Theme 7

LAW

Theme 7
At the end of the end of the theme, the student should be able to: Discuss the concepts of Law Identify the basic structure of Law in Fiji Outline the type of Law in Fiji Discuss the specific factors of Law that pertain to Nursing [torts,consent,assault and Negligence] Define Vicarious Liability

Structure of Fiji Legal System

Structure of the Legal System in FIJI Follow the Commonwealth-England Democratic Government Parliament-Makes Law Court-Interpret Law Administration-Public Service Commission and the Government Ministries

Legal System
Supreme Court Higher court-No appeal Court of Appeal High Court Above $50,000.00

Magistrate- Compensation Less than $50,000.00 Tribunal for small claims

Legal actions -2 kinds

Civil or private actions Deals with relationships between individuals in society [Concern to nurses-torts and contracts] Criminal action Deals with disputes between individuals and the society

Differences
Potential outcome for the defendant If found guilty in civil action e.g. malpractice the defendant will pay a sum of money Criminal action the defendant may lose money, be jailed or be executed. Nurse can lose license Action of lawsuit is called litigation

Duty
Describes the relationship between the plaintiff [the person bringing suit] and the defendant [the person being sued]. Nurses have a duty to care for the clients. Breach of duty Is the failure to conform to the standard of practice Thus creating a risk for a person That a reasonable would have foreseen

Breach of duty
may be charged When a nurse fails to meet standard of any relevant professional In which the nurse is employed. The nurse may be accused of breach of duty whenever reasonably accepted standards of nursing care are not met e.g. failure to make a proper nursing assessment or diagnosis is a breach of the standard of care

Damages

For a plaintiff to prevail in a malpractice suit The plaintiff must have suffered damages Purpose of the suit is to compensate for these damages eg pain and suffering, disfigurement and disability Liability Denotes legal responsibility to pay damages When the 4 elements of negligence are proven ie The nurse s breach of duty owed to the client was the proximate cause of injury to the client The nurse can be found liable-the hospital clinic may be held responsible for nurse s negligence under the doctrine of respondent superior - let the master answer

Damages
When injury resulted from someone s negligence but it is impossible to Prove who was at fault the doctrine of res ipsa loquitur - the thing speaks for itself Must be proven The defendant e.g. nurse doctor must have control of the instrumentality causing the injury The injury must be as such that it would not normally occur in the absence of negligence The client[plaintiff] did not voluntarily create the injury [Retained surgical sponges/instrument are typical res ipsa loquitur cases]

Vicarious Liability
Is a common law concept Serves to shift the financial responsibility from the individual who has been found liable for the damage To another individual or entity that has a greater financial capacity to bear the loss. Recognition that the employer will be financially more capable than the employee of meeting the cost of compensating the plaintiff. Doctrine of vicarious liability transfer the responsibility for compensating the patient s damages from the health professionals to the employer who will be either a hospital etc

Vicarious Liability
The doctrine applies Employee in the course or scope of his or her employment negligently injures a patient An employer is vicariously liable for the torts of the employees Assumes no liability for independent contractors The two tests; Is the negligent individual an employee Did the negligent conduct occur within the course and scope of the employment

Laws affecting Nurses

Category Statutory Examples Nurse practice acts Living wills Sexual harassments law Homicide manslaughter Theft Arson Active euthanasia Sexual assault Illegal possession od controlled drugs

Criminal [public]

Law affecting Nurses

Contracts [private/civil] Torts [Private/civil] Nurse and the client Nurse and employer Nurse and Insurance Negligence Invasion of privacy Assault and battery False imprisonment Libel and slander

Civil Law-Tort
Civil wrong committed against a person or person s property Person claimed to be responsible for the tort sued for damages Always based on fault something is done incorrectly [act of commission] or something should have been done but was not done [act of omission]

Tort
Intentional and Unintentional Common Intentional Torts

1.Assault - Is the threat of touching another without his or her consent

2.Battery
Actual carrying out of a threat [unlawful touching of a person s body] A nurse may sued for battery fail to get consent for a procedure-nurses resuscitate a client who had expressed wishes NOT to be resuscitate Or gave an injection without the pt s permission or consent-the nurse is committing battery Even though the doctor ordered the medications. Patient will benefit from the administration of the medication The nurse is still liable

3.Defamation of Character
Includes false communication that results in injury to a person s reputation by means of print[libel] or spoken word [slander] The nurse is permitted to make statements about clients only as part of his or her nursing practice and only within the limits provided by the law.eg disclosure of a false AIDS diagnosis may constitute defamation of character

4.Fraud
Willful, purposeful misinterpretation of self or an act may cause harm to a person or property. A nurse who misinterprets his or her qualifications Or bills for care not given may be committing a fraud.

5.Invasion of privacy
The nurse is bound to limit discussion about a client to appropriate parties. Disclose confidential information to an inappropriate 3rd party Subject the nurse to liability for invasion of privacy Even if the information is true Discuss with others for treatment and care only When the client consent to disclosure

Examples of Invasion of privacy

Use of client s name or picture for sole advantage of health care provider Intruding into the client s private affairs without permission Giving out private client information over the telephone Publishing information that misrepresent the client s condition

Breach of confidentiality
Client s trust and confidence are violated by public revelation of confidential of privileged communication without Privileged client information can be disclosed only upon authorization by the client the client s consent.

6.False Imprisonment
Prevention of movement or unjustified retention of a person without consent may be false imprisonment A client cannot be forced to remain in the healthcare facility against his or her will If client refuses - will have him or her to sign

Unintentional
1.Negligence Act of omission [neglecting to do something that a reasonably prudent person would do] or commission [doing something that a reasonably prudent person would not do]

Malpractice
Is negligence that occurred while the person was performing as a professional. Applies to physician dentists lawyers and sometimes nurses

Nursing Negligence
4 elements MUST be present for a case of nursing negligence or malpractice to be proven 1.The nurse has a working relationship with the client[duty] 2.The nurse fails to uphold the appropriate standard of care [breach] 3.The client must have suffered harm ,injury or damage [harm] 4.The harm has to be a direct result of the nurse s failure to provide appropriate care .[causation]

Nursing negligence
The employers may be held liable for negligence if they fail to provide adequate human and material resources for nursing care, To properly educate nurses on the use of new equipment Or procedures Orient nurses to the facility

Malpractice
Cases generally that kind of civil cases that involve nurses. A client or family member sues the nurse or the nurse s employer for malpracticebecause of the claim of client injury caused by nursing care.

Examples of nurses malpractice

Failure to question Dr s orders Leaving objects in patient during surgery Failing to assess failing to obtain consent Failing to take action for patient s safety Failing to do patient teaching

Nursing errors
Most common error Medications-e.g. if the client says No I haven t had a green tab before Burn elderly clients Decreased sensitivity to pain and temperature hot objects can burn these people before they notice it Fall result in injury

Errors
Ignoring client s complaint-acute abdomen painruptured appendix-the nurse is negligent and may be found guilty of malpractice Fails to check vital signs- and dressing of patient who just had surgery-omit important assessment bled to death - the nurse may held responsible for the death as a result of malpractice Giving drugs to wrong client-not checking the ID of the client

Vicarious Liability
Is a common law concept Serves to shift the financial responsibility from the individual who has been found liable for the damage To another individual or entity that has a greater financial capacity to bear the loss. Recognition that the employer will be financially more capable than the employee of meeting the cost of compensating the plaintiff.

Vicarious Liability
Doctrine of vicarious liability transfer the responsibility for compensating the patient s damages from the health professionals to the employer who will be either a hospital etc The doctrine applies Employee in the course or scope of his or her employment negligently injures a patient An employer is vicariously liable for the torts of the employees Assumes no liability for independent contractors

Nurses Must
understand the legal and professional boundaries of daily nursing practice: Understanding combine with Good judgment Clinical skills Ensure safe/appropriate nursing practice