Unit VI- Legal

Concept/Process
Objectives: At the end of this unit, you will be
able to:
 Describe defenses to medical malpractice
claims.
 Discuss the two types of cases.
 Explain the role of nurse as an expert
witness in a lawsuit.
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Negligence & Medical Malpractice Relevant
to the Role of The Expert Witness
Types of Cases
 Crime:- is an offense against the public i.e. is
prosecuted/ Bring a criminal action against (in a trial) by the sate.
A. Criminal:-
1. Brought in the name of government.
2. Case is investigated by District Attorney.
3. May result in some restriction of an
individual ‘s liberty (ex. Prison, probation).
4. Penalties provided by statute/law.
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B. Civil
1. Brought by individual or non-
governmental body.
2. Penalties are loser, limited to monetary
/ .
Relating to or involving money/

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II- Tort
 Wrongful act or private injury committed by
one person against another or property which
may be followed in civil court by the injured
party. E.g. IM injection Vs Paralysis.
 The purpose of tort law is to make the injured
party whole again, primarily through monetary
compensation to damages.

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Tort Con’t
 Nurses provide comfort, and help patient
under their care.
 As human, nurses do not know everything and
some times makes a mistake.
 Common lawsuits against nurses include acts
of omission, negligence or by definition called
Unintentional tort. E.g. Timely bed making,
medication administration, positioning, e.t.c.

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Tort Con’t
 Torts are divided into two main categories;
 Unintentional tort or negligence;
 An unintentional tort is an unintended ,
wrongful act against another person producing
injury or harm.
 Negligence and malpractice are considered
unintentional torts.
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Tort Con’t
 The ethical concepts of non-maleficence,
the obligation to “do no harm” is to the
patient with underlying principle involved the
legal issue of intentional court. E.g. Wrong
medication (time, dose, route, e.t.c).
 Non violation of non-maleficence means
no harm would ever come to patients.
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Tort Con’t
 No grounds for lawsuit based on
intentional tort.
 Nurses are simply not viewed as
individuals who intentionally inflict injury.

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Tort Con’t
 Intentional tort;
 Refers to will or intentional acts that violates
another persons’ right or property wrongfully.
 Includes assault, battery, trespass to land,
and false imprisonment.
 These also may violate criminal laws, in
which case defendants can be held liable for
both civil damages and criminal violations.

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Defamation
 It is an oral or written communication that is
false to a third party and that tends to injure
his/her reputation(status,name).
 Diminish the esteem, respect, good will or
causes unpleasant feeling or opinions against
him or her.
 Libel is defamation in a written form.
 Slander is defamation in oral form.
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Assault and Battery
 Assault is a threat or an attempt to make
bodily contact with other person without that
person’s consent.
 Battery is an assault that is carried out. ( like a
case of obsessive compulsive-repetition).
 Includes every deliberate, violent, angry or
negligent touching of another person or cloth.

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Assault and Battery Con’t
 Example;
 Forcing forcibly a client’s clothing.
 Administering an injection following the
clients refusal.
 Pushing a client in to chair.

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Relationship between
consent, assault, battery
 Any kind of procedure, that is performed without
patient consent is battery.
 If the health care practitioner performs the treatment
that the patient is consented too but fails to make
a proper disclosure when obtaining that consent,
the tort is negligent. If the procedure is different from
the one the patient is consented too, the tort is
battery.
E.g. Michael Jackson case.
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Trespass to land
 It is the unlawful interference with another
possession of land.
 Intrudes(interapets) on to a property, fails to leave a
property, throw or places something on the land.
 It could be intentional or negligent act.
E.g. Refusing a patient to leave up on discharge or
visitor refuses to comply with visiting policies.
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Plaintiff
 Party initiating the lawsuit.
 The person actually harmed or damaged by the
defendant.
 Defendant:-Person or entity being sued.
 Liability:-Legal responsibility.
 Subpoena:-court order that requires a person
to come to a court or appear at specific place
to give testimony.
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Malpractice
 The failure of a professional to exercise
the degree of skill and learning commonly
applied by the average prudent reputable
member of the profession.
 Also known as professional negligence,
as only professional can be sued for
malpractice.
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Malpractice Con’t
 A negligent act is considered malpractice, as
committed by a professional carrying out
professional duties, not under other
circumstances.
 Ex. Car accident by a nurse –negligence and
not malpractice –but wrong medication is a
malpractice.
 Negligence-failure to follow-up, to disclose,
failure to give care.
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 To Prove Liability for
malpractice
 The plaintiff/applicant/must prove four elements
of negligence:
 A duty/obligation/owed to the plaintiff.
 A breach of duty or standard of care by the
professional in performing that duty. (Medication
administration UIQ instead of UOQ).
 A proximate cause or causal connection between the
breach and the harm or damages. Should scientifically
proved.
 Actual harm or damages suffered by the plaintiff.
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Defenses against
Negligence
 No duty owed/allocated.
 No departure from standard of care.
 Causation- injury not caused by the
departure.
The plaintiff must prove the case by a
prevalence of evidence and convince the
jury.
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Types of witness
 Fact witness-
witness Limited to testify facts;
matters of which she/he is personally
knowledgeable – “This is what I saw”.
 Person having knowledge about
circumstances surrounding the events.
 Phrases like “ I think”, “on the other hand”,
e.t.c should be forbidden.
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Types of witness Con’t
 Character witness- can attest/
Provide evidence for; stand as proof of

to that individual’s in the community.

 Expert witness- one so qualified through
their knowledge, education, and
experience that the court recognizes that
individual as an expert. Most of the time
they are to defendant side.
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Types of witness Con’t
 Standard of care in malpractice is mostly
determined by expert witness.
 The role is to describe the “reasonable care
that is required under the circumstances.
 Expert testimony/ is needed to
Something that serves as evidence

educate judges who does not have the training

and experience to make decisions.

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