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Medico - legal Aspects

Law
Ordinarily the term Law means a body of rules to guide human action. Definition: The law is a system of rights and obligations which the state enforces.
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Law-Definition:
Definition: Defined as the sum total of rules and regulations by which a society is governed, law is created by people and exist to regulate all persons
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Medico legal issues


Any case of injury or ailment where some criminality is involved is called Medico legal cases(MLC) It is legal presumption that medical officer is

capable of identifying such cases.


Medico legality is judged by the history furnished

by the patient coupled with the finding in the


physical examination

Medico legal issues and emergency department


Following categories of cases coming to casualty or brought to casualty are to be labeled as medico legal: 1. Cases of injuries and burns, circumstances of which make it probable that someone has committed an offence 2. All cases of suspected or evident poisoning or intoxication 3. All vehicular, factory or unnatural accident cases, where there is likely hood of patients death 4. Suspected or evident criminal abortions 5. Suspected or evident sexual assault 6. Unconscious cases where its cause is not clear or not natural 7. Cases brought dead with improper history, creating suspecion of an offence 8. Cases referred from court or otherwise age estimation

Disposal of medico legal cases


a) The above cases, whether brought by the police or somebody else , must be labeled as medico legal in casualty department, if not registered else where. b) Request of the patient or the accompanying relatives or friends for not registering the case as medico- legal, should not be agreed c) Any case among the above list even if brought several days after the incident, shall be registered as medico-legal and an opinion regarding the case be given according to the present condition of the patient d) A fresh medico- legal report may not be prepared if the case brought had been registered as medico- legal in some hospital e) Treatment in all medico- legal cases takes precedence over medico- legal formalities especially when the condition of the patient is serious

Procedure of medico legal cases


All medico- legal cases are supposed to be register and then
inform to the police. Appropriate prescription forms are to be filled for preparing medico legal reports. In such cases, identification data, date and time of arrival, date and time of examination, name and address of the attendant of the patient is to be recorded in each and every case. Specimens relevant to the case should be properly sealed, labeled and send for investigation, eg: in a stabbed victim the

injury should be encircled, signed and then the specimen should be


handed over to the police in a sealed cloth parcel.

Negligence And Malpractice

NEGLIGENCE
Negligence is the failure/ omission of an individual to do something which a

reasonably prudent person would do, or doing something which a prudent & reasonable man would not do.

NEGLIGENCE
In other words negligence is conduct that falls
below the standard of care which is established by the law for the protection of others against unreasonable risk or harm It is characterized chiefly by inadvertence,

thoughtlessness or inattention

What constitutes deficiency in service or negligence


Deficiency of service means any fault, imperfection, shortcoming or inadequacy in the quality, nature

and manner of performance which is required to be


maintained

What constitutes deficiency in service or negligence Reaction of injection Patient left unattended while there were complications.

Leaving patient in care of unqualified compounder.


Foreign material left inside during operation

Death during operation.


Post operative care.

Refusal to admit the patient.

What does not constitute deficiency in service or negligence Performance of duty to the best of ability. Adopting one out of two recognized schools of medicine. Complainant failed to establish deficiency in service. Patient having some medical history. Patient of heart attack.

Common problems for which the nurses are often found negligible are
1. Failure to use aseptic technique where required 2. Leaving a foreign object in a patients body during surgery, ie: errors in sponge, instrument or needle count in surgical cases 3. Failing to respond promptly to patient symptoms of impending disaster 4. Failing to protect an infirm patient from falling 5. Administering wrong medicine to a patient 6. Administering a medication inappropriately, IV therapy, errors resulting infiltration or phlebitis 7. Administering a care in such a manner that a patient suffers injury, eg improper handling of hot water bags burn to patient.

NEGLIGENCE
If nurses give care that does not meet the standards, they may be held liable for negligence.

Nurses are responsible for performing all procedures


correctly and exercising professional judgement as they carryout doctors orders and duties not ordered by for which they have authority. Any nurse who does not meet accepted standards of

practice or care or who performs duties in a careless


fashion, runs a risk of being found negligent.

Hospital and its negligence


It is not only the medical practitioner who may be found negligent, the hospitals are also bound by the

law and in certain circumstances the hospitals are also


found negligent or deficient in services.

Malpractice
Malpractice is a negligence or carelessness by a professional person. So, it concerns professional action and in the failure of a person , with professional education and skill to act in a reasonable and prudent manner. In other words , it is unreasonable professional conduct, lack of skill or fidelity in professional duties, evil practice or illlegal or immoral conduct.

Six elements of malpractice suit


1. The nurse(defendent) owed a duty to the client(the plaintiff), ie. There should be an evidence that the nurse owed a duty to the client ,eg: failure to monitor clients response to treatment 2. Breach of the duty of care owed to the patient, ie. There should be an evidence that the nurse failed to meet the prevailing standards of care. e.g. failure to communicate change in status to other care provider

Six elements of malpractice suit


3. Foreseeability not maintained: Foreseeability include the concept that certain events may reasonably be expected to cause specific

results. For example, in children wards, falling of children from


bed is common, i.e. There should be an evidence that the client suffered due to lack of foreseeability by the nurse 4. Evidence of causation which means that the nurses action or lack of action directly caused harm to the patients and not

merely that patient had some type of harm. So there should be an


evidence that nurses failure to meet their duty are likely to cause client injury, i.e failure to provide patient education

Six elements of malpractice suit


5. Evidence that nurses failure was direct cause of client injury, e.g. if a client falls 6. There should be an evidence of damage. Damages are valid as malpractice which is intentional and unintentional.

Measures to overcome malpractice


Follow standard of care, give competent health

care, and develop an empathetic interpersonal


relationship with the client

Follow careful and accurate documentation


Be up to date with current practices Be sensitive to common sources of clients injuries like fall

Legislations And Regulations Related To Critical Care

Legal safeguards in nursing practice


Licensure Good Samaritan law Good rapport Standards of care Standing orders Contracts Consent for operation and other procedures Correct identity Counting sponge, instruments and needles Drug maintenance Professional confidence Documentation

Legal safeguards in nursing practice


Licensure: All nurses who are in nursing practice have to posses a valid licensure from State Nursing Council/INC

Good Samaritan law: In response to health care professionals


fear of malpractice claims, most states enacted Good Samaritan law that exempt doctors and nurses from legal liability when they render first aid during emergency. A nurse who renders assistance at an accident scene is to held same

standard of skill, competence and judgement that would be


applied to a reasonably prudent person with the same preparation.

Legal safeguards in nursing practice


Good rapport: Developing good rapport with the client is very important to prevent malpractice.

Standards of care: All professionals practicing in medical


field are held to certain standards when administering care. It is always better to follow standards of care to avoid

malpractice and do not attempt anything beyond the level of competence.

Legal safeguards in nursing practice


Standing orders: Nurses can apply standing orders in emergency. Administration must be documented by the

administering staff & should include include date, time of


administration, name of medication, dosage , reference to Standing Order and signature. The client assessment, treatment and, if necessary, any monitoring and follow-up must be documented in the clinical record. Issuing Doctor must countersign the charted treatment within 72 hours of administration

Legal safeguards in nursing practice


Contracts: It is a written or oral agreement between two people in which goods or services are exchanged. According

to Section 13 to the Indian Contract Act, Contracts the


word means saying that two or more person are said to

consent which they agree upon the same thing in the same sense. Treating a person with out obtaining consent can lead to a charge of assault (unwillful attempt or threat to harm another)and / or battery(unauthorized touching of a patient)

Legal safeguards in nursing practice


Drug maintenance : the two acts which control the use of poison in medicine are,

Misuse of Drugs Act 1971


Dangerous Drug Act 1965 & 1967 The act aims at checking the unlawful use of the drugs liable to produce dependence or cause harm if misused. Drugs affected by this act is referred to as controlled drugs.

Eg: Cocaine, Opium, Pethidine etc

Other Legal protection in nursing practice


1. Civil rights act (CRA)-1964 2. Americans disability act (ADA)- 1967 3. Occupational safety and health act (OSHA)- 1970 4. National labor relations act(NLRA)-1974 5. Sexual harassment- 1980 6. Individual express contract 7. Employees at will 8. Good Samaritan law 9. Age discrimination in employment Act(ADEA)- 1992 10. Health insurance portability and accountability act

Laws applicable to nursing practice


1. The right to refuse to treat except in emergency situation 2. The right to sue for fees

3. The right to add title or description to name


4. Unregistered practitioners are not allowed to hold

appointments in public or local hospitals 5. The Indian Penal Code states that poisonous drugs be kept in separate containers, properly labeled and marked.

6. There is a duty of secrecy to the patients records, it must be


treated as confidential unless the practitioner is called upon to give evidence in court

Laws applicable to nursing practice


7. Fundamental duties
a. To exercise a reasonable degree of skill and knowledge in treating patients b. Once a relationship to a patient has been established, there is an obligation to attend to the patient as long as necessary , unless the patient request for withdrawal or notice is given of intension to withdraw c. A practitioner must give personal attention to his cases and answer calls with reasonable promptness d. Children must be protected from harming themselves e. Special prevention must be taken in case of adult who are incapable of taking care of themselves

Laws applicable to nursing practice


8. Dangerous diseases must be reported 9. Nurses are considered solemnly responsible for their own professional act irrespective of the employing agency A fine is the usual penalty imposed for disobeying the law stated above, although imprisonment also is possible.

Consumer Protection Act (CPA)

Consumer Protection Act


Health care delivery system has grown up into an industry today and health service consumers are better informed than in the past about health and

illness. Through newspapers, magazines, televisions


and other multimedia more information is available to the consumer

Consumer Protection Act


Many of them are aware of their rights and demanding a voice and partnership in the delivery of health care services. Years ago, heath care professionals especially physicians were considered as all knowing experts. Very few patients questioned them. Now consumers of health care are demanding to have a say in matters affecting their health care.

Consumer Protection Act


As consumers have become more aware of their rights, conflicts between patients and health care professionals and institutions have developed. Nursing is affected by this kind of situation in which nurses are also expected to answer questions, explain procedures and respect this rights and request of the patient. Nurses are challenged to become advocates for clients

Consumer Protection Act


An act to provide better protection of the interests of the consumers and for that purpose to make provisions for establishment of consumer councils and other authorities for the settlement of consumers

dispute and for matters connected therewith.


It is enacted by the Parliament in 1986, has been

drastically amended and its scope is greatly widened by


the amendment of 1993.

THE ACT
Section 2 of the act
Consumer means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised.

Section 2 of the act


Service means service of any description which is made available to potential users . Health care services will be service, if they are obtained for consideration.

Section 2 of the act


and that in the event of any deficiency in the performance of such services , the aggrieved party can invoke the remedies provided under the act by filing a complaint before the consumer forum having

jurisdiction.

ADVANTAGES OF CPA OVER CIVIL COURT


1. Limited time is needed for decision and action (period of 3 months). 2. No court fee is payable

COMPLAINT & COMPLAINANT


Complaint: means any allegations in writing made

by a complainant .
Complainant: means

(a) a consumer
(b) any voluntary consumer association

Who can file a complaint


i.
The patient who hires the services of a medical practitioner can file a complaint.

ii.
iii.

It should be in writing .
No oral complains can be filed .

WHO IS LIABLE TO CPA


1. 2. 3. Doctors with independent practice Private hospital charging all. All hospital having free as well as paying patients, they are liable to both. 4. Doctors or hospitals paid by an insurance scheme for treatment of a client or an employer

for the treatment of an employee.

WHO IS NOT LIABLE TO CPA


Doctors in hospitals , which do not charge their patients.

Hospitals offering free services to all patients.

PROCEDURES FOR LODGING A COMPLAINT


The redressal agency have a three-tier structure. 1) District level : at this forum person can claim for compensation towards damage upto a maximum limit of Rs : 5 lakh . A district judge and 2 other members chair this of which one of whom shall be

a women.

(2) State level: At this level the claim for


compensation is enhanced to Rs: 5 20 lakhs & high court judge & 2 other members chair it. (3) National level: Here the compensation claimed is more than 20 lakhs .This forum constitutes of a

supreme court judge ,4 other members.

PROVISION FOR APPEAL


Within 30 days from the date of decision , appeal can be filed in the higher commision 1. Appeal against district forum before state commision . 2.Appeal against state commission before national commision. 3.Against national commission before supreme court.

PREVENTIVE STEPS AGAINST LITIGATION Precautions may be summarized as Dos & Donts SOME DOS -Mention your qualifications on the prescription. -Mention date & timing of consultation. -Mention age, sex, weight (child). -In complicated cases record history of illness & physical findings about the patient.

SOME DOS
-Avoid vague or nonspecific terminology. -Record history of drug allergy. -Mention additional precautions eg; food, rest. -In case of any deviation from standard care ,

mention reason .

SOME DONTS
-Do not hesitate to discuss the case with your colleagues. -Do not hesitate to discuss the case with patients or attendants. -Do not allow substitutions.

-Do not attent a patient if you are sick, exhausted or under


effect of alcohol. -Do not adopt experimental method in treatment

LIMITATION
Limitation period : the district forum ,the state commission or the national

commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen.

Bill of rights of a patient, Euthanesia

Clients Rights
Clients are protected by law (invasion of privacy) against unauthorized release of personal clinical data, such as symptoms, diagnoses, and

treatments.

Nurses, as well as other health care personnel, may


be held personally liable for invasion of privacy .

Litigation arise from the unauthorized release of


client data.

Clients Rights
Confidential information, however, may be released
with the clients consent. Information release is mandatory when ordered by a court or when state statutes require reporting child abuse, communicable diseases, or other incidents. Nurses have a legal and ethical responsibility to become familiar with their employers policies and procedures information. regarding protection of clients

Clients Rights
Medical records are the key written account of such client
information as signs and symptoms, diagnosis, treatment, and

responses to treatment.
These records contain important data for insurance and other expense claims and are used in court in the event of litigation. Health professionals are becoming more aware of the implications of clients rights as society in general becomes more aware of every human beings basic rights.

The Client Bill of Rights:


1. The client has the right to considerate and respectful

care.
2. The client has the right to obtain from his or her physician complete current information concerning diagnosis, treatment, and prognosis in terms the client can be reasonably expected to understand.

The Client Bill of Rights:


3. The client has the right to receive from the physician information necessary to give informed consent prior to the start of any procedure or treatment. . . . Where medically significant alternatives for care or treatment exist, or when the client requests information concerning medical alternatives,

the client has the right to such information to know the name of
the person responsible for the procedures or treatment. 4. The client has the right to refuse treatment to the extent permitted by law and to be informed of the medical consequences of his or her action.

The Client Bill of Rights:


5. The client has the right to every consideration of privacy concerning his or her own medical care program. 6. The client has the right to expect that all communications and records pertaining to his or her care should be treated as

confidential.
7. The client has the right to expect that within its capacity a hospital must make reasonable response to the request of a client for services.

The Client Bill of Rights:


8. The client has the right to obtain information as to any relationship of the hospital to other health care and educational institutions in so far as his or her care is concerned [ any professional relationships among individuals, by name, who are treating him or her. 9. The client has the right to be advised if the hospital proposes to engage in or perform human experimentation affecting his or

her care or treatment. A patient has the right to refuse to


participate.

The Client Bill of Rights:


10. The client has the right to expect reasonable continuity of care. 11. The client has the right to examine and receive an explanation of his or her bill regard less of source of

payment.
12. The client has the right to know what hospital rules and regulations apply to his or her conduct as a client.

Legal responsibilities of nurses

Legal responsibilities of nurses


1. Responsibilities of appointing and assigning: Ns administrator must be aware of the legal restrictions affecting

personnel appointment and assignment; she should screen the


staffs appropriately before appointing them. 2. Responsibility in quality control: Nurse administrator must ensure and report quality of nursing services. 3. Responsibility for equipment: To protect the patient and

employee from injury, the nurse manager must ensure that all
patient care equipments are fully functional and defective equipments are promptly repaired or replaced.

Legal responsibilities of nurses


4. Responsibility for observation and reporting

5. Responsibility for record keeping and reporting


6. Responsibility to protect the public

7. Responsibility for death and dying

Role of nurse in legal issues

Role of nurse in legal issues


The following are the leadership roles and managerial functions of a nurse manager in legal and legislative issues. He or she; 1. Serves as a role model by providing nursing care that

meets and exceeds accepted standard of care


2. Is current in the field

3. Reports substandard nursing care to appropriate


authorities

Role of nurse in legal issues


4. Fosters nurse/ patient relationships that are respectful, caring and honest, thus reducing the possibility of future lawsuits 5. Joins and actively supports professional

organizations to strengthen the lobbying efforts of

nurses in health care legislation


6. Practices nursing with in the area of individual

competence
7. Prioritizes patients rights and welfare first in

decision making

Role of nurse in legal issues


8. Demonstrates vision, risk taking etc in determining appropriate legal boundaries 9. Is knowledgeable while responding to legal issues related to nursing practice

10.Delegate to subordinates wisely


11.Understand and adhere to hospital policies and

procedures

Role of nurse in legal issues


12.Monitors subordinates 13.Uses foreseeability of harm in delegation and staffing decision 14.Increases staff awareness in legal issues 15.Provides educational and training opportunities for staff on legal issues affecting nursing practice

Records and reports

Records and reports


The medico- legal patients clinical record is a

brief account of the personal and medical history


of the patient, results of diagnostic tests, findings of medical examination, treatment and nursing care, daily progress notes and advice on discharge.

Records and reports


1. The records are kept under safe custody of the nurse
in each ward 2. No individual sheet is separated from the complete record 3. Records are kept in place, not accessible to patients and visitors 4. No stranger is ever permitted to read the record 5. Records are not handed over to legal advisors with out the written permission of the administration

Records and reports


6. All hospital personnel are legally & ethically obligated to keep in confidence all the information provided in the records

7. All records are to be handled carefully, careless handling can


destroy the records 8. All records are to be filed according to hospital custom, so that they can be traced easily. Records can be arranged Alphabetically

Numerically
Geographically

Records and reports


9. All records are identified with the biodata of the patient such as name, age, ward, bed no, OP no etc 10.Medico legal records are never sent out of the hospital with out the doctors permission.

Reference is made by writing separate sheets and


sending to the agency who requests for them Eg:

discharge summary

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