LEGAL PRINCIPLES AND DOCTRINES APPLIED IN LEGAL MEDICINE

I. DOCTRINE OF VICARIOUS LIABILITY

-Doctrine of Imputed Negligence/Command Responsibility. -Vicarious liability means the responsibility of a person, who is not negligent, for the wrongful conduct or negligence of another. Art. 2180, Civil Code of the Philippines Obligations is demandable not only for ones own acts or omission but also fort 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 occassion of their functions Employers 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 The 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.

A. Doctrine of 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, anesthesiologist) B. Borrowed Servant 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. C. Captain of the Ship Doctrine - This doctrine innunciates 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. REASONS FOR APPLICATION OF THE DOCTRINE OF VICARIOUS LIABILITY 1. Deep pocket theory; 2. The employer has the power to select his employee and to control his acts; 3. 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; 4. To treat them as operating expense.

II. DOCTRINE OF RES IPSA LOQUITOR - The thing speaks for itself; nature of the wrongful act or injury is suggestive of negligence. - General 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.

Requisites of Res Ipsa Loquitor Doctrine: 1.The accident must be of a kind which ordinarily does not occur in the absence of someones negligence; 2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; 3. It must not have been due to any voluntary action or contribution on the part of the plaintiff. Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied: 1. 2. 3. Objects left in the patients body at the time of caesarian section; Injury to a healthy part of the body; Removal of a wrong part of the body when another part wad intended; 4. Infection resulting from unsterilized instruments; 5. Failure to take radiographs to diagnose a possible fracture;

Instances where the Doctrine of Res Ipsa Loquitor does not apply: 1. Where the Doctrine of Calculated Risk is applicable; When an accepted method of medical treatment involves hazards which may produce injurious results regardless of the care exercised by the physician. 2. Bad Result Rule; 3. Honest Errors of judgment as to Appropriate Procedure; 4. Mistake in the Diagnosis. - 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. This doctrine has been regarded as rule of sympathy to counteract the conspiracy of silence According to one of the most distinguished jurist(Canada), Justice Mignault: the practice of medicine and surgery is indispensable to humanity and should not be fettered by rules and responsibility so strict as to exact an infallibility on the part of the physician which he does not possess. we would be doing a disservice to the community at large if we were to impose liabilities on hospitals and doctors for everything that goes wrong. Doctors would be led to think more of their own safety than the good of the patients. Initiative would be stiffed and confidence shaken. III. DOCTRINE OF CONTRIBUTORY NEGLIGENCE - Doctrine of Common 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 required 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 defendants negligence, is the proximate cause of the injury. Related Civil Code Provisions Art. 2179, Civil Code When the plaintiffs 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 defendants lack of due care, the plaintiff may recover damages, but the court may mitigate the damages to be awarded.

Art.2214, Civil Code In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. Some Instances where there is contributory negligence: 1. 2. 3. 4. Failure to give the physician an accurate history; Failure to follow the treatment recommended by the physician; Leaving the hospital against the advice of the physician; Failure to seek further medical assistance if symptoms persist.

IV. DOCTRINE OF SUPERIOR KNOWLEDGE In the physician-patient relationship, the physician has superior knowledge over his patient. The 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. The defense of contributory negligence is available only when the patients 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. V. DOCTRINE OF CONTINUING NEGLIGENCE If the physician, after a prolonged treatment of a patient which normally produces alleviation of the condition, fails to investigate non-response, he may be held liable if in the exercise of care and diligence he could have discovered the cause of nonresponse. VI. DOCTRINE OF ASSUMPTION OF RISK Predicated upon knowledge and informed consent, anyone who voluntarily assumes the risk of injury from a known danger, if injured, is barred from recovery. violenti non fit injuria, which means that a person who assents and was injured is not regarded in law to be injured.

VII. DOCTRINE OF LAST CLEAR CHANCE A 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.

VIII. FELLOW SERVANT DOCTRINE This doctrine provides that if a servant (employee) was injured on account of the negligence of his fellow servant (employee), the employer cannot be held liable. IX. RESCUE 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. X. DOCTRINE OF FORESEEABILITY - A 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 requisite skill and training is answerable for the injury sustained by the patient if injury resulted thereto. - A physician owes duty of care to all persons who are foreseeably endangered by his conduct, with respect to the risk which make the conduct unreasonably dangerous. XI. DOCTRINE OF STRICT LIABILITY A person injured by a defective product can recover compensation from his injury from anyone in the distributive chain who sold the product while the defect was present, even though the seller exercises every conceivable caution to prevent and discover the defects. Negligence or carefulness is not in issue in a case under the doctrine nor is any warranty or promise in issue. A drug manufacturer is liable if his product is contaminated by any impurities which harm the user. If the drug has side effects, it is the duty of the manufacturer to warn the physician of it either through the literature attached or accompanying the drug or through the services of the promoters. Once the physician has been forewarned, the manufacturer has no duty to insure that the warning reaches the patient in normal circumstances. XII. DOCTRINE OF AVOIDABLE CIRCUMSTANCES Where one person has, through wrongful act, caused personal injury to another, it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The person wronged cannot recover for any item of damage which could have been avoided. The burden of proof that the injured could have prevented or mitigated the damages rests on the defendant.