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MEDICAL JURISPRUDENCE: LEGAL PRINCIPLES OR DOCTRINES IN MEDICAL MALPRACTICE CASE

Primum non nocere first do no harm

Atty. A. F. Daguplo, RMT, MD


4. the employer's power to control the employee with respect to the
means and methods by which the work is to be accomplished
([G.R. No. 112877. February 26,1996.] SANDIGAN SAVINGS vs. NLRC)

1. Doctrine

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of Vicarious Liability making one person liable for the


mistake of others

a. Doctrine of Ostensible Agent (Qui approvat non reprobat)


b. Borrowed Servant Doctrine an example is nurses who

are
employees of the hospital and is borrowed by the surgeon
during surgeries. If the nurse makes a mistake in the operating
room, the surgeon would be held liable in accordance with the
next doctrine.

c. Captain-of-the Ship Doctrine Since the surgeon is the leader of


the operative team, he shall be held liable even if the
anesthesiologist is the one who made a mistake. It is due to the
fact that the surgeon has the knowledge that enables him to
anticipate worst case scenarios.

Art. 2176 New Civil Code. Whoever by act or omission causes


damage to another, there being fault or negligence, is obliged to pay for
the damages done.

Art. 2180 New Civil Code. The obligation imposed by article 2176
is demandable not only for ones own acts or omissions, but also from
those of persons from whom one is responsible.

The owners and managers of an establishment or


enterprise are likewise responsible for the damages caused by
their employees in the service of the branches in which the latter
are employed or on the occasion of their functions.
*Example of this is a traffic accident involving a bus. The bus driver is never
asked to pay for the damages because it is always the bus company who is
liable for these things.
*Involves the extraordinary diligence. To differentiate:
Ordinary diligence there is always presumption of innocence; the
burden of proof is on the person who is indicting you
Extraordinary diligence there is always presumption of
negligence/guilt; the burden of proof is on the doctor
Requisites of Liability:

1. The

employee was chosen by the employer personally or through


another;

2. The services are to be rendered in accordance with orders which the


employer has the authority to give at all times; and

The responsibility treated of in this article shall cease when the


persons herein mentioned prove that they observed all the diligence of
a good father of a family to prevent damage. The diligence of a good
father referred to means the diligence in the selection and supervision
of employees
MCKEE vs. IAC([G.R. No. 68102. July 16, 1992.]; KOH, et. al vs. IAC;[G.R. No.
68103. July 16, 1992])
G.R. No. 124354 December 29, 1999 RAMOS et al. petitioners, vs.
C. A., DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.

Dr. Orlino Hosaka as the head of the surgical team. As the socalled "captain of the ship," 73 it is the surgeon's responsibility to see to
it that those under him perform their task in the proper manner.
Respondent Dr. Hosaka's negligence can be found in his failure to
exercise the proper authority (as the "captain" of the operative team) in
not determining if his anesthesiologist observed proper anesthesia
protocols .
2. Doctrine of res ipsa loquitor - Doctrine of common knowledge

Where the thing causes injury is shown to be under the


management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have
management use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose from
want of care. (Ma-ao Central Co.Inc. v. CA, G.R. 83491, Aug 27, 1990)

the facts and circumstances accompanying an injury may be


such as to raise a presumption, to permit an inference, of negligence on
the part of the defendant, or some other person who is charged with
negligence.(Sangco)
*There is the presumption that the doctor is negligent because of the
common knowledge that what the doctor did was wrong.
*Example: The doctor is performing a foot surgery; the scalpel fell and injured
the patients thigh.
*No expert witness is needed to prove the negligence
*Burden of proof is on the doctor.
Applicability of the Rule

1. The

accident was of a kind which does not ordinarily occur unless


someone is negligent;

3. The illicit act of the employee was on the occasion or by reason of the

2. That the instrumentality or agency which caused the injury was under

4. Execution against the employee is unsatisfied.

3. That the injury suffered must not have been due to any voluntary action

functions entrusted to him.

Employer-employee under Solis book

1. Extent of Control
2. Kind of occupation
3. Skill required in the particular occupation
4. Whether or not one is work is distinct
5. Whether or not instruments or tools were provided by employer
6. Length of time
7. Method of payment
8. Work is part of regular business of the employer
9. Belief by the parties
10. Whether the principal is or is not in business.

In determining the existence of an employer-employee


relationship, the following elements are generally considered:

1. the selection and engagement of the employee;


2. the payment of wages;
3. the power of dismissal; and
Transcribed by: KC

the exclusive control of the person charged with negligence; and


or contribution on the part of the person injured.

Where Rule not applicable:

1. Calculated risk side effects of drugs or procedures because it is already


expected

2. Bad result rule example: nonrespondence due to antibiotic resistance

Doctors are protected by a special rule of law. They


are not guarantors of care. They do not even warrant a good
result. They are not insurers against mishaps or unusual
consequences.
(G.R. No. 122445 November 18, 1997 DR. NINEVETCH CRUZ,
petitioner, v. CA and LYDIA UMALI, respondents.)

3. Honest errors of judgment as to appropriate procedure


4. Mistakes in the diagnosis

..Furthermore they are not liable

for honest
mistakes of judgment . . . (G.R. No. 122445 November 18, 1997
DR. NINEVETCH CRUZ, petitioner, v. CA and LYDIA UMALI,
respondents.)

Art. II Code of Medical Ethics, Sec. 1

As the sole tribunal to adjudge the physcians failure to


fulfill his obligation to his patients is, in most cases, his own
conscience,..

G.R. No. 118231 July 5, 1996 DR. VICTORIA L. BATIQUIN and ALLAN
BATIQUIN, petitioners, vs. CA

In this light, the private respondents were bereft of direct


evidence as to the actual culprit or the exact cause of the foreign object
finding its way into private respondent Villegas's body, which, needless
to say, does not occur unless through the intersection of negligence.
Second, since aside from the caesarean section, private respondent
Villegas underwent no other operation which could have caused the
offending piece of rubber to appear in her uterus, it stands to reason
that such could only have been a by-product of the caesarean section
performed by Dr. Batiquin. The petitioners, in this regard, failed to
overcome the presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for
negligently leaving behind a piece of rubber in private respondent
Villegas's abdomen and for all the adverse effects thereof.
[G.R. No. 126297, January 31, 2007] PROFESSIONAL SERVICES, INC.,
PETITIONER, VS. NATIVIDAD AND ENRIQUE AGANA, RESPONDENTS

In the corresponding Record of Operation dated April 11, 1984,


the attending nurses entered these remarks: sponge count lacking
two announced to surgeon searched (sic) done but to no avail continue
for closure.

Of course, the Court is not blind to the reality that there are times
when danger to a patients life precludes a surgeon from further
searching missing sponges or foreign objects left in the body. But this
does not leave him free from any obligation. Even if it has been shown
that a surgeon was required by the urgent necessities of the case to
leave a sponge in his patients abdomen, because of the dangers
attendant upon delay, still, it is his legal duty to so inform his patient
within a reasonable time thereafter by advising her of what he had
been compelled to do.

Dr. Ampil did not inform Natividad about the missing two pieces of
gauze. Worse, he even misled her that the pain she was experiencing
was the ordinary consequence of her operation. Had he been more
candid, Natividad could have taken the immediate and appropriate
medical remedy to remove the gauzes from her body. To our mind,
what was initially an act of negligence by Dr. Ampil has ripened into a
deliberate wrongful act of deceiving his patient.
3. Doctrine of contributory negligence

Contributory negligence is conduct on the part of the injured


party, contributing as a legal cause to the harm he has suffered, which
falls below the standard to which he is required to conform for his own
protection.
[G.R. No. 115024. February 7, 1996.] VALENZUELA vs. C.A.
[G.R. No. 117944. February 7, 1996.] LI vs. C.A.

It is the act or omission amounting to want of care on the part of


the person injured which, concurring with the defendants negligence, is
the proximate cause of the injury (Ma-ao Central Co.Inc. v. CA)
*Two parties are negligent; both the doctor and the patient
Basis of Contributory Negligence:

Art. 2179 NCC. 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 the injury being the defendants lack of due
care, the plaintiff may recover damages, but the court shall mitigate the
damages to be awarded.
Effect of Contributory Negligence of Plaintiff:

1. If the contributory negligence was the proximate cause of the accident


there can be no recovery (Taylor v. Meralco 16 Phil.8)

2. If the proximate cause was still the negligence of the defendant, the
plaintiff can still recover damages, but the amount of damages will be
mitigated due to his contributory negligence
*Simply put, if the effect is caused directly by the patients negligence, he
cannot claim money for damages. But if the direct cause is the doctors
Transcribed by: KC

negligence but with contribution by the patients negligence, the patient can
still claim money but its lessened.
4. Doctrine of continuing negligence
*This means that the injury caused by negligence is not instantaneous and
requires time before it appears but is CORRECTABLE. Doctor will not be held
liable if he treats this early on.
*Due diligence = early intervention and prompt action NO INJURY
5. Doctrine of assumption of risk

The general principle underlying the defense in assumption of


risk is that a plaintiff who voluntarily assumes a risk of harm arising
from the negligent act or reckless conduct of the defendant cannot
recover for such harm
*If you properly disclose anything that happened to the patient
intraoperatively and treat it accordingly, you cannot be held liable because
you voluntarily assumed that there is risk of harm that arose from your
negligent act.
*Applicable to experimental cases
*Not applicable in events considered as Acts of God unless there is
stipulation to the contrary. Example is car insurance terms prior to the floods
caused by Ondoy. There is no clause stated in the contract so a lot of people
cannot claim the insurance benefits. Because of that, car insurance
companies included massive floods as one of the conditions in which you can
claim insurance benefits.
Volenti non fit injuria

That to which a person assents is not esteemed in law an injury

One is not legally injured if he has consented to the act


complained of or was willing that it should occur.

Art. 1174. Except in case expressly specified by law, or when it is


otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which though foreseen, were
inevitable.

6. Doctrine of Last clear chance

In Bustamante vs. Court of Appeals.. The doctrine, stated


broadly, is that the negligence of the plaintiff does not preclude a
recovery for the negligence of the defendant where it appears that the
defendant, by exercising reasonable care and prudence, might have
avoided injurious consequences to the plaintiff notwithstanding the
plaintiff's negligence. In other words, the doctrine of last clear chance
means that even though a person's own acts may have placed him in a
position of peril, and an injury results, the injured person is entitled to
recovery (sic). As the doctrine is usually stated, a person who has the
last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or that of a third
person imputed to the opponent is considered in law solely responsible
for the consequences of the accident. (Sangco, Torts and Damages, 4th
Ed., 1986, p. 165).

*This means that the first one who is negligent and caused the injury is the
patient. The doctor will not be held liable in this case if he/she treats this
immediately in every way possible so injury can be avoided.
*Example is when a car overtakes and hits the car on the opposite lane. The
overtaking car can claim for damages if there is a shoulder because the
shoulder is the last clear chance of the other car to avoid the accident.
7. Doctrine of Foreseeability
*Applicable to avoiding complications by anticipating that it will happen and
by preparing contingency measures.
*Example of this is a psych patient who is on high suicide risk. Since it is
understood that the patient will find ways and means to kill himself,
providing an isolation room with a safe environment and maintenance of
medications can help prevent the patient from killing himself

8. Fellow Servant doctrine


*If there is a Workmens Compensation Commission (WCC), injuries caused by
an employee to another would be prevented.
9. Rescue Doctrine
*Only applicable in the US.
*A scenario is: someone got hit by a car along EDSA and you were on the
other side of the road. As you were crossing the street, in order to respond to
the emergency situation, you got hit by a car. In this case, the doctor can
claim damages from the one who hit him AND the one who hit the patient
that he is about to help.
References:

Atty. Daguplos Powerpoint

KCs notes

END OF TRANS

Transcribed by: KC

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