Art II Sec 11

- The State values the dignity of every human person and guarantees full respect
for human rights.1
- GR No. 78164 Tablarin vs. Gutierrez
Art II Sec 12
- The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character shall receive the
support of the Government.2
- GR No. 204819 Imbong vs. Ochoa
Art II Sec 15
- The State shall protect and promote the right to health of the people and instil
health consciousness among them.3
- GR No. 204819 Imbong vs. Ochoa
Art III Sec 1.
- No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.4
o Right to life
 Not just to physical harm but to a good life.
Art XIII Sec 11
- The State shall adopt an integrated and comprehensive approach to health
development which shall endeavour to make essential goods, health and other
social services available to all the people at affordable cost.5
o Integrated
 Unified health delivery system
 Combined public and private sectors
 Mix of western medicine and traditional health care modalities
o Comprehensive
 Health promotion

1
The 1987 Philippine Constitution
2
Ibid.
3
Ibid.
4
Ibid.
5
Ibid.
  Disease prevention
 Education
 Planning
- GR No. 163123 PhilHeatlh vs Chinese General Hospital

International Basis
Joint United Nations Statement on Ending Discrimination in Health Care
Settings6

o The central principle of the 2030 Agenda for Sustainable Development

is to “ensure that no one is left behind” and to “reach the furthest
behind first.”
 Major barrier in achieving the Sustainable Development Goals
(SDGs) is admitting and recognizing there is discrimination in
health-care settings.
o Discrimination in the health-care setting violates the most fundamental
human rights protected in international treaties and national laws and
constitutions.
 It (discrimination) is directed towards the most marginalized and
stigmatized populations and many of which are discriminated
due to their age, sex, race or ethnicity, health status, disability or
vulnerability to ill health, sexual orientation or gender identity,
nationality, migration status, or their criminal record.
o Discrimination takes many forms, such as being subjected to verbal
and physical abuse, involuntary treatment, breach of confidentiality,
and is often seen when an individual or a group is being denied to
health care services while being subjectively available to others. A big
example of which are towards the female workforce by physical and
sexual violence, wage gaps, irregular salaries, lack of formal
employment, and inability to participate in leadership roles.
o Because of discrimination, this affects both users of health care services
and even the workers themselves. This serves as a barrier for other to
access health services, affects the quality of the service provided, and
reinforces exclusion from society for both individual and groups.
o Addressing this will contribute to the achievement of many SDGs, like
SDG 3 (Good Health and well-being), SDG 4 (Quality education),

6
Retrieved from:
https://www.who.int/news-room/detail/27-06-2017-joint-united-nations-statement-on-ending-
discrimination-in-health-care-settings
 SDG 5 (Gender equality and women’s empowerment), SDG 8 (Decent
work and inclusive economic growth), SDG 10 (Reduced inequalities),
and SDG 16 (Peace, justice, and strong institutions), ensuring that no
one is left behind and reaching the furthest behind the first.

Supporting States to put in place guarantees against discrimination in law,

policies, and regulations by:

- Reviewing and strengthening laws to prohibit discrimination in the provision

and distribution of health-care services
o Ensuring that the laws and policies are respected according to the
principles of autonomy in health care decision-making;
o Guaranteeing free and informed consent, privacy and confidentiality;
o Prohibit mandatory HIV testing, screening procedures that are not of
benefit to the individual or to the public; and
o Ban involuntary treatment and mandatory third-party authorization
and notification requirements.
- Reviewing and repealing disciplinary laws that are proven to have negative
health outcomes and are contrary to established public health evidence.
o Laws that criminalize or prohibit gender expression, same sex conduct,
adultery and other sexual behaviours between consenting adults, adult
consensual sex work, drug use or possession of drugs for personal use,
sexual and reproductive health care services (including information),
and overly broad criminalization of HIV non-disclosure, exposure or
transmission.
- Reviewing, strengthening implementing, and monitoring health professional
policies, regulations, standards, working conditions and ethics, for the
prohibition of discrimination on all grounds in connection to health care
settings.

Supporting measures to empower health workers and users of health services

through attention to and realization of their rights, roles and
responsibilities by:

- Ensuring the labour rights and standards of health workers are fully respected,
protected, and fulfilled and that the health workers are free from
discrimination and violence in the workplace.
o Focusing on gendered nature of the health workforce that includes
being gender-sensitive on sectoral and facility-level policies and health
professional regulations;
 o Health workers are to be supported in upholding their legal and
ethical responsibilities; and
o Their role as human rights defenders should be protected.
- Providing pre-service and in-service education to the health workforce on
their rights, roles, and responsibilities related to addressing discrimination in
the health care settings.
o The policies and programs need to provide for a diverse workforce that
includes strengthening educational admission criteria and promoting
health workforce educational and career development opportunities
for women, youth and persons from rural and marginalized
communities.
- Empowering users of health care services so that they are aware of and able
to demand their rights.

Supporting accountability and compliance with the principle of non-

discrimination in health care settings by:

- Guaranteeing access to effective mechanisms of redress and accountability.

o Development and implementation of individual, tailor-made remedies
and redress procedures for victims of violation, and constructive
systems of accountability in health and other sector to avoid future
violations
- Strengthening mechanisms for reporting, monitoring and evaluation of
discrimination.
o Support the building and sharing of evidence base and ensuring
participation of affected communities and health workers in the
development of policies.

Medical Malpractice7
- Practice of Medicine
o A person shall be considered as engaged in the practice of medicine (a)
who shall, for compensation, fee, salary or reward in any form, paid to
him directly or through another, or even without the same physical
examine any person, and diagnose, treat, operate or prescribe any
remedy for any human disease, injury, deformity, physical, mental or
physical condition or any ailment, real or imaginary, regardless of t
nature of the remedy or treatment administered, prescribed or

7
Medical Malpractice by Daniel Dy Lising MD LLM
 recommended; or (b) who shall, by means of signs, cards,
advertisements, written or printed matter, or through the radio,
television or any other means of communication, either offer or
undertake by any means or method to diagnose, treat, operate or
prescribe any remedy for any human disease, injury, deformity,
physical, mental or physical condition; or (c) who shall use the tile M.D.
after his name.8
o Is a practice which is imbued with public interest.
o Regulated by virtue of the police power of the state.
- Police Power in the Practice of Medicine
o NMAT Cases and Entry into Medical School
 Tablarin v. Gutierrez GR. No. 78164 July 31, 1987
 Challenged the Constitutionality of the NMAT
 DECS v. San Diego GR. No. 89572 December 21, 1989
 Challenged the 3 strike rule in NMAT
 “The subject of the challenged regulation is certainly
within the ambit of the police power. It is the right and
indeed the responsibility of the State to insure that the
medical profession is not infiltrated by incompetents to
whom patients may unwarily entrust their lives and
health.”
 PRC v. Ariene De Guzman et. Al, GR No. 144681 June 21, 2004
 “RA 2381 which prescribes the requirements for
admission to the practice of medicine, the qualifications
of the candidates for the board examination, the scope
and conduct of the examinations, the grounds for the
denying of the issuance of a physician’s license, or
revoking a license that has been issued. It is therefore
clear that the examinee must prove that he has fully
complied with all the conditions and requirements
imposed by law and the licensing authority to be granted
the privilege to practice medicine. In short, he shall have
all the qualifications and none of the disqualifications.”
- Regulations by the State
o Types of regulation
 By enacting penal laws to prevent illegal practice and
malpractice;
 By requiring compliance with regulatory laws; and

8
Art III Sec 10. RA 2382 “The Medical Act of 1959”
  By making erring physicians liable for damages for illegal
practice, malpractice, and negligence.
o There is no malpractice law in the Philippines.
- Malpractice definition
o The improper performance of professional dutie.
o A failure to meet the standard of care that resulted in harm to another
person.
- Malpractice Statute in the Philippines
o No existing statute
o Attempts to pass a malpractice law have been derailed because of
lobbying and difficulty in defining malpractice.
- Definition
o “…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.” – Gatcia-Rueda v. Pascasio 278 SCRA 769
- Elements of Medical Malpractice/tort
o Duty
o Breach
o Injury
o Proximate Causation
- Torts in Philippine Law
o Defined as a violation of a right given or the omission of a duty import
by law. – Naguiat v. NLRC, BR No. 116123, March 13, 1997
- Medical Malpractice
o Can either be:
 Criminal
 Civil
 Administrative
- Common Requisite
o Doctor-Patient Relationship
- Criminal Aspect
o Article 365 Revise Penal Code – Imprudence and Negligence
“Any person who by reckless imprudence, shall commit
any act which, had it been intentional would constitute a
grave felony…; if it would constitute a less grave felony”

“Any person who by simple imprudence or negligence,

shall commit any act which, had it been intentional would
constitute a grave felony…; if it would constitute a less
grave felony…”
- Reckless Imprudence Definition
o “Reckless imprudence consists of voluntarily doing or failing to do,
without malice, an act from which material damage results by reason
of an inexcusable lack of precaution on the part of the person
performing or failing to perform such act.” – Cabugao v. People GR
No. 163879
- Elements of Reckless Imprudence
o That the offender does or fails to do an act;
o That the doing or the failure to do that act is voluntary;
o That it be without malice;
o That material damage results from the reckless imprudence; and
o 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.
- 2 Cases of Reckless Imprudence
o Cabugao v. People GR No. 163879, July 30, 2015
 Appendectomy surgeon held liable
o Solidum v. People GR No. 192123, march 10 2014
- Negligence
o Negligence is defined as 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. – Dr. Jarcia and Dr. Bastan v. People GR No.
187926, February 15, 2012
- Elements of Simple Negligence
o That there is lack of precaution on the part of the offender, and
o That the damage impending to be caused is not immediate or the
danger is not clearly manifest.
- A Case of Negligence
o Dr. Jarcia and Dr. Bastan v. People GR. No. 187926, February 15,
2015
 Vehicular accident
 Knee fracture
- Civil Aspect
o Breach of contract
o Informed consent
o Quasi-delict
o New causes of action
- Doctrine of Informed Consent
 o Informed consent evolved into a general principle of law that a
physician has a duty to disclose what a reasonably prudent physician in
the medical community in the exercise of reasonable care would
disclose to his patients as to whatever grave risks of injury might be
incurred from a proposed course of treatment, so that a patient,
exercising his judgement by reasonably balancing the probable risks
against the probable benefits. – Dr. Ruby Li v. Spouses Soliman, GR
No. 165279 , June 07, 2011
- Elements
o The physician had a duty to disclose material risks;
o He failed to disclose or inadequately disclosed those risks;
o As a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to;
and
o Plaintiff was injured by the proposed treatment..
- Breach of Contract
o Doctor-Patient Relationship
o Contractual in nature
- Cases arising out of Breach of Contract
o Dermatologist sued for inability to sufficiently whiten the skin of the
patient in time for her wedding.
o Plastic surgeon sued for not achieving the desired outcome post
operation.
- Ruling of RTC
o Doctors are not warrantors of cures or outcomes.
o What is required is that the doctors have followed the requisite
standard of care. –Ninevetech Cruz v. CA, GR No. 122445, November
18, 1997
- Quasi-delict
o Art 2176 of the Civil Code:
“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…”
- Cases arising out of Negligence
o Ramos v. CA, GR No. 12434, December 29, 1999
o Professional Services v. Agana, GR No. 126297, Feb. 2, 2010
- Res Ipsa Loquitor
o The accident is of a kind which ordinarily does not occur in the
absence of someone’s negligence;
 o It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and
o The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.

News Articles
WHO urges mandatory swimming, rescue subjects in PH schools.9
- Dr. Caroline Lukaszyk, WHO consultant and regional data coordinator for
violence & injury prevention, aims to teach the youth with survival swimming
skills in order to avoid the problem of drowning.
- WHO classifies drowning as the 3rd major cause of unintentional deaths in
the world and second among children.
- There are around 322,000 victims of drowning worldwide but this data does
not include at least 66 other countries.
- There is at least one fatal drowning every 90 seconds.
- In the Philippines, there is a recorded number of 3,202 fatal drowning victims.
- The Norwegian Government, strongly supports swimming and other life-
saving subjects in school worldwide.
- According to Atty. Claire Ann Alfonso, the President of the Norwegian
Lifesaving Society, there was a law created in 2015 that mandates every child
to undergo swimming lessons until they reach grade four in Norway then
from grades 5 to 10, the lessons will be advanced to rescue or life-saving
techniques.
- Alfonso explains “We do the test to see if have they learned what they’re
supposed to learn. In that matter, we developed it. It’s not just the swimming
ability, they do life-saving concept of it. They have to be, by 10th grade, they
would be doing CPR.”
- Countries around the world do their part in order to avoid the problem of
drowning. An example would be these two countries: The Government of
Durban, South Africa requires the lifeguards to do regular patrolling along
their beaches in which rescue teams use drones to check the status of
beachgoers, Bangladesh has a record of 9 fatal drowning incidents every day,
so now children are being trained to swim in ponds transformed into
improvised pools.

9
Retrieved from:
https://www.news.abs-cbn.com/news.10/18/19/who-urges-mandatory-swimming-rescue-
subjects-in-ph-schools
- Dr. May Ann Sta. Lucia of the DOH emphasizes that Government agencies
in the country should work together to better inform the people about the
dangers of drowning or how they call it “Silent Killer”
- One of the problems is the not all local Government units have pool facilities
while DepEd has currently no funds to support the need. Education Secretary
Leonor Briones explains.
- Sen. Sherwin Gatchalian, chairman of the Senate committee on basic
education, explains that schools may address their lack of swimming pool
facilities with the help of the private sector in order to equip our students with
the needed skills and readiness for disasters as such.