MEDICAL MALPRACTICE

(TORTS AND DAMAGES)

Physicians are not warrantors of cures or insurers against personal injuries or death of the
patient. Difficulties and uncertainties in the practice of profession are such that no practitioner
can guarantee results. Error of judgment will not necessarily make the physician liable. (Torts
and Damages, Timoteo B. Aquino)
“Throughout history, patients have consigned their fates and lives to the skill
of their doctors. For a breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of Hammurabi then already
provided: "If a physician make a deep incision upon a man with his bronze lancet
and cause the man's death, or operate on the eye socket of a man with his
bronze lancet and destroy the man's eyes, they shall cut off his
hand." Subsequently, Hippocrates wrote what was to become part of the
healer's oath: "I will follow that method of treatment which according to my
ability and judgment, I consider for the benefit of my patients, and abstain from
whatever is deleterious and mischievous . . . . While I continue to keep this oath
unviolated may it be granted me to enjoy life and practice the art, respected by
all men at all times but should I trespass and violate this oath, may the reverse
be my lot." At present, the primary objective of the medical profession is the
preservation of life and maintenance of the health of the people.
Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the punishment
meted out by the ancients, neither will it and this Court, as this case would show,
let the act go uncondemned.
Xxx
As a final word, this Court reiterates its recognition of the vital role the
medical profession plays in the lives of the people, and State's compelling
interest to enact measures to protect the public from "the potentially deadly
effects of incompetence and ignorance in those who would undertake to treat
our bodies and minds for disease or trauma." Indeed, a physician is bound to
serve the interest of his patients "with the greatest of solicitude, giving them
always his best talent and skill." (Dr. Victoria L. Batiquin and allan Batiquin v.
Court of Appeals, et al, 258 SCRA 334 [1996]).

Doctors or physicians are experts, who, because of their training and the very nature of
their work, are required to exercise utmost diligence in the performance of their tasks. (Torts
and Damages, Timoteo B. Aquino) However, proving medical malpractice in the Philippines is
one of the more difficult civil cases. Its difficulty lies, among others, on the fact that medical

1
procedures involve, to a great degree, technical matters, which must be clearly understood
first, prior to pursuing a claim that a treatment was attended with malpractice.

The rights and obligations of physicians, and the law that governs the relationship between
doctors and patients are covered by the Medical Act of 1959 (R.A. No. 2382) which provides,
among others, the standardization and regulation of medical education; the examination for
registration of physicians; and the supervision, control, and regulation of the practice of
medicine in the Philippines. Under the Medical Act, gross negligence, ignorance, or
incompetence in the practice of medicine resulting in an injury to or death of the patient shall
be sufficient ground to suspend or revoke the certificate of registration of any physician.
However, R.A. 2382 has no provision imposing civil or criminal penalty for acts constituting
gross negligence, ignorance, or incompetence. Nonetheless, a patient who dies or suffers injury
because of the attendance of any of these circumstances when a physician attends to him/her
may be prosecuted under Article 365 of the Revised Penal Code or seek an award of damages
under the Civil Code such as an action based on quasi-delict.

A. CRIMINAL LIABILITY

"Doctors are protected by a special law. They are not guarantors of care. They do not
even warrant a good result. They are not insurers against mishap or unusual
consequences. Furthermore they are not liable for honest mistake of judgment.” (Cruz versus
Court of Appeals, 282 SCRA 188 [1997])

Criminal liability for medical negligence may be, however, brought under Article 365 of
the Revised Penal Code (criminal imprudence and negligence). The elements of reckless
imprudence are:

(1) that the offender does or fails to do an act;

(2) that the doing or the failure to do that act is voluntary;
(3) that it be without malice;
(4) that material damage results from the reckless imprudence; and
(5) that there is inexcusable lack of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of intelligence, physical condition, and
other circumstances regarding persons, time and place.
Whether or not a physician has committed an "inexcusable lack of precaution" in the
treatment of his patient is to be determined according to the standard of care observed by
other members of the profession in good standing under similar circumstances bearing in mind
the advanced state of the profession at the time of treatment or the present state of medical
science. In Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting
a case, a doctor in effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such training, care and skill
in the treatment of his patients. He therefore has a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a condition under the same

2
circumstances. It is in this aspect of medical malpractice that expert testimony is essential to
establish not only the standard of care of the profession but also that the physician's conduct in
the treatment and care falls below such standard. Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support the
conclusion as to causation.”
“Inexcusable lack of precaution” is defined as “whether or not a physician has committed
an ‘inexcusable lack of precaution’ in the treatment of his [or her] patient is to be determined
according to the standard of case observed by other members of the profession in good
standing under similar circumstances bearing in mind another the advance state of the
profession at the time of treatment or the present state of medical science.” In cases where the
negligence is not reckless in nature, the doctor may be held liable instead for simple
imprudence. However, the negligence exhibited by the two doctors does not approximate
negligence of a reckless nature but merely amounts to simple imprudence. Simple imprudence
consists in the lack of precaution displayed in those cases in which the damage impending to be
caused is not the immediate nor the danger clearly manifest. The elements of simple
imprudence are as follows.

1. that there is lack of precaution on the part of the offender; and

2. that the damage impending to be caused is not immediate of the
danger is not clearly manifest.

In litigations involving medical negligence, the plaintiff has the burden of establishing
accused-appellants negligence, and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the physician as well as a causal connection of such
breach and the resulting injury of his patient. The connection between the negligence and the
injury must be a direct and natural sequence of events, unbroken by intervening efficient
causes. In other words, the negligence must be the proximate cause of the injury. Negligence,
no matter in what it consists, cannot create a right of action unless it is the proximate cause of
the injury complained of. The proximate cause of an injury is that cause which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the injury and
without which the result would not have occurred. (Jarcia, Jr. v. People, 666 SCRA 336 (2012)

B. CIVIL LIABILITY

The injured party may hold the physician liable for damages based on tort, called quasi-
delicts under Article 2176 of the New Civil Code. In general, negligence suits require proof that
a party failed to observe, for the protection of the interest of another person, that degree of
care, precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury. It is the omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not do. (Layugan vs.
Intermediate Appellate Court, citing Black’s Law Dictionary, Fifth Edition, 930).

3
 The Supreme Court had occasion to explain that doctors, because of their training and the
very nature of their work, doctors or physicians are required to exercise utmost diligence in the
performance of their tasks, to wit:

Throughout history, patients have consigned their fates and lives to the
skill of their doctors. For a breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of Hammurabi then already
provided: “If a physician make a deep incision upon a man with his bronze lancet
and cause the man’s death, or operate on the eye socket of a man with his
bronze lancet and destroy the man’s eyes, they shall cut off his hand.”
Subsequently, Hippocrates wrote what was to become part of the healer’s oath:
“I will follow that method of treatment which according to my ability and
judgment, I consider for the benefit of my patients, and abstain from whatever is
deleterious and mischievous. . . . While I continue to keep this oath unviolated
may it be granted me to enjoy life and practice the art, respected by all men at all
times but should I trespass and violate this oath, may the reverse be my lot.” At
present, the primary objective of the medical profession is the preservation of life
and maintenance of the health of the people.

Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer therefor.
Although society today cannot and will not tolerate the punishment meted out by
the ancients, neither will it and this Court, as this case would show, let the act go
uncondemned.

xxx xxx

As a final word, this Court reiterates its recognition of the vital role the
medical profession plays in the lives of the people, and the State’s compelling
interest to enact measures to protect the public from “the potentially deadly
effects of incompetence and ignorance in those who would undertake to treat
our bodies and minds for disease or trauma.” Indeed, a physician is bound to
serve the interest of his patients “with the greatest of solicitude, giving them
always his best talent and skill.” Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of her profession’s rigid
ethical code and in contravention of the legal standards set forth for
professionals, in general, and members of the medical profession, in particular.”
(Dr. Victoria L. Batiquin and Allan Batiquin vs. Court of Appeals, G.R. No. 118231,
05 July 1996.)

When the evidence show the presence of negligence, such as when a doctor, hospital or
medical professional failed to perform the necessary medical services on a patient according to
the degree of skill required from an ordinary practitioner of their respective professions, then a
cause of action arising from negligence or quasi-delict exists. However, being a distinct type of

4
tort, the Supreme Court stated that, to prove medical malpractice or medical negligence, four
(4) elements have to be established, to wit:

“A word on medical malpractice or negligence cases.

In its simplest terms, the type of lawsuit which has been called medical
malpractice or, more appropriately, medical negligence, is that type of claim
which a victim has available to him or her to redress a wrong committed by a
medical professional which has caused bodily harm. In order to successfully
pursue such a claim, a patient must prove that a health care provider, in most
cases a physician, either failed to do something which a reasonably prudent
health care provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that that failure or action
caused injury to the patient. Hence, there are four elements involved in medical
negligence cases: duty, breach, injury and proximate causation.

As with any civil case, substantial evidence must be presented to

establish the liability of the responsible party. If the elements of duty, breach,
injury and proximate causation are established with substantial evidence, then a
hospital, doctor, or other medical professional will be held liable for malpractice.
Civil liability, in the form of damages, may be awarded by the court in such
instances.

When a doctor or hospital accepts a patient for treatment, a physician-

patient relationship is created. The first element of duty arises at this stage. By
accepting a case, the doctor or hospital commenced the duty to render medical
service in favor of the patient in accordance with the expected training and skill
of a medical practitioner. This is in line with the ruling of the Supreme Court in
the case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al, to wit:

Evidently, when the victim employed the services of Dr. Antonio and Dr.
Reyes, a physician-patient relationship was created. In accepting the case, Dr.
Antonio and Dr. Reyes in effect represented that, having the needed training and
skill possessed by physicians and surgeons practicing in the same field, they will
employ such training, care and skill in the treatment of their patients. They have
a duty to use at least the same level of care that any other reasonably competent
doctor would use to treat a condition under the same circumstances. The breach
of these professional duties of skill and care, or their improper performance, by a
physician surgeon whereby the patient is injured in body or in health, constitutes
actionable malpractice. Consequently, in the event that any injury results to the
patient from want of due care or skill during the operation, the surgeons may be
held answerable in damages for negligence.

5
 The second element of breach is present when the hospital or doctor
does treatment in breach of professional duties. An example of this would be a
doctor that applies treatment without consulting the patient’s history. It is a
standard operating procedure for all doctors to apprise themselves about the
medical history of a person before they decide on taking him/her as a patient.
This process is necessary so that the doctor can gauge whether he/she is capable
of successfully helping the patient and also for the doctor to make the proper
preparations and decisions with respect to how to treat said patient.

It is also worthy to note that under Section 2 Article II of the Code of

Ethics promulgated by the Board of Medicine to govern the conduct of doctors
practicing medicine in the Philippines, a physician has the obligation not to
abandon a patient under any circumstance, to wit:

Section 2. A physician is free to choose whom he will serve. He may refuse calls,
or other medical services for reasons satisfactory to his professional conscience.
He should, however, always respond to any request for his assistance in an
emergency. Once he undertakes a case, he should not abandon nor neglect it. If
for any reason he wants to be released from it, he should announce his desire
previously, giving sufficient time or opportunity to the patient or his family to
secure another medical attendant.

Thus, it can be said that when a doctor or hospital unjustifiably refuses to

proceed with treatment, or just suddenly abandons his or her patient, the act
can be considered as breach of duty.

The presence of the third element arises where injury, liability or even
death arises as a consequence of a negligent medical treatment or procedure.

The last element to establish medical malpractice or medical negligence,

is however, the most difficult one to prove. Medical procedures are fraught with
varying consequences, and affected by innumerable factors such as the
environment, personal health, health of the other members of the family, food
intake, medicine, activities of the patient, such that it would be difficult to
establish, to a convincing degree, whether the injury is the proximate result or
directly arose from the procedure conducted.

However, there are instances of medical malpractice or medical

negligence that involve the application of the familiar doctrine res ipsa loquitur.
The doctrine of res ipsa loquitur, which directly translates to “the thing speaks
for itself”, governs cases where negligence is clear by a simple examination of
the injury or the circumstances surrounding the medical treatment given, such as
where a gauze or a pair of scissors are left inside the body cavity after it has been
sutured, or blood of a different type is infused to a patient.

6
 In sum, the difficulty in successfully prosecuting medical negligence lies in
the fact that medicine is not an exact science. There are numerous life-saving
procedures that are experimental, or even not experimental, but are fraught
with consequences, such that even the best doctors cannot predict the outcome
of the treatment. Also, countless environmental variable play a direct hand in
the effectiveness of a treatment.

All that any medical professional or hospital has to do to avoid medical

malpractice is to study the procedure well including the patient’s history, keep
the patient well-informed of the procedure which the doctor or hospital intends
to perform, conduct the treatment in good faith, and with the required degree of
competence, diligence and skill. This way, any claim of malpractice may be
avoided.”

An important element of medical negligence is the duty of a physician to a

patient. For the physician to be obliged to perform her/her duties, there must be a
doctor-patient relationship established. The relationship of doctor-patient begins when
the patient engages the services of a physician, and the physician accepts the case. “a
physician-patient relationship may be created when the professional services of a
physician are rendered to and accepted by another for purposes of medical or surgical
treatment. (Quirk v. Zukerman, June 30, 2003) An implied physician-patient relationship
can be inferred also from the circumstances prevailing. This relationship of physician-
patient is usually contractual in nature. The liability of the doctor for negligence may
arise from contract. In cases, where no contractual obligation is present, the doctor may
still be held liable for gross negligence based on quasi-delict because even a doctor who
unilaterally treated a patient without the latter’s consent must exercise due care in
making such treatment.

 STANDARD OF CARE:

Medical malpractice is a particular form of negligence which consists in the

failure of a physician or surgeon to apply to his practice of medicine that degree
of care and skill which is ordinarily employed by the profession generally under
similar conditions, and in like surrounding circumstances. (Reyes v. Sisters of
Mercy Hospital, October 3, 2000) Whether a physician committed an inexcusable
lack of precaution in the treatment of his patient is to be determined according
to the standard of care observed by other members of the profession in good
standing under similar circumstances bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical science. (Cruz
v. CA, Nov. 18, 1997)The standard referred to here is not the average merit
among all known practitioners from the best to the worst and from the most to
the least experienced, but the reasonable average merit among ordinarily good
physicians. (Reyes v. Sisters of Mercy Hospital)

7
 However, the standard of care demanded from a general practitioner is
ordinary care and diligence in the application of his knowledge and skill in his
practice of the profession. He ought to apply to his patient what other general
practitioners will apply when confronted with similar situation. (Pedro P. Solis,
medical Jurisprudence, 19988 Ed.) A “specialist” on the other hand, duty to the
patient is generally considered to be that of an average specialist, not that of a
average physician.

a. Examples of Negligence of Doctors. A doctor may be considered

negligent when he fails to attend to his patient and delays in attending his
patient. In Ramos v. Court of Appeals, the fact that the doctor arrived almost
three hours after the scheduled operation was taken against the said doctor.

Negligence may consist in error in diagnosis and in treatment. Error in

diagnosis and error in treatment may both result because of the incompetence
or inexperience of the doctor. In either case, the liability of the doctor attaches.
The doctor cannot use as an excuse his or her inexperience.

Error in diagnosis or treatment may be the result of failure on the part of

the doctor to take a full medical history. In cases involving surgery, pre-operative
examination and evaluation is required. Thus, in Ramos v. Court of Appeals, the
anaesthesiologist failed to perform pre-operative evaluation of the patient
which, in turn, resulted in faulty intubation.

Similarly, the doctor may be considered negligent if he failed to give the

proper advice or is otherwise guilty of negligence in his communications to the
patient. For instance, a doctor who fails to give proper instructions to the patient
regarding the frequency and quantity of medication may be held liable for
negligence.

In Spouses Flores v. Spouses Pineda, a doctor was made liable for the
death of the patient that resulted when the doctor decided to proceed with the
"D & C" procedure despite the patient's hyperglycemia and without adequately
preparing the patient.

In Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan v. People. two doctors
in the Emergency Room failed to conduct a thorough examination of the victim
of a vehicular accident. The doctors failed to detect the fractures in the bone
that caused fever, swelling of the right leg and misalignment of the right foot.
The doctors made baseless assurances that everything was all right thereby
depriving the victim of "adequate medical attention that placed him in a more
dangerous situation than he was already in."

8
 Casumpang v. Cortejo, involved misdiagnosis of dengue and the patient
was not timely treated for dengue as a consequence; instead of dengue, the
diagnosis was bronchopneumonia. Rosit . Davao Doctors Hospital involved a
dentist who failed to install the erect size of screws causing the sufferings of the
patient; one of the screw struck the molar of the patient.

b. General Practitioners v. Specialists.

The "standard of care demanded from a general practitioner is ordinary

care and diligence in the application of his knowledge and skill in his practice of
the profession. He ought to apply to his patient what other general practitioners
will apply when confronted with similar situation."

On the other hand, "a specialist's legal duty to the patient is generally
considered to be that of an average specialist, not that of an average physician. A
physician who holds himself out as having special knowledge and skill in the
treatment of a particular organ or disease or injury is required to bring to the
discharge of his duty to a patient employing him as such as a specialist, not
merely that of an average degree of skill possessed by general practitioners but
that special degree of skill and care which physicians, similarly situated who
devote special study and attention to the treatment of such organ, disease or
injury ordinarily possess, regard being in the state of scientific knowledge at the
time."

The Court reiterated in Solidum v. People that the standard of care by

which the specialist is judged is the care and skill commonly possessed and
exercised by similar specialists under the circumstances. The specialty standard
of care may be higher than that required of the general practitioner."

Stated differently, the proper standard is whether the physician, of a

general practitioner, has exercised the degree of care and skill of the average
qualified practitioner, taking into account the advances in the profession. One
holding out as a specialist should also be held to the standard of care and skill of
the average member of the profession practicing the specialty, taking into
account the advances in the profession. In both cases, it is permissible to
consider the resources available to the general practitioner and the specialist as
one of the circumstances in determining the degree of skill and care required.

c. National Standards.

Each physician may with reason and fairness be expected to possess or

have reasonable access to such medical knowledge as is commonly possessed or
reasonably available to competent physician in the same specialty or general

9
field of practice in the Philippines The standard is a national standard and not
the standard of a particular community only.

d. Locality Rule in Relation to Facilities.

Each physician has a duty to have a practical working knowledge of the

facilities, equipment, resources and options reasonably available to him or her as
well as the practical limitations on the same. This includes knowledge of
personnel in health related fields and their general knowledge and competence.
The doctor must be aware of the specialized services or facilities available in his
area. Hence, to a certain extent, local medical custom and the facilities in the
community may affect the duty of care of doctors but only in the sense that the
"content of the duty of care may be informed by local medical custom but never
subsumed by it."

"The duty of care, as it thus emerges from considerations of reason and

fairness, when applied to the facts of the world of medical science and practice,
takes two forms: (a) a duty to render a quality of care consonant with the level of
medical and practical knowledge the physician may reasonably be expected to
possess and the medical judgment he may be expected to exercise; and (b) the
duty based upon the adept use of such medical facilities, services, and
equipment and options as are reasonably available. With respect to this second
form of the duty, [the Court] regard[s] that there remains a core of validity to the
premise of the old locality rule." With respect to the first form (a), national
standards apply.

e. Neighborhood Rule.

The Supreme Court articulated the General Neighborhood standard in

Lucas v. Tuano observing that in treating his patient, a physician is under a duty
to the patient to exercise that degree of care, skill, and diligence which
physicians in the same general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases. The Court said that "proof
of such breach must likewise rest upon the testimony of an expert witness that
the treatment accorded to the patient failed to meet the standard level of care,
skill, and diligence which physicians in the same general neighborhood and in the
same general line of practice ordinarily possess and exercise in like cases.

It is submitted that the term "neighborhood should not be used in the

formulation of the standard of care that applies not only doctors but also to all
persons in general. It is believed that inclusion of the word neighborhood" in the
standard of care will only mal the rule vague if the term remains undefined; the
word may eve lead into confusion regarding the true nature of the standard.

10
 Reference to the degree of care employed by persons in the same
general neighborhood is strikingly similar to the formulation of the standard of
care in common law. However, the rule in common law is different from the rule
under the New Civil Code. In common law, neighborhood connotes proximity.
Lord Atkin in Donoghue U. Stevenson made the classic announcement of the
neighborhood rule where he opined that there must be some general
conception of relations giving rise to a duty of care. He explained:

"x x x Who, then, in law, is my neighbor? The answer seems to be

persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called question."

The neighborhood rule articulated by Lord Atkins was later elaborated in

Anns v. Merton London Borough Council (LBC) where it was explained that in
negligence cases in addition to foreseeability of damage, "one has to ask
whether, as between the alleged wrongdoer and the person who has suffered
damage there is sufficient relationship of proximity or neighborhood such that,
in the reasonable contemplation of the former, carelessness on his part may be
likely to cause damage to the latter, in which case a prima facie duty of care
arises." Hence, Anns v. Merton LBC appears to treat proximity as synonymous
with foreseeability.

Negligence of Residents.

"Resident doctors" are licensed doctors under training for a particular

specialty. They are merely "subordinates who usually defer to the attending
physician on the decision to be made and on the action to be taken." The
attending physician, on the other hand, is primarily responsible for managing
the resident's exercise of duties. While attending and resident physicians share
the collective responsibility to deliver safe and appropriate care to the patients,
it is the attending physician who assumes the principal responsibility of patient
care. Because he/she exercises a supervisory role over the resident, and is
ultimately responsible for the diagnosis and treatment of the patient, the
standards applicable to and the liability of the resident for medical malpractice is
theoretically less than that of the attending physician. These relative burdens
and distinctions, however, do not translate to immunity from the legal duty of
care for residents, or from the responsibility arising from their own negligent
act." Nevertheless, they must exercise the same degree of care that is required
of a physician.

1.05. ERROR OF JUDGMENT.

11
 Error on the part of the doctor does not necessarily result in the finding
of negligence. Whether an error of judgment is negligent or not depends on the
nature of the error. "If it is one that would not have been made a reasonably
competent professional man professing to have the standard and type of skill
that the defendant held himself out as having, and acting with ordinary care,
then it is negligent. If, on the other hand, it is an error that a man, with ordinary
care, might have made, then it is not negligence."

1.07. EXPERT TESTIMONY.

Whether a physician or surgeon has exercised the requisite degree of skill

and care in the treatment of his patient is, in the generality of cases, a matter of
expert opinion. Courts defer to the expert opinion of qualified physicians
because of the court's realization that the qualified physicians possess unusual
technical skills which laymen in most instances are incapable of intelligently
evaluating. Expert testimony should be offered to prove that the circumstances
cited by the courts below are constitutive of conduct falling below the standard
of care employed by other physicians in good standing when performing the
same operation. It must be remembered that when the qualifications of a
physician are admitted, there is an inevitable presumption that in proper cases
he takes the necessary precaution and employs the best of his knowledge and
skill in attending to his clients, unless the contrary is sufficiently established. This
presumption is rebuttable by expert opinion.

What Must be Established Through an Expert.

A doctor is duty-bound to use at least the same level of care that any
reasonably competent doctor would use to treat a condition under the same
circumstances. The breach of these professional duties of skill and care, or their
improper performance by a physician surgeon, whereby the patient is injured in
body or in health constitutes actionable malpractice. As to this aspect of medical
malpractice, the determination of the reasonable level of care and the breach
thereof, expert testimony is essential. Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the light of
scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.

1.08. RES IPSA LOQUITUR.

Medical malpractice can also be established by relying on the doctrine of

res ipsa loquitur. In cases involving medical negligence, the doctrine of res ipsa
loquitur allows the mere existence of an injury to justify a presumption of
negligence on the part of the person who controls the instrument causing the
injury, provided that the following requisites concur: (1) The accident is of a kind

12
which ordinarily does not occur in the absence of someone's negligence; (2) It is
caused by an instrumentality within the exclusive control of the defendant or
defendants; and (3) The possibility of contributing conduct which would make
the plaintiff responsible is eliminated.

However, the application of the doctrine of res ipsa loquitur in medical

malpractice cases is limited to cases where the court from its fund of common
knowledge can determine the standard of care. These are cases where an
ordinary layman can conclude that there was negligence on the part of the
doctor. It is restricted to situations where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional
care were not as such as would ordinarily have followed if due care had been
exercised. If a layman cannot or is not in a position to say if due care has been
exercised, the testimony of an expert would then be indispensable.

1.10. DOCTRINE OF INFORMED CONSENT.

Unless excused, the doctor must secure the consent of his patient to a
particular treatment or an investigative procedure. Consent is an integral part of
the physician-patient relationship and doctors are duty bound to obtain an
authorization for care carried out in their offices or elsewhere. However, consent
of the patient may be express or implied.

a. Nature of Liability. A doctor may be liable for quasi-delict under Article

2176 of the New Civil Code if he negligently failed to secure the consent of a
patient to treatment. The liability may be imposed because the doctor failed to
warn the patient. The nature of the liability of the doctor was explained in this
wise:

"A physician is under a duty to treat his patient skillfully but proficiency in
diagnosis and therapy is not the full measure of his responsibility The cases
demonstrate that the physician is under an obligation to communicate specific
information to the patient when the exigencies of reasonable care call for it. Due
care may require a physician perceiving symptoms of bodily abnormality to alert
the patient to the condition. It may call upon the physician confronting an
ailment which does not respond to his ministrations to inform the patient
thereof. It may command the physician to instruct the patient as to any
limitations to be presently observed for his own welfare, and as to any
precautionary therapy he should seek in the future. It may oblige the physician
to advise the patient of the need for or desirable. ity of any alternative
treatment promising greater benefit than that being pursued. Just as plainly, due
care normally demands that the physician warn the patient of any risks to his
well-being which contemplated therapy may involve.

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 The context in which the duty of risk-disclosure arises is invariably the
occasion for decision as to whether a particular treatment procedure is to be
undertaken. To the physician, whose training enables a self satisfying evaluation,
the answer may seem clear, but it is the prerogative of the patient, not the
physician, to determine for himself the direction in which his interests seem to
lie. To enable the patient to chart his course understandably, some familiarity
with the therapeutic alternatives and their hazards becomes essential.

A reasonable revelation in these respect is not only a necessity, but, as

[the Court] see[s] it, is as much a matter of physician's duty. It is a duty to warn
of the dangers lurking in the proposed treatment, and that is surely a facet of
due care. It is, too, a duty to impart information which the patient has every
right to expect. The patient's reliance upon the physician is a trust of the kind
which traditionally has exacted obligations beyond those associated with arms-
length transactions. His dependence upon the physician for information affecting
his well-being, in terms of contemplated treatment, is well-nigh abject. x x x."

b. Rationale and History of Liability for Informed Consent.

"The negligence theory of consent puts the patient and the health
practitioner on a more even footing that they were previously, particularly when
inadequate disclosure of information is concerned." The existence of the
negligence theory reinforces the need for greater diligence on the part of health
personnel in providing pa ents with information relevant to their health care." In
Dr. Rubi Li v. Spouses Soliman, the Supreme Court the Supreme Court explained
the nature and history of the doctrine of informed consent as follows:

"The doctrine of informed consent within the context of physician-

patient relationships goes far back into English common law. As early as 1767,
doctors were charged with the tort of "battery" (i.e., an unauthorized physical
contact with a patient) if they had not gained the consent of their patients prior
to performing a surgery or procedure. In the United States the seminal case was
Schoendorff v. Society of New York Hospital which involved unwanted treatment
performed by a doctor. Justice Benjamin Cardozo's oft-quoted opinion upheld
the basic right of a patient to give consent to any medical procedure or
treatment: "Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who performs
an operation without his patient's consent, commits an assault, for which he is
liable in damages. From a purely ethical norm, informed consent evolved into a
general principle of law that a physician has a duty to disclose what a reasonably
prudent physician in the medical community in the exercise of reasonable care
would disclose to his patient as to whatever grave risks of injury might be
incurred from a proposed course of treatment, so that a patient, exercising
ordinary care for his own welfare, and faced with a choice of undergoing the

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proposed treatment, or alternative treatment, or none at all, may intelligently
exercise his judgment by reasonably balancing the probable risks against the
probable benefits.

Subsequently, in Canterbury v. Spence, the court observed that the duty

to disclose should not be limited to medical usage as to arrogate the decision on
revelation to the physician alone. Thus, respect for the patient's right of self-
determination on particular therapy demands a standard set by law for
physicians rather than one which physicians may or may not impose upon
themselves. The scope of disclosure is premised on the fact that patients
ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis
and therapy is not the full measure of a physician's responsibility. It is also his
duty to warn of the dangers lurking in the proposed Treatment and to impart
information which the patient has every right to expect. Indeed, the patient's
reliance upon the physician is a trust of the kind which traditionally has exacted
obligations beyond those associated with arms-length transactions. The
physician is not expected to give the patient a short medical education, the
disclosure rule only requires of him a reasonable explanation, which means
generally informing the patient in nontechnical terms as to what is at stake; the
therapy alternatives open to him, the goals expectably to be achieved, and the
risks that may ensue from particular treatment or no treatment. As to the issue
of demonstrate. ing what risks are considered material necessitating disclosure,
it was held that experts are unnecessary to a showing of the materiality of a risk
to a patient's decision on treatment, or to the reasonably, expectable effect of
risk disclosure on the decision. Such unrevealed risk that should have been made
known must further materialize, for otherwise the omission, however
unpardonable, is without legal consequence. And, as in malpractice actions
generally, there must be a causal relationship between the physician's failure to
divulge and damage to the patient.

Reiterating the foregoing considerations, Cobbs v. Grant deemed it as

integral part of physician's overall obligation to patient, the duty of reasonable
disclosure of available choices with respect to proposed therapy and of dangers
inherently and potentially involved in each. However, the physician is not obliged
to discuss relatively minor risks inherent in common procedures when it is
common knowledge that such risks inherent in procedure of very low incidence.
Cited as exceptions to the rule that the patient should not be denied the
opportunity to weigh the risks of surgery or treatment are emergency cases
where it is evident he cannot evaluate data, and where the patient is a child or
incompetent. The court, thus concluded that the patient's right of self-decision
can only be effectively exercised if the patient possesses adequate information
to enable him in making an intelligent choice. The scope of the physician's
communications to the patient, then must be measured by the patient's need,
and that need is whatever information is material to the decision. The test

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therefore for determining whether a potential peril must be divulged is its
materiality to the patient's decision.

Cobbs v. Grant further reiterated the pronouncement in Canterbury v.

Spence that for liability of the physician for failure to inform patient, there must
be causal relationship between physician's failure to inform and the injury to
patient and such connection arises only if it is established that, had revelation
been made, consent to treatment would not have been given."

c. Elements of Liability.

The presence of doctor-client relationship must be established before the

doctrine of informed consent can be applied. In addition to this, the Supreme
Court ruled that the plaintiff must establish of informed consent: four essential
elements in a malpractice action based on the doctrine

(1) The physician had a duty to disclose material risks;

(2) The physician failed to disclose or inadequately disclosed those risks;

(3) As a direct and proximate result of the failure to disclose consented

to; and patient consent to treatment she otherwise would not have

(4) The plaintiff was injured by the proposed treatment.

The Court observed that "the gravamen in an informed consent case

requires the plaintiff to 'point to significant undisclosed information relating to
the treatment which would have altered her decision to undergo it."

e. Scope of Duty.

What should be disclosed depends on the particular circum chances of a

given case. "The element of ethical duty to disclose material risks in the
proposed medical treatment cannot thus be reduced to one simplistic formula
applicable in all instances. Thus, doctors must consider, on a case-to-case basis,
various factors such as the medical steps preceding diagnosis, the nature and
purpose of the proposed treatment, the risk of the treatment, treatment
alternatives and the risk of doing nothing as an option.

Captain of the Ship Doctrine

This is especially true if the doctor is the head of the surgical team, the
so-called captain of the ship, because as such he has the responsibility to see to
it that those under him perform the task in the proper manner. Under the

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"Captain of the Ship" Doctrine, the surgeon is likened to a ship captain who must
not only be responsible for the safety of the crew but also of the passengers of
the vessel. The head surgeon is made responsible for everything that goes wrong
within the four corners of the operating room. It enunciates the 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.

2. LIABILITY OF HOSPITALS.

The Supreme Court clarified in its February 2, 2010 Resolution in

Professional Services, Inc. v. Agana, the different bases of liability of hospitals in
relation to the negligence of doctors:

"While in theory a hospital as a juridical entity cannot practice medicine,

in reality it utilizes doctors, surgeons and medical practitioners in the conduct of
its business of facilitating medical and surgical treatment Within that reality,
three legal relationships crisscross: (1) between the hospital and the doctor
practicing within its premises; (2) between the hospital and the patient being
treated or examined within its premises; and (3) between the patient and the
doctor. The exact nature of each relationship determines the basis and extent of
the liability of the hospital for the negligence of the doctor.

Where an employment relationship exists, the hospital may be held

vicariously liable under Article 2176 in relation to Article 2180 of the Civil Code
or the principle of respondeat superior. Even when no employment relationship
exists but it is shown that the hospital holds out to the patient that the doctor is
its agent, the hospital may still be vicariously liable under Article 2176 in relation
to Article 1431 and Article 1869 of the Civil Code or the principle of apparent
authority. Moreover, regardless of its relationship with the doctor, the hospital
may be held directly liable to the patient for its own negligence or failure to
follow established standard of conduct to which it should conform as a
corporation.

The vicarious liability of a hospital as an employer or as a principal of an

agent may also be based either on quasi-delict under Article 2180 of the New
Civil Code and delict under Article 102 or 104 of the Revised Penal Code 119 A
single negligent act or omission of an employee may give rise to different
sources of vicarious liability of the hospital-employer quasi-delict and delict.
These tort obligations based on delict and quasi-delict - may even concur with
obligation arising from contract. This concurrence of causes of action is of course
subject to proscription against double recovery.

Note that the hospital may not escape liability by the mere fact that the
patient used of health care plan or card. The only effect of the availment of the

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patient's card benefits is that the choice of physician is limited only to physicians
who are accredited with the health card provided. Thus, the patient's use of
health care plan in this case only limited the choice of doctors (or coverage of
services, amount etc.) and not the liability of doctors or the hospital.

2.01. VICARIOUS LIABILITY OF HOSPITAL AS EMPLOYER.

As explained in the above-quoted ruling in Professional Health Services,

Inc. v. Agana,12 the hospital itself may be vicariously liable for the act or
omission of the physician if: (1) there is employer employee relationship
between the hospital and the physician (under Article 2180), or (2) if the
doctrine of apparent authority can be applied, that is, if the hospital holds out to
the patient that the physician is an agent.123 The Supreme Court explained in its
Resolution on the Motion for Reconsideration in Rogelio Ramos, et al. v. Court of
Appeals, et al., that there was no employer-employee relationship between the
hospital and the physician that will make the hospital liable under Article 2180.

In Professional Services, Inc. v. Court of Appeals, the Supreme Court

sustained the liability of hospitals based on the doctrine of corporate
responsibility. The duty of providing quality medical service is no longer the sole
prerogative and responsibility of the physician. This is because the modern
hospital now tends to organize a highly professional medical staff whose
competence and performance need also to be monitored by the hospital
commensurate with its inherent responsibility to provide quality medical care.
Such responsibility includes the proper supervision of the members of its medical
staff. Accordingly, the hospital has the duty to make a reasonable effort to
monitor and oversee the treatment prescribed and administered by the
physicians practicing in its premises.

"The corporate negligence doctrine imposes several duties on a

hospital:(i) to use reasonable care in the maintenance of safe and adequate
facilities and equipment; (ii) to select and retain only competent physicians; (iii)
to oversee as to patient care all persons who practice medicine within its walls;
and (iv) to formulate, adopt, and enforce adequate rules and policies to ensure
quality care for its patients. These special tort duties arise from the special
relationship existing between a hospital or nursing home and its patients, which
are based on the vulnerability of the physically or mentally ill persons and their
inability to provide care for themselves."

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