Every now and then, incidents of medical malpractice, or more aptly put, medical negligence resulting to serious physical

injuries, complications and sometimes, even death are reported. The rise in number of these incidents is what moved our legislators to propose bills on medical malpractice. The first legislative bill on medical malpractice is House Bill No. 4955 or the Medical Malpractice Act of 2002 with Pampanga Representative Oscar S. Rodriguez and Tacloban Representative Ted Failon as the proponents. It seeks to strengthen the right of a patient to quality medical care as it would prevent the occurrence of injuries and needless deaths caused by gross ignorance and negligence. Many, if not all, from the medical profession opposed the said bill arguing that practitioners will be subject to great scrutiny and harassment. Moreover, they find the bill punitive in character than trying to improve the health care system of the country which led them to hold demonstrations and successfully prevented its passage.1 Following HB 4955 is House Bill 5293 or the Health Care Liability Law of 2002 by Muntinlupa City Representative Rozzano Rufino Biazon. It seeks to ensure the safety and well-being of patients by creating an environment wherein incompetent and negligent medical practitioners shall not go unpunished. Again, medical practitioners demonstrated their opposition through a dialogue where the former overwhelmed the congressman with questions on what they coin as an anti-doctors bill. Realizing that his efforts are futile and its dangerous effects to the medical community, he dropped the bill.2 Then came various senate bills on the matter. Below is the list of bills with its corresponding author. SBN 3 An Act Declaring the Rights and Obligations of Patients and Establishing a Grievance Mechanism for Violations Thereof and for Other Purposes (Sen. Flavier) SBN 337 An Act Prohibiting the Detention of Patients in Hospitals and Medical Clinics on Grounds of Non-Payment of Hospital Bills or Medical Expenses (Sen. Osmea) SBN 607 An Act Prohibiting the Detention of Live or Dead Patients in Hospitals and Medical Clinics on Grounds of Non-payment of Hospital Bills or Medical Expenses (Sen. Villar, Jr.) SBN 121 An Act to Reduce Medical Mistakes and Medication-Related Errors Estrada)
1
1

(Sen. Ejercito

B i s n a r, P a u l. "H i s t o r y o f M e d i c a l M a l p ra c t i c e . " D o k t o r k o . c o m . F i l i p i n o P h y s i c i a n s , 1 8 D e c 2 0 0 5 . We b . 2 2 J u l 2 0 1 1 . < h t t p : / / d o k t o r k o . c o m / b l o g s . p h p ? m o d = a r t i c l e & a = 1 4 2 > .

2

Ibid.

SBN 588 An Act Declaring the Rights of Patients and Prescribing Penalties for Violations Thereof (Sen. Villar, Jr.) SBN 1720 An Act to Protect Patients against Medical Malpractice, Punishing the Malpractice of Any Medical Practitioner and Requiring Them to Secure Malpractice Insurance and for Other Purposes (Sen. Osmea) Just like the previous house bills on medical malpractice, the same were greatly opposed by the medical community for various reasons. One of these reasons is that they find the proposal and its possible passage as untimely. During the senate hearings on the subject in 2004, the representatives from the medical profession opined that the penalty is highly excessive that might lead doctors to increase the cost of medical care because they will practice their profession in a defensive manner. 3 Moreover, they warned that this might cause more doctors and/or nurses to seek for greener pastures in a different country where medical malpractice or liability for medical negligence is not that high. They suggested that instead of heightening the blame on the doctors, the legislators should provide for a better and improved training ground for medical practitioners to effectively deliver quality health care services. Second, they find the bills quite superfluous for there are current laws that can sufficiently cover the cases or offenses that medical malpractice bill seeks to cover, such as the Civil Code on quasi-delicts, the Revised Penal Code on criminal negligence and the revocation of license by the Philippine Regulatory Commission. As of late, there is still no medical malpractice law in the Philippines and neither is there a similar bill pending in Congress. Some said that malpractice bills are already dead with the continuing economic crisis but the practitioners know that the fight is not yet over. They may have won today but who knows what will happen tomorrow. To help us better understand the theoretical aspect of Medical Malpractice, the researchers found the necessity to define the following concepts: Captain of the Ship Doctrine This doctrine provides that the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. A surgeon is likened to a captain of the ship in that it is his duty to control everything going on in the operating room.4 This doctrine is usually invoked by hospitals to avoid liability due to negligence committed by surgeons while within their premises.

REPORT ON THE PUBLIC HEARING OF THE COMMITTEE ON HEALTH AND DEMOGRAPHY JOINT WITH THE COMMITTEES ON SOCIAL JUSTICE AND FINANCE ON PATIENTS RIGHTS AND MEDICAL MALPRACTICE ON SEPTEMBER 28, 2004, 10:30 A.M., SEN. TAADA ROOM, SENATE OF THE PHILIPPINES
4

P i n e d a , E r n e s t o . To r t s a n d D a m a g e s ( A n n o t a t e d ) . Q u e z o n C i t y, P h i l i p p i n e s : C e n t r a l B o o k S u p p l y, 2009. 31. Print.

Doctrine of Apparent Authority/ Principle of Ostensible Agency The doctrine involving the accountability of a principal for the acts of his agent which operates to make a principal liable for operative words spoken by an agent in the course of a transaction with another to whom the principal has represented that the agent has authority. 5 The doctrine of apparent authority is a specie of the doctrine of estoppel. Article 1431 of the Civil Code provides that [t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon.6 Doctrine of Corporate Negligence This doctrine imposes several duties on a hospital: (1) to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) to select and retain only competent physicians; (3) to oversee as to patient care all persons who practice medicine within its walls; and (4) to formulate, adopt, and enforce adequate rules and policies to ensure quality care for its patients.7 Due Diligence It is that diligence required by the circumstances, the rendering of which prevents liability for negligence.8 Such diligence as a reasonable person under the same circumstances would use. It is used most often in connection with the performance of a professional or fiduciary duty. 9 Illegal Surgery As defined in the Senate Bill proposed by Senator Sergio Osmea, it involves surgeries performed to remove healthy human organ/s without the consent of the patient, with intent to gain on the part of person or persons responsible for such surgery. 10 Medical Malpractice It is a particular form of negligence which consists in the failure of the 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.11

5 6 7 8 9

Gifis, Steven H. Barron's Law Dictionary. 5th ed. 2003. 28. Print. Professional Services, Inc. v. CA and Agana. G.R. No. 126297, February 11, 2008.

Ibid.

Gifis, Steven H. Barron's Law Dictionary. 5th ed. 2003. 146. Print. M e r r i a m - We b s t e r ' s D i c t i o n a r y o f L a w . S p r i n g f i e l d , M a s s a c h u s e t t s : M e r r i a m - We b s t e r , Incorporated, 1996. 152. Print. 10 Senate Bill 1720, An Act to Protect Patients Against Medical Malpractice, Punishing the Malpractice, of any Medical Practitioner and Requiring them to secure Malpractice Insurance and for Other Purposes 11 P i n e d a , E r n e s t o . To r t s a n d D a m a g e s ( A n n o t a t e d ) . Q u e z o n C i t y, P h i l i p p i n e s : C e n t r a l B o o k S u p p l y, 2 0 0 9 . 2 0 . P r i n t .

Negligence It is the failure to exercise that degree of care which a reasonable man of ordinary prudence would exercise under the same circumstances.12 Article 1173 of the Civil Code of the Philippines provides that the fault of negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. Preponderance of Evidence This refers to the general standard of proof in civil cases. Refers to proof which leads the trier of fact to find that the existence of the fact in issue is more probable than not.13 In this jurisdiction, this is the degree of proof required in civil cases. Principle of Respondeat Superior This doctrine is invoked when there is a master and servant relationship between the parties. It stands for the proposition that when an employer, dubbed master, is acting through the facility of an employee or agent, dubbed servant, and tort liability is incurred during the course of this agency due to some fault of the agent, then the employer or master must accept the responsibility.14 As applied to medical malpractice cases, the court holds the hospital, or any medical institution engaged in health care for that matter, vicariously liable with their employee if it is sufficiently proven that there exists an employer-employee relationship between the two. This is in consonance with the provisions of Article 2180 of the Civil Code. Res Ipsa Loquitur A principle of law which literally means: the thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinary does not happen in absence of negligence. 15 Tort A private or civil wrong or injury resulting from a breach of a legal duty that exists by virtue of society's expectations regarding interpersonal conduct rather than by contract or other private relationship.16 It is a wrongful act other than a breach of contract that injures another and for which the law imposes
12 13

Gifis, Steven H. Barron's Law Dictionary. 5th Gifis, Steven H. Barron's Law Dictionary. 5th 14 Gifis, Steven H. Barron's Law Dictionary. 5th 15 Batiquin v. Court of Appeals, G.R. No. 118231. July 5, 1996 16 Gifis, Steven H. Barron's Law Dictionary. 5th

ed. 2003. 338. Print. ed. 2003. 391. Print. ed. 2003. 443. Print. ed. 2003. 524. Print.

civil liability.17 In this jurisdiction, it is commonly referred to as quasi-delict. Vicarious Liability It is the imputation of liability upon one person for the actions of another.18 As applied to medical negligence cases, and any case involving negligence for that matter, the law provides that the liability of the employer under Article 2180 of the Civil Code is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of such employee.19 To be able to avoid liability, the employer must prove that he has exercised the diligence of a good father of a family in the selection and supervision of his employees. Medical malpractice cases are not prevalent in our jurisdiction as they are in countries such as the United States. It does not mean, however, that they do not exist. From time to time, we hear of news regarding surgeries or medical procedures gone wrong. As can be gleaned from the preceding cases, much like any other professionals, medical practitioners are expected to perform their duties in such a manner as to fully ensure the safety of the public who avails of their services. Failure on their part to exercise the necessary diligence is fatal, both literally and figuratively, to their profession. Case Number 1: Professional Services , Inc. vs. Court of Appeals and Natividad and Enrique Agana This case exhaustively discusses the determination of liability of doctors and hospitals with regards to medical malpractice cases. In this case, the parties involved are: 1) Professional Services Inc. (petitioner), owner of Medical City General Hospital; 2) Natividad Agana, the patient, and her husband Enrique; 3) Dr. Miguel Ampil, the lead surgeon who performed the surgery; and 4) Dr. Juan Fuentes, who performed a hysterectomy upon Natividad. On April 4, 1984, Natividad Agana was admitted at the Medical City General Hospital (Medical City) because of difficulty of bowel movement and bloody anal discharge. Dr. Ampil diagnosed her to be suffering from cancer of the sigmoid. Thus, on April 11, 1984, Dr. Ampil, assisted by the medical staff of Medical City, performed an anterior resection surgery upon her. During the surgery, he found that the malignancy in her sigmoid area had spread to her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Atty. Enrique Agana, Natividads husband, to permit Dr. Juan Fuentes, to perform hysterectomy upon Natividad. Dr. Fuentes performed and completed the hysterectomy. Afterwards, Dr. Ampil took over, completed the operation and closed the incision. However, the operation appeared to be flawed. In the
17

M e r r i a m - We b s t e r ' s D i c t i o n a r y o f L a w . S p r i n g f i e l d , M a s s a c h u s e t t s : M e r r i a m - We b s t e r , Incorporated, 1996. 498. Print. 18 Gifis, Steven H. Barron's Law Dictionary. 5th ed. 2003. 550. Print. 19 Filipinas Synthetic Fiber Corporation v. Wilfredo De Los Santos, et al., G.R. No. 152033. March 16, 2011

corresponding Record of Operation dated April 11, 1984, the attending nurses entered these remarks: sponge count lacking 2 announced to surgeon searched done (sic) but to no avail A few days after the operation, Natividad complained of excruciating pain in her anal region. Doctors Ampil and Fuentes, however, told her that the pain was the natural consequence of the surgical operation performed upon her. Subsequently, Natividad and her husband went to the United States to seek further treatment. After four months, she was told that she was free of cancer and was free to return to the Philippines. Upon returning, however, Natividad still suffered from pains. Two weeks later, her daughter found a piece of gauze protruding for her vagina. Dr. Ampil was promptly informed and he proceeded to Natividads house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. The gauze caused infection and another surgical operation was needed to remedy the situation. Thus, in October 1984, Natividad underwent another surgery. Thereafter, Natividad and her husband filed with the Regional Trial Court a complaint for damages against PSI, Dr. Ampil and Dr. Fuentes. Pending the outcome, however, Natividad died. On March 17, 1993, the trial court rendered judgment in favor of spouses Agana finding PSI, Dr. Ampil and Dr. Fuentes jointly and severally liable. On appeal, the Court of appeals, affirmed the judgement with modification as to Dr. Fuentes because the complaint against him was dismissed. PSI, Dr. Ampil and the Aganas filed with the Supreme Court separate petitions for review on certiorari. The Court, through its First Division, rendered a decision holding PSI jointly and severally liable with Dr. Ampil based on the following reasons:

1. There is an employer-employee relationship between Medical City and Dr. Ampil. The Court
relied on Ramos v. Court of Appeals, holding that for the purpose of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians;

2. PSIs act of publicly displaying in the lobby of the Medical City the names and specializations of
its accredited physicians, including Dr. Ampil, estopped it from denying the existence of an employer-employee relationship between them under the doctrine of ostensible agency or agency by estoppel; 3. PSIs failure to supervise Dr. Ampil and its resident physicians and nurses and to take an active step in order to remedy their negligence rendered it directly liable under the doctrine of corporate negligence. In its first motion for reconsideration, PSI contended that the Court erred in finding it liable under Article 2180 of the Civil Code, there being no employer-employee relationship between it and its

consultant, Dr. Ampil. To this, the Court held that private hospitals hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. Secondly, PSI argued that the doctrine of ostensible agency or agency by estoppel cannot apply because spouses Agana failed to establish one requisite of the doctrine, i.e., that Natividad relied on the representation of the hospital in engaging the services of Dr. Ampil. The Court held that the doctrine of apparent authority essentially involves two factors to determine the liability of an independent contractor-physician. The first factor focuses on the hospitals manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital. The second factor focuses on the patients reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. It must be stressed that under the doctrine of apparent authority, the question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question. In the case at bar, the Court was of the opinion that Enrique Aganas primary consideration when he engaged Dr. Ampils services was the fact that he worked for or was affiliated with Medical City. PSI, by its act of including Dr. Ampils name in the directory at the lobby, was stopped from claiming otherwise. Finally, PSI maintained that the doctrine of corporate negligence is misplaced because the proximate cause of Natividads injury was Dr. Ampils negligence. According to the Court, corporate responsibility includes the proper supervision of the members of its medical staff. Accordingly, the hospital has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. Unfortunately, PSI had been remiss in its duty. It did not conduct an immediate investigation on the reported missing gauzes to the great prejudice and agony of its patient. Not only did PSI breach its duty to oversee or supervise all persons who practice medicine within its walls, it also failed to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil

under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. PSI, still not satisfied with this decision, filed a second motion for reconsideration. In this motion, PSIs basic contention was that no employer-employee relationship existed between it and Dr. Ampil and as such, they should not be held liable for the latters negligence. The Court held that, indeed, there was insufficient evidence to prove that PSI exercised control over Dr. Ampils performance of his work. Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the principle of respondeat superior. Notwithstanding this, the Court still maintained that PSI is liable on the basis of the doctrine of ostensible agency and corporate negligence applied to this case pro hac vice . There is ample evidence showing that the hospital held out to patient (Natividad) that Dr. Ampil was its agent. Present are the two factors that determine apparent authority: first, the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second, the patient's reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and prudence. With regard to corporate negligence, the Court emphasized that PSI was remiss in its duty of initiating inquiry into the missing gauzes. It should have conducted a further review of what transpired during Natividads surgery to be able to pinpoint exactly what went wrong in order to prevent it from happening in the future. That Dr. Ampil negligently failed to notify Natividad of such occurrence did not release PSI from its self-imposed separate responsibility. By its inaction, therefore, PSI failed its own standard of hospital care. It committed corporate negligence. The Court awarded the Aganas P15 million in damages. Case Number 2: Dr. Victoria Batiquin and Allan Batiquin vs. Court of Appeals, Spouses Quedo Acogido and Flotilde Villegas In this case, Flotilde Villegas , a married woman, submitted to Dr. Batiquin, the Acting Head of the Department of Obstetrics and Gynecology at the Negros Ocriental Provincial Hospital, for prenatal care. On September 21, 1988, Dr. Batiquin, with the assistance of Dr. Doris Sy, performed a simple cesarian section on Mrs. Villegas at the said hospital and after 45 minutes, Mrs. Villegas delivered her first child. Soon after leaving the hospital, Mrs. Villegas to suffer abdominal pains and complained of being feverish. The abdomninal pains and fever kept on recurring and bothered Mrs. Villegas despite the medications administered by Dr. Batiquin. When the pains became unbearable and she was rapidly losing weight, she consulted Dr. Ma Salud Kho at the Holy Childs Hospital. Upon examination, Dr. Kho felt an abdominal mass one finger below the umbilicus which she suspected to be either a tumor of the uterus of an ovarian cyst. Upon further examination, Dr. Kho was impelled to suggest that Mrs. Villegas submit to another surgery to which the latter agreed.

When Dr. Kho opened the abdomen of Mrs. Villegas, she found whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber materials on the right side of the uterus embedded on the ovarian cyst, 2 inches by inch in size. Dr. Kho described the rubber material as looking like a piece of rubber glove and this caused the infection of the ovaries and consequently of all the discomfort suffered by Mrs. Villegas. The piece of rubber allegedly found was not presented in court and although Dr. Kho testified that she sent it to a pathologist, it was not mentioned in the pathologists Surgical Pathology Report. Aside from Dr. Khos testimony, documentary evidence were presented, but were declared by the trial court as mere hearsay. The trial court likewise refused to give weight to Dr. Khos testimony regarding the subject piece of rubber as Dr. Kho may not have had first-hand knowledge thereof. The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near private respondent Villegas' uterus. Thus, the Court of Appeals reversed the decision of the trial court holding that the negligence of Dr. Batiquin was established by preponderance of evidence. Petitioners appealed to the Supreme Court and raised the following issues: 1. That the Court of Appeals committed grave abuse of discretion by resorting to findings of fact not supported by evidence on record; 2. That the Court of Appeals exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with contradictions and falsities Despite the fact that questions of fact were raised, the Supreme Court still took cognizance of the case because the case is considered under one of the exceptions to the general rule, that is, when the factual findings of the trial court and the appellate court are conflicting. The Supreme Court agreed with the Court of Appeals and upheld Dr. Khos testimony. Thus, the Court said: the petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible but it carries no probative value. Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas' uterus. While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. Considering Dr. Kho is a credible witness, her positive testimony was given more credit than the negative testimony of

petitioners. Moreover, the Court applied the doctrine of res ipsa loquitur. The doctrine, which is a rule of evidence, states that where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. In the case at bar, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas' body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the cesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a byproduct of the cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas' abdomen and for all the adverse effects thereof. In this case, the Court awarded actual, moral and exemplary damages as well as attorneys fees.