CHAPTER 9: PHYSICIANS AND TORTS

I.Torts
Civil (not criminal) wrongs
In civil cases or tort actions, person who
is filing the suit seeks compensation for
damages he feels he suffered
Referred to as quasi-delicts
Quasi-delict= in negligence or fault, if
there is no existing contractual relation
between 2 parties
II. Professional Liability
Encompasses all possible civil liability
Preferred over medical malpractice
because of negative overtones

Physician has the duty to use at least

the same level of care to treat a
condition under the same circumstances
2) Derelict (neglectful of obligation)
Breach of professional duties of skill and
care or their performance constitutes
actionable malpractice
3) Direct cause
Causation divided into 2 categories:
Fact caused the harm
Proximate cause of injury
4) Damages

III. Classifications of medical

professional liability
1. Malfeasance
Wholly wrongful and unlawful
Ex. Physician who performs an
unnecessary operation
2. Misfeasance
Improper performance; lawful but
careless
Ex. Physician who performs an operation
carelessly or contrary to accepted
standards
3. Nonfeasance
Failure to do something that has to be
done
Ex. Physician who fails to render care
that should have been given
*feasance- means performance or doing of
an act
IV. Medical malpractice or negligence
cases
Negligence is a tort liability; failure to do
some act w/c the person should do
When injury results to the patient through
physician negligence , the patient can
legally initiate a malpractice suit to
recover financial damage
Medical malpractice or negligence- is the
type of claim w/c a victim has available to
him/her to redress a wrong committed by
medical professional w/c has caused
bodily harm
V. The 4 Ds of negligence
1) Duty

Negligence cannot create a right of action

unless it is the proximate cause, in
natural and continuous sequence,
unbroken by an efficient intervening
cause, produces injury and w/out w/c the
result would not have occurred

VI. Two pronged evidence

In malpractice or negligence involving
administration of anaesthesia, necessity
of: expert testimony and res ipsa
loquitur= to hold the defendant liable for
the death or injury of a patient under
excessive or improper anaesthesia
Res ipsa loquitur- presumption of
negligence against the doctor, no longer
need to prove that he is; then the dr.
proves it wrong
2 pronged evidence:
1.) Standards of practice are the
boundaries by w/c the knowledge and
skill levels of a physician are determined
Reasonable person rule
o Most common rule
o This rule is based on assumption that a
physician is expected to use a
reasonable level of skill, knowledge
and care that is possessed by other
physician of similar education and
background
2.) Sources of proof of standard of care
i.)
Expert witness- written or verbal
given by a qualified expert in an
area
ii.)
Documentary evidence- medical
textbooks, medical journals,
professional treatises and standards

published by national organizations

(PMA)
VII. Medical malpractice
It ordinarily refers to any malfeasance or
dereliction of duty committed by a
physician

her brain= she suffered a stroke w/c left

her disabled.
6.) Wrongful amputation of arm and shoulder
7.) Failure to diagnose cancer
8.) Surgical injury
IX. Jurisprudence on medical
professional liability

VIII. Sample cases of medical

malpractice
1.) Unauthorized and unknown
experimentation
Ex. Man was treated for schizophrenia w/
high dose of propranolol (neither he nor
his family are advised of the
experimental nature)
2.) Failure to perform C-section and failure to
recognize and treat seizure
Ex. Cerebral palsy and brain damage
were caused by failure of Obstetrician to
perform Caesarean section and the
misuse of forceps in the delivery of a
newborn
3.) Surgical injury
Ex. A mother had underwent surgery for
a bleeding ulcer in w/c the surgeon
ligated the victims common bile duct
and injured other portion of her gastric
system
4.) Failure to recognize and treat heart attack
Ex. A father was brought to the ER while
exhibiting signs of heart attack, ECG:
EKG strip being consistent w/ an
evolving MI or heart attack. ER dr.
discharged the patient & instructed him
to see an internist the ff. morning. The
patient died of arrhythmia the ff.
morning in the internist office w/c was
precipitated by heart attack the night
before
5.) Surgical precipitation of stroke
Ex. A mother underwent disk surgery,
the surgeon cut off the blood supply in

X. Doctrines applied in medical practice

cases
There is nothing certain and static about
tort or quasi-delict
Doctrines are kept flexible to cope w/
myriad triad factual variation on certain
theme
XI. Doctrine of respondeat superior or
doctrine of various liabilities or doctrine
of imputed negligence or command
responsibility
Article 2176 of Civil Code: every person is
liable for own negligence if that result to
injury of another person
In some situations liability extends to
the employer
Physicians may be responsible for the
mistakes who works in their offices
Physician are responsible for the act of
their assistants: ex. Nurse makes error in
a procedure while acting under a
physicians direction but if a special nurse
is employed by the patient, physician is
not usually liable for the acts of the
special nurse
Physician who properly write a
prescription is not liable for pharmacists
negligence but may be liable if there is
misunderstanding when prescription is
ordered over the telephone

1.) Doctrine of ostensible agent or holding

out theory or agency by estoppel
2.) Borrowed servant doctrine
Servants borrowed from the hospital by
someone and any wrongful act
committed by them during the period,
their new or temporary employer must
be held liable
3.) Captain of the ship doctrine
Head surgeon is held responsible for
everything that goes wrong w/in the
OR
4.) Doctrine of independent contractor
Everyone is responsible for their own
torts
No employer-employee relationship
Physician may be an: independent
contractor or employee
Test of employer-employee relationship
is four-fold:
i.)
selection & engagement of the
employee
ii.)
payment of wages
iii.)
Power of dismissal
iv.)
Power to control the employees
conduct
o Control test, most important test to
distinguish an employee from an
independent contractor
5.) Full time but not regular
o Article 157 of Labor Code: employers of
>200 workers should provide or make
available medical and allied services
(full time nurse, part time physician &
dentist and emergency clinic)
XII. Jurisprudence on respondeat
superior

XIII. Doctrine of res ipsa loquitur or

common
knowledge doctrine
Res ipsa loquitur- means the thing or
transaction speaks for itself
1.) Requisites of res ipsa loquitur

a.) Accident does not occur in the absence

of someones negligence
b.) Caused by an instrumentality w/in
exclusive control of the defendant or
defendants
c.) Possibility of contributing conduct w/c
would make the plaintiff responsible is
eliminated
2.) Application of the res ipsa loquitur
3.) Res ipsa loquitur, when applicable
I.
leaving a foreign object in patients
body after an operation = injures
health of the person
II.
area of treatment, removal of the
wrong part of the body when another
part is intended
III.
knocking out of tooth while a patients
was under anesthetic for removal of
tonsil
IV.
loss of an eye while the patient was
under the influence of anesthetic
4.) Res ipsa loquitur, when not applicable
o When not guilty of the ascribed
negligence
o In suit against a physician or surgeon
w/c involves merits of the diagnosis or of
a scientific treatment
o In malpractice suit if the only showing is
that the desired result of an operation or
treatment was not accomplished
XIV. Jurisprudence on res ipsa loquitur

XV. Doctrine of contributory negligence

(doctrine of common fault)
Contributory negligence- conduct on the
part of the plaintiff (patient), contributing
as a legal cause to the harm he has
suffered
When the plaintiffs own negligence was
the immediate & proximate cause of his
injury, he cannot recover damages
But if his negligence is only contributory,
the immediate & proximate cause of
injury being the defendants lack of due
care, the plaintiff may recover damages

In quasi-delicts, the contributory

negligence of the plaintiff shall reduce the
damages that he may recover

XVI. Doctrine of continuing negligence

Applied to foreign body cases, improper
setting of broken bones, in the application
of cast and in wrongful diagnosis
XVII. Doctrine of assumption of risk
Based upon a maxim violent non fit
injuria w/c means a person who assents
and injured is not regarded in law to be
injured
Predicted upon knowledge and consent
XVIII. Doctrine of last clear chance
Implies thought, appreciation, mental
direction and lapse of sufficient time to
effectually act upon impulse to save the
life or prevent injury to another
XIX. Doctrine of foreseeability
Physician cannot be held liable if the
injury sustained by patient is on account
of unforeseen condition
1.) Force majeure (caso fortuito or
fortuitous event)- could not be foreseen
2.) Act of God- cannot be reasonably
foreseen, avoided or prevented
3.) Accident- unusual; not expected
XX. Fellow servant doctrine
If a servant (employee) was injured on
account of the negligence of his fellow
servant (employee) cannot be held liable

XXI. Rescue doctrine or Good Samaritan

Law
Person who in good faith renders
emergency medical care to an injured
person at accident shall not be liable in

civil damage in the course of such

assistance
The duty to rescue where it exist may
itself imply a shied from liability
Ex. one may be held liable, under Article
275 of the Revised Penal Code for
Abandonment of person in danger or
abandonment of ones own victim if:
i.)
He fails to render assistance to any
person whom he shall find in an
uninhabited place wounded or in
danger of dying when he can render
such assistance w/out detriment to
himself
ii.)
He fails to help or render assistance
to another whom he has
accidentally wounded or injured
iii.)
He, having found an abandoned
child <7/o, fails to deliver said child
to the authorities or to his family or
shall fail to take him to a safe place
XXII. Deep pocket rule

XXIII. Causes of Increasing medical

malpractice
1.) Tactless, irresponsible comments and
unsubstantiated remarks made by
healthcare provider on treatment and
medical care given by other physician
2.) Perceived arrogance, aloofness and
uncaring attitude
3.) Negative perception by the public
4.) Poor record keeping on medical
records of patient
5.) Perception that physicians are
generally not comfortable w/ lawsuits,
thus more amenable to monetary
settlements when sued
6.) Commercialization of medical practice
7.) Patients are now more aware of their
rights (internet and media outlets)
8.) Bad outcome of the treatment due to
perceived incompetence of the
physician