MEDICAL

MALPRACTICE /
NEGLIGENCE
MEDICAL NEGLIGENCE MEDICAL MALPRACTICE

ATTY. JUDY ANNE YUKI YULO, RN, MD

MEDICAL NEGLIGENCE OR MALPRACTICE
„ 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.
„ Four elements:
1. duty
2. breach
3. injury
4. proximate causation
The complainant/patient must be able to establish the
following:
1. The physician has a duty to his patient.
How would a reasonable, careful, and prudent
physician behave in a similar circumstances?

2. The physician failed to perform such duty to his

patient.
Did the physician breach the standard of care in
this specific situation?

3. As a consequence of the failure of the physician to

perform his duty, injury was sustained by the patient.
Was there injury or damage to the patient?

4. The failure of the physician to perform his duty is the

proximate cause sustained by the patient.
Was the unreasonable, careless, or inappropriate
behavior on the part of the physician the
proximate cause of the injury to the patient?
 1. DUTY
„ There must be a Physician-Patient relationship,
which is the primordial basis of medical
negligence cases.
„ In accepting a case, a physician in effect
represents that, having the needed training
and skill possessed by a physician and a
surgeon practicing in the same field, the
physician will employ such training, standard
of care and skill in the treatment of his/her
patients.
„ The standard of care for physicians requires
that they exercise that degree of skill,
knowledge, training, and care ordinarily
possessed and exercised by other members of
the profession acting under similar conditions
and circumstances.
In summary, once a Physician-Patient
relationship has been established, the
physician has the duty to:
1. Possess the medical knowledge required
of a reasonably competent medical
practitioner engaged in the same
specialty.
2. Possess the skills required of a reasonably
competent health care practitioner
engaged in the same specialty.
3. Exercise the care in the application of
that knowledge and skill to be expected
of a reasonably competent health care
practitioner in the same specialty
4. Use the medical judgment in the exercise
of that care required of a reasonably
competent health care practitioner in
the same specialty
 STANDARD OF CARE

„ The level of care, skill, knowledge, and

treatment, that, under the circumstances,
is recognized as acceptable and
appropriate by reasonably prudent
members of the profession under similar
conditions and circumstances.
„ Breach of Standard of Care constitutes
Negligence.
„ No matter what a physician does, he/she
will not be found liable if the standard of
care is maintained.
„ Bad result does not necessarily mean
Malpractice.
„ Errors of judgment are not necessarily
Malpractice.
„ Highest skill is not required.
 STANDARD OF CARE
The Standard of Care of Specialists:
Ø A practitioner will be held to this higher
standard of care if he or she has specialized
training regardless of whether or not the
practitioner holds himself out as a specialist.

A physician has the responsibility to consult a

specialist or to refer a patient to a specialist
when he knows, or in the exercise of
reasonable care should know, that superior
treatment might thereby be obtained.
 STANDARD OF CARE
• There is a need for expert testimony to
establish the Standard of Care to establish
whether the physician deviated from the
applicable standard of care expected from
him when the injury occurred.

• A layman is not equipped with the common

knowledge or experience to judge the skill
and competence of the practice at issue
and determine whether it meets the
standard of such professional practice in
their community.

• The standard of care is based on the care

that a similarly trained physician would give.
 KINDS OF STANDARD
OF CARE

1. National Standard

The Philippine Jurisdiction uses the

National Standards of Care, as all the certifying
Specialty boards are national in scope.

The Standard of Care does not

necessarily mean the ”best”, but rather one
that is considered “acceptable” and
“adequate” to reasonable medical
practitioners under similar circumstances.
 KINDS OF STANDARD
OF CARE

2. LOCALITY STANDARD

The physician is not considered negligent if

he applies the method of diagnosis and
treatment which the same physicians in the
same locality would have applied when they
see similar cases and under the same
situation.
 KINDS OF STANDARD
OF CARE

3. RESPECTABLE MINORITY
STANDARD

so long as respectable minority

of physicians endorse the
treatment and believe that it
will be effective, the doctor
cannot be held liable for
medical malpractice solely for
recommending it.
 2. DERELICTION OR BREACH OF DUTY

„ 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;
„ In proving that there was breach two-
pronged pieces of evidence are required :
evidence as to the recognized standards of
the medical community in the particular
kind of case, and a showing that the
physician in question negligently departed
from this standard in his treatment. These
entails expert testimonies which call for a full
blown trial.
 3. DAMAGE OR INJURY
„ Art. 2197. Damages may be:
„ (1) Actual or compensatory;
„ (2) Moral;
„ (3) Nominal;
„ (4) Temperate or moderate;
„ (5) Liquidated; or
„ (6) Exemplary or corrective.
4. DIRECT OR PROXIMATE CAUSE
„ That immediate cause of an
injury which, in the logical,
natural, direct consequence,
unbroken by any efficient
intervening cause, produces the
injury and without which the
result would not have happened.
„ Doctrine of Proximate Cause
„ Negligence, cannot create a
right of action unless it is the
proximate cause of the injury.
 TESTS TO DETERMINE
PROXIMATE CAUSE:

„ 1. ACTUAL CAUSE OR “BUT FOR” TEST OR

“SINE QUA NON” RULE
„ The patient would not been harmed
were it not for the physician’s actions.
„ This test requires a firm finding that the
physician’s negligence was an absolute
pre requisite to what happened.
„ This
is a question of cause in fact (actual
cause). The act or omission must be
material factor (a prerequisite) in the
occurrence of the event.
 TESTS TO DETERMINE
PROXIMATE CAUSE:
„ 2. SUBSTANTIAL FACTOR TEST
„ The relationship between cause
and effect need not be established
with absolute certainty. It merely
requires that the physician’s
negligence is a major contributor to
the patient’s injury.
„ In determining whether the negligence
was a substantial factor in causing the
harm, substantial factor test applies to
event which results in inquiry, not injury
itself, and injury need not only flow
directly from event.
 TESTS TO DETERMINE
PROXIMATE CAUSE:
„ 3. FORSEEABILITY TEST
„ Whether the physician should have
reasonably foreseen, as a risk of his/her
conduct; the reasonable
consequences or type of harm
suffered by the patient.
„ This test requires that:
„ A. Reasonably foreseeable result or
type of harm
„ B. No superseding intervening force
 QUASI OFFENSES: CRIMINAL
NEGLIGENCE
1. SIMPLE NEGLIGENCE

„ Simple Negligence, penalized under Article

365 of the Revised Penal Code, is "a mere lack
of prevision in a situation where either the
threatened harm is not immediate or the
danger not openly visible." Put in a slightly
different way, the gravamen of the offense of
simple negligence is the failure to exercise the
diligence necessitated or called for the
situation which was not immediately life-
destructive but which culminated, in the
death of a patient.
 QUASI OFFENSES: CRIMINAL
NEGLIGENCE
2. RECKLESS IMPRUDENCE
„ 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.
 PHYSICIANS MAY BECOME LIABLE
FOR MALPRACTICE THROUGH:

1. The physician’s own negligence

2. The negligence of the physician’s
employees
3. The physician’s failure to obtain the
informed consent of the patient
prior to treatment
4. Breach of Physician-Patient
relationship
5. Negligence of physician’s partners
Thank You for Listening !!!