Professional Negligence and Malpractice

Negligence
- Refers to commission or omission of an act, pursuant to a duty, that a reasonably prudent
person in the same or similar circumstance would or would not do, and acting or non-acting
of which is the proximate cause of injury to another person or his property.
- Failure to do something.
Elements of professional negligence
1. Existence of a duty on the part of the person charged to use due care under circumstances.
2. Failure to meet the standard of due care.
3. Foreseeability of harm resulting from failure to meet the standard.
4. The fact that the breach of this standard resulted in an injury to the plaintiff.
Specific examples of negligence
- Failure to report observations to attending physicians.
- Failure to exercise the degree of diligence which the circumstances of the particular case demands.
- Mistaken Identity
- Wrong medicine, wrong concentration, wrong route, and wrong dose.
- Defects in the equipment such as stretchers and wheelchairs may lead to falls thus injuring the
patients.
- Errors due to family assistance.
- Administration of medicine without a doctor prescription

Malpractice
- Implies the idea of improper unskillful care of a patient by a nurse.
- Denotes stepping beyond ones authority with serious consequences.
- Term for negligence or carelessness of professional personnel.
- According to Lesnik (1962), this term used properly only when it refers to a negligent act
committed in the course of professional performance
- Practice contrary to established rules
Elements of Nursing Malpractice
1. Duty
2. Breach of duty
3. Foreseeability
4. Causation
5. Harm and injury
6. Damages

Doctrine Principles that may condemn or free you.

Doctrines of Negligence
1. Res Ipsa Loquitur
- means the things speaks for itself. This means that the injury could have not happened if
someone was not negligent that no further proof is required.
Three conditions to establish negligence
1. That the injury was such nature that it would not normally occur unless there was a negligent act on
the part of someone.
2. That the injury was caused by an agency within control of the defendant
3. The the plaintiff himself did not engage in any manner that would tend to bring about the injury.
Examples:
- A patient came in walking to the out patient 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 by breech presentation.



2. Force Majeure
- means irresistible force, one that unforeseen or inevitable. Under the Civil Code of the
Philippines no person shall be responsible for those events which cannot be foreseen, or which, though
foreseen, are inevitable, except in cases expressly specified by law.
- Circumstances such as flood, fire, earthquakes, and accident, fall under this doctrine and
nurses who fail to render service during these circumstances are not held negligent. However, habitual
tardiness due to heavy traffic is not considered an excuse for force majeure.
3. 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 a shift of liability from the
subordinate to the master. Therefore, when a person, through his negligence, injures another, he
remains fully responsible.
- It only applies only to those actions performed by the employee within the scope of his
employment.
Examples:
- The hospital will be held liable, if , in an effort to cut down on expenses it decides to hire
under board nurses or midwives in place of professional nurses, and these persons prove to
be incompetent.
- The surgeon will be held responsible in case a laparotomy pack is left in patients abdomen.