Medical Malpractice

Jayne Lao Medical Malpractice
Angeline Inguillo Legal Medicine
Lea Rioflorido Saturday
Katrina Valdez 3:00-4:00pm


Medical Malpractice: An Overview

Introduction

It has been said that the laws are applied in everything, and it starts right after birth up to
one’s death. Law is ubiquitous because one cannot evade it. It is present in schools, businesses,
transportation and even hospitals. Given all of these, it is important to be knowledgeable of what
laws can be utilized in one’s everyday life. This overview of medical malpractice will give a
glimpse as to how the law is applied in the field of medicine. It is geared to educate and inform
every one of the remedies available and how to be diligent in upholding their rights when the
necessity arises.

What constitutes the practice of medicine?

Under Section 10 of the Medical Act of 1959, practice of medicine is loosely defined in
an enumeration. It says that a person shall be considered as engaged in the practice of medicine:

(a) [W]ho shall, for compensation, fee, salary or reward in any form, paid to him directly
or through another, or even without the same, physical examine any person, and
diagnose, treat, operate or prescribe any remedy for any human disease, injury,
deformity, physical, mental or physical condition or any ailment, real or imaginary,
regardless of the nature of the remedy or treatment administered, prescribed or
recommended; or

(b) [I]maginary, regardless of the nature of the remedy or treatment administered,
prescribed or recommended; or

(c) [W]ho shall, by means of signs, cards, advertisements, written or printed matter, or
through the radio, television or any other means of communication, either offer or
undertake by any means or method to diagnose, treat, operate or prescribe any remedy
for any human disease, injury, deformity, physical, mental or physical condition; or

(d) [W]ho shall use the title M.D. after his name.

However, there are some limitations as to who are considered as a medical practitioner.
Those exempted are enumerated as follows:

(a) any medical student
(b) any legally registered dentist
(c) any duly registered masseur or physiotherapist
(d) any duly registered optometrist
(e) any person who renders any service gratuitously in cases of emergency
(f) any person who administers or recommends any household remedy
(g) any psychologist or mental hygienist

In comparison to the practitioners of law, medical practitioners as to date do not have a
form of integration that will unite them and closely monitor the acts of its members. Instead of an
Integrated Bar of the Philippines, what they have are specialized and distinct medical groups
such as Philippine Heart Association, Philippine Dermatological Society, and Philippine
Neurological Association.

As a result of this independent association, there is no resulting common code, akin to the
Code of Legal Ethics of lawyers, wherein the acts of a medical practitioner can be readily
identified as a medical malpractice. Instead, what is done is to solicit remedies from different
sources such as the Philippine Medical Act, Revised Penal Code, Administrative Code and Civil
Code.


Physician-Patient Relationship

A Physician-patient relationship is formed when a patient engages the services of a
physician. The relationship of physician and patient exist if the professional services of a
physician are accepted by another person for the purposes of medical or surgical treatment. The
exact nature of this relationship has not been settled in the Philippine jurisdiction and even under
American jurisprudence from our law on medical malpractice originates

Similar to that of Attorney-Client relationships, patients and medical practitioners have a
privileged association. A physician-patient relationship involves a quasi-contract, implied
consent and such continues until the physician’s services are no longer needed or until
terminated by the parties.

Law practitioners, in the performance of their duties, are expected to exercise ordinary
diligence in the course of their profession. Medical practitioners on the contrary are expected to
exercise the standard care of extraordinary diligence in their profession. This is because the
practice of medicine is affected with public interest (Reyes v. Sisters of Mercy G.R. No.
130547. October 3, 2000).

Duty of a Physician

Duty refers to the standard of behaviour which imposes restrictions on one’s conduct. By
the Physician-patient relationship, a duty is imposed on the Physician to use the same level of
care that any reasonably competent doctor would use to treat a condition under circumstances.

Diligence Required

Extra Ordinary Diligence
In the case of Reyes vs. Sisters of Mercy Hospital, G.R. No. 130547
(October 3, 2000), there is no doubt that a physician-patient relationship existed between
respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at least
the same level of care that any reasonably competent doctor would use to treat a
condition under the same circumstances. It is breach of this duty which constitutes
actionable malpractice. As to this aspect of medical malpractice, the determination of the
reasonable level of care and the breach thereof, expert testimony is essential. Inasmuch as
the causes of the injuries involved in malpractice actions are determinable only in the
light of scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation. there is no doubt that a physician-
patient relationship existed between respondent doctors and Jorge Reyes. Respondents
were thus duty-bound to use at least the same level of care that any reasonably competent
doctor would use to treat a condition under the same circumstances. It is breach of this
duty which constitutes actionable malpractice. As to this aspect of medical malpractice,
the determination of the reasonable level of care and the breach thereof, expert testimony
is essential. Inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to causation.

Negligence versus Malpractice

The concepts of negligence and malpractice are used interchangeably. However they are
not the same. To distinguish, negligence is a violation of a statutory duty and it is the omission of
the diligence required under the attendance circumstances resulting damage or injury to another;
while malpractice is the failure of a professional, to render proper services through reprehensible
ignorance or negligence or through criminal intent, especially when injury or loss follows.
Although similar in nature, malpractice is deemed embraced under the concept of negligence.
Medical Malpractice
Pineda (Torts and Damages, 2009) defines it as a particular form of negligence which
consists in the failure of the physicians or surgeon to apply to his practice of medicine that
degree of care and skill which is ordinarily employed by the profession generally, under similar
conditions, and in like surrounding circumstances.

There is medical malpractice or medical negligence when there is a (1) duty placed upon
a medical practitioner to exercise his profession of expertise, (2) there is a breach in his
performance of his profession, (3) there is a resulting injury to the patient and (4) the breach is
the proximate causation of the resulting injury. All mentioned elements in the preceding
enumeration must be present to constitute medical malpractice.

What suits to file?

There are several remedies that can be used to address medical malpractice. One can
choose to file an:
(1) Administrative Case
(2) Criminal Case or
(3) Civil Case

In the first one, the usual remedy is to petition for the revocation of the medical
practitioner’s license. As for the second, the crime filed is often Reckless Imprudence. Third,
since medical malpractice is all about negligence, a Civil Case is the preferred option.

The grounds for a civil action are based on:
*Quasi-Delict
* Res Ipsa Loquitor Doctrine
* Captain of the Ship Doctrine.

In an administrative action, the patient can refer to Section 24 of Republic Act No.
2382 of the Philippine Medical Act for the list of grounds for reprimand, suspension or
registration of certificate of the medical practitioner. Below are the said grounds:

(1) Conviction by a court of competent jurisdiction of any criminal offense involving
moral turpitude;
(2) Immoral or dishonorable conduct;
(3) Insanity;
(4) Fraud in the acquisition of the certificate of registration;
(5) Gross negligence, ignorance or incompetence in the practice of his or her profession
resulting in an injury to or death of the patient;
(6) Addiction to alcoholic beverages or to any habit forming drug rendering him or her
incompetent to practice his or her profession, or to any form of gambling;
(7) False or extravagant or unethical advertisements wherein other things than his name,
profession, limitation of practice, clinic hours, office and home address, are mentioned.
(8) Performance of or aiding in any criminal abortion;
(9) Knowingly issuing any false medical certificate;
(10) Issuing any statement or spreading any news or rumor which is derogatory to the
character and reputation of another physician without justifiable motive;
(11) Aiding or acting as a dummy of an unqualified or unregistered person to practice
medicine;
(12) Violation of any provision of the Code of Ethics as approved by the Philippine
Medical Association.

In a criminal action, there are only two options found in the Revised Penal Code, these
are (1) Reckless Imprudence and (2) Reckless Imprudence resulting to Homicide.

And lastly in a civil action, the grounds mentioned primarily revolve on essential
doctrines pertaining to negligence.

(1) Res Ipsa Loquitur Doctrine
- “the thing speaks for itself”

- This doctrine, as cited in Ramos v. Court of Appeals (G.R. No. 124354), implies
that the injury to the patient therein was one which does not ordinarily take place
in the absence of negligence.

An example of this is when gauzes are found inside a patient post-
operation and after being discharged. It is common knowledge that a
gauze inside a patient denotes negligence. No explanation necessary to
validate the misplacement.

(2) Negligence

- This is a reiteration that when there is an absence of extraordinary diligence
required, there is negligence and the negligent party will be made liable for
damages.

(3) Captain of the Ship Doctrine

Under this 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.

- This doctrine pertains to the responsibility imposed upon the lead medical
practitioner (i.e. lead surgeon) in the performance of their duty. And that the acts
of other medical practitioners under his lead will be attributed as his own.


In Professional Services, I nc. v. Agana (G.R. 126297), the operating surgeon was
determined to be the person in charge of the surgery and all personnel connected
with the operation; and when it was found that it was his act of ordering the
closure of the incision despite the acknowledgement that two pieces of gauze
remained missing, the negligence was attributed to Dr. Ampil because the control
and management of the thing was under his hands.

What are the available defenses?

The practice of medicine involves public interest and a cause of action upon its
practitioners is not devoid of possible defenses. These possible defenses are:

(1) Presumption of due diligence
(2) Compliance to the standard of diligence
(3) Negligence of the plaintiff
(4) Independent Contractor


Conclusion