Malpractice vs.

Illegal Practice Liabilities in the Dental Practice

Damages
Obligations
Contracts
Negligence
Legal Doctrines
Civil Actions

Prepared by: Dr. Vivien Mae B. Lesiguez, DMD

• Malpractice- done by duly licensed
professional
• Illegal practice- committed by a person who
practices the profession without the
professional license issued by proper
authorities
 LIABILITIES IN THE DENTAL PRACTICE
• Administrative
• Criminal
• Civil
 Administrative Liability
• Arises from civil or criminal case or when there
is an act, conduct or omission that will merit
disciplinary action.
• Involves a person’s right to practice
• Violations are reported to the local chapter,
PDA, Board of Dentistry
• Penalties:
– Suspension of Certificate of Registration
– Revocation of Certificate of Registration
 Criminal Liability
• Involves crimes against the state
• Punishment is imprisonment/fine or both

 Conspiracy
 Contempt
 Culpa
 Embezzlement
 Adultery
 Concubinage
 Reckless Imprudence
 Felonies
• Conspiracy- a crime done by a group of persons
who all cooperate to perform the crime
• Accessory- a person who assists in the commission of a
crime but is generally not present at the actual crime
• Accomplice- a person who actively participates in the
commission of a crime, even though they take no part in
thr actual criminal offense
• Witness- someone who has first-hand knowledge about
a crime and can help certify important considerations to
the crime or event
– Perjury: when a witness utters a falstatement in a trial

• Contempt- when someone who is charged of

illegal practice of illegal practice intentionally
did not attend the trial
• Culpa - criminal negligence
• Culpa contractual- Source of obligation of a dentist if
he/she accidentally hurt his/her patient at the course
of treatment
• Culpa aquilina- source of obligation when there is no
pre-existing contractual relationship between parties
• Embezzlement- an act of dishonesty
appropriating, usually financial in nature
• Adultery- sexual intercourse between a
husband and a woman who is not his wife or
between a wife and a man who is not her
husband
• Concubinage- a woman living with a man as
his lover but is not his wife
• Reckless Imprudence- a criminal liability
consisting of lack of foresight, carelessness,
unskillfulness, when the harm is preventable
in the exercise of reasonable care, when the
danger is visible to the eyes even without use
of intelligence.
• Reckless Imprudence Resulting in Homicide-
when a patient dies through reckless
imprudence or negligence of the dentist
• Felonies (Delitos)- act or omission punished
by law and it may be commited not only by
means of deceit but also by means of default
– Deceit (Dolo)- act is performed with deliberate
intent
– Fault (Culpa)- the wrongful act results from
imprudence, negligence, lack of foresight or lack
of skill
Circumstances that Affect Criminal Liability
Circumstances that Affect Criminal Liability

• Mitigating Circumstance
– Minority (less than 18 years of age)
– Absence of intent to commit grave wrong
– provocation or threat on the part of the offended party
– done in immediate vindication of his relatives (grave
offenses)
– passion or obfuscation
– voluntary surrender
– deaf/dumb/blind
– illness of the offended that diminishes exercise of will-
– power
Circumstances that Affect Criminal Liability

• Aggravating Circumstance
– INCREASES guilt or enormity or adds to its
injurious consequences
Circumstances that Affect Criminal Liability

• Aggravating Circumstance
– taking advantage of one's public position
– committed in contempt of public authorities
– abuse of confidence or obvious ungratefulness
– night time/ uninhabited place
– in occassion of calamity or misfortune
– with the aid of armed men
– in consideration of a price, reward, promise
– by means of fire, explosion, poisoning, stranding a
vessel
Circumstances that Affect Criminal Liability

• Justifying Circumstance
– the accused is deemed to have acted in
accordance with the law and therefore the act is
lawful
– no criminal liability, no civil liability
Circumstances that Affect Criminal Liability

• Justifying Circumstance
– Self-defense
– Defense of relative
– defense of stranger
– avoidance of injury
– done in fulfillment or a duty/ lawful exercise of right
– in obedience to an order issued by superior for
lawful
– purpose
Circumstances that Affect Criminal Liability

• Exempting Circumstance
– the accused committed a crime but is not
criminally liable
– there is a crime and civil liability but no criminal
liability
Circumstances that Affect Criminal Liability

• Exempting Circumstance
– imbecile/ insane
– under 9 years of age
– under compulsion of irresistible force
– under impulse of uncontrollable fear
 Civil Liability
• Involves liability between private individuals
• Liability arising from
– crimes
– contract - when there is fraud, negligence, or
delay in performance of obligation
– quasi-delict- fault or negligence, if there is no pre-
existing contractual relation between the parties
 Damages
• Actual Damages
– awarded in satisfaction of, or in recompense for,
loss or injury sustained. They simply make good or
replace the loss caused by the wrong.
– Like hospital bills, salary lost due to hospital stay
• Moral damages
– awarded to enable the injured party to obtain
means, diversions or amusements that will serve to
alleviate the moral suffering he has undergone, by
reason of the defendant’s culpable action.
 Damages
• Exemplary Damages
– imposed, by way of example or correction for the
public good
• Liquidated Damages
– Agreed upon by the parties to a contract to be
paid in case of breach thereof
 Obligation
• a tie or bond recognized by law by virtue of
which one is bound in favor of another to
render something and this may consist of
giving a thing, doing an act or not doing a
certain act
 Elements of Obligation
• Debtor/ passive subject
– the one to fulfil something
• Creditor/active subject
– one who will receive, expects something to be
fulfilled
• Object/ prestation
– what is to be fulfilled
• Juridical or legal tie
– why obligation exists
 Sources of Obligation
• Law
• Contracts
• Quasi-contracts
– not written, one performs an act which binds another by law (legal
tie) –
– Juridical relation resulting from voluntary, lawful and unilateral act
• Acts or omissions punished by law
• Quasi-delicts
– extra contractual relations causing damage to another –
– when they arise from damage caused by another through an act or
omission, there being fault or negligence, but no contractual
relation exists.
 Contract
• A meeting of the minds (agreement on the same
thing; does not have to be written)
• • Between two (or more) persons

Elements of a Contract
a. ) Consent – meeting of offer; parties have to agree to
enter into a contract
b.) Object – subject matter of the contract; thing/property
or service
c.) Cause or Consideration– reason for entering a contract
 Negligence
• the failure to observe for the protection of the
interests of another person that degree of
care, precaution, and vigilance which the
circumstances justly demand, whereby such
other person suffers injury.
 Negligence
• Res ipsa loquitur
– “the thing speaks for itself”
• Doctrine of Contributory Negligence
– The injured person (patient) is also the cause of
his/her worsened condition
– This mitigates the liability of the person who
caused injury (dentist)
 Legal Doctrines
• Res judicata
– “a thing or matter settled by judgment“
– a case, once tried, CANNOT be retried for the same offense
• Stare decisis
– judges are obliged to respect the precedent as established by prior
decisions
– courts should generally abide by precedents and not disturb settled
matters
• Res gestae
– "things done"
– It refers to the events or circumstances at issue, as well as other
events that are contemporaneous with or related to them.
 Legal Doctrines
• Doctrine of Respondeat Superior
– The dentist is answerable for the acts of his/her
employees acting within the scope of their
responsibility
– “Captain of the Ship Doctrine”
• Doctrine of Quantum Merit
– "as much as he deserved"
– a contractor is allowed to recover the reasonable
value of the services rendered despite the lack of a
written contract.
 Legal Doctrines
• Force Majeure (Fortuitous event)
– An event which cannot be foreseen, or which
through foreseen, is inevitable
– “Act of God”
 Civil Actions
• Mandamus
– petition the court to command an agency to perform a
duty
• Quo warranto
– petition the court to award an office of franchise
• Prohibition
– petitions the court to prevent an impending injury *
• Certiorari
– etition the court to review the decision, order or award
of an agency*
 Civil Actions
• Summon
– notice to respondent that an action has been commenced
against him
• Subpoena
– a process (issued by the court or tribunal) directed to a
person requiring him to attend and to testify at the hearing
or trial of an action or at any investigation conducted
under the laws of the Philippines, or for the taking of his
deposition.
 2 Types of Subpoena
• Subpoena ad testificandum
– To compel a person to attend and testify at the
hearing or trial of an action.
• Subpoena duces tecum
– To compel the production of books, records,
things or documents under a person’s control