Malpractice Vs.

Negligence
In law, malpractice is a type of negligence in which the professional under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers harm. It is committed by a professional or her/his agents on behalf of a client or patient that causes damages to the client or patient. Negligence committed by a professional is malpractice, but not all malpractice is negligence. What is negligence? Negligence is a failure to take reasonable care to avoid causing injury or loss to another person. There are four steps in proving negligence. The plaintiff must prove: y that there is a duty in the circumstances to take care duty of care y that the behavior or inaction of the defendant in the circumstances did not meet the standard of care which a reasonable person would meet in the circumstances (breach of duty) y that the plaintiff has suffered injury or loss which a reasonable person in the circumstances could have been expected to foresee (damage) y that the damage was caused by the breach of duty (causation). What is Malpractice? A malpractice, or "professional negligence" case, involves the allegation that a professional (usually a licensed professional) failed to provide services which met the governing standard of care, resulting in an injury to the plaintiff. Elements of a Claim The typical elements of a malpractice case involve: y Duty: A duty owed by the professional to the plaintiff; y Breach: A breach of that duty by the professional; y Causation: Injury to the plaintiff caused by that breach of duty; and y Damages: Damages to the plaintiff resulting from the injury. TWO KINDS OF CRIMINAL NEGLIGENCE OR QUASI-OFFENCES a. Reckless Imprudence >doing or failing to do an act from which material damage result by reason of in excusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. b. Simple Imprudence >is a mere lack of precaution in a situation where threatened harm is not immediate or the impending danger is not openly visible or manifest.

Patients Bill of Rights 1. Right to Medical Care and Humane Treatment. 2. Right to Informed Consent. 3. Right to Privacy and Confidentiality. 4. Right to Information. 5. Right to Choose Physician. 6. Right to Choose Health Care Provider and Facility.

7. Right to Self-Determination. 8. Right to Religious Belief. 9. Right to Medical Records. 10. Rig ht to Leave. 11. Right to Refuse Participation in Medical Research. 12. Right to Correspondence and to Receive Visitors. 13. Right to Express Grievances. 14.Right to be infor med o f His Right s and Obligat ions as a Pat ient .

AN ACT PUNISHING THE MALPRACTICE OF ANY MEDICAL PRACTITIONER IN THE PHILIPPINES AND FOR OTHER PURPOSES Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled Section 1. Short Title - This Act shall be known as the "Medical Malpractice Act of 2002" Section 2. Declaration of Policy - It is the policy of the State to ensure the safety of and well being of patients by providing them with professional medical care. Section 3. Definition of Terms 1. "Medical practitioner" shall refer to any physician, dentist, nurse, pharmacist or paramedical or other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) 2. "Illegal Surgery" shall refer to surgeries performed to remove healthy human organ/s without the consent of the patient, with the intent to gain on the part of the person or persons responsible for such surgery. 3. "Malpractice" shall refer to any personal injury, including death, caused by the negligent or wrongful act or omission of any medical practitioner. 4. "Physicians" shall refer to Doctors of Medicine, duly certified by the Professional Regulatory commission who are in active practice of medicine. 5. "Dentists" shall refer to Doctors of Dental Medicine, duly certified by the Professional Regulatory Commission who is in active practice of dental medicine. 6. "Patients" shall refer to people requiring medical attention from any medical practitioner. Section 4. The Anti-Malpractice Act. - Any medical practitioner who performs any act constituting medical malpractice of illegal practice of surgery shall be punishable by imprisonment or fine or both and, in all instances, the cancellation of the license to practice medicine. Section 5. The Complainant. - The crime of malpractice shall be prosecuted upon the filing of a complaint by any of the following individuals: 1. the patient; 2. parents or legal guardians of the patient; 3. grandparents or collateral relatives; 4. an officer or social worker of the Department of Social Welfare and Development or of a duly licensed child caring institution, orphanage, home for the aged, mental hospital, or other similar institutions under whose care of custody the patient is committed; 5. a concerned, responsible hospital employee where the crime was committed buy only if any of the persons mentioned in the four preceding paragraphs have expressly given their consent to the filing thereof.

Section 6. Effect of Pardon. - The express or implied pardon of the patient, his/her parents, grandparents or guardian shall not be a legal impediment to the prosecution of the crime nor will it extinguish the criminal action still pending, nor will it constitute a ground for remitting the penalty already imposed. Section 7. Penalties. - Medical malpractice and/or the practice of illegal surgery shall be punished by prison mayor and the cancellation of the license to practice the medical profession and a fine ranging from Five Hundred Thousand Pesos (P500,000) to One Million Pesos (P1,000,000) in the discretion of the court taking into consideration all attending circumstances. Any other crime committed by reason or on occasion of malpractice shall be considered as a separate offense and the rules on complex crimes shall not apply. In no case shall malpractice be considered as a mere aggravating circumstance when it is committed by reason or on occasion of the commission of another crime. Section 8. Aggravating Circumstances.- the following circumstances shall aggravate the crime of malpractice: 1. permitting motives of profit to influence the free and independent exercise of professional judgement on behalf of patients; 2. conscious infliction of harm to an unknowing patient with the malicious intent of profiting from such act. Section 9. Damages. - In addition to the damages that may be awarded by the court under existing laws, the following circumstances shall warrant the award of additional damages: 1. when the patient becomes insane or suffers any psychological damage by reason of malpractice; 2. death of patient by reason or occasion of malpractice; 3. physical disfigurement or permanent disability of the patient by reason of malpractice Section 10. Repealing Cause. - All Laws, Presidential Decrees, Executive Orders, Proclamations, and/or Administrative Regulations, which are inconsistent with the provision of this Act, are hereby amended, modified, superseded, or repealed accordingly. Section 11. Effectivity.- This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in at least (2) newspapers of general circulation Legal Defense in Negligence >Common defense in a negligent action when nurses know attain that standard of care in giving service and have documented the care they give in concise and accurate manner. >Careless conduct of patient contributes to his injury, patient cannot bring suit against the nurse. >Assumption of risks caring for a psychiatric patient, and with communicable disease upon accepting the case. a. Doctrine of Force Majeure >An irresistible, on that is unforeseen or inevitable except in cases expressly specified by law. Ex: >Fire, floods, earthquake, accidents and other major disaster fall under this doctrine. >If the nurse fails to render service during this circumstance, she will not be held negligent. >Habitual tardiness due to heavy traffic is not considered as an excuse and it does not fall under the doctrine of force majeure. b. Doctine of respondeat >Means let the master answer for the acts of his/her subordinates

>Under this doctrine, the liability is extended to include the master or superior as well as the employee or subordinate who committed the error or negligence. >There is no shift of liability from the subordinates to the master, rather, both master or superior and employee or subordinates are held liable. Ex: A surgeon will held responsible in case laparotomy pack is left in patients abdomen. The hospital will be held liable if in an effort to cut down expenses, it decided to hire under board nurses or midwife in place of professional nurses. c. Doctrine of Res Ipsa Loquitor >Means the thing speaks for itself. >Other this doctrine , the defendant if presumed negligent when the instrumentality causing anothers injury was in defendants control and when the accident was one witch ordinarily does not happen in the absence of someones negligence. Ex: Fracture on a newly delivered baby born by breech presentation. Presence of sponges an patients abdomen after an operation. A patient came in, walking to the OPD clinic to have an injection. After the IM injection to his buttocks, the patient experience extreme pain, his leg felt weak and he was subsequently paralyzed.

BATAAN PENINSULA STATE UNIVERSITY BALANGA CITY, BATAAN COLLEGE OF NURSING AND MIDWIFERY

JURISPRUDENCE

SUBMITTED BY: GROUP II CAPULI, TONIMARIE CORPUZ, SHEENA GALURA, JEILYN GARCIA, ALYSSA LINTAG, JELLY AN MANABAT, MONICA VALENCIA, GEORGE BSN-4K

SUBMITTED TO: ELENA AGUILAR RN, MAN