Elements of Medical Negligence emergencies whenever the services of duly registered physicians
are not available. Such authorization shall automatically cease
(a) Duty
(b) Breach
(c) Injury
(d) Proximate Causation
Administrative Liability
§ Medical Act of 1959, §§ 10-12,24,27-28
Section 10. Acts constituting practice of medicine. A person shall be
considered as engaged in the practice of medicine (a) who shall,
for compensation, fee, salary or reward in any form, paid to him
directly or through another, or even without the same, physical
examine any person, and diagnose, treat, operate or prescribe any
remedy for any human disease, injury, deformity, physical, mental or
physical condition or any ailment, real or imaginary, regardless of
the nature of the remedy or treatment administered, prescribed or
recommended; or (b) who shall, by means of signs, cards,
advertisements, written or printed matter, or through the radio,
television or any other means of communication, either offer or
undertake by any means or method to diagnose, treat, operate or
prescribe any remedy for any human disease, injury, deformity,
physical, mental or physical condition; or (c) who shall use the title
M.D. after his name.
Section 11. Exemptions. The preceding section shall not be
construed to affect (a) any medical student duly enrolled in an
approved medical college or school under training, serving without
any professional fee in any government or private hospital, provided
that he renders such service under the direct supervision and control
of a registered physician; (b) any legally registered dentist engaged
exclusively in the practice of dentistry; (c) any duly registered
masseur or physiotherapist, provided that he applies massage or
other physical means upon written order or prescription of a duly
registered physician, or provided that such application of massage
or physical means shall be limited to physical or muscular
development; (d) any duly registered optometrist who
mechanically fits or sells lenses, artificial eyes, limbs or other similar
appliances or who is engaged in the mechanical examination of
eyes for the purpose of constructing or adjusting eye glasses,
spectacles and lenses; (e) any person who renders any service
gratuitously in cases of emergency, or in places where the services
of a duly registered physician, nurse or midwife are not available; (f)
any person who administers or recommends any household remedy
as per classification of existing Pharmacy Laws; and (g) any
psychologist or mental hygienist in the performance of his duties,
provided such performance is done in conjunction with a duly
registered physician.
Section 12. Limited practice without any certificate of
registration. Certificates of registration shall not be required of the
following persons:
(a) Physicians and surgeons from other countries called in
consultation only and exclusively in specific and definite cases, or
those attached to international bodies or organization assigned to
perform certain definite work in the Philippines provided they shall
limit their practice to the specific work assigned to them and
provided further they shall secure a previous authorization from the
Board of Medical Examiners.
(b) Commissioned medical officers of the United States armed
forces stationed in the Philippines while rendering service as such
only for the members of the said armed forces and within the limit of
their own respective territorial jurisdiction.
(c) Foreign physicians employed as exchange professors in special
branches of medicine or surgery whose service may in the discretion
of the Board of Medical Education, be necessary.
(d) Medical students who have completed the first four years of
medical course, graduates of medicine and registered nurses who
may be given limited and special authorization by the Secretary of
Health to render medical services during epidemics or national
when the epidemic or national emergency is declared terminated
by the Secretary of Health.
Section 24. Grounds for reprimand, suspension or revocation of
registration certificate. Any of the following shall be sufficient ground
for reprimanding a physician, or for suspending or revoking a
certificate of registration as physician:
(1) Conviction by a court of competent jurisdiction of any criminal
offense involving moral turpitude;
(2) Immoral or dishonorable conduct;
(3) Insanity;
(4) Fraud in the acquisition of the certificate of registration;
(5) Gross negligence, ignorance or incompetence in the practice of
his or her profession resulting in an injury to or death of the patient;
(6) Addiction to alcoholic beverages or to any habit forming drug
rendering him or her incompetent to practice his or her profession,
or to any form of gambling;
(7) False or extravagant or unethical advertisements wherein other
things than his name, profession, limitation of practice, clinic hours,
office and home address, are mentioned.
(8) Performance of or aiding in any criminal abortion;
(9) Knowingly issuing any false medical certificate;
(10) Issuing any statement or spreading any news or rumor which is
derogatory to the character and reputation of another physician
without justifiable motive;
(11) Aiding or acting as a dummy of an unqualified or unregistered
person to practice medicine;
(12) Violation of any provision of the Code of Ethics as approved by
the Philippine Medical Association.
§ Code of Medical Ethics
§ E.O. No. 212, “Amending Presidential Decree No. 169” (July 10,
1987)
The attending physician of any hospital, medical clinic, sanitarium or
other medical establishments, or any other medical practitioner,
who has treated any person for serious or less serious physical injuries
shall report the fact of such treatment promptly to the nearest
government health authority
§ Kho v. Halili CA-G.R. S.P. No. 121130, June 6, 2012
In December 2008, news about a sex video involving Hayden Kho
and Katrina Halili circulated the public. Halili was able to watch the
rumored sex video online which led her to file a complaint against
Kho before the Board of Medicine (Board) for immorality and
dishonorable/unethical conduct. The Board found Kho guilty as
charged. It ruled that while it may be true that the act of
videotaping the intimate act is not in any way related to the
practice of medicine, it would be very difficult to disassociate the
person from the act itself. Plus, the actual videotaping occurred
within 2 weeks after the liposuction procedure, at which time there
was still a doctor-patient relationship between the parties. The PRC
affirmed the decision. The issue now is Whether the act of
videotaping the intimate act constitutes a grossly immoral and
dishonorable act -- YES. The SC said that a license to practice a
profession is not an inherent right but a mere privilege burdened with
responsibilities. Possession of the qualifications prescribed by law
prior to admission to a profession is not only a prerequisite to the
grant of a license but a continuing requirement. One of the grounds
upon which an erring physician may be disciplined according to the
Medicat Act of 1959 is IMMORAL OR DISHONORABLE CONDUCT.
Nowhere is it required in the law that the complained immorality and
dishonorable conduct must bear connection with the practice of
medicine. The state, pursuant to its police power, may suspend or
revoke the professional license of an erring registered professional
and in this case, a MEDICAL PRACTITIONER showing any fault or
deficiency in his moral character, honesty, probity, or good
demeanor.
 Criminal Liability
§ RPC arts 15, 174, 259, 347, 365
§ Cruz v. Court of Appeals, 282 SCRA 188 (1997)
Lydia was found to have a myoma in her uterus and was scheduled
for a hysterectomy operation.
Before the operation, Lydia’s daughter noticed the untidiness of the
hospital, and so she tried to persuade her mother to postpone the
operation. However, after talking to Dr. Cruz, Lydia decided to push
through with the operation. Dr. Cruz (surgeon) and Dr Ercillo
(anesthesiologist) operated on Lydia.
During the operation, the relatives were ordered by the doctors to
buy Tagamet ampules, and type “A” blood, to which they complied
with.
After the operation the following events transpired: Ly again asked
to procure more type "A" blood, but such was not anymore
available from the source; Lydia was given insufficient oxygen; and
that they had to rush to another hospital to get a supply of oxygen.
Lydia was then transferred to San Pablo Hospital but this too was
without the prior consent of Rowena nor of the other relatives
present, who found out about the intended transfer only when an
ambulance arrived to take Lydia to the San Pablo District Hospital.
Dr. Cruz and Dr. Ercilllo re-operated on Lydia, however the latter
died.
The heirs of Lydia instituted a criminal case under Article 365 under
RPC against Dr. Cruz and Dr Ercilla before the MTCC of San Pablo.
Dr. Ercilla was acquitted while Dr. Cruz was convicted. Dr. Cruz
appealed her conviction to the RTC which affirmed the MTCC
decision. A petition for review with the CA was also filed but to no
avail. Hence the petition for review on certiorari.
ISSUE: WON Dr. Cruz is guilty of the crime of reckless imprudence
resulting in homicide. NO, not all the elements of the crime are
present. However she was still civilly liable for the death of Lydia, for
while a conviction of a crime requires proof beyond reasonable
doubt, only a preponderance of evidence is required to establish
civil liability.
The 5th element that there is inexcusable lack of precaution on the
part of the offender is NOT PRESENT. When the qualifications of a
physician are admitted, as in the instant case, 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 which is lacking in this case. The
expert witnesses presented by both parties, testified as to the
possible cause of death but did NOT venture to illuminate the court
on the matter of the standard of care that Dr. Cruz should have
exercised. The MTCC, RTC and CA based their ruling on the following
circumstances: the inadequacy of the facilities of the clinic and its
untidiness; the lack of provisions such as blood, oxygen, and certain
medicines etc. But while it may be true that these circumstances
seemed to constitute reckless imprudence on the part of the
surgeon, this conclusion is still best arrived at not through the
educated surmises nor conjectures of laymen, including judges, but
by the unquestionable knowledge of expert witnesses. Expert
testimony should have been offered to prove that the
circumstances cited by the courts are constitutive of conduct falling
below the standard of care employed by other physicians in good
standing when performing the same operation.
4th element (material damage results from the reckless imprudence)
is not present. The expert testimonies rendered by both prosecution
and defense witnesses substantiate rather than contradict Dr Cruz’
allegation that the cause of Lydia's death was DIC ("Disseminated
Intravascular Coagulation) which, as attested to by an expert
witness, cannot be attributed to the Dr Cruz’ fault or negligence. The
probability that Lydia's death was caused by DIC was unrebutted
during trial and has engendered in the mind of the Court a
reasonable doubt as to the Dr Cruz’ guilt.
DOCTRINE: 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
§ Ang v. Grageda, 490 SCRA 424 (2006)
Janet Ang had liposuction surgery on her thighs. She was operated
by Dr. Grageda, but during the operation, she had a grandmal
seizure that led to her death. Medico-legal experts of the NBI listed
the cause of her death as “irreversible shock.” Ang Ho Chem,
Janet’s father filed a criminal complaint against Dr. Grageda. An
information was filed against the latter for reckless imprudence
resulting to homicide. The MeTC acquitted Grageda and ruled that
Grageda complied with the minimum standards followed by
physicians, that in trying to save the life of Janet Ang, Grageda
followed the standard procedure, Grageda was not negligent and
the liposuction was not the proximate cause of death of Janet Ang.
Ang Ho Chem, through his counsel, failed to file an appeal within
the specified period. He filed 15 motions for extension of time. The
RTC dismissed the appeal. Ang Ho Chem filed an MR, which the RTC
denied considering 155 days for extension had been previously
granted. Ang Ho Chem died, so his daughter, Elsie Ang, substituted
him. The case was brought to the CA. Ang argued that liposuction
of the thighs is not a minor, trivial or simple procedure contrary to
what Dr. Grageda portrays it to be. Since liposuction of the thighs is
not a minor procedure, the standards of care are more rigid, which
Grageda did not observe. The CA dismissed the Petition for Certiorari
under Rule 65 for being the wrong remedy.
W/N the RTC erred in dismissing the appeal of Ang - NO
Ang filed successive motions for extension based on her
representation that her memorandum was in the final stages of
preparation, and also that her lawyer, Atty. Solis, was in the US on a
personal matter. However, she filed her memorandum almost 7
months after the lapse of 15-day reglementary period, and only
after the RTC had already issued its order dismissing the appeal.
The grant or denial of motions for extension, including its duration,
lies within the sound discretion of the court, to be exercised in
accordance with the particulars of each case
4. Civil Liability
§ Civil Code arts. 1172-1174, 2176-2180
5. Doctrines and Key Concepts
a. Causation and Expert Testimony – Cereno v. Court of Appeals
Raymond was rushed to the emergency room of BRMC after being
stabbed multiple times. When Raymond was wheeled inside the
operating room, Drs. Zafe and Cereno were still busy operating on a
gunshot victim. Meanwhile, there was another emergency case
involving a woman who was giving birth to triplets. Dr. Tatad, the
anesthesiologist, attended to the pregnant woman. There being no
other available anesthesiologist to assist them, Drs. Zafe and Cereno
decided to defer the operation on Raymond. In the meantime, Drs.
Zafe and Cereno examined Raymond and observed that the
latter’s blood pressure was normal and “nothing in him was
significant.” Finally, at around 12:15 am the following day, Drs. Zafe
and Cereno started their operation on Raymond. Upon opening
Raymond’s thoracic cavity, they found that 3,200 cc of blood was
stocked therein. Blood was then transfused on Raymond at 1:40 am
but, at 1:45 am, while the operation was ongoing, Raymond suffered
a cardiac arrest. The operation ended at 1:50 am and Raymond
was pronounced dead at 2:30 am. Spouses Olavere, Raymond’s
parents, then filed a case for medical malpractice against the
doctors.
The SC held that the Drs. Cereno and Zafe cannot be held liable.
The type of lawsuit which has been called medical malpractice 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 pursue such a claim, the ff must be
established:
1. That a health care provider, either by his act/omission, had
been negligent (i.e., he failed to do something which a
reasonably prudent health care provider would have/not
have done); and
2. That such act/omission proximately caused the injury
complained of.
In this case, Spouses Olavere failed to prove negligence on the part
of the doctors. They also failed to prove that it was the doctors’ fault
that caused the injury. There was no proof presented that
Raymond’s life would have been saved had the doctors done things
differently.
b. Res Ipsa Loquitur – Rosit v. Davao Doctors Hospital - A rule of
evidence where negligence may be inferred because an accident
occurred “the thing speaks for itself”
Nilo Rosit had an accident, which needed mandibular surgery. Dr.
Gestuvo of the Davao Doctor’s Hospital carried out the operation.
Dr. Gestuvo installed a metal plate and screws to Rosit’s jaw.
However, no small screws were on hand, so Dr. Gestuvo instead took
bigger screws and sawed them to size. Dr. Gestuvo knew that small
screws were available in Manila, but he deliberately withheld this
information from Rosit since he supposed that Rosit cannot afford
the screws. Rosit experienced pain after the operation, and could
not open his mouth. An x-ray showed that one of the screws hit
Rosit’s molar, which needed another operation, this time conducted
by Dr. Pangan. This second operation was a success. Rosit then went
sued Davao Doctor’s Hospital and Dr. Gestuvo for damages arising
from medical negligence. Rosit did not present an expert witness in
this case. The RTC absolved Davao Doctor’s from liability since it was
shown that they exercised proper supervision, but held Dr. Gestuvo
liable on the ground of res ipsa loquitur. RTC also ruled that since res
ipsa loquitur is applicable, then no expert testimony is needed to
establish negligence. CA deleted the monetary awards, and held
that the doctrine of res ipsa loquitur is not applicable; thus expert
testimony is needed to establish medical negligence. The issue is
whether or not Dr. Gestuvo is liable, and the SC ruled YES. First, the
SC ruled that if the principle of res ipsa loquitur is applicable, then
expert testimony is not indispensable to establish medical
negligence. In this case, all of the elements of res ipsa loquitur are
present:
a. Accident was of a kind that does not ordinarily occur unless
someone is negligent.
b. Instrumentality or agency that caused the injury was under the
exclusive control of the person charged
c. The injury suffered must not have been due to any voluntary
action or contribution of the person injured
It is the imprudent acts of Dr. Gestuvo that is the proximate cause of
the injury to Rosit. Since res ipsa loquitur is applicable, then the
testimony of expert witnesses is not necessary to establish
negligence. Second, the SC also held Dr. Gestuvo liable for violation
of informed consent. Dr. Gestuvo had the duty to disclose to Rosit
about the dangers of using improperly sized screws, and about the
availability of screws in Manila. Yet, Dr. Gestuvo did not disclose this,
which led to Rosit agreeing to the risky procedure. So, Dr. Gestuvo
violated informed consent. The SC thus reinstated the RTC decision,
which awarded damages to Rosit.
c. Failure to timely diagnose or Intervene – Casumpang v. Cortejo,
Mrs. Cortejo brought her 11-year old son, Edmer, to the Emergency
Room of the San Juan de Dios Hospital (SJDH) because of difficulty
in breathing, chest pain, stomach pain, and fever. Mrs. Cortejo was
assigned to Dr. Casumpang, a pediatrician. Dr. Casumpang
examined Edmer. Using only a stethoscope, he confirmed the initial
diagnos of “bronchopneumonia.” Mrs. Cortejo doubted the
doctor's diagnosis. She immediately advised Dr. Casumpang that
Edmer had a high fever, and had no colds or cough but Dr.
Casumpang merely told her that her son's "blood pressure is just
being active,” and remarked that "that's the usual
bronchopneumonia, no colds, no phlegm." On Dr. Casumpang’s
next visit, Mrs. Cortejo again stated that Edmer had a fever, throat
irritation, as well as chest and stomach pain. Mrs. Cortejo also
alerted Dr. Casumpang about the traces of blood in Edmer's
sputum. Despite these pieces of information, however, Dr.
Casumpang simply nodded, inquired if Edmer has an asthma, and
reassured Mrs. Cortejo that Edmer's illness is bronchopneumonia.
Edmer vomited "phlegm with blood streak." Dr.. Miranda, one of the
resident physicians of SJDH, arrived. Dr. Miranda called up Dr.
Casumpang at his clinic and told him about Edmer's condition.
Upon being informed, Dr. Casumpang ordered several procedures
done. The blood test results came and showed that Edmer was
suffering from "Dengue Hemorrhagic Fever." Unfortunately, Edmer
died.
W/N Dr. Casumpang and Dr. Miranda are liable. [YES – Dr.
Casumpang; NO – Dr. Miranda]
Evidence on record established that in confirming the diagnosis of
bronchopneumonia, Dr. Casumpang selectively appreciated some
and not all of the symptoms presented, and failed to promptly
conduct the appropriate tests to confirm his findings. Dr.
Casumpang failed to timely detect dengue fever, which failure,
especially when reasonable prudence would have shown that
indications of dengue were evident and/or foreseeable, constitutes
negligence. Apart from failing to promptly detect dengue fever, Dr.
Casumpang also failed to promptly undertake the proper medical
management needed for this disease.
Thus, due to Dr. Casumpang's failure to timely diagnose Edmer with
dengue, the latter was not immediately given the proper treatment.
Had he immediately
d. Doctrine of Informed Consent - Li v. Soliman, G.R. No. 165279, June
7, 2011
Angelica Soliman was diagnosed with bone cancer. Her right leg
was amputated as primary intervention. She was then advised to
undergo chemotherapy to prevent the recurrence and spread of
the disease to other parts of her body. However, while confined in
SLMC and undergoing chemotherapy treatment, Angelica passed
away. Her parents allege that her attending physician, Dr Li, an
oncologist, assured them of a 95% chance of healing if Angelica
undergoes the chemotherapy and that the only side effects were
nausea, vomiting and hair loss thus they proceeded with the
treatment for Angelica.
The Solimans filed a damage suit against Dr Li charging her with
negligence in administering the treatment as well as for assuring the
Solimans of the 95% chance of healing and the limited side effects.
The Court held that no negligence was proved in administering the
treatment as the expert witnesses that testified were not oncologists
and thus were not qualified to give an expert opinion as to whether
Dr Li’s lack of skill, knowledge and professional competence in failing
to observe the standard of care in her line of practice was the
proximate cause of the Angelica's death.
Examining the evidence on record, the Court holds that there was
adequate disclosure of material risks inherent in the chemotherapy
procedure performed with the consent of Angelica's parents. Also,
the testimony supporting the alleged violation of the doctrine of
informed consent was also from someone who was not an
oncologist but a Medical Specialist of the DOH's Operational and
Management Services charged with receiving complaints against
hospitals thus does not qualify as expert testimony to establish the
standard of care in obtaining consent for chemotherapy treatment.
Elements of Doctrine of Informed Consent
(1) The physician had a duty to disclose material risks;
(2) He failed to disclose or inadequately disclosed those risks;
(3) As a direct and proximate result of the failure to disclose, the
patient consented to treatment she otherwise would not have
consented to; and
(4) Plaintiff was injured by the proposed treatment.
e. Captain of the Ship Doctrine - Ramos v. Court of Appeals, 380
SCRA 467 (2002).
such a claim, a patient must prove that the physician or surgeon
either failed to do something which a reasonably prudent physician
or surgeon would not have done, and that the failure or action
caused injury to the patient.
There are four elements involved in medical negligence cases: duty,
breach, injury and proximate causation.

Erlinda was scheduled to have a stone in her gall bladder removed Expert testimony is usually necessary to support the conclusion as to
by Dr. Hosaka (Surgeon) and anesthesiologist Dr. Gutierrez. Erlinda causation, which Editha failed to do.
was accompanied by her sis-in-law, Herminda Cruz, Dean of When complainant was discharged on July 31, 1994,
College of Nursing in the operating room. When Dr. Hosaka still did herein respondent advised her to return on August 4, 1994 or four (4)
not arrive by 10AM, her husband wanted to pull his wife out from the days after the D&C. This advise was clear in complainant’s
operating room. Dr. Hosaka arrived more than 3 hours late on the Discharge Sheet. However, complainant failed to do so. This being
day of the operation. While intubating Erlinda, her nails turned bluish the case, the chain of continuity as required in order that the
and Dr. Gutierrez was overheard by Cruz stating that he might have doctrine of proximate cause can be validly invoked was
inserted the tube wrong. Erlinda was brought to the ICU, where she interrupted.
stayed for a month. She was released from the hospital 4 months
later but was in a comatose condition until she died on August 1999.
The Ramoses filed a civil case for damages against private
respondents. The SC held Dr. Hosaka and Dr. Gutierrez solidarily
liable for Erlinda’s comatose condition after she delivered herself to
them for their professional care and management. Hence, the
present MR.
ISSUE: WoN the captain of the ship doctrine applies, making the
surgeon (Dr. Hosaka) liable for the negligence of the
anesthesiologist (Dr. Gutierrez)– YES.
Due regard for the peculiar factual circumstances obtaining in this
case justify the application of the Captain-of-theShip doctrine. From
the facts on record it can be logically inferred that Dr. Hosaka
exercised a certain degree of, at the very least, supervision over the
procedure then being performed on Erlinda. First, it was Dr. Hosaka
who recommended to petitioners the services of Dr. Gutierrez. In
effect, he represented to petitioners that Dr. Gutierrez possessed the
necessary competence and skills. Drs. Hosaka and Gutierrez had
worked together since 1977. Whenever Dr. Hosaka performed a
surgery, he would always engage the services of Dr. Gutierrez to
administer the anesthesia on his patient. Second, Dr. Hosaka himself
admitted that he was the attending physician of Erlinda. Thus, when
Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave
instructions to call for another anesthesiologist and cardiologist to
help resuscitate Erlinda. Third, it is conceded that in performing their
responsibilities to the patient, Drs. Hosaka and Gutierrez worked as a
team. Their work cannot be placed in separate watertight
compartments because their duties intersect with each other.
DOCTRINE: The Captain-of-the-Ship Doctrine was discussed in
McConnell v. Williams, where the Supreme Court of Pennsylvania
stated that under this doctrine, a surgeon is likened to a captain of
the ship, in that it is his duty to control everything going on in the
operating room.
f. Patient’s own negligence - Cayao-Lasam vs. Ramolete, 574 SCRA
439(2008)
Editha was 3 months pregnant when she was brought to the Lorma
Medical Center due to vaginal bleeding. After conducting a
sonogram, they found out about fetus’ weak cardiac pulsation. Dr.
Cayao-Lasam advised Editha to undergo a Dilatation and
Curettage Procedure (D&C) or "raspa." Editha underwent the
procedure and was discharged the next day. After a month, Editha
was brought to the hospital for vomiting and abdominal pain. The
doctors found a dead fetus inside her and had to undergo another
operation. Editha filed a complaint against Dr. Cayao-Lasam before
the PRC. Dr. Cayao-Lasam argues that it was Editha’s gross
negligence and/or omission in insisting to be discharged against
doctor’s advice and her unjustified failure to return for check-up as
directed that contributed to her life-threatening. The complaint was
dismissed.
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. In order to successfully pursue