ELEMENTS OF

NEGLIGENCE

PLAINTIFF is a person who has been harmed in some

way and is seeking compensation.
- is the complaining party
DEFENDANT is the party who attempts to protect
himself from allegations.
- is the party that is being accused of doing harm to
another.
- A defendant is not always an individual. In some
cases, it can be a company or a government.
BURDEN OF PROOFrefers to the duty of a party
making allegations to substantiate them with
evidence that is admissible in court.

When
would
a
nurse face an
allegation
of
negligence?

Medical Malpractice general term used when a

medical practitioner (Doctor) or an allied medical
practitioner (Dentist, Nurse, Medical Technologist)
KNOWINGLY deviates from the standard practice of
medicine

Medical Negligence specific term used when a

medical practioner does not exercise due diligence
and standard care required of him thus resulting to
injury to the patient. Usually connotes accidental or
unintentional injury.

What is negligence?

Negligence is the failure to take the care

that a reasonable nurse in similar
circumstances would have taken.

Negligence

Negligence is a major area of tort law

It is defined as:

unintentional action
unplanned action
injuries result

In essence, negligence is carelessness

that results in harm (injury or damage).

Elements of Negligence
The four elements of medical malpractice that
must be satisfied before filing anything are:
Duty
Breach of Duty
Damages
Causation
The burden of proof is on the plaintiff, the party
with the complaint. If any of the four elements
is not satisfied, malpractice is not proven.

Duty of Care

A duty must have been owed to a patient by a

healthcare practitioner charged with that patients
care. The doctor-patient relationship is a common
example of a situation where that duty would
exist
Duty of care is proved through legal obligations
For example, if a mechanic neglects to tighten the
bolts on a repair of a car, causing a subsequent
accident or injury, the plaintiff (the driver) is owed
a duty of care, and the defendant (the mechanic)
has breached their duty of care

Breach of Duty

The healthcare practitioner who had the

duty of care for that patient must have
failed in his/her duty by not exercising
the degree of care or medical skill that
another healthcare professional in the
same specialty would have used in an
equal situation. (This is when an expert
is often called in to testify as to what an
appropriate standard of care would be.)

Damages

The
patient
must
have
suffered
emotional or physical injury while in the
care of the healthcare practitioner. The
injury can be a new one, or an
aggravation of an existing injury.

Causation

There must be solid proof that the breach of

duty by the healthcare practitioner caused
the patients injury
If duty of care is demonstrated, as is
defendants breach of care (through standard
of care by reasonable person), then last area
needing to be proven is causation
In essence, there must be a causal
connection between the plaintiffs actions
and the defendants harm (injury or damage)

Causation

Method of determining causation is

through the familiar but-for test
Meaning, the accident should not have
occurred otherwise, but for the actions of
the negligent plaintiff

Doctrines of Negligence

Res Ipsa Loquitur

means the things speaks for itself. This means
that the injury could have not happened if
someone was not negligent that nofurther proof
is required. Three conditions to establish
negligence
1. That the injury was such naturethat it would
not normally occur unless there wasa negligent
act on the part of someone.
2. That the injury was caused byan agency
within control of the defendant.

3. The plaintiff himself did not engage in

anymanner that would tend to bring about the
injury.
Examples:
o

A patient came in walking tothe outpatient clinic for

injection. Upon administering the injection to his buttocks,
the patient experienced extreme pain. His leg left weak and
he was subsequently paralyzed. His sciatic nerve was injured.
The presence of sponges in the patients abdomen after an
operation.
Fracture on a newly-delivered baby born bybreech
presentation.

Force Majeure - means irresistible force, one

thatunforeseen or inevitable. Under the Civil Code
ofthe Philippines no person shall be responsible
for those events which cannot be foreseen,
orwhich,
though
foreseen,
are
inevitable,
exceptin cases expressly specified by law.
Circumstances
such
as
flood,
fire,
earthquakes,and accident, fall under this doctrine
and nurses who fail to render serviceduring these
circumstances
are
not
held
negligent.
However,habitual tardiness due to heavy traffic is
notconsidered an excuse for force majeure.

Respondeat Superior- means Let the master

answer for the acts of the subordinate.
- Under this doctrine, the liability is expanded to
include the master as well as the employee
and not ashift of liability from the subordinate
to the master. Therefore, whena person,
through his negligence, injures another,here
mains fully responsible. It only applies only to
those actions performed by theemployee
within the scope of his employment.

Examples
o The hospital will be held liable, if , inan
effort to cut down on expenses itdecides
to hire under board nurses or midwives
in place of professional nurses, and
these persons prove to be incompetent.
o The surgeon will beheld responsible in
case
alaparotomy
pack
is
left
inpatients abdomen.

INTENTIONAL TORTS

Tort

A tort is a legal wrong, committed

against
a
person
or
property
independent of a contract which renders
the person who commits it liable for
damages in a civil action. The person
who
has
been
wronged
seeks
compensation for the injury or wrong he
has suffered from the wrong doer.

Examples of torts are:

Assault and battery
Assault is the intentional and unlawful
offer to touch a person in an offensive,
insulting or physically intimidating
manner.
Battery is the touching of another
person without the persons consent.

False Imprisonment or Illegal

Detention
False
Imprisonment
means
the
unjustifiable detention of a person
without
a
legal
warrant
within
boundaries fixed by the defendant by an
act or violation of duty intended to result
in such confinement.

Invasion of Privacy
The right to privacy is the right to be left
alone, the right to be free from
unwanted publicity and exposure to
public view as well as the right to live
ones life without having anyones name,
picture or private affairs made public
against ones will.

Defamation
Occurs when information is communicated to a third
party that causes damage to someone's reputation.

Slander is oral defamation of a person by speaking

unpriveleged or false words by which his reputation
is damaged.
Libel defamation by written words, cartoons or
such representations that cause a person to be
avoided, or held in contempt or tend to injure him in
his work.

CRIMES

Crime

It is an act committed or omitted in

violation of the societal law. It is
composed of two elements: (1) criminal
act and (2) evil/criminal intent

Conspiracy to commit a
crime

A conspiracy to commit a crime exists

when two or more persons agree to
commit a felony and decide to do it.

Principals

Are those who take a direct part in the

execution of the act; who directly force
or induce others to commit; or who
cooperate in the commission of the
offense by another act without which it
would not have been accomplished.

Accomplices

Are those persons who, not being

principals, cooperate in the execution in
the offense by previous or simultaneous
act.

Accessories

Are those who, having knowledge of the

commission of the crime, either as
principals or accomplices, take part in
the subsequent to its commission by
profiting themselves or assisting the
offender to profit from the effects of the
crime.

Criminal Liability

Nurse may incur criminal liability or

subject herself to criminal prosecution
either by committing a felony or by
performing an act which would be an
offense against person or property.

Circumstances affecting
criminal liability

Justifying circumstances are those where the

act of a person is said to be in accordance with
law, so that such person is deemed not to have
transgressed the law and is free from both criminal
and civil liability.
These circumstances, enumerated in Article 11 of
theRevised Penal Code, are (1) self-defense; (2)
defense of relatives; (3) defense of a stranger; (4)
avoidance of greater evil or injury; (5) fulfillment
of duty or lawful exercise of right or office, and; (6)
obedience to an order issued for some lawful
purpose.

Exempting circumstances

An imbecile or insane person, unless the latter

has acted during a lucid interval.
below 9 years old
over 9 years of age and under fifteen unless
he/she acted with discernment
causes an injury which is merely an accident
without fault or intention or causing it
acts under the compulsion of an irresistible force
acts under the impulse of an uncontrollable fear
of an equal or greater injury

Mitigating circumstances
Are

those which do not constitute

justification or excuse of the offense in
question, but which in fairness and
mercy,
may
be
considered
as
extenuating
degree
of
moral
culpability.

Aggravating circumstances

Are those attending the commission of crime

and which increase the criminal liability of the
offender or make his guilt or more severe.
Some of the ff circumstances:

When the offender takes advantages of his

public position.
When the crime is commited in place of
worship
When the act is committed with evident
premeditation or after an unlawful entry.

Alternative circumstances

Are those which must be taken into

consideration as aggravating or mitigating
according to the nature and effects of the
crime and other conditions attending in
commission.
Should be taken consideration when the
offended party is the spouse, ascendant or
descendant, legitimate, natural or adopted
or relatives.

Points in order to avoid

criminal liability:
1. Be very familiar with the Philippine nursing law.
2. Beware of laws that affecting nursing practice
3. At the start of employment, get a copy of your
job description, the agencys rules, regulations
and policies.
4. Upgrade you skills and competence
5. Accept only such responsibility that is within
the scope of your employment and your job
description.
6. Do not delegate your responsibilities to others.

7. Determine whether your subordinates are

competent in the work you are assigning
them.
8. Develop good interpersonal relationships
with your co-workers, whether they be your
supervisors, peers or subordinates.
9. Consult your superior for problems that
maybe 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
12. Keep in mind the values and necessity
of keeping accurate and adequate
records
13. Patients are entitled to an informed
consent.

Examples liabilities of
Nursing:

Liability for injury to patient

Liability for sponge left in the patients
abdomen
Liability for a safety pin left in patients
abdomen
Liability for defective equipment
Liability for death for patient who jump from
window of his room

Liability for negligence of surgical nurse

Liability for rapture of surgical wound.

Liability for burns for suffered by patient

Liability for burns from hot water bags
Liability for negligence of nurse
employees
Liability fro death of infant resulting from
injection of digitalis
Liability of nurse performing
administrative work