Medical Malpractice

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SAN SEBASTIAN COLLEGE – RECOLETOS Recto Manila

LEGAL MEDICINE

REPORT IN MEDICAL MALPRACTICE / NEGLIGENCE

DR. JOEY MONTEMAYOR Submitted to

GRO!" # Combate$ Be%nadet& Dema'ala$ Lo%elie Jamela& Gon(ale)$ Benc&ie *a+uilin+$ Nanette Ro)e

LEGAL MEDICINE
 Branch of medicine that deals with the application of medical knowledge to the purposes of law and in the administration of justice

MEDICAL MAL"RACTICE
 Failure of a physician to properly perform the duty which devolves upon him in his professional relation to his patient which results to injury.  It may be defined as bad or unskillful practice of medicine resulting to injury of the patient or failure on the part of the physician to exercise the degree of care, skill and diligence, as to treatment in a manner contrary to accepted standards of medicine resulting to injury to the patient.  Occurs when a patient suffers complications, injury, or death because of a health care professional s or health care facility s medical negligence, and provided there is proof of harm and loss.  !owever, not every instance of medical negligence is medical malpractice because not every medical negligence case results in harming a patient, and in some medical negligence cases, there is a lack of proof

Element)
". #he physician has a duty to the patient$ %. #he physician failed to perform such duty to his patient$ &. 's a conse(uence of the failure, injury was sustained by the patient$ ). #he failure of the physician is the proximate cause of the injury sustained by the patient.

"%o,imate Cau)e

 Is that cause, which, in natural continuous se(uence, unbroken by an efficient intervening cause, produces the injury and without which the result would not have occurred. ". #here must be a direct physical connection between the wrongful act of the physician and the injury sustained by the patient. %. #he cause or the wrongful act of the physician must be efficient and must not be too remote from the development of the injury suffered by the patient. &. #he result must be the natural continuous and probable conse(uences.

MEDICAL NEGLIGENCE
 'n act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient.  Occurs when a physician, hospital, pharmacist, or any other health care professional fails to perform the expected duties of their respective jobs. Once a medical professional or medical facility has agreed to treat a patient, there is already the duty to treat such patient with reasonable skill, prudence, and customary care based on a standard of medical care.  Occurs when a medical professional does not comply with the standard of medical care, whether by performing flawed or irresponsible procedures or by failing to take the necessary actions to prevent harm. *edical negligence can result in injury or harm to the patient, but not in all cases.  It doesn t necessarily have to result in harm to the patient, which is a necessary component in medical malpractice claims.  Medical ne+li+ence i) a -a%t o. medical mal-%actice.

Doct%ine o. E..icient Inte%/enin+ Cau)e
 In the causal connection between the negligence of the physician and the injury sustained by the patient, there may be an efficient intervening cause which is the proximate cause of the injury.

E,am-le) o. Medical Ne+li+ence
 misdiagnosis,  failure to diagnose, treat or follow up in a timely manner,  surgical error,  anesthesia error,  or medication+prescription error.

Mal-%actice
' type of negligence, where a ,efinitionlicensed professional fails to provide services as per standards set by the governing body. Intentional./es 0ausation

Ne+li+ence
Failure to exercise the care that a reasonably prudent person would exercise in like circumstances. 0an be intentional or

0ases filed in0ivil 0ourts 0riteria for proving ,uty, Breach, the case-

unintentional. 0ivil 0ourts and ,uty, Breach,

0ausation

and

1xample-

,amages ,amages ' doctor intentionally causing harm ' driver causing harm to the to his patients due to not performing passengers due to his his duties as per the medical carelessness. standards.

T0O -%on+ed E1IDENCE o. Medical Ne+li+ence
". %. 1vidence, as to the recogni2ed standards of the medical community in the particular kind of case, and ' showing that the physician departed from this standard in his treatment.  It is a matter of expert opinion whether a physician or surgeon has exercised the re(uisite degree of skill and care in the treatment of his patient.  RES I"SA LO2!IT!R justify 34156*3#IO7 OF 7189I81701 on the in the absence of ,I410# evidence.

LEGAL "RINCI"LES AND DOCTRINES A""LIED IN MAL"RACTICE CASES
 ,octrine of :icarious 9iability  ,octrine of Ostensible 'gent  Borrowed 5ervant ,octrine  0aptain of the 5hip ,octrine  ,octrine of 4es Ipsa 9o(uitor  ,octrine of 0ommon ;nowledge  ,octrine of 0ontributory 7egligence  ,octrine of 'ssumption of 4isk  ,octrine of 9ast 0lear 0hance  Fellow 5ervant ,octrine  4escue ,octrine

MEDICAL

DOCTRINE O3 1ICARIO!S LIABILITY
 ,octrine of Imputed 7egligence+0ommand 4esponsibility.  :icarious liability means the responsibility of a person, who is not negligent, for the wrongful conduct or negligence of another.  A%t. 4#56$ Ci/il Code o. t&e "&ili--ine)  Obligation is demandable not only for one s own acts or omission but also for those persons whom one is responsible.  <=.xxx the owners or managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions=  1mployers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned task, even though the former are not engaged in any business or industry=  #he responsibility treated of this article shall cease when the person herein mentioned prove that they observe all the diligence of a good father of a family to prevent injury.>

DOCTRINE O3 OSTENSIBLE AGENT
 In cases wherein the employees are at the same time are independent contractors of the hospital$  Because of this peculiar situation, they are considered ostensible agents and therefore, the hospital must be held liable for their negligent acts. ?pathologist, radiologist, [email protected]

BORRO0ED SER1ANT DOCTRINE
 Ordinarily, resident physicians, nurses and other personnel of the hospital are employees or servants of the hospital$  In some instances, they are under the temporary supervision and control of another other than their employer while performing their duties$  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 whether 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.

CA"TAIN'O3'T*E'S*I" DOCTRINE
 #his doctrine enunciates liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has extension of control.  #he operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. #heir ,uty is to obey his orders. (Professional services, inc. v. Agana)

REASONS 3OR A""LICATION O3 T*E DOCTRINE O3 1ICARIO!S LIABILITY
". ,eep pocket theory$ %. #he employer has the power to select his employee and to control his acts$ &. since the employer benefits monetarily from the employee, the employer has to bear the loss when neither the employer nor the employee is at fault$

). #o treat them as operating expense.

DOCTRINE O3 RES I"SA LO2!ITOR
 “The thing speaks for itself”$ nature of the wrongful act or injury is suggestive of negligence.  In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury= ?,r. *ilagros 9. 0antre vs 535. Aohn and 7ora 8o, G.R. No. #76558$ A-%il 49$ 4669:  8eneral rule- expert testimony is necessary to prove that a physician has done a negligent act or that has deviated from the standard of medical practice.

Re;ui)ite) o. Re) I-)a Lo;uito% Doct%ine
". #he accident must be of a kind which ordinarily does not occur in the absence of someone s negligence$ %. It must be caused by an agency or instrumentality within the exclusive control of the defendant$ &. It must not have been due to any voluntary action or contribution on the part of the plaintiff. It is a rebuttable presumption that defendant was negligent, which arises upon proof that the instrumentality causing injury was in the defendant s exclusive control, and that the accident was one which ordinarily does not happen in the absence of negligence ?0ollege 'ssurance 3lan, et. 'l v. Belfranet ,ev. Inc. 8.4.no "BBCD), 7ovember %E, %[email protected]

Some ca)e) <&e%ein t&e Doct%ine o. Re) I-)a Lo;uito% &a) been a--lied
". %. &. ). B. Objects left in the patient s body at the time of caesarian section$ Injury to a healthy part of the body$ 4emoval of a wrong part of the body when another part wad intended$ Infection resulting from unsterili2ed instruments$ Failure to take radiographs to diagnose a possible fracture$

In)tance) <&e%e t&e Doct%ine o. Re) I-)a Lo;uito% doe) not a--l=
". Fhere the ,octrine of 0alculated 4isk is applicable$ %. Fhen an accepted method of medical treatment involves ha2ards which may produce injurious results regardless of the care exercised by the physician. &. Bad 4esult 4ule$ ). !onest 1rrors of judgment as to 'ppropriate 3rocedure$ B. *istake in the ,iagnosis. In most medical malpractice suits, there is a necessity for a physician to give his expert medical opinion to prove whether acts or omissions constitute medical negligence. #his doctrine has been regarded as rule of sympathy to counteract the Gconspiracy of silence

DOCTRINE O3 CONTRIB!TORY NEGLIGENCE
 ,octrine of 0ommon Fault  It has been defined as conduct on the part of the plaintiff or injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard which he is re(uired to conform to his own protection.

 It is the act or omission amounting to want of care on the part of the complaining party which, concurring with the defendant s negligence is the proximate cause of the injury.  4elated 0ivil 0ode 3rovisions  A%t. 4#98$ Ci/il Code  <Fhen the plaintiff s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of injury being the defendant s lack of due care, the plaintiff may recover damages, but the court may mitigate the damages to be awarded.>  'rt.%%"), 0ivil 0ode  In (uasiHdelicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover.>

Some In)tance) <&e%e t&e%e i) cont%ibuto%= ne+li+ence
". Failure to give the physician an accurate history$ %. Failure to follow the treatment recommended by the physician$ &. 9eaving the hospital against the advice of the physician$ ). Failure to seek further medical assistance if symptoms persist.

Doct%ine o. Su-e%io% >no<led+e
 In the physicianHpatient relationship, the physician has superior knowledge over his patient. #he patient just follows the instructions and orders of the physician and is usually inactive and virtually places himself in the command and control of the physician.  #he defense of contributory negligence is available only when the patient s conduct is a truly flagrant disregard of his health and cannot apply where

the patient is mentally ill, semiconscious, heavily sedated or of advanced age.

DOCTRINE O3 CONTIN!ING NEGLIGENCE
 If the physician, after a prolonged treatment of a patient which normally produces alleviation of the condition, fails to investigate nonHresponse, he may be held liable if in the exercise of care and diligence he could have discovered the cause of nonHresponse.

DOCTRINE O3 ASS!M"TION O3 RIS>
 3redicated upon knowledge and informed consent, anyone who voluntarily assumes the risk of injury from a known danger, if injured, is barred from recovery.  [email protected]/iolenti non .it inAu%ia>, which means that a person who assents and was injured is not regarded in law to be injured.

DOCTRINE O3 LAST CLEAR C*ANCE
 ' physician who has the last clear chance of avoiding damage or injury but negligently fails to do is liable.  It implies thought, appreciation, mental direction and lapse of sufficient time to effectually act upon impulse to save the life or prevent injury to another.

DOCTRINE O3 3ORESEEABILITY
 ' 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 re(uisite skill and training is answerable for the injury sustained by the patient if injury resulted thereto.  ' physician owes duty of care to all persons who are foresee ably endangered by his conduct, with respect to the risk which make the conduct unreasonably dangerous.

3ELLO0 SER1ANT DOCTRINE
 #his doctrine provides that if a servant [email protected] was injured on account of the negligence of his fellow servant [email protected], the employer cannot be held liable.

RESC!E DOCTRINE
 If a physician who went to rescue a victim of an accident was himself injured, the original wrongdoer must be held liable for such injury.

SOLE RES"ONSIBILITY /). S*ARED RES"ONSIBILITY
 Sole %e)-on)ibilit= H when the negligent act or omission which is the proximate cause of the injury suffered by patient is attributed to the wrongful act of person.  S&a%ed %e)-on)ibilit= H when the injury suffered by the patient is caused by the negligent act of two or more persons, each of them acting concurrently and successively in the production of injury.

S"ECI3IC ACTS OR OMISSIONS 0*IC* CONSTIT!TE MEDICAL MAL"RACTICE
". Failure to take medical history$

%. Failure to examine or make a careful and ade(uate examination$ &. 7onHreferral of the patient to a specialist$ ). Failure to consult prior physicians for previous management$ B. 7onHreferral of patient to a hospital with e(uipments and trained personnel$ C. Failure to use the appropriate diagnostic test$ E. Failure to diagnose infections$ I. #reatment resulting to addiction$ J. 'bandonment of patients$ "D. Failure to give proper instructions$ "". "%. "&. "). "B. Failure to institute the proper prophylactic treatment$ 1rrors in blood transfusion$ 9iabilities in administration of drugs$ 3roduct liabilities of manufacturer$ Frong baby cases.

5O64015 


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