CIRCUMSTANCES TO CONSIDER IN DETERMINE NEGLIGENCE

1. time
2. place emergency rule
3. Over-all nature of circumstances
4. gravity of harm to be avoided
5. alternative use of action
6. social value / utility of activity
7. persons exposed to the risk (Character of person risked) -children – trespassers

8.STANDARD OF CONDUCT- DOAFOAF (clapham Omnibus)

-knowledge and experience of actor- ordinary human experience and laws of physics frame
-children – maturity and capacity (9 below) (10-15)
 torpedo/turntable doctrine
-physical disability
-experts of professionals – ordinarily skilled in their filled; reasonably average
representation- holds himself out as possessing degree of skills
formed education not necessary – if expert by experience
nature of activity material – care required- commensurate of danger activity entails
-nature of activity- depends degree of diligence to be exercised
-intoxication- immaterial if no want of ordinary care / greater degree of care is required
unless it contributed to accident or avoid had he been sober
 but may be considered to prove negligence in driving motor vehicle.
-insanity- exempt from animal liability but not civil liability
-women (Valenzuela case)

9. VIOLATION OF RULES, STATUTES, PRACTICE AND CUSTOMS

 statute/ordinance becomes standard of care/conduct
-failure to follow constitutes breach of legal duty imposed and fixed (negligent as a matter of law)
 negligence per se

10. VIOLATION OF RULES

PRIVATE RULES OF CONDUCT EMPLOYER COMMISION/ BOARD (rules)- not negligence per se- but maybe evidence of negligence
-ministry (Department) <orders> - negligence per se
*causal connection still need between violation (negligence per se) and injury-> proximate cause.

11. DEGREE OF DILIGENCE

-reckless imprudence
-simple imprudence
-gross negligence

12. PROOF NEGLIGENCE

-evidence to establish claim/defense
-except when negligence is presumed (plaintiff)

13. presumptions- 2184,2185,2188 (preponderance of evidence)

-to invoke presumption-must still establish certain factual preconditions, to operate
-2185 – proof of violation of traffic regulation
-2188- proof of possession and dangerous weapons/substance
 traffic laws, ordinaces, Land Transportation Office and Traffic code
 law of the “road”- custom/practice become crystallized into accepted system of rules regulating travel on highways
-contractual relationship-presumed negligence- passenger injured, involving a carrier

14. RES IPSA IOQUITOR- the thing speaks for itself

-to avoid plaintiff in proving the elements of a negligence case by circumstantial evidence
-plaintiff: prove injury/damage and situation where it is applicable
-prima facie negligence may be established without direct proof
-can be invoked only when direct evidence is absent and not readily available
-mode of proof- does not dispense requirement of proof of negligence
-not applicable if there’s direct proof of absence/presence of negligence
-invoked in favor of plaintiff
-applies to pure (non-contractual) tort (failure to comply obligation in contract, negligence arises)

AFFIRMATIVE DUTIES

1. general negative duty of care towards others (no general positive duty of care)
 referred to as “misfeasance”  only in special relationship
-failure to act – misfeasance – breach of affirmative duties
-affirmative duties: imposed because of public interest involved / special relationship involved
 imposed by law or jurisprudence (sometimes)

2. DUTY OF RESCUE – no such duty is recognized

-no general duty to rescue in Philippines
-person who abstained from helping the victim in not legally responsible
-witness of a crime not expected to help victims – different reaction
EXCEPTION: -abandonment of helpless person  limited duty to rescue
-person injured another person in a vehicular accident
-parents, guardians
3. OWNERS, PROPRIETORS, POSSESSORS- owner: right to enjoy, disposed of recover
Generally not responsible for damages in exercise of its night of ownership
-trespassers – no duty to take reasonable care for their protection
-tolerated possessors – owner is liable if plaintiff is inside his property
- same rule applies to visitor, common carrier (even if not passenger)
-attractive nuisance rule – liability exists even if child is a trespasser 9not extended: pods)
-stated of necessity – owner has no right to prohibit another from interference if necessary to avert imminent danger. Art 432
-presupposes collision of equal/unequal rights
-liability to neighbors and third person – cannot use his property in such a manner as to injure the right of others -QD
-Art. 2190, 2191

4. EMPLOYERS & EMPLOYEES

EE- bound to exercise due core in the performance of their function
ER- proper maintenance of work place and adequate facilities to ensure safety

I. NEGLIGENCE OF HEALTH CARE PRACTITIONERS

1. Medical malpractice
-doctors/physicians- utmost diligence in performance of their task 9bec. Of training of work)
-physician- patient relationship – contractual – patient engages in the service of physicians.
-responsibility of doctor to negligence may arise from contract or no contract (QD)
-Art. 2167 – treating a patient- purely voluntary act if patient is in no position to give consent
 doctor may nevertheless be held liable based on QD
-presence of contract between doctor and patient, does not bar existence of liability base on QD
 the negligence that breach the contract may also be tort
-standard level of care – expert medical testimony
 proof of breach – expert witness
-injury must be consequence of the wrong done (direct and natural sequence of events)

“DUTY”- to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and same general line of
practice ordinarily possess and exercise in like cases
-general practitioner- ordinary care of diligence
-specialist – that of an average specialist, commonly possessed and exercised by similar specialist under similar circumstances
-consider resources available to general practitioner, specialist as one of the circumstances in determining degree of skill and care
required.
-national standards – uniform standards are enforced nationally
-locality rule in relation to facilities – local medical custom and facilities in a community may affect duty of core of doctors
-neighborhood rule- degree of care, skill and diligence which physicians in the same general neighborhood and in the same line of practice
ordinarily possess and exercise in like cases
-common professional practice- compliance therewith- evidence that doctors isn’t negligent
 not conclusive
-attending physician- responsible for managing residents exercise of duty

-doctors are not warrantors of cure/insurer against injuries/death

RES IPSA LOQUITOR IN MEDICAL MALPRACTICE

2 prolonged evidence:
1. recognized standard in medical community
2. showing that physician diligently departed from standards in his treatment

-result not determinative

 only in element of liability
Mere fact: patient does not get well (not equated) to failure to exercise due care

-error of judgement- does not necessarily result to finding of negligence

- proof: injury; defendant’s fault; causation; expert testimony

EXCEPT: JUDICIAL NOTICE
 no proof necessary if court can take judicial notice of the fact

-Expert Testimony- to determine it degree of skin 3 care in the treatment of patient is exercised
-determination of the reasonable level of care and breach thereof
-Res Ipsa Loquitor – relied upon to establish medical malpractice
 limited to cases when ordinary layman can conclude that there’s negligence in part of doctor
 when this doctrine in availed of need for expert medical testimony is dispensed with because the injury itself provides proof of
negligence

-last chance rule- last opportunity for a better outcome, is itself an injury for which patient may recover
 last chance of achieving favorable outcome/avoiding adverse consequence
 prior negligence, there is a chance that he would be better off with due care

-doctrine of informed consent- doctor must secure consent of his patient to particular treatment / procedure
 express/implied (doctor -client must first be established)
-reasonable explanation: generally informing patient in non-technical terms:
Right to self-determination
1. what is at stake
2. therapy alternatives open to him
3. goals expectably to be achieved
4. risk that might ensue from particular treatment or no treatment

EXCEPT: emergency case, cannot evaluate data, child, incompetent

-actions of medical malpractice based on Doctrine of Informed Consents (DFDI) – plaintiff must point significant undisclosed information
with would alter her decision (relating to treatment)

-objective reasonable patient test (ORPT) – adequate disclosure would cause plaintiff to decline expert testimony not required, plaintiff
could testify
-test of materiality

-professional disclosure standard – standards of the reasonable medical practitioner

“did the doctor disclose the information that, by established medical practice is required to be disclosed”
-patient must produce expert medical testimony what is the standard and how doctor deviated from it

-reasonable patient standard – materiality to the patients decision of the peril

-discuss nature of the proposed treatment (whether necessary or elective)
-risks
-available alternative and their risks and benefits
 expert witness still necessary in informed cases

 2-step process in determining materiality

1. the scientific nature if the risk must be ascertained 9nature of harm and probability of occurrence)
2. decide whether that probability of that type of harm is a risk which a reasonable patient would consider in deciding the treatment
-first requirement needs expert testimony(physician) in judging what risks exists.

Captain of the ship of doctrine- doctor cannot blame assisting nurse for his own envision
 under the responsibility to see to it that those under him performs tasks in proper manner
 head surgeon- made responsible for everything that goes wrong within 4 corners of operating room

-privacy of patient- information obtained while doctor-patient relationship exists.

-liability of hospital- vicarious liability- as an employer or principal of an agent

-effect of use of health care plan/card -cannot escape liability

 only limited to the physicians accredited with health card
-directly liable as a corporation for its own negligence/ failure to follow established standards
-cannot detain patient for non-payment of hospital bill; remedy: file suit for recovery

Nurses standard of safe nursing practice

-degree of skill, care and knowledge ordinarily possessed by other nurses under the same circumstances
 medical error- (negligence of nurse) in the administration of drugs
 burns of patient
 does not follow protocol
-negligence of nurse concurs with negligence of the doctor 9in most cases)-> jointly and severally liable
-vicarious liability of hospital as ER of nurse

Pharmacist (order processing error)

->dispensing of wrong drug
->Correct drug but wrong strength
->incorrect direction
-highest degree of care and diligence is expected in dispensing medicines
 for protection of human life and health
-doctrine of Res Ipsa Loquitor applies- pharmacist has the sole control of the drug
-breach statutory duty- negligence per se – governed by statutes and regulation (practice of pharmacy)
-druggist warrants that he will deliver drug called for
Clinical laboratories – high standards of performance is expected; impressed with public interest
-licensed physician is necessary for its clinical operation

Lawyers- code of professional responsibility governs the conduct of lawyers

-only a reasonable degree of care and skill
-lost the case: not a sole basis for lawyers liability

Accountants and auditors – expert in accounting

-not assumed as employee of company (client)
-client not considered negligent in hiring/appointing an auditor
 unintelligent choice in the selection and appointment.

The hand test- describes a process for determining whether a legal duty of care has been breached; apportioning negligence for damages.
Emergency rule-
Tornado/turntable doctrine
-Mestres doctrine- (stop and avoid collision in a crossing)- where a person is nearing a street crossing toward which a car is approaching,
the duty is on the party to stop and avoid a collision who can most readily adjust himself to the exigencies of the case, and where such
person can do so more readily, the motorman has a right to presume that such duty will be performed
-Pennsylvania rule- violating a rule at the time of collision, presumed negligent; An rule of maritime law that if a ship is in some violation of
a navigation statute at the time of a collision, she is presumed to be at fault.
Art. 2184-2185
Art 1173
Gross negligence-
Reckless imprudence
Simple imprudence
Art. 2190-2191
elements of medical malpractice- (DBP)
Locality rule in Rel. to facilities
Neighborhood rule (general)
Requisites of res ipsa liquitor
Last chance rule
-Battery- Battery- harmful or offensive touching without permission
Elements in malpractice action based on doctrine of informed consent
Objective reasonable patient test (ORPT)
-Professional Disclosure Standard (PDS)- hysician's duty is to disclose what any reasonable medical practitioner would disclose in the
same or similar affair.
Reasonable Patient Standard (RPS)- the amount of information that a rational patient would want before making a choice to pursue or
reject a treatment or procedure.tpa