19699620 Jurisprudence

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    LEGAL CONCEPTS AND ISSUES IN NURSING

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    RESPONSIBILITY AND ACCOUNTABILITY FOR THE PRACTICE OF PROFESSIONAL NURSING

    Nurses employed in an agency, institution or hospital are directly responsible totheir immediate supervisors. Private duty nurses, being independent practitioners,are held to a standard of conduct that is expected of reasonable prudent nurse

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    WHAT IS LIABILITY?Is

    an obligation or debt that can be enforced by law. A person who is liable formalpractice is usually required to pay for damages. Damages refer to compensationin money recoverable for a loss of damage.

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    PROFESSIONAL NEGLIGENCENEGLIGENCE

    refers to the commission or omission of an act, pursuant to a duty, that areasonably prudent person in the same or similar circumstance would or would notto, and acting or the non-acting of which is the proximate cause of injury toanother person to his

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    ELEMENTS OF PROFESSIONAL NEGLIGENCE1.

    2. 3.

    4.

    Existence of a duty on the part of the person charged to use due care under

    circumstances Failure to meet the standard of due care The foreseeability of harmresulting from failure to meet the standard The fact that the breach of thisstandard resulted in an injury to

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    Errors due to family assistance 2. Administration of medicine without a doctorsprescription1.

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    THE DOCTRINE OF RES IPSA LOQUITURThe

    thing speaks for itself When the harm that resulted from negligence and theresponsibility for the harm are clear that anyone would agree on it, the term resipsa loquitur is used

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    SPECIFIC EXAMPLES OF NEGLIGENCE1. 2.

    3. 4. 5.

    Failure to report observations to attending Physicians Failure to exercise thedegree of diligence which the circumstances of the particular case demandsMistaken Identity Wrong medicine, wrong concentration, wrong route, wrong dose

    Defects in the equipment such as stretchers and wheelchairs may lead to falls

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    1. The accident must be a kind which ordinarily does not occur in the absence ofsomeones negligence 2. The accident must be caused by an agency orinstrumentality within the exclusive control of the defendant 3. The accident mustnot have been due to any voluntary action or

    CONDITIONS THAT ARE NECESSARY FOR THE APPLICATION OF THE DOCTRINE:

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    MALPRACTICEImplies

    the idea of improper or unskillful care of a patient by a nurse. It also denotesstepping beyond ones authority with serious consequences

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    EXAMPLES OF MALPRACTICE:Misdiagnosis of an illness, failure to diagnose or relay diagnosis Birth Injuries Surgical Complications Prescription errors Failure to provide treatment Anesthesia related complications Failure to follow advance directive Failure of hospital or pharmacy to dispense the right medicine, dosage

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    DOCTRINE OF FORCE MAJEURE

    It is an irresistible or superior force, one that cannot be foreseen or prevented;a fortuitous event, and act of God. No person shall be held liable fornonperformance of what was expected of him/her if the cause of the nonperformancewas a force majeure (e.g. devastating typhoons, earthquakes and other calamities)

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    DOCTRINE OF RESPONDEAT SUPERIORMeans let the superior answer; let the principal answer for the acts of hisagent The doctrine is founded on the principle that he who expects to derive advantage from an act which is done by another for him must answer for any injurywhich a third person may sustain from it. The doctrine rests upon the propositionthat, in doing the acts out of

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    EXAMPLES:The hospital will be held liable, if, in an effort to cut down on expenses itdecides to hire underboard nurses or midwives in place of professional nurses, andthese persons prove to be incompetent The surgeon will be held responsible in case a laparotomy pack is left in a patients abdomen

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    INCOMPETENCEIs the lack of ability, legal qualifications or fitness to discharge the requiredduty Although a nurse is registered, if in the performance of her duty she manifests incompetency, there is ground for revocation or suspension of hercertificate of registration

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    LIABILITY OF NURSES FOR THE WORK OF NURSING AIDESNursing

    aides perform selected nursing activities under the direct supervision of nurses.They usually given on-job-training by the Training staff. Their responsibilitiesusually pertains to the routine care of chronically ill patients. They aretherefore responsible for their own

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    LIABILITY FOR THE WORK OF NURSING STUDENTSUnder

    the Philippine Nursing Act of 2002 R.A. 9173, nursing students do not performprofessional nursing duties. They are to be supervised by their clinicalinstructors.

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    1.

    GUIDELINES TO AVOID MISTAKES OF NURSING STUDENTS Nursing students should always be

    2.

    3.

    Nursing students should always be under the supervision of their clinicalinstructors They should be given assignments that are at their level of training ,experience, and competency They should be advised to seek guidance especially ifthey are performing procedure for the first time

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    5. Their performance should be assessed frequently to determine their strengthsand weaknesses 6. Frequent conferences with the students will reveal theirproblems which they may want to bring to the attention of their instructors orvice-versa. Discussion of these problems will iron out doubts and possible

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    The

    most common defense in a negligent action is when nurses know and attain thatstandard of care in giving service and that they have documented the care theygive in a concise and accurate manner If the patients careless conduct contributes to his own injury, the patient cannot bring suit against

    LEGAL DEFENSE IN NEGLIGENCE

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    MEDICAL ORDERS, DRUGS, AND MEDICATIONS

    R.A. 6675 states that only validly registered medical, dental, and veterinarypractitioners, whether in private institution/corporation or in the government,are authorized to prescribe drugs. In accordance with R.A. 5921, or the pharmacy

    Act as amended, all prescriptions must contain the following information: name ofthe prescriber, office address, professional registration number, professional taxreceipt number, patients/clients name, age, and sex, and date of prescription.R.A. 6675

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    Philippine Nursing Act of 1991 Section 28 states that in the administration of

    IV Therapy and Legal Implications

    intravenous injection, special training shall be required according to protocolestablished Board of Nursing Resolution No. 8 states that without such trainingand who administers intravenous injections to patients shall be held liable eithercriminally under Sec 30 Art. VII of said law or administratively under sec 21 Art

    III

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    SCOPE OF DUTIES AND RESPONSIBLITIES IN IV THERAPY1. 2.

    3.

    4.

    Interpretation of the doctors orders for IV therapy Performance of venipuncture,

    insertion of needles, cannulas except TPN and cutdown Preparation, administration,monitoring and termination of intravenous solutions such as additives, intravenousmedications, and intravenous push Administration of blood/blood products

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    5. Recognition of solutions and medicine incompatibilities 6. Maintenance andreplacement of sites, tubings, dressings, in accordance with establishedprocedures 7. Establishment of flow rates of solutions, medicines, blood and bloodcomponents 8. Utilization of thorough knowledge and proficient technical abilityin the use/care, maintenance, and evaluation

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    9. Nursing management of total parenteral nutrition, out-patient intravenous care10. Maintenance of established infection control and aseptic nursing interventions11. Maintenance of appropriate documentation, associated with the preparation,administration and termination of all forms of intravenous therapy.

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    Telephone Orders

    Doctors should limit telephone orders to extreme emergency where there is noalternative. The use of telephone in a non emergency as a substitute for thephysician himself can lead to serious error and may border on malpractice. Nurseshould read back such order to the physician to make certain the order has beencorrectly written. Such order should be signed by the physician within 24 hoursThe nurse should sign the physicians name per her own and note the time and orderwas received

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    CONSENT TO MEDICAL AND SURGICAL PROCEDURE

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    Consent is defined as a free and rational act that presupposes knowledge of thething to which consent is being given by a person who is legally capable to giveconsent Nature of consent- an authorization by the patient or a person authorized by the law to give the consent on the patients behalf. Informed Consent-A written consent should be signed to show that the procedure is the oneconsented to and that the person understands the nature of the procedure

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    The

    nurses responsibility in witnessing the giving of informed consent involves: (1) witnessing the exchange b/w the client and the physician (2) witnessing theclient affix his signature (3) establishing that the client really understood.

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    1. 2.

    3. 4. 5.

    The diagnosis and explanation of the condition A fair explanation of theprocedures to be done and used and the consequences A description of alternativetreatments or procedures A description of the benefits to be expected Materialrights if any

    ESSENTIAL ELEMENTS OF INFORMED CONSENT:

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    WHO MUST CONSENT?Patient must consent in his own behalf If he is incompetent, or physically unable,and is not in emergency case, consent must be taken from another who is authorizedto give it

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    CONSENT OF MINORSParents or someone standing in their behalf, gives the consent to medical orsurgical treatment of a minor. Parental consent is not needed if the patient ismarried or emancipated

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    CONSENT OF MENTALY ILLA mentally incompetent person cannot legally consent to medical or surgicaltreatment. The consent must be taken from parents or legal guardian

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    MENTAL COMPETENCYAll

    patients are presumed to be competent unless declared incompetent by a court oflaw. Supporting documentation of the patients behaviors, speech, decision makingand physical and mental status are very useful in establishing his/her mental

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    EMERGENCY SITUATIONNo consent is necessary because inaction at such time may cause greater injury. Iftime is available and an informed consent is possible, it is best that this betaken to protect all the parties

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    REFUSAL TO CONSENTA patient who is mentally and legally competent has the right to refuse thetouching of his body or to submit to a medical or surgical procedure no matter hownecessary, nor how imminent the danger to his life or health if he fails

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    CONSENT FOR STERILIZATIONSterilization is the termination of the ability to produce offsprings. The husbandand the wife must consent to the procedure if the operation is primarily toaccomplish sterilization. If emergency cases like ectopic pregnancy and abruptio

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    MEDICAL RECORDSWas created as a means of communication among health care practitioners. Todaymedical records serve two important functions: to provide legal documentation, andobtain third party payments (e.g. Medicare) They are good evidence in legal suitsbut are not admissible evidence against the patient. If information is not charted, it was

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    CHARTING DONE BY NURSING STUDENTS

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    LEGAL RISKS FOR SAFETY EQUIPMENTThe nurse should exercise reasonable care in selecting equipment to be used inpatients. Generally, a nurse is not liable for a non-observable andnondiscoverable defect in the

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    WHAT IS A CONTRACT?Is

    a meeting of minds between two persons where they bind themselves to givesomething or to render some services. Practically anything could be subjected to acontract as long as these are not contrary to law, morals, good customs, public

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    Kinds of ContractsFormal Contracts- refers to an agreement b/w parties and is required to be inwriting. E.g. marriage contracts Informal Contracts- one in which concluded as the result of a written document where the law does not require the same to be inwriting. Express Contracts- The one in which the conditions and terms of contract are given orally or in writing by the parties concerned. E.g. PDN

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    Implied Contracts- one that is concluded as a result of acts of conduct of theparties to which the law ascribes an objective intentions to enter into acontract. Void contracts- one that is inexistent from the very beginning and therefore may not be enforced. Illegal contracts- one that is expressly prohibited by law

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    Illegal ContractsThose

    that are made in protection of the law Consent obtained by fraud Those obtained under duress Those obtained under undue influence Those obtained through material misrepresentation

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    INTENTIONA L WRONGSA nurse may be held liable for intentional wrongs

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    TORTSA

    tort is a legal wrong, committed against a person or property independent of acontract which renders the person who commits it liable for damages in a civilaction. A person who has been wronged seeks compensation for the injury or wronghe has suffered from the wrong doer.

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    EXAMPLES OF TORT:ASSAULT AND BATTERY. Assault is a unjustifiable attempt to touch another person oreven the threat of doing so while Battery is the actual carrying out of thethreatened physical contact DEFAMATION of character occurs where a person discusses another individual in terms that diminish reputation. Libel is writtendefamation. Slander is oral Defamation

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    FALSE IMPRISONMENTIs the infringement of upon an individuals freedom of movement. It is makingsomeone wrongfully feel that he or she cannot leave the place. The unjustifiable detention of a person without a legal warrant within boundaries fixed by thedefendant by an act or violation of duty intended to result in such

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    Restraints should be used with caution and discretion. All patients should havethe right to independence and freedom of movement. Restraints require aphysicians order. If a patient or his legal guardian refuses to be restrained,this should be documented in the patients medical record.

    USE OF RESTRAINTS

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    The right to privacy is the right to be left alone, the right to be free fromunwarranted publicity and exposure to public view as well as the right to liveones life without having anyones name, picture or private affairs made publicagainst ones will. Nurses may become liable for invasion of right to privacy if

    they divulge information from a patients chart to improper sources or

    INVASION OF RIGHT TO PRIVACY AND BREACH OF CONFIDENTIALITY

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    DEFAMATION

    Occurs when a person discusses another individual in terms that diminish

    reputation. SLANDER- is oral defamation of a person by speaking unprivileged orfalse words by which his reputation is damaged LIBEL- is defamation by writtenwords, cartoons or such representations that cause a person to be avoided,ridiculed

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    CRIMES, MISDEMEANORS, AND FELONIES

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    CRIME

    is defined as an act committed or omitted in violation of the law. Criminaloffenses are composed of two elements: (1) Criminal Act (2) Evil/criminal intent In criminal action, the state seeks the punishment of the wrongdoers

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    Conspiracy to commit a crime

    Principals- are those who take a direct part in the execution of the act, who

    directly force or induce others to commit it; or who cooperate in the commissionof the offense by another act without which it would not have been accomplished.Accomplices- are those who, not being principals, cooperate in the execution ofthe offense by previous and simultaneous act. Accessories- are those who, havingthe knowledge of the commission of the crime. Assisting the offender to profitfrom the crime either by disposing the body, concealing or assisting in escape ofthe principal of the crime.

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    Criminal ActionsDeal with acts or offenses against public welfare. Misdemeanor- a general name for criminal offense which does not in law amount to felony. Felony- a public offense for which a convicted person is liable to be sentenced to death or beimprisoned in a penitentiary or prison. It is committed with deceit and fault.

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    Criminal NegligenceReckless

    Imprudence- when a person does an act or fails to do involuntary without malice,from which damage results immediately. Simple Imprudence- means that the person or nurse did not use precaution and the damage was not immediate or the impendingdanger was not

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    Criminal Intent

    Is the state of mind of a person at the time the criminal act is committed, that

    is, he/she knows that an act is lawful and still decided to do it anyway.Deliberate intent includes two other elements without which there can be no crime.These are freedom and intelligence. When a person accused of the crime offersevidence showing insanity, necessity, compulsion, accident, or infancy the courtwill decide if he did not commit a criminal offense and will declare the personnot guilty.

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    Felonies are classified according to degree of the acts of execution Consummated-when all the elements necessary for its execution and accomplishment are present.Frustrated- when the offender performs all the acts or execution which willproduce the felony as a consequence but which nevertheless, do not produce it byreason of causes independent of the will of the perpetrator. Attempted- when theoffender commences the commission of the same directly by overt acts, and does notperform the acts which shall produce the felony. Consummated felonies as well asattempted and frustrated are all punishable by law.

    Classes of Felonies

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    Grave Felonies- are those to which the law attaches the capital punishment orpenalties which in any of their periods are afflictive. (imprisonment ranging from

    6 yrs and 1 day with fine not exceeding P6,000) Less Grave Felonies- are thosewhich the law punishes with penalties which in their maximum period arecorrectional (imprisonment ranging from 1 month and 1 day to 6 yrs or fine notexceeding 6,000 but not below 200) Light Felonies- are those infractions of lawfor the commission of which the penalty of arresto menor (imprisonment for 1 dayto 30 days or a fine not exceeding 200 or both of which are

    Felonies according to degree of punishment

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    Circumstances Affecting Criminal LiabilityPREPARED BY: ailyn brillo pineda

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    Circumstances affecting Criminal Liability

    J-E-M-A-A

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    Circumstances affecting Criminal Liability

    Justifying Circumstances SELF-DEFENSE These are the defenses in which the accusedis deemed to have acted in accordance with the law and therefore the act islawful. Since the act is lawful, it follows that there is no criminal, no criminal

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    Justifying CircumstancesA person may not incur criminal liability under the following circumstance: There is no mens rea or criminal intent The circumstances pertain to the act and not to the actor. Hence all who participated in the act will be benefited. Thus ifthe principal is acquitted there will be no accomplices and accessories. These apply only to intentional felonies, not to acts by omissions or to culpablefelonies or to violations of special laws When he acts in defense of his rights

    When he acts in defense of his relatives rights When he acts in defense of a

    strangers rights and that the person defending is not induced by revenge or evilmotives. When any person who, in order to avoid an injury does an act which causes damage to another provided that an evil sought to be avoided actuallyexists.

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    Circumstances affecting Criminal Liability

    ExemptingCircumstan ces These are defenses where the accused committed a crime butis not criminally liable. There is a crime, and there is civil liability but

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    Exempting CircumstancesThere are certain circumstances under which the law exempts a person from criminalliability The basis is the lack of any of the elements which makes the act/omission voluntary, i.e. freedom, intelligence, intent or due care. These defenses pertain to the actor and not the act. They are personal to the accused inwhom they are present and the effects do not extend to the other participants.Thus if a principal is acquitted, the other principals, accessories andaccomplices are still liable. They apply to both intentional and culpable

    felonies and they may be available in violations of special laws. An imbecile or an insane person, unless the latter has acted during a lucid interval A person under nine years of age A person over nine years of age and under fifteen unless he acted with discernment. A person while performing a lawful act with due care causes an

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    MITIGATING CIRCUMSTANCESAre those which do not constitute justification or excuse of the offense inquestion, but which, in fairness and mercy, may be considered as extenuating orreducing the degree of moral culpability. 2. Circumstances which are otherwisejustifying or exempting were it not for the fact that all requisites necessary tojustify the act or to exempt the offender from criminal liability in therespective cases are not attendant 3. When the offender has no intention to commitso grave a wrong as the one committed

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    1.

    2.

    3.

    4.

    When sufficient provocation or threat on the part of the offended partyimmediately precedes the act When the act is committed in the immediatevindication of a grave offense to the one committing the felony, his/her spouse,ascendants, descendants, legitimate, natural or adopted brothers, or relative byaffinity within the same degree When a person acts upon an impulse so powerful asnaturally to have produced an obfuscation When the offender voluntarily surrendershimself to a person in authority or confesses before the court prior to thepresentation of

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    AGGRAVATING CIRCUMSTANCESAre those attending the commission of a crime and which increase the criminalliability of the offender or make his guilt more severe. 2. When the offendertakes advantage of his public position 3. When the crime is committed in contemptof or with insult to public authorities 4. When the act is committed with insultor disregard of the respect of the offended party on account of his rank, age, sex

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    4. When the act is committed with abuse orconfidence or obvious ungratefulness 5. when a crime is committed in a place ofworship 6. When the crime is committed on the occasion of a conflagration,shipwreck, earthquake, epidemic or other calamity or misfortune 7. When the crimeis committed in consideration of a price, reward or promise 8. When the crime iscommitted by means

    AGGRAVATING CIRCUMSTANCES

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    AGGRAVATING CIRCUMSTANCES9. When the act is committed with evident premeditation or after unlawful entry10. When craft, fraud, or disguise is employed when the wrong done in thecommission of the crime is deliberately augmented by causing

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    ALTERNATIVE CIRCUMSTANCESthose

    which may either be appreciated as mitigating or aggravating according to thenature and effects of the crime and other conditions attending its commission.

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    LACK OF EDUCATION IS NOT MITIGATING IN:1. 2. 3. 4. 5. 6.

    Rape Forcible abduction Arson Treason In crimes against chastity like seductionand acts of lasciviousness Those acts committed in a merciless or heinous manner

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    MORAL TURPITUDEis

    an act of baseness, vileness or depravity in social or private duties which a manowes to his fellow man or to society in general, an act contrary to the acceptedand customary rule of right and duty

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    MURDER- is the unlawful killing of a human being with intent to kill. It is a veryserious crime. Nurses should keep in mind that death resulting from a criminalabortion is murder. Euthanasia is also considered murder.

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    HOMICIDE- is the killing of a human being in another. It may be committed without criminalintent, by any person whom kills another, other than his father, mother, or childor any of his ascendants or descendants, or his spouse, without any of thecircumstances attendant the crime of murder

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    ABORTION- is illegal according to the revised penal code. The patient should assumeresponsibility for her abortion. She should be made to sign a statement relievingthe hospital and its personnel from liability

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    INFANTICIDE- IS THE KILLING OF A CHILD LESS THAN THREE DAYS OF AGE. The mother ofthe child who commits this crime shall suffer penalty of imprisonment ranging fromtwo years and four months and 1 day to 6 years PARRICIDE- is a crime committed by one who kills her/his father, mother or child whether legitimate orillegitimate, or any of his/her ascendants or descendants or his/her spouse. ROBBERY- is a crime against a person or

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    CONTROLLED SUBSTANCESR.A. 6425 known as the Dangerous Drug Act of 1972 covers the administration andregulation of the manufacture, distribution, dispensing of controlled drugs. Persons authorized to prescribe or dispense these drugs are required to registerand have a special license for this purpose

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    1. 2. 3.

    POINTS TO OBSERVE IN ORDER TO AVOID CRIMINAL LIABILITYBe very familiar with the Philippine Nursing Law Beware of laws that affectnursing practice At the start of employment, get a copy of your job description,the agencys rules, regulations and policies Upgrade your skills and competenceAccept only such responsibility that is

    4. 5.

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    6. Do not delegate your responsibility to others 7. Determine whether yoursubordinates are competent in the work are assigning them 8. Develop goodinterpersonal relationships with your co-workers, whether they be yoursupervisors, peers, or subordinates 9. Consult your superiors for problems thatmay be too big for you to handle 10. Verify orders that are not clear to you

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    11. The doctors should be informed about the patients condition 12. Keep in mindthe value and necessity of keeping accurate and adequate records 13. Patients areentitled to an informed consent

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    WILLSIt is a legal declaration of a persons intentions upon death. It is called testamentary document because it takes effect after the death of its maker DECEDENT- a person whose property is transmitted through succession whether or nothe left a will. If he left a will he is called a TESTATOR. If a woman TESTATRIX HOLOGRAPHIC WILL- a will that is

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    HEIR is a person called to succession either by the provision of a will or byoperation of law There should be a witness who knows the handwriting and signature of the testator explicitly declares that the will and the signature arein the handwriting of the testator ORAL WILL is also called as NUCUPATIVE WILL or NUNCUPATION it is during the last illness, that it is done in the place inwhich a he dies, that he asked one or

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    NURSES OBLIGATION IN THE EXECUTION OF A WILLThe nurse should note the soundness of the patients mind and that there was freefrom fraud or undue influence and that the patient was above 18 years or of age .

    The patient should write that the will was signed by the testator, that the witnesses were all present at the same time and signed the will I the presence ofthe testator

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    LIVING WILLIs

    an individuals signed request to be allowed to die when life can be supportedonly mechanically or by heroic measures. It also includes the decision to accept or refuse any treatment, service or procedure used to diagnose or treat his/herphysical or mental condition and

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    ADVANCE DIRECTIVE & HEALTH CARE PROXYThe patient designates a health care representative, usually a member of thefamily, a friend or a family physician to make decisions for him/her when he/sheis unable, due to physical or mental incapacity, accept or refuse treatment,service or procedure used to diagnose or treat his/her physical or mentalcondition and decisions to provide, withhold or withdraw life sustaining measures

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    WHAT SHOULD A NURSE REMEMBER ABOUT WILLS?

    A nurse especially those taking care of well-to-do patients should remember thatthe main requisite for making a will is testamentary capacity or sanity. Theperson who makes a will should at least be 18 years old and is not prohibited bylaw. The will is written and should be witnessed by three credible witnesses,unless it is holographic will. A Holographic will is one that is entirely written,

    dated and signed by hand. There is no legal

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    It is an administrative report that is required of nurses if there are violationsof standards and policies whether or not injury occurs. Through incident reports, hospital administration can monitor quality of patient care and institutesome measures to prevent similar incidents in the future.

    WHAT IS AN INCIDENT REPORT

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    COMMON LEGAL TERMS THAT A NURSE SHOULD KNOW:

    Affidavit- is a written statement made under oath before a notary public or otherperson duly authorized Contempt of Court- is the willful disobedience to, or opendisrespect for, the rules of court Defendant- the person being accused of awrongdoing; the therefore needs to defend themselves Day in court- the right of aperson to

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    Due process- is fair and orderly process which aims to protect and enforce apersons rights False Testimony- is punishable both criminal and civil law HearsayEvidence- is evidence that is derived from something the witness heard from othersInquest- is the legal inquiry into the cause or manner of a death Perjury- is thewillful telling of a lie under oath Plaintiff- the person who files the lawsuitand is seeking for a perceived wrongdoing

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    Prima facie Evidence- evidence, which if unexplained or uncontradicted wouldestablish the fact alleged Privileged Communication- statements uttered in good faith. These are not permitted to be divulged in court justice. Statute of Limitations- define the length of time following the event during which theplaintiff may file the lawsuit Subpoena- is an order that requires a person to attend at a specific time and place to testify as witness

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    Subpoena Duces Tecum- is a subpoena that requires a witness to bring requiredpapers/ documents and the like which may be in his possession Summons- is a writ commanding an authorized person to notify a party to appear in court to answer acomplaint made against them Warrant- is writing from a competent authority in pursuance of law, directing the doing of an act, and addressed to a personcompetent to do it

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    GOD BLESS!!! THE END

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