Peri-Operative Nursing:

Ethico Legal Practices,

Issues and Concerns
(AND OTHER NURSES
TOO)
By: Atty. James Allan C. Sayson, RN, MAN
This is a particular form of negligence which consist in the failure of
physician or surgeon to apply to his practice of medicine that degree of
care and skill which is ordinarily employed by the profession, generally
under similar conditions, and in like surrounding circumstances.
-Reyes, et al. vs. Sister of Mercy Hospital, et al. GR No. 130547, Oct. 3, 2000
Is it exclusive to Physicians and
Surgeons?
No.

Same is applied to the kindred branches of the

healing art, such as chiropodist, chiropractors,
Christian science healers, dentist, practioners of
naturopathy, nurses, optometrist and opticians and
operators of X-ray machines.
Elements of Malpractice
1. Duty

2. Breach

3. Injury

4. Proximate Causation
Garcia-Rueda vs. Pascasio, et.al
GR No. 118141, 5 Sept 1997
Example of Breaches
NEGLIGENCE - Failure to do something which a reasonable and prudent
person would have done.

Types of Negligence:

1. COMMISSION – wrong doing

2. OMISSION – neglect of care (didn’t do anything)
The SOMERA Case of 1929
Case: Tonsillectomy
Head Nurse: Lorenza Somera
Assisting Student Nurses: Valentina Andaya and
Consolacion Montinola
Mistake: Instead of giving Novocaine, what was
given was a medication that contained 10% cocaine
Mendoza vs. Casumpang
GR No. 197987, 19 March 2012
Facts: On 13 February 1993, Josephine Casumpang
underwent hysterectomy and myomectomy that Dr.
Mendoza performed. After the operation, pt. experienced
recurring fever, nausea and vomiting. Three months after
the operation, she noticed while taking a bath that
something was protruding from her genital. Dr. Mendoza
was unavailable to check. Another Doctor saw pt. and
removed a foul smelling, partially expelled rolled gauze
from her cervix. Josephine died a few months after.
Mendoza vs. Casumpang
GR No. 197987, 19 March 2012
Held: A surgical operation is the responsibility of the
surgeon performing it. He must personally ascertain
that the counts of instruments and materials used
before the surgery and prior to sewing the patient up
have been correctly done.

Doctor liable for damages.

PSI vs. Agana, GR No. 126297, 31
January 2007
Facts: On 4 April 1984, Natividad Agana was rushed to
Medical City General Hospital because of difficulty of
bowel movement and bloody anal discharge. Dr. Ampil
diagnosed her to be suffering from “sigmoid cancer”.
On 4 April 1984, Dr. Ampil with the assistance of PSI
Staff performed an anterior resection surgery. During the
operation he found out that the cancer has spread on her
left ovary. Dr. Ampil obtained the consent of Natividad’s
husband to allow Dr. Fuentes to perform hysterectomy on
Natividad.
PSI vs. Agana, GR No. 126297, 31
January 2007
Dr. Fuentes completed the hysterectomy and then Dr.
Ampil took over and closed the incision. However,
according the records, the attending nurses made
these remarks: (a) sponge count lacking 2; (b)
announced to surgeon searched (sic) done but to
no avail continue for closure. A couple of days
after, Natividad complained of excruciating pain in
her anal region but was reassured by Dr. Ampil that
it was normal after the operation.
PSI vs. Agana, GR No. 126297, 31
January 2007
Months after, Natividad found a gauze protruding from
her vagina. Dr. Ampil was able to remove the gauze
measuring 1.5 inches in width. A few days after, the the
pain felt by Natividad intensified prompting her to seek
treatment. This time, Dr. Gutierrez detected presence of
another foreign object in her vagina. It was a gauze of the
same measurement. A recto-vaginal fistula had formed in
her reproductive organs which forced stools to excrete
through her vagina. She was operated upon and then
cases were filed.
PSI vs. Agana, GR No. 126297, 31
January 2007
Held: An operation requiring the placing of
sponges in the incision is not complete until the
sponges are properly removed.

Leaving foreign objects in the wound after the

incision has been closed is a prima facie negligence
by the surgeon.
PSI vs. Agana, GR No. 126297, 31
January 2007
Held:
Exception: when danger to the patients life
precludes the surgeon from searching further for
missing sponges or foreign objects in the body.
There is an obligation, however, to inform his patient
within reasonable time of what he was compelled to
do.
Operation Tuli? A nursing scope?
Sec 28 (a) of RA 9173 provides, to wit:
“(a) Provide nursing care through the utilization of nursing
process: Nursing care includes, but not limited to, traditional
and innovative approaches, therapeutic use of self, executing
health care techniques and procedures, essential primary health
care, comfort measures, health teachings, and administration of
written prescription for treatment, therapies, oral, topical and
parenteral medications, internal examination during labor in
the absence of antenatal bleeding and delivery. In case of
suturing of perineal laceration, special training shall be
provided according to protocol established.”
Operation Tuli? A nursing scope?
Sec 10 of RA 4224 amending RA 2382
“Sec. 10. Acts constituting practice of medicine. A person shall
be considered as engaged in the practice of medicine (a) who
shall, for compensation, fee, salary, or reward in any form paid
to him directly or through another, or even without the same,
physically examine any person, and diagnose, treat, operate, or
prescribed any remedy for human disease, injury or deformity,
physical, mental, psychical condition or any ailment, real or
imaginary, regardless of the nature of the remedy or treatment
administered, prescribed or recommended”
Operation Tuli

What is wrong with the picture?

Cebu’s Canister Scandal
Cebu’s Canister Scandal
Yeng Constantino’s Issue
Gusto mo ba mag nursing?
Things to remember in the use of
Restrains
Things to remember in the use of
Restrains
 Informed consent is needed
 Doctor’s order is needed as well.
 If there is no doctor and a restraint is already a must, secure a doctor’s order
(telephone order) within 1 hour after instituting the restraint.
 Do not to use excessive restraint.
 Assess the restraint every 30 minutes.
 Release restraint every 2-4 hours and provide ROM exercises, if applicable.
 When signs of pallor or cyanosis is present, immediately release restraint.
 Family’s consent may also be necessary depending on the policy of the
institution.
 Remember, restraint without consent is ILLEGAL DETENTION under the
Revised Penal Code.
Right of the patient to an informed
consent
The patient has a right to a clear, truthful and
substantial explanation, in a manner and language
understandable to the patient, of all procedures, whether
diagnostic, preventive, curative, rehabilitative or
therapeutic, wherein the person who will perform the
said procedure will provide his name and credentials, to
the patient, possibilities of any risk of mortality or
serious side effects, problems related to recuperation,
and probability of success and risk involved.
Exceptions to informed consent
a) In emergency cases, when the patient is at imminent risk of physical
injury, decline of death, if treatment is withheld or postponed.
b) When the health of the population is dependent on the adoption of
mass health program to control epidemic.
c) When the law makes it compulsory for everyone to submit to a
procedure
d) Minor or incompetent
e) When disclosure of material information to patient will jeopardize
the success of the treatment, in which case, third party consent must
be in order.
f) When the patient waives such right in writing
Who can give consent
a) Spouse
b) Son or Daughter of legal age
c) Either parent
d) Brother or sister of legal age
e) Guardian
Telephone orders
Revised Penal Code Provisions
ABORTION (Art. 256 of RPC)- willful killing of the
fetus in the uterus, or the violent expulsion of the
fetus from the maternal womb. (Guevarra) 3 types:
(a) use of violence; (b) without the consent of the
woman; (C) with the consent of the woman.
Revised Penal Code Provisions
MUTILATION (Art. 262 of RPC)- committed by a
person who shall intentionally mutilate another of an
essential organ for reproduction or any part of the
body. E.g. Nurse who assist in tubal ligation on a
woman without her consent may be held liable for
mutilation.
Revised Penal Code Provisions
 PHYSICAL INJURIES (Art. 263,265,266 of
RPC)- committed by any person who shall wound,
beat, or assault another. Ex. A nurse causing injury
to a patient whether intentional or unintentional
may be held liable for Physical Injuries.
 ILLEGAL DETENTION (Art. 267, 268 of the
RPC)- private individual who will detain another,
or in any manner deprive the person of his liberty.
Ex. A nurse unduly restrains a patient.
Revised Penal Code Provisions
FALSIFICATION BY A PRIVATE INDIVIDUAL
(Art 172 of RPC)- committed by: imitating any
handwriting or signature; causing it to appear that
person have participated in any act when they did not
participate; making untruthful statement of facts in
narration of it; altering true dates. Ex: A nurse
making false statement of facts in the chart.
Revised Penal Code Provisions
SIMULATION OF BIRTH (Art. 347 of RPC)- takes
place when the woman pretends to be pregnant when
in fact she is not and on the day of the delivery, takes
the child of another. (Doctor-accomplice; Nurse-
Accessory)
USING FALSE MEDICAL CERTIFICATE (Art.
175 of RPC)- knowingly use any of false medical
certificate.
#SG15NOW