You are on page 1of 9

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”

February 28, 2008 | Friday Page 1 of 9


jesa.jan.justin.trish.kat.bots.laura.gee-r
Is Art of Medicine Atty. Legarda
Legal Medicine

o “announced to surgeon searched • Such failure established PSI’s part in the dark
(sic) done but to no avail continue conspiracy of silence and concealment about the
for closure.” gauzes.
• On April 24, 1984, Natividad was released from • Ethical considerations, if not also legal, dictated
the hospital. the holding of an immediate inquiry into the
• After a couple of days, Natividad complained of events, if not for the benefit of the patient to
excruciating pain in her anal region whom the duty is primarily owed, then in the
• She consulted both Dr. Ampil and Dr. Fuentes interest of arriving at the truth.
anbout it. They told her that the pain was the • The court cannot accept that the medical and the
natural consequence of the surgery. healing professions, through their members like
• Dr. Ampil then recommended that she consult an defendant surgeons, and their institutions like
oncologist to examine the cancerous nodes PSI’s hospital facility, can callously turn their
which were not removed during the operation. backs on and disregard even a mere probability
• On May 9, 1984, Natividad accompanie by her of mistake or negligence by refusing or failing to
husband, went to the US to seek further investigate a report of such seriousness as the
treatment. one in Natividad’s case.
• After four months of consultations and laboratory • It is worthy to note that Dr. Ampil and Dr. Fuentes
examinations, Natividad was told she was free of operated on Natividad with the assistance of the
cancer. Hence, she was advised to return to the Medical City Hospital’s staff, composed of
Philippines. resident doctors, nurses, and interns.
• On August 31, 1984, Natividad flew back to the • As such, it is reasonable to conclude that PSI, as
Philippines, still suffering from pains. the operator of the hospital, has actual or
• Two weeks thereafter, her daughter found a piece constructive knowledge of the procedures carried
out, particularly the report of the attending nurses
of gauze protruding from her vagina.
that the two pieces of gauze were missing.
• Upon being informed about it, Dr. Ampil
• Not only did PSI breach its duties to oversee or
proceeded to her house where he managed to
supervise all persons who practice medicine
extract by hand a piece of gauze measuring 1.5
within its walls, it also failed to take an active step
inches in width. He then assured her that the
in fixing the negligence committed.
pains would soon vanish.
• This renders PSI, not only vicariously liable for
• Instead, the pains intensified, prompting
the negligence of Dr. Ampil under Article 2180 of
Natividad to seek treatment at the Polymedic
the Civil Code, but also directly liable for its own
General Hospital.
negligence under Article 2176.
• While confined there, Dr. Ramon Gutierrez
• PSI, apart from a general denial of its
detected the presence of another foreign object
responsibility, failed to adduce evidence showing
in her vagina – a foul-smelling gauze measuring
that it exercised the diligence of a good father of
1.5 inches in width which badly infected her
a family in the accreditation and supervision of
vaginal vault.
the latter, x x x and, therefore, must be adjudged
• A recto-vaginal fistula had formed in her
solidarily liable with Dr. Ampil.
reproductive organs which forced stool to excrete
• Moreover, PSI is also directly liable to the
through the vagina.
Aganas.
• Another surgical operation was needed to
remedy the damage. Thus, on October 1984,
DOCTRINE OF OSTENSIBLE AGENT
Natividad underwent another surgery.
• The couple sued, alleging that the latter are liable Professional Services, Inc. vs. Agana, Jan. 31, 2007
for negligence for leaving two pieces of gauze • One important legal change is an increase in
inside Natividad’s body and malpractice for hospital liability for medical malpractice. Many
concealing their acts of negligence. courts now allow claims for hospital vicarious
• Meanwhile, Enrique Agana also filed with the liability under the theories of respondeat superior,
Professional Regulation Commission (PRC) an apparent authority, ostensible authority, or
administrative complaint for gross negligence and agency by estoppel.
malpractice against Dr. Ampil and Dr. Fuentes. • In this jurisdiction, the statute governing liability
• On February 16, 1986, pending the outcome of for negligent acts is Article 2176 of the Civil
the above cases, Natividad died. Code, which reads:
• Whether the hospital (run under the corporate o Art. 2176. Whoever by act or omission
name PSI) is liable for the negligence of Dr. Ampil causes damage to another, there being
• We now proceed to the doctrine of corporate fault or negligence, is obliged to pay for
the damage done. Such fault or
negligence or corporate responsibility.
negligence, if there is no pre-existing
• In the present case, it was duly established that
contractual relation between the parties,
PSI operates the Medical City Hospital for the is called a quasi-delict and is governed
purpose and under the concept of providing by the provisions of this Chapter.
comprehensive medical services to the public. • A derivative of this provision is Article 2180, the
• Accordingly, it has the duty to exercise
rule governing vicarious liability under the
reasonable care to protect from harm all patients doctrine of respondeat superior, thus:
admitted into its facility for medical treatment. o Art. 2180. The obligation imposed by
Unfortunately, PSI failed to perform such duty.
Article 2176 is demandable not only for
The findings of the trial court are convincing,
one’s own acts or omissions, but also for
thus:
those of persons for whom one is
• PSI’s liability is traceable to its failure to conduct responsible.
an investigation of the matter reported in the nota o x x x x x x The owners and managers of
bene of the count nurse. an establishment or enterprise are
likewise responsible for damages

February 28, 2008 | Friday Page 2 of 9


jesa.jan.justin.trish.kat.bots.laura.gee-r
Is Art of Medicine Atty. Legarda
Legal Medicine

caused by their employees in the imposes liability, not as the result of the reality of
service of the branches in which the a contractual relationship, but rather because of
latterare employed or on the occasion of the actions of a principal or an employer in
their functions. somehow misleading the public into believing that
• Courts came to realize that modern hospitals are the relationship or the authority exists.
increasingly taking active roles in supplying and • The concept is essentially one of estoppel.
regulating medical care to patients. • Our jurisdiction recognizes the concept of an
• No longer were a hospital’s functions limited to agency by implication or estoppel. Article 1869 of
furnishing room, food, facilities for treatment and the Civil Code reads:
operation, and attendant for its patients. o Art. 1869. Agency may be expressed, or
• Rather, they regularly employ, on a salaried implied from the acts of the principal,
basis, a large staff of physicians, interns, nurses, from his silence or lack of action, or his
administrative and manual workers. failure to repudiate the agency, knowing
• They charge patients for medical care and that another person is acting on his
treatment, even collecting for such services behalf without authority.
through legal action, if necessary. • In this case, PSI publicly displays in the lobby of
• An employer-employee relationship in effect the Medical City Hospital the names and
exists between hospitals and their attending and specializations of the physicians associated or
visiting physicians. accredited by it, including those of Dr. Ampil and
• The unique practice (among private hospitals) of Dr. Fuentes.
filling up specialist staff with attending and visiting • It “is now estopped from passing all the blame to
“consultants”, who are allegedly not hospital the physicians whose names it proudly paraded
employees, presents problems in apportioning in the public directory leading the public to
responsibility for negligence in medical believe that it vouched for their skill and
malpractice cases. However, the difficulty is more competence.”
apparent than real.
• Hospitals exercise significant control in the hiring NOGALES vs. CAPITOL MEDICAL CENTER, Dec. 19,
and firing of consultants and in the conduct of 2006
their work within the hospital premises. • Pregnant with her fourth child, Corazon Nogales,
• Doctors who apply for ‘consultant’ slots, visiting
who was then 37 years old, was under the
or attending, are required to submit proof of
completion of residency, their educational exclusive prenatal care of Dr. Oscar Estrada
qualifications, generally, evidence of accreditation beginning on her fourth month of pregnancy or as
by the appropriate board (diplomate), evidence of early as December 1975.
fellowship in most cases, and references, While Corazon was on her last trimester of pregnancy, Dr.
• These requirements are carefully scrutinized by Estrada noted an increase in her blood pressure and
members of the hospital administration or by a development of leg edema indicating preeclampsia, which
review committee set up by the hospital who is a dangerous complication of pregnancy.
either accept or reject the application. x x x.
On May 26, 1976, Corazon was admitted at 2:30AM at the
• After a physician is accepted, either as a visiting
or attending consultant, he is normally required to CMC after the staff nurse noted the written admission
attend clinico-pathological conferences, conduct request of Dr. Estrada
bedside rounds for clerks, interns, and residents, • Upon Corazon’s admission at the CMC, Rogelio
moderate grand rounds and patient audits and Nogales executed and signed the “Consent on
perform other tasks and responsibilities, for the Admission and Agreement” and “Admission
privilege of being able to maintain a clinic in the
Agreement”
hospital, and/or for the privilege of admitting
patients into the hospital. • Corazon died at 9:15AM. The cause of death was
• In addition to these, the physician’s performance “hemorrhage, post partum.”
as a specialist is generally evaluated by a peer • After more than 11 years of trial, Dr. Estrada was
review committee on the basis of mortality and deemed solely liable for damages. - The victim
morbidity statistics, and feedback from patients, was under his pre-natal care, apparently, his fault
nurses, interns, and residents.
began from his incorrect and inadequate
• A consultant remiss in his duties, or a consultant
management and lack of treatment of the pre-
who regularly falls short of the minimum
standards acceptable to the hospital or its peer eclamptic condition of his patient.
review committee, is normally politely terminated. • It is not disputed that he misapplied the forceps in
• In other words, private hospitals, hire, fire, and causing the delivery because it resulted in a large
exercise real control over their attending and cervical tear which had caused the profuse
visiting ‘consultant’ staff. bleeding which he also failed to control.
• The control exercised, the hiring, and the right to • The issue before the Supreme Court was
terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, whether CMC was vicariously liable for the
with the exception of the payment of wages. negligence of Dr. Estrada.
• Its liability is also anchored upon the agency • After a thorough examination of the voluminous
principle of apparent authority or agency by records of this case, the Court finds no single
estoppel and the doctrine of corporate negligence evidence pointing to CMC’s exercise of control
which have gained acceptance in the over Dr. Estrada’s treatment and management of
determination of a hospital’s liability for negligent
Corazon’s condition.
acts of health professionals.
• Apparent authority, or what is sometimes referred • It is undisputed that throughout Corazon’s
to as the “holding out” theory, or doctrine of pregnancy, she was under the exclusive prenatal
ostensible agency or agency by estoppel, xxx care of Dr. Estrada. At the time of Corazon’s
February 28, 2008 | Friday Page 3 of 9
jesa.jan.justin.trish.kat.bots.laura.gee-r
Is Art of Medicine Atty. Legarda
Legal Medicine

admission at CMC and during her delivery, it was treating physician is an employee of the hospital;
Dr. Estrada, assisted by Dr. Villaflor, who rather a representation may be general and
attended to Corazon. implied.
• There was no showing that CMC had a part in • The doctrine of apparent authority is a species of
diagnosing Corazon’s condition. the doctrine of estoppel. Article 1431 of the Civil
• While Dr. Estrada enjoyed staff privileges at Code provides that “[t]hrough estoppel, an
CMC, such fact alone did not make him an admission or representation is rendered
employee of CMC. CMC merely allowed Dr. conclusive upon the person making it, and cannot
Estrada to use its facilities when Corazon was be denied or disproved as against the person
about to give birth, which CMC considered an relying thereon.
emergency. • In the instant case, CMC impliedly held out Dr.
• Considering these circumstances, Dr. Estrada is Estrada as a member of its medical staff.
not an employee of CMC, but an independent • Through CMC’s acts, CMC clothed Dr. Estrada
contractor. with apparent authority thereby leading the
• The question now is whether CMC is Spouses Nogales to believe that Dr. Estrada was
automatically exempt from liability considering an employee or agent of CMC. CMC cannot now
that Dr. Estrada is an independent contractor- repudiate such authority.
physician. • First, CMC granted staff privileges to Dr. Estrada.
• In general, a hospital is not liable for the CMC extended its medical staff and facilities to
negligence of an independent contractor- Dr. Estrada.
physician. • Upon Dr. Estrada’s request for Corazon’s
• There is, however, an exception to this principle. admission, CMC, through its personnel, readily
The hospital may be liable if the physician is the accommodated Corazon and updated Dr.
“ostensible” agent of the hospital. Estrada of her condition.
• This exception is also known as the “ doctrine of • Second, CMC made Rogelio sign consent forms
apparent authority” printed on CMC letterhead.
• The plaintiff must show that: • Prior to Corazon’s admission and supposed
(1) the hospital, or its agent, acted in a manner hysterectomy, CMC asked Rogelio to sign
that would lead a reasonable person to release forms, the contents of which reinforced
conclude that the individual who was alleged Rogelio’s belief that Dr. Estrada was a member of
to be negligent was an employee or agent of CMC’s medical staff.
the hospital; • Third, Dr. Estrada’s referral of Corazon’s profuse
(2) where the acts of the agent create the vaginal bleeding to Dr. Espinola, who was then
appearance of authority, the plaintiff must the Head of the Obstetrics and Gynecology
also prove that the hospital had knowledge Department of CMC, gave the impression that Dr.
of and acquiesced in them; and Estrada as a member of CMC’s medical staff was
(3) the plaintiff acted in reliance upon the collaborating with other CMC-employed
conduct of the hospital or its agent, specialists in treating Corazon.
consistent with ordinary care and prudence. • The second factor focuses on the patient’s
• The element of “holding out” on the part of the reliance. It is sometimes characterized as an
hospital does not require an express inquiry on whether the plaintiff acted in reliance
representation by the hospital that the person upon the conduct of the hospital or its agent,
alleged to be negligent is an employee. consistent with ordinary care and prudence.
• Rather, the element is satisfied if the hospital • The records show that the Spouses Nogales
holds itself out as a provider of emergency room relied upon a perceived employment relationship
care without informing the patient that the care is with CMC in accepting Dr. Estrada’s services.
provided by independent contractors. • Rogelio testified that he and his wife specifically
• The element of justifiable reliance on the part of chose Dr. Estrada to handle Corazon’s delivery
the plaintiff is satisfied if the plaintiff relies upon not only because of their friend’s
the hospital to provide complete emergency room recommendation, but more importantly because
care, rather than upon a specific physician. of Dr. Estrada’s “connection with a reputable
• The doctrine of apparent authority essentially hospital, the [CMC].”
involves two factors to determine the liability of • Moreover, Rogelio’s consent in Corazon’s
an independent-contractor physician. hysterectomy to be performed by a different
• The first factor focuses on the hospital’s physician, namely Dr. Espinola, is a clear
manifestations and is sometimes described as an indication of Rogelio’s confidence in CMC’s
inquire whether the hospital acted in a manner surgical staff.
which would lead a reasonable person to • CMC’s defense that all it did was “to extend to
conclude that the individual who was alleged to [Corazon] its facilities” is untenable.
be negligent was an employee or agent of the • The court cannot close its eyes to the reality that
hospital. hospitals, such as CMC, are in the business of
• In this regard, the hospital needs not make treatment.
express representations to the patient that the

February 28, 2008 | Friday Page 4 of 9


jesa.jan.justin.trish.kat.bots.laura.gee-r
Is Art of Medicine Atty. Legarda
Legal Medicine

***ALSO KNOWN AS CAPTAIN OF THE SHIP


DOCTRINE
RAMOS VS. C.A., G.R. No. 124354, December 29, 1999
• Where common knowledge and experience teach RAMOS VS. C.A., G.R. No. 124354, December 29, 1999
that a resulting injury would not have occurred to • Exception to need for expert: doctrine of res ipsa
the patient if due care had been exercised, an loquitur- i.e. matter is within the common
inference of negligence may be drawn. knowledge of mankind which may be testified to
• All the patient has to do is prove a nexus by anyone familiar with the facts.
between the particular acts or omission o E.g., statements and acts of physicians
complained of and the injury sustained while and surgeons, external appearances
under the custody and management of the and manifest conditions which are
physician without need to produce expert medical observable by any one.
testimony • Supreme Court ruled that the surgeon is equally
• Res ipsa loquitur: negligent for the comatose condition of his
o Leaving a foreign object in the body of patient even if it was shown that the
the patient after an operation; anesthesiologist was negligent for the comatose
o Injuries sustained on a healthy part of condition.
the body which was not in the area of • Surgeon was responsible to see to it that those
treatment; under him performed their tasks in the proper
o Removal of the wrong part of the body manner.
when another part was intended;
o Knocking out a tooth while a patient’s Ramos vs C.A, G.R. No. 124354, 2002 (motion for
jaw was under anesthetic for the reconsideration)
removal of his tonsils; • Attending surgeon was found guilty of medical
o The loss of an eye while the patient was
negligence because a patient who submitted
under the influence of anesthetic, during herself for cholecystectomy suffered irreparable
or following an operation for appendicitis brain damage even before the operation could be
Professional Services, Inc. vs. Agana, January 31, performed
2007 Professional Services, Inc. vs. Agana, January 31,
• Literally, res ipsa loquitur means “the thing 2007
speaks for itself.” It is the rule tat the fact of the • It was duly established that Dr. Ampil was the
occurrence of an injury, taken with the lead surgeon during the operation of Natividad
surrounding circumstances, may permit an
• He requested the assistance of Dr. Fuentes only
inference or raise a presumption of negligence,
to perform hysterectomy when he (Dr. Ampil)
or make out a plaintiff’s prima facie case, and
found that the malignancy in her sigmoid area
present a question of fact for defendant to meet
had spread to her left ovary. Dr. Fuentes
with an explanation
performed the surgery and thereafter reported
• Stated differently, where the thing which caused
and showed his work to Dr. Ampil.
the injury, without the fault of the injured, is under
• The latter examined it and finding everything to
the exclusive control of the defendant and the
be in order, allowed Dr. Fuentes to leave the
injury is such that it should not have occurred if
operating room. Dr. Ampil then resumed
he, having such control used proper care, it
operating on Natividad
affords reasonable evidence, in the absence of
explanation that the injury arose from the • He was about to finish the procedure when the
defendant’s want of care, and the burden of proof attending nurses informed him that two pieces of
is shifted to him to establish that he has observed gauze were missing. A “diligent search” was
due care and diligence. conducted, but the misplaced gauzes were not
• The requisites for the applicability of the doctrine found.
of res ipsa loquitur are: • Dr. Ampil then directed that the incision be
o (1) the occurrence of an injury; closed. During this entire period, Dr. Fuentes
o (2) the thing which caused the injury was no longer in the operating room and had, in
fact, left the hospital.
was under the control and management
of the defendant; • Under the “Captain of the Ship” rule, the
o (3) the occurrence was such that in the operating surgeon is the person in complete
ordinary course of things, would hot charge of the surgery room and all personnel
have happened if those who had control connected with the operation. Their duty is to
or management used proper care; and obey his orders. As stated before, Dr. Ampil was
o (4) the absence of explanation by the the lead surgeon. In other words, the was the
“Captain of the Ship.”
defendant. Of the foregoing requisites,
the most instrumental is the “control and • The he discharged such role is evident from his
management of the thing which caused following conduct:
the injury.” (1) calling Dr. Fuentes to perform a
• NOTE- IN THE USA: The Courts require expert hysterectomy;
(2) examining the work of Dr. Fuentes and
testimony to support res ipsa loquitur
finding it in order;
• In this jurisdiction, res ipsa loquitur is not a rule of
(3) granting Dr. Fuentes’ permission to
substantive law, hence, does not per se create or leave; and
constitute an independent or separate ground of (4) ordering the closure of the incision.
liability, being a mere evidentiary rule. In other
• To our mind, it was this act of ordering the
words, mere invocation and application of the
closure of the incision notwithstanding that two
doctrine does not dispense with the requirement
pieces of gauze remained unaccounted for, that
of proof of negligence
caused injury to Natividad’s body. Clearly, the
control and management of the thing which
February 28, 2008 | Friday Page 5 of 9
jesa.jan.justin.trish.kat.bots.laura.gee-r
Is Art of Medicine Atty. Legarda
Legal Medicine

caused the injury was in the hands of Dr. Ampil, o Further, no evidence exists that Dr,
not Dr. Fuentes Lacson neglected her duties as head of
Batiquin vs C.A., G.R. No. 118231. 1996 the blood bank.
• Attending surgeon was found guilty of medical • Dr. Noe Espinola
negligence because she left behind a piece of
o Dr. Espinola’s order to do hydterectomy
rubber in patient’s abdomen.
***NO LIABILITY which was based on the information he
received by phone is not negligence. Dr.
Nogales vs. Capitol Medical Center, December 19, espinola, upon hearing such information
2006 about Corazon’s condition, believed in
• Dr. Ely Villaflor good faith that Hysterectomy was the
o Dr. Villaflor admitted administering a correct remedy.
lower dosage of magnesium sulfate. o At any rate, the hysterectomy did not
However, this was after informing Dr. push through because upon Dr.
Estrada that Corazon was no longer in Espinola’s arrival, it was already too
convulsion and that her blood pressure late. At the time, Corazon was
went down to a dangerous level. At that
practically dead.
moment, Dr. Estrada instructed Dr.
Villaflor to reduce the dosage of • Nurse J. Dumlao
magnesium sulfate from 10 to 2.5 o There is no evidence of Nurse Dumlao’s
grams. alleged failure to follow Dr. Estrada’s
o Dr. Villaflor’s act of administering a specific instructions. Even assuming
lower dosage of magnesium sulfate was Nurse Dumlao defied Dr. Estrada’s
not out of her own volition or was in
contravention of Dr. Estrada’s order. order, there is no showing tha side-trip
• Dr. Rosa Uy administration of hemacel proximately
o The Court believes Dr. Uy’s claim that caused Corazon’s death.
as a second year resident physician o No evidence linking Corazon’s death
then at CMC, she was merely and the alleged wrongful hemacel
authorized to take the clinical history administration was introduced.
and physical examination of Corazon. Therefore, there is no basis to hold
However, that routine internal Nurse Dumlao liable for negligence.
examination did not ipso facto make Dr.
Uy liable for the errors committed by Dr. JURISPRUDENCE ON EXPERT TESTIMONY
Estrada. Need for Expert Testimony
o Nothing shows that Dr. Uy participated • To establish that defendant physician has
in delivering Corazon’s baby. Further, it deviated from the applicable standard of care and
is unexpected from Dr. Uy, a mere that injury therefore resulted.
resident physician at that time, to call • To show evidence of professional custom and
the attention of a more experienced that custom is reasonable and sufficient.
specialist, if ever she was present at the • To support conclusion as to causation of injury
delivery room. when matter lies clearly within domain of medical
• Dr. Joel Enriquez science.
o The Court is not convinced. Dr. Enriquez
is an anesthesiologist whose field of PHILIPPINE JURISPRUDENCE
expertise is definitely not obstetric and • Ramos vs. C.A. – anesthesiologist’s failure to do
gynecology. As such, Dr.Enriquez was a good ore-operative evaluation of the patient
not expected to correct Dr. Estrada’s prior to administration of anesthesia is a deviation
errors. from standard of care. Resulted in wrongful
o Besides, there was no evidence of Dr. intubation, which caused a coma.
Enriquez/z knowledge of any error • The expert witness must also be an
committed by Dr. Estrada and his failure anesthesiologist, not a pulmonologist.
to act upon such observation.
• Dr. Perpetua Lacson • Reyes vs. Sisters of Mercy Hospital- an
o As found by the trial court, there was no autopsy expert is not qualified to be an expert
unreasonable delay in the delivery of witness in a typhoid fever case
blood from the time of the request until • Has to be an infectious disease specialist
the transfusion to Corazon. Dr. Lacson
• No negligence proved
competently explained the procedure
before blood could be given to the
Cruz vs. CA, Nov. 18, 1997
patient. Taking into account the bleeding
• Conclusions as to reckless imprudence is still
time, clotting time and cross-matching,
Dr. Lacson stated that it would be best arrived a not through educated surmises nor
approximately 45-60 minutes before conjectures of laymen, including judges, but by
blood could be ready for transfusion. the unquestionable knowledge of expert
witnesses.

February 28, 2008 | Friday Page 6 of 9


jesa.jan.justin.trish.kat.bots.laura.gee-r
Is Art of Medicine Atty. Legarda
Legal Medicine

• Expert testimony should have been offered to the incision. When he failed to do so, it was his
prove that the circumstances cited by the courts duty to inform Natividad about it. Dr. Ampil
below are constitutive of conduct falling below th breached both duties.
standard of care employed by other physicians in o Dr. Ampil’s negligence is the proximate
good standing when performing the same cause of Natividad’s injury could be
operation. traced from his act of closing the
incision despite the information given by
ELEMENTS OF MEDICAL NEGLIGENCE the attending nurses that two pieces of
Four D’s: gauze were still missing.
• Duty – of physician to his patient
OTHER FORMS OF MALPRACTICE
• Dereliction – physician failed to perform his duty Article 1 General Principles
• Damage – patient suffers damage as a
consequence Section 2. On entering the profession, a physician
assumes the obligation of maintaining the honorable
• Direct – negligence is the proximate cause of
tradition that confers the well-deserved title of a "friend of
damage
mankind." The physician should cherish a proper pride in
the calling and conduct himself/herself in accordance with
Professional Services, Inc. vs. Agana, Jan. 31, 2007
this Code and in the generally accepted principles of the
• This is a clear case of medical malpractice or
International Code of Medical Ethics.
more appropriately, medical negligence. To
successfully pursue this kind of case, a patient
Section 3. Physicians should fulfill the civic duties of a
must not only prove that a health care provider
good citizen, must conform to the laws and cooperate with
either failed to do something which a reasonably
the proper authorities in the application of medical
prudent health care provider would have done, or
knowledge for the promotion of the common welfare.
that he did something that a reasonably prudent
provider would not have done; and that failure or
News Article:
action caused injury to the patient.
Hospital official loses money in scam
• Simply put, the elements are duty, breach, injury, Estafa raps versus 2 Makati hospital docs
and proximate causation. Doctor named in estafa complaint faces probe
• Reyes vs. Sisters of Mercy hospital – patient Eye doctors deter scam on cataract surgeries
must prove that the physician failed to do Doctor faces civil case filed by Mendez family
something which a reasonable prudent physician NY judge won't clear RP nurses
would have done. No negligence was proven. Pinoy nurses lose case filed against NY recruiter
• Ramos vs. CA – faulty intubation was the Nurse sues Makati Med docs
proximate cause which triggered the chain of Poor Filipinos selling kidneys for only $1,500
events leading to the patient’s brain damage
• Carillo vs. People (G.R. No. 86990, Jan. 21, Case in Review: GARCIA vs SALVADOR, G.R. No.
1994) – physicians found guilty of negligence 168512, March 20, 2007
resulting in homicide as a result of death that • As a prerequisite for regular employment, Ms
occurred during a simple appendectomy upon Salvador underwent a medical examination at the
Community Diagnostic Center (CDC).
ambulatory 13 year old. (**if vs people=criminal
• Garcia, a medical technologist who conducted
case)
the Hbs Ag test and issued result that she was
o Whether or not anesthesia administered "HBs Ag: Reactive."
was within peculiar knowledge of • Garcia signed, and the rubber stamp of Bu
doctors Castro.
o They failed to inform the parents of the • Ms Salvador was terminated from employment
dramatic deterioration of the patient because she was suffering from liver disease.
o Failure to appreciate and monitor • Her father had a heart attack.
serious post-operative condition. • At the hospital, Ms Salvador underwent another
o Low-level of care and diligence in failing test and she was told that she was non-reactive.
She went again to CDC and this time her result
to correct prescription for post-operative was "negative."
pan • Ms. Salvador was rehired, and after that, she
• Cruz vs. CA (Nov. 18, 1997) – no criminal liability, sued Garcia and Castro for the damages.
but imposed civil liability • RTC dismissed petition; CA reversed – holding
o Operation for myoma, patient died. Garcia liable and exonerating Castro.
o Accussed doctor said death due to • SUPREME COURT – Negligence is the failure to
observe for the protection of the interest of
disseminated intravascular coagulation
another person that degree of care, precaution
and presented expert witnesses. and vigilance which the circumstances justly
Acquitted of homicide. demands, whereby such other person suffers
• Professional Services, Inc. vs. Agana (Jan. 31, injury.
2007) – Dr. Ampil, as the lead surgeon, had the • SUPREME COURT - For health care providers,
duty to remove all foreign objects, such as the test of the existence of negligence is: did the
gauzes, from Natividad/s body before closure of health care provider either fail to do something

February 28, 2008 | Friday Page 7 of 9


jesa.jan.justin.trish.kat.bots.laura.gee-r
Is Art of Medicine Atty. Legarda
Legal Medicine

which a reasonably prudent health care provider health care provider would observe. Thus, his act
would have done, or that he or she did something or omission constitutes a breach of duty.
that a reasonably prudent health care provider • SUPREME COURT – Article 20 of the New Civil
would not have done; and the failure or action Code provides:
caused injury to the patient; if yes, then he is - Art. 20. Every person who, contrary to law,
guilty of negligence. willfully or negligently causes damage to another,
• SUPREME COURT – Owners and operators of shall indemnify the latter for the same.
clinical laboratories have the duty to comply with
• SUPREME COURT - The foregoing provision
statutes, as well as rules and regulations,
purposely promulgated to protect and promote provides the legal basis for the award of
the health of the people by preventing the damages to a party who suffers damage
operation of substandard, improperly managed whenever one commits an act in violation of
and inadequately supported clinical laboratories some legal provision. This was incorporated by
and by improving the quality of performance of the Code Commission to provide relief to a
clinical laboratory examinations. person who suffers damage because another has
violated some legal provision.
• SUPREME COURT – In fine, violation of a
statutory duty is negligence. Where the law
imposes upon a person the duty to do something, SEXUAL HARASSMENT
his omission or non-performance will render him • Affair with patient
liable to whoever may be injured thereby. • Adultery, concubinage, etc.
• SUPREME COURT – The Clinical Laboratory
Law, the Revised Rules and Regulations DOCTRINE OF CONTRIBUTORY NEGLIGENCE
Governing the Registration, Operation and Definition: The act or omission amounting to want of
Maintenance of Clinical Laboratories in the ordinary care on the part of the person injured which,
Philippines and The Philippine Medical
concurring with the defendant's negligence, is the
Technology Act of 1969 all make it clear that:
o a clinical laboratory must be proximate cause of injury.
administered, directed and supervised
by a licensed physician authorized by Equitable Doctrine: Is applicable when the patient's own
the Secretary of Health, like a negligence is the immediate and proximate cause of the
pathologist who is specially trained in injury. Physician has to prove this.
the methods of laboratory medicine;
o that the medical technologist must be Examples:
under the supervision of the pathologist o leaving a hospital against medical advise
or a licensed physician; and o canceling appointment
o that the results of any examination may o failure to take medication
be released only to the requesting o failure to take therapy regimens
physician or his authorized o failure to give accurate history
representative upon the direction of the o failure to follow treatment recommended by
laboratory pathologist. physician
• SUPREME COURT – these rules are intended o failure to follow physician's reasonable advice on
for the protection of the public by preventing taking medications
o failing to return for follow-up
performance of substandard clinical examinations
o failure to follow advice after an operation
by laboratories whose personnel are not properly
o being a smoker and kidney transplant
supervised. The public demands no less than an
effective and efficient performance of clinical
laboratory examinations through compliance with DOCTRINE OF COMPARATIVE NEGLIGENCE
the quality standards set by laws and regulations. Definition: The degree of negligence of the patient is
• SUPREME COURT – Garcia failed to comply compared to the degree of negligence of the physician.
with these standards,
o CDC is not administered, directed and Comparative Negligence Defense:
supervised by a licensed physicaina as • First, there is a greater than 50 percent rule. If
required by law, but Ma. Ruby C. the injured party was greater than 50 percent
Calderon, a licensed Medical responsible for the accident, he cannot recover
Technologist. compensation.
o Garcia conducted the HBsAg test of • If he is equal to or less than 50 percent
respondent Ranida without the responsible, he can recover.
supervision of the defendant-appellee
• Second, the injured party's compensation must
Castro, who admitted that [He] does not
be reduced by the percentage of his
know, has never known or met, nor has
responsibility for the accident.
he personally examined any specimen,
blood, urine or any other tissue, of • The rule attempts to be fair to both injured parties
Salvador. and defendants by holding each of them
o The disputed HBs Ag result was responsible for their roles in causing an accident.
released without the authorization of
Castro. DOCTRINE OF ASSUMPTION OF RISK
• SUPREME COURT – Garcia may not have Definition: A person who volunteers, assents, and was
intended to cause the consequences which injured is not deemed in law to be injured; voluntary
followed after the release of the HBsAg test exposure to a known danger; patient knew and voluntarily
result. However, his failure to comply with the went ahead.
laws and rules promulgated and issued for the
protection of public safety and interest is failure to
DOCTRINE OF LAST CLEAR CHANCE
observe that care which a reasonably prudent

February 28, 2008 | Friday Page 8 of 9


jesa.jan.justin.trish.kat.bots.laura.gee-r
Is Art of Medicine Atty. Legarda
Legal Medicine

Definition: Where both parties are negligent in such a minor should be given by the parents or guardian,
way that it would be impossible to determine whose members of the immediate family that are of legal age.
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.
Article II. Duties if Physicians to their Patients
Example: Section 1. A physician should attend to his patients
- patient brought to hospital with a slashed faithfully and conscientiously. He shoukd secure for them
wrist. He had tried to commit suicide. all possible benefits that may depend upon his
Physician who doesn't stop the bleeding had professional skill and care. As the sole tribunal to adjudge
last clear chance to avoid death of patient. In
the physician’s failure to fulfill his obligation to his parents
the USA, this is not used anymore.
is, in most cases, his own conscience, and violation of this
HOW TO AVOID MEDICAL NEGLIGENCE rule on his part is discretable and inexcusable.

Risk Management Doctrine of Vicarious Liability


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

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


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

February 28, 2008 | Friday Page 9 of 9


jesa.jan.justin.trish.kat.bots.laura.gee-r