- G.

MEDICAL NEGLIGENCE/Medical Malpractice

- This is professional negligence by act/omission by a health care provider in which the treatment
provided falls below the accepted standard of practice in the medical community and causes
injury or death to the patient, with most cases involving medical error.
- NOTE: expert testimony is necessary to prove that a physician has done a negligent act or that
has deviated from the standard of medical practice.
- The complainant/ patient must be able to establish the ff:
- 1) The physician has a duty to his patient.
- 2) The physician failed to perform such duty to his patient.
- 3) As a consequence of the failure of the physician to perform his duty, injury was
sustained by the patient
- 4) The failure of the physician to perform his duty is the proximate cause sustained by
the patient
- Jurisdiction
- Regular courts
- Excep if it is blabla
- 4 Elements of Medical Negligence
- 1) existence of physician-patient relationship
- 2) breach of duty
- 3) injury caused
- 4) causal connection between the breach of duty and the injury caused
- 1. Duty
- There must be a Physician-Patient Contractual Relationship (PPCR), which is the
primordial basis of medical negligence cases
- In accepting a case, a physician in effect represents that, having the needed training and
skill possessed by a physician and a surgeon practicing in the same field, the physician
will employ such training, standard of care and skill in the treatment of his/her patients
- The standard of care for physicians requires that they exercise that degree of skill,
knowledge, training, and care ordinarily possessed and exercised by other members of
the profession acting under similar conditions and circumstances
- Standard of Care
- The level of care, skill, knowledge and treatment that, under the circumstances,
is recognized as acceptable and appropriate by reasonable prudent members of
the profession under similar conditions and circumstances.
- NOTE: Breach of Standard of Care constitutes Negligence
- No matter what a physician does, he/she will not be found liable if the standard of
care is maintained
- Bad result and Errors of Judgment does not necessarily mean Malpractice
- Highest skill is not required
- Standard of Care of Specialists
- A practitioner will be held to this higher standard of care if he/she has
specialized training regardless of whether or not the practitioner hold
himself out as a specialist
- A physician has the responsibility to consult a specialist or to refer a
patient to a specialist when he knows, or in the exercise of reasonable
care should know, that superior treatment might thereby be obtained
- There is a need of expert testimony to establish the Standard of Care to establish
whether the physician deviated from the applicable standard of care expected
from him when the injury occurred
- A laymen is not equipped with the common knowledge or experience to judge the
skill and competence of the practice at issue and determine whether it meets the
standard of such professional practice in their community
- The standard of care is based on the care that similarly trained physicians would
give.
- Kinds of Standard of Care
- 1) National Standard of Care
- It is the diligence determined on what is applicable on a national standard
basis
- The PH jurisdiction uses the National Standards of Care, as all the
certifying Speciality boards are national in scope
- The Standard of Care does not necessarily mean the "best", but rather
one that is considered "acceptable" and "adequate" to reasonable
medical practitioners under similar circumstances.
- 2) Locality Standard
- It is the standard of care measured by the degree of care in the locality
- The physician is not considered negligent if he applies the method of
diagnosis and treatment which the same physicians in the same locality
would have applied when they see similar cases and under the same
situation
- 3) Respectable Minority Standard
- So long as a respectable minority of physicians endorse the treatment
and believe that it will be effective, the doctor cannot be held liable for
medical malpractice solely for recommending it.
- 2. Breach of Duty
- This occurs when the physician fails to comply with those professional standards. If
injury results to the patient because of this breach, the physician is answerable for
negligence.
- In proving that there was breach, 2 pronged pieces of evidence are required:
- 1) evidence as to the recognized standards of the medical community in the
particular kind of case; and
- 2) a showing that the physician in question negligently departed from this
standard in his treatment.
- NOTE: These entails expert testimonies which call for a full blown trial
- 3. Damages or Injury
- Art 2197, CC Damages may be:
- 1) Actual or compensatory - 2) Moral
- 3) Nominal - 4) Temperate or moderate
- 5) Liquidated - 6) Exemplary or corrective
- 4. Direct or Proximate Cause
- It is defined as that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not
have occurred.
- Negligence cannot create a right of action unless it is the proximate cause of the injury
- Test to determine proximate cause:
- 1) Actual Case /"but for" test or "Sine qua non" rule
- The patient would not have been harmed were it not for the physician's
actions.
- This test requires a firm finding that the physician's negligence was an
absolute prerequisite to what happened
- This is a question of cause in fact (actual cause). The act/omission must
be a material factor (a prerequisite) in the occurrence of the event.
- 2) Substantial Factor Test
- The substantial factor standard generally produces the same results as
does the "but for" rule of causation which states that a defendant's
conduct is a cause of the injury if the injury would not have occurred 'but
for' that conduct.
- The relationship between cause and effect need not be established with
absolute certainty. It merely requires that the physician's negligence is a
major contributor to the patient's injury
- In determining whether negligence was a substantial factor in causing the
harm, a substantial factor test applies to events which results in inquiry,
not injury itself, and injury need not only flow directly from the event.
- 3) Foreseeability Test
- Whether the physician should have reasonably foreseen, as a risk of
his/her conduct, the reasonable consequences or type of harm suffered
by the patient
- This test requires that:
- a) reasonably foreseeable result or type of harm
- b) no superseding intervening force
- A physician cannot be held accountable for negligence if the injury
sustained by the patient is on account of unforeseen conditions but if a
physician fails to ascertain the condition of the patient for want of the
requisite skill and training is answerable for the injury sustained by the
patient if injury resulted thereto.
- NOTE: A physician owes duty of care to all persons who are foreseeably
endangered by his conduct, with respect to the risk which makes the
conduct unreasonable and dangerous.
- Quasi Offenses: Criminal Negligence
- 1) Simple Negligence
- This is, penalized under Art 365,RPC, a "mere lack of prevision in a situation
where either the threatened harm is not immediate or the danger not openly
visible."
- Stated differently: The gravamen of the offense of simple negligence is
the failure to exercise the diligence necessary for the situation which was
not immediately life-destructive but which culminated in the death of a
patient.
- 2) Reckless Imprudence
- (aka Gross Negligence)
- The elements of reckless imprudence are:
- 1) that the offender does or fails to do an act
- 2) that the doing or the failure to do that act is voluntary
- 3) that it be without malice
- 4) that material damage results from the reckless imprudence
- 5) that there is inexcusable lack of precaution on the part of the offender,
taking into consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances regarding
 persons, time and place.
- Physicians may become liable for malpractice through:
- 1) The physician's own negligence
- 2) The negligence of the physician's employees
- 3) The physician's failure to obtain the informed consent of the patient prior to treatment
- 4) Breach of PPCR
- 5) Negligence of physician's partners
- H. DOCTRINES
- 1. Medical Negligence Doctrines Applicable to both Patient and Physician
Tortfeasors
- a) Doctrine of Common Fault
- It is defined as the conduct on the part of the plaintiff/injured party, contributing as
a legal cause to the harm he has suffered, which falls below the standard which
he is required to conform to his own protection
- a.1) Doctrine of Contributory Negligence
- The act/omission amounting to want of ordinary care in the part of the
complainant or plaintiff, which, concurring with the negligence of the
accused or the defendant is the proximate cause of the injury.
- Legal basis of Contributory Negligence (Art 2179,CC)
- "When the plaintiff's own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. x x x
- a.2) Doctrine of Comparative Negligence
- The degree of negligence of the plaintiff-patient is compared to the
degree of negligence of the defendant-physician.
- Legal Basis of Comparative Negligence (Art 2179,CC)
- x x x But if his negligence was only contributory, the immediate
and proximate cause of the injury being the defendant's lack of
due care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded."
- "The proximate cause of an injury is that cause which, in natural
and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not
have occurred."
- b) Doctrine of Assumption of Risk
- This is predicated upon knowledge and informed consent; thus, anyone who
voluntarily assumes the risk of injury from a known danger, if injured, is barred
from recovery
- Also known as "Volenti non fit injuria" means that a person who assents and
was injured is not regarded in law to be injured.
- 4 elements required:
- 1) Express Agreement / Implied Acceptance of Risk
- 2) Knowledge of Risk
- 3) Voluntary Assumption
- 4) Injury
- c) Doctrine of Last Clear Chance
- Also known as "Doctrine of Discovered Peril" / "Doctrine Supervening
Negligence"
- A physician who has the last clear chance of avoiding damage/injury but
negligently fails to do so is liable
- Example: A person who has sufficient opportunity to avoid a possible
accident, after noticing the danger, doesn't avoid it then he is liable.
- Where both parties are negligent in such a way that it would be impossible to
determine whose negligence was the proximate cause of the accident, the party
who had the last clear chance to avoid the accident by the use of proper care but
failed to do so is considered in law solely responsible for the consequences of
the accident.
- d) Doctrine of Informed Consent
- A physician has a duty to disclose what a reasonable prudent physician in the
medical community in the exercise of reasonable care would disclose to his
patient as to whatever grave risk of injury might be incurred from a proposed
course of treatment, so that a patient, exercising ordinary care for their own
welfare and faced with a choice of undergoing the proposed treatment, as
alternative treatment, or none at all, may intelligently exercise his judgment by
reasonable balancing the probable risk against the probable benefits
- Elements one must prove in a malpractice action based upon the doctrine of
informed consent:
- 1) the physician had a duty to disclose material risks
- 2) he failed to disclose / adequately disclose those risks
- 3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment they otherwise would not have consented to
- 4) patient is injured by the proposed treatment
- 2. Medical Negligence Doctrines Applicable to Physician Tortfeasors
- a) Doctrine of Independent Contractor
 - Under the Doctrine of Apparent Authority, each and every person is responsible
for his own torts. Here there is no employer-employee relationship hence the
physician is solely liable.
- It has been held that in determining whether an EE-EE relationship exists
between the parties, the ff elements must be present:
- 1) selection and engagement of services
- 2) payment of wages
- 3) the power to hire and fire
- 4) the power to control not only the end to be achieved, but the means to
be used in reaching such an end.
- NOTE: a hospital can be held vicariously liable for the negligent acts of a
physician providing care at the hospital, regardless of whether the physician is an
independent contractor, unless the patient knows, or should have known, that the
physician is an independent contractor.
- b) Doctrine of Res Ipsa Loquitur (aka Doctrine of Common Knowledge)
- Res Ipsa Loquitur means "The thing speaks for itself"; nature of the wrongful
act/injury is suggestive of negligence
- This Doctrine as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established even in the absence
of a direct proof and furnishes a substitute for specific proof of negligence
- This doctrine is not a rule of substantive law, but merely a mode of proof or a
mere procedural convenience
- Mere invocation of this doctrine and application of the doctrine does not dispense
with the requirement of proof of negligence.
- Requisites of Res Ipsa Loquitur:
- 1) The accident must be of a kind of which ordinarily does not occur in the
absence of someone's negligence
- 2) It must be caused by an agency or instrumentality within the exclusive
control of the defendant
- 3) It must not have been due to any voluntary action or contribution on the
part of the plaintiff.
- In the above requisites, the fundamental element is the control of the
instrumentality which caused the damage.
- c) Doctrine of Foreseeability
- A physician cannot be held to be negligent if the injury sustained by the patient is
on account of unforeseen conditions, after exercise of due care and diligence; but
if a physician fails to ascertain the condition of the patient, for want of the
requisite skill and training, is answerable for the injury sustained by the patient if
injury resulted thereto.
- NOTE: A physician owes duty of care to all persons who are foreseeably
endangered by his conduct, with respect to the risk which make the conduct
unreasonable and dangerous.
- 3. Medical Negligence Doctrines Applicable to Physician and 3rd party Tortfeasors
- a) Doctrine of Vicarious Liability (aka Imputed Negligence)
- This doctrine makes the employer responsible for a lack of care on the part of an
employee in relation to those to whom the employer owes a duty of care.
- This Doctrine is an exception to the general rule that every person is responsible
for his/her own torts
- Also is defined as where the principal is responsible for the acts of his agents.
- NOTE: The doctrine makes the employer responsible for a lack of care on the
part of an employee in relation to those to whom the employer owes a duty of
care; absent such duty of care to a patient, the employer is not liable even if the
employee acts negligently
- NOTE: For this doctrine to apply, the employee's negligence must occur within
the scope of their employment. Ex. A nurse tasked to man the emergency room
went instead to man the operating room and caused a negligent act, then the
hospital is not liable as the employee acted outside the scope of their
employment.
- NOTE: Under Art 2181 Whoever pays for the damage caused by his dependents
or employees may recover from the latter what he has paid or delivered in
satisfaction of the claim
- b) Doctrine of Ostensible Agent (aka Doctrine of Apparent Authority/Agency)
- Apparent authority results from a manifestation by the principal to a 3rd person
that another is his agent.
- The manifestation may be made directly to the 3rd person or to the community at
large by signs or advertising
- Apparent authority exists only to the extent that it is reasonable for the 3rd person
dealing with the agent to believe the agent is authorized.
- This refers to the power to affect the legal relations of another person by
transactions with 3rd persons, professedly as agents of the other, arising from
and in accordance with the others manifestations to such 3rd persons.
- c) Captain of the Ship Doctrine (aka Command Responsibility Doctrine)
- It is the legal doctrine which holds that, during an operation in an operating room,
 the lead surgeon is liable for all actions conducted in the course of the operation
by him, his assistants, subordinates, etc.
- d) Borrowed Servant Doctrine
- Resident physicians, nurses and other personnel of the hospital are
employees/servants of the hospital. By fiction of law, they are deemed borrowed
from the hospital by someone and for any wrongful act committed by them during
the period, their temporary employer must be held liable for the discharge of their
acts and duties
- In the determination if one is a borrowed servant, it is necessary that he is not
only subjected to the control of another with regard to the work done and the
manner of performing it but also that the work to be done is for the benefit of the
temporary employer.
- Defense Doctrines
- a) Rescue Doctrine (aka Emergency Doctrine)
- It is not contributory negligence to attempt to rescue a person or property from
danger unless the attempt is completely reckless under the circumstances
- I. CASES
- 1. Carillo v. People G.R. No. 86890, January 21, 1994
- 2. Batiquin v. CA G.R. No. 118231, July 5, 1996
- 3. Garcia-Rueda v. Office of the City Prosecutor G.R. No. 118141, Sept 5, 1997
- 4. Cruz v. CA G.R. No. 122445. November 18, 1997
- 5. Ramos v. CA, DSMC G.R. No. 124354 December 29, 1999
- 6. Reyes v. Sisters of Mercy Hospital G.R. No. 130547 October 3, 2000
- 7. Ruñez Jr. v. Dr. Jurado, A.M. No. 2005-08-SC, December 9, 2005
- 8. Nogales v. Capitol Medical Center G.R. No. 142625, December 19, 2006
- 9. PSI v Agana G.R. No. 126297 January 31, 2007
- 10. Cantre vs Sps Go G.R. No. 160889 April 27, 2007
- 11. Ilao-Oreta vs. Sps. Ronquillo G.R. No. 160889 April 27, 2007
- 12. Sps. Flores vs. Sps. Pineda G.R. No. 158996 November 2008
- 13. Lasam vs. Sps. Ramolete G.R. No. 159132 December 8, 2008
- 14. Lucas vs Tuaño G.R. No. 178763 April 21, 2009
- 15. Dr. Li vs. Sps. Soliman G.R. No. 165279 June 7, 2011
- 16. Atienza vs. Board of Medicine G.R. No. 177407 February 9, 2011
- 17. Dr. Jarcia and Bastan vs. People G.R. No. 187926 February 15, 2012
- 18. DR. CERENO, and ZAFE vs. CA G.R. No. 167366, September 26, 2012
- 19. DR. LUMANTAS vs. CALAPIZ G.R. No. 163753, January 15, 2014
- 20. DR. ANTONIO P. CABUGAO vs. PEOPLE G.R. No. 163879 July 30, 2014
- 21. DR. NOEL CASUMPANG vs. CORTEJO G.R. No. 171127, March 11, 2015
- 22. DR. JAIME T. CRUZ v. DR. AGAS, JR., G.R. No. 171217 G.R. No. 204095, June 15, 2015
- 23. PEDRITO DELA TORRE vs. DR. ARTURO IMBUIDO G.R. No. 192973 Sept 29, 2014
- 24. Rosit vs. DDH G.R. No. 210445 December 7, 2015
- 25.Solidum et al vs. People G.R. No. 192123 March 10, 2014
- J. PHYSICIAN-PATIENT CONFIDENTIALITY PRIVILEGE COMMUNICATION
- Before it was known as Confidentiality, but today, not anymore as it differs from
physician-patient confidentiality privilege communication.
- Medical Confidentiality refers to the confidentiality that must be exercised by the
physician and also by other persons, even not doctors, as to the HIV status of a patient.
- Legal Basis of Confidentiality: RA 11166 "New HIV Policy Act"
- Concept of Physician-patient Privileged Communication
- It is also a Fiduciary Relationship; where a patient justifiably relies upon the physician to
protect his/her personal interests and/or act in his/her best interest
- This may be waived by the patient in the absence of a timely objection
- The burden of proof is on the one who claims the privilege
- This also extends to the hospital itself
- Legal basis of the Physician-Patient Privileged Communication
- Rule 130, fSec24(c), RoC
- Rule 130 Admissibility
- Sec 24 Disqualification by reason of privileged communication - The
following persons cannot testify as to matters learned in confidence in the
following cases:
- (c) A physician, psychotherapist or person reasonably believed by the
patient to be authorized to practice medicine or psychotherapy cannot in a
civil case, without the consent of the patient, be examined as to any
confidential communication made for the purpose of diagnosis or
treatment of the patient’s physical, mental or emotional condition,
including alcohol or drug addiction, between the patient and his or her
physician or psychotherapist. This privilege also applies to persons,
including members of the patient’s family, who have participated in the
diagnosis or treatment of the patient under the direction of the physician
or psychotherapist.
- A "psychotherapist" is:
- a) a person licensed to practice medicine engaged in the
diagnosis or treatment of a mental or emotional condition
 - b) a person licensed as a psychologist by the Gov while
similarly engaged.
- Exceptions:
- Medical confidentiality shall not be considered breached in the ff cases:
- a) when complying with reportorial requirements in conjunction with the
AIDSWATCH programs
- b) when informing other health workers directly involved or about to be
involved in the treatment or care of a person with HIV/AIDS: Provided,
that such treatment or care carry the risk of HIV transmission: Provided,
further, that such workers shall be obliged to maintain the shared medical
confidentiality
- c) when responding to a subpoena duces tecum and subpoena ad
testificandum issued by a Court with jurisdiction over a legal proceeding
where the main issue is the HIV status of an individual: Provided, that the
confidential medical record shall be properly sealed by its lawful custodian
after being double-checked for accuracy by the head of the office or
department, hand delivered, and personally opened by the judge:
Provided, further, that the judicial proceedings be held in executive
session.
- NOTE: Any violation of medical confidentiality shall suffer the penalty of imprisonment
for 6-mons to 4-yrs, without prejudice to administrative sanctions such as fines and
suspension or evocation of the violator's licenses to practice his/her profession, as well
as the cancellation or withdrawal of the license to operate any business entity and the
accreditation of hospitals, laboratories or clinics.
- NOTE: Disclosure to sexual partners - Any person whit HIV is obliged to disclose his/her
HIV status and health condition to his/her spouse or sexual partner at the earliest
opportune time.
- K. MEDICAL CERTIFICATE/MEDICAL RECORDS
- L. SPECIAL LAWS
- M. PHYSICIAN-PATIENT BOUNDARIES
- Grooming
- Used to describe the escalation and the positioning of the patient by the physician
making the patient more vulnerable to being used by the physician for his/her own
needs, instead of dealing with the patient's needs.
- Boundary Transgression
- Concept of Boundary Transgression
- The oath of Hippocrates states: "Whatever houses I will visit, I will come for the
benefit of the sick, remaining free of all intentional injustice, of all mischief, and in
particular, sexual relations with both female and male persons, be they free or
slaves"
- Transference and Countertransference
- 1) Transference is the unconscious assignment to others of feelings and attitudes that
was originally associated with important figures by the patient unto the physicians.
- 1.1) Positive Transference - which could lead to over idealization and over
disappointment if expectations are not met
- 1.2) Negative Transference - View MDS as harsh punitive parents - hatred/
noncompliance/ lost to follow up which could lead to sexual harassment
- 2) Countertransference is the physician's reaction to this process which could include
erotic feelings
- Legal Basis of Sexual Harassment (AIM WET IHO)
- Authority
- Influence
- Moral Ascendancy
- Work
- Education Environment
- Training
- Intimidating
- Hostile
- Offensive
- NOTE: Any person having authority, influence, or moral ascendancy over another in
work, education environment, training does any sexual advances or acts which would
result in intimidating, hostile, or offensive environment
- Negligence is the Cause of Action
- Negligence is the primary cause of action for a case of physician sexual misconduct
- The Physician-Patient Relationship is bound by the care and treatment needs by the
patient. Outside the fiduciary boundary are sexual relationships. A physician is negligent
for breaching these boundaries
- N. TERMINATION OF PHYSICIAN-PATIENT RELATIONSHIP
- 1) A physician or patient may terminate the relationship but it must follow certain processes
- As long as the patient is not acutely in need of immediate care and has been given
enough notice to find another physician
- It must be stated in writing and must state the date when the relationship will be
terminated
 - 2) Patient Abandonment
- Abandonment is the termination of a professional relationship between a physician and
patient at an unreasonable time and without giving the patient the chance to find an
equally qualified replacement
- Requires proof that:
- a) physician ended the relationship
- b) at a critical stage of the patient treatment
- c) without good reason
- d) without sufficient notice
- e) without allowing reasonable time to find a qualified replacement
- f) and patient was injured as a result
- Referral is not abandonment (Patient Piracy)
- Physician substitute is not abandonment
- O. MEDICO-LEGAL CONCEPT OF CRIME SCENE INVESTIGATION
- P. AUTOPSY
- Q. FORENSIC SEROLOGY
- R. DNA ANALYSIS
- S. MEDICO-LEGAL ASPECTS OF DEATH
- T. MEDICO-LEGAL ASPECTS OF PHYSICAL INJURIES
- U. MEDICO-LEGAL ASPECTS OF SEXUAL CRIMES
- V. POISONING/ALCOHOLISM/DRUG ABUSE