PART 1

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:
duty
breach
injury
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.

The Standard of Care of Specialists:

ØA 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.

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

a. 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.

b. 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.

c. 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.

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.

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:

a. The physician’s own negligence
b. The negligence of the physician’s employees
c. The physician’s failure to obtain the informed consent of the patient prior to
treatment
d. Breach of Physician-Patient relationship
e. Negligence of physician’s partners

PART 2
MEDICAL NEGLIGENCE DOCTRINES APPLICABLE TO BOTH PATIENT AND
PHYSICIAN TORTFEASORS

1. Doctrine of Common Fault

a. Doctrine of Contributory Negligence
b. Doctrine of Comparative Negligence

2. Doctrine of Assumption of Risk

3. Doctrine of Last Clear Chance

1. a. Doctrine of Contributory Negligence

The act or omission amounting to want of ordinary care in the part of the complainant
or plaintiff, which, concurring with the negligence of the accused or the defendant is
the proximate cause of the injury.

The liability of the defendant is mitigated or the defendant will not be held liable at all.

Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause
of his injury, he cannot recover damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being the defendant's lack of due
care, the plaintiff may recover damages, but the courts shall mitigate the damages to
be awarded. (n)
1. b. Doctrine of Comparative Negligence
The degree of negligence of the plaintiff-patient is compared to the degree of
negligence of the defendant-physician.

Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause
of his injury, he cannot recover damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being the defendant's lack of due
care, the plaintiff may recover damages, but the courts shall mitigate the damages to
be awarded.

Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the
damages that he may recover.

2. Doctrine of Assumption of Risk Assumption of risk is a defense in the law of torts,

which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the
defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the
risks at issue inherent to the dangerous activity in which he was participating at the
time of his or her injury. The doctrine of assumption of risk is also known as volenti
non fit injuria

a. Express Agreement / Implied Acceptance of Risk

b. Knowledge of Risk
c. Voluntary Assumption
d. Injury

3. Doctrine of Last Clear Chance

 Doctrine of Discovered Peril
 Humanitarian Doctrine
 Doctrine of Supervening Negligence
 Under this doctrine, a negligent plaintiff can nonetheless recover if he is able to
show that the defendant or another person had the last opportunity to avoid the
accident.
 Where both parties are negligent in such a way that it would be impossible to
determine whose negligence was the proximate cause of the accident, the party
who had the last clear chance to avoid the accident by the use of proper care but
failed to do so is considered in law solely responsible for the consequences of the
accident.

MEDICAL NEGLIGENCE DOCTRINES APPLICABLE TO PHYSICIAN

TORTFEASORS
1. Doctrine of Independent Contractor
2. Doctrine of Res Ipsa Loquitur
3. Doctrine of Foreseeability
1. Doctrine of Independent Contractor
 Under this doctrine each and every person is responsible for his own torts.
 This is direct or primary liability, based upon one’s own conduct.
 There is no employer-employee relationshipin an Independent contractor, hence
the physician is solely liable.
 It has been consistently held that indetermining whether an employer-employee
relationship exists between the parties, the following elements must be present:

(1) selection and engagement of services;

(2) payment of wages;
(3) the power to hire and fire; and
(4) the power to control not only the end to be achieved, but the means to be used
to reach an end

RAMOS vs CA
1. Private respondent De Los Santos Medical Center is hereby absolved from liability
arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985;

2. Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared
to be solidarily liable for the injury suffered by petitioner Erlinda on June 17, 1985 and
are ordered to pay petitioners—
(a)P1,352,000.00 as actual damages;
(b)P2,000,000.00 as moral damages;
(c)P100,000.00 as exemplary damages;
(d)P100,000.00 as attorney’ sfees; and
(e)the costs of the suit.

2. Doctrine of Res Ipsa Loquitur

Latin term which means ”The thing speaks for itself.”

This Doctrine as a rule of evidence is peculiar to the law of negligence which recognizes
that prima facie negligence may be established even in the absence of a direct proof
and furnishes a substitute for specific proof of negligence.

This doctrine is not a rule of substantive law , but merely a mode of proof or a mere
procedural convenience.

Mere invocation of this doctrine and application of the doctrine does not dispense with
the requirement of proof of negligence.

Requisites:
1. The accident is of a kind 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. No contributing negligence from the plaintiff.

In the above requisites, the fundamental element is the control of the instrumentality
which caused the damage.

3. Doctrine of Foreseeability
A physician cannot be held liable for negligence if the injury sustained by the patient is
on account of unforeseen conditions, after the exercise of due care and diligence.

MEDICAL NEGLIGENCE DOCTRINES APPLICABLE TO PHYSICIAN AND THIRD

TORTFEASORS
Doctrine of Vicarious Liability
Doctrine of Ostensible Agent
Captain of the Ship
Borrowed Servant Doctrine

1. Doctrine of Vicarious Liability

Imputed Negligence
Doctrine of Respondeat Superior
• Latin term for “let the master answer”

This Doctrine is an exception to the general rule that every person is responsible for his
or her own torts.

This is based upon a relationship rather that upon conduct.

Vicarious liability is a legal doctrine that assigns liability for an injury to a person who
did not cause the injury but who has a particular legal relationship to the person who
did act negligently.

The doctrine makes the employer responsible for a lack of care on the part of an
employee in relation to those to whom the employer owes a duty of care.

For respondeat superior to apply, the employee's negligence must occur within the
scope of her employment.

The employer is charged with legal responsibility for the negligence of the employee
because the employee is held to be an agent of the employer.
• Art. 2181. Whoever pays for the damage caused by his dependents or employees may
recover from the latter what he has paid or delivered in satisfaction of the claim.

2. Doctrine of Ostensible Agent

Doctrine of Apparent Authority

Doctrine of Apparent Agency

Apparent authority results from a manifestation by the principal to a third person that
another is his agent.

The manifestation may be made directly to the third person or to the community at
large by signs or advertising.

Apparent authority exists only to the extent that it is reasonable for the third person
dealing with the agent to believe the agent is authorized.

• The existence of actual authority between principal and agent is "not a prerequisite to
establishing apparent authority. The acts or silence of the principal led another person
to believe that the person is its agent.

3. Captain of The Ship Doctrine

Command Responsibility Doctrine
Under this doctrine, courts assume that the physician is in control of everyone and
everything in an operating room and thus is liable for anything that goes wrong no
matter who was responsible for the conduct.

An adaptation from the 'borrowed servant rules', as applied to an operating room,

holding the person in charge–eg, a surgeon responsible for all under his supervision,
regardless of whether the 'captain' is directly responsible for an alleged error or act of
alleged negligence, and despite the assistants' positions as hospital employees.

3. Borrowed Servant Doctrine

A principle under which the party usually liable for a person's actions is absolved of that
responsibility when that person is asked to do something which is outside of the bounds
of hospital policy.

The fact that the resident physician, nurse, or operating room assistant is usually a
hospital employee does not change the outcome of negligence cases, for courts employ
the legal fiction called the borrowed servant rule to transfer hospital liability to
physicians.

DEFENSE DOCTRINES
There is no Physician-Patient Relationship
Elements of Medical Negligence are absent
Doctrine of Common Fault a. Contributory Negligence b. Comparative Negligence
Doctrine of Assumption of Risk
Doctrine of Last Clear Chance
Rescue Doctrine
Exercise The Diligence of a Good Father Doctrine

Rescue Doctrine
Emergency Doctrine
It is not contributory negligence to attempt to rescue a person or property from danger
unless the attempt is completely reckless under the circumstances