Malpractice

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MALPRACTICE
I. NEGLIGENCE OF HEALTH CARE PROFESSIONALS
1. Medical Malpractice
 Doctors are experts, who, because of their training are required to exercise utmost
diligence in the performance of their tasks to be able to arrive at the medical
profession‘s goal of the preservation of life and maintenance of the health of the
people. So when a physician strays from this sacred duty and endangers instead
the life of his patient, he must be made to answer therefor and let it go
uncondemned by society and the courts.
 A physician is bound to serve the interest of his patients with the greatest
solicitude, giving them always his best talent and skill
1.01. Doctor-Patient Relationship
 Created when the services of a physician are rendered to and accepted by another
for the purposes of medical or surgical treatment , even by giving advice
 Basically a contractual relationship, hence liability of a doctor due to negligence
may arise from a contract
1.02. Elements of Liability for Medical Malpractice
 Delict
 Quasi-delict
 Ex contractu
 Contract

3 Requisites When Liability is Based on Quasi-Delict
 An act or omission constituting fault or negligence
 Damage suffered by the injured party
 Causal relation between the act or omission and damage
a. Duty
 4 Essential Elements Plaintiff Must Establish in Medical Malpractice
Liability:
-duty: standard of behavior w/c imposes restrictions on one‘s conduct
-breach
-injury
-proximate cause

A doctor is under a duty to exercise that degree of care, skill and diligence
which doctors on the same general neighborhood and in the same general line of
practice ordinarily posses and exercise in like cases.

This standard of level of care, skill and diligence is a matter best addressed by
expert medical testimony because the standard of care in a medical malpractice
case is a matter peculiarly with the knowledge of experts in the field.

There is breach of duty when patient is injured.

In proximate cause, the injury for which recovery must be sought must be the
legitimate
consequence of the wrong done; the connection between the negligence and the
injury must be a direct and natural sequence of events, unbroken by intervening
efficient causes.

Proximate cause is that which in natural and continuous sequence, unbroken by
any efficient intervening cause, produces injury, and without which the result
would not have occurred. Proven by preponderance of evidence, expert‘s role is
to present a realistic assessment of the likelihood that alleged negligence caused
the patient‘s injury.

Why need testimony of experts? Because they possess unusual technical skills
which laymen in most instances are incapable of intelligently evaluating.

GR: ―Duty‖ is not needed to be proven in quasi-delict cases
XPN: medical malpractice cases

b. Liability Based on Contract
If the liability sought to be enforced arises from delict or quasi-delict, the
presence of contract is not an element of cause of action in a medical
malpractice case.

1.03. Standard of Care- that degree of care and skill ordinarily employed by the
medical profession generally under similar conditions, and in like surrounding
circumstances
a. Examples of Negligence of Doctors
 Failure or delay to attend to patient
 Error in diagnosis and treatment
 Failure to take full medical history
 Failure to give proper advice or negligence in communication
 Inadequate preparation of patient prior to a procedure
 Failure to conduct a thorough examination on a patient
b. General Practitioners vs Specialists
 For general practitioners- the standard of care expected is ORDINARY
care and diligence in the application of his knowledge and skill in the
practice of his profession as other general practitioners
 For specialists- standard of care expected is that of an average
specialist, not an average physician; SPECIAL degree of care and skill
which physicians, similarly situated who devote special study and attention
to the treatment of such organ, disease or injury ordinarily possess
 National Standards- yardstick or benchmark that is expected of
competent doctors in the Philippines, considering that they all have the
same access to medical knowledge in the same specialty or field of
practice.
1. Medical school admission
2. Curricula
3. Internship and residency
4. Access to professional and scientific journals
5. Seminars for continuing education
 Locality Rule/Standards- when the doctor has a practical working
knowledge of the personnel and their competence, facilities, equipment,
services, resources and options available to him as well as the limitations
for the execution of his profession. The resources available to him
generally dictates the kind of care that he can deliver.
 Neighborhood Rule- the duty of the doctor to exercise that degree of
care, skill and intelligence which doctors in the same general
neighborhood and in the same general line of practice ordinarily possess
and exercise in like cases. Breach of which is rebuttable by the testimony
of an expert witness. Proxomity—those who are cosely and directly
affected by such act. This rule is not subscribed to determine negligence
of doctors.
 Common Professional Practice- this is the doctor‘s adherence to what
has been customary as common professional practice, in the treatment of
patients. Compliance to such is strong evidence of prudence or non-
negligence in the performance of his duties.
1.04 Doctors Are Not Warrantors
 No doctor can guarantee results. They are not warrantors of cures or
insurers against personal injuries or death of a patient especially proper
degree of care and skill is used. (Liberata Morales vs Mary Johnston
Hospital)
 In Roe vs Minister of Health, it was held that medical science has been
conferred with great benefits but attended by considerable risks, as in
operations. Doctors like the rest of us, have to learn by experience; and
experience of the teaches the hard way. Something goes wrong and
shows up a weakness, and then it is put right.
 Garcia-Rueda vs Pascasio
 Cayao-lasam vs Spouse Ramolete: the proximate cause of the injury of
the patient was the latter‘s omission when she did not return for her
follow up check in defiance of doctor‘s orders.
a. Result Not Determinative
It does not necessarily mean that when patient does not get well or a
bad result occurs, there is failure to exercise due care. The result is not
determinative of the performance of the physician and he is not required
to be infallible (foolproof)---where damnum absque injuria applies


1.05 Error of Judgment
It only becomes or is considered negligence if it is one that would not have
been made by a reasonably competent professional professing to have that
standard of care and type of skill that the defendant held himself out as
having and acting with ordinary care; there is want of due care and
diligence in judgment
1.06 Proof
 Burden of proof- upon the plaintiff who alleges, by preponderance of
evidence. Plaintiff must prove:
1. He has been injured
2. Defendant was at fault
3. Defendant‘s fault caused the injury
 Needs expert testimony
a. Judicial Notice
Gr: Proof is required to establish negligence
Xpn: No proof is necessary if the court can take judicial notice of a
particular fact
Laws of nature involving physical sciences are well established facts and
therefore no proof is necessary to attest its veracity
1.07 Expert Testimony
There is no better testimony in medical malpractice than that of a fellow
expert in the same field of practice. These doctors possess unusual
technical skills which laymen in most instances are incapable of intelligently
evaluating. A doctor is one presumed to be practicing necessary precaution
and employs the best of his knowledge and skills in attending to his
patients, unless the contrary is sufficiently established by an expert opinion.
*Note: in reality, it is hard to find a doctor who will testify against a
colleague in malpractice cases
a. What Must Be Established Through An Expert
It must determine the reasonable level of care and the breach thereof,
to support the conclusion as to causation.
b. Documents in Support of Expert Testimony
Clinical literature such as:
1. Pharmaceutical package insert instructions and warnings
2. Physician Desk Reference
3. Learned Treatises
4. Research findings
5. Clinical Practice Guidelines
1.08 Res Ipsa Loquitur- the thing speaks for itself
 This allows the mere existence of a injury to justify a presumption of
negligence on the part of the person who controls the instrument
causingthe injury
 Requisites:
1. The accident is of a kind which ordinarily does not occur in the
absence of someone‘s negligence
2. It is caused by an instrumentality within the exclusive control of the
defendants
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated
 It is limited to cases where the court from its fund of common
knowledge can determine the standard of care, otherwise the testimony
of an expert is sought
 Ramos vs CA: when the doctrine of res ipsa loquitur is availed of , the
need for an expert testimony is dispensed with because the injury itself
provides proof of negligence

GR: the necessity of an expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that
are within the common knowledge of mankind, which may be testified
by anyone familiar with the facts.

Facts that are clearly observable by anyone may be given by a non-
expert witness.

When this doctrine is appropriate, all the patient must do is to prove
the nexus between the particular act or omission complained and the
injury sustained without the need of an expert medical testimony

Res ipsa loquitur can have no application in a suit against a physician or
surgeon which involves the merits of a diagnosis or of a scientific
treatment; not available if the desired result of an operation was not
accomplished.

Not all case anesthesia cases can be availed of res ipsa loquitur, each
case must be viewed in tis own light and scrutinized in order to be
within the res ipsa loquitur coverage

 Voss vs Bridwell: mastoid operation which never happened resulted
in decerebrate posture and totally incapacitated.

 Reyes vs Sisters of Mercy Hospital

 Other Cases of Res Ipsa Loquitur:
1. Leaving a foreign object in the body cavity of a patient after
surgery
2. Injuries sustained on a healthy part of the body not under
treatment
3. Removal of wrong part of the body, when another part was
intended
4. Knocking out a tooth while a patient‘s jaw was under anesthesia for
tonsil removal
5. Loss of an eye while patient following an appendectomy
1.09 Lost Chance Rule/ Risk of Harm Doctrine
 When a plaintiff claims that prior to negligence, there was a chance that
he would have been better off with adequate care; due to negligence,
this chance has been lost
 Allows the plaintiff to obtain damages from a defendant for a heightened
risk of death or injury , even if the plaintiff cannot prove by
preponderance of evidence that the injury was caused by defendant‘s
negligence
 Applicable in cases where the plaintiff has 50% or less chance of
survival or better outcome prior to negligence


DOTRINE OF INFORMED CONSENT
 Unless excused, the doctor must secure the consent of his patient to a particular
treatment or an investigative procedure.

Nature of Liability
 A doctor may be liable for quasi-delict under Article 2176 of the New Civil Code if he
negligently failed to secure the consent of a patient to treatment.
 It is a duty to warn of the dangers lurking in the proposed treatment, and that is surely
a facet of due care.
 A physician is under a duty to treat his patient skillfully but proficiency in diagnosis and
therapy is not the full measure of his responsibility.
 A physician is under an obligation to communicate specific information to the patient
when the exigencies of reasonable care call for it.



Rationale and History of Liability for Informed Consent
 The negligence theory of consent puts the patient and the health practitioner on a more
even footing that they were previously, particularly when inadequate disclosure of
information is concerned.
 In Dr. Rubi Li v. Spouses Soliman, the Suprement Court explained the nature and
history of the doctrine of informed consent as follows:
―The doctrine of informed consent within the context of physician-patient relationships
goes far back into English common law. As early as 1767, doctors were charged with
the tort of ―battery‖ (i.e., an unauthorized physical contact with a patient) if they had
not gained the consent of their patients prior to performing a surgery or procedure.‖
 From a purely ethical norm, informed consent evolved into a general principle of law
that a physician has a duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a proposed course of treatment,
so that a patient, exercising ordinary care for his own welfare, and faced with a choice
undergoing the proposed treatment, or alternative, or none at all, may intelligently
exercise his judgment by reasonably balancing the probable risks against the probable
benefits.

Elements of Liability
 The physician had a duty to disclose material risks;
 The physician failed to disclose or inadequately disclosed those risks;
 As a direct and proximate result of the failure to disclose, the patient consented to
treatment she otherwise would not have consented to; and
 The plaintiff was injured by the proposed treatment.

 The Court observed that the gravamen in an informed consent case requires the
plaintiff to ‗point to significant undisclosed information relating to the treatment which
would have altered her decision to undergo it.‘
 An unrevealed risk that should have been made known must materialize, for otherwise
the omission, however unpardonable, is legally without consequence.
 Objective Reasonable Patient Test – ―in terms of what a prudent person in the
patient‘s position would have decided if suitably informed of the perils bearing
significance.‖

Cases When No Duty to Disclose
o The duty to disclose risk information depends on the circumstances.
o An emergency situation is an accepted exception.
o Consent to treatment generally need not be secured if time is of the essence.

Scope of Duty
1. Professional Disclosure Standard
- Under this, ―a charge of failure to disclose should be judged by the standards
of the reasonable medical practitioner.
- The question under the standard is: did the doctor disclose the
information that, by established medical practice, is required to be
disclosed?

2. Reasonable Patient Standard
- The test for determining whether a particular peril must be divulged is its
materiality to the patient‘s decision: all risks potentially affecting the decision
must be unmasked.
- The focus is on what data the patient requires in order to make an intelligent
decision.

CAPTAIN OF THE SHIP DOCTRINE
- The surgeon is likened to a ship captain who must not only be responsible for
the safety of the crew but also of the passengers of the vessel.
- The head surgeon is made responsible for everything that goes wrong within
the four corners of the operating room.

LIABILITY OF HOSPITALS
 The Supreme Court clarified in Professional Services, Inc v Angana, the
different bases of liability of hospitals in relation to the negligence of
doctors:
―While in theory a hospital as a juridical entity cannot practice medicine, in
reality it utilizes doctors, surgeons and medical practitioners in the conduct of
its business of facilitating medical and surgical treatment. Within that reality,
three legal relationship crisscross: (1) between the hospital and the doctor
practicing within its premises; (2) between the hospital and the patient being
treated or examined within its premises; and (3) between the patient and the
doctor. The exact nature of each relationship determines the basis and extent
of the liability of the hospital for the negligence of the doctor.‖

VICARIOUS LIABILITY OF HOSPITAL AS EMPLOYER
- The basis for holding an employer solidarily responsible for the negligence of
its employees is found in Article 2180 of the Civil Code which considers a
person accountable not only for his own acts but also for those of others
based on the former‘s responsibility under a relationship of patria potestas.
- Such responsibility ceases when the persons or entity concerned prove that
they have observed the diligence of a good father of the family to prevent
damage.
DOCTRINE OF CORPORATE RESPONSIBILITY
- The duty of providing quality medical service is no longer the sole prerogative
and responsibility of the physician.
- Accordingly, the hospital has the duty to make a reasonable effort to monitor
and oversee the treatment prescribed and administered by the physicians
practicing in its premises.
- The corporate negligence doctrine imposes several duties on a hospital:
(i) to use reasonable care in the maintenance of safe and adequate facilities
and equipment; (ii) to select and retain only competent physicians; (iii) to
oversee as to patient care all persons who practice medicine within its walls;
and (iv) to formulate, adopt, and enforce adequate rules and policies to
ensure quality care for its patients.

LIABILITY FOR UNLAWFUL RESTRAINT
- The SC explained in Manila Doctors Hospital v So Un Chua, et al., that
―authorities, including those of common law origin, explicitly declare that a
patient cannot be detained in a hospital for non-payment of the hospital bill.
If the patient cannot pay the hospital or physician‘s bill, the law provides a
remedy for them to pursue, that is, by filing the necessary suit in court for
the recovery of such fee or bill. If the patient is prevented from leaving the
hospital for his inability to pay the bill, any person who can act on his behalf
can apply in court for the issuance of the writ of habeas corpus.‖

NURSES
 A person shall be deemed to be practicing nursing within the meaning of
Philippine Nursing Act of 2002 when he/she singly or in collaboration with
another, initiates and performs nursing services to individuals, families and
communities in any health care setting.
 It includes, but not limited to, nursing care during conception, labor, deliver,
infancy, childhood, toddler, preschool, school age, adolescence, adulthood, and
old age.

 It shall be the duty of the nurse to:
1. Provide nursing care through the utilization of the nursing process.
2. Establish linkages with community resources and coordination with the
health team.
3. Provide health education to individuals, families and communities.
4. Teach, guide and supervise students in nursing education programs
including the administration of nursing services in varied settings such
as hospitals and clinics.
5. Undertake nursing and health human resource development training
and research.
 A nurse must uphold the standards of safe nursing practice.
 A nurse must exercise that degree of skill, care and knowledge ordinarily
possessed by other nurses under the same circumstances.

Examples of Negligence of Nurses

A. Medication Error
It is a preventable event that may cause or lead to inappropriate use or patient harm
while the medication is in the control of the health care professional, patient or consumer.

Ex. Negligence with respect to the administration of drugs
Failure to administer the medication ordered by the doctor

B. Burns of Patients
-Lee v. Phoebe Putney Memorial Hospital, Inc., et al.

C. Assessment and Monitoring Errors
- It is a part of the function of a nurse is the monitoring of the patient‘s vital signs. Hence,
failure on the part of the nurse to perform such function may be the cause of late diagnosis
of the illness of the patient.
- An assessment is the continuous collection of data used to identify a patient‘s actual -- and
potential -- health needs. It includes data from a patient history, a physical examination, and
a review of pertinent laboratory and medical information.
- A nurse must also know what constitutes a proper assessment. Whether the assessment is
proper demands on how well it meets the standard of care. A nursing standard of care will be
held as the degree of care deemed adequate by the nursing profession.
- Houston v. Phoebe Putney Memorial Hospital, Inc.

D. Leaving Foreign Objects

E. Failure to Protect


➡ In many cases, the negligence of the nurse concurs with the negligence of the doctor, in
which case, the two of them are jointly and severally liable as a tortfeasor. Usually, the
nurse is employed by a hospital. Hence, the hospital shall be vicariously liable as an
employer of the nurse under Art. 2180 of the New Civil Code.


PHARMACISTS

• Republic Act No. 5921
Section 23. Definition of practice of pharmacy. A person shall be deemed to be
practicing pharmacy within the meaning of this Article, who shall, for fee, salary, percentage
or other reward paid or given directly to himself or indirectly through another, prepare or
manufacture, analyze, assay, preserve, store, distribute or sell any medicine, drug, chemicals,
cosmetics, pharmaceuticals, devices or contrivances used in pursuance thereof; or render
pharmaceutical service in any office or drug and cosmetic establishment where scientific,
technological or professional knowledge of Pharmacy is applied; or engage in teaching
scientific, technological or professional pharmacy subject in a college of pharmacy; or conduct
or undertake scientific pharmaceutical research for biological and bacteriological testings and
examinations.
However, persons performing executive managerial or administrative functions and their
subordinate personnel employed in the pharmaceutical laboratories referred to in the second
paragraph of Section twenty-seven hereof shall not be considered for purposes of this
definition, considered persons in the practice of pharmacy.
• Most successful lawsuits brought against pharmacist have their factual basis in an ―order
processing error‖ such as dispensing of the wrong drug, or the right drug in the wrong
strength, or the labeling of correct medication with incorrect directions
Degree of Care
• Pharmacists are to use the degree of care that persons of ordinary prudence engaged in the
profession are accustomed to use under the same or similar circumstances. The ordinary care
required has been further defined as the highest practicable degree of prudence,
thoughtfulness, and vigilance, and the most exact and reliable safeguards consistent with the
conduct of the profession, in order that human life may not constantly be exposed to the
danger flowing from the substitution of harmful medicines for harmless ones.
Res ipsa loquitur
• There is on obligation cast upon a pharmacist to see that no harmful or poisonous drugs
shall be delivered to a customer when a harmless one is asked for
• Proof of a mistake or inadvertence on the part of the druggist furnishes an inference
sufficient to establish a prima facie case. It raises a presumption of negligence which entitles
the customer to recover unless that presumption is rebutted.
Breach of Statutory Duty
• The duties imposed on the druggists by the statutes were intended as statutory tests of
care. Their nonobservance is per se neglect of duty, as well as neglect of care.
Examples of Breach of Duty of Care
• Mercury Drug v. De Leon
• As cited by the Supreme court:
• Tombari v. Conners
• Fleet v. Hollenkemp
• Smith‘s Admrx v Middleton
• United States v. Pineda
• Mercury Drug Corp. v. Baking



CLINICAL LABORATORIES
• Owners and operators of clinical laboratories have the duty to comply with statues, as well
as rules and regulations, purposely promulgated to protect and promote the health of the
people by preventing the operation of substandard, improperly managed and inadequately
supported clinical laboratories and by improving the quality performance of clinical laboratory
examinations.
Applicable Law
• Republic Act No. 4688 -- The Clinical Laboratory Law
• Republic Act 5527 -- The Philippine Medical Technology Act of 1969
• DOH Administrative Order No. 49-B Series of 1988 -- Revised Rules and Regulations
Governing the Registration, Operation and Maintenance of Clinical Laboratories in the
Philippines
Need for Licensed Physician
• A clinic Laboratory must be administered by a licensed physician authorized by the Secretary
of Health
• If the clinical laboratory lacks the required license and personnel, the operator of clinical
laboratory is deemed negligent because violation of a statutory duty is negligence.
• Garcia v. Salvador

NEGLIGENCE OF LAWYERS
1. Basis of Responsibility
a. Code of Professional Responsibility
• Cannon 18. A lawyer shall serve his client with competence and diligence
• Cannon 18.03. A lawyer shall not neglect a legal matter entrusted to him and his
negligence in connection therewith shall render him liable.
- An attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of
care and skill, having reference to the character of business he undertakes to do. Prone to
err like any other human being, he is not answerable to every error or mistake, and will be
protected as long as he acts honestly and in good faith to the best of his skill and knowledge.
2. Loss and Error of Judgement not bases of Liability
- Atienza v. Evanglista

3. Proof of Damage Necessary
- Dominga Roque, et al. v. Magtanggol C. Gunigundo

ACCOUNTANTS AND AUDITORS
1. ACCOUNTANTS
- Republic Act No. 9298 -- Philippine Accountancy Act of 2004
Section 2. Declaration of Policy. - The State recognizes the importance of accountants in
nation building and development. Hence, it shall develop and nurture competent, virtuous,
productive and well rounded professional accountants whose standard of practice and service
shall be excellent, qualitative, world class and globally competitive though inviolable, honest,
effective, and credible licensure examinations and though regulatory measures, programs and
activities that foster their professional growth and development.
- The standard to be applied is that of an ordinary accountant skilled in the knowledge, science
skill and practice of accounting rendering his professional services for his or her client.
2. INDEPENDENT AUDITORS
- audit of financial transaction and preparation of audit reports
- auditors may be held liable for breach of contract and negligence; they may also be made
liable for any perpetration of fraud upon an unsuspecting client
- The major purpose of an independent audit is to investigate and determine objectively if the
financial statements submitted for audit by a corporation have been prepared in accordance
with the appropriate financial reporting practices of private entities. The relationship that
arises therefrom is both legal and moral. It begins with the execution of the engagement
letter that embodies the terms and conditions of the audit and ends with the fulfilled
expectation of the auditor‘s ethical and competent performance in all aspects of the audit.
- The financial statements are representations of the client; but it is the auditor who has the
responsibility for the accuracy in the recording of data that underlies their preparation, their
form of presentation, and the opinion expressed therein. The auditor does not assume the
role of employee or of management in the client‘s conduct of operations and is never under
the control or supervision of the client.
- The auditor is liable if he or she did not meet the expectations by negligently performing his
functions or by perpetrating fraud.
- The client cannot be blamed for his unintelligent choice in the selection and appointment of
an auditor
- The Philippine Regulation Commission (PRC) through the Board of Accountancy (BOA),
require not only accreditation for the practice of public accountancy, but also the registration
of firms in the practice thereof.






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