MEDICAL NEGLIGENCE or

MEDICAL MALPRACTICE
-a particular form of negligence which
consists in the failure of a physician or
surgeon to apply to their 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. (Cayao-Lasam v. Ramoleta)
- has substantive and procedural
requirements peculiar to it
- highest degree of diligence (Reyes
v. Sisters of Mercy Hospital)
- reasonable skill and competence
that a physician in the same or
similar locality should apply
Physician or surgeon:
- either failed to do something which a reasonably
prudent physician or surgeon would have done; or,
- or has done something which such medical or health
practitioner should not have done; and,
- that the failure or action caused injury to the
patient. (Cayao-Lasam)
- Expert testimony needed 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.
- Reason: injuries involved in
malpractice actions are determinable
only in the light of scientific
knowledge. (Cruz v. Court of Appeals)
 Two (2)- Pronged Evidence
to Prove Negligence:

a. evidence as to the recognized

standards of the medical community in
the particular kind of case; and,
b.a showing that the physician
negligently departed from this
standard in his treatment. (Garcia-
Rueda v. Pascasio)
 Elements of Medical Malpractice

a.Duty
b.Breach
c.Injury
d.Proximate Causation
1st Element: Duty

- It is said to arise when a physician-patient

relationship is created. (Lucas v. Tuaño)
- It refers to physician’s obligation to the
patient to exercise that degree of care,
skill and diligence which physicians in the
same general neighborhood and in the
same general line of practice ordinarily
possess and exercise in like cases. (Ibid.)
How Physician-Patient Relationship Established:

- When a patient engages the services of a

physician, and the latter accepts or agrees to
provide care to the patient. (Casumpang )
- The establishment of the relationship must be
consensual, which may be express or implied.
- Example of implied consent: physician’s
affirmative action to diagnose and/or treat a
patient, or in their participation in such diagnosis
and/or treatment. (Ibid.)
2nd Element: Breach of Duty

- When the patient is injured in body

or in health.
- Shall be proven through expert
testimony that the treatment
accorded to patient failed to meet
the standard of care, skill and
diligence . (Lucas)
- 3rd and 4th Elements: Injury and
Proximate Causation
- Each of the elements must be proven
through expert testimony.
- Expert witness: It is not required that
the witness must be in the same field.
- It is the familiarity or the witness’
knowledge on the subject, and not the
artificial classification by title, which
matters in medical negligence cases.
(Casumpang)
2nd Way of Proving Medical Negligence: Res
Ipsa Loquitur

- Expert testimony applies to matters within

the domain of medical science.
- While res ipsa loquitur applies to manifest
conditions clearly observable by any one.
- It requires also the application of common
knowledge and experience. (Reyes)
Examples:

a. Leaving of a foreign
object in the body of the
patient after an operation;

b. injuries sustained on
a healthy part of the body
which was not under, or in
the area of, treatment;
c. removal of the wrong part of the body
when another part was intended;

d. knocking out a tooth while a patient’s

jaw was under anaesthesia for the removal
of his tonsils; and,

e. loss of an eye while the patient was

under the influence of anaesthetic, during
or following an operation for appendicitis,
among others. (Ibid.)
Captain of the Ship Doctrine:

Under this doctrine, it is the surgeon's

responsibility to see to it that those
under them perform their tasks in the
proper manner. (Ramos v. CA)
Doctrine of Apparent Authority
- Even when no employment relationship
exists between the hospital and medical
practitioner but it is shown that the
hospital holds out to the patient that the
doctor is its agent, hospital is still
vicariously liable under Article 2176 in
relation to Articles 1431 and 1869, CC.
(Professional Services, Inc. v. Agana)
Elements:
a. Hospital acted in a manner that would lead a
reasonable person to conclude that physician was an
employee or agent of the hospital;
b. Where the acts of the agent create the appearance of
authority, plaintiff must also prove that hospital had
knowledge of and acquiesced in them; and,
c. Plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care
and prudence. (Nogales v. Capitol Medical Center)
Treatment of Attending or Visiting
Consultants:
- Hospitals exercise control in the hiring and
firing of consultants.
- Required to submit proof of completion of
residency, educational qualifications, and
accreditation by appropriate board.
(Ramos)
After being accepted by the hospitals,
they are required to:
- Attend clinico-pathological conferences;
- Conduct bedside rounds for clerks,
interns and residents;
- Conduct moderate grand rounds and
patient audits ;and,
- Perform other tasks and responsibilities.
(Ibid.)
The physician's performance is
evaluated by a peer review committee
on the basis of mortality and morbidity
statistics, and feedback from patients,
nurses, interns and residents. If the
physician falls short of the minimum
standards acceptable to the hospital or
its peer review committee, services are
normally politely terminated. (Ibid.)
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.
(Ibid.)
Doctrine of Informed Consent:
- It upholds the basic right of a patient to give
consent to any medical procedure or treatment.
(Li v. Soliman)
- According to Benjamin Cardozo, "Every human
being of adult years and sound mind has a right
to determine what shall be done with his own
body; and a surgeon who performs an operation
without his patient’s consent, commits an
assault, for which he is liable in damages.“ (Ibid.)
Elements:
a. The physician had a duty to disclose material
risks;
b. They failed to disclose or inadequately
disclosed those risks;
c. For failure to disclose, patient consented to
treatment he/she otherwise would not have
consented to; and,
d. The plaintiff was injured by the proposed
treatment. (Ibid.)
Doctrine of Unlawful Restraint:
- Under this doctrine, patient cannot be
detained in a hospital for non-payment of
the hospital bill.
- R.A. 9439 or An Act Prohibiting the
Detention of Patients in Hospitals and
Medical Clinics on Grounds of Non-
Payment of Hospital Bills or Medical
Expenses.
It shall be unlawful for any hospital or
medical clinic in the country to detain or
to otherwise cause, directly or indirectly,
the detention of patients who have fully
or partially recovered or have been
adequately attended to or who may have
died, for reasons of non-payment in part
or in full of hospital bills or medical
expenses . (Id., Section 1)
Remedy Available to Hospitals:

Demand from the non-paying patient

the issuance of promissory note with
either a mortgage of the latter’s
property or guarantee given by their
co-maker. (Id., Sec. 2)
Excluded from the coverage of
the law are those patients who
stayed in the private rooms.
(Ibid.)
Any officer or employee of the hospital or
medical clinic responsible for releasing
patients, who violates the provisions of this
Act shall be punished by a fine of not less
than P20,000.00 but not more than
P50,000.00, or imprisonment of not less than
one month but not more than six months, or
both such fine and imprisonment, at the
discretion of the proper court. (Id., Sec. 3)
- The form of restraint must be total;
that is, the movement must be
restrained in all directions.
- If restraint is only partial, e.g., in a
particular direction with freedom to
proceed in another, the restraint
made on the patient cannot make
the hospital responsible. (Manila
Doctors Hospital v. So Un Chua)
Exceptions:
a. Detained or convicted prisoner;
b. Patient suffering from a very
contagious disease where their
release will be prejudicial to public
health;
c. Patient is mentally ill;
d. Other exigent cases as may be
provided by law; or,
e. To momentarily prevent a patient from
leaving the premises or any part thereof
because they refuse to comply with some
reasonable conditions imposed by the
hospital. (Ibid.)