Concerns law and legal concepts which have to do with the practice of medicine.
PURPOSE OF THE STUDY:
Protect the public
Promote professionalism
Develop awareness of the RO D.
Counter malpractice
Explain legislation
Repeal and amend laws
LAW
- is a body of rules to regulate the conduct of its members.
CLASSIFICATION:
Constitution
Enacted by Congress
Local customs
Licensure laws
Code of Ethics
Criminal laws
Civil law
Medical Societies
Public opinion
LICENSURE AND REGULATORY LAWS
To maintain high quality and standards of medical practice
ADMINISTRATIVE BODIES:
Who shall falsely use the title of MEDICAL DOCTOR after his name.
NOT CONSIDERED A PRACTICE OF MEDICINE
A medical intern under the supervision of a registered physician.
Legally registered dentist engaged exclusively in practice of dentistry.
Any duly registered masseur or physiotherapist.
Registered optometrist who mechanically fits or sells lenses.
Any person who renders gratuitously in cases of emergency where no MD is
available.
Prosthetist who fit artificial limbs
Clinical psychologist in regards to psychiatric cases.
2.
3.
4.
5.
5.
Expressed contract to cure and non-fulfillment
6.
Covered by Medicare.
7.
Colleague is a doctor.
8.
Industrial physicians to their employees.
9.
To school, faculty, students.
Defenses obliged to pay the Medical bill in Court.
1.
Exorbitant fees
2.
No medical service rendered.
3.
Defendant not the person legally to pay.
4.
No consent to such medical services.
5.
Previous agreement that it is gratuitous.
6.
Not qualified to practice.
7.
Party is not financially capacitated.
Grounds for counter complaint:
1.
Contract to cure.
2.
Fraudulent representations as to the ailment.
3.
Treatment is contrary to the agreement.
RIGHTS OF PATIENTS
1.
Give consent to diagnostic and treatment procedures - inform pt.
2.
Religious belief
3.
Privacy
4.
Disclosure of information
5.
Confidential information
6.
Choose his phys ician
7.
Treatment
8.
Refuse necessary treatments
1.Give CONSENT to diagnostic and treatment procedures - inform pt.
NOT NECESSARY: a) b)
Emergency cases
Law requi re submiss ion to the procedure
b)
When the medical procedure is publicly known to be safe
Extention of the operative procedure beyond what is consented.
- to any abnormal conditions when he thinks advi sable for the welfare of the patient
and follow the approved practice of surgeons generally.
Scope of the consent:
a)
General or blanket
b)
Limited or conditional
c)
Non-viability or exculpatory clause in the consent
Persons who can give the consent:
a)
Patient
b)
If mi nor, consent from parents
= Redound to the preservation of life and health
= Expressed refusal of a minor shall not prevail in an emergency case
c)
Grandparents, if parents are absent
d)
Eldest brother or sister are of age and not disqualified by law
e)
Substitute parental authority - guardians, teachers
2. Right to Religious belief
a)
Right to believe
b)
Right to act in accordance with one's belief
1.
Right to receive visitors.
2.
Unrestricted right to correspondence.
3.
Right to be free from mechanical restraints.
4.
Right to be release as soon as the condition
Malpractice - Is a generic term that includes all: (ADMINISTRATIVE, CRIMINAL AND CIVIL)
- Of wrongful acts of physician.
LIABILITIES OF PHYSICIANS
Factors bringing increasing frequency of the complaints against physicians:
1.
Gradual disappearance of the Family physici an.
2.
The" doctors loose talk" or unethi cal coaching of other physi cians.
3.
Breakdown in communication and rapport between the physician and his patient.
4.
Disservices made by the mass communication media.
5.
Malpractice is a sort of disease of society which may be endemic or
epidemic form.
6.
Incompetence of the practitioner and commercialization of medical practice.
7.
Proliferation of medicinal drugs.
8.
Changing attitude of the phys ician in the management of his patient.
Classification of Liabilities of Physician arising from his wrongful act or omission:
1.
Administrative liability - Right granted to heal withdrawn > police power.
2.
Criminal liabilities - Imprisoned or fined as penalty
3.
Civil liabilities
- Moral and punitive damages
ex: Negligence penalized in RPC, CC, Medical Act of 1959
1. ADMINISTRATIVE LIABILITY Reprimand, suspension, revocation C of R
Characteristics of the Proceedings in the PRC
a)
Penal in nature
b)
Preponderance of evidence
c)
Entitled to be represented by counsel
d)
Decision of the Board of Medicine is final after 30 days unless appealed.
e)
After 2 years may be re-instated
WH 0 can file complaint:
a)
Any person
b)
Firm or corporation through authorized representative
c)
The Board of Medicine itself
COMPLAINT: In writing and under oath.
Service of Summons - Letter subpoena requiring appearance.
a)
Time
b)
Place
c)
To answer within the period specified
d)
A copy of the complaint.
Rights of the Respondent in the Administrative Investigation in the Board of Medicine:
1.
To be represented by counselor be heard in person.
2.
To have a speedy and public hearing.
3.
To confront and cross-examine witnesses against him.
4.
To be presumed innocent
5.
Right of appeal and others ...
GROUNDS for Administrative Investigation: 1. Personal disqualification
a)
Immoral or dishonorable conduct.
b)
Insanity
c)
Gross negligence or incompetence
d)
Addiction to alcohol or drugs
2. Criminal acts
a)
Conviction by a court of competent jurisdiction of any criminal
offense involving moral turpitude.
b)
Fraud in the acquisition of Cert. Of Registration
c)
Performance or aiding in any criminal abortion.
d)
Knowi ngly issuing any false medical certifi cate.
e)
Aiding or acting a s a dummy of an unqualified or unregistered person to practice
medicine.
3. Unprofessional conduct
a)
False extravagant or false advertisements
b)
Issuing news or rumor which is derogatory to the character and reputation of
another physician without justifiable cause.
c)
Violation of any provision of the Code of Ethics
Failure of the physician to perform his duty is the proximate cause of the injury
sustained by the patient or
the DOCTRINE of Proximate Cause.
= continuous and natural sequence, unbroken by an effi cient cause producing he
injury and without which the result would not have occurred.
Conditions that must be complied with in the determination of the proximate cause:
1.
Direct physical connection between the wrongful act and the injury. -unsterile
2.
Wrongful act must not be too remote from the development of the injury.
3.
The result must be the natural and probable consequences of the cause.
DOCTRINE of Efficient Independent Intervening Cause: - may mitigate the damage to be
rewarded.
Standard of care of Physicians:
1.
Degree of ability by other physicians in the same locality.
2.
Degree of care, attention, diligence or vigilance exercised by those physicians in
the application of their skills.
3. Special or extraordinary for specialist.
Locality rule
= socio economic similarities or geographical proximity
Alternative Treatment Methods
= as long as mi nority of physi cians would agree with the defendant.
Bad results:
= Physici ans are not an insurer of the good result of treatment.
= Patients do not recover or improve for a variety of reasons unconnected with the
quality of care which the patient have received.
The physician must keep up with the medical developments.
PRINCIPLES AND DOCTRINES APPLIED IN MALPRACTICE
1.
Doctrine of vicarious liability or Doctrine of Respondent superior a) Doctrine of
Ostensible agent - Pathologist/Hospital
b)
Borrowed servant Doctrine
- Nurses borrowed from the hospital
c)
Captain of the Ship Doctrine - Surgeon - Increasing complexity
- to encourage surgeon to concentrate in hi s job
- shifting to the hospital from the surgeon's responsibility
= Vicarious liabil ity: the responsi bility of a person on the negligence of another
= To make the owner responsible of the faults of the employees negligence
a)
The employee was chosen by the owner
b)
Service of the employees according to the orders of the employer
c)
Wrongful act was on the occasion of the function entrusted to him.
= NOT applicable when the owner has exercised due care and diligence in the selection
and supervision of his employees.
Reasons in support to the Doctrine of Vicarious Liability
1.The negligent employee; nurses res. phy, have not enough money
2.
Employer has the power to select his employees.
3.
Employer benefits from his servants work.
4.
Employer is in the position to approximate future damage.
Usually involves the Surgeons activities in Operating situation:
1.
The potential danger is greater in the O.R.
2.
Application is more complex in the O.R.
3.
Surgeons tend to have more servants
2. Doctrine of res ipsa loqitor I Doctrine of Common Knowledge = the thing speaks of
itself> done a negligent act
= Foreign bodies is left unintentionally and allowed to remain in the pt. body.
Requisites for the Res ipsa Liquitor Doctrine
a)
The accident would not occur without negligence.
b)
The agency must be in control of the defendant.
c)
There was no contributing conduct by the plaintiff.
Cases applied:
a)
Objects left in the pt. body at the time of surgery.
b)
Injury to a healthy part of the body in the treatment area or to a part remote
from the treatment area.
c)
Removal of a wrong part of the body when another part was intended.
d)
Teeth dropped down the windpipe
e)
Burns
f)
Infection resulting from unsterilized instruments.
g)
Failure to take x-rays to dx possible fx.
h)
Fx set so badly that he deficiency of the workmanship is apparent to anybody.
i)
Disability directly resulting from injection of drugs into the body.
j)
explosion of anesthetic gases
When Surgeon is not liable?
1.
When the surgeon is in the stress of emergency
2.
when the sponge become saturated with blood and was diffi cult to detect.
Precautionary measures:
1.
Fixing a pair of forceps in one end of the sponge.
2.
Assignment of one of the O.R. nurses on duty to count the sponge.
3.
Surgeon counting with the nurses.
4.
Search made by surgeon by sight or hand.
5.
Formal inquiry affirmed by his search.
3. Doctrine of contributory negligence
= Conduct in the part of the plaintiff contributing as a legal cause to harm he has
suffered which falls below the standard to which he is required to conform for his own
protection.
4. Doctrine of continuing negligence
= Physici an after prolonged treatment of a pati ent produces no improvement when in
fact normally it would.
= Fails to investigate for non-response may be liable if in the exercise of care and
diligence have discovered the cause of the non-response.
5. Doctrine of Assumption of risk
= An injures person actually knew the risks involved is barred from recovery.
= Based on the maxim" volenti non fit injuria" that a person who assents and was
injured is not regarded in law to be injured. The doctrine is predicated upon the
knowledge and consent.
6. Doctrine of Last Clear Chance
= Failure from the physician to apply emergency mechanical occlusion of the vessel
injured by pressure or torniquet which cause the death of the patient.
7. Doctrine of Foreseeability
= Physician cannot be held liable for negligence if the injury sustained by the patient is
on account of unforeseen conditions.
BUT, if one fails to ascertain the pt condition for want of the requisite skill and training
is answerable to the injury sustained by the patient.
8. Fellow Servant Doctrine
= If an employee was injured on account of the negligence of his fellow employee, the
employer cannot be held liable.
= since both physician and the patient are of the same employer, workmen's
compensation was the plaintiffs exclusive remedy.
9. Rescue Doctrine
10. Sole responsibility vs. Shared responsibility = negligent act attributed to one person
= caused by 2 or more persons
SPECIFIC ACTS OR OMISSIONS OF MALPRACTICE
1. Failure to take history or P.E. > liability for negligent misdiagnosis
2. Non-referral of the patient to a specialist
3. Failure to consult prior physicians fro previous management.
4. Non-referral of patient to a hospital with equipments and trained personnel.
5. Failure to use the appropriate diagnostic test.
6. Failure to diagnose infection
7. Treatment resulting to Addiction
8. Telephone orders except emergency cases
9. Experimental treatment:
Two important requirements:
a)
Awareness and consent of the patient
b)
The physician to perform the experimental treatment must be capable to
perform the innovative technique.
10.Abandonment of patients Elements of Abandonment:
a)
Physician-patient relationship
b)
Terminated by the physician without mutual consent
c)
No time for the patient to secure services of another
d)
Continuing need of the patient for further treatment
e)
Abandonment is the cause of the resulting death or injury
Instances when a physician is liable for abandonment:
a)
Refusal by a physician to treat a case after he has seen the person
needi ng treatment but before treatment is commenced.
b)
Refusal to attend a case which he has assumed responsibility.
c)
Failure to follow-up
d)
Failure to arrange substitute physician in one absence = did not exercise with
due care in the selection
= acts as a master-servant relationship
Non-payment of bi lis is not a defense ground for abandonment.
11. Failure to institute proper prophylactic treatment
12. Blood transfusion
a)
Mechanical
= volume: pulmonary edema = embol ic: air
b)
Chemical and serological = incorrect grouping
= infected blood
= chemical which may be due to overcooling or overheating CASES 1. Transfusion of
the wrong type of blood
= Tech. Is hosp. Employee> hospital liable
but if under supervision of the pathologist: also liable = Hospital not liable as long with
due care in hiring.
2. Blood transfusion in a wrong patient
= Defendant is liable
3. Slipping of the needle outside the vein and infusion of blood into the soft tissues.
4.
Infection following transfusion
5.
Negligence following transfusion
13. Administration of drugs
Five rights Liabilities in the administration of drugs
1.
The right Drug
2.
The right patient
3.
The right dose
4.
At the right time
5.
Via the right route
Negligence in the administration of a drug causi ng injury to the patient may be attn
buted to:
1. Drug reaction
= F ai lure to note the history of allergy = F ai lure to test for signs of reaction
= Failure to stop treatment when drug reaction has been observed = F ai lure to
provide adequate therapy to encounter a reaction
= Treatment with a drug not proper for the illness
2.
Overdose of the drug administered
3.
Failure to give waming side effects
4.
Administering medicine on the wrong route
5.
Administration of the wrong medicine
6.
Administration of a drug on the wrong person
7.
Infection following injection
8.
Injury to the nerves
14. Product liability: Doctrine of Strict liability> any from the distributive chain
LIABILITIES OF HOSPITALS
Hospital- primarily a service institution whose concern is to serve patients, doctors, and
the public.
- it cannot practice medicine
Primary duties of a hospital:
1.
To fumis has afe and well mai ntai ned bui Iding and ground
2.
To fumish adequate and safe equipments
3.
To exercise reasonable care in the selection of the of the hospital staff.
Classification of liabilities of the hospital:
1. Corporate liabilities: = Fail ure to furnish accommodations, facilities = Safe and
reliable equipments
= Failure to make careful selection, supervision of its employees
2. Vicarious liabilities
" borrowed servant"
= Nursing staff: student nurse = Medical interns, Residents Speci al ist - an
independent contractor
Liabilities of hospital for the wrongful acts of their agents or employees: 1. Government
or Public hospitals
= A state cannot be sued without its consent.
a)
Government funds should be used for public purposes
b)
Public service can be hindered.
c)
Endless embarassment
d)
Derived no profit from its activity
2. Charitable, Voluntary Eleemosynary hospitals
a)
Trust Fund Doctrine - contributions are only held in trust
b)
Implied Waiver Theory-humanitarian contributions waives damages
c)
Public Policy Theory - quasi-public function
Present trend - Partial immunity:
a)
injuries suffered by strangers
b)
cases involving corporate negligence
c)
insured charitable hospital
d)
injury sustai ned by a pay ward patient
3. Private hospital operating for profit
held vicariously liable fro the negligent of its employees.
- The principle of administrative or ministerial duties as against professional or medical
duties.> beyond ordinary routine Government hospital has no choice regarding whom
to admit because it is establis hed and maintained by public funds.
Justifiable grounds to refuse admission:
1.
All accommodation are filled
2.
Patient is chronically ill
3.
Needs only convalescent care
4.
No available accommodation of the disease
5.
Contagious and at risk to other patients.
Attendance to all emergency cases in hospitals:
= If an emergency patient has been given immediate care and the threat to life and
serious injury have simmered down, a private hospital is not obliged to admit a patient
if he cannot pay the required deposit.
Transfer of patient:
= Can only be done if the condition of emergency ceases to be a threat to the life and
the transfer itself will not impair the life and health of the patient.
Discharge of patient:
= Further hospitalization no longer indispensable
Refusal of patient to be hospitalized:
= Will not be a lawful ground to detai n hi m if he is of sound mi nd and of legal age.
Refusal of patient to leave the hospital: = Refer to Social worker
Detention of patient for non-payment of bill: = File suit in court.
Liability for hospital infection:
1.
Infection caused by equipment and faulty technique
2.
Contact with infected patient
3.
Negligence of personnel and staff
4.
Hospital personnel may be the source of the infection
Patients are not bound by secret limitations contained in a private contract between the
hospital and the doctor.
Two aspects of Emergency Care
1.
Examination of the patient to determine his condition and need for emergency
medical procedures.
2.
Performance of the specific medical or surgical procedure which are required
without delay to protect the patients health.
MALPRACTICE LIABILITY in the Emergency Room
1.
Failure to admit
2.
Failure to exami ne or treat
3.Negligence in the application of management procedures
Good emergency room records should be kept on each case handled in the emergency
room department.
The Police/Emergency Room
= No questioning must be done without prior approval of the attending physician.
a)
Whether questioning will be prejudicial to the life and health or
b)
Whether the patient is in sound pos session of his mental faculties to give
relevant information.
Media / Emergency Room
= Release of information by the Chief of hospital or his representative
Guideli nes:
1. Private patients: Acknowledgement or admission General condition
Name of Attending Physician
2. Emergency cases:Name, age, sex, address, occupation Nature of accident:
Extent of inj uries
Be careful in expressing an opinion as to definitive diagnosis or prognosis
3. Restrictive information: In cases of poisoning, intoxication, stabbing, attempted sui
cide or other simil ar occurrence
NO MOTIVE be given.
MEDICAL INFORMATION be given only by RIC.
4. Photographs:
None taken from an unconscious patient Permission from RIC and patient is required.
Medical Records:
1, To document patients Hx, P.E., Tx
2.
To aid in the continuity of care
3.
To provide a record of billing
When may the contents of the medical record be disclosed:
. When requested by the patient made into writing 2.When the law require such
disclosure
3. Upon Court order
'-Removal, erasure> removed deliberately to suppress evidence EMERGENCIES IN
MEDICAL PRACTICE
Emergency - is an unforeseen combination of circumstance which calls for an
immediate action.
A condition of emergency is usually an exception to the observance of the standard
ethical conducts.
1. Must respond to any request for his assistance in an emergency.
= uninhabited place, injured by hi m
2.
Administer at least first aid.
3.
May examine and treat patient of another in case of emergency.
4.
Should attend only to patients immediate needs.
5.
Several physicians were called, first to arrive be the physician in charge.
6.
Treat patient same manner as he treats his patients.
Emergency operation without consent:
Based on the = Theory of Implied Consent:
Requis ites:
a)
Unconscious or unable to give a valid consent.
b)
Necessary to act before the opportunity to obtain consent.
c)
Surgeon best judgment that the patient may die, lose a limb unless an operation
is performed
Refusal to give consent:
1.
Refusal of the patient
2.
Refusal of the Guardian
3.
Refusal followed by an emergency - may
Who may attend to emergency cases:
1.
Any person
2.
Medical Students/Nurses
3.
Physicians
DELEGATION OF PHYSICIAN'S DUTIES
Requisites for a valid delegation:
1. Such duty of the physician validly can be delegated.
EXCEPT: the following
a)
Duty is the principal subject-matter of the MEDICAL DOCTOR-PI Contractual
Relationship.
b)
When the patient agreed to render strictly personal services to the patient.
c)
When no one is with sufficient competency to perform such duty.
d)
when the patient expressly objects to the delegation of duty.
2.
The person to whom such duty is delegated must be competent to perform such
duty.
3.
Proper instructions must be given to the person who will perform the delegated
duty.
4.
The patient consented expressly or impliedly such delegation of duty.
HUMAN TRANSPLANTATION
= A minor cannot give consent to be a donor for transplantation even if he has the full
capacity to discem or nearing age of majority., not benefit the minor.
Basis of Death:
1.
Unreceptivity and unresponsiveness
2.
No movement or breathing
3.
No reflexes
4.
Flat EEG - best confirmation.
Certification of Death: present for at least 2 hours before death is certified.
FERTILITY CONTROL
Fertility Control Methods is within the bounds of law:
1.
It must be voluntary.
2.
No life must be destroyed
3.
Public welfare must be amply protected.
4.
Sexual enjoyment must not be impaired.
Guidelines in the application of contraceptive procedures:
1.
Informed consent must be obtained before the application of the procedure.
2.
The provider must respect the right of religion of the patient.
3.
In the application of the contraceptive or sterilization procedure care and
diligence must be observed.
MEDICAL WITNESS AND THE COURT
It is the duty of every physician when called upon by the judicial authorities, to assist in
the administration of justice on matters which are medico-legal in character.
As an ORDINARY WITNESS
= He should only be allowed to state the facts which come to his own perception.
As an EXPERT WITNESS
= He is allowed to give inference, deduction, conclusion or opinion from the facts
presented to hi m.
Requisites for a person to become an ordinary witness:
1.
The person must have the organ and the power of perception.
2.
The perceptions gathered by his organs of sense can be imparted to others.
3.
He does not fall in any of the exceptions in the Rules of Court.
Persons not disqualified from becoming a Witness:
1.
Persons interested in the outcome of the case.
2.
Persons who have been convicted of a crime.
3.
persons on account of his opinion on matters of religious belief.
3.
That he studied thoroughly the case in which he expects to testify and prepared
himself to look up the opinion and statement held by authorities and others who have
written on the subject.
HIPPOCRATIC OATH
Now being admitted to the profession of Medicine, I solemnly pledge to consecrate my
life to the service of humanity. I will give respect and gratitude to my deserving
teachers. I will practice medicine with conscience and dignity. The health of my patient
will be my first consideration. I will hold in confidence all that my patients confide to
me. I will maintain by all means in my power the honor and noble traditions of the
medical profession. My colleagues will be my brothers. I will not permit considerations
of race, religion, nationality, party, politics and social standing to intervene between my
duty and my patient. I will maintain the utmost respect of human life from its inception.
Even threat will not use my medical knowledge contrary to the laws of humanity. Those
promises I will make solemnly, freely and upon my honor: