Malpractice

Group 3
Gelindon, Gerry Gwaine C.
Javier, Vanessa Joyce D.
Lanzaderas, Katherine Claire
Solas, Loren Christine S.
 Introduction
● Negligence of experts
● Elaboration of Chapter 2
● Medical malpractice or the
negligence of health care
practitioners
○ Negligence of doctors,
hospitals, nurses
Chapter 4 ○ Pharmacy malpractice
○ Negligence of clinical
laboratories
 Overview

Part I Part 2 Part 3

Medical Malpractice of Malpractice of
Malpractice Lawyers Accountants
 Medical Malpractice
● Doctors or physicians are experts due to
their training and the very nature of their
work
○ In Dr. Victoria L. Batiquin & Allan
Batiquin v. CA: “Throughout history,
patients have consigned their fates and
lives sto the skills of their doctors.”

● Duty of the physician is founded in public

consideration
● Professional services of the physician are rendered to and accepted by another for
purposes of medical and surgical treatment
● Generally, a factual issue
○ Implied physician-patient relationship inferred from duly-established prevailing
circumstances
○ When a physician gives advice to a patient
● Usually a contractual relationship
○ Liability of the doctor for negligence arising ex contractu
○ Liability may arise even without a contractual relationship
■ In Aldaba v. CA: “No contract is implied to make compensation for personal
services performed for another arises, unless the party furnishing the services
then expected or had reason to expect the payment or compensation by the
other party.”
■ Doctor may still be held liable: Quasi-delict
● Treatment of the patient may be a purely voluntary act
○ Liability of the patient to pay the doctor: Quasi-contract (Art. 2167, NCC)
 Elements
1.) Duty;
2.) Breach;
3.) Injury; and
4.) Proximate causation
 Duty
● The standard of behavior which imposes restrictions on one’s conduct
● In accepting a case, the physician represents that he has the needed training and
skill possessed by physicians and surgeons practicing in the same field
○ The physician is under a duty to exercise such degree of care, skill, and diligence
● Standard level of care, skill, and diligence is a matter addressed by expert medical
testimony
○ A matter peculiarly within the knowledge of experts in the field
● When the term “duty” is used, the Supreme Court resolved the issue of “breach”
○ Determination whether or not negligence is present or absent in a particular case
 Breach and Injury
● When the patient is injured in body or in health
○ Proof rests upon the testimony of an expert witness

Proximate Cause
● There must be a causal connection between the breach and the resulting injury
● That the injury for which recovery is sought must be the legitimate consequence of
the wrong done
● The connection must be a direct and natural sequence of events, unbroken by
intervening efficient causes
● The patient must similarly use expert testimony
 Standard of care

● A particular form of negligence of the

physician or surgeon in performing his
practice of medicine that degree of care and
skill required of him

● Determined according to the standard of care

observed by other members of the profession
 General Practitioners vs. Specialists

● General practitioner: Ordinary care and diligence in the application of his knowledge and
skill in his practice of the profession
○ What general practitioners will apply when confronted with a similar situation
● Specialist: That of an average specialist, not that of an average physician
○ Required to bring to the discharge of his duty to a patient employing him as such as a
specialist
● Based on the norm observed by other reasonably competent members of the profession
 National Standards

● Each physician is expected to possess or have reasonable access to such medical

knowledge as is commonly possessed or available to a competent physician
○ Standard is a national standard, not of a particular community only
● Medical school admission standards are similar across the country
● Physicians are far more mobile than once were
○ Have ready access to professional & scientific journals, and seminars for
continuing education
● The laws of medicine do not vary from state to state in anything like the manner our
public law does
 Locality Rule
● The duty to have a practical working knowledge of the facilities,
equipment, resources, and options reasonably available, as well as the
practical limitations on the same
○ Knowledge of personnel in health-related fields, and their general
knowledge and competence
● Must be aware of the specialized services or facilities available
● Duty of care takes two forms:
○ Duty to render a quality of care consonant with the level of medical and
practical knowledge, as well as the medical judgment he may
reasonably be expected to possess and exercise; and
○ Duty based upon the adept use of such medical facilities, services,
equipment, and options as are reasonably available
 Neighborhood Rule

● Under the duty to exercise that degree of care, skill,

and diligence which physicians in the same general
neighborhood and general line of practice ordinarily
possess and exercise in like cases
● Strikingly similar to the formulation of the standard of
care in common law
○ The rule in common law is different from the rule
under the New Civil Code
 Common Professional Practice
● Compliance with common professional practice: Strong evidence that the doctor has
not been negligent
● Doctors do not usually adopt a practice unless it is inconsistent with the degree of
care required of them under the circumstances
● Compliance with practice is only an evidence of absence of negligence
○ Due to convenience, cost, or habit
○ No doctor could introduce a new technique or method of treatment without
facing the risk of a negligence action if something went wrong
■ Delicate balance between competing considerations
 Negligence of Residents

● “Resident doctors” – Licensed doctors under training for a particular specialty

○ Subordinates who usually defer to the attending physician on the decision to be
made and the action to be taken
● “Attending physician” – Primarily responsible for managing the resident’s exercise of
duties
○ The one who assumes the principal responsibility of patient care
○ Exercises a supervisory role over the resident
● Relative burdens and distinctions ≠ Immunity from the legal duty of care for
residents
Doctors are not warrantors
● Not warrantors of cures or insurers against personal
injuries or death of the patient
● Difficulties and uncertainties in the practice of the
profession
○ Error of judgment ≠ Liable
○ In Roe v. Minister of Health: “Medical science has
conferred great benefits on mankind, but these
benefits are attended by considerable risks, as are
every surgical operation is attended with risks.”
 Error of Judgment
● Does not necessarily result in the finding of negligence
● Depends on the nature of error
○ One that would not have been made by a reasonably competent,
professional man: It is NEGLIGENT
○ An error that a man with ordinary care might have made: NOT
NEGLIGENCE
● The Court does not decide the correctness of a doctor’s diagnosis, or the
accuracy of the medical findings and treatment
○ Wrong diagnosis ≠ Medical malpractice
○ Medicine is not an exact science
 Proof
● Burden of proving the negligence of doctors rests on the plaintiff
● Plaintiff must plead and prove that he was injured and such injury was
caused by the defendant
○ As in any CIVIL ACTION
○ Needs to prove preponderance of evidence
■ the physician either failed to do something which a reasonably
prudent health care provider would have done, or that he did
something that a reasonably prudent provider would not have done;
■ the failure or action caused injury to the patient
○ Expert testimony is essential
 Judicial Notice

● No proof is necessary if the court can take judicial

notice of a particular fact
○ Rules of Evidence are merely the means for
ascertaining the truth respecting a matter of fact
 Expert Testimony
● Presented in legal proceedings when a judge or jury needs assistance in
evaluating a material fact in a court proceeding
● It is a matter of expert opinion:
○ Whether a physician/surgeon exercised the required degree of care in
the treatment of his patient
● Should be 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 performing the same operation
Criteria in Qualifying Experts
● In the case of Borromeo vs. Family Care Hospital Inc.
○ that the expert witness must be a similarly trained and
experienced physician
● Competence of an expert witness is a matter for the trial
court to decide upon
○ The test is necessarily a relative one, depending upon:
■ the subject matter of the investigation
■ fitness of the expert witness
● In our jurisdiction:
○ The criterion remains to be the expert witness’ special knowledge experience and
practical training that qualify him/her to explain highly technical medical matters
to the Court
● In Ramos vs. CA and Cereno vs. CA, the Court revealed that:
○ Expert witnesses’ specialties do not match the physicians’ practice area only
constituted. The sole function of a medical expert witness, regardless of his/her
specialty, is to afford assistance to the courts on medical matters, and to explain
medical facts in the issue. There was no reasonable indication in these cases that
the expert witnesses possess a sufficient familiarity with the standard care
applicable to the physicians’ specialties.
● But in US jurisprudence, it was ruled that:
○ A neurosurgeon was found competent to give expert testimony regarding a
gynecologist’s standard of pre-surgical care, and an orthopedic surgeon was
allowed to testify against a neurologist in a medical malpractice action
○ The testimony of a qualified medical doctor cannot be excluded simply because he
is not a specialist
● In Evans vs. Ohanesian, the court set a guideline in qualifying an expert
witness:
○ To qualify a witness as a medical expert, witness must have:
■ The required professional knowledge, learning, and skill of the subject
under inquiry sufficient to qualify him to speak with authority on the
subject;
■ Familiar with the standard required of a physician under similar
circumstances
● In Brown vs. Mladineo, it adhered to the principle that:
○ The witness’ familiarity, and not the classification by title or specialty,
which should control issues regarding the expert witness’ qualifications.
● General Rule:
○ A specialist in a particular branch within a profession will not be required.
 What Must be Established
through an Expert
● Doctor is duty-bound to use at least the same level of care that any
reasonable competent doctor would use to treat a condition under
the same circumstances.
○ Breach of these professional duties of skill and care, or their
improper performance by a physician surgeon, where the patient
is injured in body or health constitutes actionable malpractice
○ Determination of reasonable level of care and breach, and expert
testimony is essential in the aspect of actionable malpractice
 ● Expert Testimony is usually essential to establish:
○ Standard of care that the defendant was bound to observe under the
circumstances;
○ That the defendant’s conduct fell below the acceptable standard; and
○ The defendant’s failure to observe the industry standard cause the injury to
his/her patient

Documents in Support of Expert Testimony

● Following are sources of reliable and authoritative statements used by experts
when testifying in court:
○ Pharmaceutical package insert instructions and warnings;
○ Physician Desk Reference;
○ Learned Treatises;
○ Research Findings; and
○ Clinical Practice Guidelines
 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:
○ Accident us a kind which ordinarily does not occur in the absence of
someone’s negligence;
○ It is caused by an instrument within the exclusive control of the
defendant/s; and
○ The possibility of contributing conduct which would make the plaintiff
responsible is eliminated
● Limited to cases where the court from its fund of common knowledge can
determine the standard of care
○ Cases where an ordinary layman can conclude that there was negligence
on the part of the doctor
Doctrine of Common Knowledge
● This doctrine is used in conjunction with Res Ipsa Loquitur
● This doctrine is applied in the following cases:
○ A patient scheduled for removal of gallstones but was
otherwise healthy suffered irreparable brain damage
after being administered anesthesia before operation
○ After giving birth, a woman woke up with a gaping burn
wound near her armpit
○ Removal of the wrong body part during operation
○ When an operating surgeon left a foreign object inside
the body of the patient
 Lost Chance Rule
● Right to recover in lost chance cases
● Main Question:
○ Whether the patient can recover for the lost opportunity to obtain a
better degree of recovery?
● May give rise to an action for DAMAGES
● Pre-existing conditions must be taken into account in valuing the interest
destroyed
○ When such conditions have not actually pre-ordained an adverse
outcome, the chance of avoiding it should be approximately compensated
● When a plaintiff prays for damages for lost chance, the essence is that prior
to the negligence, “there was a that he would have been better of with
adequate care”
● Is the loss of opportunity for better result
● Valuing chance of better result as percentage of entire life or limb’s value
 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
● Doctors are duty bound to obtain authorization for care carried out in their
offices or elsewhere
● Consent of patient may be express or implied
 Elements of Liability
● Presence of doctor-client relationship must be established before the Doctrine of
Informed Consent can be applied
● Plaintiff must establish four essential elements:
○ The physician had a duty to disclose material risks;
○ Physician failed to disclose or inadequately disclosed those risks;
○ As direct and proximate result of the failure to disclose, patient consented to
treatment she otherwise would not have consented to; and
○ Plaintiff was injured by the proposed treatment
● The graveman in an informed consent case requires the plaintiff to point to
significant undisclosed information related to treatment which could have
altered her decision to undergo it
 Nature of Liability
● Nature of liability: QUASI-DELICT under Article 2176 of the New Civil Code if he
negligently failed to secure the consent of the patient to treatment
● To alert the patient to the condition especially when the exigencies of reasonable
care call for it
● The negligence theory of consent puts the patient and the health practitioner on a
more even footing

Rationale and History of Liability

for Informed Consent
● The existence of negligence theory reinforces the need for greater diligence on the
part of health personnel in providing patients with information relative to their health
care
● Goes far back into English common law, as early as 1767
● Under Article 2176, the first and second elements of liability are:
○ Existence of duty; and
○ Failure to disclose
● Constitute proof of the first element of quasi-delict, that is, the negligent
omission of the physician
● Proof of causation is also INDISPENSABLE
● A causal connection exists when, BUT ONLY WHEN, disclosure of significant risks
incidental to treatment would have resulted in a decision against it
D. Cases when no duty to disclose.
The duty to disclose risk information depends on the circumstances.
For instance, an emergency situation is an accepted exception. Consent
to treatment generally need not be secured if time is of the essence.
Included in the exception is a situation where the patient is
unconscious or incapable of consenting and harm from failure to treat
is imminent and outweighs any harm threatened by the proposed
treatment.

E . Scope of duty.
What should be disclosed depends on the particular circumstances
of a given case. The element of ethical duty to disclose material risks in
the proposed medical treatment cannot be reduced to one simplistic
formula applicable in all instances.
1. Professional Disclosure Standard
The Supreme Court ruled in Li vs. Spouses Soliman that in medical malpractice action
based on lack of informed consent, the plaintiff must prove both the duty and the breach
of the duty through expert testimony. Under the Professional Disclosure Standard, a
charge of failure to disclose should be judged by the standards of the reasonable medical
practitioner.
2. Reasonable Patient Standard
The test is one of materiality. The test for determining whether a particular peril must
be divulged is its materiality to the patient’s decision: all the risks potentially affecting
the decision must be unmasked. Under this standard, adequate disclosure required the
physician to discuss the nature of the proposed treatment, whether it was necessary or
merely elective, the risks and the available alternatives and their risks and benefits.
f. Informed Consent Under Mental Health Act.
Under said law, Informed consent refers to consent voluntarily given by a service user to plan for
treatment, after a full disclosure communicated in plain language by the attending mental health
service provider, of the nature, consequences, benefits and risks of the proposed treatment, as well as
available alternatives.
1.11 Captain of the Ship Doctrine
The doctor cannot blame the assisting nurse for his own omission. Thus, if a piece of gauze was
left in the abdominal cavity of the operation, the surgeon cannot excuse himself from liability just
because a nurse was present. The only effect is that the nurse may be held jointly and solidarily liable
with him if the nurse was also negligent. The surgeon is liable because he has the duty to ascertain
for himself whether or not there was any foreign body left in the abdominal cavity of his patient
before he sutured it.
Under this 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.
1.12 Privacy of Patients.
The physician is required to respect the privacy of the patient
with respect to the information obtained by the physician while their
relationship exists. Otherwise, the physician may be held liable to the
patient either under Articles 2176, 19, 20 and 21 New Civil Code.
Indeed, statuites making communications between the physician
and patient privileged are intended to inspire confidence in the
patient and encourage him to make a full disclosure to his physician
of his symptoms and condition.
2. Liability of Hospitals
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
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.
2.01 Vicarious liability of hospitals as employer and
principal.
As explained in Professional Health Services Inc. vs Agana,
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
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.
2.02 Doctrine of Corporate Responsibility
The court observed in Professional Services Inc. vs Agana, that 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 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 service care. Such responsibility includes the proper
supervision of the members of its medical staff.
2.03. Liability for Unlawful Restraint.
A hospital may be liable for unlawful restraint. The Supreme Court explained in
Manila Doctors Hospital vs. So Un Chua, et. Al, that authorities, including those of
common law origin, explicitly declare that a patient cannot be detained in a hospital
for non-payment of the hospital bill. If the patient cannot pay the hospital or
patient’s pill, the law provides a remedy for them to pursue, that is, by filing a
necessary suit in court for the recovery of such a fee or bill.
If the patient is prevented from leaving the hospital for his inability to pay the
bill, any person who can act on his behalf can apply in court for the issuance of the
writ of habeas corpus.
However. The hospital may legally detain a patient agasinst his will when he is a
detained or convicted prisoner, or when the patient is suffering from a very
contagious disease where his release will be prejudicial to public health.
3. Nurses.
The scope of nursing practice is expressed in the governing law for all the nurses, Republic Act
No. 9173, known as the Philippine Nursing Act of 2002. Section 28 provides:
NURSING PRACTICE
SEC. 28. Scope of Nursing – A person shall be deemed to be practicing nursing within the
meaning of RA No. 9173 when he/she singly or in collaboration with another, initiates and
performs nursing services to individuals, families and communities in any health care setting. It
includes, but not limited to, nursing years during conception, labor, delivery, infancy, childhood,
adulthood and old age. As member independent practitioners, nurses are primarily responsible
for the promotion of health and prevention of illness. As members of health team, nurses shall
collaborate with other health care providers for the curative, preventive and rehabilitative
aspects of cares, restoration of health, alleviation of suffering, and when recovery is not
possible, towards a peaceful death.
Duties and Responsibilities of a nurse:
Provides nursing care through the utilization of the nursing process.
Nursing care includes, but not limited to, traditional and innovative
approaches, therapeutic use of self, executing health care techniques and
procedures, essential primarily health care, comfort measures, health
teachings, and administration of written prescription for treatment, therapies,
oral, topical and parenteral medication, internal examination during labor in
the absence of antenatal bleeding and delivery. In case of suturing of
perineal laceration, special training shall be provided accordingly to protocol
established.
3.01 Standard and Degree of Care.
Section 28 of Republic Act No. 9173 expressly provides that a nurse must uphold the standards of safe
nursing practice. The standard is a national standard.
3.02 Examples of Negligence of Nurses.
a. Medication Error
Medication error is a preventable event that may cause or lead to inappropriate use or patient harm
while the meditation is in the control of the health care professional, patient or customer. A nurse
being one of the healthcare professional who may be responsible in the administration of the
medicine to the patient may commit medication error.
B Burns of Patients.
Negligence of nurses may result in burns by hot water bottles, sitz baths and heating pads
warranting the filing of an action for the damages. Moreover, the nurse may be considered negligent
if he or she does not follow the prescribed protocol or procedure.
c. Leaving Foreign Objects
For nurses that assist in
operations, leaving a foreign
object like a gauze inside the body
of the patient after the surgery is
a clear case of negligence.
d. Failure to protect
The nurse may be held liable for
quasi-delict if the patient fell
from his bed because the nurse
failed to make sure that the bed
rails are up for a debilitated,
confused or medicated patient.
e. Assessment and monitoring errors
Some examples of neglect in assessments
and monitoring errors:

ACT: failure on the nurse to get the vital signs

CONSEQUENCE: cause of late diagnosis of the
patient’s illness
●
 Some examples of neglect in assessments
and monitoring errors:

● ACT: failure of the nurse to report changes in patient’s condition to

the physician
● CONSEQUENCE: the physician may not be able to adequately
address the illness of the patient without such timely and
adequate report
 HOUSTON V. PHOEBE PUTNEY
MEMORIAL HOSPITAL, INC.
An hour after arriving at the ER, Despite clear signs and
the patient was triaged by Nurse symptoms of stroke, he
Posey who noted: dizziness, did not see a physician for
vomiting and sweating another 3 hours

The nurse rechecked Mr Nurse Posey committed

Earl Houston, 61
Houston at the insistence of professional negligence. Mr
y.o., felt dizzy and
the patient’s wife. The Houston was not seen by a
starting vomiting
patient complained of right physician in a timely manner in
order to treat the onset of stroke
arm numbness and “twitch”
and minimize harmful effects.
in his chest.
 Our Lady of Lourdes Hospital v Spouses
Romeo and Regina Capanzana
GR 189218, March 22, 2017
However, at 2:30am the
FACTS:
She was found fit for
following day or 13 hours after
anesthesia after she
her operation, she complained
Regina Capanzana, 40 yr old responded negatively to
of a headache, chilly sensation,
nurse and clinical instructor questions about TB, rheumatic
restlessness and shortness of
pregnant with her 3rd child, fever and cardiac diseases. She
breath. She asked for oxygen
was schedules for her 3rd gave birth to a baby boy. When
and later became cyanotic. She
caesarean section on January her condition stabilized, she
was transferred to ICU,
2, 1998 but she went to active was transferred to a regular
showing signs of amniotic fluid
labor a week earlier. hospital room.
embolism.
 Our Lady of Lourdes Hospital v Spouses
Romeo and Regina Capanzana
GR 189218, March 22, 2017
FACTS: which contributed to the onset ISSUE:
When her condition showed of fluid in her lung tissue Whether there was a medical
no improvement, she was (pulmonary edema). This negligence in this case.

RULING:
transferred to Cardinal Santos resulted to pulmonary arrest
Hospital. The doctors thereat and subsequently, brain
YES. In order for the claim a
found she was suffering from damage. Regina lost her
medical negligence, the
rheumatic heart disease speech, eyesight, hearing and
plaintiff must prove that a
mitral stenosis with mild limbs. She was discharged at a
health professional either:
pulmonary hypertension, vegetative state.
 Our Lady of Lourdes Hospital v Spouses
Romeo and Regina Capanzana
a. failed to do something
which a reasonably prudent
health professional would
have or have not done;
b. action or omission caused
injury to the patient.
By preponderance
evidence, the plaintiff must
GR 189218, March 22, 2017
1. DUTY of the professional
show the following elements:
When Regina was gasping
1. DUTY of the health
for breath and turning
professional
cyanotic, it was the duty of
2. BREACH of that duty the nurse to intervene
3. INJURY to the patient immediately by informing
the resident doctor.
4. PROXIMATE CAUSATION
Higher degree of caution
of between the breach and
and exacting standard of
the injury.
diligence is required.
 Our Lady of Lourdes Hospital v Spouses
Romeo and Regina Capanzana
GR 189218, March 22, 2017
2. BREACH of that duty 3. INJURY to the patient 4. PROXIMATE CAUSATION
Immediate response of the Regina was already cyanotic The proximate cause of the
nurses was imperative since when she was referred to the brain damage was the delay
Regina herself has asked for resident doctor. She suffered in responding to the patient’s
oxygen. The court found that from brain damage caused by call for help. As per expert
the nurses committed a lack of oxygen in the brain. testimony, it could have been
breach of their duty to The testimony of Dr. Robeniol, avoided since lack of
respond immediately given a neurosurgeon proved that inadequate supply of oxygen
physical manifestation of the best time to treat it was at to the brain for 5 minutes will
oxygen deprivation. that time of occurence. cause damage to it.
 Additional info:
Lourdes Hospital was also made liable as an employer under
Article 2180 of the New Civil Code. The Hospital failed to
adduce evidence showing the degree of supervision it
exercised over its nurses. It was not shown who were the
actual nurses on duty and who was supervising the nurses on
the fatal night in question.
 JOINT TORTFEASOR
●

AND
VICARIOUS LIABILITY
ART. 2180 of the New Civil Code

In many cases, the Usually, the nurse is

negligence of the nurse employed by a
concurs with the hospital.
negligence of the Hence, the hospital
doctor, in which case, shall be vicariously
the two of them are liable as an employer
jointly and severally of the nurse.
liable as tortfeasor.
4. PHARMACISTS
Law that regulates practice of pharmacy is RA 5921.

ARTICLE IV
Practice of Pharmacy
Section 23. Definition of practice of pharmacy. A person shall be deemed to be practicing pharmacy
within the meaning of this Article, who shall, for fee, salary, percentage or other reward paid or given
directly to himself or indirectly through another, prepare or manufacture, analyze, assay, preserve,
store, distribute or sell any medicine, drug, chemicals, cosmetics, pharmaceuticals, devices or
contrivances used in pursuance thereof; or render pharmaceutical service in any office or drug and
cosmetic establishment where scientific, technological or professional knowledge of Pharmacy is
applied; or engage in teaching scientific, technological or professional pharmacy subject in a college
of pharmacy; or conduct or undertake scientific pharmaceutical research for biological and
bacteriological testings and examinations.
However, persons performing executive managerial or administrative functions and their subordinate
personnel employed in the pharmaceutical laboratories referred to in the second paragraph of
Section twenty-seven hereof shall not be considered for purposes of this definition, considered
persons in the practice of pharmacy.
 NATURE OF LIABILITY OF PHARMACISTS

ORDER RIGHT DRUG BUT IN LABELLING OF

PROCESSING THE WRONG CORRECT
ERROR STRENGTH MEDICATION BUT
WITH INCORRECT
Mercury Drug v De Leon
DIRECTIONS
4.01 DEGREE OF CARE

As active players in the field of dispensing medicines to the public, highest

degree of care and diligence is expected of pharmacists.

Ohio Country Drug v Howard, the ordinary care required has been further
defined as the highest practicable degree of prudence, thoughtfulness, and
vigilance, and the most exact and reliable safeguards consistent with the
conduct of the profession, in order that human life may not constantly be
exposed to danger flowing from the substitution of harmful medicines for
harmless ones.
4.02 APPLICABILITY OF RES IPSA LOQUITUR

The Supreme Court of Ohio observed in Edelstein v Cook, that “principle of

res ipsa loquitur” should be applied.

The druggist has the sole control of the drugs he offers for sale, either
harmful or harmless. His relation to the community is such that there is an
obligation cast upon him to see that no harmful or poisonous drugs shall
be delivered to a customer when a harmless one is asked for.

Proof of mistake or inadvertence on the part of the druggist is sufficient to

establish a prima facie case. It raises a presumption of negligence which
entitles the customer to recover unless that presumption is rebutted.
4.03 BREACH OF STATUTORY DUTY
Their non-observance of the legislation is per se neglect of duty, as well as
neglect of care.

4.04 EXAMPLES OF DUTY OF CARE

In Mercury Drug v De Leon, the court reiterated that the profession of
pharmacy demands great care and skill. It reminded druggists to
exercise the highest degree of care known to practical men.
The Court ruled that in the purchase and sale of drugs, the buyer and seller
do not stand at arms-length. There is an imperative duty on the seller or
druggist to take precaution to prevent death or injury to any person who
relies on one’s absolute honesty and peculiar learning.
 Mercury Drug v De Leon
GR 165622, October 17, 2008

FACTS: ● Later, he applied 2-3 drops

to his eyes but instead of
ISSUE:
Whether there was a medical
● Judge De Leon went to
relieving his eye irritation, negligence in this case.
Better Living, Paranaque,
Mercury Drug Branch to
he felt searing pain.
RULING:
● He found out that he was YES. Petitioners Mercury
buy the prescribed drug to
given a wrong medicine: Drug and Ganzon have
relieve his eye problems.
“Cortisporin Otic Solution” similarly failed to live up to
● The Pharmacy assistant,
instead of “Cotisporin high standard of diligence
Aurmela Ganzon handed
Ophtalmic” (an eardrop, expected of them as
him the medicine.
instead of an eye drop) pharmacy professionals.
 Three other cases cited in the Mercury Drug v De Leon case where
pharmacists were considered negligent:

● Fleet v Hollenkemp: ● Smith’s Admrx v Middleton

● Tombari v Conners:
Court teaches us that one
Court held that a druggist that
The Court ruled that
holding himself out as
sells to a purchaser one drug
profession of pharmacy
competent to handle drugs…
for another or even one
demands care and skill, and
cannot be heard to say that his
innocent drug…cannot escape
druggists must exercise care
mistake by which he furnishes
responsibility, upon the alleged
of specially high degree,
a customer the most deadly
pretext that it was an
highest degree of care known
drugs for those comparatively
accidental or innocent
to practical men.
less harmless, is not in itself
mistake. His mistake.. is
gross.
negligence.
 Other cases

In United States v Pineda, the Ratio:

potassium chlorate demanded “The wisdom of

by complainant has been such a decision is

intended for his racehorses. unquestionable. If

However, when he mixed it with the victims had

water, after few hours, the been human beings

racehorses died of poisoning. instead of horses,

Reason: What was given was the damage, and

barium chlorate, instead of loss would have

potassium chlorate. been irreplaceable.”

 Other cases
Effect: On the 3rd day, he
In Mercury Drug v Baking,
figured in a vehicular
Sebastian Baking went to
accident. He fell asleep
Mercury Drug Alabang
while driving
Branch and presented his
prescription for Diamicron
Doctrine: The proximate
(medicine to stabilize blood
cause of the accident was
sugar), which the
the gross negligence of
pharmacist mistakenly read
the pharmacist who gave
as Dormicrum (potent
the wrong medicine.
sleeping tablet).
5. Clinical Laboratories

5.01 APPLICABLE LAWS

● RA 4688 - “The Clinical Laboratory Law”
● RA 5527- “The Philippine Medical Technology Act of 1969”
● Regulations issued by DOH (DOH Administrative Order No. 49-B, Series of 1988- “Revised Rules
and Regulations Governing the Registration, Operation and Maintenance of Clinical Laboratories
in the Philippines”

5.02 NEED FOR LICENSED PHYSICIANS

● A licensed physician, authorized by the Secretary of Health, is necessary for the operation of a
clinical laboratory. (Ex: pathologist)
● The medical technologist (Medtech) must be under the supervision of the licensed physician
or pathologist
● Results of any examination may be released only to the requesting physician or his authorized
representative upon the direction of the laboratory pathologist.
● Reason: intended for the protection of public by preventing performance of substandard clinical
examinations by laboratories whose personnel are not properly supervised.
● Lack of required license = deemed negligence by the operator of the clinical laboratory
 Garcia, Jr. v. Salvador
GR 168512, March 20, 2007

FACTS: ISSUE:
● Respondent underwent ● The test result bore the Whether there was a medical
medical exam at name of Garcia as examiner negligence in this case.
Community Diagnostic and rubber stamp signature RULING:
Center (CDC) as a of Dr. Castro as pathologist. YES. Dr. Castro’s infrequent visit to
prerequisite for regular ● The company terminated the clinic laboratory barely
employment. He was Ranida for failing the qualifies as effective
issued a test result of “HBs physical examination. administrative supervision. CDC
Ag:Reactive” (patient is ● Later, it was determined was considered negligent because
suffering Hepatitis B, a that there was an error in there was no licensed physician.
liver disease) the previous examination. Thus, it constitutes a breach of
duty.
 II. Negligence of Lawyers
1. BASIS OF RESPONSIBILITY

● Code of Professional Responsibility, Canon 18 provides:

“A lawyer shall serve his client with competence and diligence”
- not to undertake a legal service he knows he is not qualified to render
- not to handle any legal matter without adequate preparation

● Canon 18.03: “A lawyer shall not neglect a legal matter entrusted to him and his
negligence in connection therewith shall render him liable.”
- Supreme Court explained that “an attorney is not bound to exercise
extraordinary diligence, but only a reasonable degree of care and skill…
- not answerable to every mistake and error, and will be protected as long as he
acts honestly and in good faith to the best of his skill and knowledge.”
 II. Negligence of Lawyers
2. LOSS AND ERROR OF JUDGEMENT NOT BASES OF LIABILITY

Lawyer’s liability may not be based solely on that fact that his client lost the case.

In Atienza v. Evangelista, the Court held that it would place an intolerable

burden on a member of a bar if just because a client failed to obtain what is sought
by her after due exertion of the required effort on his part, he would be held
accountable. Success in litigation is certainly not the test of whether or not a
lawyer had lived up his duties to a client. It is enough that with thorough
preparation, he had taken all the steps to prosecute his suit.
 3. PROOF OF DAMAGE NECESSARY
Dominga Roque, et al. v. Magtanggol C. Gunigundo
89 SCRA 178 (1979)

FACTS: ISSUE: RULING:

Plaintiffs filed an action to ● WON there was negligence “However the fact that the
recover a parcel of land. The on the part of the lawyer complainants lost the right to
case was dismissed on the (YES) appeal would not necessarily
ground of laches and prior ● WON he is liable for mean that they were
judgement. damages (NO) damaged.
Within 15-day period to The Court admonished the The lower court’s order of
appeal or file a Motion for lawyer but it refused to dismissal has in its favor the
Reconsideration, the lawyer impose liability for damages presumption of validity or
filed a motion for extension because no damage was correctness.
to file MR (prohibited motion) established.
 III. Accountants and Auditors
1. ACCOUNTANTS
RA 9298 or “Philippine Accountancy Act of 2004”
Sec 2 of RA 9298 states the importance of accountants in nation building and
development. Hence, the accountants is supposed to be an expert in the practice of
accounting. He is liable based on contract and quasi-delict for any negligent act that
caused damage or injury to client.

2. INDEPENDENT AUDITORS
The financial statements are representations of client; but it is the auditor who has
the responsibility for the accuracy in the recording of data that underlies the
preparation, their form of presentation, and the opinion that lies therein. They do
not assume the role of employees nor of management and is never under the
control or supervision of the client.
 III. Accountants and Auditors
Under Sec. 163 of the Revised Corporation Code, the auditor is liable for
certifying financial statements despite their incompleteness or inaccuracy, their
failure to give a fair and accurate presentation of the corporation’s condition or
despite containing false or misleading statements.

a. Appointment of Auditor not negligence

- The client cannot be blamed for his unintelligent choice in the selection and
appointment of an auditor- such fault is not tantamount to negligence.

- Negligence is not presumed, but proven by whoever alleges it. Its mere
existence is not sufficient without proof that it, and no other cause, has given
rise to damages.
 III. Accountants and Auditors
Example: a client hired the auditor as part of internal control system. He owned his
working papers, and his output consisted of his opinion as well as the client’s
financial statements and accompanying notes thereto. The client have every right
to rely solely on his output. Under this arrangement, the client would not be
considered negligent for hiring the auditor.
 III. Accountants and Auditors
b. Liability regarding Audited Financial
Statements
In the US, liability of accountants requires
privity or privity-like relationship between
claimant and negligent actor. Hence, liability
is primarily to the client. In general, the
accountant’s liability to third person is
determined by balancing various factors
(extent intended to affect third persons,
forseeability of harm, closeness of connection
between the accountant’s conduct and injury
suffered, moral blame attached to the
conduct, etc)