Is Art of Medicine Atty.

Legarda
Legal Medicine

Some laws governing Medical Practice in the Philippines (P500,000.00) or both, at the discretion of the
• Medical Act of 1959 court.
• Hospital Licensure Law CIVIL LIABILITY
• Pharmacy Law • Vicarious Liability
• Child Abuse Law o Captain of the Ship
• Family Code o Command Responsibility
• Anti-Violence Against Women and their Children Law o Master-Servant
• Civil Code o Ostensible Agent
• Anti-trafficking Law o Respondeat Superior
o Apparent Authority
• Optometry Law
o Principal Agent
• Organ Donation Law
DOCTRINE APPLICABLE
• Prevention and Control of HIV?AIDS
HOSPITAL
• Revised Penal Code
• Ostensible Agent
• Cheaper Medicine Law
• Doctrine of Apparent Authority
• Emergency Law
• Corporate Negligence
• PMA Code of Ethics DOCTOR
• Clean Air Act • Captain of the Ship
• Borrowed Servant
RAMOS vs C.A., G.R. No. 124354, December 29, 1999 • Command Irresponsibility
• The Hippocratic Oath mandates physicians to
give primordial consideration to the health and Professional Services, Inc. vs. Agana, Jan. 31, 2007
welfare of their patients. If a physician fails to live
up to this precept, he is made accountable for his “Hospitals, having undertaken one of mankind’s most
acts. A mistake, through gross negligence or important and delicate endeavors, must assume the grave
incompetence or plain human error, may spell the responsibility of pursuing it with appropriate care. The care
difference between life and death. In this sense, and service dispensed through this high trust, however
the physician plays God in his patient’s faith. technical, complex, and esoteric its character mnay be,
must meet standards of responsibility commensurate with
Hospital Staff the undertaking to preserve and protect the health, and
• Medical Staff indeed, the very lives of those placed in the hospital’s
• Nursing Staff keeping.”
• Pharmacy Staff
• Radiology Staff DOCTRINE OF VICARIOUS LIABILITY
• Laboratory Staff Also known as respondeat superior
• Managerial Staff Definition: A hospital will also be held responsible for the
• Corporate officers negligence of its employee-physician.
• Administrative Staff Defense: The hospital must prove that it observed the
o Finance diligence of a good father of a family in the selection and
o Records supervision of the employee.
o Dietary
o Maintenance DOCTRINE OF CORPORATE NEGLIGENCE
o Security Professional Services, Inc. vs. Agana, Jan. 31, 2007
o Anyone else?
• On April 4, 1984, Natividad Agana was rushed to
the Medical City General Hospital (Medical City
Rep. Act No. 8344: The law that prohibits requirement Hospital) because of difficulty of bowel movement
of deposit and bloody anal discharge.
• LIABLE: any official, medical practitioner or • After a series of medical examinations, Dr. Miguel
employee of the hospital or medical clinic Ampil diagnosed her to be suffering from “cancer
of the sigmoid”.
• PENALTY: not less than six (6) months and one
• On April 11, 1984, Dr. Ampil, assisted by the
(1) day but not more than two (2) and four (4)
medical staff of the Medical City Hospital,
months, or a fine of not less than Twenty performed an anterior resection surgery on
thousand pesos (P20,000.00) but not more than Natividad.
One hundred thousand pesos (P100,000.00) or • He found that the malignancy in her sigmoid area
both, at the discretion of the court: had spread on her left ovary, necessitating the
• NOTE: if violation was committed pursuant to an removal of certain portions of it.
established policy of the hospital or clinic or upon • Dr. Ampil obtained the consent of Natividad’s
husband, Enrique Agana, to permit Dr. Juan
instruction of its management,
Fuentes to perform hysterectomy on her.
• LIABLE: the director or officer of such hospital or • After Dr. Fuentes had completed the
clinic responsible for the formulation and hysterectomy, Dr. Ampil took over, completed the
implementation of such policy operation and closed the incision.
• PENALTY: imprisonment of four (4) to six (6) • However, the operation appeared to be flawed. In
the corresponding Record of Operation dated
years, or a fine of not less than One hundred
April 11, 1984, the attending nurses entered
thousand pesos (P100,000.00), but not more these remarks:
than Five hundred thousand pesos o “sponge count lacking 2”

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 Is Art of Medicine
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o “announced to surgeon searched
(sic) done but to no avail continue
for closure.”
• On April 24, 1984, Natividad was released from
the hospital.
• After a couple of days, Natividad complained of
excruciating pain in her anal region
• She consulted both Dr. Ampil and Dr. Fuentes
anbout it. They told her that the pain was the
natural consequence of the surgery.
• Dr. Ampil then recommended that she consult an
oncologist to examine the cancerous nodes
which were not removed during the operation.
• On May 9, 1984, Natividad accompanie by her
husband, went to the US to seek further
treatment.
• After four months of consultations and laboratory
examinations, Natividad was told she was free of
cancer. Hence, she was advised to return to the
Philippines.
• On August 31, 1984, Natividad flew back to the
Philippines, still suffering from pains.
• Two weeks thereafter, her daughter found a piece
of gauze protruding from her vagina.
• Upon being informed about it, Dr. Ampil
proceeded to her house where he managed to
extract by hand a piece of gauze measuring 1.5
inches in width. He then assured her that the
pains would soon vanish.
• Instead, the pains intensified, prompting
Natividad to seek treatment at the Polymedic
General Hospital.
• While confined there, Dr. Ramon Gutierrez
detected the presence of another foreign object
in her vagina – a foul-smelling gauze measuring
1.5 inches in width which badly infected her
vaginal vault.
• A recto-vaginal fistula had formed in her
reproductive organs which forced stool to excrete
through the vagina.
• Another surgical operation was needed to
remedy the damage. Thus, on October 1984,
Natividad underwent another surgery.
• The couple sued, alleging that the latter are liable
for negligence for leaving two pieces of gauze
inside Natividad’s body and malpractice for
concealing their acts of negligence.
• Meanwhile, Enrique Agana also filed with the
Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes.
• On February 16, 1986, pending the outcome of
the above cases, Natividad died.
• Whether the hospital (run under the corporate
name PSI) is liable for the negligence of Dr. Ampil
• We now proceed to the doctrine of corporate
negligence or corporate responsibility.
• In the present case, it was duly established that
PSI operates the Medical City Hospital for the
purpose and under the concept of providing
comprehensive medical services to the public.
• Accordingly, it has the duty to exercise
reasonable care to protect from harm all patients
admitted into its facility for medical treatment.
Unfortunately, PSI failed to perform such duty.
The findings of the trial court are convincing,
thus:
• PSI’s liability is traceable to its failure to conduct
an investigation of the matter reported in the nota
bene of the count nurse.
February 28, 2008 | Friday
Atty. Legarda
• Such failure established PSI’s part in the dark
conspiracy of silence and concealment about the
gauzes.
• Ethical considerations, if not also legal, dictated
the holding of an immediate inquiry into the
events, if not for the benefit of the patient to
whom the duty is primarily owed, then in the
interest of arriving at the truth.
• The court cannot accept that the medical and the
healing professions, through their members like
defendant surgeons, and their institutions like
PSI’s hospital facility, can callously turn their
backs on and disregard even a mere probability
of mistake or negligence by refusing or failing to
investigate a report of such seriousness as the
one in Natividad’s case.
• It is worthy to note that Dr. Ampil and Dr. Fuentes
operated on Natividad with the assistance of the
Medical City Hospital’s staff, composed of
resident doctors, nurses, and interns.
• As such, it is reasonable to conclude that PSI, as
the operator of the hospital, has actual or
constructive knowledge of the procedures carried
out, particularly the report of the attending nurses
that the two pieces of gauze were missing.
• Not only did PSI breach its duties to oversee or
supervise all persons who practice medicine
within its walls, it also failed to take an active step
in fixing the negligence committed.
• This renders PSI, not only vicariously liable for
the negligence of Dr. Ampil under Article 2180 of
the Civil Code, but also directly liable for its own
negligence under Article 2176.
• PSI, apart from a general denial of its
responsibility, failed to adduce evidence showing
that it exercised the diligence of a good father of
a family in the accreditation and supervision of
the latter, x x x and, therefore, must be adjudged
solidarily liable with Dr. Ampil.
• Moreover, PSI is also directly liable to the
Aganas.
DOCTRINE OF OSTENSIBLE AGENT
Professional Services, Inc. vs. Agana, Jan. 31, 2007
• One important legal change is an increase in
hospital liability for medical malpractice. Many
courts now allow claims for hospital vicarious
liability under the theories of respondeat superior,
apparent authority, ostensible authority, or
agency by estoppel.
• In this jurisdiction, the statute governing liability
for negligent acts is Article 2176 of the Civil
Code, which reads:
o Art. 2176. Whoever by act or omission
causes damage to another, there being
fault or negligence, is obliged to pay for
the damage done. Such fault or
negligence, if there is no pre-existing
contractual relation between the parties,
is called a quasi-delict and is governed
by the provisions of this Chapter.
• A derivative of this provision is Article 2180, the
rule governing vicarious liability under the
doctrine of respondeat superior, thus:
o Art. 2180. The obligation imposed by
Article 2176 is demandable not only for
one’s own acts or omissions, but also for
those of persons for whom one is
responsible.
o x x x x x x The owners and managers of
an establishment or enterprise are
likewise responsible for damages
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caused by their employees in the
service of the branches in which the
latterare employed or on the occasion of
their functions.
• Courts came to realize that modern hospitals are
increasingly taking active roles in supplying and
regulating medical care to patients.
• No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and
operation, and attendant for its patients.
• Rather, they regularly employ, on a salaried
basis, a large staff of physicians, interns, nurses,
administrative and manual workers.
• They charge patients for medical care and
treatment, even collecting for such services
through legal action, if necessary.
• An employer-employee relationship in effect
exists between hospitals and their attending and
visiting physicians.
• The unique practice (among private hospitals) of
filling up specialist staff with attending and visiting
“consultants”, who are allegedly not hospital
employees, presents problems in apportioning
responsibility for negligence in medical
malpractice cases. However, the difficulty is more
apparent than real.
• Hospitals exercise significant control in the hiring
and firing of consultants and in the conduct of
their work within the hospital premises.
• Doctors who apply for ‘consultant’ slots, visiting
or attending, are required to submit proof of
completion of residency, their educational
qualifications, generally, evidence of accreditation
by the appropriate board (diplomate), evidence of
fellowship in most cases, and references,
• These requirements are carefully scrutinized by
members of the hospital administration or by a
review committee set up by the hospital who
either accept or reject the application. x x x.
• After a physician is accepted, either as a visiting
or attending consultant, he is normally required to
attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns, and residents,
moderate grand rounds and patient audits and
perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting
patients into the hospital.
• In addition to these, the physician’s performance
as a specialist is generally evaluated by a peer
review committee on the basis of mortality and
morbidity statistics, and feedback from patients,
nurses, interns, and residents.
• A consultant remiss in his duties, or a consultant
who regularly falls short of the minimum
standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
• In other words, private hospitals, hire, fire, and
exercise real control over their attending and
visiting ‘consultant’ staff.
• The control exercised, the hiring, and the right to
terminate consultants all fulfill the important
hallmarks of an employer-employee relationship,
with the exception of the payment of wages.
• Its liability is also anchored upon the agency
principle of apparent authority or agency by
estoppel and the doctrine of corporate negligence
which have gained acceptance in the
determination of a hospital’s liability for negligent
acts of health professionals.
• Apparent authority, or what is sometimes referred
to as the “holding out” theory, or doctrine of
ostensible agency or agency by estoppel, xxx
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Atty. Legarda
imposes liability, not as the result of the reality of
a contractual relationship, but rather because of
the actions of a principal or an employer in
somehow misleading the public into believing that
the relationship or the authority exists.
• The concept is essentially one of estoppel.
• Our jurisdiction recognizes the concept of an
agency by implication or estoppel. Article 1869 of
the Civil Code reads:
o Art. 1869. Agency may be expressed, or
implied from the acts of the principal,
from his silence or lack of action, or his
failure to repudiate the agency, knowing
that another person is acting on his
behalf without authority.
• In this case, PSI publicly displays in the lobby of
the Medical City Hospital the names and
specializations of the physicians associated or
accredited by it, including those of Dr. Ampil and
Dr. Fuentes.
• It “is now estopped from passing all the blame to
the physicians whose names it proudly paraded
in the public directory leading the public to
believe that it vouched for their skill and
competence.”
NOGALES vs. CAPITOL MEDICAL CENTER, Dec. 19,
2006
• Pregnant with her fourth child, Corazon Nogales,
who was then 37 years old, was under the
exclusive prenatal care of Dr. Oscar Estrada
beginning on her fourth month of pregnancy or as
early as December 1975.
While Corazon was on her last trimester of pregnancy, Dr.
Estrada noted an increase in her blood pressure and
development of leg edema indicating preeclampsia, which
is a dangerous complication of pregnancy.
On May 26, 1976, Corazon was admitted at 2:30AM at the
CMC after the staff nurse noted the written admission
request of Dr. Estrada
• Upon Corazon’s admission at the CMC, Rogelio
Nogales executed and signed the “Consent on
Admission and Agreement” and “Admission
Agreement”
• Corazon died at 9:15AM. The cause of death was
“hemorrhage, post partum.”
• After more than 11 years of trial, Dr. Estrada was
deemed solely liable for damages. - The victim
was under his pre-natal care, apparently, his fault
began from his incorrect and inadequate
management and lack of treatment of the pre-
eclamptic condition of his patient.
• It is not disputed that he misapplied the forceps in
causing the delivery because it resulted in a large
cervical tear which had caused the profuse
bleeding which he also failed to control.
• The issue before the Supreme Court was
whether CMC was vicariously liable for the
negligence of Dr. Estrada.
• After a thorough examination of the voluminous
records of this case, the Court finds no single
evidence pointing to CMC’s exercise of control
over Dr. Estrada’s treatment and management of
Corazon’s condition.
• It is undisputed that throughout Corazon’s
pregnancy, she was under the exclusive prenatal
care of Dr. Estrada. At the time of Corazon’s
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admission at CMC and during her delivery, it was
Dr. Estrada, assisted by Dr. Villaflor, who
attended to Corazon.
• There was no showing that CMC had a part in
diagnosing Corazon’s condition.
• While Dr. Estrada enjoyed staff privileges at
CMC, such fact alone did not make him an
employee of CMC. CMC merely allowed Dr.
Estrada to use its facilities when Corazon was
about to give birth, which CMC considered an
emergency.
• Considering these circumstances, Dr. Estrada is
not an employee of CMC, but an independent
contractor.
• The question now is whether CMC is
automatically exempt from liability considering
that Dr. Estrada is an independent contractor-
physician.
• In general, a hospital is not liable for the
negligence of an independent contractor-
physician.
• There is, however, an exception to this principle.
The hospital may be liable if the physician is the
“ostensible” agent of the hospital.
• This exception is also known as the “ doctrine of
apparent authority”
• The plaintiff must show that:
(1) the hospital, or its agent, acted in a manner
that would lead a reasonable person to
conclude that the individual who was alleged
to be negligent was an employee or agent of
the hospital;
(2) where the acts of the agent create the
appearance of authority, the plaintiff must
also prove that the hospital had knowledge
of and acquiesced in them; and
(3) the plaintiff acted in reliance upon the
conduct of the hospital or its agent,
consistent with ordinary care and prudence.
• The element of “holding out” on the part of the
hospital does not require an express
representation by the hospital that the person
alleged to be negligent is an employee.
• Rather, the element is satisfied if the hospital
holds itself out as a provider of emergency room
care without informing the patient that the care is
provided by independent contractors.
• The element of justifiable reliance on the part of
the plaintiff is satisfied if the plaintiff relies upon
the hospital to provide complete emergency room
care, rather than upon a specific physician.
• The doctrine of apparent authority essentially
involves two factors to determine the liability of
an independent-contractor physician.
• The first factor focuses on the hospital’s
manifestations and is sometimes described as an
inquire whether the hospital acted in a manner
which would lead a reasonable person to
conclude that the individual who was alleged to
be negligent was an employee or agent of the
hospital.
• In this regard, the hospital needs not make
express representations to the patient that the
February 28, 2008 | Friday
Atty. Legarda
treating physician is an employee of the hospital;
rather a representation may be general and
implied.
• The doctrine of apparent authority is a species of
the doctrine of estoppel. Article 1431 of the Civil
Code provides that “[t]hrough estoppel, an
admission or representation is rendered
conclusive upon the person making it, and cannot
be denied or disproved as against the person
relying thereon.
• In the instant case, CMC impliedly held out Dr.
Estrada as a member of its medical staff.
• Through CMC’s acts, CMC clothed Dr. Estrada
with apparent authority thereby leading the
Spouses Nogales to believe that Dr. Estrada was
an employee or agent of CMC. CMC cannot now
repudiate such authority.
• First, CMC granted staff privileges to Dr. Estrada.
CMC extended its medical staff and facilities to
Dr. Estrada.
• Upon Dr. Estrada’s request for Corazon’s
admission, CMC, through its personnel, readily
accommodated Corazon and updated Dr.
Estrada of her condition.
• Second, CMC made Rogelio sign consent forms
printed on CMC letterhead.
• Prior to Corazon’s admission and supposed
hysterectomy, CMC asked Rogelio to sign
release forms, the contents of which reinforced
Rogelio’s belief that Dr. Estrada was a member of
CMC’s medical staff.
• Third, Dr. Estrada’s referral of Corazon’s profuse
vaginal bleeding to Dr. Espinola, who was then
the Head of the Obstetrics and Gynecology
Department of CMC, gave the impression that Dr.
Estrada as a member of CMC’s medical staff was
collaborating with other CMC-employed
specialists in treating Corazon.
• The second factor focuses on the patient’s
reliance. It is sometimes characterized as an
inquiry on whether the plaintiff acted in reliance
upon the conduct of the hospital or its agent,
consistent with ordinary care and prudence.
• The records show that the Spouses Nogales
relied upon a perceived employment relationship
with CMC in accepting Dr. Estrada’s services.
• Rogelio testified that he and his wife specifically
chose Dr. Estrada to handle Corazon’s delivery
not only because of their friend’s
recommendation, but more importantly because
of Dr. Estrada’s “connection with a reputable
hospital, the [CMC].”
• Moreover, Rogelio’s consent in Corazon’s
hysterectomy to be performed by a different
physician, namely Dr. Espinola, is a clear
indication of Rogelio’s confidence in CMC’s
surgical staff.
• CMC’s defense that all it did was “to extend to
[Corazon] its facilities” is untenable.
• The court cannot close its eyes to the reality that
hospitals, such as CMC, are in the business of
treatment.
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RAMOS VS. C.A., G.R. No. 124354, December 29, 1999
• Where common knowledge and experience teach
that a resulting injury would not have occurred to
the patient if due care had been exercised, an
inference of negligence may be drawn.
• All the patient has to do is prove a nexus
between the particular acts or omission
complained of and the injury sustained while
under the custody and management of the
physician without need to produce expert medical
testimony
• Res ipsa loquitur:
o Leaving a foreign object in the body of
the patient after an operation;
o Injuries sustained on a healthy part of
the body which was not in the area of
treatment;
o Removal of the wrong part of the body
when another part was intended;
o Knocking out a tooth while a patient’s
jaw was under anesthetic for the
removal of his tonsils;
o The loss of an eye while the patient was
under the influence of anesthetic, during
or following an operation for appendicitis
Professional Services, Inc. vs. Agana, January 31,
2007
• Literally, res ipsa loquitur means “the thing
speaks for itself.” It is the rule tat the fact of the
occurrence of an injury, taken with the
surrounding circumstances, may permit an
inference or raise a presumption of negligence,
or make out a plaintiff’s prima facie case, and
present a question of fact for defendant to meet
with an explanation
• Stated differently, where the thing which caused
the injury, without the fault of the injured, is under
the exclusive control of the defendant and the
injury is such that it should not have occurred if
he, having such control used proper care, it
affords reasonable evidence, in the absence of
explanation that the injury arose from the
defendant’s want of care, and the burden of proof
is shifted to him to establish that he has observed
due care and diligence.
• The requisites for the applicability of the doctrine
of res ipsa loquitur are:
o (1) the occurrence of an injury;
o (2) the thing which caused the injury
was under the control and management
of the defendant;
o (3) the occurrence was such that in the
ordinary course of things, would hot
have happened if those who had control
or management used proper care; and
o (4) the absence of explanation by the
defendant. Of the foregoing requisites,
the most instrumental is the “control and
management of the thing which caused
the injury.”
• NOTE- IN THE USA: The Courts require expert
testimony to support res ipsa loquitur
• In this jurisdiction, res ipsa loquitur is not a rule of
substantive law, hence, does not per se create or
constitute an independent or separate ground of
liability, being a mere evidentiary rule. In other
words, mere invocation and application of the
doctrine does not dispense with the requirement
of proof of negligence
February 28, 2008 | Friday
Atty. Legarda
***ALSO KNOWN AS CAPTAIN OF THE SHIP
DOCTRINE
RAMOS VS. C.A., G.R. No. 124354, December 29, 1999
• Exception to need for expert: doctrine of res ipsa
loquitur- i.e. matter is within the common
knowledge of mankind which may be testified to
by anyone familiar with the facts.
o E.g., statements and acts of physicians
and surgeons, external appearances
and manifest conditions which are
observable by any one.
• Supreme Court ruled that the surgeon is equally
negligent for the comatose condition of his
patient even if it was shown that the
anesthesiologist was negligent for the comatose
condition.
• Surgeon was responsible to see to it that those
under him performed their tasks in the proper
manner.
Ramos vs C.A, G.R. No. 124354, 2002 (motion for
reconsideration)
• Attending surgeon was found guilty of medical
negligence because a patient who submitted
herself for cholecystectomy suffered irreparable
brain damage even before the operation could be
performed
Professional Services, Inc. vs. Agana, January 31,
2007
• It was duly established that Dr. Ampil was the
lead surgeon during the operation of Natividad
• He requested the assistance of Dr. Fuentes only
to perform hysterectomy when he (Dr. Ampil)
found that the malignancy in her sigmoid area
had spread to her left ovary. Dr. Fuentes
performed the surgery and thereafter reported
and showed his work to Dr. Ampil.
• The latter examined it and finding everything to
be in order, allowed Dr. Fuentes to leave the
operating room. Dr. Ampil then resumed
operating on Natividad
• He was about to finish the procedure when the
attending nurses informed him that two pieces of
gauze were missing. A “diligent search” was
conducted, but the misplaced gauzes were not
found.
• Dr. Ampil then directed that the incision be
closed. During this entire period, Dr. Fuentes
was no longer in the operating room and had, in
fact, left the hospital.
• Under the “Captain of the Ship” rule, the
operating surgeon is the person in complete
charge of the surgery room and all personnel
connected with the operation. Their duty is to
obey his orders. As stated before, Dr. Ampil was
the lead surgeon. In other words, the was the
“Captain of the Ship.”
• The he discharged such role is evident from his
following conduct:
(1) calling Dr. Fuentes to perform a
hysterectomy;
(2) examining the work of Dr. Fuentes and
finding it in order;
(3) granting Dr. Fuentes’ permission to
leave; and
(4) ordering the closure of the incision.
• To our mind, it was this act of ordering the
closure of the incision notwithstanding that two
pieces of gauze remained unaccounted for, that
caused injury to Natividad’s body. Clearly, the
control and management of the thing which
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caused the injury was in the hands of Dr. Ampil,
not Dr. Fuentes
Batiquin vs C.A., G.R. No. 118231. 1996
• Attending surgeon was found guilty of medical
negligence because she left behind a piece of
rubber in patient’s abdomen.
***NO LIABILITY
Nogales vs. Capitol Medical Center, December 19,
2006
• Dr. Ely Villaflor
o Dr. Villaflor admitted administering a
lower dosage of magnesium sulfate.
However, this was after informing Dr.
Estrada that Corazon was no longer in
convulsion and that her blood pressure
went down to a dangerous level. At that
moment, Dr. Estrada instructed Dr.
Villaflor to reduce the dosage of
magnesium sulfate from 10 to 2.5
grams.
o Dr. Villaflor’s act of administering a
lower dosage of magnesium sulfate was
not out of her own volition or was in
contravention of Dr. Estrada’s order.
• Dr. Rosa Uy
o The Court believes Dr. Uy’s claim that
as a second year resident physician
then at CMC, she was merely
authorized to take the clinical history
and physical examination of Corazon.
However, that routine internal
examination did not ipso facto make Dr.
Uy liable for the errors committed by Dr.
Estrada.
o Nothing shows that Dr. Uy participated
in delivering Corazon’s baby. Further, it
is unexpected from Dr. Uy, a mere
resident physician at that time, to call
the attention of a more experienced
specialist, if ever she was present at the
delivery room.
• Dr. Joel Enriquez
o The Court is not convinced. Dr. Enriquez
is an anesthesiologist whose field of
expertise is definitely not obstetric and
gynecology. As such, Dr.Enriquez was
not expected to correct Dr. Estrada’s
errors.
o Besides, there was no evidence of Dr.
Enriquez/z knowledge of any error
committed by Dr. Estrada and his failure
to act upon such observation.
• Dr. Perpetua Lacson
o As found by the trial court, there was no
unreasonable delay in the delivery of
blood from the time of the request until
the transfusion to Corazon. Dr. Lacson
competently explained the procedure
before blood could be given to the
patient. Taking into account the bleeding
time, clotting time and cross-matching,
Dr. Lacson stated that it would be
approximately 45-60 minutes before
blood could be ready for transfusion.
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Atty. Legarda
o Further, no evidence exists that Dr,
Lacson neglected her duties as head of
the blood bank.
• Dr. Noe Espinola
o Dr. Espinola’s order to do hydterectomy
which was based on the information he
received by phone is not negligence. Dr.
espinola, upon hearing such information
about Corazon’s condition, believed in
good faith that Hysterectomy was the
correct remedy.
o At any rate, the hysterectomy did not
push through because upon Dr.
Espinola’s arrival, it was already too
late. At the time, Corazon was
practically dead.
• Nurse J. Dumlao
o There is no evidence of Nurse Dumlao’s
alleged failure to follow Dr. Estrada’s
specific instructions. Even assuming
Nurse Dumlao defied Dr. Estrada’s
order, there is no showing tha side-trip
administration of hemacel proximately
caused Corazon’s death.
o No evidence linking Corazon’s death
and the alleged wrongful hemacel
administration was introduced.
Therefore, there is no basis to hold
Nurse Dumlao liable for negligence.
JURISPRUDENCE ON EXPERT TESTIMONY
Need for Expert Testimony
• To establish that defendant physician has
deviated from the applicable standard of care and
that injury therefore resulted.
• To show evidence of professional custom and
that custom is reasonable and sufficient.
• To support conclusion as to causation of injury
when matter lies clearly within domain of medical
science.
PHILIPPINE JURISPRUDENCE
• Ramos vs. C.A. – anesthesiologist’s failure to do
a good ore-operative evaluation of the patient
prior to administration of anesthesia is a deviation
from standard of care. Resulted in wrongful
intubation, which caused a coma.
• The expert witness must also be an
anesthesiologist, not a pulmonologist.
• Reyes vs. Sisters of Mercy Hospital- an
autopsy expert is not qualified to be an expert
witness in a typhoid fever case
• Has to be an infectious disease specialist
• No negligence proved
Cruz vs. CA, Nov. 18, 1997
• Conclusions as to reckless imprudence is still
best arrived a not through educated surmises nor
conjectures of laymen, including judges, but by
the unquestionable knowledge of expert
witnesses.
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• Expert testimony should have been offered to
prove that the circumstances cited by the courts
below are constitutive of conduct falling below th
standard of care employed by other physicians in
good standing when performing the same
operation.
ELEMENTS OF MEDICAL NEGLIGENCE
Four D’s:
• Duty – of physician to his patient
• Dereliction – physician failed to perform his duty
• Damage – patient suffers damage as a
consequence
• Direct – negligence is the proximate cause of
damage
Professional Services, Inc. vs. Agana, Jan. 31, 2007
• This is a clear case of medical malpractice or
more appropriately, medical negligence. To
successfully pursue this kind of case, a patient
must not only prove that a health care provider
either failed to do something which a reasonably
prudent health care provider would have done, or
that he did something that a reasonably prudent
provider would not have done; and that failure or
action caused injury to the patient.
• Simply put, the elements are duty, breach, injury,
and proximate causation.
• Reyes vs. Sisters of Mercy hospital – patient
must prove that the physician failed to do
something which a reasonable prudent physician
would have done. No negligence was proven.
• Ramos vs. CA – faulty intubation was the
proximate cause which triggered the chain of
events leading to the patient’s brain damage
• Carillo vs. People (G.R. No. 86990, Jan. 21,
1994) – physicians found guilty of negligence
resulting in homicide as a result of death that
occurred during a simple appendectomy upon
ambulatory 13 year old. (**if vs people=criminal
case)
o Whether or not anesthesia administered
was within peculiar knowledge of
doctors
o They failed to inform the parents of the
dramatic deterioration of the patient
o Failure to appreciate and monitor
serious post-operative condition.
o Low-level of care and diligence in failing
to correct prescription for post-operative
pan
• Cruz vs. CA (Nov. 18, 1997) – no criminal liability,
but imposed civil liability
o Operation for myoma, patient died.
o Accussed doctor said death due to
disseminated intravascular coagulation
and presented expert witnesses.
Acquitted of homicide.
• Professional Services, Inc. vs. Agana (Jan. 31,
2007) – Dr. Ampil, as the lead surgeon, had the
duty to remove all foreign objects, such as
gauzes, from Natividad/s body before closure of
February 28, 2008 | Friday
Atty. Legarda
the incision. When he failed to do so, it was his
duty to inform Natividad about it. Dr. Ampil
breached both duties.
o Dr. Ampil’s negligence is the proximate
cause of Natividad’s injury could be
traced from his act of closing the
incision despite the information given by
the attending nurses that two pieces of
gauze were still missing.
OTHER FORMS OF MALPRACTICE
Article 1 General Principles
Section 2. On entering the profession, a physician
assumes the obligation of maintaining the honorable
tradition that confers the well-deserved title of a "friend of
mankind." The physician should cherish a proper pride in
the calling and conduct himself/herself in accordance with
this Code and in the generally accepted principles of the
International Code of Medical Ethics.
Section 3. Physicians should fulfill the civic duties of a
good citizen, must conform to the laws and cooperate with
the proper authorities in the application of medical
knowledge for the promotion of the common welfare.
News Article:
Hospital official loses money in scam
Estafa raps versus 2 Makati hospital docs
Doctor named in estafa complaint faces probe
Eye doctors deter scam on cataract surgeries
Doctor faces civil case filed by Mendez family
NY judge won't clear RP nurses
Pinoy nurses lose case filed against NY recruiter
Nurse sues Makati Med docs
Poor Filipinos selling kidneys for only $1,500
Case in Review: GARCIA vs SALVADOR, G.R. No.
168512, March 20, 2007
• As a prerequisite for regular employment, Ms
Salvador underwent a medical examination at the
Community Diagnostic Center (CDC).
• Garcia, a medical technologist who conducted
the Hbs Ag test and issued result that she was
"HBs Ag: Reactive."
• Garcia signed, and the rubber stamp of Bu
Castro.
• Ms Salvador was terminated from employment
because she was suffering from liver disease.
• Her father had a heart attack.
• At the hospital, Ms Salvador underwent another
test and she was told that she was non-reactive.
She went again to CDC and this time her result
was "negative."
• Ms. Salvador was rehired, and after that, she
sued Garcia and Castro for the damages.
• RTC dismissed petition; CA reversed – holding
Garcia liable and exonerating Castro.
• SUPREME COURT – Negligence is the failure to
observe for the protection of the interest of
another person that degree of care, precaution
and vigilance which the circumstances justly
demands, whereby such other person suffers
injury.
• SUPREME COURT - For health care providers,
the test of the existence of negligence is: did the
health care provider either fail to do something
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which a reasonably prudent health care provider
would have done, or that he or she did something
that a reasonably prudent health care provider
would not have done; and the failure or action
caused injury to the patient; if yes, then he is
guilty of negligence.
• SUPREME COURT – Owners and operators of
clinical laboratories have the duty to comply with
statutes, 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 of performance of
clinical laboratory examinations.
• SUPREME COURT – In fine, violation of a
statutory duty is negligence. Where the law
imposes upon a person the duty to do something,
his omission or non-performance will render him
liable to whoever may be injured thereby.
• SUPREME COURT – The Clinical Laboratory
Law, the Revised Rules and Regulations
Governing the Registration, Operation and
Maintenance of Clinical Laboratories in the
Philippines and The Philippine Medical
Technology Act of 1969 all make it clear that:
o a clinical laboratory must be
administered, directed and supervised
by a licensed physician authorized by
the Secretary of Health, like a
pathologist who is specially trained in
the methods of laboratory medicine;
o that the medical technologist must be
under the supervision of the pathologist
or a licensed physician; and
o that the results of any examination may
be released only to the requesting
physician or his authorized
representative upon the direction of the
laboratory pathologist.
• SUPREME COURT – these rules are intended
for the protection of the public by preventing
performance of substandard clinical examinations
by laboratories whose personnel are not properly
supervised. The public demands no less than an
effective and efficient performance of clinical
laboratory examinations through compliance with
the quality standards set by laws and regulations.
• SUPREME COURT – Garcia failed to comply
with these standards,
o CDC is not administered, directed and
supervised by a licensed physicaina as
required by law, but Ma. Ruby C.
Calderon, a licensed Medical
Technologist.
o Garcia conducted the HBsAg test of
respondent Ranida without the
supervision of the defendant-appellee
Castro, who admitted that [He] does not
know, has never known or met, nor has
he personally examined any specimen,
blood, urine or any other tissue, of
Salvador.
o The disputed HBs Ag result was
released without the authorization of
Castro.
• SUPREME COURT – Garcia may not have
intended to cause the consequences which
followed after the release of the HBsAg test
result. However, his failure to comply with the
laws and rules promulgated and issued for the
protection of public safety and interest is failure to
observe that care which a reasonably prudent
February 28, 2008 | Friday
Atty. Legarda
health care provider would observe. Thus, his act
or omission constitutes a breach of duty.
• SUPREME COURT – Article 20 of the New Civil
Code provides:
- Art. 20. Every person who, contrary to law,
willfully or negligently causes damage to another,
shall indemnify the latter for the same.
• SUPREME COURT - The foregoing provision
provides the legal basis for the award of
damages to a party who suffers damage
whenever one commits an act in violation of
some legal provision. This was incorporated by
the Code Commission to provide relief to a
person who suffers damage because another has
violated some legal provision.
SEXUAL HARASSMENT
• Affair with patient
• Adultery, concubinage, etc.
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
Definition: The act or omission amounting to want of
ordinary care on the part of the person injured which,
concurring with the defendant's negligence, is the
proximate cause of injury.
Equitable Doctrine: Is applicable when the patient's own
negligence is the immediate and proximate cause of the
injury. Physician has to prove this.
Examples:
o leaving a hospital against medical advise
o canceling appointment
o failure to take medication
o failure to take therapy regimens
o failure to give accurate history
o failure to follow treatment recommended by
physician
o failure to follow physician's reasonable advice on
taking medications
o failing to return for follow-up
o failure to follow advice after an operation
o being a smoker and kidney transplant
DOCTRINE OF COMPARATIVE NEGLIGENCE
Definition: The degree of negligence of the patient is
compared to the degree of negligence of the physician.
Comparative Negligence Defense:
• First, there is a greater than 50 percent rule. If
the injured party was greater than 50 percent
responsible for the accident, he cannot recover
compensation.
• If he is equal to or less than 50 percent
responsible, he can recover.
• Second, the injured party's compensation must
be reduced by the percentage of his
responsibility for the accident.
• The rule attempts to be fair to both injured parties
and defendants by holding each of them
responsible for their roles in causing an accident.
DOCTRINE OF ASSUMPTION OF RISK
Definition: A person who volunteers, assents, and was
injured is not deemed in law to be injured; voluntary
exposure to a known danger; patient knew and voluntarily
went ahead.
DOCTRINE OF LAST CLEAR CHANCE
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Definition: 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 or opportunity to avoid
the accident who fails to do so is liable for negligence.
Example:
- patient brought to hospital with a slashed
wrist. He had tried to commit suicide.
Physician who doesn't stop the bleeding had
last clear chance to avoid death of patient. In
the USA, this is not used anymore.
HOW TO AVOID MEDICAL NEGLIGENCE
minor should be given by the parents or guardian,
members of the immediate family that are of legal age.
Article II. Duties if Physicians to their Patients
Section 1. A physician should attend to his patients
faithfully and conscientiously. He shoukd secure for them
all possible benefits that may depend upon his
professional skill and care. As the sole tribunal to adjudge
the physician’s failure to fulfill his obligation to his parents
is, in most cases, his own conscience, and violation of this
rule on his part is discretable and inexcusable.

Risk Management Doctrine of Vicarious Liability

- Be familiar with tort law principles.
- Maintain a positive attitude in your patient
relationships.
- Be honest and open in your interaction with
patients.
- Clearly define your role and responsibilities.
- Obtain written informed consent from your
patient.
- Discuss fully complications which may or do
occur.
- Document in writing all aspects of your
patient care.
- Insure that your office staff is well-trained
and interact with your patients.
- Be knowledgeable about your medical
liability insurance coverage.
Vicarious liability, popularly known in American
jurisprudence as the Doctrine of Respondeat Superior,
arises from the relationship between two parties and is
imposed solely on the basis of the relationship. In
Philippine Jurisdiction, an employer is almost always
vicariously liable for the negligent actions or omissions of
his employee occurring within the scope of employment.
Doctrine of Apparent Agency or Ostensible Agency
Under the New Civil Code, an agent is one who
acts on behalf of another, who is called the principal. An
agent engaged in furthering the interests of his or her
principal can expose that principal to liability for the
agent’s negligence.

[And by the way…a final definition] Captain of the Ship Doctrine

DEATH – when an individual has sustained irreversible
cessation of circulatory and respiratory functions and
irreversible cessation of all functions of the entire brain,
including the brain stem, the determination of which must
be made in accordance with accepted medical standards.
Courts assume that the physician is in control of
everyone and everything in an operating room and, thus,
is liable for anything that goes wrong, no matter who was
responsible for the conduct. Under this doctrine, courts
presume that the physician, like a ship’s captain is in total
control.

Article II Duties of Physicians to their Patients Borrowed Servant Doctrine

The physician or surgeon is liable for the
Section 3. In an emergency, provided there is no risk to negligent acts of the borrowed servants.
his or her safety, a physician should administer at least
first aid treatment and then refer the patient to the primary
physician and/or to a more competent health provider and
appropriate facility if necessary.

Section 4. In serious/difficult cases, or when

circumstances of the patient or the family so demand or
justify, the attending physician should seek the assistance
of the appropriate specialist.

Section 5. A physician should exercise good faith and

honesty in expressing opinion/s as to the diagnosis,
prognosis, and treatment of a case under his/her care. A
physician shall respect the right of the patient to refuse
medical treatment. Timely notice of the worsening of the
disease should be given to the patient and/or family. A
physician shall not conceal nor exaggerate the patient's
condition except when it is to the latter's best interest. A
physician shall obtain from the patient a voluntary
informed consent. In case of unconsciousness or in a
state of mental deficiency the informed consent may be
given by a spouse or immediate relatives and in the
absence of both, by the party authorized by an advance
directive of the patient. Informed consent in the case of a

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