MEDICAL MALPRACTICE/NEGLIGENCE
his/her patients.
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 a claim, a patient
must prove that a health care provider, in most
cases of physicians, 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 the failure or action caused injury to
the patient.
Elements of medical negligence or malpractice:
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 circumstance?
2. The patient 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?
I. 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
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 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.
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:
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.
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.
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.
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.
II. 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:
1. Evidence as to the recognized standards of the
medical community in the particular kind of case,
and
2. 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.
III. 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.
IV. 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 prerequisite 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, 4. Breach of Physician-Patient
not injury itself, and injury need not only flow relationship
directly from event. 5. Negligence of physician’s partners

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.

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