MALPRACTICE

Negligence is the omission to do something which a

reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs,
would do or the doing of something which a prudent
and reasonable man would not.

Test of Negligence: Did the defendant in doing the

alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would
have used in the same situation.
 NEGLIGENCE OF HEALTH CARE
PROFESSIONALS

MEDICAL MALPRACTICE

Doctors or physicians are experts who because of their training

and the very nature of their work are required to exercise
utmost diligence in the performance of their tasks.
The primary objective of the medical profession is the
preservation of life and maintenance of the health of the
people.
 DOCTOR-PATIENT RELATIONSHIP

- created when the professional services of a

physician are rendered to and accepted by another
for purposes of medical or surgical treatment
- arise when a physician gives advice to a patient,
even if the advice is communicated through another
health care professional
 STANDARD OF CARE

- must used at least the same level of care that any

reasonably competent doctor would use to treat a
condition under the same circumstances
 FOUR ESSENTIAL ELEMENTS OF LIABILITY

“Art. 2176. Whoever by act or omission causes damage to

another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.”

- DUTY
- BREACH
- INJURY
- PROXIMATE CAUSE
 GENERAL PRACTITIONERS V. SPECIALISTS

- The standard of care demanded from a general practitioner is

ordinary care and diligence in the application of his
knowledge and skill in his practice of the profession.

- A specialist’s legal duty to the patient is generally considered

to be that of an average specialist not that of an average
physician.
 NATIONAL STANDARDS

LOCALITY RULE IN RELATION TO FACILITIES

NEIGHBORHOOD RULE

A physician is under a duty to the patient to exercise that

degree of care, skill and diligence which physicians in the
same general neighborhood and in the same general line
of practice ordinarily possess and exercise in like cases.
 COMMON PROFESSIONAL
PRACTICE

Compliance with common professional practice in a

similar situation is a strong evidence that the doctor
has not been negligent.
 NEGLIGENCE OF RESIDENTS

- Resident doctors are licensed doctors under training

for a particular specialty.
- The attending physician is primary responsible for
managing the resident’s exercise of duties.
- Nevertheless, they must exercise the same degree of
care that is required of a physician.
 DOCTORS ARE NOT WARRANTORS

Physicians are not warrantors of cures or insurers

against personal injuries or death of the patient.
Difficulties and uncertainties in the practice of
profession are such that no practitioner can guarantee
results. Error of judgment will not necessarily make
the physician liable.
 EXPERT TESTIMONY

Courts defer to the expert opinion of qualified

physicians because of the court’s realization that the
qualified physician possess unusual technical skills
which laymen in most instances are incapable of
intelligently evaluating.
 RES IPSA LOQUITOR

- “THE THING SPEAKS FOR ITSELF”

- 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 the
following 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;
- 3. the possibility of contributing conduct which would make
the plaintiff responsible is eliminated.
 ROGELIO RAMOS ET. AL V. CA
(G.R. NO. 124354. DECEMBER 29, 1999).

Facts: Erlinda Ramos sought medical attention for the discomfort she
was going through by reason of a stone in her gall bladder. After the
usual medical evaluation by her doctors, she was deemed fit to undergo
a medical procedure to have the stone removed. She was scheduled to
be operated upon at the De Los Santos Medical Center and Erlinda’s
husband Rogelio asked Dr. Hosaka to look for a good anaesthesiologist
for the operation. Erlinda’s sister-in-law Herminida a college of nursing
dean was requested to stay with Erlinda all through the procedure. On
the day of the operation, Erlinda was already prepared for the operation
as early as 7.30. Dr. Hosaka was nowhere to be found within the
hospital premises so the patient, hospital staff and the anaesthesiologist
Dr. Perfecta Gutierrez had to wait until past 12 noon. When Dr. Hosaka
finally arrived, Dr. Gutierrez started intubating Erlinda. While trying to
intubate the patient, Dr. Gutierrez remarked: “ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.”
After a while, Erlinda’s nail bed turned blue and she was
placed in “trendelenburg position – a position where the head
of the patient is placed in a position lower than her feet which
is an indication that there is a decrease of blood supply to the
patients brain”. Erlinda suffered brain damage due to lack of
oxygen on her brain for 4-5 minutes and she was comatose
from that day onwards. A civil case for damages was filed
against Drs. Hosaka and Gutierrez and the hospital.
 ISSUE: WON THE DR. HOSAKA AND DR. GUTTIEREZ WERE
NEGLIGENT.

 Ruling: Yes, they are held negligent. In the case at bar, respondent
Dra. Gutierrez admitted that she saw Erlinda for the first time on the
day of the operation itself, on 17 June 1985. Before this date, no
prior consultations with, or pre-operative evaluation of Erlinda was
done by her. Until the day of the operation, respondent Dra.
Gutierrez was unaware of the physiological make-up and needs of
Erlinda. She was likewise not properly informed of the possible
difficulties she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for the
first time only an hour before the scheduled operative procedure
was, therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and vigilance in
dealing with human lives lie at the core of the physician’s centuries-
old Hippocratic Oath. Her failure to follow this medical procedure
is, therefore, a clear indicia of her negligence.
 Dr. Hosaka’s irresponsible conduct of arriving very late for
the scheduled operation of petitioner Erlinda is violative, not
only of his duty as a physician "to serve the interest of his
patients with the greatest solicitude, giving them always his
best talent and skill," but also of Article 19 of the Civil Code
which requires a person, in the performance of his duties, to act
with justice and give everyone his due.
They were working as a medical team is evident from the
fact that Dr. Hosaka was keeping an eye on the intubation of
the patient by Dr. Gutierrez, and while doing so, he observed
that the patient’s nails had become dusky and had to call Dr.
Gutierrez’s attention thereto. The Court also notes that the
counsel for Dr. Hosaka admitted that in practice, the
anesthesiologist would also have to observe the surgeon’s acts
during the surgical process and calls the attention of the
surgeon whenever necessary 39 in the course of the treatment.
 LOST CHANCE RULE

- Whether the patient can recover for the lost

opportunity to obtain a better degree of recovery?
- There was a chance that he would have been better
off with adequate care but because of the
negligence this chance has been lost. Loss of
chance is the lost opportunity for better result.
- Court apportion damages by valuing the chance of
better result as a percentage of the value of the
entire life or limb.
 DOCTRINE OF INFORMED CONSENT

- The doctor must secure the consent of his patient to

a particular treatment or an investigative procedure.
- They are duty bound to obtain an authorization for
care carried out in their offices or elsewhere.
- May be express or implied.
 FOUR ESSENTIAL ELEMENT S IN MALPRACTICE
ON THE DOCTRINE OF INFORMED CONSENT

1. The physician had a duty to disclose material risks;

2. The physician 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. The plaintiff was injured by the proposed
treatment.
 OBJECTIVE REASONABLE PATIENT TEST

The causality issue is resolved on an objective basis: “in terms

of what a prudent person in the patient’s position would have
decided if suitably informed of the perils bearing significance.”

Two types of causation:

1. Adequate disclosure would have cause the plaintiff
to decline the treatment.
2. The treatment proximately caused the injury to the
plaintiff.
 CAPTAIN OF THE SHIP DOCRINE

• The surgeon is likened to a ship captain who must not

only be responsible for the safety of the crew but also to
passengers of the vessel.
• The head surgeon is made responsible for everything
that goes wrong within the four corners of the operating
room.
• The liability of the surgeon is not only for the wrongful
acts of those who are under his physical control but also
those wherein he has extension of control.
 PRIVACY OF PATIENTS

• The physician-patient privilege creates a zone of

privacy intended to preclude the humiliation of the
patient that may follow the disclosure of his
ailments.

• Patient is rest assured that the communication is

confidential.
 LIABILITY OF HOSPITALS

Hospital 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; or
2. If the doctrine of apparent authority can be applied that is if the hospital
hold out to the patient that the physician is an agent.

Article 2180. Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any business
or industry.
 RESPONDEAT SUPERIOR

• An Americsn doctrine whereby the negligence of the

employee is conclusively presumed to be the negligence of
the employer.
• It is a Latin phrase which literally means “ let the master or
superior answer” or “ let the principal answer for the act of
his agent.”
• It is a legal doctrine which means that the employer is
responsible for his employee’s action within the course of
employment.
 DOCTRINE OF CORPORATE RESPONSIBILITY

The duty of providing quality medical service is no longer the

sole prerogative and responsibility of the physician. The
modern hospitals have changed structure. Hospitals now tend
to organize a highly-professional medical staff whose
competence and performance need to be monitored by the
hospitals commensurate with their inherent responsibility to
provide quality medical care.
 DUTIES OF HOSPITAL

(1) the use of reasonable care in the maintenance of safe and

adequate facilities and equipment;
(2) the selection and retention of competent physicians;
(3) the overseeing or supervision of all persons who practice
medicine within its walls; and
(4) the formulation, adoption and enforcement of adequate
rules and policies that ensure quality care for its patients.
 UNLAWFUL RESTRAINT

A patient cannot be detained in a hospital for non-payment of

the hospital bill. If the patient cannot pay the hospital or
physician’s bill, the law provides a remedy for them to pursue
that is by filing the necessary suit in court for the recovery of
such 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.
 NURSES

Governing law - Republic Act No. 9173 “Philippine Nursing Act of 2002”

STANDARD AND DEGREE OF CARE

A nurse who assumes the care of a patient must exercise that

degree of skill, care and knowledge ordinarily possessed by
other nurses under the same circumstances.
SEC. 28. Scope of Nursing. — A person shall be deemed to be practicing
nursing within the meaning of this Act 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 care during conception, labor, delivery,
infancy, childhood, toddler, pre-school, school age, adolescence, adulthood
and old age. As independent practitioners, nurses are primarily responsible
for the promotion of health and prevention of illness. As members of the
health team, nurses shall collaborate with other health care providers for
the curative, preventive, and rehabilitative aspects of care, restoration of
health, alleviation of suffering, and when recovery is not possible, towards
a peaceful death. 
 NEGLIGENCE OF NURSES

• MEDICATION ERROR
• BURNS OF PATIENT
• ASSESSMENT AND MONITORING ERRORS
• LEAVING FOREIGN OBJECTS
• FAILURE TO PROTECT
 LEE V. PHOEBE PUTNEY MEMORIAL HOSPITAL INC. ET AL

Facts: In August 2004, Lee was experiencing extreme nausea and other
problems associated with her pregnancy and was admitted. She is diabetic
from childhood and suffers from neuropathy which means she could not
feel pain or heat. Adams, an obstetrical nurse, administered Phernegan on
Aug 23, 9:15 am via an IV to treat nausea, which is known for drowsiness
up to six hours as a side effect. 1:06 pm, administered second nausea
medication Reglan via IV that can cause drowsiness and make the patient in
stupor. Adams insisted Lee for a shower and assisted her in the shower stall
and left. Lee immediately fell asleep in the shower chair while the water
sprayed her inner thigh. An hour later nurse Adams appeared exclaiming,
“Oh, my God. I didn’t know the water could get this hot.” Lee had suffered
severe burns from the hot water.
 ISSUE: WON NURSE ADAMS IS NEGLIGENT.

Ruling: Nurse Adams negligently provided substandard

medical care to Lee which caused severe burns.
A private hospital is under the duty to exercise such reasonable
care in looking after and protecting a patient as the patient’s
condition which is known to the hospital through its agent and
servants charged with the duty of looking after and supervising
the patient may require. This duty extends to safeguarding and
protecting the patient from any known or reasonably
apprehended danger from himself which may be due to his
condition and to use ordinary and reasonable care to prevent it.
Adams violated the nursing standard of care.
 PHARMACISTS

Governing law – Republic Act No. 5921

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.
 DEGREE OF CARE

As active players in the field of dispensing medicines

to the public, the highest degree of care and diligence
is expected of pharmacists.
 BREACH OF DUTY OF CARE

Mercury Drug v. De Leon

Facts: Judge De Leon purchased certain doctor prescribed drugs,
“Cortisporin Opthalmic” and “Ceftin” to relieve his eye problems.
He went to Mercury Drug Store Corporation to buy the prescribed
medicines and showed it to Aurmela Ganzon who is the
pharmacist assistant. Instead of relief, he felt searing pain and
immediately rinsed it with water but the pain did not subside.
Only then he discover that he was given the wrong medication
which is Cortisporin Otic Solution. He returned to the branch and
confronted Ganzon of the error. She did not apologize but instead
replied that she was unable to fully read the prescription.
 ISSUE: WON MERCURY DRUG AND GANZON WERE NEGLIGENT.

Ruling: Yes, the profession of pharmacy demands great care

and skill. Druggist must exercise the highest degree of care.
Petitioners Mercury Drug and Ganzon have similarly failed to
live up to high standard of diligence expected of them as
pharmacy professionals. They were grossly negligent in
dispensing eardrops instead of the prescribed eye drops to De
Leon. Worse, they have once again attempted to shift the blame
to their victim by underscoring his own failure to read the
label.
 CLINICAL LABORATORIES

• Owners and operators of clinical laboratories have the duty to

comply with statutes as well as rules and regulations purposely
promulgated to protect and promote the health of the people by
preventing the operation of substandard, improperly managed
and inadequately supported clinical laboratories.
• High standards of performance are expected from them.
• Applicable law – RA No. 4688, The Clinical Laboratory Law;
RA No. 5527, The Philippine Medical Technology Act of 1969;
DOH Adm. Order No. 49-B Series of 1988, Revised Rules and
Regulations Governing the Registration, Operation and
Maintenance of Clinical Laboratories in the Philippines.
• A licensed physician is necessary for the operation of a
clinical laboratory. It must be administered, directed and
supervised by a licensed physician authorized by the
Secretary of Health.
• Medical technologist must be under the supervision of the
pathologist or a licensed physician.
• If the clinical laboratory lacks the required license and
personnel, the operator of the clinical laboratory is deemed
negligent.
• Garcia, Jr. v. Salvador
 NEGLIGENCE OF LAWYERS

CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE

AND DILIGENCE.
•   
Rules 18.01 - A lawyer shall not undertake a legal service which he knows or
should know that he is not qualified to render. However, he may render such
service if, with the consent of his client, he can obtain as collaborating counsel
a lawyer who is competent on the matter.
• Rule 18.02 - A lawyer shall not handle any legal matter without adequate
preparation.
• Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
• Rule 18.04 - A lawyer shall keep the client informed of the status of his case and
shall respond within a reasonable time to the client's request for information.
 DOMINGA ROQUE, ET AL. V. MAGTANGGOL GUNIGUNDO

Dominga Roque filed an action to recover a parcel of land. On July 23, 1974
respondent Gunigundo received a copy of the order in the said case dismissing it on the
grounds of laches and prior judgment. On August 22 or the last day of the reglementary
period within which to appeal or file a motion for new trial, he filed, through an
associate, a motion for an extension of fifteen days or up to September 6 within which
to file a motion for reconsideration. The motion was granted but Gunigundo was not
able to file the motion for reconsideration.

Instead, on the last day, September 6, he sent by registered mail a motion for a second
extension of ten days. On September 16, the last day of the second extension sought by
him, he filed a motion for a third extension of forty-eight hours. The motion for
reconsideration was mailed on September 18, 1974, the last day of the third extension.

The trial court denied the second and third motions for extension on the ground that the
order of dismissal was already final. It also denied Gunigundo’s motion for
reconsideration of the orders denying his motions for extension.chanrobles law
On September 6, 1976, the spouses Dominga Roque and Jose G.
Zaplan, two of the eight plaintiffs in Civil Case No. 3826-M, filed in
this Court a joint affidavit charging Atty. Gunigundo with gross
negligence in not seasonably filing the motion for reconsideration
and in not perfecting an appeal from the trial court’s order of
dismissal.
ISSUE: WON Atty. Gunigundo is guilty of gross negligence.
RULING: No. But he is admonished to exercise care and
circumspection in attending to the affairs of his clients. A repetition
of the same irregularity will be treated with more severity. 
The fact that the complainants and their six co-plaintiffs lost the
right to appeal would not necessarily mean that they were damaged.
The lower court’s order of dismissal has in its favor the presumption
of validity or correctness. Indeed, an examination of that order
discloses that the trial court painstakingly studied the motion to
dismiss and carefully rationalized its order. It found that the action
was filed more than forty years after the disputed land was registered
in the name of defendants’ predecessor-in-interest.
 ACCOUNTANTS AND AUDITORS

Governing law – Republic Act No. 9298 “Philippine Accountancy Act of

2004”
Section 2. Declaration of Policy. - The State recognizes the importance of
accountants in nation building and development. Hence, it shall develop
and nurture competent, virtuous, productive and well rounded professional
accountants whose standard of practice and service shall be excellent,
qualitative, world class and globally competitive though inviolable, honest,
effective, and credible licensure examinations and though regulatory
measures, programs and activities that foster their professional growth and
development.