testimony is a kind of evidence which is
presented either in writing or verbally.
B. Rules of Admissibility
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.
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:
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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.
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.
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SECONDARY EVIDENCE is that which is inferior to primary evidence, and which
upon its face shows that better evidence exists.
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;
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
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is tangible evidence presented to the trial of the facts for inspection as relevant to an
issue in the case. Examples; Guns, bullets, contracts…
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.
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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
FACTORS TO CONSIDER
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.
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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.
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
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
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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.
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.
(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.
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(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.
This lesson presents two systems: The Philippine court system and the American
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
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Court serves as summon of the defendant
Defendant may file a motion for dismissal or Plaintiff may drop the lawsuit
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.
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.
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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.
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.
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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.
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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.
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
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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:
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.
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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.
LEARNING ACTIVITIES
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.
1. The case
65
2. How it occurred
3. Circumstantial evidence
4. Conclusion
BIBLIOGRAPHY
BOOKS
Apostol, Sergio. Essential of Evidence. Control Lawbook Publishing Com. Inc. 1991
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
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.
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
2. Civil Service Laws and Rules (Book V of Executive Order No. 292)
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3. Journal of Nursing Administration 1990-1999
9. The New Rules of Court in the Philippines 1964 Edition – M. Colcol and Co. Inc.
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