MEDICAL MALPRACTICE

(TORTS AND DAMAGES)

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. (Torts
and Damages, Timoteo B. Aquino)
“Throughout history, patients have consigned their fates and lives to the skill
of their doctors. For a breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of Hammurabi then already
provided: "If a physician make a deep incision upon a man with his bronze lancet
and cause the man's death, or operate on the eye socket of a man with his
bronze lancet and destroy the man's eyes, they shall cut off his
hand." Subsequently, Hippocrates wrote what was to become part of the healer's
oath: "I will follow that method of treatment which according to my ability and
judgment, I consider for the benefit of my patients, and abstain from whatever is
deleterious and mischievous . . . . While I continue to keep this oath unviolated
may it be granted me to enjoy life and practice the art, respected by all men at all
times but should I trespass and violate this oath, may the reverse be my lot." At
present, the primary objective of the medical profession is the preservation of
life and maintenance of the health of the people.
Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the punishment
meted out by the ancients, neither will it and this Court, as this case would show,
let the act go uncondemned.
Xxx
As a final word, this Court reiterates its recognition of the vital role the
medical profession plays in the lives of the people, and State's compelling
interest to enact measures to protect the public from "the potentially deadly
effects of incompetence and ignorance in those who would undertake to treat
our bodies and minds for disease or trauma." Indeed, a physician is bound to
serve the interest of his patients "with the greatest of solicitude, giving them
always his best talent and skill." (Dr. Victoria L. Batiquin and allan Batiquin v.
Court of Appeals, et al, 258 SCRA 334 [1996]).

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. (Torts
and Damages, Timoteo B. Aquino) However, proving medical malpractice in the Philippines is
one of the more difficult civil cases. Its difficulty lies, among others, on the fact that medical

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procedures involve, to a great degree, technical matters, which must be clearly understood first,
prior to pursuing a claim that a treatment was attended with malpractice.

The rights and obligations of physicians, and the law that governs the relationship between
doctors and patients are covered by the Medical Act of 1959 (R.A. No. 2382) which provides,
among others, the standardization and regulation of medical education; the examination for
registration of physicians; and the supervision, control, and regulation of the practice of
medicine in the Philippines. Under the Medical Act, gross negligence, ignorance, or
incompetence in the practice of medicine resulting in an injury to or death of the patient shall
be sufficient ground to suspend or revoke the certificate of registration of any physician.
However, R.A. 2382 has no provision imposing civil or criminal penalty for acts constituting gross
negligence, ignorance, or incompetence. Nonetheless, a patient who dies or suffers injury
because of the attendance of any of these circumstances when a physician attends to him/her
may be prosecuted under Article 365 of the Revised Penal Code or seek an award of damages
under the Civil Code such as an action based on quasi-delict.

A. CRIMINAL LIABILITY

"Doctors are protected by a special law. They are not guarantors of care. They do not
even warrant a good result. They are not insurers against mishap or unusual
consequences. Furthermore they are not liable for honest mistake of judgment.” (Cruz versus
Court of Appeals, 282 SCRA 188 [1997])

Criminal liability for medical negligence may be, however, brought under Article 365 of
the Revised Penal Code (criminal imprudence and negligence). 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.
Whether or not a physician has committed an "inexcusable lack of precaution" in the
treatment of his patient is to be determined according to the standard of care observed by
other members of the profession in good standing under similar circumstances bearing in mind
the advanced state of the profession at the time of treatment or the present state of medical
science. In Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting
a case, a doctor in effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such training, care and skill
in the treatment of his patients. He therefore has a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a condition under the same

2
circumstances. It is in this aspect of medical malpractice that expert testimony is essential to
establish not only the standard of care of the profession but also that the physician's conduct in
the treatment and care falls below such standard. Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support the
conclusion as to causation.”
“Inexcusable lack of precaution” is defined as “whether or not a physician has committed
an ‘inexcusable lack of precaution’ in the treatment of his [or her] patient is to be determined
according to the standard of case observed by other members of the profession in good
standing under similar circumstances bearing in mind another the advance state of the
profession at the time of treatment or the present state of medical science.” In cases where the
negligence is not reckless in nature, the doctor may be held liable instead for simple
imprudence. However, the negligence exhibited by the two doctors does not approximate
negligence of a reckless nature but merely amounts to simple imprudence. Simple imprudence
consists in the lack of precaution displayed in those cases in which the damage impending to be
caused is not the immediate nor the danger clearly manifest. The elements of simple
imprudence are as follows.

1. that there is lack of precaution on the part of the offender; and

2. that the damage impending to be caused is not immediate of the
danger is not clearly manifest.

In litigations involving medical negligence, the plaintiff has the burden of establishing
accused-appellants negligence, and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the physician as well as a causal connection of such
breach and the resulting injury of his patient. The connection between the negligence and the
injury must be a direct and natural sequence of events, unbroken by intervening efficient
causes. In other words, the negligence must be the proximate cause of the injury. Negligence,
no matter in what it consists, cannot create a right of action unless it is the proximate cause of
the injury complained of. The proximate cause of an injury is that cause which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the injury and
without which the result would not have occurred. (Jarcia, Jr. v. People, 666 SCRA 336 (2012)

B. CIVIL LIABILITY

The injured party may hold the physician liable for damages based on tort, called quasi-
delicts under Article 2176 of the New Civil Code. In general, negligence suits require proof that a
party failed to observe, for the protection of the interest of another person, that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby such other person
suffers injury. It 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 do. (Layugan vs. Intermediate
Appellate Court, citing Black’s Law Dictionary, Fifth Edition, 930).

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 The Supreme Court had occasion to explain that doctors, because of their training and the
very nature of their work, doctors or physicians are required to exercise utmost diligence in the
performance of their tasks, to wit:

Throughout history, patients have consigned their fates and lives to the
skill of their doctors. For a breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of Hammurabi then already
provided: “If a physician make a deep incision upon a man with his bronze lancet
and cause the man’s death, or operate on the eye socket of a man with his
bronze lancet and destroy the man’s eyes, they shall cut off his hand.”
Subsequently, Hippocrates wrote what was to become part of the healer’s oath:
“I will follow that method of treatment which according to my ability and
judgment, I consider for the benefit of my patients, and abstain from whatever is
deleterious and mischievous. . . . While I continue to keep this oath unviolated
may it be granted me to enjoy life and practice the art, respected by all men at all
times but should I trespass and violate this oath, may the reverse be my lot.” At
present, the primary objective of the medical profession is the preservation of life
and maintenance of the health of the people.

Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer therefor.
Although society today cannot and will not tolerate the punishment meted out by
the ancients, neither will it and this Court, as this case would show, let the act go
uncondemned.

xxx xxx

As a final word, this Court reiterates its recognition of the vital role the
medical profession plays in the lives of the people, and the State’s compelling
interest to enact measures to protect the public from “the potentially deadly
effects of incompetence and ignorance in those who would undertake to treat
our bodies and minds for disease or trauma.” Indeed, a physician is bound to
serve the interest of his patients “with the greatest of solicitude, giving them
always his best talent and skill.” Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of her profession’s rigid
ethical code and in contravention of the legal standards set forth for
professionals, in general, and members of the medical profession, in particular.”
(Dr. Victoria L. Batiquin and Allan Batiquin vs. Court of Appeals, G.R. No. 118231,
05 July 1996.)

When the evidence show the presence of negligence, such as when a doctor, hospital or
medical professional failed to perform the necessary medical services on a patient according to
the degree of skill required from an ordinary practitioner of their respective professions, then a
cause of action arising from negligence or quasi-delict exists. However, being a distinct type of

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tort, the Supreme Court stated that, to prove medical malpractice or medical negligence, four
(4) elements have to be established, to wit:

“A word on medical malpractice or negligence cases.

In its simplest terms, the type of lawsuit which has been called medical
malpractice or, more appropriately, medical negligence, is that 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 such a claim, a patient must prove that a health care provider, in most
cases a physician, 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 that failure or action
caused injury to the patient. Hence, there are four elements involved in medical
negligence cases: duty, breach, injury and proximate causation.

As with any civil case, substantial evidence must be presented to establish

the liability of the responsible party. If the elements of duty, breach, injury and
proximate causation are established with substantial evidence, then a hospital,
doctor, or other medical professional will be held liable for malpractice. Civil
liability, in the form of damages, may be awarded by the court in such instances.

When a doctor or hospital accepts a patient for treatment, a physician-

patient relationship is created. The first element of duty arises at this stage. By
accepting a case, the doctor or hospital commenced the duty to render medical
service in favor of the patient in accordance with the expected training and skill
of a medical practitioner. This is in line with the ruling of the Supreme Court in
the case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al, to wit:

Evidently, when the victim employed the services of Dr. Antonio and Dr.
Reyes, a physician-patient relationship was created. In accepting the case, Dr.
Antonio and Dr. Reyes in effect represented that, having the needed training and
skill possessed by physicians and surgeons practicing in the same field, they will
employ such training, care and skill in the treatment of their patients. They have
a duty to use at least the same level of care that any other reasonably competent
doctor would use to treat a condition under the same circumstances. The breach
of these professional duties of skill and care, or their improper performance, by a
physician surgeon whereby the patient is injured in body or in health, constitutes
actionable malpractice. Consequently, in the event that any injury results to the
patient from want of due care or skill during the operation, the surgeons may be
held answerable in damages for negligence.

The second element of breach is present when the hospital or doctor

does treatment in breach of professional duties. An example of this would be a

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doctor that applies treatment without consulting the patient’s history. It is a
standard operating procedure for all doctors to apprise themselves about the
medical history of a person before they decide on taking him/her as a patient.
This process is necessary so that the doctor can gauge whether he/she is capable
of successfully helping the patient and also for the doctor to make the proper
preparations and decisions with respect to how to treat said patient.

It is also worthy to note that under Section 2 Article II of the Code of

Ethics promulgated by the Board of Medicine to govern the conduct of doctors
practicing medicine in the Philippines, a physician has the obligation not to
abandon a patient under any circumstance, to wit:

Section 2. A physician is free to choose whom he will serve. He may refuse calls,
or other medical services for reasons satisfactory to his professional conscience.
He should, however, always respond to any request for his assistance in an
emergency. Once he undertakes a case, he should not abandon nor neglect it. If
for any reason he wants to be released from it, he should announce his desire
previously, giving sufficient time or opportunity to the patient or his family to
secure another medical attendant.

Thus, it can be said that when a doctor or hospital unjustifiably refuses to

proceed with treatment, or just suddenly abandons his or her patient, the act
can be considered as breach of duty.

The presence of the third element arises where injury, liability or even
death arises as a consequence of a negligent medical treatment or procedure.

The last element to establish medical malpractice or medical negligence,

is however, the most difficult one to prove. Medical procedures are fraught with
varying consequences, and affected by innumerable factors such as the
environment, personal health, health of the other members of the family, food
intake, medicine, activities of the patient, such that it would be difficult to
establish, to a convincing degree, whether the injury is the proximate result or
directly arose from the procedure conducted.

However, there are instances of medical malpractice or medical

negligence that involve the application of the familiar doctrine res ipsa loquitur.
The doctrine of res ipsa loquitur, which directly translates to “the thing speaks
for itself”, governs cases where negligence is clear by a simple examination of the
injury or the circumstances surrounding the medical treatment given, such as
where a gauze or a pair of scissors are left inside the body cavity after it has been
sutured, or blood of a different type is infused to a patient.
In sum, the difficulty in successfully prosecuting medical negligence lies in
the fact that medicine is not an exact science. There are numerous life-saving

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 procedures that are experimental, or even not experimental, but are fraught with
consequences, such that even the best doctors cannot predict the outcome of
the treatment. Also, countless environmental variable play a direct hand in the
effectiveness of a treatment.

All that any medical professional or hospital has to do to avoid medical

malpractice is to study the procedure well including the patient’s history, keep
the patient well-informed of the procedure which the doctor or hospital intends
to perform, conduct the treatment in good faith, and with the required degree of
competence, diligence and skill. This way, any claim of malpractice may be
avoided.”

An important element of medical negligence is the duty of a physician to a

patient. For the physician to be obliged to perform her/her duties, there must be a
doctor-patient relationship established. The relationship of doctor-patient begins when
the patient engages the services of a physician, and the physician accepts the case. “a
physician-patient relationship may be created when the professional services of a
physician are rendered to and accepted by another for purposes of medical or surgical
treatment. (Quirk v. Zukerman, June 30, 2003) An implied physician-patient relationship
can be inferred also from the circumstances prevailing. This relationship of physician-
patient is usually contractual in nature. The liability of the doctor for negligence may
arise from contract. In cases, where no contractual obligation is present, the doctor may
still be held liable for gross negligence based on quasi-delict because even a doctor who
unilaterally treated a patient without the latter’s consent must exercise due care in
making such treatment.

 STANDARD OF CARE:

Medical malpractice is a particular form of negligence which consists in the

failure of a physician or surgeon to apply to his practice of medicine that degree
of care and skill which is ordinarily employed by the profession generally under
similar conditions, and in like surrounding circumstances. (Reyes v. Sisters of
Mercy Hospital, October 3, 2000) Whether a physician committed an inexcusable
lack of precaution in the treatment of his patient is to be determined according
to the standard of care observed by other members of the profession in good
standing under similar circumstances bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical science. (Cruz
v. CA, Nov. 18, 1997)The standard referred to here is not the average merit
among all known practitioners from the best to the worst and from the most to
the least experienced, but the reasonable average merit among ordinarily good
physicians. (Reyes v. Sisters of Mercy Hospital)

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 However, 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. He ought to apply to his patient what other general
practitioners will apply when confronted with similar situation. (Pedro P. Solis,
medical Jurisprudence, 19988 Ed.) A “specialist” on the other hand, duty to the
patient is generally considered to be that of an average specialist, not that of a
average physician.