MEDICAL MALPRACTICE

Gonzalo B. Roman Jr.,MD.,FPSP,MBAH

TORTS

Torts are civil (not criminal) wrongs that are done to a

client.

In the Philippines, torts are referred to as quasi-delicts.

MEDICAL PROFESSIONAL LIABILITY encompasses all

possible civil liability that a physician can incur as a result
of professional acts. It is the preferred term than Medical
Malpractice.
MEDICAL PROFESSIONAL LIABILITY

MALFEASANCE performing an act that is wholly

wrongful and unlawful (e.g. illegal abortion)

MISFEASANCE improper performance of some lawful

act.

NONFEASANCE failure to do something that should

have been done.
MEDICAL PROFESSIONAL LIABILITY

NEGLIGENCE doing of some act which a reasonable

and prudent physician would not do, or the failure to do
some act which such a person should or would do.

Physicians are not expected to possess extraordinary

learning and skill, but they must keep abreast with
medical developments and techniques.
They should not experiment
Bound to advice patients if the condition to be treated is
one beyond their knowledge and skill.
The 4 Ds of Negligence

DUTY exists when physician-patient relationship is

established.

DERELICT neglectful of obligation.

DIRECT CAUSE
Whether the actions in fact caused the harm
Whether these were the proximate cause of the injury.

DAMAGE any injury that results from want of due care

or skill
Two-pronged evidence

Evidence as to the recognized standard of practice in

the particular case.
Reasonable person rule

Evidence that the physician in question negligently

departed from this standard in his treatment.
Expert witness another physician of similar stature qualified
to testify on what is the accepted norm.
Documentary evidences medical textbooks, journals,
standards published by national organizations
Doctrines applied to medical
malpractice cases

Doctrine of respondeat superior or doctrine of vicarious

liability or doctrine of imputed negligence or command
responsibility.

Doctrine of res ipsa loquitor or common knowledge

doctrine.

Doctrine of contributory negligence (doctrine of

common fault)

Doctrine of continuing negligence

Doctrines applied to medical
malpractice cases

Doctrine of assumption of risk.

Doctrine of last clear chance.

Doctrine of foreseeability.

Fellow servant doctrine

Rescue doctrine or Good Samaritan Law

DOCTRINE OF VICARIOUS LIABILITY

Art. 2176 of the Civil Code holds that every person is

liable for the consequence of his or her own negligence
when another person is injured as a result.

In some situations, this responsibility extends to the

employer.

Physicians are legally responsible for the acts of their

employees when employees are acting within the scope
of their duties
DOCTRINE OF VICARIOUS LIABILITY

Respondeat superior (let the master answer)

Responsibility of the master, principal or employer ceases

when the latter proves that he observed all the diligence
of a good father of a family to prevent damage.
Doctrine of Ostensible agent or holding out
theory or agency by estoppel.

The principal is bound by the acts of his agent with the

apparent authority which he knowingly permits the agent
to assume.
OSTENSIBLE AGENT
BORROWED SERVANT DOCTRINE

Ordinarily, resident physicians, nurses and other personnel

of the hospital are employees or servants of the hospital.

Sometimes they are temporarily under the supervision

and control of another while performing their duties.

They are deemed by borrowed from the hospital by the

someone and any wrongful act committed by them
during the period, their new and temporary employer or
master must be held liable.
CAPTAIN-OF-THE-SHIP DOCTRINE

Surgeon is likened to a ship captain who must not only be

responsible for the safety of the crew but also of the
passengers of the vessel.

Head surgeon is made responsible for everything that

goes wrong within the four corners of the operating
room.
DOCTRINE OF INDEPENDENT
CONTRACTOR

No employer-employee relationship in an independent

contractor.

Consultants maybe an independent contractors.

Resident physicians are employees of the hospitals

Test of employer-employee
relationship

The selection and

engagement of the
employee

Payment of wages

Power of dismissal

Power to control the

employees conduct.
This is the most important
test in distinguishing an
employee from an
independent contractor
DOCTRINE OF RES IPSA LOQUITUR
(Common Knowledge Doctrine)

the thing speaks for itself

Requisites of res ipsa loquitur

The accident is of a kind which ordinarily does not occur in
the absence of someones negligence.
It is caused by an instrumentality within the exclusive control
of the defendant
The possibility of contributing conduct which would make
the plaintiff responsible is eliminated
Res ipsa loquitur

Leaving of a foreign object

in the body of the patient
after an operation.
Res ipsa loquitur

Leaving of a foreign object

in the body of the patient
after an operation.

Injuries sustained on a
healthy part of the body
which was not under
treatment.
Res ipsa loquitur

Leaving of a foreign object

in the body of the patient
after an operation.

Injuries sustained on a
healthy part of the body
which was not under
treatment.

Removal of wrong part of

the body when another
part was intended.
Res ipsa loquitur

Mismatched blood transfusion.

Overdosage of medicines

Leaving swabs or sponges inside abdomen

Prolonged splinting
 DOCTRINE OF CONTRIBUTORY
NEGLIGENCE
Doctrine of common fault.

Conduct on the part of the plaintiff,

contributing as a legal cause to the
harm he has suffered

When the plaintiff own negligence

as the immediate and proximate
cause of his injury, he cannot
recover damages.

When his negligence was only

contributory, the immediate and
proximate cause of injury being the
defendants lack of due care,
plaintiff may recover damages.
DOCTRINE OF CONTRIBUTORY
NEGLIGENCE

Patient failed to take care about himself.

Choosing wrongful doctor which is apparent.

Failure to furnish necessary information (accurate history)

Refusal to submit for further test.

Failure to take suggested treatment.

Discharge against medical advice

Neglecting follow-up
DOCTRINE OF ASSUMPTION OF RISK

violent non fit injuria

Anyone who voluntarily assumes the risk of injury from a

known danger, if injured is barred from recovery.

The doctrine is predicated upon knowledge and

consent.
DOCTRINE OF LAST CLEAR CHANCE

A physician who has the last clear chance of avoiding

damage or injury to his patient but negligently fails to do
so is liable.

It may imply negligence in diagnosis or in management.

DOCTRINE OF FORESEEABILITY

A physician cannot be held liable for negligence if the

injury sustained by patient is on account of unforeseen
conditions.
Force majeure extraordinary events not foreseeable,
though foreseen are inevitable.
Act of God extraordinary natural event, without human
intervention that cannot be reasonably foreseen, avoided or
prevented.
Accident an event which happens without any human
agency, or if happening through human agency is unusual
and not expected by the person to whom it happens.
FELLOW SERVANT DOCTRINE

It provides that if a servant (employee) was injured on

account of the negligence of his fellow servant
(employee), the employer cannot be held liable.
RESCUE DOCTRINE OR GOOD
SAMARITAN LAW

Any person who, in good faith, renders emergency

medical care or assistance to an injured person at the
scene of the accident or other emergency without
expectation of receiving or intending to receive
compensation from such injured person for such service,
shall not be liable in civil damages for any act or
omission, not constituting gross negligence, in the course
of such care or assistance.
Abandonment of person in danger or abandonment of
ones own victim
(Art. 275 of Revised Penal code)

He fails to render assistance to any person whom he shall

find in an uninhabited place wounded or in danger of
dying, when he can render such assistance without
detriment to himself, unless such omission shall constitute
a more serious offense.

He fails to help or render assistance to another whom he

has accidentally wounded or injured.

He, having found an abandoned child less than seven

years of age, fails to deliver said child to the authorities or
to his family, or shall fail to take him to a safe place.
DEEP POCKET RULE

Under the rule, the tortfeasors are jointly and severally

liable, meaning the plaintiff-patient can recover
damages in full from either.
DAMAGES

Pecuniary compensation, recompense or satisfaction for

an injury sustained or as otherwise expressed, the
pecuniary consequences which the law imposes for the
breach of some duty or violation of some right.

Damages are the amounts recoverable or that which

can be awarded for the damage done or sustained.
DAMAGES THAT MAY BE RECOVERED

When death occurs as a result of medical negligence

An indemnity of P50,000.00 for the sole fact of death, without
need of any proof or evidence of damage
Indemnity for loss of earning capacity.
Moral damages for mental anguish fixed by court.
Exemplary damages if there is attending aggravating
circumstances
Attorneys fees, litigation expenses with legal interests.
COMPUTATION FOR LOSS OF
EARNING CAPACITY

Annual income = Monthly income X 12 months.

Net Annual Income = Annual income Necessary and

Incidental expenses computed at 50% of Annual income.

Life Expectancy = (2/3) X (80-Age of victim at death)

Loss of Earning Capacity = Net Annual Income X Life

expectancy.
Causes of increasing medical
malpractice cases

Tactless, irresponsible comments and unsubstantiated

remarks made by healthcare providers on treatment and
medical care given by other physicians.

Perceived arrogance, aloofness and uncaring attitude

by the healthcare provider.

Negative perception by the public on the medical

community brought about by the bad publicity and
sensational treatment by the media on alleged
negligence cases
- Bellosillo, J., Basics of Philippine Medical
Jurisprudence and Ethics, 2010 Edition
Causes of increasing medical
malpractice cases

Poor record keeping with regards to the medical records

of the patient.

Perception that physicians are generally not comfortable

with lawsuits, court processes and negative media
exposure and are thus more amenable to monetary
settlements when sued.

Commercialization of medical practice

- Bellosillo, J., Basics of Philippine Medical

Jurisprudence and Ethics, 2010 Edition
Causes of increasing medical
malpractice cases

Patients are now more aware of their rights, more

proactive and more knowledgeable on medical matters
because of their access to the internet and other media
outlets.

Bad outcomes of treatment due to perceived

incompetence of the physician.

- Bellosillo, J., Basics of Philippine Medical

Jurisprudence and Ethics, 2010 Edition