Medical Malpractice

In the Philippine setting.

MALPRACTICE•No such crime or offense•Literally, simply means wrong practice•Generic for breach of practice, breach of profession, careless, culpable profession neglect, dereliction of duty, improper professional action, etc.•Applies to all profession

Adverse Effects of MalpracticeTime the doctor is compelled to spend in the preparation of his defense and his attendance to court proceedings.

Damage to profession reputation in the community.

Loss of public confidenceDisturbance to peace of mind in both doctor and his family

Expense involved

Quantum of Evidence Required in Medical Practice

Purpose of Testimony- to proveThe standard of care customarily practices

Probable cause of victim/patient’s injury

Legal Doctrines Related to Physicians and Hospital Malpractice

Respondeat SuperiorLet master the answer. Applies only when relation of master and servant between defendant and wrongdoer. Doctrine is inapplicable where injury occurs while servant is acting outside legitimate scope of authority.

Doctrine of Assumption of RiskAssumption of risk is a plaintiff who voluntarily assumes a risk of harm arising from the negligence of reckless conduct of the defendant cannot recover from such harm.

Borrowed EmployeeOne who is dispatch by his employer to another becomes the other’s employee for the purpose of worker’s compensation law if the other employer exercise control over him.

Borrowed ServantHis services must be loaned with his acquiescence or consent and he must become wholly subject to control and direction of the second employer, and free during the temporary period from the control of the original emloyer.

Doctrine of Last Clear ChanceThe negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff not withstanding the plaintiff negligence.

Emergency or Sudden Peril Doctrine “Emergency” Doctrine is applicable only where the emerging situation is sudden and unexpected, and is such as to deprive the actor of all opportunity of deliberation.

Res Adjudicata/Res JudicataThe term designate a point or question or subject-matter which was in controversy or dispute and has been authoritatively and finally settled by the decision of a court; that issuable fact once legally determined in conclusive as between parties in same action or subsequent proceeding.

Res GestaeThings happened and therefore, to be admissible last exception to hearsay rule, work spoken, thoughts expressed, and gestures made, must all be so closely connected to occurrence or event in both time and substance as to be a part of the happening.

Stare DecisisPolicy of the court to stand by precedent and not disturb settled point.

Quasi-DelictSometimes known as Culpa-Aquiliana, may be defined as the fault or negligence of a person, who, by his act omission, cause damage to another, to whom he is not bound by any contractual relation.

TORTSThe word “tort’’ is taken directly from the French and is a derivation of the Latin word ‘torquere’ meaning ‘to twist.’ In common law, tort is an unlawful violation of private right, not created by contract, and which gives rise to an action for damages. It is an act or omission producing an injury to another, without any previous existing lawful relation of which the said act or omission may be said to be a natural outgrowth or incident. (Robles vs. Castillo, 61 O.G. 1220, 5 C.A.R. [2s] 213).

It is also defined as a “private or civil wrong or injury, other than breach of contract,’’ for which the court will provide a remedy in the form of an action for damages

It is a violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction. There must always be violation of some duty that must arise by operation of law and not by mere agreement of the parties.

STANDARD OF CARE. The action against the doctor is commonly referred to as medical malpractice. This 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, 341 SCRA 760, 769 [2000]).

Whether or not 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 (Dr. Ninevetch Cruz v. Court of Appeals, 282 SCRA 188 [1997]).

The doctor must use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. Indeed, the standard contemplated is not what is actually 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 the ordinarily good physicians (Reyes v. Sisters of Mercy Hospital, supra. at p. 777).

General Practitioners v. SpecialistsAccording to the leading authority on Medical Jurisprudence, 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, 1988 Ed., p. 225)

On the other hand, “a specialist’s legal duty to the patient is generally considered to be that of an average specialist, not that of an average physician. A physician who holds himself out as having special knowledge and skill in the treatment of a particular organ or disease or injury is required to bring to the discharge of his duty to a patient employing him as such as a specialist, not merely that of an average degree of skill possessed by general practitioners but that special degree of skill and care which physicians, similarly situated who devote special study and attention to the treatment of such organ, disease or injury ordinarily possess, regard being in the state of scientific knowledge at the time.” (ibid., citing Bolk vs. Sshizer, 149 S.E. 2d 565 [1966])

CAPTAIN OF THE SHIP DOCTRINEThe doctor cannot blame the assisting nurse for his own omission. Thus, if a piece of gauze was left in the abdominal cavity of the patient after an operation, the surgeon cannot excuse himself from liability just because a nurse was present. The only effect is that the nurse may be held jointly and solidarily liable with him if said nurse was also negligent. The surgeon is liable because he has the duty to ascertain for himself whether there was left any foreign body in the abdominal cavity of his patient before he surtured it. (Bernal, et al. vs. Alonzo, et al., supra).

NOT WARRANTORSPhysicians are not warrantors of cures or insurers against personal injuries or death of the patient. (Cruz v. Court of Appeals, supra.; Chan Lugay vs. St. Luke’s Medical Hospital, 10 CAR 2s 415, 431 [1960]). 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.

PROOFWhether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should be offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion. (Dr. Ninevetch Cruz vs. Court of Appeals, 282 SCRA 188 [1997])

LIABILITY OF HOSPITALS AND CONSULTANTSThe “captain of the ship” described above may be a mere “consultant” in the hospital. The term “consultant” is loosely used by hospitals to distinguish their attending and visiting physicians from the residents, who are also physicians. In most hospitals abroad, the term visiting or attending physician, not consultant, is used. (ibid., note 74). The hospital itself is not liable under Article 2180 in the absence of employer-employee relationship.

The doctor of the future will give no medicine but will interest his patients in the care of the human frame, in diet and in the cause and prevention of disease.

~Thomas Edison