NURSING LAW AND JURISPRUDENCE

DEAN REYNALDO M. ADDUCUL

MEDICAL COLLEGES OF NORTHERN PHILIPPINES

Jurisprudence on fault and negligence

Basically, a nurse can be considered at fault in the practice of the nursing

profession when his/her action is contrary to what should have been done to the
patient. He/she is considered negligent when there is failure in observing the
necessary protection of interests and wellness of the patient—the degree of care,
precaution and vigilance which circumstances demand, whereby such patient
suffers an injury or even death. Fault or negligence covers not only the acts
criminal in nature whether intentional, or voluntary or negligent, but also the acts
not punishable by law, it is a legal wrong which could result to multiple lawsuits
and enormous legal liabilities for nurses.

Jurisprudence on negligence test.

As prevention is the best cure in medicine, it is the best defense in law. It

is thus incumbent upon every nurse to observe the necessary prudence and
precaution in the exercise of his/her nursing interventions. Otherwise, he/she
could be held legally responsible for his/her negligence. Indeed, negligence may
be criminal or not criminal. It is criminal when it results to a crime. It is not
criminal when it either contractual or quasi-delictual.

The case of Picart vs. Smith provides the basic test of liability for
negligence, as follows: “would a prudent man, in the position of the person to
whom negligence is attributed, foresee harm to the person injured as a
reasonable consequence of the course about to be pursued? If so, the law
imposes duty on the actor to refrain from the course or take precautions against
mischievous results, and the failure to do so constitutes negligence. Reasonable
foresight of harm, followed by ignoring of the admonition born of this provision, is
the constitutive fact of negligence.

Sources of nursing law and jurisprudence

2 general divisions of law:
a. natural law
b. positive law
i. divine law
ii. human law
a. general or public law –includes international law,
constitutional law, administrative law, criminal law, and
religious law.
b. individual or private law – includes civil law, mercantile
law and procedural law.

APPLICABLE LAWS ANG JURISPRUIDENCE IN NURSING PRACTICE

1. CONSTITUTIONAL LAW – that branch of science of law which treats of
the nature of constitutions, their adoptions and amendments, their
construction and interpretation, and of the validity of legal enactments as
tested by the criterion of their conformity to the law of the land. It is thus
about the constitution which is the supreme law od the land.
a. Cumulative or evolved
b. Written or unwritten
c. Rigid or flexible
 2. CRIMINAL LAW – that branch of law which defines crimes, treats of their
nature and provides for their punishment.
Criminal law covers offenses resulting to injuries or death of the patients.
In the prosecution of a criminal offense resulting to injuries, the court is very
particular with the following features of injuries:
a. nature
b. location
c. size, shape and incursion
d. color
e. number
f. other appearances

Regarding the death of patient, the manner of death is an important issue

in court. Among the classifications of death are:
a. natural – which is a death due to disease/s or senility
b. suicide – which is self-inflicted
c. homicide/murder/parricide – which is due to actions of other persons
d. accident – unforeseen events or due to recklessness without intention
to do harm
e. undetermined – which is a death of unknown cause.

The useful pieces of evidence for the criminal offenses resulting to injuries
or death of the patients are:
a. body
b. objects on or with the body
c. injuries sustained
d. tissues and body fluids
e. other medical evidence or findings

These are among the things in nursing jurisprudence that nurses should
understand because death and injuries are common occurrences in the hospitals
not only with regard to the patients in care but also the patients brought to the
hospital for immediate care or the emergency patients on the verge of life or
death. Chances are, nurses may be called on to testify on the matter of injuries
or death of the patients. Hence, nurses should know and understand criminal law
and jurisprudence on the matter.

The principal legal document in the study of criminal law in the Philippines
is Act. No. 3815, as amended, otherwise known as the Revised Penal Code
(RPC), which was approved on December 8, 1930. The RPC is the law that
defines crimes, treats of their nature and provides for their punishment.

3. CIVIL LAW – that branch of law that pertains to the “organization of the
family and the regulation of property. It has been defined as the mass of
precepts which determine and regulate the relations of assistance,
authority and obedience among the members of a family, and those which
exist among the members of a society for the protection of private
interests.
4. LABOR LAW – is that branch of law that governs and regulates the
relationship of employers and employees. It is broadly divided into
LABOR STANDARDS AND LABOR RELATIONS.
5. ADMINISTRATIVE LAW – is that branch of modern law under which the
executive department of the government , acting in a quasi-legislative or
quasi-judicial capacity, interferes with the conduct of the individual for the
purpose of promoting the well-being of the community, as under laws
regulating
DEFINITIONS

LAWSUIT – refers to any action, complaint, charge, case or legal proceeding

brought before the court of law, tribunal or quasi-judicial body, in which the party
commencing the case seeks a legal remedy. It is initiated by any person who is
called the plaintiff in civil action or the complainant in other lawsuits, against
another who is called the defendant in civil actions or the respondent in
administrative case or the accused in criminal cases.
For clarity, the following words are interchangeably used in this work:
a. charge
b. action
c. case
d. complaint
e. and lawsuit.

The three basic lawsuits are

A. CIVIL – plaintiff against the defendant
B. CRIMINAL – the people against the accused
C. ADMINISTRATIVE – the complainant against respondent

LIABILITY – an obligation or duty which is owed by one person to another to

refrain from some course of conduct injurious to the latter or to perform some act
or to do something for the benefit of the latter and for breach of which the law
gives the remedy to the latter as damages, restitution, specific performance,
and/or injunction. It is simply the legal responsibility for acts or failure to act
according to standards, protocols or policies of the hospital, resulting in another
person’s injury or death. Simply, it means legal accountability or obligation to pay
money, do or refrain to do something, and/or serve penalty as adjudged by the
court or administrative body.

LEGAL DOCTRINE – it is a generally accepted principle of law which is being

used or applied in the resolution of cases, be it administrative, civil, or criminal. It
may also be referred to as jurisprudence particularly when legal doctrine or
principle is established pursuant to a judicial decision.

Legal liabilities in Nursing Practice

Sources of civil and criminal liability

The civil liability of nurses may arise from:

a. contracts
b. torts
c. crimes

The civil liability from CONTRACTS occurs when a nurse commits fault or
negligence resulting to a breach of contract to provide and tender safe nursing
services to the patients.
The civil liability from TORTS takes place when a nurse commits a negligent act
or fault sans any contractual relations.
The civil liability from CRIMES arises when a nurse commits a crime.
KINDS OF CIVIL LIABILITY

a. ACTUAL OR COMPENSATORY DAMAGES

b. MORAL DAMAGES
c. NOMINAL DAMAGES
d. TEMPERATE OR MODERATE DAMAGES
e. LIQUIDATED DAMAGES
f. EXEMPLARY OR CORRECTIVE DAMAGES

LAWSUITS IN NURSING PRACTICE

The three basic lawsuits or legal actions in nursing practice in the Philippines are:
a. CRIMINAL
b. CIVIL
c. ADMINISTRATIVE

2 KINDS OF CRIMINAL NEGLIGENCE

a. RECKLESS IMPRUDENCE – consists of doing or failing to do an act resulting

to injuries or death due to an inexcusable lack of precaution.
b. SIMPLE IMPRUDENCE – a mere lack of precaution in a situation where
threatened harm is not immediate or the impending danger is not openly visible
or manifest.

OTHER CRIMINAL ACTIONS/OFFENSES

The intentional felonies which nurses could frequently encounter, but not
necessarily commit, in the practice of their profession are:

1. PARRICIDE – is deemed the highest form of destruction of human life. It is

committed when one kills his father, mother or child, whether legitimate or
illegitimate, or any of his ascendants or descendants, or his spouse.
2. MURDER – is the crime committed by a person who kills another, other
than his father, mother or child, whether legitimate or illegitimate, or any of
his ascendants or descendants, or his spouse, which killing is attended by
treachery, abuse of superiority, employment of means to weaken the
defense, evident premeditation, cruelty, price, reward or promise and other
qualifying circumstances enumerated in Art. 248 of the RPC.
3. HOMICIDE – is the killing of any a human being which is neither parricide
nor murder. In the absence of any proof as to how the victim was killed,
the crime should be characterized as homicide. (Art 249, RPC)
4. INFANTICIDE – is the killing of any child less than three (3) days old,
whether the killer is the parent or grandparent, or any relative of the child
or even a stranger (Art 255, RPC)
5. ABORTION – is either intentional or unintentional. INTENTIONAL
abortion, the intent to abort is present because the offender acted
purposely to expulse the fetus to bring about the abortion.
UNINTENTIONAL abortion is not intended but the violence inflicted upon
the pregnant woman is intended. However, if the violence is the result of
negligence, imprudence, lack of foresight or lack of skill and out of that
fault, abortion resulted, the crime of unintentional abortion through
reckless imprudence is committed. Physicians and midwives who cause or
assist in causing abortion have more severe punishment because they
make use of their knowledge in the destruction of human life, where it
should be for its preservation. (Art 258, RPC)
 6. RAPE – is said to be the most detestable crime. It is now classified into
two:
a. the TRADITIONAL WAY – which is committed through carnal
knowledge of a woman against her will and the offended party is a
woman and the offender is a man
b. SEXUAL ASSAULT which is committed when: 1. the penis is
inserted into the anal orifice of a male of female; 2. an instrument or
object is inserted into the genital or oral orifice, thus the offender or
the offended party can either be a man or a woman (Art 266-A,
RPC; R.A. No. 8353).

7. SEXUAL HARASSMENT – is committed in the work place, school, or

training environment, by someone who has authority, influence, or moral
ascendancy over the victim. Punishment is detailed in R.A. 7878. it is
committed by the former who demands, requests or otherwise requires
any sexual favor from the latter, regardless of whether such demand,
request or requirement for submission is accepted. (Sec 3, R.A. 7878)

8. MUTILATION – is the lopping or clipping off of some parts of the body

resulting to the deprivation, whether totally or partially of some essential
organs for reproduction. One important kind of mutilation is castration, that
is, mutilation of organs for generation such as penis or ovary to deprive
the offended party of some essential organ for reproduction (Art 262,
RPC)
9. PHYSICAL INJURY – is committed when a person wounds, beats, or
assaults another resulting to serious, less serious or slight physical
injuries. One of the basic parameters for this crime is the number of days
that the offended party is incapacitated for labor.
a. SLIGHT PHYSICAL INJURY - If the incapacity for labor lasted from
one to nine (9) days or the offended party required medical
attention during said period.
b. LESS SERIOUS PHYSICAL INJURIES – from 10 days or more
c. SERIOUS PHYSICAL INJURIES - more than 30 days

ADMINISTRATIVE IN NURSING PRACTICE

FOUR WAY TEST:
1. The selection and engagement of the employee
2. the payment of wages
3. the power of dismissal
4. the power to control the employee’s conduct
 Administrative Cases

Administrative Case against Nurses

Government Private

Civil Service Law Labor Laws

JURISPRUDENCE IN NURSING PRACTICE

Nursing jurisprudence is generally understood as a collective term denoting the

course or established decisions of the Supreme Court relating to the nursing
discipline and profession. It is also called in nursing, as opposed to nursing
legislation.

JURISPRUDENCE ON NEGLIGENCE, CONTRACTS AND WILLS

SOMERA CASE

Notably, it is the primary duty of nurses in this country to execute the legal
orders of physicians concerning treatment and medications. But this is not
mechanical act or duty of nurses. Every nurse must exercise caution and sound
discretion in carrying out the doctor’s orders. He/She has the right to decline an
order of the physician if it is a mistake or in his/her honest and reasonable
judgment, will endanger the life of the patient and make him/her liable for
damages. Thus, he/she must only follow the physician’s legal orders, which are
well within the scope of his/her functions and in accordance with law, established
standards and protocols.

Also nurses cannot definitely diagnose, treat, operate, or prescribe any

remedy for human diseases or ailments of the patients, whether physical or
mental. They also cannot prescribe drugs to the patients because prescriptions
can only be made by medical, dental and veterinary practitioners pursuant to
R.A. 6657. Their nursing actions or interventions must not be contrary to law,
public order, policy and morality. Otherwise, they are attracting or openly inviting
lawsuits and making themselves overtly liable for negligence or imprudence.

MALPRACTICE IN NURSING.

MALPRACTICE has been defined as the improper or unethical conduct by a

professional conduct by a professional, resulting in harm, injury or death of
another person.
 ELEMENTS OF MALPRACTICE
5. DUTY
6. BREACH
7. INJURY
8. PROXIMATE CAUSATION

The DUTY of a nurse to employ his/her training, care and skill in the care of the
patient commences at the time his/her employment is engaged by the patient.
The BREACH of these professional duties, of skill and care, or their improper
performance by nurse resulting to DAMAGE or INJURY to the body or health of
the patient constitutes an actionable nursing malpractice.
Finally, the PROXIMATE CAUSATION in nursing negligence can be divided into
2 inquiries: 1. whether the nurse’s actions, in fact, causes harm to the patient;
and, 2. whether these are the proximate cause of the patient’s injury.

PROXIMATE CAUSE – is that which, in natural and continuous sequence,

unbroken by any efficient intervening cause, produces an injury, and without
which the result wound not have occurred. It is that adequate and efficient cause
in the natural order of events, and under the particular circumstances
surrounding the case would naturally produce the event.

CONTRACTS AND WILLS

CONTRACT – it is a meeting of minds between two persons whereby one binds

himself with respect to the other, to give something or render some service. It is
an agreement which creates a valid legal obligation.

WILL – is an act whereby a person is permitted, with the formalities prescribed by

law, to control to a certain degree the disposition of his/her estates or properties,
to take effect after his/her death.
2 kinds of Will:
a. NOTARIAL WILL – requires, among other things, an attestation clause,
and an acknowledgement before a notary public.
b. HOLOGRAPHIC WILL – one which is entirely written, dated and signed
by the testator. It does not need any attestation or acknowledgement.

JURISPRUDENTIAL DOCTRINES IN NURSING PRACTICE

1. BONUS PATER FAMILIAS AND RESPONDEAT SUPERIOR

Bonus Pater Familias – Diligence of a Good Father of a Family
Respondeat superior – “let the master or superior answer” or “let the principal
answer for the acts of his agents”

2. DOCTRINE OF NEGLIGENT CONDUCT. Under this doctrine, the nurse is

liable for damages or injuries to the patient as a result of negligent performance
or non-performance of the nurse’s obligation in the hospital.

3. DOCTRINE OF RES IPSA LOQUITUR and COMMON KNOWLEDGE

Res ipsa loquitur is a latin phrase which literally means “the thing speaks for
itself”
 To use this principle in a negligence case, the plaintiff must prove that:

a. the harm would not ordinarily have occurred without someone’s

negligence
b. the instrumentality of the harm was under the exclusive control of the
defendant at the time of the likely negligent act; and
c. the plaintiff did not contribute to the harm by his own negligence

The famous example of this doctrine is the scalpel left behind, in which a doctor
left a scalpel in the stomach of the patient after an appendectomy.

4. DOCTRINE OF DAMNUN ABSQUE INJURIA

Means that “although there was physical damage there was no legal injury” it
simply means that even if a victim suffered physical injury, the same is not
considered “legal injury” which entitles him to recover for damages.

5. DOCTRINE OF FORCE MAJEURE

It refers to an event which cannot be foreseen, or which being foreseen, is
inevitable. The intervention of irresistible force in any nursing action that causes
damage or injury to a patient may free or exempt a nurse from any criminal
liability if he/she can show that he/she exercises due care and diligence in the
performance of his/her function.

6. DOCTRINE OF STARE DECISIS.

Stare decisis et non quieta movere literally means “stand by decisions and do not
move that which is quiet”

7. PRINCIPLE OF NOLO CONTENDERE. It is a latin legal phrase for “I will not

defend it.” It is a plea of no contest, which has the effect of plea of guilty in some
jurisdictions because it is considered as an admission of guilt for a crime
charged.

8. PRINCIPLE OF
MALFEASANCE –is the performance of some act which ought not to be done.
MISFEASANCE – is the improper performance of some act which might lawfully
be done.
NONFEASANCE – is the omission of some act which ought to be performed.

9. DOCTRINE OF INFORMED CONSENT – it consist of two parts:

1. INFORMATION. There must be full disclosure by the physician

or nurse of the facts surrounding the disease and the
physician’s treatment of the client so that the client (patient) can
have full comprehension of the same.
2. CONSENT. Then requisite is voluntary consent of the client.
This doctrine is based on the principle of dignity, respect for the
rights and autonomy of every individual patient.

The basic elements of informed consent are as follows:

a. the consent must be voluntary
b. the patient has legal capacity to give consent
c. the patient has sufficient understanding of the situation
d. the patient must make an enlightened decision.
Strict compliance with the said requisites means less or no liability at all.
 Consent may be either EXPRESS or IMPLIED.

ADMINISTRATIVE CONSENT – given by the chief house officer of the day or

physician in charge of the hospital during trauma and emergency cases.

10. DOCTOR’S ORDER RULE – the physician’s order or prescription may be

made verbally or in writing.
In the Philippines, a verbal order must be taken and followed with caution,
if it cannot be avoided in cases of emergency treatment or medical attention, or
upon direct order and the performance is to be done in the presence of a
physician. It can also be made in person or by phone.
The following are the basic standards of clinical nursing practice as
regards to taking orders through the phone:
a. have another nurse listen on the phone as a witness, who then initials the
order for verification of accuracy
b. repeat the order aloud to the physician and ask, “is that correct?”
c. document the order when said doctor arrives at the hospital.

NURSE AS A WITNESS RULE

Two kinds of witness
a. ORDINARY WITNESS – is one who can testify as to the conditions or
circumstances present in the issue or surrounding the case
b. EXPERT WITNESS – can testify on the issue by giving his opinion or
advice from the facts presented.

LEGAL ADVICE TO NURSES

The Philippines deserves competent, professional and effective nurses.

These are nurses who possess not only sufficient knowledge in the practice of
nursing profession, but also the necessary clinical skills and expertise in actual
nursing intervention in order to deliver and provide holistic and excellent health
care for the patients. Indeed, it is never enough to just obtain a four-year
Bachelor of Science in Nursing (BSN) degree and become a Registered Nurse
(RN). Apart from continuing education – updating of knowledge and honing of
clinical skills and expertise, the nurses, as among those who practice the primary
health care profession and offer health care services to the public should know
and understand all the challenges to the nursing profession and the laws
affecting its noble exercise. If by lack of knowledge of the law and jurisprudence
a nurse causes injury, pain or damage to the patient, one or more lawsuits or
complaints for damages arise and be lodged against him/her, which could make
him/her susceptible to be deemed legally responsible. As the popular legal
dictum states, ignorance of the law excuses no one from compliance therewith
(ignorantia legis neminem excusat).

Nevertheless, for nurses, law is not everything. Nurses apply the law and
jurisprudence when they need to, usually in times of legal trouble with the patient
or the hospital as employer. Remember, you are nurses, not lawyers, anyway. It
is your clinical skills, knowledge and expertise in the nursing practice that could
make or unmake your nursing career. It is to be exercised 24/7. through clinical
skills, knowledge and expertise, the goals of total quality care of the patients and
the advancement of nursing practice can be easily achieved.