BASICS OF PHILIPPINE
MEDICAL JURISPRUDENCE
AND ETHICS
2010 EDITION
JOSUE N. BELLOSILLO
BU C. CASTRO
EMMANUEL LJ. MAPILI
ALBERT D. REBOSA
ANTONIO D. REBOSA
Published by
CENTRAL BOOK SUPPLY, INC.
927 Quezon Avenue, Quezon City
Philippines
TABLE OF CONTENTS
Foreword/in
Preface/vii
AcknowledgmentsI-a.
Chapter 1
MEDICAL JURISPRUDENCE
1.1. Medical Jurisprudence defined/l
1.2. Distinction with legal and forensic medicine/2
1.3. The law of Hippocrates/3
1.
2.
3.
4.
5.
1.4.
1.5.
1.6.
1.7.
1.8.
Responsibilities to patientI \
Responsibilities to the profession / 6
Responsibilities to colleagues/l
Responsibilities to society11
Responsibilities to allied health professionals I %
Medical law/9
History of Philippine medical law/ll
Place of law in the medical profession/ll
Functions of the law in medicine/12
Sources of law/13
1.
2.
3.
4.
Statutory lawI Xh
Constitutional lawI'13
Administrative law/13
Common Iaw/l3
IX
Table of Contents
1.9
Classification of law/14
1. Public lawI'16
(a)
(b)
Criminal law/16
International law/16
(i)
(ii)
(c)
Public international law116
Private international law/16
Political law/16
(i)
(ii)
(iii)
(iv)
Constitutional law/16
Administrative law/11
I ^ w of public administration/XI
J^zw of public corporation / \1
2. Private law/Yl
(a)
(b)
(c)
Civil law/\1
Commercial law/\l
Remedial law/Yl
1.10. Medical legislation/18
1.11. Medical ethics/18
1.12. Common legal terms/18
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Torts/li
Deposition/is
Plaintiff/18
Defendant/18
Defamation/\%
Expert witness/18
GcW Samaritan LMW/19
Interrogatory/19
Malpractice/'19
Negligence/19
Table of Contents
11. Proximate cause/19
12. Reasonable care/19
Chapter 2
REGULATION OF THE MEDICAL PROFESSION
2.1. Basis of state regulation/20
2.2. Constitutional basis/20
2.3. Statutory basis/21
2.4. Reason for regulation/22
2.5. Warranties in the practice of medicine/23
Chapter 3
MEDICAL EDUCATION SYSTEM
IN THE PHILIPPINES
3.1.
3.2.
3.3.
Commission on Higher Education (CHED)/25
Association of Philippine Medical Colleges/26
Admission requirements to a medical college/26
1. National Medical Admission Test (NMA T)/27
3.4.
3.5.
3.6.
3.7.
(a)
Three-Flunk Rule/21
(b)
(c)
Academic freedom, not absolute/28
Equal protection not violated/2%
Medical school curriculum/29
Clinical clerkship/29
Medical education credentials awarded/30
Medical internship/30
1.
Medical internship progam /30
XI
Table of Contents
Chapter 4
LICENSURE AND REGISTRATION
OF PHYSICIANS
4.1.
Licensure/31
1.
2.
3.
4.
4.2.
Oath taking and conferment ceremonies/34
1.
2.
4.3.
Qualifications of candidatesfor board examinations/'31
Scope of examination/32
Documents to accompany an application for licensure examination/32
Passing rate/33
The Hippocratic Oath/ 34
Administrative Oath/3b
Certificate of registration/36
1.
2.
3.
4.
5.
6.
7.
8.
Right to be registered as physicians/36
Rule of reciprocity / 39
Groundsfor refusal of issuance of certificates of registration/41
Duty of the Board ofMedicine to issue certificates ofregistration/'42
Grounds for reprimand, suspension or revocation of registration
certificate/^
Rights of'respondents/'45
Appeal for judgment/ \6
Reinstatement/ M
Xll
Table of Contents
Chapter 5
PROFESSIONAL REGULATORY BOARD
OF MEDICINE
5.1.
5.2.
Professional Regulation Commission/48
Powers of the PRC/50
1. As administrative body/50
2. As quasi-legislative body/50
3. As quasi-judicial body/50
5.3.
Board of Medicine/52
1. Appointment of the chairman of the professional regulatory
board/52
2. Criteria for selection of nominees/ 53
3. Disqualification / 55
4. Reappointment of the chairman or member of the professional
regulatory board/56
5. Compensation of the members of the professional regulatory
boards/56
6. Purpose of compensation / 51
7. Basis of therightto salary/51
8. Prohibition against additional or double compensation/51
9. Powers, functions and responsibilities of the various professional
regulatory boards/51
5.4.
5.5.
5.6.
Authority of the Board Medicine t o determine standi n g of m e d i c a l schools/60
Applicability of right against self-incrimination before
the Board of Medicine/61
P M A with Legal Personality t o Q u e s t i o n Authority of
Board of Medicine/62
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Table of Contents
Chapter 6
PRACTICE OF MEDICINE
6.1.
6.2.
6.3.
6.4.
Practice of Medicine/64
Prerequisite to the Practice of Medicine/64
Acts Constituting Practice of Medicine/65
Cases on Acts Constituting Practice of Medicine/65
1. Acceptance of compensation without proper certificate ofregistration/65
2. Acts constitute practice of medicine whether or not done for a
fee/65
3. Acts of investment in stocks not acts constituting practice of
medicine/66
4. License to practice drugless healing cannot be implied/66
5. Advertised himself and offered services as physician/ 66
6. Falsely using thetitleofM.D. after one's name/61
6.5.
6.6.
6.7.
Acts not construed to be practice of medicine by
provision of law/67
Acts not construed to be practice of medicine by
decisions of courts/69
Faith healing, healing by prayer or divine healing/69
1. Psychic surgery and spiritualism/10
6.8.
6.9.
6.10.
Limited practice without any certificate of registration/71
Penalties for illegal practice of medicine/73
Employment of non-resident aliens/74
1. Employment permit of non-resident aliens/'l'4
2. Prohibition against transfer of'employment'/74
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Table of Contents
3. Submission of list/15
6.11.
Forms of Medical Practice/75
1. Sole proprietorship/15
2. Associate practice/l5
3. Medical group practice/16
(a)
(b)
Partnership/16
Corporation /16
Chapter 7
PHYSICIANS AND CONSTITUTION
7.1.
7.2.
Constitution/77
The Philippine State/ 77
1. People 111
2 Territory/1',
(a)
3.
The Philippine national territory/'78
Government/18
(a)
Executive branch/18
Appointingpower/'78
Removal power/18
(iii) Control power/18
(iv) Military power/19
W Pardoning power/19
(vi) Borrowing power/19
(vii) Diplomatic power/19
(viii) Budgetary power/19
(ix) Informing power/19
G)
XV
Table of Contents
(b)
Legislative branch/19
(i)
(ii)
(iii)
Appropriation power/19
Taxation power/19
Expropriation power/19
(c) judicial branch/19
4. Sovereignty /19
7.3.
The Fundamental Powers of the State/80
1. Police power/ %0
2. Power of eminent domain/ 80
3. Power of taxation/80
1A.
The Bill of Rights/80
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
7.5.
Due process/ 80
Equal protection / 81
Searches and seizure/81
Privacy of communication and correspondence / 8\
Freedom of speech and expression / 81
Liberty of abode and travel/82
R/g/f/ /<> information / 82
R/g/tf to form associations / 82
R/gA/ /o compensation in expropriation cases/'82
The impairment clause/82
Fn?e # « m /o courts/ 83
Miranda rights/83
Rights Inherent in the Practice of Medicine/83
1. Right to choose patients/ 83
2. Right to limit the practice of medicine / 8\
xvi
Table of Contents
7.6.
3.
Right to determine appropriate procedure / 8\
4.
Right to avail of hospital services/'84
Rights Incidental to the Practice of Medicine/84
1.
1.1.
Right of way while responding to an emergency call/84
2. Right to be paid for medical services rendered/84
3. Right to membership to medical societies/84
4. Right of exemption from execution of instruments and library/84
5. Right to hold certain positions in public andprivate services/85
6. Right to perform certain services/85
Citizenship/85
1.
2.
Doctrine of jus sanguinis/86
Doctrine of jus soli/86
Chapter 8
PHYSICIANS AND CONTRACTS
8.1.
Law of Contracts, elements/87
1. Manifestation of assent/ 81
2. Legal subject matter/88
3. Legal capacity to contract/88
4. Consideration / 88
8.2.
Physician-Patient Contractual Relationship/88
1. Commencement of physician-patient contractual relationship / 88
2. Nature of physician-patient contractual relationship/89
(a)
(b)
Consensual/89
Fiduciary/90
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Table of Contents
8.3.
Essential Requisites of Contracts/ 90
1. Consent/ 90
2.
Object or subject matter/91
(a)
Types of medical care/92
(i)
(ii)
General andfamily practice/92
Specialty practice/ 92
(1)
Anesthesiology/ 92
(2)
Dermatology / 93
(3)
Internal medicine/ 93
(4)
Neurology / 93
(5)
Obstetrics and Gynecology/93
(6)
Ophthalmology and Otolaryngology/94
(7)
Pathology/94
(8)
Pediatrics/94
(9)
Psychiatry/94
(10) Radiology/94,
(11) Surgery /95
(12) Public Health / 95
3. Cause or consideration /95
(a) Medical fees/96
(b) IGW.r of medical fees/96
(i)
(ii)
(iii)
(iv)
(v)
(c)
(d)
Simple contractual fee/96
Retainer fee/91
Contingent fee/91
Commission orfee splitting or dichotomous fee/98
Straight fee orpackage deal agreement/98
Reasonableness of medical fees/98
Medical billing/99
(i)
Payment at time of services/'99
xvm
Table of Contents
(ii) Billing when extension of credit is necessary/99
(iii) Using outside collection assistance/100
(e)
Salary scale of public health workers/100
(i)
(ii)
(iii)
(iv)
(f)
Additional compensation/101
(i)
(ii)
(iii)
(iv)
(v)
8.4.
8.5.
8.6.
Salary scale/100
Equality in salary scale/101
Salaries to be paid in legal tender/101
Deductions prohibited/101
Hazard allowance/102
Subsistence allowance/102
Longevity pay/103
Laundry allowance/103
Remote assignment allowance/'104
Forms of Contractual Relationship/104
Cases when there is no physician-patient relationship/105
Termination of Physician-Patient Relationship/105
1. Sample letter of withdrawal from case/106
2. Sample letter to confirm discharge by patient/101
3. Patient abandonment/101
8.7.
Defective Contracts/108
1. Rescissible contracts/108
2. Voidable contracts/108
3. Unenforceable contracts/109
4. Void contracts/111
xix
Table of Contents
Chapter 9
PHYSICIANS AND TORTS
9.1.
9.2.
9.3.
Torts/112
Professional Liability/112
Classifications of Medical Professional liability/113
1.
2.
3.
4.
9.4.
9.5.
Feasance/ \13
Malfeasance / 1V>
Misfeasance/113
Nonfeasance/113
Medical Malpractice or Negligence Cases/113
The Four D's of Negligence/114
1. Duty/114
2. Derelict/115
3. Direct cause/115
4. Damages/115
9.6.
Two-pronged Evidence/116
1. Standards of practice/116
2. Sources of proof of standard of care/116
9.7.
9.8.
Medical Malpractice/117
Sample Cases of Medical Malpractice/117
1. Unauthorised and unknown experimentation /ill
2. Failure to perform C-section andfailure to recognise and treat seizures in the periodfollowing the birth/ill
3. Surgical injury/\18
4. Failure to recognise and treat heart attack/118
xx
Table of Contents
5. Surgicalprecipitation of stroke/118
6. Wrongful amputation of arm and shoulder/119
7. Failure to diagnose cancer/119
8. Surgical injury/119
9.9.
Jurisprudence on Medical Professional Liability/120
1.
L E O N I L A GARCIA-RUEDA, vs. WILFREDO
L. PASCASIO, et al.
G.R. No. 118141, September 5, 1997/120
9.10.
9.11.
2.
ROGELIO E. RAMOS, et al. vs. COURT OF
APPEALS
G.R. No. 124354, December 29,1999/122
3.
LEAH ALESNA REYES, et al. vs.
SISTERS OF MERCY HOSPITAL, et al.
G.R. No. 130547, October 3, 2000/129
4.
PROFESSIONAL SERVICES, INC. vs.
NATIVIDAD and ENRIQUE AGANA
G.R. No. 126297, January 31, 2007/133
Doctrines applied in medical practice cases/135
Doctrine of respondeat superior or doctrine of vicarious liability or doctrine of imputed negligence or
command responsibility/135
1. Doctrine of ostensible agent or holding out theory or agency by estoppel/135
2. Borrowed servant doctrine/131
3. Captain-of-the-ship doctrine/131
4. Doctrine of independent contractor/131
5. Full time but not regular/138
xxi
Table of Contents
9.12.
Jurisprudence on respondeat superior/141
1.
9.13.
Doctrine of res ipsa loquitur or common knowledge
doctrine/142
1.
2.
3.
4.
9.14.
9.15.
9.16.
9.17.
9.18.
9.19.
ROGELIO E. RAMOS, et al. vs. COURT OF
APPEALS
G.R. No. 124354, December 29, 1999/141
Requisites of res ipsa loquitur/142
Application of res ipsa loquitur in medical malpractice/143
Res ipsa loquitur, when applicable/143
Res ipsa loquitur, when not applicable/143
Jurisprudence on res ipsa loquitur/145
1.
DR. VICTORIA L. BATIQUIN, et al. vs.
COURT OF APPEALS
G.R. No. 118231, July 5,1996/145
2.
ROGELIO E. RAMOS, et al. vs. COURT
OF APPEALS
G.R. No. 124354, December 29, 1999/150
3.
LEAH ALESNA REYES, et al. vs.
SISTERS OF MERCY HOSPITAL, et al.
G.R. No. 130547, October 3, 2000/152
Doctrine
common
Doctrine
Doctrine
Doctrine
Doctrine
of contributory negligence (doctrine of
fault)/ 152
of continuing negligence/152
of assumption of risk/153
of last clear chance/153
of foreseeability/154
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Table of Contents
1. Force majeure/154
2. Act of God/154
3. Accident/155
9.20.
9.21.
9.22.
9.23.
Fellow servant doctrine/155
Rescue doctrine or Good Samaritan Law/155
Deep pocket rule/156
Factors increasing medical malpractice cases/156
Chapter 10
PHYSICIANS AND DAMAGES
10.1.
Damages/158
1.
2.
10.2.
10.3.
10.4.
D a m n u m absque injuria/159
Actual damages/159
Moral damages/159
1.
2.
3.
4.
10.5.
10.6.
10.7.
10.8.
Damages that may be recovered/158
Computation for loss of earning capacity /159
Basis of award of moral damages/160
Conditions for award of moral damages/160
Legalprovisions mandating award of moral damages/160
Moral damages not recoverable on clearly unfounded suit/161
Temperate or moderate damages/162
Liquidated damages/162
Exemplary or corrective damages/162
Jurisprudence on Damages/162
1.
DR. NINEVETCH CRUZ vs. COURT OF
APPEALS
xxru
Table of Contents
G.R. No. 122445, November 18, 1997/162
2.
ROGELIO E. RAMOS, et al. vs. COURT
OF APPEALS
G.R. No. 124354, December 29, 1999/165
Chapter 11
PHYSICIANS AND CRIMINAL LAW
11.1.
Application of the provisions of the Revised Penal
Code/171
1. Application of the provisions of the Revised Penal Code/111
2. Criminal law/172
3. Limitations on power of Congress to enact penal laws/112
(a)
(b)
(c)
No ex postfacto law shall be enacted/112
No bill of attainder shall be enacted/112
No law that violates equalprotection clause shall be enacted/112
(d) No law which imposes cruel and unusual punishments nor
excessivefinesshall be enacted/112
4. Characteristics of criminal law/112
(a)
General/112
Exceptions:
(b)
(c)
11.2.
(i) Treaty stipulations/112
(ii) Laws of Preferential application/112
(iii) Principles of Public International Law/172
Territorial/112
Prospective/112
Felonies/173
XXIV
Table of Contents
1. Definitions/113
2. Requisites ofdolo/113
(a)
(b)
(c)
3.
Requisites ofculpa/113
(a)
(b)
(c)
4.
5.
6.
7.
8.
9.
10.
11.3.
Freedom/113
Intelligence/113
Intent/113
Freedom/113
Intelligence/113
Negligence and imprudence/ Y13
Elements offelonies/'173
Criminal liability/174
Aberratio ictus/ll4
Error inpersonae/114
Consummated, frustrated, and attempted felonies/114
Conspiracy andproposal to commitfelony /115
Grave felonies, less grave felonies andlightfelonies/'115
Circumstances affecting criminal liability/176
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Justifying circumstances/116
Exempting circumstances/111
Justifying circumstance vs. exempting circumstance/118
Elements of accident without fault or intention of causing it/119
Elements of a person who acts under the compulsion of an irresistibleforce/119
Elements of uncontrollable fear/119
Elements of insuperable cause/119
Entrapment vs. instigation/180
Mitigating circumstances/180
Aggravating circumstances/181
Alternative circumstances /184
XXV
Table of Contents
11.4.
Persons criminally liable for felonies/185
1. Who are criminally liable/185
(a) Principals/185
(b) Accomplices/185
(c) Accessories/185
2.
3.
4.
5.
11.5.
Penalties/186
1.
2.
3.
4.
5.
6.
7.
11.6.
Principals/185
Accomplices/185
Accessories/185
Accessories who are exemptfrom criminal liability/'186
Reclusion perpetual 186
Reclusion temporal/181
Prision mayor and temporary disqualification/181
Prision correctional, suspension, and destierro/181
Arresto mayor/181
Arresto menor/181
Bond to keep the peace /181
Extinction of criminal liability/187
1. Total extinction of criminal liability /181
2. Partial extinction of criminal liability/188
11.7.
Crimes against p u b l i c interest/188
1. Falsification by public officer, employee or notary or ecclesiastic
minister/188
2. Falsification by private individual and use of falsified documents/190
xxvi
Table of Contents
3. False medical certificates, false certificates of merits or service,
etc. /190
4. Usingfalse certificates/190
11.8.
Crimes against persons/190
1.
2.
3.
4.
5.
6.
Parricide/190
Murder/191
Homicide/191
Giving assistance to suicide/192
Infanticide /192
Abortion/192
(a)
(b)
(c)
(d)
(e)
Intentional abortion/192
Unintentional abortion/193
Abortion practiced by the woman herself or by herparents/193
Abortion practiced by a physician or midwife/194
Dispensing of abortive/194
7. Physical injuries/194
(a)
(b)
(c)
(d)
(e)
Mutilation/194
Serious physical injuries /194
Administering injurious substances or beverages/195
Less serious physical injuries/195
Slight physical injuries and maltreatment/195
8. Rape/195
11.9.
Crimes against personal liberty and security/196
1. Kidnapping and serious illegal detention /196
2. Slight illegal detention/191
3. Abandonment of person in danger and abandonment of one's
own victim/191
xxvii
Table of Contents
11.10. Crimes against property/198
1.
2.
3.
4.
Robbery/198
Execution of deeds by means of violence or intimidation /198
Theft/198
Qualified theft/199
11.11. Crimes against chastity/199
1.
2.
3.
4.
5.
Adultery /199
Concubinage / 200
Acts of lasciviousness/200
Qualified seduction/200
Simple seduction/200
(a)
6.
1.
8.
9.
10.
Qualified seduction vs. simple seduction/201
Corruption of minors/201
White slave trade/201
Forcible abduction/201
Consented abduction/201
Sexual perversion or unnatural sexual offenses/201
(a)
Cunnilingus 1201
(b) Exhibitionism / 202
Fellatio/202
Fetishism/202
Lesbianism / 202
Masochism/202
(g) Masturbation/202
(h) Pedophilia/202
® Sadism/202
0) Transvestism/ 203
(k) Voyeurism/203
0) Zoophilia/203
(c)
(d)
(e)
(*)
XXVlll
Table of Contents
11. Anti-Sexual Harassment Act of 1995/ 203
11.12. Crimes against the civil status of persons/207
1. Simulation of births, substitution of one childfor another and
concealment or abandonment of a legitimate child/201
2. Usurpation of civil status/201
11.13. Crimes against honor/208
1. IJbel/208
2. Slander/208
11.14.
Quasi-Offenses/208
1. Reckless negligence or reckless imprudence/208
2. Jurisprudence on reckless imprudence/209
3. Somera Case: Homicide through reckless imprudence/ 2X3
Chapter 12
HOSPITALS AND THE LAW
12.1.
Hospital defined/215
12.2.
Classification of hospitals/216
.1. As to scope of infirmity admitted/216
(a)
General hospital/ 216
(b)
Specialised hospital/216
2. Functional classification/216
(a)
(b)
(c)
(d)
Diagnostic hospital/216
Maternity hospital/216
Rehabilitation hospital/216
Surgical hospital/211
XXIX
Table of Contents
(e)
Cosmetic hospital/211
3. As to control andfinancial support/211
(a)
(b)
Public or government hospital/211
Private hospital/211
(i)
(ii)
12.3.
Private charitable or eleemosynary hospital/211
Private pay hospital/218
Vicarious liability of hospital/218
1. Government orpublic hospital/218
2. Private charitable, voluntary or eleemosynary hospital/218
(a)
(b)
(c)
(d)
3.
12.4.
12.5.
Trustfund doctrine/218
Public policy theory/218
Implied waiver theory/218
Independent contractor theory/218
Private hospital forprofit/218
Jurisprudence on vicarious liability of hospitals/219
1.
P R O F E S S I O N A L SERVICES, I N C . vs.
N A T I V I D A D and E N R I Q U E AGANA
G.R. No. 126297, January 31, 2007/219
2.
ROGELIO P. NOGALES vs. CAPITOL
MEDICAL CENTER
G.R. No. 142625, December 19, 2006/220
Jurisprudence on non-liability of hospital/225
1.
ROGELIO E. RAMOS, et al. vs. COURT
OF APPEALS
G.R. No. 124354, December 29, 1999/225
XXX
Table of Contents
12.6.
12.7
12.8
Attendance to emergencies or serious cases/228
Transfer of patient/228
Hospital Detention Law/229
Chapter 13
PHYSICIANS AND EVIDENCE
13.1.
13.2.
Evidence/231
Qualification of witnesses/231
1.
13.3.
Ordinary witness vs. expert witness/232
Physician-patient privilege/232
1. Requisites ofprivileged communications between doctor and patient/232
2. Scope of the privilege/232
3. Duration of the privilege/233
4. Cases where privilege do not apply/233
5. Legal disclosures/233
6. Duty of confidentiality extends to the hospitals/ 233
13.4.
13.5.
Jurisprudence on physician-patient privilege/234
1.
N E L L Y LIM vs. C O U R T OF APPEALS
G.R. No. 91114, September 25, 1992/234
2.
MA. PAZ F E R N A N D E Z K R O H N vs.
C O U R T OF APPEALS
G.R. No. 108854, June 14, 1994/236
Expert testimony/238
1. Presentation of expert testimonyy'239
XXXI
Table of Contents
(a) Qualifying a witness as an expert/239
(b) Admissibility of expert witness/239
(c) The asking of hypothetical questions/240
(d) It is not proper to include assumptions not supported by
evidence/241
2. Litigation of medical negligence/241
3. Expert testimony generally relied upon in malpractice suits/242
4. When expert testimony dispensed with in malpractice suits/242
5. Competent expert witnesses/242
6. Qualifications/242
13.6.
Jurisprudence on expert witness/243
1.
P E O P L E vs. ROGELIO P E L O N E S
G.R. Nos. 86159-60, February 28, 1994/243
13.7.
13.8.
13.9.
2.
DR. NINEVETCH CRUZ vs. COURT
OF APPEALS
G.R. No. 122445, November 18, 1997/245
3.
ROGELIO E. RAMOS, et al. vs. COURT
OF APPEALS
G.R. No. 124354, December 29,1999/256
4.
LEAH ALESNA REYES, et al. vs.
SISTERS OF MERCY HOSPITAL, et al.
G.R. No. 130547, October 3, 2000/258
Hearsay rule/264
Dying declaration/265
Jurisprudence on hearsay rule/265
1.
MA. PAZ FERNANDEZ KROHN vs.
COURT OF APPEALS
G.R. No. 108854, June 14,1994/265
XXXll
Table of Contents
13.10. Weight and sufficiency of evidence/266
1. Substantial evidence/266
2. Preponderance of evidence/266
3. Proof beyond reasonable doubt/266
Chapter 14
MEDICAL RECORD
14.1.
14.2.
14.3.
14.4.
14.5.
Patient's clinical record/267
What patient's clinical record includes/268
Reasons for patient's clinical record/269
Correcting a handwritten entry on patient's clinical
record/269
Right of access to medical record/269
1.
2.
3.
4.
5.
14.6.
The patient/ 269
The attending doctor/210
The hospital/210
The nurse/210
Insurance and HMO representatives/211
Types of medical records and confidentiality/271
1. Hospital medical records/211
2.
14.7.
Physicians'private office records/211
D o c u m e n t a r y evidence/271
1. Best Evidence Rule/211
2. Secondary Evidence/211
3. Parol Evidence Rule/212
xxxm
Table of Contents
Chapter 15
PHILHEALTH
15.1.
Pertinent laws/273
1. National Health Insurance Act of 1995/213
2. Republic Act No. 9241/213
3. Section 2, Article XIII of the 1987 Constitution/214
15.2.
Philippine Health Insurance Corporation/274
1.
2.
3.
4.
Exemptions from taxes and duties/214
Powers and functions/214
Quasi-judicial powers/211
The Board of Directors/218
(a) Composition/218
(b) Appointment and tenure/280
(c) Meetings and quorum/280
(d) Allowances and per diems/ 280
15.3.
15.4.
History/280
Definition of Terms/282
1. Beneficiary/282
2. Benefit Package/282
3. Capitation/282
4. Contribution/282
5. Coverage/282
6. Dependent /282
7. Diagnostic procedure/283
8. Emergency / 283
9. Employee/283
10 . Employer/283
XXXIV
Table of Contents
11. Enrollment/283
12. Fee for service/283
13.
Global budget/283
14. Government Service Insurance System/284
15. Health Care Provider /284
16. Health Insurance Identification (ID) Card/285
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
15.5.
Indigent/285
Inpatient education package/285
Member/285
Means test/285
Medicare/286
National Health Insurance Program/286
Pensioner/286
Personal Health Services/286
Philippine Medical Care Commission/286
Philippine National Drug Formulary/286
Portability/281
Prescription drug/281
Public health services/281
Quality assurance/ 281
Residence/281
Retiree/281
Self-employed/281
Social Security System/288
Treatment procedure/288
Utilisation review1288
Rehabilitation center/288
Home care and medical rehabilitation services/288
National Health Insurance Fund/288
1.
2.
3.
The basic benefit fund/289
Supplementary benefit funds / 290
Reserve fund/290
XXXV
Table of Contents
15.6.
Membership/294
1. Initial members in 1995/294
2. Classification of current members/ 294
(a)
(b)
(c)
(d)
Paying Members/294
Indigent member/294
Privately-sponsored member/294
Non-paying member/294
3. Requirementfor registration/'294
4. Requirementsfor declaration of dependents/295
5. Requirementsfor registration ofemployers/'295
15.7.
Accreditation/296
1. Requirements/296
2. Additional requirements for hospitals / 291
3. Additional requirements for physicians/ 298
15.8.
Benefit package/298
1. What the benefit package includes/298
2. What are excluded unless recommended by Philhealth/299
15.9. Premium contributions/299
15.10. Penalties/300
Chapter 16
MEDICAL E T H I C S
16.1.
16.2.
16.3.
Ethics/302
Medical ethics/302
Definition of terms/303
XXXVI
Table of Contents
1.
2.
3.
4.
5.
6.
7.
8.
9.
Ethics/303
Medical etiquette/303
Bioethics/304
Bioethical issue/304
Ethical dilemma/304
Moral reasoning/304
Values/304
Moral uncertainty/304
Moral or ethicalprinciples/ 304
(a) Autonomy/304
(b) Beneficence/305
(c) Nonmaleficence / 305
(d) Justice/305
(e) Fidelity/305
(f)
16.4.
16.4.
Thinking ethically/305
Approaches to ethical dilemma/306
1. Beneficence/309
2. Autonomy/310
3. Justice/311
16.5.
Resolving ethical problems/312
Chapter 17
CODES OF ETHICS
17.1.
17.2.
Code of ethics/310
Historical codes/314
1.
2.
Oath and Law of Hippocrates/315
The Oath ofHippocrates/316
xxxvii
Table of Contents
17.3.
17.4.
17.5.
Philippine Medical Association/318
PMA Code of Ethics of the Medical Profession/320
Board of Medicine Code of Ethics/325
Chapter 18
CASE STUDIES ON MEDICAL ETHICS
18.1.
18.2.
18.3.
18.4.
18.5.
18.6.
18.7.
18.8.
18.9.
18.10.
18.11.
18.12.
Case study re: cultural misunderstandings in the
medical care of cancer patient/340
Case study re: raising issues of culturally competent
health care for a muslim woman/357
Case study re: public guardian in charge of the medical care for a conserved patient/378
Case study re: public guardian in charge of an old
woman with multiple illnesses/380
Case study re: prevention vs. treatment in HIV/AIDS
program/381
Case study re: decision to discontinue life-sustaining
treatment/383
Case study on addressing ethical issues confronting
governments, NGOs, and pharmaceutical companies
when faced with an epidemic/386
Case Study on what should a physical therapist do
when she suspects that her patient isn't being entirely
honest with his physician/391
Case Study on the ethical questions involved when a
company is the only supplier of a high-risk, life-saving
product/393
Case Study whether physicians have a duty to refer
patients to alternative forms of therapy/395
Case study re: maternal vs. fetal rights/400
Case study on assisted suicide/404
XXXVlll
Table of Contents
Chapter 19
RIGHTS AND DUTIES OF PATIENTS
19.1.
19.2.
19.3.
Universal bill of rights of patient /407
Duties of patient/409
Dying person's bill of rights/413
Chapter 20
INFORMED CONSENT
20.1.
20.2.
Informed consent defined/412
Subject matter of informed consent/413
1. Non-consensualphysical contact/4X3
2. Non-consensual medical treatment andprocedure/ 414
(a)
20.3.
20.4.
20.5.
20.6.
GEORGETTE MALETTE vs. DAVID
SHULMAN
Ontario Court of Appeal No. 29-88, Mar. 30,
1990/414
Doctrines re informed consent/418
Elements of informed consent/419
Kinds of consent/422
Who can give informed consent/422
1.
2.
3.
4.
5.
6.
7.
The patient/ 422
The spouse/422
The eldest child/422
The parents of the patient/423
The grandparents of the patient/423
The brother or sister of the patient/ 423
The nearest kin available/423
XXXIX
Table of Contents
8.
20.7.
20.8.
20.9.
20.10.
20.11.
20.12.
20.13.
20.14.
20.15.
The State/424
Instances where no consent is needed/424
Competency/424
Test for mental capacity/425
Questions to ask/426
Assessment of consent/426
Examples of informed consent/427
Surgery/428
Research/429
Jurisprudence on informed consent/430
1.
ROGELIO P. NOGALES vs. CAPITOL
MEDICAL CENTER
G.R. No. 142625, December 19, 2006/430
APPENDICES
A P P E N D I X 1 - Republic Act No. 9502 - Universally Accessible
Cheaper and Quality Medicines Act of 2008/435
A P P E N D I X 2 - Republic Act No. 9484 - The Philippine Dental Act
of2OO7/461
A P P E N D I X 3 - Republic Act No. 9439 - An Act Prohibiting the
Detention of Patients in Hospitals and Medical Clinics on Grounds
of Non-payment of Hospital Bills or Medical Expenses/486
A P P E N D I X 4 - Republic Act No. 9173 - Philippine Nursing Act of
2002/488
A P P E N D I X 5 - EXCERPTS
FROM Republic Act No. 9165 Dangerous Drugs Act of 2002/506
xl
Table of Contents
A P P E N D I X 6 - Republic Act No. 8981 - PRC Modernisation Act of
2000/526
A P P E N D I X 7 - Republic Act No. 8423 - Traditional and Alternative
Medicine Act (TAMA) of 19971543
A P P E N D I X 8 - Republic Act No. 8344 - An Act Penalising the
Refusal of Hospitals and Medical Clinics to Administer Appropriate
Initial Medical Treatment and Support in Emergengi or Serious
Cases, Amendingfor the Purpose B.P. 702, (An Act Prohibiting the
Demand of Deposits or Advance Payments for the Confinement or
Treatment of Patients in Hospitals and Medical Clinics in Certain
Cases)/ 558
A P P E N D I X 9 - Republic Act No. 8050 - Revised Optometty Law of
1995/562
A P P E N D I X 10 - Republic Act No. 7600 - The Rooming-In and
Breastfeeding Act of 1992/580
A P P E N D I X 11 - Republic Act No. 7392 - Philippine Midwifery Act
of 1992/581
A P P E N D I X 12 - Republic Act No. 7305 - Magna Carta of Public
Health Workers/598
A P P E N D I X 13 - Republic Act No. 7170 - Organ Donation Act of
1991 (As Amended on February 20, 1995)/ 614
A P P E N D I X 14-Republic Act No. 6675-The
(As amended by R^A. 9502)/ 623
Generics Act of 1988
A P P E N D I X 15 - EXCERPTS FROM Republic Act No. 5921 An Act Regulating the Practice of Pharmacy and Setting Standards
of Pharmaceutical Education in the Philippines and of Other Purposes/631
xli
Table of Contents
A P P E N D I X 16 - Republic Act No. 5680 - Philippine Physical and
Occupational Therapy Law/635
A P P E N D I X 17 - Republic Act No. 2382 - The Medical Act of 1959
(As amended by R.A. 5946 and R.A. 4224)/650
A P P E N D I X 18 - PRC Resolution No. 06-342 (A), Series of 2006 New Rules of Procedure in Administrative Investigations in the PRC
and the Professional Regulatory Boards/669
Bibliography/699
Glossary/104
Index /719
—oOo—
xlii
Table if Contents
APPENDIX 16 - Republic Act No. 5680 - Philzppine Pf.ysical and
Occupational Therapy LawI 635
APPENDIX 17- Republic Act No. 2382- The Medical Act rf 1959
(As amended ry RA. 5946 and RA. 4224)1650
Chapter 1
APPENDIX 18- PRC Resolution No. 06-342 (A)} Series rf 2006New Rules o/Procedure in Administrative Investigations in the PRC
and the Prrfessional Regulatory BoardsI 669
MEDICAL JURISPRUDENCE
Bib/z"ograpf.yI 699
Glossaryl104
Index 1119
-oOo-
1.1. Medical jurisprudence defined.-Jurisprudence is
the philosophy of law, or the science which treats of the principles of positive law and legal relations. In the proper sense of
the word,jurisprudence is the science of law, namely, that science
which has for its function to ascertain the principles of which
legal rules are based, so as not only to classify those rules in
proper order, and show their relation in which they stand to one
another, but also to settle the manner in which new or doubtful
cases should be brought under the appropriate rules. 1
Medical jurisprudence, therefore, comprises all laws, rules,
doctrines and principles, legal opinions and decisions of competent authority regarding governance and regulation of the practice of medicine. It emphasizes the duties bf the physician to his
patients and the regulations for the practice of medicine as well
as the relation of law to medical practice.
Medical jurisprudence denotes knowledge of law in relation
to the practice of medicine. It is the branch of the law that deals
with the application of law to medicine. The subject deals with
those relations which are generally recognized as having legal
consequences. It is primarily concerned with legal rights and
responsibilities of medical practitioners with particular reference
1 Black's Law Dictionary, 6•h edition, St. Paul, Minn., West Publishing Co.
(1990), p. 854.
xlii
1
2
3
B ASICS OF PHILIPPINE M EDICAL j URISPRUDENCE AND ETHICS
MEDICAL J URISPRUDENCE
to those arising from the doctor-patient relationship. It is advantageous for a medical practitioner to have acquaintance with the
manner in which he may come in contact with the legal authorities and to have some knowledge of the legal procedure.
It is to the advantage of a physician if he is familiar with the
manner in which he may come in contact with the legal authorities and has some knowledge of the legal procedure.
Medical jurisprudence means legal aspects of practice of
medicine. For instance, a physician while prescribing medicines
for his patients is guided by certain rules and regulations. If he is
negligent towards his patients, he may have to face the law. All
the r_ules and regulations which guide a physician during his
practlce come under medical jurisprudence. 2
The term Forensic Medicine means the application of
medical knowledge (all branches of medicine including laboratory examinations) for the administration of law and justice. It is
obviously a subset of Forensic science.
. The connection between medicine and the law was perceived long before medical jurisprudence was recognized, or had
obtained a distinct appellation. It first took its rise in Germany,
and more tardily received recognition in Great Britain. Medical
jurisprudence embraces all questions which bring the medical
man ~nto contact with the law, and embraces (1) questions
affecung the civil rights of individuals, and (2) injuries to the
person.3
1.3. The Law of Hippocrates. 4-Medicine is of all the
arts the most noble; but, owing to the ignorance of those who
practice it, and of those who, inconsiderately, form a judgment
of them, it is at present far behind all the other arts. Their mistake appears to me to arise principally from this, that in the
cities there is no punishment connected with the practice of
medicine (and with it alone) except disgrace, and that does not
hurt those who are familiar with it. Such persons are the figures
which are introduced in tragedies, for as they have the shape,
and dress, and personal appearance of an actor, but are not
actor·s, so also physicians are many in title but very few in reality.
1.2. Distinction between legal and forensic medicine.-Legal medicine is concerned with the application of
medical and paramedical scientific knowledge to certain
branches of law, both civil and criminal. Its aim is to aid the
admi~str.ation of justice by correlating such knowledge and
applymg lt to the purpose of law. Medical jurisprudence, on the
other hand, denotes knowledge of law in relation to medical
p:actice. It d~als with those relations which are generally recogruzed as havmg legal consequences. It is primarily concerned
with legal rights and responsibilities of physicians with particular
reference to those arising from the doctor-patient relationship.
Whoever is to acquire a competent knowledge of medicine,
ought to be possessed of the following advantages: a natural
disposition; instruction; a favorable position for the study; early
tuition; love of labour; leisure. First of all, a natural talent is
required; for, when Nature leads the way to what is most excellent, instruction in the art takes place, which the student must
try to appropriate to himself by reflection, becoming an early
pupil in a place well adapted for instruction. He must also bring
to the task a love of labour and perseverance, so that the instruction taking root may bring forth proper and abundant
fruits.
2
Internet- http:/ /www.geradts.com/ anil/ij/vol_002_no_001 / ug002_001_1.html
accessed on June 29,2008.
3
Internet - http://en.wilcipedia.org/wiki/Medical jurisprudence accessed on
March 31, 2008.
4 From "Harvard Classics Volume 38" Copyright 1910 by P.F. Collier and Son,
Internet - http:/ I members.tripod. com/ nktiuro / hippocra.htm accessed on
March 31,2008.
4
MEDICAL J URISPRUDENCE
BASICS OF PHILIPPINE MEDICAL jURISPRUDENCE AND ETHICS
Instruction in medicine is like the culture of the productions of the earth. For our natural disposition is, as it were, the
soil; the tenets of our teacher are, as it were, the seed; instruction in youth is like the planting of the seed on the ground at the
proper season; the place where the instruction is communicated
is like the food imparted to vegetables by the atmosphere; diligent study is like the cultivation of the fields; and, it is time
which imparts strength to all things and brings them to maturity.
Having brought all these requisites to the study of medicine, and having acquired a true knowledge of it, we shall thus,
in travelling through the cities, be esteemed physicians not only
in name but in reality. But inexperience is a bad treasure, and a
bad fund to those who possess it, Vlhether in opinion or reality,
being devoid of self-reliance and contentedness, and the nurse
both of timidity and audacity. For timidity betrays a want of
power, and audacity a lack of skill. They are, indeed, two things,
knowledge and opinion, of which the one makes its possessor
really to know, the other to be ignorant.
(c)
To help with these decisions, inform and advise
your patient about the nature of their illness and
its possible consequences, the probable cause
and the available treatments, together with their
likely benefits and risks.
(d)
Keep in confidence information derived from
your patient, or from a colleague regarding your
patient, and divulge it only with the patient's
permission. Exceptions may arise where the
health of others is at risk or you are required by
order of a court to breach patient confidentiality.
(e)
Recommend only those diagnostic procedure
necessary to assist in the care of your patients
and only that therapy necessary for their wellbetng.
(f)
Protect the right of doctors to prescribe, and
any patient to receive, any new treatment, the
demonstrated safety and efficacy of which offer
hope of saving life, re-establishing heath or alleviating suffering. In all such cases, fully inform
the patient about the treatment, including the
new or unorthodox nature of the treatment,
where applicable.
(g)
Upon request by your patient, make available to
another doctor a report of your ftnclings and
treatment.
(h)
Continue to provide services for an acutely ill
patient until your services are no longer required, or until the services of another suitably
qualified doctor have been obtained.
Those things which are sacred, are to be imparted only to
sacred persons; and it is not lawful to impart them to the profane until they have been initiated into the mysteries of the
sctence.
1.
Responsibilities to patient
(a)
(b)
Do not deny treatment to any patient on the basis of their culture, ethnicity, religion, political
belief, sex, sexual orientation or the nature of
their illness.
Respect your patient's right to choose their doctors freely, to accept or reject advice and to
make their own decisions about treatment or
procedures.
5
6
B ASICS O F PHiliPPINE M EDICAL ) URISPRUD ENCE AND ETHICS
(i)
(k)
(1)
(m)
(n)
2.
MEDICAL J URISPRUDENCE
When a personal moral judgment or religious
belief alone prevents you from recommending
some form of therapy, inform your patient so
that they may seek care elsewhere.
(c)
Where a patient alleges sexual misconduct by
another doctor ensure that the patient is fully
informed about the appropriate steps to take to
have that complaint investigated.
Recognize that an established relationship between doctor and patient has value, which you
should not undermine.
(d)
Accept responsibility for your personal health,
both mental and physical, because it affects your
professional conduct and patient care.
In non-emergency situations, where you lack the
necessary knowledge, skill, or facilities to provide care for a patient, you have an ethical obligation to refer that patient onto a professional
colleague.
3.
Be responsible when placing an appropriate
value on your services, and consider the time,
skill, experience any special circumstances involved in the performance of that service, when
determining any fee.
Where possible, ensure that your patient is
aware of your fees. Be prepared to discuss fees
with your patient.
Do not refer patients to institutions or services
in which you have a financial interest, without
full disclosure of such interest.
4.
Responsibilities to colleagues
(a)
Refrain from making comments which needlessly damage the reputation of a colleague.
(b)
When an opinion has been requested by a colleague, report in detail your findings and recommendations to that doctor.
(c)
Pass on your professional knowledge and skills
to colleagues.
(d)
Do not sexually or emotionally exploit colleagues under your supervision.
Responsibilities to society
(a)
Strive to improve the standards and quality of
medical services in the community.
(b)
Accept a share of the profession's responsibility
to society in matters relating to the health and
safety of the public, health education and legislation affecting the health or wellbeing of the
community.
(c)
Use your special knowledge and skills to consider issues of resource allocation, but remember that your primary duty is to provide your
patient with the best available care.
Responsibilities to the profession
(a)
(b)
7
Build a professional reputation based on integrity and ability. Be aware that your personal
conduct may affect your reputation and that of
your profession.
Report to the appropriate body of peers any unethical or unprofessional conduct by a colleague.
8
MEDICAL J URISPRUD ENCE
B ASICS O F PHILIPPINE M EDICAL JURISPRUDENCE AND ETHICS
5.
(d)
The only facts contained in a medical certificate
should be those which you can personally verify.
(e)
When giving evidence, recognize your responsibility to assist the court in arriving at a just deciswn.
(f)
When providing scientific information to the
public, recognize a responsibility to give the
generally held opinions of the profession in a
form that is readily understood. When presenting any personal opinion which is contrary to
the generally held opinion of the profession, indicate that this is the case.
(g)
Regardless of society's attitudes, do not countenance, condone or participate in the practice of
torture or other forms of cruel, inhuman, or degrading procedures, whatever the offense of
which the victim of such procedures 1s suspected, accused or convicted.
Responsibilitz"es to allied health professionals
(a)
(b)
9
best interests of his patients. The physician
should be transparent in his relations with organizations and enterprises. He should be especially careful to remain faithful to his primary
duty to his patient.
(c)
Physicians should never sign or allow to be published any testimonial certifying the efficacy
value and superiority and recommending the
use of any drug, medicine, food product, instrument or appliance or any other object or
product related to their practice specially when
published in a- lay newspaper or magazine or
broadcast through the radio or television. When
such testimonials are published or broadcast
without his knowledge and consent, he should
immediately make the necessary rectification
and order the discontinuance thereof.
(d)
A physician should neither pay commissions to
any person who refers cases to or help him in
acquiring patient nor receive commission from
druggist, laboratory men, radiologists or other
co-workers in the diagnosis and treatment of
patients for referring patients to them.
Physicians should cooperate with and safeguard
the interest, reputation, and dignity of every
pharmacist, dentist, and nurse; because all of
them have as their objective the amelioration of
human suffering. But, should they violate their
respective professional ethics, they thereby forfeit all claims to favorable considerations of the
public and of physicians.
1.4. Medicallaw.S-Medicallaw concerns the rights and
duties of the medical profession and the rights of the patient.
Three main areas within medical law are the law on confidentiality, negligence and other torts in relation to medical treatment
and the criminal law in relation to medical practice and treatment. There are also a range of issues concerning ethics and
The physician may be involved in organizations
or enterprises including drug industries as a result of which there may arise situations where
there are conflicts in interest that involve the
s Internet - http:/ / www.prc.gov.ph/ articles.asp?sid=S&aid=2621 accessed on
March 31, 2008 and http: / / www.lawbore.net/medical accessed on April 9,
2009.
10
MEDICAL J t:RISPRUDENCE
11
B ASICS OF PHIUPPINE M EDICAL J URISPRUDENCE AND ETHICS
medical practice which are increasingly coming before the
courts.
_Questi~ns
of confidentiality arise with regard to the recording of mformation concerning the patient's health status
and acc_ess to that information by both the patient and others.
Recent 1ssues have concerned matters arising from the advent of
HIV, in relation to infected patients and infected healthcare
workers and access to information by patients about themselves.
.
Negligence suits for medical malpractice represent a boommg growth area in legal practice. Causes of action can range
from harn: caused by failure to remove all medical equipment
fr?m the ~1~e of surgery to actions for wrongful birth following a
fruled sterilization. Actions may also arise from the tort of trespass to the person when a doctor does not seek consent prior to
treatment.
The criminal law intersects with medical law at a number of
points. The first concerns the matter of consent to treatment.
Medical law requires a competent patient to consent to medical
treat~ent or the doctor will be guilty of assault and battery.
Me~cal_ law sets out when consent is not required and when a
patient 1s deemed not competent. The question of consent has
been of vital importance when cases <;:oncerning forced medical
treatment have arisen. The criminal law will also be relevant
when a patient dies while in medical care when the question of
th_e me~hcs' intention has to be determined. This question has
ans~n. m a ~umber of recent difficult cases, in particular the
conJomed twms and the decision to separate them even though
one would almost certainly die thereafter. Furthermore, medical
law intersects with criminal law to carve out immunity for medical conduct such as restraining a patient on mental health
grounds or performing a lawful abortion.
Lastly, medical law addresses a number of important ethical
questions. These include questions as to the nature, quality and
duration of life. These questions have come before the courts
recently with regard to euthanasia, reproductive technology and
sterilization of non-competent patients. These same areas have
given rise to questions as to quality of life.
1.5.
History of Philippine medical law.-The Board
of Medical Examiners was created on December 4, 1901 by
virtu~ of Public Act No. 310. The Board regulated not only the
medical profession but also the practice of midwifery. Although
the Board was under the Department of Interior, its members
were appointed by the Commissioner of Public Health upon the
advice and consent of the Board of Health.
When the government underwent reorganization in 1932
with the enactment of Public Act No. 4007, the Board of Medical Examiners was placed under the Department of Public
Instruction.
On June 20, 1959, Republic Act No . 2382 or the "Medical
Act of 1959" was enacted, leading to the creation of a separate
board for midwives on June 18, 1960. The Medical Act was
amended by Republic Act No. 4224 on June 29, 1965 and by
Republic Act No. 5946 on June 21,1969.
In 1990, the Board conducted its first fully-computerized
licensure examinations.
The Board of Medical Examiners is now called the Board
of Medicine and now one of the professional regulatory boards
of the Professional Regulation Commission of the Philippines.
1.6.
Place of law in the medical profession.-A familiar legal maxim is found in the Latin "ignorantia legis non ex cusaf'
meaning "Ignorance of the law excuses no one." Without the
maxim, which is also found in Article 3 of the Civil Code, the
12
MEDICAL J URISPRUDENCE
B ASICS OF PHILIPPINE MEDICAL JURISPRUDENCE AND ETHICS
corrupt will make social existence unbearable, abuses will increase, and ignorance will be rewarded. 6
The practice of the medical profession is not a natural right
but a privilege bestowed by the State on those who show that
they possess, and continue to possess, the qualifications required
by the conferment of such privilege. To be a physician is a
privilege burdened with conditions. There being no lifetime
guarantee, a physician has the privilege and right to practice his
profession only during good behavior.
However, the new medical law must be more complex than
this. It must somehow deal with differences of opinion between
practitioner and practitioner, as well as bero.:een practitio.ner and
patent. It must "fit in" with an age of rap1d technolog1cal and
different moral standards.
1.8.
Sources of law. 7-0ur legal system is based on several types of law.
1.
Statutory law-These are the laws that are passed by
Congress. These written codes are hard to read because of the legal terminology and format used in
them. These laws cover the rules for our relationships
with each other. The Medical Act of 1959 is an example of statutory law.
2.
Constitutional law-This refers to rights, privileges and
responsibilities that are stated in or are inferred from
the Philippine Constitution, including the Bill of
Rights. Congress may not pass laws or institute rules
that conflict with constitutionally granted rights or
rules because the Constitution is the highest law of
our country. The right to privacy is an ex::ample of
Constitutional law.
3.
Administrative law-This body of law refers to the rules
and rulings made by administrative agencies that have
been granted the authority by statute Qegislatively
passed laws) to act in this manner. An example of this
type of law are the rules and regulations passed by the
Board of Medicine to control medical practice.
4.
Common law-This type of law refers to the decisions
made by judges in court cases or established by rules
of custom and tradition. The first, or case law, is the
A doctor may be suspended or his license revoked or suspended for any misconduct showing any fault or deficiency in
his moral character, honesty, probity or good demeanour.
Recognizing that that the practice of medicine is a privilege
and not a natural right of individuals, it is hereby deemed necessary as a matter of policy in the interest of public health, safety
and welfare to provide laws and provisions covering the granting of that privilege and its subsequent use and control, and to
provide regulations to the end that the public health shall be
promoted and the public shall be properly protected against
unprofessional, improper, unauthorized and unqualified practice
of medicine and from unprofessional conduct by persons licensed to practice medicine.
1. 7. Functions of the law in medicine.-The law
serves a number of functions in medicine: (1) it provides a
framework for establishing what medical actions in the care of
patients are legal; (2) it delineates the physician's responsibilities
from those of other health practitioners; (3) it helps to establish
the boundaries of independent medical action; and (4) it assists
in maintaining a standard of medical practice by making physicians accountable under the law.
Paras Edgardo, Civil Code if the Philzppines Annotated Vol. I, 12<h ed. (1989), p.
19; see also Civil Code, Art.3.
6
13
Zerwekh, JoAnn and Jo Carol Claborn, Nursing TodC!J: Transition and Trends
(1994), pp. 312-313.
7
14
result of legal principle, stare decisis, which means that
once an issue has been decided all other cases concerning the same issue should be decided the same
way. If there is no existing legal principle, which often
happens with the rapidly expanding nursing, medical
and dental practice issues, the court may look at custom and tradition, which means the way it has always
been done.
_1.9. Classification of law.s_Th~re ~~e many ways to
classify laws, but to narrow things down the law is divided into
t:v~ bro~d categories-crimina/law and civil law. To make it easy,
civ~ law iS all laws other than criminal law, such as property law,
which governs transfer and ownership of property, and contract
law, which is the law of personal agreements; doesn't that make
things so much clearer? When a person has a grievance and it
cannot be settled any other way, then an action has to be taken
were the courts will settle the differences. This type of law is
called a tort law and it is a civil action in which an individual
asks to be compensated for personal harm done to him or her.
The harm may be either physical or mental.
Torts happen when someone is injured by the actions of
ano.ther . .Rerr:e~ber
Simpson, who was found "not guilty"
d~n~g ~s cr~rmnal tnal, but was found "guilty" during his civil
trial. This discrepancy happens because the quantum of evidence needed in civil cases is different from that in criminal as
we~ as in ad~nistrative cases. Preponderance if Evidence--superior
weight of evidence-is the quantum of evidence needed in civil
cases before the regular courts, while Proif bryond Reasonable
Doubt--not ~bsolute certainty but moral certainty or that degree
?f proof which produces conviction in an unprejudiced mindIs the quantum of evidence needed in criminal cases before
?.J.
8
MEDICAL J uRISPRUDENCE
BASICS OF PHIUPPINE MEDICAL }t.:RISPRUDENCE AND ETHICS
http://www.moneyinstructor.com/art/lawclassifying.asp accessed on July 26
2008.
,
15
regular courts, and Substantial Evidence--amount of evidence
which a reasonable mind might accept as adequate to produce a
conviction-is the quantum of evidence needed in administrative cases before the Professional Regulation Commission
(PRC).
A violation of civil law may also happen when a behavior
indirectly causes injury that starts a chain of events that ends in
death. Some torts are similar to criminal acts and that is why a
person can be held on both counts. For example, if one man
hits another in the mouth, it is possible for the assailant to be
charged by the state with assault and battery, be imprisoned,
plus be sued by the victim in a tort action of assault in which the
attacker will have to pay the victim for the damages he caused.
An important similarity between criminal law and civil law is
they have a common purpose, and this is to control people's
behavior by setting limits on what acts are permissible in this
country.
The main purpose of criminal law is to give the state the
power to protect the public from harm by punishing individuals
whose actions threaten the social order of things. In tort law, the
harm or injury is considered a private wrong, and the main
concern is to compensate the victim for the harm that was
inflicted on them. For criminal actions, the state initiates the
legal proceedings by bringing charges against the criminal, then
prosecuting him or her.
Once it is determined that a criminal law was broken, the
state will then proceed to impose a sentence against the defendant such as imprisonment, probation, or a fine, payable to the
state. In civil actions, the injured person must flle an action in
order to initiate proceedings, if the offender is found guilty, then
he or she must pay restitution to the person that was harmed.
16
MEDICAL JuRISPRUDENCE
BASICS OF PHILIPPINE MEDICAL JURISPRUDENCE AND ETHICS
(ii)
Public law is that branch or department of law which is
concerned with the state in its political or sovereign
capacity.
Administrative law is that part of the law
which fixes the organization and determines the competence of the authorities
which execute the law, and indicates to
the individual the remedies for the violation of his rights.
(ili)
Criminal law governs violations of the law that
are punished as offenses against the state or
government. Such offenses involve the welfare
and safety of the public as a whole rather than
one individual.
Law ofpublic administration is that branch of
political law which deals with the organization and management of the different
branches of the government.
(iv)
Law of public corporation is that branch of
political law which deals with public corporations.
Laws have been divided-according to the source of their
authority-into divine law which is authored by God and human
law which is authored by man. Human law is divided and subdivided as follows:
1.
17
(a)
(b)
International law regulates the intercourse of nations.
(i)
(ii)
(c)
Public international law is the body of rules
which control the conduct of independent
states in their relations with each other.
Private law is a term used to indicate a statute which relates to private matters that do not concern the public
at large.
(a)
Civil law is concerned with relations between individuals. Examples of civil law are contract law
which governs enforceable promises, and tort
law which governs acts that bring harm to a
person or damage to property caused negligently or intentionally. The physician-patient relationship is governed by the law of contracts.
Professional liability is governed by the law of
torts.
(b)
Commercial law is that branch of the law which
relates to the rights of property and the relations
of persons engaged in commerce.
(c)
&media/law is that branch of the law which prescribes method of enforcing rights or obtaining
redress for their invasion.
Private international law is that part of the
law of each state which determines
whether, in dealing with a legal situation,
the law of some other state will be recognized, be given effect, or be applied.
Political law is that branch of jurisprudence
which treats of the science of politics or the organization of government.
(i)
2.
Constitutional law is that department of law
which treats of constitutions, their establishment, construction, and interpretation,
and of the validity of legal enactments as
tested by the criterion of conformity to
the fundamental law.
18
MEDICAL J URISPRUDENCE
B ASICS OF PHILIPPI NE M EDICAL J URISPRUDENCE AND ETHICS
19
1.10. Medical legislation is the act or process of making
laws affecting the science, art and practice of medicine. Any
system of laws that sought to regulate the interaction of health
care practitioners should not restrict the application of medical
knowledge when an application of the doctor's expertise would
benefit a patient. The medical law should equally apply to all
practitioners and all patients. It should respect, in the case there
being a number of different treatment options, the rights of
patients to choose their preferred treatments. It should allow
patients harmed at the hands of incompetent practitioners some
recompense.
7.
Good Samaritan Law: Provides civil immunity to professionals who stop and render care in an emergency.
Care provided must be within the expertise of the individual.
8.
Interrogatory: A process of discovering the facts regarding a case through a set of written questions exchanged through the attorneys representing the parties
involved in the case.
9.
Malpractice: Improper performance of professional duties; a failure to meet the standard of care that resulted
in harm to another person.
1.11. Medical ethics, in a limited sense, is known as
medical etiquette; whereas in a general sense, it is concerned
with moral principles governing the conduct of physicians in
their relationship with patients, colleagues, the medical profession and the public.
10.
Negligence: Failure to act as an ordinary prudent person; a person is harmed as a result of the failure to act.
11.
Proximate cause: A legal concept referring to the cause
and effect; an injury would not have occurred but for
a specific cause.
12.
Reasonable care: The level of care or skill that is customarily used by a competent healthcare work~r -~f
similar education and experience in caring for an mdividual in the community in which the person is practicing.
1.12.
1.
Common legal terms
Torts: Civil (not criminal) wrongs committed by one
person against another person or property.
2.
Deposition: An oral investigation done under oath and
taken in writing. Purpose is to answer questions related to a specific issue.
3.
Plaintiff The person who flies the lawsuit and is seeking damages for a perceived wrongdoing.
4.
Defendant. The person who is being accused of the
wrong doing.
5.
Difamation: A civil wrong in which an individual's
reputation in the community, including the professional community, has been damaged.
6.
Expert witness: A person who has specific knowledge,
skills, and experience regarding a specific area.
.·
21
Chapter 2
REGUL\.TION OF THE MEDICAL
PROFESSION
2. t Basi~ ()f stute regularion.-The rcgulat.on of the
nu:dlcal profession, :ike iJl other profession~. is based on the
I)O!:ce powc~ of the
SIQ(C1
2.2. Constitutional ba.sis.-Thc sunsmed i(""U?C~ent
of a reservo.t of r.ationd t;aknu oon..:sung o( r..!iptoo scienW!J,
c:nt:epren<eurs, pcofcss:omls, cm.nagecs, high~level cechnica:
manpower and skil:c:d workecs and crnfts.n~en itl aU fie:ds shall
be pro•no(cd by cl--.e Stale. The Scare sh;.ll encourage: -appropriate
technotogr a.nd regul•tt ~u tra.osfer for che nit.On;ii' be.:efi~.
'The ?:tctlce of t.L professions in the Phihppin::s sba:: be
lir.".itcd to Filipmo ci tizcm, save ul et~:s presct.lxd bj·la-.·.1 1l:is
ioc:~~.;d:s the przctice o( rrcd.c-.!'loe.
Cr.lt. lnga....U, u ..,;:i:lllhn#l l..n (19S1). P· ~~.
'Pi\)'_. 11:.
V!o:~....,~. GR.
""CO"i11':'~ .\n..
No. J,..;SQ;9,J•~"•"u~· Jl, lt-,2.
Xll. )H.
St•tutooy b.aie.-Tl:e Med'c•l Act of 1?59
01
R.A.
2382, as. amer.ded govern" the reg-.;!aUon ol medical educa:ion,
licensing and prac.tic;e: or mcclidnc by physw:ians in '-'"'e COUtHt'j.
l,;nder $=ion 2-4, R.A. 2)82, L'Y of th< foEo·"ng sbll be
scfflc~m; gl'O'.;:KJ for rcponund.:~g a ph)~Cd:l, Ot for ~uspend
inR or revoki~ a. cerofiC~tc of rcg:str;ttion ;l..'io ph)·sici.u~:
I.
wh:ch j s the p OWC( (If' promct:ng thC
pul!k wel£a.re by restri.ning ·and rcgubtlng the use of Eberry
and property.'
h is wit'Un rhe police po'-\'et of the Sta~c 10 require d111
?crsons who dev-occxl the:msch·es co curing human ills sbou!cl
p05$CSS a thorough lt.now~eclge for the ptO?et (lia~sjs o(
diseases of the hmnon body, and thcit po~session of !Htch
kr.owledge can be ascet•tgioed in Qlfl examimuion of the put:es.
by eompc:te-JH petsor.~~;.:
,
2.3.
Conviction by fl ooun of competent jul'i ,dicUon oi ar.;;
cf.rn ir:~ offense involving :noralt\•rl>ilt!dc;
lrr:.monl or dishor)l)tab:e co:~duct;
lnsuUty;
••
fca\ld in the SKqui.d.OO of the cert:fic,ttt of regivra·
•
tion;
5.
Gcoss negligence. ignorance or inwmpe~ence :n the
pt:i<:.tice of llis or h~ profess:o:l res·J'tiug in -an i:'l;ury
ro or cle:uh o f the patk::t;
MCictioo to t.!cohoJc: h~·el'tl&CS or :o ar.y t.1bi1
forming
,
'•
deus rcnderi.~ him or ~r .ocorr.pettnt to
p:iic,:ti.ce his 01 her ?fCf:ss:on, or tO ;arJ (orrr. of ga:nb:iog;
Fa:se or extnvagmt or m~ethlcat aC:\•ct·dsem:::nts
wherein other 1hU,gs 1hn his aa•ne, professicn, Jmita·
bon of pncdce. cli:te l:ot.:-rs, o:Tn and ho-n: addre>s.
arc :r~ntonrd;
8.
9.
10
Per£ocm;ar.cc of or OOr.g itl an}' cr.min.tl1~rtoo,
K.1owingly issuing .my fa~se n:e&cllll ce•tif:c9:tc;
Issolng any $Ultcm::nl or spteadiflg ;. n ~· new&or r~mor
wbjch js dccoglllOI) 10 lhe d·.s.ttCI~t & :ep1.1 tal.ion of
another physida:'\ wit:ou juscifi~b~c n":Odve~
---------· ---1
r· •
,., ~
, , ,,.
~
.
...-~- ....,
~,,,.,.
-.
•
\f I
11
Aid :1g or iC'U"tl •• t dummy of c:.,c;u!ifieo or u:'lfl:R
i..slt~
12.
pc-rtoc"IIO pu:-Oc.c medicir..e;
Violation of. I) ;uovis.on of dte Code o r Ed·ics i\
•pproved by tl e Phlopp 0<' \ted:ca. huociatior- Rc·
ftuaJ of l phpiC1lll {0 allb".d a palic1\l ill dansc:r of
dejilh as no1 ~ suf(~~Cieru gro.uld fur revocar!o!l for
~spensiun of h1.1 f'fgi5.tr.uion c-ertifie:are if tbtrc js •
risk
10
Lhe l'hy~iciiln 1 :ife.
1
Sellton 28 th<reof ?'<>'·<les ,,.., any petSOO found g.al1y of
"iJ!cgal puc:Uct of nted1rbe" thflll he pun1shed by~~ fine of 001
leu chan o.:t~ thom~nd p<"\C» nor mor~ th:a.n rtn tho;.as.sncl pesos.
\lo-;lh subsidju•y imprio:onmen\ in case or insolve-ncy o: by jm.
pnsonrncnt of r.ot tess 1h~!'l one yc.u nor mou than ih-c )etl'$,
or by boc.h suc:h finr lind :tq>fih.Onmen~ in the dJsc•t.l:ion of ltte
court.
2.4. Reason (or repl•lion.-'Th.c prscticc of mcC.i.cine
in ~he Ph.iLpp:acs 11 n~ere:)' :t privilege gtanted by 1he govern·
rm::at. A nle<'Jit21l pracut1or.tr ctO:\Ot argue ctut d1e p!"'Ct!ce of
:ned.iciJ'<" is & J g"'t l>eca•uc 11'1!1 pl'i vi~c:ge could be wichdmwn b)•
tl'.e Govt.rm'Htr'H (f -:· uupcn.Jon or f"t'\'i>C'.lt.O, o( hccr.se). Tl·c
pr1Cticc or m~tLcine Js o~l .o sulr",ecl. LO the Pol ce Power of the
Stale (govec:unent) ao lf-.a', foe exa :1plc, in u:ne-1- of "''" :>e
StYere ctbm:t}, thr :O,ta~r un caUon Filipino •ncdieil.!. practitio
r.e~a. whet:tet 1hey ttkc or not, tc:1 sc:rv.e vic:r.r.u of ca!amitiet o,~,i•h
co-rpc:m u.ion of covf'\e du( •·g 1~:. txiste~c of u:;erz.e.il.C~·
ptrtoc.!. The pnc-.UC<' o! m~d:ane .$ 1 3;«t co ~a,;o:~ J"'C ro
s<Jc!. po-.."C.r \lt\ted on lht Jtgitlilt..rc: lO make such ~hoi:.SoiT'.e
and rc.-asona~le lawi not rcpt.gn.anf co che Cor.Jtirvjoo, u ic
,ha!l be o.J;~j <d o b< fot tl- good L-.1 ..-.!fare of
St<.<c
ud II> people.
L"'
Mitt h< t .. ".cr. h•l osd• n a duly hc<CJcd p/',..::Ur. ch
mej c.a.l rucut.On« hh tc«;)l<d h111 c!udes. a.-xi respo::~ihluies
11.
I'•
2J
a fn.nc.bt« or pnr.;q.N 10 Jl er..-1 tO I i pal.l'f':rs..tf 1ncl
when he &i~ to comply , .. thew: 1lu1 ts and responiibl es ~
i:lCUCS "'h.u ace e~Ued ..~~ ·,·• ...~ chart th:- Ullowi~
J.
M
I
Admio"~t ra.tivt li a_') ')'
2.
ClVll haol ~l)'
3. Crinu.r.a · :abJ.hy
2.5. \~'arrantie.lfi In 1bc:' p,._rllct uf mcdicine.~<;url•r
co sa:e o f vehtclc, medk'o~l F•IICUtltHtt r 11eLs hi\ se1v:.c-ei. ro the
public. ln the st'c o( \'tt.dt, ·htn i v.-arrttv.}' on ·l)e part of
se!Jer that tl'le vehkle will be 1unniun whhou1 a ptoh:em with..11
~r lcOlS( two yent, ur tht L-.e b.U"!tf)· \\-ill be w.):ki*" a.:.-iJ.+c :Or
u lca!)l one )'ear·. Jn 1he pntctlce of mr-~iCJ~H\ howevtr, the
Wflrnl.ntr IS not: in the form o( ;:a pc:tuJo~;l b- ::1 cht font~ o( q..D·
fKatiom. The lice•ucd medic11l l"~n:.<·tiLonr.r, th!:refMe. warrants
the fo!.:owing:
1.
'fbc l:c has k-9tmud)' gr,u·t4!td fm:n t rr..td.ical
s.chooj evldeuced !>)' 1he Kr:w urr~ess of hs coJeAc a
ploma.
2
That he hu ~.:nder:c•·e J~trun:~"'l;> ua•u:ng (St" y~u a.f~
ter g00uJU100 rrom rll':d.K t fsd·.uo~ 1ft a duf) ictruttf
v.d tcctf"d.ttd h~Sfl'll C\" .J., ncr.J J\• Us Cc.rt.!JeJ•e of
l.ntetnshljl TC"o~.l•·.~r.g. Sorr.e medtcaf ~c: ...uo.s t ni.,er,b,·
of 1hc PhiJJpp~'ts C<>Jq,.. or M...;:<in• .UPOf), si.
Luke's Quash a \ r::nllr al <.ry egc or \ (ed.une.) bve
tgL, 1'(\'tncC ~.;&to +~ ·.t; (~; )~r tt"..tt i-al co ~"!-e
ft'taduatingo nly :a.f1:r mht~i ·~ fntur.5h.p.
J.
In c~;c of specat) r IC':'I( (.. I f-~ 'tn u~raar.c:
s;x:citJ.t)· ~ ~ ,.
~~ b a tt1im~ hosp:a.! a:ac>:Ltod !01 p<olidl-.; 111 '\I m s;>« Jl<y t:><d.O:-..,
(~~ ln.lem.'t, lf ~ t.1ts:o.og:s:_ p&L-.:.Iof;.SI, ped:.at.ncu.,, n diotopS" obw<:11 \;:an 6Jil«oloy '• r;.r.-t.y
~pc~r
,-..cdJclnt) CY1Cicncecl bf the Cauliote of Spcaail}'
Tn=ng
by the '""""£ hoopito!
Thtsc c:erurx:ate. and dlplonus are the vuy fin< documen1'&1)' evxl<txu 10 be ....ntd on ...xkncc and p.....,t<d 10 1t1y
case of nulpractice lhlgttions lR coum or ad!l'UcristnuV"e hou
,.u,. a.><s of medical malp<acticc '"' heud or im-,sd&•u:d.
••I.Cd
MEDICAL EDUCATION SYSTEM
JN THE PH ILIPPINES
•ns-
J.l. Commi.,ion on Hill.,., l!du.-.oon (CIIED).'111• Sttte shall prorcc ~ foster and promote the •'<!ht or tll
atizeru 10 affordsbk quallry "lu<. · . all b~ ' •nd Wll W.
tpptopriate steps tO ensure rh.lt edu1 ~oon d~1- be ..:ctu:b&e »
ail. The S:.te shall kk.-.i.. msure ond ptott<t acad=ic frce·
dom and ahal pnomote "' cx<rat< and obo<rnr.cc (Of a..
conunutng inttllett\la.l growlh. the advancc:•n'cm or te-aming J.nd
resorch, the cle<c!opc>rn< o( t<apor<.blt aDd efforn,.. leadcf.
ship, the edocaoon of h:gh-!evel and m•cklle·le\el profe11>0mls
ond tbc <nridvnent of out hiatorical and cu~tural heri<>~
Empbua, ..,....,..,, muJl be made tbtt the m<dic:al pracot•oocr docs not wnnnt tf\y o( the rori0\\1ng:
I.
S..Cas.sful or thdutt cure of the paut:nt'J L!nes:s.
2.
There would be no milcake commmcd. a!be:t honest
rnor of jlkl&menr.
There would be any dfect in the meas'Jrc emptortd
by mtdJc:a! p~Uoner in rht t~rmenc of iOness.
3.
J
St~te-supportcd
imtittldons o( higher lear~ sha!1 gear
thw P"'C"""'' to na<lonal. ,.gionaJ or local de>·elopment
plans. Fin>ty, all '"'"""""" of ~-'gt>cr ,,._.,...,.., sh.a:l a""f>!:l'r
through their physical and tT'IItural $urroundmgJ the dignity and
bca•rr or ....~ .. tt.c:z p«~< " •.,, ·elltcnul ""d ur.cw:r
U£e.1
In p<n:>aac< of tbe aboo...,.,.._d poion, the Co:n:r....
lion on I ~gller Educouor. (CH EO) II ... aowmn~ body
COTerini both p-.1blk: and pnnt ini•J:ubo:u of t-..:g!-er edu.cttiOcl
as.,~ as ckgrce-fP"W11 pn:llgW'".S 11 a!. pott·t«:and:aty cdua
tionll mstiLurion•, public tnd ptl\'tte, in the Ph.ihpp1ncs.2 The
OI£D is the 'iP""f that " " ' - b;J";t~ ea.u-.. ir•t!!Utions to offer mcdc:al cdacaoon ptO&nms
l
.....
~~"''"'"''
T"ll).jl
k.A "122.
p.
27
Only schools, collee;n and unOV<nmes, dulr audwnl<d by
the CHED >hall be a!l.,.'rd 10 opw1e medial educorion progams.' AU a.uricubr J'fOR"'ml in education must have proper
•lllhoriutlon from lhr n ll'll pnor 10 Ihe orrenng of such
PIOI\"'m'' ( Ill' IJ 11 1hr '"~~""""' "S"'IC'J' as fu as m.dic-2l
fdurauonl\(Ont~~t
J.2. Auocloolon of l'hillpl>lne Medical Colleges.'[~ Auociarion of Philippine Medical Co!:eges os an orgoruudon of nledicd collegts tnd schools tn tht' Phl!:pPinet.. ItS aim is
to make sure thtt member schooh offer quality medlc.al educa~
uoo. lt also tdminiUC-1'1 the internship matching program in the
PhiUppincs.
3.3. Adrnfulon requirement• to a medfc:al college.The ccqu~tCrneniS for odrnlnlon tO mcdhl >chools in 1hc Philippillc> a1c govemcd uy the Medical Act of 1959 (R.A. 2382, as
amended by R A. 59-1~).
Students scekJng admlu;on to m«<k21 cout$C rnt.J$[ have a
blchdot'l degree In science: or aru.S Further, lh~ medk;U coUege
may admit ~IJ'I)' Slu d ent who has not betn convtc~ed by any cwrt
or cotnpcttnt 1un&dicdon o( sny offe-nse b"-olving moral turpi·
tude.'
from others. h u che qu~ry or a cnme :n\'o!.\;ns g!I-\"C' in-frin&etn<nl of me moralSCIIOmetll of lhc COCI'mU1111)' IS discc
guished from sootu:<>l)' IUh ~~" 1'1-.< "'"" "mont rutpttude" is cor.sidcrtd u tne'OC.T.J'li&Uing ••tver)'th.ing whtch tS done
comrl[)' lO justict, honeSt)'• or~~ mr.,..AJs. .,.
The current requirement (or ~n.t1 ••on to 1 rr.tUJctl colftar
are: (a) • record showing """l~<uon or • l»<helor's degree in
s.ci~nc:e or uu; (b) ct:ttified tNe <opy or National :..lec!ic~l Ad·
mission Test (NMA1) score, whjch is aOOvc tht pt"'encle cuo
off >er by me ltleCkll school, (c) t wul'icace of cUaJbil!ty for
en1nnce 10 • ""'dicalschool from Ihe H1gher Educaoon In••••·
tions (HOI).' Nothing in the ~fcd1cal Act of 1959'shaU be con$1tued 10 inlubit ony cotk"' or medicine from cstal~ishlng. in
~clition to the preceding. otht•• en1r:mcc rcquircmen11 that m:ay
be dc.emed ndmisSJblt:. Hence, t medical ichool m.ly rtqWre
panel inttn-iew or other requittmenu btfore admission thereLo.
1.
\iortJ hlrpicude il dtfined ~s the act or bucneu. vilene$$,
or d1e depnvtty In prtvate or social ch.IUC$ wh:ch mlO o•res tO
his fellcn· m~n, or co aocict1 in general cootruy 10 accepted and
a..scomtl'J' n;.!.t of tight tnd dut')' bc:N..·ecn man and rm.n. It is an
3C:C ot behavior thilt guvc!y viObte! moral se«..im(:nt or arccpted
moral mnd.a.tds of comrr.uniry aod b a mors!J.y cu!pJblc qu3lity
hdd to tK prucrt io l()(l'.,e criminal orrcn.su 1$ distinguiShed
1 CHEO ~~j.,., CWu
(a)
Thw-Fint /l.ok.- ln 0 r::CS •• s,n D.eg<o,
G.R. No. 89572, December 21, 1989, m;>on·
den! j~ "i'ttC 'lnlh thr p<tirioncr ohJt the
Tabhrin case wu not app:iea.b!c to pYiv·nc cc..
sponcl<nt who took 1hc NMAT lhrtt um<s and
lCN-0) ~o. ~ 1oe:.n o(lXl, An. I, f!.
•o.co ~0- l6. .. J.:01. A.A. .. P-
, \A U&2," .nmdod loy KA 1946, tG.
1
N•n;n.t Mtilu•l Ablitli4• T11t (.\'.\fAT)-~MAT is a
pte·requisite (or ldmJsslun to a medical coUese or
school. ·nu: Suprem(' Courr, In T1M.m11 ~~ G•.:r-""'\.
G.R. No 78164,Julr 31, 198', upm!d me consti1u
tionlli()• of the N\1A1' as A mcahlre ir.tmded to 1Jm1t
the •dm1ssion to medical achoots only to c~ who
have 1n.t1allj- prm-«1 their com~cnce ar.d pre-partoon
fort mtdiaJ educacion.
k A. 1la2, ., t...TICIWW \f l A. Sf" $; f'
' !lou!<\ ..... I>-.~
....
,,~
• v~. a>..'l£LEC.)6tSCJ.A 1M
'0~0 ~o.
l,' 100}
IAn«d II u monylim<s Htt r<2SOn was c1w "
upheld only the ""l"lr<m«n fot o!oe odm.ssion
one and Wei noolotng ~bout tho so aJled •w.e.
r.uok rut-" The Supttme Coun Ott$ no reoson
"h} tl,. ntk>Mi< in the 'fabhnn case CW10(
apply to the aoe at boor.~ tUoe rUed in both
thCS IS the t(ldcrntc prep1ntion of the applt
lru• may be vll£td .. last Initially by the
odw'""" out and, ind«d W1lb more reliability,
by the thl'et·flunk rule. The luter cannot be re·
prckd any lao •·alld than o!oe fonner in !he
UllL
r<guladon of the mtdcol profes>ioo. ~ d!ReOu.nk rule is lntended to iosu1ate the mc:d.ic:al
school• and 11hirna:cly the medical profession
rcom the lnU\ISion o( lhOSC not q:uahfied to be
doca>I'J.
(b)
A'-"-frw'<., ..,~-The right co q•ll·
ity cducauon is not absolute. The Contr.tution
alto p<0\'1~ thai ".-·cry cmzen hu the r-sht to
choose a pro(tSsion or course of seedy~ tubjca
to faJr, f(IWflab!c and eq:utuble admiuion and
:aadrrr..:c requ.rtments!" ihc: pn"-atc respon·
dc.nt muSt y.cld 10 the cha!!enged rule ar.d g;,·e
WJY to thosc btucr prcp1rcd. Where t'\.·cn thost
who Ju:'c c;t;.U6td m•r stm nor be ~
d..ued in crwr ~rc'llld)' <:I'O'A-dcd rr.cdicaJ school$.
thut u aJ; doe , _ . r<ISOO 10 boor those who,
bu hun, haw bem
ond foaad
EtuJ peltttc• 11:1 ...,!#t.t-The contc:r..cion
tloM o:bt c~ Rl!• ,......,. <he ecpol pcoteccon c:L."'st u not "dJ-u.kc:n. A bw docs r..o:.
lu.•-.: to optntr 'Oo':!h equal fortt oo all p=ons
,.,.eel
(t)
tt OECf ,,
_tn O.w-, Ci.R. No 19S72.,1>e<e:r.ber 21, lt!t.
"'''""'8·"
or things o:o be confomuhlc ro Anw::e Ill, 5«
oon I o( olot
Thtte aa be oo
que, bOn tbt 'l .... ~nt~ ci::sGnc:oon cua berv.oeen medhl uu<knn and othet nudentS who
ttt 00< ..!.a ed t~ tbe ~ \IAT o'ld the duttRuok rule. Th< til<& a! profm>OtO rl.rwly of
f«os the nty .,.,. of th< p<oplt, urllke other
cateen ..-nc;o. for this reason, 0<. .,.,. ~
more vig1i.t.."lt reguluaoon. Th~ tCCO\Y.'It~nt, for
eumple. •too!• bdonglt'1: ro an <<pal:)• te~p«t·
t.b:e profC'Iiir.:Jn, dact noc h: .Jd the tame ddK'"a:c
cesponsibil.tf 11 ~tat of rhe physldan and so
o«d no< be aim:larly tttotcd. 'l'here woold be
u.""«juaJ proee<bOn if IOn"..t ~-ncs fto h .Jft
pu.scd the tettl tre admitted ar.d others who
ba•-e a!Jo cp;.f.cd Itt deo.ed erunncc.ln O'.btr
words, ·what the cquar protc:ctk>n reqw:rn is
equality •moe:>& equals. 'J'hc Couu feels t~ll it is
no< cnouglo to oomp/J itM*< th< nsf!• ro ~
education u • guarantee of rhe Coouinmon:
one must t.how th1c hr is tnricJtd to it bectust:
of his pr<po."'UUO or.d p<Ot!IJ« The pnnt< o<:·
spondem haJ fa.tled the NM.AT five umes.
\tll..:e his f'<OJU:<nce • llOieW'Orthy, !0 ..y ohc
lc:3Jt, n is ccrt.arJv rr1np:xed. L.U a ~opt;c:n
lo\•c.l'
eo..,..·-
3.4. Medioal Kbool rurriculwn.-Tloc at:d>.-.. scl-oo.
a;.ri.culum Ls 2 minlm\lm of four yurs dcTJtlcn wi!h rhe fourth
y<>r ... rw: da:al dtdsl-r
l.S. Olnicsl derk1.'>ip.-The clini:al or:urun& program
m.w be~"' a,.._~·"'?-.! •ouh 1 ~
¥
V.
B.\Sics or: PHILIPPLLMuniciu. JL‘RISPRL'DEN‘(Ll‘z AM) Ermcs
86
Chapter 8
Dual allegiance of citizens is inimical to the national interest and
shall be dealt with by law.31
to
1.
Doctrine ofjm‘ mnguim's—literally means the right of
blood; the principle that a person’s citizenship is determined by the citizenship of the parents or the law
of the place of his descent or parentage.32
Doctrine offly Joli—'the law of the place of his birth;
the principle that a person’s citizenship is determined
by his place of birth.33
PHYSICIANS AND CONTRACTS
h we. do not
8.1. Law of contracts, elements.—Althoug
in many
give it much thought, the law of contracts touches us
when you
ways, practically every day of our lives. For instance,
order medications or supplies for the office, you have entered
contract,
into a contract. In fact, your employment is in itself a
though not necessarily in writing.1
Contract is a meeting of minds between two persons
glVC
whereby one binds himself, with reSpect to the other, to
something or to render some service. It is also defined as an
obligation whereby an agreement is entered into upon sufficient
consideration to do or not to do a particular thing.2
A contract is the basis of the relationship between a physician and an employer—for example, a physician and a hospital
or a physician and a nurse. It is also the basis of the relationship
that a physician has with a patient.
A contract is an agreement creating an obligation. To be
valid or enforceable, a contract must have the following four
basic elements:
1.
Manfze'stalz'on foam”! (an offer and an acceptance). The
parties to the contract must understand and agree on
the intent of the contract.
‘ Kinn, Mary E. and Derge, Eleanor F., The Medira/Amflant, 6lh ed. (1988), p. 41.
2 Civil Code, Art. 1305.
3‘ Constitution, Art. IV, §5.
‘2 Black’s Law Dicn’on‘an', 6'h ed., St. Paul, Minn, West Publishing Co. (1990), p. 862.
3‘ Had, at p. 863.
87
L
PHYSICIANS AND CONTRACTS
BAsus or PHILJPPIM: ML-‘DicAL JL'RJSl’RL‘DhNCE AND [firms
88
2.
Legal Jujb'ect matter. An obligation that requires an illegal
action is not an enforceable contract.
Legal capacz'g/ to contract. Both parties to the contract
must be adults of sound mind.
Coan'deratzo'tz. There must be an exchange of something
of value.
If any of these four elements is missing, there is no con—
tract.
8.2. Physician-Patient Contractual Relationship.—
Most of the medical negligence cases evolve because there is a
gap between the physician and the patient in the contractual
relationship. Physicians and surgeons may have failed to communicate their message to the patient about the actual medical
condition or the surgical condition of the latter, thus exposing
the physician to medical malpractice suits. In short medical
negligence cases are often due to the breach in the physicianpatient contractual relationship.
1.
Commencement fopy/Jrin'aap-atz’ent contractual relatz'ombpz'.3————
The party making the offer is known as the offeror
and the party to whom the offer is made is the offeree.
The physician-patient relationship is generally held by
the courts to be a contractual relationship that is the
result of three steps:
(a)
The physician invites an offer by establishing
availability.
03)
The patient makes an offer by arriving for
treatment.
(C)
The physician accepts the offer by undertaking
treatment of the patient.
‘ Kinn, Mary E. and Derge, Eleanor F., m Melitta/Amount, 6‘h ed. (1988), p. 41.
89
Prior to accepting the offer, the physician is under no obligation, and no contract exists. Once the
physician has accepted the patient, however, an implied contract does exist that the physician (1) will
treat the patient, using reasonable care, and (2) p05sesses the degree of knowledge, skill, and judgment
that might be expected of another physician in the
same locality and under similar circumstances. It is ex—
tremely important that no express promise of a cure
be made, for this then becomes part of the contract.
The patient’s part of the agreement includes the
liability for payment for services and a willingness to
follow the advice of the doctor. Most physician—
patient relationships are implied contracts.
After the physician—patient relationship has been
established, the physician is obligated to attend the patient as long as attention is required, unless a special
agreement is made.
Nature fopjorz‘a‘anp-atz'ent contractual re/atz'ombpi
(a)
Comemua/.—The contractual relationship is
based on mutual consent. The Physician—Patient
Relationship is a contract. The contract is per—
fected by mere consent of the parties. Article
13050f the Owl Code, contract is defined as “a
meeting of minds between two persons whereby
one bin'ds him-self, with respect to the other, to
give something or to render some service.” The
patient solicits the service of the physician or a
health professional and the latter agrees to ren—
der such service, the relationship is evidently
consensual because both parties agree. The contract is deemed perfected from the moment
there is an agreement between the offer and the
PHYsuMNs AND (,‘rwiRM'ls
Basics or— PHILIPPINE ML-DicAL JuaisPaton-Mi:- AM) ETHlCS
90
isfactorily. The treatment/care to be given
must be specified.
acceptance with respect to the object and the
cause which shall constitute the contract.
(b)
P1"dua'my.—The contractual relationship is based
on mutual trust and confidence. This is vital to
(11)
I
the diagnostic and therapeutic process. The patient must be able to communicate all relevant
information about an illness or injury in order
for the physician to make accurate diagnoses
and provide optimal treatment recommenda—
tions. Physicians are obliged to refrain from divulging confidential information.
Consent—The first element of a contract which should
be intelligently given with an exact idea of what it re—
fers to free and spontaneous by the contracting parties. Informed consent is related to the right of the patient to information and the right of the patient to
self-determination.
(a)
nun-
n—e
v - «ow
v—v
«an-.
1.
point a legal guardian who could give the
consent.
Third, the consent must be given volun—
tarily, without force or undue pressure. A
contract where consent is given through
mistake, violence, intimidation, undue influence, or fraud is voidable."
Errefltm'l element; fo/ega/JI/ fleertz'z/e comm/t
(i)
4 Civil Code, Art. 1318.
First, the consent must be manifested by
the concurrence of the offer and accep—
tance. He must thoroughly understand
the hazardous procedure or treatment
program, its risk and benefits and alternative procedures. He must have the opportunity to have all questions answered sat—
Second, the person giving consent must
be of legal age and mentally and physically
competent. The age of emancipation is
now 18. Parents are usually the legal
guardians of pediatric clients and there«
fore are the persons who must sign consent forms.
The following cannot give consent to a
contract: (1) Unemancipated minors; (2)
Insane or demented persons, and deafmutes who do not know how to write.5 In
case of incapacity, the persons authorized
by law to give consent are spouse, the
children, or the parents, the legal guardian
appointed by the court. In case no person
is available, one may ask the court to ap—
-r"V.'u ¢V-—‘I|
8.3. Essential Requisites of Contracts.4—There is no
contract unless the following requisites concur: (l) Consent of
the contracting parties; (2) Object certain which is the subject
matter of the contract; and (3) Cause of the obligation which is
established.
0]
2.
Ojb'ect or rujb'ect mallet—The object or subject matter of
the Physician—Patient Relationship is the medical service. The object must not be outside the commerce of
men. For example, a cadaver is not an object in the re~
lationship because it is outside the commerce of man.
5 Civil Code, Art. 1327.
6 Civil Code, Art. 1330.
92
B.\si(_s or Pi-umeMa Minion JL’RISPRL'DlzNLI: AM) Ermcs
It must not be contrary to law (e.g., abortion), morals
(e.g., euthanasia), good customs (cg, circumcision for
other tribes or religion is unacceptable), public order
(e.g., HIV infected individual cannot ask the physician
that he donates blood for transfusion for obvious reasons)or public policy (e.g., Although the Organ Donation Act allows organ transplantation to save lives, it
is, however, against public policy for a patient with
end stage kidney disease to buy [ddney commercially
from a poor healthy living donor).7
PHYsiuANs AND Coma/«Ts
(2)
of the skin, hair, and nails.
(3)
Internal madman—Internists are experts in the medical diagnosis and
treatment of adult disorders, as well
as in the areas of health maintenance and wellness. There are mul—
tiple sub-specialties within internal
medicine, including allergy, cardiology, endocrinology, gastroenterol—
ogy, gerontology, hematology, in—
fectious disease, neprhrology, oncology, pulmonary diseases, and
rheumatology.
(4)
Neurology—Generally, the neurologist w111' manage infectious, metabolic, degenerative, and systematic
involvement of the nervous system.
(5)
Obrtem'a and C}nero/ogy.—-Obstetrics
is the specialty involved in the care
and management of women during
pregnancy, labor, delivery, and the
puerperium. Gynecology is the specialty devoted to the medical and
surgical treatment of diseases of
women, especially those of the re—
productive organs and functions.
Up“ jo‘medim/ rare8
0)
(11")
T
General andfamj/ prartzt'e.
he physician
who does not specialize or limit his or her
practice is said to be in general practice.
Speaa’tjl' practice—Many physicians have a
special interest in a particular branch of
medical practice and eventually direct
their efforts to becoming expert in their
chosen field.
(1)
Anertbm'a/ogy.—An anesthesiologist
is a physician who administers local
and general anesthesia, usually to
prepare and maintain a patient for
surgery, and in some cases for relief
of pain.
7 Civil Code, Art. 1347.
" ki'nn, Mary E. and Derge, Eleanor, The Mca’ira/ Ami/an), 6 ed. (1988), pp. 25—
2‘).
are
medical doctors who have extensive
specialized training in the medical
and surgical treatment of disorders
Impossible services cannot be the object of a
contract. The object of the Physician—Patient Relationship is just to render medical services and not to cure
the disease.
(3)
Dermatology—Dermatolt)gists
93
98
cian cannot deliver, he may be liable for
breach of contract. Mere dissatisfaction
with the medical services will not defeat
payment to the physician, otherwise, no
physician could legally claim compensation for the medical services rendered.
(iv)
Commission orfee mlzm'hg or dz'cbotomourfee.—
Sharing a fee with another physician,
laboratory, or drug company, not based
on services performed. Fee splitting,
whether with another physician, a chmi'c
or laboratory, or a drug company, is considered unethical.
(V)
(0
The amount and character of the service
rendered;
(11")
(111”)
(iv)
(V)
The novelty and difficulty of the medical
or surgical cases involved;
(vi)
The skill and experience called for in the
performance of the services;
(“1”)
The
(“11'”)
The results secured; and
(xx)
(d)
Labor, time, and trouble involved;
The nature and importance of the busi—
ness in which the services were rendered;
professional character
standing of the physician;
and
social
Whether the fee is absolute or contingent.
illediml billing.”—The payment for medical ser~
vices is accomplished in three ways:
(i)
Pry/lien! at lime of rennin—Every practice
in which there are patient visits should
stress time-of-service collection. This is
especially important in an off1ce«based
primary care practice because many of
these office visits are uninsured and may
be difficult to collect later. If patients get
into the habit of paying their current
charges before they leave the office, there
are no further billing and bookkeeping
expenses, and there is not time for infla—
tion to decrease the value of the account.
(ii)
Billing wben extension f0 mdit it mummy—l n
some types of medical practice, particularly those involving large fees for surgery
or long—term care, it becomes necessary to
extend credit and establish a regular sys—
tem of billing. This requires informing the
patient of:
Straight fee or par/Edge deal agreement—It is
an agreement whereby the physician
agrees to perform a medical service on a
patient inclusive of the hospital and laboratory expenses, operating expenses, or
medicine, and other incidental expenses.
A certain‘ fee is paid for the whole medical
or surgical service package.
Rtwonablener: fo medu'alfeer—The following are
circumstances to be considered in determinm'g
reasonableness of a claim for medical fees:
99
PHYSICIANS AND Commas
BASILs 0F PHIUPPI\.T-. MFDICAL Jl'RlSPRl'DF.\-(‘I~. AM) Emits
The responsibility imposed;
“ Kin"n, Mary E. and Derge, Eleanor F., Tl): Mediral Amj'tanl, 6‘h ed. (1988), pp.
230247.
100
PHYSK‘IANS AND Commas
BASH s or PHILIPPIM; Villatnmi. _lL'RlSI’Rl'DL‘-.\(.L~ AM) E'nucs
(1)
(2)
(Hi)
essary to pay the difference between that
received by nationally-paid and locally—
paid health workers of equivalent positions.
\What the charges Will be;
What professional
charges cover; and
services
these
The credit policy of the office.
(3)
Uring outside roller/ion ambiance—If the patient cannot or will not pay, the physician
(111m)
may use a collection agency or collect
through the court system.
Sa/ag/ tea/e fopub/ir beg/lb workman—In the de—
termination of the salary scale of public health
workers, the provisions of Republic Act No.
6758 shall govern, except that the benchmark
for Rural Health Physicians shall be upgraded to
Grade 24.
(11")
Equally in ra/ag/ scale—The salary scales
of public health workers whose salaries
are appropriated by a city, municipality,
district, or provincial government shall
not be less than those provided for public
health workers of the National Govern—
ment: Prow'ded, That the National Government shall subsidize the amount nec—
” The Magna Carta of Public Health Workers (RA. 7305), §19
Sa/arz'er to be paid in legal tender.-—Salaries of
public health workers shall be paid in legal tender of the Philippines or the
equivalent in checks or treasury warrants:
Prow'ded, however, That such checks or
treasury warrants shall be convertible to
cash in any national, provincial, city or
municipal treasurers’ office or any banking institution operating under the laws of
the Republic of the Philippines.
Dedum'am prohibited—No person shall
make any deduction whatsoever from the
salaries of public health workers except
under specific provision of law authorizing such deductions: me’dea’, lmwever, That
upon written authority executed by the
public health worker concerned, a) lawful
dues or fees owing to any organization/
association where such public health
worker is an officer or member, and b)
premiums properly due all insurance poli—
cies, retirement and medicare shall be
considered deductible.
.um
Salary vale—Salary scales of public health
workers shall be provided progression:
Pmm‘dea’, That the progression from the
minimum to maximum of the salary scale
shall not extend over a period of ten (10)
years: Prow'de,d fart/Jar, That the efficiency
rating of the public health worker con—
cerned is at least satisfactory.
(f)
v-w'f‘v'm
(i)
mm-s
(6)
10]
Additional compematz’on.—Notwithstanding Section 12 of Republic Act No. 6758, public health
workers shall receive the following allowances:
hazard allowance, subsistence allowance, lon-
104
PHYblCIANs AM) (loNrRAtrs
BAsics oi Pumvmm: lVlliDlC/‘u. JL'RISPRI'Dl-iNCI: AND Emits
(V)
concerned taking into account existing
laws and prevailing practices.17
The cession, repudiation or renunciation of hereditary
rights or of those of the conjugal partnership of gains;
Remote
isolated stations shall be entitled to an in-
The power to administer property, or any other
power which has for its object an act appearing or
which should appear in a public document, or should
prejudice a third person;
centive bonus in the form of remote assignment allowance equivalent to fifty
The cession of actions or rights proceeding from an
act appearing in a public document.
amg'nment
allowance—Doctors,
dentists, nurses, and midwives who accept
assignments as such in remote areas or
percent (50%) of their basic pay, and shall
be entitled to reimbursement of the cost
A signed consent is required for all routine treatment,
hazardous procedures or treatment programs.
of reasonable transportation to and from
such remote post or station, upon assum-
8.5. Cases when there is no physician-patient relationship20
1.
A
H
8.4. Forms of contractual relationship—A contract
may be written or oral, express or implied. In express contract,
the agreement is formal and mentioned either verbally or in
writing. On the other hand, an implied contract, a concluded or
inferred agreement from the overt acts or conduct of the parties
which the law presumed or ascribed as the manifestation of
intention of parties to enter into a contract.
v:
w-
ing or leaving such position and during
official trips.18
When the physician was appointed by the trial court to
examine the accused and to report whether he was in—
sane
afimvnw’fimw v
8.6. Termination of physician-patient relationsh1'p.2‘—The physician—patient relationship may be terminated
:1—
2" Solis, Pedro P., A'Iedzr'a/jurisprudence (1980), p. 32.
\
" R.A. 7305, §24
w RA. 7305, §25
1‘) Civil Code, An. 1358.
The relation between a surgeon performing an autopsy and the body of a dead person
Casual questionings asked of a physician in an unordinary place
3‘ Kinn, Mary E. and Derge, Eleanor F., Tl): Mea’zr'a/Arm'lant, 6‘h ed. (1988), pp.
41—42.
mw.m. ;s.
Acts and contracts which have for their object the
creation, transmission, modification or extinguishment
of real rights over immovable property; sales of real
property or of an interest therein as governed by Articles 1403, No. 2, and 1405 of the Civil' Code;
A pre-employment physical examination by the physician for the purpose of determining whether the applicant is suitable for employment
Physical examination for the purpose of determining
eligibili'ty for insurance
The following must appear in a public document.”
1.
105
107
BAsics or- PHILIPI’INI‘ ancm. JL‘RISI’RL‘DENU; AM) ETHILS
PHYSK ms AM) CoNTRMJ‘s
by the physician or the patient. When the physician terminates
the relationship, the patient must be given notice of the physi—
cian’s intention to withdraw in order that the patient may secure
another physician. The physician may write a letter of withdrawal from the case to the patient. The letter should state that
professional care is being discontinued, that the physician wtl'l
turn over the patient’s records to another physician, and that the
patient should seek the attention of another physician as soon as
possible. The letter should be sent by certified or registered mail
with a return receipt requested. The returned receipt should be
attached to a copy of the letter and retained permanently. The
patient’s record should include details of the circumstances
under which the physician is withdrawing from the case, to
protect the physician against a suit for abandonment. Before
withdrawing, the physician may want to take into consideration
the condition of the patient, the size of the community, and the
avatl'abilJth of other physicians.
If you so desire, I shall be available to attend you
for a reasonable time after you have received this letter,
but in no event more than fifteen days.
106
In the event that the patient terminates the relationship, the
termination of the contract and the circumstances surrounding it
should be carefully documented in the physician’s records. This
may be accomplished by the physician’s confirming the discharge by a certified mail' letter.
1.
Sample letter ofu'it/Jdrawa/fmm (are
Dear (patient):
I find it necessary to inform you that I’m withdrawing from providing you medical care for the reason that
In my opinion your condition requires continued
medical treatment by a physician. If you have not already done so, I suggest that you employ another physician without delay.
When you have selected a new physician, I would
be pleased to make available to him or her a summary
of the diagnosis and the treatment you have received
from me.
Very truly yours,
, MD.
2.
Sample letter to tonfmn dirt/Mtge ky patient
Dear (patient):
This will confirm our telephone conversation of
today in which you discharged me from attending you
as your physician in your present ill‘ness.
As your condition requires medical attention, I suggest that you promptly place yourself under the care of
another physician.
At your request, I would be pleased to make avatl"able to him or her a copy of your medical chart or a
summary of your treatment.
Very truly yours,
, M.D.
Patient abandonment is the termination of a professional
relationship between the physician and the patient at
an unreasonable time and without giving the patient
the chance to find an equally qualified replacement.
Abandonment involves intent on the part of the physician to terminate the contractual relationship.
8.7.
Mmr'rz'b/e [onlmtttLThe following contracts are re—
scissible:
(8)
(b)
Those which are entered into by guardians
whenever the wards whom they represent suffer
lesion by more than one—fourth of the value of
the things which are the object thereof;
preceding number;
(C)
3.
Unefnorteab/e contrarIJ.Z4—-The following contracts are
unenforceable, unless they are ratified:
(21)
Those entered into in the name of another person by one who has been given no authority or
legal representation, or who has acted beyond
his powers;
(b)
Those that do not comply with the Statute of
Frauds as set forth in this number. In the fol—
lowing cases an agreement hereafter made shall
be unenforceable by action, unless the same, or
some note or memorandum, thereof, be in writing, and subscribed by the party charged, or by
his agent; evidence, therefore, of the agreement
cannot be received without the writing, or a
secondary evidence of its contents:
Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the
Those undertaken in fraud of creditors when
the latter cannot in any other manner collect the
claims due them;
(d)
Those which refer to things under litigation if
they have been entered into by the defendant
without the knowledge and approval of the litigants or of competent judicial authority;
(e)
All other contracts specially declared by law to
be subject to rescission.
Volt/able ronfrartr.Z3—The following contracts are void—
able or annullable, even though there may have been
no damage to the contracting parties:
(8)
Those where one of the parties is incapable of
giving consent to a contract;
(b)
Those where the consent is vitiated by mistake,
violence, intimidation, undue influence or fraud.
109
These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification.
Defective contracts
1.
2.
PHYSlLlANb AND Commas
BAsn s or PHILIPPINE Mwicm. JL‘RISPRL'DENCF. AND Emits
108
0')
An agreement that by its terms is not to
be performed within a year from the making thereof;
(11")
A special promise to answer for the debt,
default, or miscarriage of another;
An agreement made in consideration of
marriage, other than a mutual promise to
marry;
An agreement for the sale of goods, chattels or things in action, at a price not less
than five hundred pesos, unless the buyer
accept and receive part of such goods and
118
Bmcs ()F PHILIPPINE MEDICALJL’RISPRI'DENCIE AND Emits
fetus was 111‘ obvious distress and the obstetrician al—
lowed the labor to continue for an extended period of
time without intervening and then failed to perform a
Cesarean Section and effected a delivery with exces—
sive force using forceps. In the period following the
infant’s birth, he began to have seizures, which were
not appropriately treated. The result was a child who
is brain damaged and will suffer from Cerebral Palsy
for the remainder of his life.
Surgical i/nu’y: Twenty-four year old mother of two
children underwent surgery for a bleeding ulcer in
which the surgeon ligated the victim’s common bile
duct and injured other portions of her gastric system.
The victim‘ of this procedure has subsequently had to
undergo nine major surgical procedures and spent al—
most two years in the hospital. She has a markedly de—
creased h'fe expectancy and neither her life or that of
her family Will' ever be the same.
U1
Tailurv to recognize and treat bear? attack: A forty-eight
year old father of two children was brought to the
Emergency Room while exhibiting clinical signs of an
on—going heart attack. The computer, which ran the
electrocardiographic equipment, read his EKG strip as
being consistent with an evolving myocardial infarction or heart attack. After consulting with his primary
physician, the ER physician discharged the victim with
instructions to see his internist the followtn'g morning.
He died in the internist’s office, the following morn—
ing from an arrhythmia, which was precipitated by the
heart attack, which he had suffered the night before.
Surgical prmp‘zt'atian of rim/€36: A twenty~four year old
mother underwent disk surgery, which was supposed
to relieve pain and numbness in her arm. The surgery
PHYsiuANs AM) Tours
119
was on a disk in her neck. In the course of the surgery,
the surgeon cut off the blood supply to her brain
when he tried to stop bleeding at the surgical site in
her throat. She suffered a stroke, which left her disabled, and with a permanent pain syndrome which re—
quired the implantation of a stimulator in her brain.
Wrongful amputation f0arm and J/Jmla’er: A two~year old
child was referred to a major medical center with a
swelling which the surgeon thought was a tumor since
the biopsy was read as bem’g a tumor. The child had
no tumor. The surgeon operated, expecting to remove
a portion of the muscle from the victim’s back. In
surgery, he discovered that the “lesion” was much
more extensive than he had thought before surgery.
He should have known that tumors do not grow so
rapidly as to have resulted in as extensive an involvement as was present. He didn’t, and “in order to get all
gross tumor” he amputated her entire shoulder and
right arm. This extensive surgery further aggravated
the condition, which she did in fact have.
Failure to diagnore cancer: A sixty—year old woman died
of throat cancer which she had battled for one and a
half years following diagnosis. A dentist was the first
to have suspected the true nature of her problem. She
had been treated with steroids for a recurrent sore
throat over a two year period of time by her family
physician who had totally missed the fact that she in
fact had cancer, and that a sore throat would not last
for a two year period of time.
Surgical i/a'ugi: A forty—eight year old man underwent
a surgical procedure for removing benign polyps for a
condition known as Peutz—Jager syndrome. The sur—
geon attempted to eradicate all of. the polyps when he
120
BASICS 0F PHILIPPINE ML-DKLAL JIJRISPRUDENCI." AND ETHILS
should not have and injured the blood supply to his
bowel, which subsequently died. He was left with a
short bowel, which did not have the ability to absorb
nutrients normally and will be required to live on total
parental nutrition the remainder of his life. He has
suffered numerous infections and problems as a result
of having to take nourishment thru the tubes implanted in his chest.
9.9.
Jurisprudence on medical professional liability
LEONILA GARCIA-RUEDA, vs. WILFREDO L.
PASCASIO, et a1.
GR. No. 118141, September 5, 1997
FACTS: Florencio, husband of petitioner
Leonila, underwent surgical operation at the UST hospital for the removal of a stone blocking his ureter. He
was attended by Dr. Antonio, who was the surgeon,
whil'e Dr. Reyes was the anaesthesiologist. Six hours after the surgery, however, Florencio died of complications of “unknown cause,” according to officials of the
UST Hospital.
Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation
(N81) to conduct an autopsy on her husband’s body.
Consequently, the NBI ruled that Florencio’s death was
due to lack of care by the attending physician in administen’ng anaesthesia. Pursuant to its findings, the NBI
recommended that Dr. Antonio and Dr. Reyes be
charged with Homicide through Reckless Imprudence
before the Office of the City Prosecutor.
HELD: There are four elements involved in
medical negligence cases: duty, breach, injury and
proximate causation.
Evidently, when the victim employed the services
of Dr. Antonio and Dr. Reyes, a physician-patient rela—
PHYSICIANS AND Toms
tionship was created. In accepting the case, Dr. Antonio
and Dr. Reyes in effect represented that, having the
needed training and skill possessed by physicians and
surgeons practicing in the same field, they would em—
ploy such training, care and skill in the treatment of
their patients. They have a duty to use at least the same
level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these professional duties of
skill' and care, or their improper performance, by a physician surgeon whereby the patient is injured in body or
in health, constitutes actionable malpractice. Consequently, in the event that any injury results to the patient from want of due care or skill' during the opera—
tion, the surgeons may be held answerable in damages
for negligence.
Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity
of expert testimony and the availabili"ty of the charge of
m pita loquitur to the plaintiff, have been applied in actions against anaesthesiologists to hold the defendant liable for the death or injury of a patient under excessive
or improper anaesthesia. Essentially, it requires twopronged evidence: evidence as to the recogniz'ed standards of the medical community in the particular ldnd
of case, and a showing that the physician in question
negligently departed from this standard in his treatment.
Another element in medical negligence cases is
causation which is divided into two inqtu‘ries: whether
the doctor’s actions in fact caused the harm to the pa—
tient and whether these were the proximate cause of the
patient’s injury. Indeed here, a causal connection is dis—
cernible from the occurrence of the victim’s death after
the negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should
warrant the filing of the appropriate criminal case. To
be sure, the allegation of negligence is not entirely base—
less. Moreover, the NBI deduced that the attending
121
BAsus or- PHILIPPINE Vilnoicu JL’RISPRL'DILNCI: AND Ennis.
PHYSKZIANS AND Tom's
DISMC. Since that fateful afternoon ofjune 17, 1985,
she has been in a comatose condition. She cannot do
anything. She cannot move any part of her body. She
cannot see or hear. She is living on mechanical means.
She suffered brain damage as a result of the absence of
oxygen in her brain for four to five minutes. After be—
ing discharged from the hospital, she has been staying
in their residence, still needing constant medical attention, with her husband Rogelio incurring a monthly ex—
pense ranging from {18,000.00 to 910,000.00. She was
also diagnosed to be suffering from “diffuse cerebral
parenchymal damage”.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase.
As borne by the records, respondent Dra. Gutierrez
failed to properly intubate the patient. This fact was at-
Petitioners filed a civil case for damages with the
Regional Trial Court of Quezon City, which found private respondents liable for damages arising from negligence in the performance of their professional duties
towards petitioner Erlinda Ramos resulting in her co—
matose condition. The Court of Appeals overturned the
decision of the Regional Trial Court.
Petitioners assail' the decision of the Court of Appeals in not finding that the negligence of the respondents did not cause the unfortunate comatose condition
of petitioner Erlin'da Ramos.
HELD: We disagree with the findings of the
Court of Appeals. We hold that private respondents
were unable to disprove the presumption of negligence
on their part in the care of Erlinda and their negligence
was the proximate cause of her piteous condition.
In the instant case, the records are helpful in fur—
nishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the
Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents’ own tes—
timonies which are reflected in the transcript of stenographic notes are replete of signposts indicative of their
negligence in' the care and management of Erlinda.
'
126
tested to by Prof. Herminda Cruz, Dean of the Capitol
Medical Center School of Nursing and petitioner’s sister-in—law, who was in the operating room right beside
the patient when the tragic event occurred. Witness
Cruz testified to this effect:
i
l
l
i
E
EE
ATTY. PAjARES:
Q:
In particular, what did Dra. Perfecta Gutierrez
do, if any on the patient?
A:
In particular, I could see that she was intubat«
ing the patient.
Q:
Do you know what happened to that intuba—
tion process administered by Dra. Gutierrez?
ATI'Y. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A:
As I have said, I was with the patient, I was beside the stretcher holding the left hand of the
patient and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez
herself. She was saying “Ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan.”
XXX
ATI'Y. PA] ARES:
Q:
From whom did you hear those words “lu—
mal'aki ang tiyan”?
A:
From Dra. Perfecta Gutierrez.
x xx
127
134
BASILS or PHILIPPINE lVlF.l)l(.‘/\1.J'LlUSl’Rl'l)F-.\.'CF. AND E'riuts
PHYSICIANS AND Ton-rs
treatment in the United States and was told she was free
of cancer.
The Court noted that it “is not blind to the reality
that there are times when danger to a patient’s life precludes a surgeon from further searching missing
sponges or foreign objects left in the body. Such, however, “does not leave him free from any obligation,” the
Court stressed.
In August 1984, Natividad went back to Philip—
pines. Later, her daughter found a piece of gauze protruding from her reproductive organ. Dr. Ampil subsequently extracted by hand a piece of gauze and assured
Natividad that the pain would vanish.
\When the pain‘
treatment at Polymedic
tor found another foul
Fected her vaginal vault.
and subsequently filed
the RTC.
intensified, Natividad sought
General Hospital where a clocsmelling gauze which badly in—
She underwent another surgery
a complaint for damages with
On March 17, 1993, the RTC ruled in Natividad’s
favor finding PSI, Dr. Ampil', and Dr. Fuentes liable for
negligence and malpractice.
On appeal, the CA dismissed the case against
Fuentes and held both PSI and Dr. Ampil liable for
medical negligence. Dr. Ampil elevated the case to the
High Court when the CA denied his motion for reconsideration.
HELD: The Court said Dr. Ampil’s negligence
was the proximate cause of Nau’vidad’s injury, which
could be traced from his act of closing the incision despite the information given by the attending nurses that
two pieces of gauze were still missing. It found that Dr.
Ampil did not inform Natividad about the two missing
pieces of gauze. \Vorse, he even misled her that the pain
she experienced after the procedure was the ordinary
consequence of her operation. Natividad died in 1986.
“To our mind, what was initially an act of negli—
gence by Dr. Ampil has ripened into a deliberate
wrongful act of deceiving his patient...This is a clear
case of medical malpractice or more appropriately,
medical negligence,” the Court said.
135
9.10. Doctrines applied in medical practice cases.—
There is nothing certain' and static about tort or quasi—delict. It is
composed of general principles or doctrines deliberately kept
sufficiently flexible to cope with myriad factual variations on
certain theme. It may not only be bent but may be changed to
bring itself into conformity with the need of contemporary
society. A doctrtn'e or principle may be applied now but later
become obsolete because of the demand of justice and changing
social norms.12
9.11. Doctrine of respondeat superior or doctrin'e of
vicarious liabil'ity or doctrine of imputed negligence or
command responsibil'ity.13——Generally, the law (Art. 2176 of
the Civfl Code) holds that every person is liable for the conse—
quences of his or her own negligence when another person is
injured as a result. In some situations this liability also extends
to the employer. Physicians may be held responsible for the
mistakes of those who work in their offices and sometimes must
pay damages for the negligent acts of their employees.
Physicians are legally responsible for the acts of their employees when the employees are acting within the scope of their'
duties or employment. Physicians are also responsible for the
acts of assistants who are their own employees if they commit
acts of negligence in the presence of the physician while under
the physician’s immediate supervision For example, a nurse
‘2 Solis, Pedro P., Medita/jun'ipnldence (1980), p. 121.
'3 Kinn, Mary E. and Derge, Eleanor F., Tb? Medical Attu‘tant, 6* ed. (1988), p.
51.
PHYSICIANS AND Toms
Basics or I’Hiui’mM: Ml-‘DICALJL'RISl’Rl‘DFNCF. AND Ethics
136
who is a hospital employee makes an error in a procedure while
acting under a physician’s direction. The court may determine
that the nurse came so completely under the direction and
supervision of the physician that the physician is liable for the
nurse’s negligence. This is known as the doctrine of respondeat
superior. Respondeat superior (let the master answer) means
that the master, principal or employer is responsible for the
wrongful acts of his servant, agent, or employee in certain cases.
The responsibili'ty 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.
On the other hand, if a special nurse is employed by the pa—
tient, the physician is not usually held liable for negligent acts of
the special nurse. When physicians practice as partners, they are
liable not only for their own acts but also for the negligent acts
of any agent or employee of the partnership.
A physician who properly writes a prescription is not liable
for pharmacist’s negligence in compounding it, but may be liable
in cases in which there is misunderstanding as to the ingredients
when the prescription is ordered over the telephone.
1.
Doctrine f0 otter/rifle agent or bo/o'm'g out [/2609 or agenjr j!)
ertoppe/.—The principal is bound by the acts of his
agent with the apparent authority which he knowingly
permits the agent to assume, or which he holds the
agent out to the public as possessing. 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.
137
Bonmz/ed tenant dottrm'o.”~Ordinarily, resident physi~
cians, 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 fiction of law borrowed from the hospital'
by someone and any wrongful act committed by them
during the period, their new and temporary employer
or master must be held liable.
Cop‘taz'n-of-tbe-r/Jpz' dorm'ne.-—Under this doctrine, the
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. The head surgeon is
made responsible for everything that goes wrong
within the four corners of the operating room. It
enunciates the liability of the surgeon not only for the
wrongful acts of those who are under his physical
control but also those wherein he has extension of
control.
Doctrine of independent contractor.——Each and every person is responsible for his or her own torts. There is no
employer-employee relationship in an independent
contractor. For the physician to be held liable under
this doctrine, the physician must not be an employee
of the hospital. Consultant—loosely used by hospitals
to distinguish their attending and Visiting physician‘s
from the residents, who are also physicians—may be
an independent contractor or an employee.
The test
four—fold: (1)
employee; (2)
dismissal; and
of employer-employee relationship is
the selection and engagement of the
the payment of wages; (3) the power of
(4) the power to control the employee’s
1“ Solis, Pedro P., Medxt'aljun'spmdeme (1980), pp. 123-124.
138
BASICS oi: PHImeMa MEDICAL JURJSI’RL'DL‘N'L'L AND E'rmcs
conduct. It is the so called “control test” that is the
most important element.“- This simply means the determination of whether the employer controls or has
reserved the right to control the employee not only as
to the result of the work but also as to the means and
method by which the same is to be accomplished.16
The control test is the most n'nportant test our
courts apply in distinguishing an employee from an
independent contractor. This test is based on the extent of control the hirer exercises over a worker. The
greater the supervision and control the hirer exercises,
the more likely the worker is deemed an employee.
The converse holds true as well—the less control the
hirer exercises, the more likely the worker is considered an independent contractor.
Full time but not regular.l7—Under Article 157 of the
Labor Code, employers with more than 200 workers
should provide or make available medical and allied
services consisting of a full time registered nurse, part
time physician and dentist and an emergency clinic.
Does this mean that the employer should hire or employ a nurse, doctor and dentist? This is the issue raise
in this case of registered nurses Mil'a and Rina.
‘5 Bautista v. Inciong, GR. No. 52824, March 16, 1988; Continental Marble
Corporation, et al. v. NLRC, GR. No. 43825, May 9, 1988; Asim et al. v. (,‘astro,
GR. No. 75063-64, June 30, 1988; Brotherhood Labor Unity Mov't in the
Philippines v. Zamora, 147 SCRA 49 [1987]; Investment Planm'ng Corp. of the
Phil'. v. Social Security System, 21 SCRA 924 [1967]; Mafinco v. Ople, 70 SCRA
139 [1976]; Rosario Brothers v. Ople, L‘53590, 131 SCRA 72 [1984]; Shipside,
Inc. v. NLRC, GR. No. 50358, 118 SCRA 99 [1982]; American President Lines
v. Clave, et al., GR. No. 51641,114 SCRA 826 [1982].
"’ Social Security System v. Court of Appeals, 156 SCRA 383 [1987].
‘1 A LAW EACH DAY (Keeps Trouble Away) byjose C. Sison Updated April
01, 2009 12:00 AM, http://www.philstar.com/Article.aspx?artic1eld"—4540158c
publicationSubCategongld—"(J/vi accessed on April 4, 2009.
PHYsmAM AND Tours
139
Mil'a and Rina were rendering services sm'ce 1996
and 1999 respectively as nurses in a clinic provided
and maintained by a five star island resort hotel (the
hotel) for the doctor whose services it retains under a
Memorandum Agreement (MOA). Pursuant to the
MOA, the doctor is paid a monthly retainer’s fee of
P60,000 plus 70% of the service charges from hotel
guests who avail of the clinic services. Out of the fee
and services charges, the retained doctor pays for the
salaries, SSS contributions and other benefits of the
staff including the nurses, their group life, group personal accident and life insurance as well as VAT and
withholding taxes. The doctor could hire her own
nurses and other clinic personnel.
When Dr. Pita was retained as the hotel doctor,
Mil'a and Rina continued rendering services as nurses
in the clinic upon their request. They observe clinic
hours and render services only to hotel guests and
employees. During the hotel’s peak months of opera—
tion, Dr. Pita would hire additional nurses whose sala—
ries were recommended by the hotel’s HRD based on
the billings prepared by her (Dr. Pita).
In late 2002, Milia and Rina decided to file with
the National Labor Relations Commission (NLRC a
complaint for regularization, underpayment of wages,
non—payment of holiday pay, night shift differential
and 13th month pay differential against both the hotel
and Dr. Pita claimi'hg that they are regular employees
of the hotel. They insisted that under Article 157 of
the Labor Code, the hotel is required to hire a full
time registered nurse apart from a physician, hence
their engagement should be deemed as regular em—
ployment, the provisions of the MOA notwithstand-
142
BASlcs or l’l-lllll’l’le‘. Mr-DICAL Jl‘th‘PleDr-ANLI': AM) ETHICS
in a different hospital at the same time as Erlinda’s
cholecystectomy, and was in fact over three hours late
for the latter’s operation. Because of this, he had little
or no time to confer with his anesthesiologist regarding
the anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient.
Thus, he shares equal responsibility for the events
which resulted in Erlinda’s condition.
9.13. Doctrine of res rp'sa quuirur or common knowledge doctrine.—Rm zp'ra [oqm'turis a Latin phrase which literally
means “the thing or the transaction speaks for itself.” The
phrase “re: pita [Mail/4r” is a maxim for the rule that the fact of
the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiff’s pn'mafaa'e case, and present
a question of fact for defendant to meet with an explanation.
\Vhere the thing which caused the injury complmhed of is
shown to be under the management of the defendant or his
servants. and the accident is such as in ordinary course of things
does not happen if those who have its management or control
use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or
was caused by the defendant’s want of care.
1.
Reqm'riz‘er fairer pita loquz'tztr
(a)
The accident is of a kind which ordinarily does
not occur in the absence of someone’s negli—
gencc;
(b)
It is caused by an instrumentality within the exclusive control of the defendant or defendants;
and
(c)
The possibtli‘ty of contributing conduct which
would make the plaintiff responsible is eliminated.
PHYsICIANs AND Toms
14°)
Application of re; zp'm loqm'tur in medzr'a/ malprarlz're.—
Medical malpractice cases do not escape the applica—
tion of this doctrine. Thus, m pita loquz‘mr has been
applied when the circumstances attendant upon the
harm are themselves of such a character as to justify
an inference of negligence as the cause of that harm.
The application of m pim [aquz'tur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given
inference.
Re: pita loquz‘mr, wbm applicable—Courts of other juris—
dictions have applied the doctrine in the following
situations: 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, or in
the area, of treatment, removal of the wrong part of
the body when another part was intended, knocking
out a tooth while a patient’s jaw was under anesthetic
for the removal of his tonstl's, and loss of an eye while
the patient plaintiff was under the influence of anesthetic, dunn'g or following an operation for appendici—
tis, among others.
Rat pita loqm'tur, Ill/Jen not applicable.——Nevcrtheless, de—
spite the fact that the scope of re; zp'ra laquz'tur has been
measurably enlarged, it does not automatically apply to
all cases of medical negligence as to mechanically shift
the. burden of proof to the defendant to show that he
is not guilty of the ascribed negligence. Re: pira [aquitur
is not a rigid or ordinary doctrine to be perfunctortl'y
used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a lay-
144
146
BASICS or PHILIPPINE Nll‘JJICALJL‘RJSPRUDl-ZN(LL: AM) E‘l'Hl(.S
PHYSICIANS AND Toars
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988 . . .
certifying to her physical fitness to return to her work
on November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas returned to her work at the
Rural Bank of Ayungon, Negros Oriental.
fection of the ovaries and consequently of all the dis—
comfort suffered by Mrs. Villegas after her delivery on
September 21, 1988.
The abdominal pains and fever kept on recurring
and bothered Mrs. Villegas no end and despite the
medications administered by Dr. Batiquin. When the
pains become unbearable and she was rapidly losing
weight she consulted Dr. Ma. Salud Kho at the Holy
Chilid’s Hospital in Dumaguete City on january 20, 1989.
The evidence of Plaintiffs show that when Dr.
Ma. Salud Kho examined Mrs. Villegas at the Holy
Child’s Hospital on january 20, 1989 she found Mrs.
Villegas to be feverish, pale and was breathing fast.
Upon examination she felt an abdominal m__ass one finger below the umbili'cus which she suspected to be either a tumor of the uterus or an ovarian cyst, either of
which could be cancerous. She had an x—ray taken of
Mrs. Villegas’ chest, abdomen and kidney. She dl’SO took
blood tests of Plaintiff. A blood count showed that
Mrs. Villegas had [an] infection inside her abdominal
cavity. The result of all those examinations impelled Dr.
Kho to suggest that Mrs. Vill'egas 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 [sic] the ovarian cyst, 2 inches by 3/4
inch in size. This piece of rubber material which Dr.
Kho descn‘bed as a “foreign body" looked like a piece
of a “rubber glove” . . . and which is [sic] also “rubberdrain like” . . . . It could have been a torn section of a
surgeon’s gloves or could have come from other
sources. And this foreign body was the cause of the in—
The piece of rubber allegedly found near private
respondent Flotilde Vil‘legas’ uterus was not presented
in court, and although Dr. Ma. Salud Kho testified that
she sent it to a pathologist in Cebu City for examination, it was not mentioned in the pathologist’s Surgical
Pathology Report.
Aside from Dr. Kho’s testimony, the evidence
which mentioned the piece of rubber are a Medical Certificate, a Progress Record, an Anesthesia Record, a
Nurse‘s Record, and a Physician’s Discharge Summary.
The trial court, however, regarded these documentary
evidence as mere hearsay, “there being no showing that
the person or persons who prepared them are deceased
or unable to testify on the facts therein stated . . . . Except for the Medical Certificate (Exhibit “F”), all the
above documents were allegedly prepared by persons
other than Dr. Kho, and she merely affixed her signature
on some of them to express her agreement thereto.”
The trial court deemed vital Dr. Victoria Ban?
quin’s testimony that when she confronted Dr. Kho re—
garding the piece of rubber, “Dr. l\.h'o answered that
there was rubber indeed but that she threw it away.”
The Court of Appeals reviewed the entirety of Dr.
Kh'o’s testimony and, even without admitting the pri—
vate respondents’ documentary evidence, deemed Dr.
kh’o’s positive testimony to definitely establish that a
pie.Ce of rubber was found near private respondent
Villegas’ uterus.
HELD: We agree with the Court of Appeals.
While the petitioners claim that contradictions and falsi—
ties punctured Dr. Ixh'o’s testimony, a reading of the
said testimony reveals no such infirmity and establishes
Dr. Ixh’o as a credible witness. Dr. Ixh’o was frank
throughout her turn on the witness stand. Furthermore,
147
1 50
BASILS or PHILIPPINE \tll:i)l(;r\i. jL‘thPRL‘DIiMZL" AND Bruits
tion, 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 by-product of the cesarean section performed by Dr. Batiquin. The petition—
ers, in this regard, failed to overcome the presumption
of negligence arising from resort to the doctrine of mpim loqm'mr. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private re—
spondent \I’tll'egas’ abdomen and for all the adverse effects thereof.
ROGELIO E. RAMOS, et al. vs. COURT OF APPEALS
GR. No. 124354, December 29, 1999
FACTS:
Supra
Petitioners assail the decision of the Court of Appeal.s in not applying the doctrine of m pita loqm'lur.
HELD:
We find the doctrine of re: Ip'm loquitur
appropriate in the case at bar. As will hereinafter be explained, the damage sustm'ned by Erlinda in her brain
prior to a scheduled gall bladder operation presents a
case for the application of mt pita loquitur.
In the present case, Erlinda submitted herself for
cholecystectomy and expected a routine general surgery
to be performed on her gall bladder. On that fateful day
she delivered her person over to the care, custody and
control of private respondents who exercised complete
and exclusive control over her. At the time of submis—
sion, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in
mind and body. However, during the adnu'nistration of
anesthesia and prior to the performance of cholecystec—
tomy she suffered irreparable damage to her brain.
Thus, without undergoing surgery, she went out of the
operating room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the
PHYSICIANS AM) Toms
process of a gall bladder operation. In fact, this kind of
situation does not happen in the absence of negligence
of someone in the administration of anesthesia and in
the use of endotracheal tube. Normally, a person being
' put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the
proper procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusivc control of private respondents, who are the physi—
cians-in-charge. Likewise, petitioner Erlinda could not
have been guilty of contributory negligence because she
was under the influence of anesthetics which rendered
her unconscious.
Considering that a sound and unaffected member
of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the application of
res pin: loqm‘tur. Upon these facts and under these cir—
cumstances the Court would be able to say, as a matter
of common knowledge and observation, if negligence
attended the management and care of the patient.
Moreover, the liability of the physicians and the hospital
in this case is not predicated upon an alleged failure to
secure the destr'ed results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact
no operation or treatment was ever performed on Er—
linda. Thus, upon all these iru'tial determination a case is
made out for the application of the doctrine of m pz'm
loqm'tur.
151
152
PHYSICIANS AND ToR'rs
BASH s ()l- PI-HLJPPIM. Ml3_Dl(.‘/\L jtnusvneom.‘tzla AND Entits
LEAH ALESNA REYES, et al. vs.
SISTERS OF MERCY HOSPITAL, et a].
(LR. No. 130547, October 3, 2000
FACTS:
.S'upm
Petitioners asserted in the Court of Appeals that
the doctrine of M [Ma loqw'tur applies to the present case
because jorge Reyes was merely experiencing fever and
chills for five days and was fully conscious, coherent,
and ambulant when he went to the hospital. Yet, he
died after only ten hours from the time of his admission.
This contention was rejected by the appellate
court.
HELD: The contention is without merit. In
this case, while it is true that the patient died just a few
hours after professional medical assistance was rendered, there is really nothing unusual or extraordinanf
about his death. Prior to his admission, the patient al—
ready had recurring fevers and Chili's for five days unre—
lieved by the analgesic, antipyretic, and antibiotics given
him by his wife. This shows that he had been suffering
from a serious illness and professional medical help
came too late for him.
Respondents alleged failure to observe due care
was not immediately apparent to a layman so as to jus—
tify application of re: pita loquilur. The question required
expert opinion on the alleged breach by respondents of
the standard ofcare required by the circumstances.
9.15. Doctrine of contributory negligence (doctrine
of common fault).—Contributory negligence has been defined
as conduct on the part of the plaintiff, contributing as a legal
cause to the harm he has suffered, which falls below the stan—
dard to which he is required to conform for his protection. It is
the act or omission amounting to want of care on the part of the
153
complaining party which, concurring with the defendant’s negli?
gence, is the proximate cause of the injury.18
When the plaintiff’s own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if
his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care,
the plaintiff may recover damages, but the courts shall mitigate
the damages to be awarded.”
In quasi-delicts, the contributory negligence of the plaintiff
shall reduce the damages that he may recover.20
9.16. Doctrin'e of continuing negligence.—-If the phy—
sician, after a prolonged treatment of a patient which normally
produces alleviation of the condition, fails to investigate nonresponse may be held liable if in' the exercise of the care and
diligence he could have discovered the cause of non-response.
The doctrine of continuing negligence is usually applied to
foreign body cases, improper setting of broken bones, in the
application of cast, and in wrongful diagnosis.21
9.17. Doctrine of assumption of risk—Anyone who
voluntarily assumes the risk of injury from a known danger, if
injured, is barred from recovery. This is based upon a maxim
“violent non tit injuria” which means that a person who assents
and injured is not regarded in law to be injured. The doctrine is
predicated upon knowledge and consent.22
9.18. Doctrine of last clear chance.——-A physician who
has the last clear chance of avoiding damage or injury to his
1"
‘9
2”
2‘
22
Solis, Pedro P., Medu‘a/jun'ipmdmw (1980), p. 130.
Civil Code, Art. 2179.
Civil Code, Art. 2214.
Solis, Pedro P., Medicaljun'ipma'enre (1980), p. 133.
Ibia’., at p. 133.
PHYSICIANS AND Toms
BASICS or- PHIIJPPINIZ MFDlC.-\L jtrmsmrnuNcn AM) E'rincs
154
patient but negligently fails to do so is liable. The doctrine
implies thought, appreciation, mental direction and lapse of
sufficient time to effectually act upon impulse to save the life or
prevent injury to another. It may imply negligence in diagnosis
or in management.23
9.19. Doctrine of foreseeabili"ty.—A physician cannot
be held liable for negligence if the injury sustained by patient is
on account of unforeseen conditions. But, a physician who fails
to ascertain the condition of the patient for want of the requisite
skills and training is answerable for the injury sustained by the
patient if injury resulted thereto. Such foreseeable injury may be
ascertained from the history, physical examination, observation
and from information gathered from another member of the
family.
1.
Forte n/ja'enre (caso fortuito or fortuitous event) are extraordinary events not foreseeable or avoidable, events
that could not be foreseen, or which, though foreseen,
are inevitable.
Ad fo God is an extra-ordinary natural event, without
human intervention, that cannot be reasonably foreseen, avoided or prevented.24
The principle embodied in the act of God doctn'ne strictly requires that the act must be one occasioned exclusively by the violence of nature and all
human agencies are to be excluded from creating or
entering into the cause of the mischief.25
An act of God cannot be invoked for. the protection of a person who has been guilty of gross negli—
2‘ Ibio’., at p. 134.
7-4 Bernardo, Oscar 8., Dictionary fob‘w’denre (2000), p. 4.
25 Mid, at p. 4 citing Non'ono/ Power (.o'rporalz'on w. Court of Appeolr (CA), 222
SCRA 415.
155
gence in not trying to forestall its possible adverse
consequences.26
3.
Am'dent is an event which happens without any human
agency or, if happening through human agency, an
event which, under the circumstances, is unusual to
and not expected by the person to whom it happens.
It has also been defined as an injury which happens by
reason of some violence or casualty to the insured
without his design, consent, or voluntary coopera—
tion.27
9.20. 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.”
9.21. Rescue doctrin'e 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 the expectation of receivrn'g or intend—
ing to receive compensation from such injured person for such
service, shall not be liable in civ1l damages for any act or omission, not constituting gross negligence, in the course of such
care or assistance. Although the Good Samaritan Law does not
constitute a duty to rescue, nevertheless, the duty to rescue
where it exists may itself im'ply a shield from liability; for exam—
ple, one may be held liable, under Art 275 of the Revised Penal
Code, for Abandonment fopmon in danger or abandonment fo one!’
man w'm'rn if:
1.
He fails to render assistance to any person whom he
shall find in an uninhabited place wounded or in dan-
3" Ibio’., at p. 5 citing .Yont/Jextern College, Int. or. CA, 292 SCRA 422.
27 Mid, at p. 3 citing Sun Inmronre Ofite, Uzi. w. CA, 211 SCRA 554.
2" Solis, Pedro P., Medtc'oljnnip’mdence (1980), p. 136.
162
B.r\hl(.b oI- PHILIPPINE MIaoICAL JL‘RBI’RL'DENLE AND ETIIIrs
10.5. Temperate or moderate damages are imposed
for pecuniary loss but its amount cannot be provided with
certainty.
10.6. Liquidated damages refer to those agreed upon
by parties in case of breach of contract.
10.7. Exemplary or corrective damages are imposed,
by way of example or correction for the public good.
10.8.
Jurisprudence on Damages
DR. NINEVETCH CRUZ vs. COURT OF APPEALS
G.R. No. 122445, November 18, 1997
FACTS: On March 22, 1991, prosecution wit—
ness, Rowena Umali De Ocampo, accompanied her
mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna.
They arrived at the said hospital at around 4:30 in the
afternoon of the same day. Prior to March 22, 1991,
Lydia was examined by the petitioner who found a
“myoma” in her uterus, and scheduled her for a hysterectomy operation on March 23, 1991. Rowena and her
mother slept in the clinic on the evening of March 22,
1991 as the latter was to be operated on the next day at
1:00 o’clock in the afternoon. According to Rowena,
she noticed that the clinic was untidy and the window
and the floor were very dusty prompting her to ask the
attendant for a tag to wipe the window and the floor
with. Because of the untidy state of the clinic, Rowena
tried to persuade her mother not to proceed with the
operation. The following day, before her mother was
wheeled into the operating room, Rowena asked the pe»
titionet if the operation could be postponed. The petitioner called Lydia into her office and the two had a
conversation. Lydia then informed Rowena that the pe«
titioner told her that she must be operated on as sched—
uled.
PHYsICI/INS AND DAMAul-S
Rowena and her other relatives, namely her hus—
band, her sister and two aunts waited outside the operating room while Lydia underwent operation. While
they were waiting, Dr. Ercillo went out of the operating
room and instructed them to buy tagamet ampules
which Rowena's sister immediately bought. About one
hour had passed when Dr. Ercrll'o came out again this
time to ask them to buy blood for Lydia. They bought
type “A” blood from the St. Gerald Blood Bank and
the same was brought by the attendant into the operating room. After the lapse of a few hours, the petitioner
informed them that the operation was finished. The operating staff then went inside the petitioner’s clinic to
take their snacks. Some thirty rru'nutes after, Lydia was
brought out of the operating room in a stretcher and
the petitioner asked Rowena and the other relatives to
buy additional blood for Lydia. Unfortunately, they
were not able to comply with petitioner’s order as there
was no more type “A” blood available in the blood
bank. Thereafter, a person arrived to donate blood
which was later transfused to Lydia. Rowena then noticed her mother, who was attached to an oxygen tank,
gasping for breath. Apparently the oxygen supply had
run out and Rowena’s husband together with the driver
of the accused had to go to the San Pablo Distn'ct Hospital to get oxygen. Lydia was given the fresh supply of
oxygen as soon as it arrived. But at around 10:00
o’clock RM. she went into shock and her blood pres—
sure dropped to 60/50. Lydia’s unstable condition ne—
cessitated her transfer to the San Pablo District Hospi—
tal so she could be connected to a respirator and further
examined. The transfer to the San Pablo City District
Hospital was without the prior consent of Rowena nor
of the other relatives present who found out about the
intended transfer only when an ambulance arrived to
take Lydia to the San Pablo District Hospital. Rowena
and her other relatives then boarded a tricycle and fol—
lowed the ambulance.
163
168
PHYSICIANS AND DA\.IAGL5‘-‘
BAsIcs ()F PHILIPPINE MEDICALjt’RISPRt'nrm'cn AND ETIIIcs
pelled by dire circumstances to provide substandard
care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of =131,500,00000 in temperate
damages would therefore be reasonable.
In Valenzuela w. Coun‘ oprpmlr,“ this Court was
confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were dif—
ficult to estimate because while they would have been a
direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise
only in the future. We awarded {31,000,00000 in moral
damages in that case.
Describing the nature of the injury, the Court
therein stated:
menopausal women. In other words, the damage done
to her would not only be permanent and lasting, it
would also be permanently changing and adjusting to
the physiologic changes which her body would normally
‘ undergo through the years. The replacements, changes,
and adjustments will require corresponding adjustive
physical and occupational therapy. All of these adjustments, it has been documented, are painful.
X X X.
A prosthetic devise, however technologically ad—
vanced, will only allow a reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury, mental
and physical pain are inestimable.
As a result of the accident, Ma. Lourdes Valen—
zuela underwent a traumatic amputation of her left
lower extremity at the distal left thigh just above the
knee. Because of this, Valenzuela wrll' forever be deprived of the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic
technology. well beyond the period of hospitalization
(which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
The injury suffered by Erlinda as a consequence
of private respondents’ negligence is certainly much
more serious than the amputation in the Valenzuela
These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During her lifetime, the
prosthetic devise will have to be replaced and readjusted
to changes in the size of her lower limb effected by the
biological changes of middle—age, menopause and aging.
Assuming she reaches menopause, for example, the
prosthetic Will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post—
Meanwhile, the actual' physical, emotional and fi—
nancial cost of the care of petitioner would be virtuall'y
impossible to quantilfv. Even the temperate damages
herein awarded would be inadequate if petitioner’s con—
dition remains unchanged for the next ten years.
” 253 SCRA 303 (1996).
C356.
Petitioner Erlinda Ramos was in her mid-forties
when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care
has so far been heroically shouldered by her husband
and children, who, in the intervening years have been
deprived of the love of a wife and a mother.
We recognized, in Valenzuela that a discussion of
the victim’s actual injury would not even scratch the
surface of the resulting moral damage because it would
be highly speculative to estimate the amount of em0»
tional and moral pain, psychological damage and injury
suffered by the victim or those actually affected by the
169
BASICS 0F PHIUPPINE MEDICAL JL'RISPRL'DENCE AND ETHKZS
Chapter 11
victim's condition. The husband and the children, all
petitioners in this case, will' have to live with the day to
day uncertainty of the patient’s il'lness, knowing any
hope of recovery is close to nil. They have fashioned
their daily lives around the nursing care of petitioner, al—
tering their long term goals to take into account their
life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of
the victim. The family’s moral injury and suffering in
this case is clearly a real one. For the foregoing reasons,
an award of BZ,OO0,000.00 in moral damages would be
appropriate.
PHYSICIANS AND CRIMINAL LAW
111.1.
nal Code
1.
finally, by way of example, exemplary damages in
the amount of 910090000 are hereby awarded. Considering the length and nature of the instant suit we are
of the opinion that attorney's fees valued at
9100,000400 are likewise proper.
Application of the provisions of the Revised Pe-
App/z'mtz'on fo f/Je prow'riom fo the Rm'red Penal Cade.‘~
Except as provided in the treaties and laws of prefer—
ential application, the provisions of the Revised Penal
Code shall be enforced not only within the Phili"ppin'e
Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside ofits jurisdiction, against those who:
Should commit an offense while on a Philippine
ship or airship
(b)
Should forge or counterfeit any corn or currency
note of the Philippine Islands or obligations and
securities issued by the Government of the Phil'—
ippine Islands;
(c)
Should be liable for acts connected with the in—
troduction into these islands of the obligations
and securities mentioned in the preceding number;
(d)
While being public officers or employees,
should commit an offense in the exercise of
their functions; or
—.-,
(a)
. wo<r
170
i
' Revised Penal Code, Art. 2.
171
(b)
(C)
8.
That a person fails to perform such act.
That the act was committed in the immediate
Vindication of a grave offense to the one committing the felony (de/z'ta), his spouse, ascen—
dants, or relatives by affinity within' the same
degrees.
I
(0
That of havm'g acted upon an impulse so powerful as naturally to have produced passion or
obfuscation.
Entmpment w. inmg‘alion
Ways and means are resorted to for the capture of
lawbrealter in the execution
of his criminal plan
Inrng'atz'orz
l.
Instigator
induces
the
to
would-be
accused
commit the crime, hence
he
becomes
a
co-
That the offender had voluntarily surrendered
himself to a person in authority or his agents, or
that he had voluntarily confessed his guilt be—
fore the court prior to the presentation of the
evidence for the prosecution;
principal.
Not a bar to the prosecution and conviction of the
lawbrealter
It wtl‘l result in the acquittal of the accused.
(h)
Miz‘zg‘ahn'g a'rtumrtanm.”—The followtn'g are mitigating
circumstances:
That the offender is under eighteen years of age
or over seventy years.
(C)
That the offender had no intention to commit
so grave a wrong as that committed.
(d)
That sufficient provocation or threat on the part
of the offended party immediately preceded the
r-wum
,..
‘.‘
0)
.-.r
(b)
Those mentioned in. Articles 11 and 12 of the
Revised Penal Code, when all the requisites nec—
essary to justify or to exempt from criminal li—
ability in the respective cases are not artendan-t.
That the offender is deaf and dumb, blind or
otherwise suffering some physical defect which
thus restricts his means of action, defense, or
communications with his fellow beings.
Such illn'ess of the offender as would stIum"'sh
the exercise of the Wild—power of the offender
without however deprivrn‘g him of the consciousness of his acts.
m
(8)
'
9.
181
(6)
That his failure to perform such act was due to
some lawful or insuperable cause.
Entrapment
1.
PHYSICIANS AND CIU\.flNv\L Law
Basns“ HF PHILIPPINE MEDICAL je'rusenunrincr: AND ETHKS'
180
And, finally, any other circumstances of a similar nature and analogous to those above mentioned.
10. Aggravalz‘ng a'rmmn‘amer. '-—’The following are aggravatin'g circumstances:
act.
“ Revised Penal Code, Art 13.
(a)
That advantage be taken by the offender of his
public position.
(b)
That the crime he committed 1n~ contempt or
with insult to the public authorities.
w m m. m m
"1 Revi5ed Penal Code, Art. 14.
184
BASKS or- PHILIPPINE. MEDICAL JL‘IUSPRL'DENCE AND ETHICS
(5)
That as a means to the commission of a crime a
wall, roof, floor, door, or window be broken.
(0
That the crime be committed with the aid of
persons under fifteen years of age or by means
of motor vehicles, motoriz'ed watercraft, air—
ships, or other Sirnil"ar means.
(U)
Pm’sxcmss AND CRJMINAL Law
11.4.
1.
[Wm are m'mz'naljl liable.”—The following are criminally
liable for grave and less grave felonies:
Principals.
Accomplices.
Accessories.
The followm'g are critmnall'y liable for light felonies:
11. Alternative a'rrumrtanret13—Alternative Circumstances
are those which must be taken into consideration as
aggravating or rnitigaon'g according to the nature and
effects of the crime and the other conditions attending
its commission. They are the relationship, intoxication
and the degree of instruction and education of the 0ffender.
(a)
(b)
2.
The alternative Circumstance of relationship shall be
taken into consideration when the offended party is
the spouse, ascendant, descendant, legitimate, natural,
or adopted brother or sister, or relative by affinity in'
the same degrees of the offender.
Principals
Accomplices.
Pn'rmp‘alr. ‘5—The foLlowm'g are considered principals:
(a)
Those who take a direct part in' the execution
of
the act;
(C)
Those who cooperate in' the commission
of the
offense by another act without
which it would
not have been accomplished.
Aacmp/irer.16—Accomplices are
those persons who
not being pnn‘cipals, cooperate in'
the execution of the
offense by previous or Simultaneous
acts.
Arceiion‘er. 17—Acces sories
WWW..
The intoxication of the offender shall be taken into
consideration as a mitigating Circumstance when the
offender has committed a felony in' a state of intoxica—
tion, if the same is not habitual or subsequent to the
plan to commit said felony but when the intoxication
is habitual or in'tentional1 it shall be considered as an
aggravating circumstance.
Persons crimin"ally liable for felonies
(a)
(b)
(C)
That the wrong done in' the commission of the
crirn'e be deliberately augmented by causm'g
other wrong not necessary for its commissions.
185
” Revised Penal
‘5 Revised Penal
'° Revised Penal
'7 Revised Penal
5‘
"W I-j p—Iquwr—v—Im
‘3 Revised Penal Code, Art. 15.
Code, Art. 16.
Code, Art. 17.
Code, Art. 18.
Code, Art. 19.
I
are those who, haying
on of the crime, and
with-
186
Pl-n'SlClAV.‘S AND Cnnuw. Law
BASILS‘ or PHILIPPINE MenuI.}t'.msrkuoI:-\I.'cn AND ETHICS
accomplices, take part subsequent to its commission
in‘ any of the followm'g mariners:
The duration of the penalty of redun'on perpetua is from
twenty years and one day to forty years.
(a)
By profiting themselves or assisting the offender to profit by the effects of the crime.
(b)
By concealing or destroying the body of the
crime, or the effects or instruments thereof, in
order to prevent its discovery.
Rec/urz‘on temporal—The penalty of rec/1mm temporal
shall be from twelve years and one day to twenty
years.
(C)
By harboring, concealing, or assisting in' the escape of the principal of the cn'me, provided the
accessory acts with abuse of his public functions
or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt to take
the life of the Chief Executive, or is‘ known to
be habitually guilty of some other crime.
Pn'riarz vigor and temporay dirqualzfi'raiiotz.—'Ihe duration
of the penalties of pn'na'rz major and temporary disqualification shall be from Six' years and one day to
twelve years, except When the penalty of disqualification is imposed as an accessory penalty, in which case
its duration shall be that of the principal penalty.
Pm‘z‘orz rorrem'ona,l ruiperzrimz, and dulierro.—The duration
of the penalties of pn'rz'on tarmac/1a,! suspension and
dertz'erro shall be from 511' months and one day to sbt
years, except when suspension is imposed as an accessory penalty, in. which case, its duration shall be that of
the principal penalty.
Acrerron'er 111/10 an! exempt fiam m’mzfia/ lz'abz‘lz'yJB—The
penalties prescribed for accessories shall not be im—
posed upon those who are such with respect to their
spouses, ascendants, descendants, legitimate, natural,
and adopted brothers and sisters, or relatives by affinity within' the same degrees, with the Single exception
of accessories who assist the offender to profit by the
effects of the crime.
11.5.
1.
187
Arrerfo rayon—The duration of the penalty of arrerto
mjaor shall be from one moth and one day to stx'
months.
Arren‘o meme—The duration of the penalty of 47mm
manor shall be from one day to thirty days.
Bond to keep tbs pears—The bond to keep the peace
shall be required to cover such period of time as the
court may determine.
Penalties19
Rec/uizo'nperpebm.—Any person sentenced to any of the
perpetual penalties shall be pardoned after undergoing
the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall
be considered by the Chief Executive as unworthy of
pardon.
" Revised Penal Code, Art 20,
'9 Revised Penal Code, Art. 27.
11.6.
1.
Extin'ction of cr1rn1n"al liabili"ry.
Total exfinriz‘on f0 m'mirm/ lz'abi‘lzye'70—Cnrni"nal liability is
totally extinguished:
2“ Revised Penal Code, Art. 89.
188
Pmsrcmws AND CRLVIIV.'.‘\L Law
BASICS nr- PHILIPPINE NLEDIL'AL JL'RISPRL'DENCE AND ETHICS
(3)
(b)
or otherwise intervene in the preparation of the
document; or (ii) he has the official custody of
the document which he falsifies.
By the death of the convict, as. to the personal
penalties and as to pecuniary penalties, liability
therefor is extinguished only when the death of
the offender occurs before final judgment.
(C)
By service of the sentence;
By amnesty, which completely extin'guishes the
penalty and all its effects;
(d)
(e)
(f)
(g)
By absolute pardon;
By prescription of the cnm'e;
By prescription of the penalty;
By the marriage of the offended woman in the
crim'e of rape.
Pafiz'a/ exh'nn‘z'on f0 m'mina/ Zza'liz'lzy'.2‘—Cr1rmn"al liabili'ty
is extin'guished partially.By conditional pardon;
By commutation of the sentence; and
For good conduct allowances which the culprit
may earn wh_lie he is serving his sentence.
Crun'es agam'st public in'terest
11.7.
1.
Far/infi‘ratza'n [y pub/1r ojfrer, employee or 7102210! or err/mam}
tabular—The elements of the crirn'e are the follow-
(b)
That he takes advantage of his official position,
i.e., when (i) he has the duty to make or prepare
1' Revised Penal Code, Art 94.
22 Revised Penal Code, Art. 171.
Counterfeiting or um‘tating any handwrit—
mg, signature or rubric;
(11")
Causin'g it to appear that persons have
participated in' any act or proceeding'
when they did not in' fact so participate;
(mm)
Attributing to persons who have participated in‘ an act or proceeding statements
other than those in fact made by them;
(1V)
Making untruthful statements in' a narration of facts;
( ')
(Vi)
Altering true dates;
(WIN)
Wflwmmmw
That the offender is a public officer, employee
‘
or notary public or ecclesiastical miru"ster
(1)
(v11)
mg:
(a)
The offender falsifies a document which is any
written statement by which a right is established
or an obligation extinguished or by which a fact
may be proven or affirmed, by committing any
of the followrn'g acts.-
. w
.v—_ -— . _—. ,_ .—_
(a)
(b)
(C)
189
Making any alteration or intercalan'on in' a
genuine document which changes its
meaning;
Issuing in' an authenn'cated form a docu~
ment purporting to be a copy of an origi—
nal document when no such origtn'al exists, or including in' such a copy a state—
ment contrary to, or different from, that
of the genuine original; or
Intercalann'g Instrument or note relative
to the issuance thereof in a protocol, registry, or official book.
PHYSiuAM. mo CRIMINAL Law
BASICS nr— PHIIJPI’IN'IE i\/[i:-oic.-\L JL'RISPRL-‘DENCE AND ETHICS
204
honors and scholarships, or the payment of a
stipend, allowance or other benefits, pn'Vil'eges,
or considerations; or
dancy over another in' a work or training or education environ—
ment, demands, requests or otherwise requires any sexual favor
from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said
Act.
(a)
(4)
In a work-related or employment environment, sexual
harassment is committed when:
(1)
(2)
The sexual favor is made as a condition in' the
hiring or in‘ the employment, re-employment or
continued employment of said individual, or in
granting said individual favorable compensation,
terms, conditions, promotions, or priv1l‘eges; or
the refusal to grant the sexual favor results in
limiting, segregating or classifying the employee
which in‘ a way would discriminflate, deprive or
dirmm"'sh employment opportunities or otherwise adversely affect said employee;
See. 4. Day! fo the Emplgyer or Head f0 .Oflfre in a Workre/az‘ed, Education or Training Environment—It shall be the duty of
the employer or the head of the work-related, educational or
training envfionment or institution, to prevent or deter the
commission of acts of sexual harassment and to provide the
procedures for the resolution, settlement or prosecution of acts
of sexual harassment. Towards this end, the employer or head
of office shall:
The above acts would impair the employee’s
rights or privileges under existing labor laws; or
(a) Promulgate appropriate rules and regulations in' consultation with and jointly approved by the employees or students
or trainees, through their duly designated representatives, prescribing the procedure for the investigation or sexual harassment cases and the adrniru'srrative sanctions therefor.
In an education or training environment, sexual harassment is committed:
Against one whose education, tratnin"g, appren—
ticeship or tutorslru'p is entrusted to the offender;
“mummfi.
(2)
.. . -‘._.
Against one who is under the care, custody or
supervision of the offender;
Admini"strative sanctions shall not be a bar to prosecution
in. the proper courts for unlawful acts of sexual harassment.
.,
(1)
When the sexual favor is made a condition to
the givm‘g of a passing grade, or the granting of
1—.—. ~.
(3)
When the sexual advanccs result in' an intimidatin'g, hostile or offensive envu'onment for the
student, trainee or apprentice.
Any person who directs or induces another to commit any
act of sexual harassment as herein' defined, or who cooperates in
the commission thereof by another without which it would not
have been committed, shall also be held liable under this Act.
The above acts would result in' an intimii'dating,
hostile, or offensive enVir'onment for the employee.
(b)
205
The said rules and regulations issued pursuant to this sec—
tion shall include, among others, guidelines on proper decorum
in' the workplace and educational or trainin"g insti‘uttions.
(b) Create a committee on decorum and investigation of
cases on sexual harassment. The committee shall conduct meet—
in'gs, as the case may be, with other officers and employees,
PHYSICIANS AM) CRIMINAL Law
BASICS 0F PHILIPPINE MEDICALJL‘RISPRL.‘DE\.CF. AND Emits
208
for the purpose of defrauding the offended party or
his heirs.
11.13.
1.
Crun'es agam'st honor
Likely—A libel is public and malicious imputation of
(5)
209
That there is' m‘excusable 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.
PHYSICIANS AND CRJAHNAL Law
BASICS or PHILIPPINE MEDICAL )L'RISPRL'DENCE AND ETHICS
.
w..
cums—"F.
N.. -—.
an,
- .l-F-‘C
Upon Lydias arrival at the San Pablo Distn'ct
Hospital, she was wheeled into the operating room and
the petitioner and Dr. Ercillo re—operated on her be-
The Municipal trial Court in Cities (MTCC) convicted the petitioner. The petitioner appealed her con—
viction to the Regional Trial Court (RTC) which affirmed in tom the decision of the MTCC prompting the
petitioner to file a petition for review with the Court of
Appeals but to no avail. Hence this petition for review
on rem‘oran' assaili'ng the decision promulgated by the
Court of Appeals on October 24, 1995 affirming petitioner’s conviction with modification that she is further
directed to pay the heirs of Lydia Umali 950,000.00 as
indemnity for her death.
WV
lowed the ambulance.
cause there was blood oozing from the abdominal in'cision. The attending physicians summoned Dr. Bar—
tolome Angeles, head of the Obstetrics and Gynecology
Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in'
shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and
Dr. Ercrll'o that there was nothing he could do to help
save the patient. While petitioner was closm‘g the ab—
domin'al wall, the patient died. Thus, on March 24,
1991, at 3:00 o’clock in the morning, Lydia Umali was
pronounced dead. Her death certificate states “shock”
as the imm‘ediate cause of death and “Dissen'u'nated Intravascular Coagulation (DIC)" as the antecedent cause.
n—n-
they were waiting, Dr. Ercrll'o went out of the operating
room and instructed them to buy tagamet ampules
which Rowena's sister immediately bought. About one
hour had passed when Dr. Ereill'o came out again' this
time to ask them to buy blood for Lydia. They bought
type “A” blood from the St. Gerald Blood Bank and
the same was brought by the attendant into the operating room.,After the lapse of a few hours, the petitioner
informed them that the operation was finished. The operating staff then went inside the petitioner’s clinic to
take their snacks. Some thirty minutes after, Lydia was
brought out of the operating room in a stretcher and
the petitioner asked Rowena and the other relatives to
buy additional blood for Lydia. Unfortunately, they
were not able to comply with petitioner’s order as there
was no more type “A” blood available m' the blood
bank. Thereafter, a person arrived to donate blood
which was later transfused to Lydia. Rowena then no—
ticed her mother, who was attached to an oxygen tanlg
gasping for breath. Apparently the oxygen supply had
run out and Rowena’s husband together with the driver
of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of
oxygen as soon as it arrived. But at around 10:00
o'clock RM. she went into shock and her blood pres—
sure dropped to 60/50. Lydia’s unstable condition necessitated her transfer to the San Pablo District Hospi—
tal so she could be connected to a respirator and further
examined. The transfer to the San Pablo City District
Hospital was without the prior consent of Rowena nor
of the other relatives present who found out about the
intended transfer only when an ambulance arrived to
take Lydia to the San Pablo District Hospital. Rowena
and her other relatives then boarded a tricycle and fol-
.lav:wv-—.-v~.
210
HELD: This court holds differently and tin‘ds
the ctr'curnstarices found by all three courts below insufficient to sustain a judgment of conviction against the
petitioner for the crime of recldess imprudence resulting in' horru'cide. The elements of reckless imprudence
are: (1) that the offender does or fails to do an act; (2)
that the dom'g or the failure to do that act is voluntary;
(3) that it be without malice; (4) that material damage
results from the reckless imprudence; and (S) that there
is inexcusable lack of precaution on the part of the offender, talcm'g into consideration his employment or oc~
cupation, degree of intelligence, physical condition, and
other circumstances regarding persons, time and place.
211
PHYSICIANS AND CRIMINAL Law
BASHS In: Pl-HIJPPINL- MEDICAL JL'RlSPRUDL—MZIE AND ETI-Iics
Samara Care: Homade" tbmugb rack/err m'Ipmdma—Tlus is a
crimin"al case wherein two (2) physicians were acquitted but a nurse was convicted of homicide through
reckless Lm'prudence, the facts of which are as follows:
All three courts below bewail the inadequacy of
the faCIli'ties of the clini'c and its unu'diness; the lack of
provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardiopulmonary test prior to the operation; the omission of
any form of blood typing before transfusion; and even
the subsequent transfer of Lydia to the San Pablo Hos—
pital and the reoperation performed on her by the peritioner.
The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was not able to render a sentence of
conviction but it is not blind to the reckless and imprudent manner in' which the petitioner carried out her duE165.
.
.I
Present during the operation were with Dr. Favis,
head nurse Lorenza Somera, nursing students Valentin-'a Andaya and Consolation Montinola who was the
sterih"zi.n'g nurse, and assistant surgeon Dr. Armando
Bartolome.
After scrubbing his hands and otatninin"g AnastacIa
Dr. Favis' asked for a 10% cocaine solution with adrenalin
_,.
,—._ ._ _.— .
with which he swabbed Anastacia’s throat Then, the operating table was prepared. Dr. Favis asked Dr. Bar—
m.-—-. -._,
In litigations involving medical negligence, the
plaintiff has the burden of establishing appellant’s neg—
ligence and for a reasonable conclusion of negligence,
there must be proof of breach of duty on the part of
the surgeon as well as a casual connection of such
breach and the resulting death of his patient.
In May 1928, Pedro Clemente took his minor daugh—
ter Anastacia Clemente to Dr. Gregorio Favis for
treatment Dr. Favis diagnosed that Anastacia needed to
undergo tonsillectomy. Pedro agreed. Dr. Favis scheduled the operation on May 26, 1928 at 7:00 am. at St.
Paul’s Hospital where he requiated Sister Mercedes to
make the usual necessary preparations for tonsrll’ectorny.
w...
Even granting argue/Ida that the Inadequacy of the
facrli'ties and untidiness of the clinic; the lack of provi—
sions; the failure to conduct pre-operation tests on the
patient; and the subsequent transfer of Lydia to the San
Pablo Hospital and the reoperation performed on her
by the petitioner do indicate, even without expert testimony, that petitioner was recklessly imprudent in the
exercise of her duties as a surgeon, no cogent proof ex—
ists that any of these circumstances caused petitioner’s
death. Thus, the absence of the fourth element of recltless imprudence: that the injury to the person or prop—
erty was a consequence of the reclcless imprudence.
213
Wwfi._ .-.
Petitioner DR. NINEVETCH CRUZ is hereby
ACQUI'ITED of the crime of recldess imprudence resulting in homicide but is ordered to pay the heirs of
the deceased damages.
tolome for the novocain’e solution. Nursrn‘g student
Montinola handed to Dr. Bartolome a syringe filled with
solution and in' turn, Dr. Bartolome handed it to Dr. Favis,
who then injected it to Anastacia A few minutes later, Dr.
Favis asked for more solution, which be injected again
to Anastacia. After the second injection, noticing that
Anastacia became pale and acted as if she was diz'zy Dr.
Bartolome called Dr. Pavis' attention to which Dr. Fav15'
dismissed the same as not unusual and Instead asked for
a third syringe of the solution, which he again injected to
Anastacia.~ Moments later, Anastacia showed symptoms of
convulsions to which Dr. Bartolome again called Dr.
Favis' attention. Theteupon, Dr. Favis ordered adrena~
lin and injected it to Anastacia. Dr. Favis adrrurii"steted a
second injection (adrenalin) but Anastacia sh0wed
BASIrs. or PHILIPPINE MEDICAL Jl'l‘tlSl’RL-‘DL-NCF. AND ETIIKZS
more signs of convulsion. After a few moments, Anastacia
died. Dr. Favis then asked if the novocain'e was fresh.
Nurse Somera replied that it was not novocain'e but a 10%
solution of cocaine.
Chapter 12
HOSPITALS AND THE LAW
Consequently, Drs. Favis and Bartolome together
with nurse Somera were charged with homicide through
reckless irn'prudencc before CFI Manda. Nursing student Montinola testified that she did not know who
prepared the drugs but heard Dr. Favis order cocaine with adrenalin for injection and likewise heard
nurse Somera verified the order. Evidence for the prosecution and the defense established that Dr. Faws' indeed
ordered 10% cocain'e solution for injection and that
nurse Someta verified the same.
12.1. Hospital defined.1—-A hospital is an institution
maintained for the reception, care and treatment of those in
need of medical and surgical attention. It also includes estab—
lishments which admit and take care of persons not sick but
require attention ltk'e chil'der'th, body debility, mental condi—
tions, etc, hence, there are maternity clini'cs, mental hospitals,
hOSpitals for the crippled and aged. It includes certain clini'cs,
dispensaries and out—patient departments not maintained by
regularly established hospitals.
However, on May 7, 1929, CFI Manila' acquitted
Drs. Favis and Bartolome of homicide through reckless 1n)"prudence, but found nurse Somera guilty. She was, therefore, condemned to (a) suffer one year and one day im~
prisonment, (h) indemnify the heirs of the deceased
Anastacia Clemente the sum of $1,000.00, with subsidiary imprisonment in' case of insolvency, (c) suffer fur—
ther the accessories provided in' the Penal Code, and
(d) pay one—third of the costs. Nurse Somera appealed to
the Supreme Court
Hospital is a place devoted pnm'_aril'y to the maintenance
and operation of facili'ties for the diagnosis, treatment and care
of individuals suffering from illness, disease, injury or deformity,
or in need of obstetrical or other medical and nursing care. It is
any institution, building or place where there are installed beds,
cribs, or basstn'ets for twenty-four hour use or longer by patients
in" the treatment of diseases, diseased—condidons, injuries, deformities or abnormal physical and mental state, maternity cases,
and all institutions, such as diose for convalescence, sanatoria or
sanitatial care in'firmities, nurseries, dispensaries and such other
names by which they may be designated.-7
On December 20, 1929, the Supreme Court affirmed
the Decision and held that nurses cannot just depend on
what doctors say; they have to know if the doctors‘ or—
A hospital is primarily a service institution whose concern
is to serve the patient, the doctors and the public.
' Solis, Pedro P., Medzr'aljungfz'mdeme (1980), p.166.
’- Hospital Licensure Act (RMA. 422), §2(a).
‘H‘n'I‘K'
r—mw-u—fn.
m“
.
ders are correct.
"M‘r-~v-'
214
215
Ill
BASICS or- PHiupemn MEDICM firmsmuorznrze AND ETHICS
216
Hosmais AND THE Law
Classrfi'cation of hospitals.3—Hospi'tals are classi-
12.2.
ties and adapts his condition to a specific environment.
fied as follows:
1.
Ar to Hope ofirg’irmzy admitted:
(a)
General hospital -— A general hospital is one conCerned with admission and treatment of a substantial range of disease or injury.
(b)
ripea'a/zz‘ed. borpz'ta/ — A hospital established to
admit specific illn'ess, treatment, organ affected
or for a class of people. Specialized hospital may
be devoted to:
(1')
Treatment of a particular type of illn'ess or
for a particular condition requiring a particular range of treatment
(11")
Treatment of patient suffering from dis-
(111”)
'3.
ease of a particular organ or groups of organs
(C)
Carmela: boipzr'al —— Hospital for the improve—
ment of the physical or aesthetic condition either by surgery or by physical means.
Ar to control a/I-dfzria/ma‘l rupparr‘t
Pablzr' or government baipifa/ — A hospital operated and maintained either partially or Wholly by
the national, provm'cial, municipal, or city gov—
ernment or other political subdivision, or by any
department, division, board or other agency
thereof.
.—_ _-.
For determinr'hg liability for negligence, private
hospitals are classrfi'ed into:
(i
Maz‘emzy boipzt'a/ — Hospital established for the
reception, care and treatment of expectant
mothers and care of the newly-born in'fants.
(C)
Surgical boipiz‘a/ — Hospital where operative procedures are employed as a mode of treatment.
Private baipz‘z‘a/ — One which is privately owned,
especially established and operated with funds
raised or contributed through donations, or private capital or other means, by private individuals, association, corporations, religious organization, firm, company or joint stock association.
Treatment of patient of a particular class
Dza'g/zoilz'r boipital —— Hospital devoted solely to
the diagnosis of disease, injury, deformity, or
physical and mental conditions. It may be provided with x-ray and laboratory fatalities for diagnostic purposes.
(d)
(a)
Fumfiona/ [lairfiimz'z'ont
(a)
217
Rebabz'lz‘tm‘w‘n bopz‘ta/ — Hospital established to
enhance return of a disabled to his usual acn'vi-
meW_
3 Solis, Pedro P., Medir'aljun’ipnrdma (1980), pp. 166-167.
Pn'z/ate (barz'fab/e or clean/owing bopifal ——
This is a hospital established for public
benefit by private individuals or corporation and not conducted for pecuniary gain
of the management, officers or others. It
declares no dividends, no capital stock
Seeks no profit and is supported by chari—
table donations.
Hummus AND THE L.\\t
Basics or Pmupvmc- LVIFDICAL JL'KJSPRI'DF..\('.E AM) ETHICS
218
following are the duties expected from hospitals under
the doctrine of respondent supen’or:
Private pg: baprita/ — HosPital established
by private individual or corporation for
profit.
(a)
The use of reasonable care in' the maintenance
of safe and adequate facflities and equipment;
(13)
The selection and retention of competent physi—
Cian's;
(C)
The overseeing or supervision of all persons
who practice medicrn'e within its walls; and
(d)
The formulation, adoption and enforcement of
adequate rules and policies that ensure quality
care for its patients.
.,-.~_. _., _.,
(11')
1.
Vicarious liabrh'ty of hospital“
Government or pub/rt boipz'tal.——Under the doctrine of
state immunity from suit1 a public or government
hosPital cannot be sued. However, this rule has been
modified that distinction is now drawn between government hosPital established for governmental function—not liable—and government hospital for proptietary function—liable.
Prz‘ilai‘e charitable, voluntary or e/eemaiyrmg/ bomz'ta/.—
derives support from voluntary contributions or dona—
tions for the care and treatment of charity patients.
wt-“
12.3.
._ ._—,._-.
..
_.
._. ‘.
,ar. ._-—u —.r_
Under the Independent Contractor Tbeog, a patient
who enters a private charitable hospital does not have
a contract with the hospital but with the attending
physician.
Private bonnie/for prfiot may be held vicariously liable
for the negligent acts of its agents or employees. The
Jurisprudence on vicarious liabili"ty of hospitals
FACTS:
w. -
Under the Imp/zed Waiver Theory, a patient who enters a private charitable hospital waives the rights to
claim for damages knowtn'g fully—well that it merely
derives support from voluntary contributions or dona—
nons.
12.4.
PROFESSIONAL SERVICES, INC. vs.
NATIVTDAD and EN RIQUE AGANA
GR. No. 126297,]anuary 3], 2007
Thus, under the Trust Fund Doctrine, no fund is available for payment of damages.
Considering that it performs quasi-public functions, it is also immune from suit like government
hospitals under the Pub/it Po/ig Theog.
219
HELD: Citing Rama: rt CA (GR. No. 124354,
December 29, 1999, 321 SCRA 584), the Court said that
PSI was vicariously liable for the negligence of Dr.
Amptl‘ under Article 2180 of the Civtl' Code since an
employer—employee telan'onship exists between PSI and
Dr. Ampil'. Likewise, it added that PSI’s liability is anchored upon the agency principle of apparent authority
or agency by erlpope/ and the doctrine of corporate neg~
ligence which have gamed acceptance Ln" the dctermina~
tion of a hospital‘s liability for negligent acts of health
professionals. “The presmt caSe serves as a perfect
platform to test the applicability of these doctrines,
thus, enriching out jurisprudence,” the Court said.
NOTE however that, if in the above Decision the
Court said that PSI was vicariously liable for the negli—
gence of Dr. Ampil under Article 2180 of the CiVil'
Wm.. “
‘ [brill at pp. 172—176.
Sigma
¥_—#
#
Hnsvims AND [HE Luv
Code, the Court, in resolving PSI's motion for recon—
sideration thereof on February 11, 2008, upheld the
trial court's finding holding PSI dtr‘ectly liable under
Article 2176 for breach of duty based on the doctrine of
corporate negligence. It noted that Dr. Ampil and Dr.
Fuentes operated on Natividad with the assistance of
Medical City Hospital’s staff. As such, it is reasonable to
conclude that PSI, as the operator of the hospital, has
actual or constructive knowledge of the procedures carried out, particularly the report of the attending nurses
that the two pieces ofgauze were rru‘ssing.
Around midnight of 25 May 1976, Corazon
started to experience mtl'd labor pams‘ prompting Corazon arid Rogelio Nogales ("Spouses Nogales") to see
Dr. Estrada at his home. After examini'ng Corazon, Dr.
Estrada advised her immediate admission to the Capitol
w <-.,-_ . _. _,.
BASICS ur- PlllLll'PlNl-Z MEDICALJL‘RISPRL'Dl'.‘N(_'F. AND ETl-llCS
rm
By its failure to investigate and inform Natividad
despite the attending nurses’ report, PSI not only
breached its duties to oversee or supervise all persons
who practice medicrn‘e within its walls but also failed to
take an active step in fixing the negligence committed,
the Court stressed.
Dr. Rosa Uy (“Dr Uy”), who was then a resident
physician' of CMC, conducted an internal exarrun'ation
of Corazon. Dr. Uy then called up Dr. Estrada to notify
_
As the hospital industry changes, so must the laws
and jurisprudence governing hospital liabLllth. The irn'—
munity from medical malpractice traditionally accorded
to hospitals has to be eroded if we are to balance the 111“
terest of the patients and hospitals under the present
.
.-. —
. .wr.w—~—»—.
m-. _
ROGELIO P. NOGALES vs. CAPITOL
MEDICAL CENTER
GR. No. 142625, December 19, 2006
Estrada (“Dr Estrada”) beginning on her fourth month
of pregnancy or as early as December 1975. While
Corazon was on her last trimester of pregnancy, Dr.
Estrada noted an Ln'crease in' her blood pressure and de~
velopment of leg edema tn'dicattn'g preeclampsia, which
is a dangerous complication of pregnancy.
him' ofher findui'gs.
Based on the Doctor’s Order Sheet, around 3:00
am, Dr. Estrada ordered for 10 mg. of valium to be
adrniru"srered immediately by intramuscular injection.
Dr. Estrada later ordered the start of intravenous adtrunJ"stration of syntocin'on admixed with dextrose, 5%,
in lactated Rt'ngers’ solution, at the rate of eight to ten
micro-drops per minute.
setting.
FACTS: Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was then 37 years old,
was under the exclusive prenatal care of Dr. Oscar
Medical Center (“CMC”).
On 26 May 1976, Corazon was admitted at 2:30
am. at the CMC after the staff nurse noted the written
admission request of Dr. Estrada. Upon Corazon‘s admission at the CMC, Rogelio Nogales (“Rogelio”) exe»
cured and signed the “Consent on Adrru‘ssion and
Agreement" and “Admission Agreement." Corazon was
then brought to the labor room ofthe CMC.
awn—w"
220
According to the Nurse’s Observation Notes, Dr.
Joel Enriquez (“Dr Enriquez"), an anesthesiologist at
CMC, was notified at 4:15 am. of Corazon’s admission
Subsequently, when asked if he needed the services of
an anesthesiologist, Dr. Estrada refused. Despite Dr.
Bstrada's refusal, Dr. Enrique: stayed to observe Corazon’s condition.
At 6:00 am, Corazon was transferred to Delivery
Room No. 1 of the CMC. M6110 am, Corazon’s bag
of water ruptured spontaneously. At 6:12 a.m., Cora—
zon’s cervtx' was fully drl'ated. At 6:13 am, Corazon
started to experience convulsions.
221
222
Hosvrmrs AND THE Law
BASICS or PHJLIPPlNE MEDICAL jumsracnem'cs AND ETHICS
223
At 6:15 am, Dr. Estrada ordered the injection of
ten grams of magnesium sulfate. However, Dr. Ely Vil-
forts, Corazon died at 9:15 am. The cause of death was
“hemorrhage, post partum.”
laflor (“DL Villa"flor”), who was assisting Dr. Estrada,
administered only 2.5 grams of magnesium sulfate.
ISSUE: Whether CMC is vicariously liable for
the negligence of Dr. Estrada.
At 6:22 am, Dr. Estrada, assisted by Dr. Vill‘aflor,
applied low forceps to extract Corazon’s baby. In the
process, a 1.0 x 2.5 cm. piece of cervical tissue was al—
legedly torn. The baby came out in an apnic, cyanotic,
weak and injured condition. Consequently, the baby had
to be intubated and resuscitated by Dr. Enriquez and
Dr. Payumo.
At 6:27 am, Corazon began to manifest moderate
vaginal bleeding which rapidly became profuse. Corazon’s blood pressure dropped from 130/80 to 60/40
within five minutes. There was continuous profuse
vaginal bleeding. The assisting nurse adrnint"stered he—
macel through a gauge 19 needle as a side drip to the
ongom'g intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing
and cross matching with bottled blood. It took ap—
proximately 30 minutes for the CMC laboratory, headed
by Dr. Perpetua Lacson (“DL Lacson"), to comply with
Dr. Estrada’s order and deliver the blood.
At 8:00 a.rn., Dr. Noe Espin'ola (“Dr. Espinola"),
head of the Obstetrics—Gynecology Department of the
CMC, was apprised of Corazon’s condition by tele»
phone. Upon being informed that Corazon was bleed—
ing profusely, Dr. Espinola ordered immediate hysterectomy. Rogelio was made to Sign a “Consent to Operation.”
Due to the inclement weather then, Dr. Espin‘ola,
who was fetched from his residence by an ambulance,
arrived at the CMC about an hour later or at 9:00 am.
He examined the patient and ordered some resuscitative
measures to be adtrurii"stered. Despite Dr. Espinola’s ef-|lllIIIIlIIIIIII‘tl-IllllllllIlllllilllltI
RULING: In general, a hospital 15 nor liable for
the negligence of an independent contractor—physiCian'.
There is, however, an exception to this principle. The
hospital may be liable if' the physician is the “ostensible”
agent of the hospital. This exception is also known as
the “doctrine of apparent authority.”
The doctrine of apparent authority essentially involves two factors to determine the liabili'ty of an inde—
pendent-contractor physicran‘.
The first factor focuses on the hospital’s manif'estations 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. In this regard, the hospital
need not make express representations to the patient that the treating physician is an employee of
the hospital; rather a representation may be general
and irn'plied.
The doctrine of apparent authority is a species of
the doctrine of estoppel. Article 1431 of the ClVfl 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 agains't
the person relying thereon." Estoppel rests on this rule:
"Whenever a party has, by his own declaration, act, or
orru'ssion, intentionally and deliberately led another to
believe a particular thing true, and to act upon such be—
lief, he cannot, in any litigation an'SIng out of such dec—
laration, act or omission, be permitted to falsrfy' it.”
In the instant case, CMC itn'pliedly held out Dr.
Estrada
tlltim.‘
95
a
uml’wr nF ;I‘l‘
MnJ-l—-‘
.-
Fr
Fr"
224
BASICS or PHILIPPINE MEDICAL Jumsvacoence AND ETHICS
HosrrrALs AND THE Law
CMC's acts, CMC clothed Dr. Estrada with apparent
authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent of
CMC. CMC cannot now repudiate such authority.
The records show that the Spouses Nogales relied
upon a perceived employment relationship with CMC
in' accepting Dr. Estrada's services. Rogelio testified
that he and his wife specifically chose Dr. Estrada to
handle Corazon’s delivery not only because of their
friend’s recommendation, but more importantly be—
cause of Dr. Estrada’s “connection with a reputable
hospital, the [CMC].” In other words, Dr. Estrada’s re—
lationship with CMC played a significant role in' the
Spouses Nogales’ decision In' accepting' Dr. Estrada’s
services as the obstetn‘cian-gynecolo'gist for Corazon’s
delivery. Moreover, as earlier stated, there is no showm'g
that before and during Corazon’s confinement at CMC,
the Spouses Nogales knew or should have known that
Dr. Estrada was not an employee of CMC.
First, CMC granted staff privtl'eges to Dr. Estrada.
CMC extended its medical staff and faCili'ties to Dr.
Estrada. Upon Dr. Estrada’s request for Corazon’s ad—
mission, CMC, through its personnel, readil'y accommodated Corazon and updated Dr. Estrada of her con—
di'tion.
Second, CMC made Rogelio sign consent forms
printed on CMC letterhead. Prior to Corazon's admis—
sion and supposed hysterectomy, CMC asked Rogelio
to sign release forms, the contents of which reinforced
Rogelio’s belief that Dr. Estrada was a member of
CMC’s medical staff.
Without any indication in these consent forms
that Dr. Estrada was an independent contractor—
physician, the Spouses Nogales could not have lmown
that Dr. Estrada was an independent contractor. Sig—
nificantly, no one from CMC informed the Spouses
Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr. Atencio, who was then a
member of CMC Board of Directors, testified that Dr.
Estrada was part of CMC’s surgical staff.
Third, Dr, Estrada’s referral of Corazon’s profuse
vaginal bleeding to Dr. Espinola, who was then the
Head of the Obstetrics and Gynecology Department of
CMC, gave the impression that Dr. Estrada as a member of CMC’s medical staff was collaborating with other
CMC-employed specialists in' treating Corazon.
The second factor focuses on the patient’s reli—
ance. It is sometimes characten'Zed 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.
Further, the Spouses Nogales looked to CMC to
provide the best medical care and support services for
Corazon’s delivery. The Court notes that prior to Cora—
zon’s fourth pregnancy, she used to give birth inside a
clini'c. Considering Corazon’s age then, the Spouses
Nogales decided to have their fourth child delivered at
CMC, which Rogelio regarded one of the best hospitals
at the time. This is precisely because the Spouses Nogales feared that Corazon might experience complications during her delivery which would be better ad—
dressed and treated in' a modern and big hospital such
as CMC. Moreover, Rogelio’s consent in' Corazon’s hys—
terectomy to be performed by a different physician,
namely Dr. Espin‘ola, is a clear indication of Rogelio's
confidence in. CMC’s surgical staff.
C
12.5.
Jurisprudence on non-li'abili"ty of hospital
ROGELIO E. RAMOS, et al. vs. COURT OF APPEALS
GR. No. 124354, December 29, 1999
FACTS:
Sip/m
HELD: We now discuss the responsibility of
the hospital in this particular incident The unique prac-
225
226
BASIS OF PHILIPPINE MEDICAL JURISPRL'DENCE AND ETHICS
tice (among private hospitals) of filling up specialist
staff with attending and visiting “consultants,” who are
allegedly not hospital employees, presents problems in'
apportioning responsibility for negligence in' medical
malpractice cases. However, the difficulty is only more
apparent than real.
In the first place, hospitals exercise significant
control in' the hirin"g and firing of consultants and in' the
conduct of their" work within the hospital premises.
Doctors who apply for “consultant” slots, visiting or at—
tending, are requir'ecl to submit proof of completion of
residency, their educational qualifications; generally,
evidence of accreditation by the appropriate board (dip—
lomate), evidence of fellowsiu'p in' most cases, and ref—
erences. These requirements are carefully scrunniz"ed by
members of the hospital adrriini"stration or by a review
committee set up by the hospital who either accept or
reject the application. This is particularly true with re—
spondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico—pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and
responsibilities, for the pri'Vil'ege of being able to main—
tain" a clinic in the hospital, and/or for the pn'Vil'ege of
admitting patients into the hospital. In addition to
these, the physician’s performance as a specialist is gen—
erally evaluated by a peer review committee on the basrs'
of mortality and morbidity statistics, and feedback from
patients, nurses, interns and residents. A consultant re—
miss in' his duties, or a consultant who regularly falls
short of the numrn"um standards acceptable to the hospital or its peer review comrru’ttee, is normally politely
terminated.
In other words, private hospitals, hir'e, fire and ex—
ercise real control over their' attending and visiting
“consultant” staff. While “consultants” are not, techni-
Hosanna AND THE Law
227
cally employees, a pom't which respondent hospital as—
serts in' denying all responsibility for the patient’s condi—
n'on, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks
of an employer—employee relationship, with the excep—
tion of the payment of wages. In assessm'g whether
such a relationship in‘ fact exists, the control test is determinin"g. Accordingly, on the basis of the foregom’g,
we rule that for the purpose of allocating responsi'bili"ty
in' medical negligence cases, an employer-employee rela—
tionship in‘ effect exists between hospitals and their' at—
tending and visiting physicians. This being the case, the
question now arises as to whether or not respondent
hospital is solidaril'y liable with respondent doctors for
petitioner’s condition.
The basis for holding an employer solidaril'y re—
sponsible for the negligence of its employee is found in'
Article 2180 of the CiVil' Code which considers a person
accountable not only for his own acts but also for those
of others based on the former’s responsibility under a
relationslu‘p ofpain'a poten‘ar. Such responsibility ceases
when the persons or entity concerned prove that they
have observed the dili'gence of a good father of the
fan'ul'y to prevent damage. In other words, While the
burden of prov1n‘g negligence rests on the plaintiffs,
once negligence is shown, the burden sl’ufts to the respondents (parent, guardian, teacher or employer) who
should prove that they observed the diligence of a good
father of a family to prevent damage.
i
In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed
to adduce evidence showm‘g that it exercised the diligence of a
good father of a famfly in‘ the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting
to offer such proof, or proof of a Simil"ar nature, respondent
4‘
228
Hosrrrau .IND THE Law
BASICS OF PHILIPPINE MEDICAL JL'IUSPRL'DENCE AND ETHICS
hospital thereby failed to discharge its burden under the last
paragraph of Article 2180. Having failed to do this, respondent
hospital is consequently solidaril'y responsible with its physicians
for Erlin'da’s condition.
12.6. Attendance to emergencies or serious cases.—
Emergency is a condition or state of a patient wherein based on
the objective findings of a prudent medical officer on duty for
the day there is Immediate danger and where delay in ini'iial
support and treatment may cause loss of life or cause permanent
disability to the patient; while serious case refers to a condition
of a patient characterized by gravity or danger wherein' based on
the objective findings of a prudent medical officer on duty for
the day when left unattended to, may cause loss of life or cause
permanent disability to the patient.5
In emergency or serious cases, it shall be unlawful for any
proprietor, president, director, manager or any other officer,
and/ or medical pracn'tioner or employee of a hospital or medi—
cal clini'c to request, solicit, demand or accept any deposit or any
other form of advance payment as a prerequisite for confine—
ment or medical treatment of a patient m‘ such hospital or medi—
cal clini'c or to refuse to admmi"ster medical treatment and sup—
port as dictated by good practice of medicrn'e to prevent death
or permanent disabili‘ty.6
12.7. Transfer of patient—After the hospital or medical clInIHC mentioned above shall have admuii"stered medical
treatment and support, it may cause the transfer of the patient to
5 An act penalizrn'g the refusal of hospitals and medical clirn'cs to admim"ster
appropriate 1mm medical treatment and support in' emergency or serious cases,
amending for the purpose Batas Pambansa Bil'ang 702, otherwise known as "An
act profu'biun‘g the demand of deposits or advance payments for the confine—
ment or treatment of pau'ents in hospitals and medical clmi'cs in' certain. caSes”,
(RA. 8344), §2(a) (Sr (b).
6 RA. No. 8344, gt.
229
an appropriate hospital consistent with the needs of the patient,
preferably to a government hospital, specially in the case of poor
or indigent patients. 7
By reason of inadequacy of the medical capabili'n'es of the
hospital or medical clini"c, the attending physician may transfer
the patient to a faCIli'ty where the appropriate care can be given,
after the patient or his next of km consents to said transfer and
after the receivm’g hospital or medical dime agrees to the trans—
fer. However, when the patient is unconscious, incapable of
givtn'g consent and/or unaccompanied, the physician can transfer the patient even without his consent provided such transfer
shall be done only after necessary emergency treatment and
support have been a_dmin.i"stered to stabilize the patient and after
it has been established that such transfer entails less risks than
the patient’s continued confineirient.8
12.8. Hospital Detention Lava—Under Republic Act
No. 9439, or the Hospital Detention Law, it shall be unlawful
for any hospital or medical clini"c 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 nonpayment
in' part or In full of hospital bills or medical expenses.”
R.A. 9439 applies to patients who have fully or partially recovered and who already wish to leave the hospital or medical
clini'c but are financially incapable to settle “whether in' part or In'
full their' hospitaliz'ation expenses in'clu‘din'g professional fees
and medicrn'es.”
Under the Act, patients shall be allowed to leave the hospital or medical cliru"c with a right to demand the issuance of the
corresponding medical certificate and other pertinent papers
7 RA. No. 3344, §3.
8 RA. No. 3344,§1.
230
BASICS OF PHILIPPINE MEDICAL JURISPRL'DEVCE AND ETHICS
required for the release of the patients from the hospital or
medical cliru't upon the execution of a promissory note covering
the unpaid obligation.
The promissory note shall be secured by either a mortgage
or by a guarantee of a co-maker who Will' be jotn’tly and severally
liable with the patient for the unpaid obligation.
In case of a deceased patient, the corresponding death cer—
tificate and other documents required for interment and other
purposes shall be released to any of his survivm'g relatives requesting the same.
The law shall not be applicable to patients who have stayed
in private rooms.
Any officer or employee of the hospital or medical clini"c
who violates the law Will' be punished by a fine of not less than
920,000 but not more than 950,000,0r un'prisonment of up to
Six' months, or both such fine and imprisonment at the discretion of the court.
Chapter 13
PHYSICIANS AND EVIDENCE
13.1. Evidence.—-Evidence is the means, sanctioned by
the Rules of Court, of ascertainin"g in' a judicial proceeding the
truth respecting a matter of fact. As a part of procedure, evidence sigru'fies those rules of law whereby it is determined what
evidence should be admitted and what should be excluded in
each case and what is the weight to be given to the evidence
admitted.1
13.2. Qualification of witnesses—Except as otherwise
provided by law, all persons who can perceive, and perceivm'g,
can make their known perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the
case, or conviction of a cnm'e unless otherwise provided by law,
shall not be ground for disqualification?—
Physicians can become witnesses in' five general categories
of cases: 1) crirrun"al cases (i.e., cases involvm'g deaths or trau—
matic injuries from gunshots, stabbin'gs or other Violent acts); 2)
civ1l' personal injury litigation (1e, cases to recover money damages); 3) other civ1l' litigation involvmg patients (i.e., (suits with
respect to termination of life support in terminally ill‘ patients);
4) adinini"strative adjudication of patient claims for government
benefits (i.e., claims for 555 or GSIS disability benefits); and 5)
civfl litigation involvm‘g buSin'ess aspects of practice (i.e., suits
regarding denial or revocation of medical licenses).
‘ Bernardo, Oscar B., Dimming ovaide/m (2000), p. 71.
2 Rules on Evidence, Rule 130, §7_.0,
231
230
Basrcs 0F PHILIPPINE MEDICAL )URISPRL'DENCE AND ETHICS
required for the release of the patients from the hospital1m
medical clini't upon the execution of a promissory note covering
the unpaid obligation.
The promissory note shall be secured by either a mortgage
or by a guarantee of a co-maker who wrll' be jotn‘tly and severally
liable with the patient for the unpaid obligation.
In case of a deceased patient, the corresponding death cer—
tificate and other documents required for interment and other
purposes shall be released to any of his surviving~ relatives re—
questing the same.
The law shall not be applicable to patients who have stayed
in private rooms.
Any officer or employee of the hospital or medical clini'c
who violates the law Will be punished by a fine of not less than
£20,000 but not more than {350,000,0r Imprisonment of up to
SIX. months, or both such fine and imprisonment at the discre—
tion of the court.
Chapter 13
PHYSICIANS AND EVIDENCE
13.1. Evidence—Evidence is the means, sanctioned by
the Rules of Court, of ascertainian in' a judicial proceeding the
truth respecting a matter of fact. As a part of procedure, evidence signifies those rules of law whereby it is determined what
evidence should be admitted and what should be excluded in'
each case and what is the weight to be given to the evidence
admitted.1
13.2. Qualification of Witnesses—Except as otherwise
provided by law, all persons who can perceive, and perceivm'g,
can make their known perception to others, may be witnesses.
Religious or political belief, interest in. the outcome of the
case, or conviction of a mine unless otherwise provided by law,
shall not be ground for disqualification.“Physicians can become witnesses in five general categories
of cases: 1) crimin"al cases Ge, cases in'volvm'g deaths or traumatic injuries from gunshots, stabbin'gs or other violent acts); 2)
civfl personal injury litigation (Le, cases to recover money damages); 3) other civ11' litigation in‘volvm'g patients (i.e, (suits with
respect to termination of life support in terminally ill' patients);
4) admirii"strative adjudication of patient claims for government
benefits (Le, claims for SSS or GSIS disability benefits); and 5)
civ1l' lin‘gation in‘volv1n'g busrn'ess aspects of pracn‘ce (Le, suits
regarding denial or revocation of medical licenses).
‘ Bernardo, Oscar B., Dim‘ormg foEvidtm (2000), p. 71.
2 Rules on Evidence, Rule 130, §20
231
232
PHYSICIA‘VS AND EVIDENCE
Basxcs or PHILIPPINE MEDICAL Jumsmjmm
AND ETHICS
1.
Ordm'aol Miner: vi. expert zzzz'trzm.—‘Ordin‘ary witness testifi'es on matters that came to his knowledge through
his own senses and testifies on facts, while expert wit—
ness gives testimony on matters he knows a lot or he
has plenty of experience about and what he w1ll‘ be
givm‘g is opini'on evidence.
13.3. Physician—patient privflege.—A person author—
ized to practice medictne, surgery or obstetrics cannot in a civ1l'
case, without the consent of the patient, be examined as to any
advice or tr'eannent given by him' or any information which he
may have acquired in attending such patient Ln a professional
capacity, which information was necessary to enable him' to act
in that capacity, and which would blacken the reputation of the
patient.3
l.
2.
233
certificate and medical records of hospitals or asylums
containing privtl'eged matters.
:-
Duration fo the privilege. The privilege applies even af—
ter the death of the patient.
Carer wberepn'wl'ege do not apply
(a)
Personal injury suit by patient
(b)
In competency, guardianship and commitment
proceedings
(c)
The privflege does not apply in contests involv—
in'g the patient’s Will', not in any action involvm'g
the validity of a deed or conveyance executed by
the now—deceased patient or the decedent’s in—
tentions with regard thereto, or in any proceeding in which all parties are claimin"g through the
deceased patient.
Reqazr'iz‘e: fapn'z'z'leged mmmwzz'mfioru between dodor andpa—
tzem‘
(a)
That the privflege is clairn‘ed in a civtl' case;
(d)
Malpractice cases
(b)
That the person against whom the privilege is
(e)
Illegal purpose
claimed, is one duly authoriz'ed to practice medi—
crn'e, surgery or obstetrics or nursing;
Legal dzr'c/orurm—Tl’u's is another exception to the phy—
sician—patient privilege. The physician is charged with
safeguarding patient confidences within the con—
straints of the law, but certain disclosures must be
made. Birth‘s and deaths must be reported. Physicians
are required to report cases that may have been a re
sult of violence, Such as gunshot wounds, knifings, or
poisonings. They must also report deaths from accidental or unexplained causes. The physician must report any cases of contagious, infectious, or communi—
cable disease.
(c)
That such person acquired the information
while he was attending the patient in his personal capacity;
(d)
That the information was necessary to enable
him' to act in that capacity; it was confidential,
and, if disclosed, shall tend to blacken the char—
acter of the patient.
561903 of if): pn‘wl'ege.——The privd’ege applies to the testimony of the physician on the stand or to any affidavit,
3 Rules on Evidence, Rule 130, §Z4(c).
Dug! f0 :ofirzdenfia/zy eadendt to file boipzt'aZr.—The duty of
confidentiality applies with equal vigor to hospitals.
238
PHYSICIANS AND EVIDENCE
Basrcs OF PHILIPPINE MEDlCAL JL'RISPRUDENCE AND ETHICS
whom the privilege is claimed is not one duly authoriz'ed to practice medicine. He is stm'ply the patient’s
husband who Wishes to testify' on a document executed
by medical practitioners. Plainl'y and clearly, this does
not fall witl'u'n the claimed prohibition. Neither can his
testimony be considered a Circumvention of the prohi—
bition because his testimony cannot have the force and
effect of the testimony of the physician who examined
the patient and executed the report.
13.5. Expert testimony—The opini'on of a witness on a
matter reqturin"g special knowledge, skill', experience or training
which he is shown to posscss, may be received in evidence.5
and care that are commonly p055essed and exercised by other
reputable physicians in the same or a Simila"r locality. Physicians
who represent themselves as specialists must meet the standard
of practice of their spectal'ty. Whether or not they have met
these requirements in' treating a particular patient is generally a
matter for the court to decide upon the basis of expert testimony provided by another physician. Negligence is not presumed; it must be proved.6
1.
Preiem‘atz'on foeapen‘ mm”)
(a)
Qua/fling a miner: a: an expert—There is no rigid
rule which may or can ever be laid down as to
what is the sufficient qualification of an expert.
The guiding principle is “helpfulness to the
court.” The only true criterion is this: On the
subject on which the expert is to testify, can a
court receive from him' appreciable help? To
qualify an expert, after asking from him his personal Circumstances, inquire about his (1) academic background on the subject;
his experience, professional standing and trainin"g on
the said line; (iii) the relative objectivity of his
views; (iv) the degree of concordance of his
views with the facts proved.
(b)
Admin-billy f0 axpen‘ when—As a general rule,
three things must concur to justify the admis—
sion of expert tesum'ony.‘
When a lawyer calls a physician to solicit his or her help in
the role of an expert assessm‘g the care provided in a given case,
that physician’s professional judgement is implicitly recogniz'ed.
The physician undertakes a grave responsibility that may have
serious im'pact on the plaintiff, the defendants, the legal system,
and society at large. The “expert” physician is being asked to
conduct a peer review and educate those involved in the proeess
of a judicial adversarial adjudication.
Providing an expert opirii"on is a civic responsibility to be
undertaken only with the objective of educating those involved
with the legal process in' a particular case. Medico—legal cases are
assessed, tried, and adjudicated largely on the basis of opmi"ons
given by physicians on the standards of care provided by other
physicians.
If a physician were held legally responsible for every unsuc—
cessful result occurring in treatment, no person would undertake
the responsibility of practicm'g medicm'e. The courts hold that a
physician must use reasonable care, attention, and diligence in
the performance of professional services, follow his or her best
judgment in treating patients, and possess and exercise the skill’
5 Rules of Court, Rule 130, §49.
239
(i)
The subject of his' opinion must be so re—
lated to some specializ‘ed field of knowl—
edge that the inference or conclusions
drawn by the expert are beyond the ability
of the average person. In other words, he
5 Kirin Mary E. and Derge, Eleanor F., T/Je Medita/Arirr'i'ant, 6lh ed. (1988), p. 43.
240
Pm’nam‘s AND EVIDENCE
BASICS or PHILIPPINE MEDICAL JL’IUSFRL’DENCE AND ETHICS
(d)
'
must testify to lmowledge or experience
that men not specially drilled to have, and
cannot be obtained from ordinary wit—
nesses.
The expert must be shown to possess the
knowledge, skill‘ or experience needed to
inform the court in the particular case
under consideration.
7 Coronel, Antonio, Handbook on Tn‘a/Pmm're, 1990 ed, p. 95.
It zr' notproper [0 include arm/2,79%”: not Imported bl
magma—The exception is,
upon assurance of
the proponent of the witness, supporting evidence Will' be presented later on to establish such
facts. If supporting evidence is not given later,
then the court should disregard the opini'on of
the expert on the matter.8
thzg'ation f0 medua/ ngc/zg'ema9—When a claim. is’
brought against a physician today, the vicnm' of
medical negligence, as well as his or her attorney,
is embarkin’g upon a formidable task. Somehow
most defendants in' such cases are unable to admit that_they are capable of making a mistake.
The testimony must be relevant, that is to
say, it must relate to the matter in" issue.
For example, the testimony of a doctor as
to the effect of an operation on the brain'
of a lunatic is not admissible if there is no
evidence that the defendant has ever been
operated on the rule then is that expert
testimony should not be allowed to m—
vade the ifeld of common knowledge. If
the subject is one of common knowledge,
and the facts can be intelligently described
to the court and understood by it, so that
it can form its own opinii'on on the basis
of said facts, the opini‘on of the expert
Will. be rejected.7
(c) The asking of bypat/Jetzr'a/ yummy—A hypothetical
question should, as a general rule, be as short as
possible and limi”ted to the essential facts. Instead
of one long, complicated question, several short
hypothetical questions are preferable. The hypothetical questions should always be prepared in'
advance With the help of the expert; if the expert
is' unavailable, make certain that the questions are
submitted to him' before the trial begins.
241
Expert medical testimony is required in order to prove a medical negligence case. This
means that qualified physicians must be found
who are unllin"g to step forward on behalf of the
victim' and testify against another doctor. When a
physician takes this courageous step the medical
community has generally Subjected him or her to
a great deal of pressure. There are, however, distin'guished physicians who have been w1ll1n"g to
put principle ahead of popularity in" order to correct a wrong and to improve the medical professron.
All of the foregom'g—c‘oupled with the fact
that only the most seriously injured victim's’
claims can be pursued because of the large expense involved—make these cases extremely
hard fought, emotionally taxrn'g for both the at—
5 Mid.
9 Internet — httpz/ /www.medicalrnaltom/realidtes_of_litgan'on.htm.
242
PH‘rSICIANS AND EVIDENCE
BASICS 0F PHILIPPINE MEDICAL JLIMSPRLYDENCE AND ETHXCS
in'g many years ago, it is equally ina'ppropriate for
that physician to provide expert opini'on on a recent case, unless a Similar" declaration and learning procedure have occurred. The appropriate
Opini'on is provided by a peer, a physician of
Simil'ar qualifications and practicm'g under sumla"r
circumstances. The opini'on should be based on
the information the physician of the case had as
clini'cal events unfolded, and not influenced by
the “retroscopic” perspective of a known bad
outcome. Upon a review of all the clinical facts
provided, an opini'on should be formulated and
discussed verbally with the lawyer who requested
the opini'on. If that lawyer requires a written re—
port from the expert, the expert w1ll' be so ad—
vised. A written report must use clear language
understandable to a lay person.
rorney and the client, and far more difficult than
any other litigation.
Egbert twin/org! genera/)1 re/z'er/ @on m' map/radix
nah—Generally, expert medical testimony is re—
lied upon in' malpractice suits to prove that a
physician has done a negligent act or that he has
deviated from the standard medical procedure.
When 545m temp/011} dziy‘J'e/rred wit'J/ in mapmn‘ire
mitt—When the doctrine of rat pz'ra [aquz’tur is
avail‘ed by the plain'tiffl the need for expert medical testim'ony is dispensed with because the injury
itself provides the proof of negligence. The reason is' that the general rule on the necessity of
expert testimony applies only to such matters
clearly within the domain' of medical science, and
not to matters that are within" the common
knowledge of mankind which may be testified to
by anyone familiar with the facts.
Competent ape/1 wineries—Ordinarily, only physicians and surgeons of skill' and experience are
competent to testify as to whether a patient has
been treated or operated upon with a reasonable
degree of skill' and care.
Qua/zfi'rationr.—-The physician should have rele—
vant clini'ral expertise and familiarity with the is—
sues in' order to discharge the responsibility. It is
in'appropriate for those physicians who obtained
their' relevant qualifications recently to provide
opirii'ons on an event that occurred many years
ago without declaring this potential discrepancy
and without learning the practice patterns and
standards of care existing at the time of the
event. Similarly, if the physician stopped practic-
243
13.6.
Jurisprudence on expert witness
PEOPLE vs. ROGELIO PELONES
GR. Nos. 86159-60, February 28, 1994
230 SCRA 379
FACTS:
Jose Malta and Guill‘errno Solin‘a were
co-employees of Rogelio Pelones in' the New Star Farm
located at Talisay, Tiaong, Quezon. Pelones was however subsequently dismissed from die service when
Soliri'a reported to Rudy Tan, owner of the farm, that he
(Pelones) stole chickens and brought a girl‘ to the nipa
hut in' the farm.
Shortly before midnight of 18 August 1986, Malto
and Solm‘a were inside the poultry farmhouse when
Pelones, together with five others, armed with bladed
weapons, suddenly appeared, forcibly dragged the two
outside, and made them face the wall. Upon signal of
244
BASICS or PHILIPPINE MEDICAL )URISPRUDENCE AND ETHICS
PHYSICIANS AND EVIDENCE
one of the malefactors, Pelones started attacking Solin'a,
and after a second, another unidentified attacker assaulted Malto with a bladed weapon. Although critically
wounded, Malto was able to escape finally from his assailants. He sought refute in the office of the New Stat
Farm where he fainted and regained consciousness only
in the Quezon Memorial Hospital, Lucena City. Alth0ugh his wounds were considered fatal, he nonetheless survived to testify' against Pelones. Soliri'a was not
as lucyk, he succumbed to his injuries.
in' the field of medicm'e, must give way to the expert testirn'ony of the examinin"g physician that Solin‘a’s wounds
Nos. 1 and 2 were fatal and that he expired about mid—
night of 18 August 1986.
Pelones professed tnn'ocence. I-le claim'ed that at
the time of the Incident he was at home with his wife
some three (3) Lil'ometers away from the New Star
Farm. Although his alibi was corroborated by the testimony of his Wife and his mother—in-law, the Court a
quo did not believe his defense and proceeded instead
to convict him’.
In attempting to reverse the verdict of the tnal'
court, appellant engages in pathetic excuses, concocting
a scenario of what might have happened instead, and
posing questions that should have been asked during
the trial. Worse, without questioning the competence of
the doctor who conducted post-mortem examination
on the remains' of victim" Solin'a, appellant challenges as
without basis the doctor’s findings that wounds Nos. 1
and 2 of Solin‘a were fatal and Instantaneous cause of
death, absent any Indication that such wounds penetrated the heart. In the same vein, appellant asserts that
“the probability is strong that the wounds were inflicted
much . . . earlier than ten (10) hours before 10:30 A.M.
of August 18 because death due to loss of blood is not
instantaneous upon infliction of the wound.”
HELD: Under the Rules of Court, the opini'nn
of a witness on a matter requirin"g special knowledge,
skill‘, experience or trainin"g, may be received in‘ evidence
only when he is shown to possess such competence.
Hence, the supposed medical evaluation made by appellant or his counsel, without showtn'g their competence
DR. NINEVETCH CRUZ vs. COURT OF APPEALS
GR. No. 122445, November 18, 1997
FACTS: On March 22, 1991, prosecution wit—
ness, Rowena Umali De Ocainpo, accompanied her
mother to the Perpetual Help Clini'c and General Hospital situated in Balagtas Street, San Pablo City, Laguna.
They arrived at the said hospital at around 4:30 in' the
afternoon of the same day. Prior to March 22, 1991,
Lydia was examined by the petitioner who found a
“myorna” in her utt-nis, and Scheduled her for a hyster—
ectomy operation on March 23, 1991. Rowena and her
mother slept in the clinic on the evening of March 22,
1991 as the latter was to be operated on the next day at
1:00 o’clock in the afternoon. According to Rowena,
she noticed that the clinii'c was untidy and the Window
and the floor were very dusty prompting her to ask the
attendant for a rag to wipe the window and the floor
with. Because of the untidy state of the clirii'c, Rowena
tried to persuade her mother not to proceed with the
operation. The following day, before her mother was
wheeled Into the operating room, Rowena asked the petitioner it" the operation could be postponed. The petitioner called Lydia into her office and the two had a
conversation. Lydia then inf'orrncd Rowena that the petitioner told her that she must be operated on as scheduled.
Rowena and her other relatives, namely her hus—
band, her sister and two aunts waited outside the operating room while Lydia underwent operation. While
they were waiting, Dr. ErCill‘o went out of the operating
room and instructed them to buy tagamet ampules
which Rowena’s sister immediately bought. About one
hour had passed when Dr. Erctll'o came out again this
245
PHYSICMIVS AND EVIDENCE
BASICS OF PHILIPPINE MEDICAL )umspaeomce AND ETHICS
50 c.c., left paracolic gutter
200 c.c., mesenttic area,
100 c.c., tight pelvic gutter
stomach empty.
Other visceral organs, pale.’,
Will' you please erp_la1n’ that on (m') your own language
or in ordin'ary...............
A.
There was a uterus which was not attached to
the adnexal structures namely ovaries which
were not present and also sign of previous surgical operation and there were (It?) clotted
Q.
A.
Q.
A.
{‘Q.
@P’OPMO
You mean to say there are no ovaries?
During that time there are no ovaries, sir.
And there were likewise sign of surgical su—
tures?
Yes, 5h.
How about the intestIn'es and mesenteries are
place (at) with blood clots noted betWeen the
mesenteric folds, Will' you please explain on (m')
this?
In the peritoneal cavity, they are mostly petri—
tonial blood..........
And what could have caused this blood?
Well, ordinai"Il'y blood is found Ln'side the blood
vessel. Blood were (:12) outside as a result of the
Injuries which destroyed the integrity of the
vessel allowm'g blood to sip (17?) out, srr'.
B___y____________L—g____
the nature of the ostmortem findm's indiIn' Exh, “A—l—B" can on tell the court
__________,__~_y___________cated
the cause of death?
___,_____£___s_g_Yes
5h. The cause of death is:
ros findin's
ar____pe
com.__.__________flg____atible
with hemorrhaic shock.
A.
Q.
?>
How about the Ovaries and adnexal structures?
They are rnisstn'g, 51:".
___y_____________sCan
ou tell the us what could have caused thi
____g1__sL_hernorrha'c
oclcD
_______g_________Well
hemorrhaic shock is the result of blood
loss.
th‘___________________at
What could have the effect of
loss of
blood?
_______fig__,____Unattended
hemorrhae str'. (Undersconn'g
supplied.)
The foregoing was corroborated by Dr. Nieto
Salvador:
blood, Sir‘.
0?"
250
And were you able to determine the cause of
death by Virtue of the examination of the
specmi'en submitted by Dr. Ariz'ala?
Without kn-owledge of the autopsy findings it
would be difficult for me to determin'e the
cause of death, sir.
Have you examined the post mortern of Dr.
Anz'ala?
.
Yes, Sir, and by We of the autopsy report in'
connection with your pathology report.
What could have caused the death of the vicElm—3W
__p_____g____(_)__p_Tln's
atholoic exarmn'ation are m' comati_________L_ble
with the erson who
sir____L__.
died
W_4__L____g_~__ill
Iou clam. to us the meanin‘ of hemorr_g1_____Lha
‘c corn atible?
__________p___Lr_________It
means that a ersn died of blood loss.
Lg__p_______p___eanm'
a erson died of non—relacement of
______s___—__________blood
and o the victIm' before she died there
was shock of d1m1m"‘sh of blood of the c1r'cula—
tion. She died most orobablv before the actual
blood loss su'.
__p_____,_comlete
Court: ____p__b__~*_____*ls
it ossile doctor that the loss of the blood
____(_)__p____was
due on at oeration?
___lp_M—Based
on m
atholo findtn‘ srr'.
251
Pmsrcmss AND EVIDENCE
BASlCS or Pl-IJJJPPINE MEDICAL )LmsmL-DENCE AND ETHICS
Q.
A
___s______What
could have caued this loss of blood?
Man
ir'. A atient who have underone surgg;___);___y___e.
Another ma be a blood vessel ma be cut
___~_L______(whil'e
on oeration and this cause. rz'r)____g,
bleedin‘
_y_______L__,_or
ma be set 111' the course of the oeration or
m___y_(_)___—L_a
be :1? he died after the oeration. Of
c_____________(_)_ourse
there are other cause :12.
Atty. Cachero:
Q.
___p___y__—_—_Eseciall
so doctor when there was no blood
_p___relacetnent?
A.
Yes. Sir." (Underscorin'g supplied.)
The testimonies of both doctors establish hemor—
rhage or hemorrhagic shock as the cause of death.
However, as lik'ewise testified to by the expert witnesses
in open court, hemorrhage or hemorrhagic shock during surgery may be caused by several different factors.
Thus, Dr. Salvador’s elaboration on the matter:
“Atty. Pascual:
a
Q.
Doctor, among the causes of hemorrhage that
you mentioned you said that it could be at the
moment of operation when one losses (in)
control of the presence, is" that correct? During
the operation there is lost (516') of control of the
cut vessel?
Yes, Sir.
Or there 15' a failure to ligate a vessel of considerable stz‘e?
Yes, 5n...
Or even if the vessel were ligated the lmot may
have slipped later on?
Yes, Sir.
>p>op>0>
252
An_'____________y__p.__d
vou also mentioned that it ma be ossible
al____.____4_¢___so
to some clottin defect is that correct?
M_y__(_)_a
be tit." (Undersconn‘g supplied).
Defense witness, Dr. Bu C. Castro also gave the
followm'g expert opiru'on:
“Q.
A.
Doctor even a patient after an operations (m)
would suffer hemorrage what would be the
possible causes of such hemorrage (m')?
____g_________as_Arnon
those would be what we call Intrav_____ggl___+e_____o___g_cular
Coaan'on and this is th reasn fr the
mg___,__—___p_______ybleedin
srr' which cannot be revented b
_L‘—QR___L__M___RDODC
it Will' haen to anone an" e and
__;__(_)_.__gto
anv ersons .m‘ s' .
COURT:
A.
What do you think‘ of the cause of the bleeding,
the cutting or the operations done in' the body?
Not related to this one, the bleeding here is not
related to any cutting" or operation that I (at)
have done.
Aside from the DIC what could another causes
(fit) that could be the cause for the hemorrhage
or bleeding U1. a patient by an operations (lit)?
In general Sir', if there was an operations (rir)
and it is possible that the ligature in the suture
was (ur) become (Ii!) loose, it is (It!) becomes
loose if proven.
XXX
XXX
XXX
If the person who performed an autopsy does
not find any untight (If!) clot (Iii) blood vessel
or any suture that become (17%) loose the cause
of the bleeding could not betattn'buted to the
fault of the subject?
Definitely, sir'.” (Undersconn'g supplied.)
According to both doctors, the possible causes of
hemorrhage during an operation are: (1) the failure of
the surgeon to tie or suture a cut blood vessel; (2) al—
lowm'g a cut blood vessel to get out of control; (3) the
subsequent loosening of the tie or suture applied to a
253
258
BASICS OF PHILIPPINE MEDICAL JURISPRL'DENCE AND ETHICS
negligence In' non—technical matters or those of which
an ordinary person may be expected to have knowledge,
or where the lack of skill' or want of care is so obvious
as to render expert testIrn'ony unnecessary. We take judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can
tell if it was admim"stered properly. As such, it would
not be too difficult to tell if the tube was properly In'serted. This kin"d of observation, we believe, does not
require a medical degree to be acceptable.
At any rate, without doubt, petitioner’s witness, an
experienced clIru'cal nurse whose long experience and
scholarship led to her appointment as Dean of the
Capitol Medical Center School of Nursm'g, was fully capable of determimn"g whether or not the In‘tubation was
a success. She had extensive clinical experience starting
as a staff nurse In" Chicago, Illinois; staff nurse and
clini'cal Ins‘tructor In' a teaching hospital, the FEU—
NRMF; Dean of the Laguna College of Nursm'g In' San
Pablo City; and then Dean of the Capitol Medical Cen—
ter School of Nursm'g. Reviewtn‘g witness Cruz’ state—
ments, we find that the same were delivered in a
straightforward manner, with the kind of detail,‘ clarity,
consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a
nurse, the Court is satisfied that she was able to demonstrate through her testIm'ony what truly transpired on
that fateful day.
LEAH ALESNA REYES, et al. vs.
SISTERS OF NIERCY HOSPITAL, et a1.
GR. No. 130547, October 3, 2000
FACTS: Petitioner Leah Alesna Reyes is the
wife of the late Jorge Reyes. The other petitioners,
namely, Rose Nahdja, Johnny, Lloyd, and Isn'su'ne, all
surnamed Reyes, were their children. Five days before
his death on January 8, 1987, Jorge had been suffering
PHYSICIANS AND EVIDENCE
from a recurring fever with Chili‘s. After he failed to get
relief from some home medication he was taking, which
consisted of analgesic, antipyretic, and antibiotics, he
decided to see the doctor.
On January 8, 1987, he was taken to ~the Mercy
Community Chm"c by his Wife. He was attended to by
respondent Dr. Marlyn Rico, resident physician and
adrru'tnn'g physician on duty, who gave Jorge a physical
examtn'ation and took his medical history. She noted
that at the tIrn'e of his admission, Jorge was conscious,
ambulatory, oriented, coherent, and with respiratory
distress. Typhoid fever was then prevalent in' the locality, as the clini"c had been gemn'g from 15 to 20 cases of
typhoid per month. Suspecting thatJorge could be suf—
fenn'g from this dis'ease, Dr. Rico ordered a Widal Test,
a standard test for typhoid fever, to be performed on
Jorge. Blood count, rounn'e unn’alysis, stool examination, and malarial smear Were also made. After about an
hour, the medical technician submitted the results of
the test from which Dr. Rico concluded that Jorge was
positive for typhoid fever. As her shift was only up to
5:00 pm, Dr. Rico In'dorsed Jorge to respondent Dr.
Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around snr'
in the evening. She also took Jorge’s history and gave
him‘ a physical examination. Lake Dr. Rico, her un‘pression was thatJorge had typhoid fever. Antibiotics being
the accepted treatment for typhoid fever, she ordered
that a compatibility test with the antibiotic chloromyceun‘ be done on Jorge. Said test was adnuni'srered by
nurse Josephine Pagente who also gave the patient a
dose of triglobe. As she did not observe any adverse re—
action by the patient to chlorornycenn‘, Dr. Blanes or—
dered the first five hundred Irull1"grams of said antibiotic
to be adrnnn"stered on Jorge at around 9:00 pm. A second dose was adrmni'srered on Jorge about three hours
later just before midnight.
259
PI-n’SICXANS AND EVIDENCE
BASICS OF PHILIPPINE MEDICAL JL-‘RISPRL'DENCE AND En-iics
___L___p__.___p_y_____But
_ou have not erformed an autos of a
p______mp________atient
who died of I hoid fever?
I have not seen one.
And you testified that you have never seen a
patient who died of typhoid fever within' five
days?
I have not seen one.
Wow
man. -hoid fever cases had on seen
ou were in' the eneral ractice of medi—
_y________g_;__whil'e
cm‘e?
In our case we had no widal test that time so
we cannot consider that the typhoid fever is
like this and like that. And the widal test does
not specify the time of the typhoid fever.
Q
A
Q
A
Q
A
__x_______y_t;Q______—The
ouestion is: how man}
hoid fever cases
ou seen in' Your eneral ractice reardless
h_v_y__g__ta___g___ad
test is normally used, and if the 1:320 results of the Widal test on Jorge Reyes had been presented to him' along
with the patient’s history, his Lrn'pression would also be
that the patient was suffenn'g from typhoid fever. As to
the treatment of the disease, he stated that chloromy—
cenri' was the drug of choice. He also explained that despite the measures taken by respondent doctors and the
intravenous adn'iini"stranon of two doses of chloromy~
cenn', complications of the disease could not be dis—
counted. His testim'onyis as follows:
ATTY. PASCUAL:
Ifwith that count with the test of positive for 1
Q
A
_______tvp_______would
be
hoid fever.
And presently what are the treatments commonly used?
Drug of choice of chlorarnphenical.
___________y_—And
that was wa back in" 1964?
___y—__L___g__._Wa
back after in trainin" in‘ UP.
Clini'cally?
_,__—y_gWav
back before m trainin".
He is thus not qualified to prove that Dr. Marlyn
Rico erred in her diagnosis. Both lower courts were
therefore correct iri' discarding his testimony, which is
really inadmissible.
Second. On the other hand, the two doctors
presented by respondents clearly were experts on the
subject. They vouched for the correctness of Dr. Marlyn Rico’s diagnosis. Dr. Peter Gon’ong, a diplomate
whose speCiali"zation is infectious diseases and microbi—
ology and an associate professor at the Southwestern
University College of MediCin'e and the Gullas College
of Medi‘ctn‘e, testified that he has already treated over a
thousand cases of typhoid fever. According to him",
when a case of typhoid fever is suspected, the Widal
is to 320, what treaunent if' any would be
given?
_—gs__~__p_rf
those are the findm' that would be _re_____‘____g_________sented
to me the first thin‘ I would consider
_—_____y____p__of
the cases now on ractice?
I had
onl___—__v
seen three cases.
0?»
13>
262
Doctor, if given the same patient and after you
have adrriirii"stered chloramphenical about 3
1/2 hours later, the patient assocm’ted with
chill‘s, temperature — 41°C, what could possibly
come to your rriiri'd?
________fig_______Wl
when it is Chane in‘ the chm‘tal fin'
L___________p_____0u
have to think' of comlication.
Arid what Will" you consider ‘on the complica—
tion of typhoid?
One must first understand that typhoid fever IS.
toxtmi'a. The problem is complications are
caused by toxins produced by the bacteria . . .
whether you have suffered complications to
think' of -- heart toxic myocardin'es; then you
can consider a tom'c meningitis and other complications and perforations and bleeding in' the
iiium.
263
BASics or PHILIPPINE MEDICAL jumsvamauca AND ETHICS
266
such objection and, consequently, the evidence offered
may be admitted.
Weight and sufficiency of evidence
1.
Subrtaniz'a/ evidence—amount of evidence which a reasonable mind might accept as adequate to produce a
conviction and is the quantum of evidence needed in
admnu"strative cases before the Board of Mediane,
PRC and Philippine Medical Association.
[.9
13.10.
Preponderanre f0 evzd'enca—superior weight of evidence
and is the quantum of evidence needed in civfl cases
before the regular courts.
Profo bjeorm' rearonab/e doubt—not absolute certainty but
moral certainty or that degree of proof which pro—
duces conviction in an unprejudiced mind and is the
quantum of evidence needed in crirrun"al cases before
regular courts.
Chapter 14
MEDICAL RECORD
14.1. Patients’ chm"cal record.L-The clinical record of
a patient is the source of all information regarding confinement
and treatment in a hospital or management in a clirii"c. It contains all available information regarding the past and present
medical histor his day-today condition and treatment given,
impression or diagnosis, and observation of the attending physician and consultant, including nurSing care, reports from the Xray department, pathology, operating room, and all other pertinent document which have anything to do with the manage—
ment.
After discharge from the hospital, the record is forwarded
to the record section under the care of a competent safekeeper.
Proper safeguard must be observed against loss, tampering or
use by unauthonz'ed persons. Erasures or alterations may cause
or create curiosity or suspicion as to the reason for the change.
It is better not to make any alteration or correction the record,
but if it is necessary, such changes must be properly signed by
the person making the change.
The clini'cal record is a property of the hospital and con—
tains confidential information regarding the patient. It is there—
fore the duty of the hospital or the physician not to disclose its
contents unless authorized by the patient or by anyone who is
authorized to act in his behalf. The privacy of the patient’s
record is protected by the priVil'eged communication statute.
‘ Solis, Pedro P., iltfddir'a/jyn'mma'ence (1980), p. 183.
267
MEDICAL RECORD
BASICS OF PHILIPPINE MEDICAL JL'RISPRL'DENCE AND ETHICS
Patient’s record is admissible in' court as evidence even if
the person who made the entry is dead or not available, as the
records are ordinary entries H1. the course of business.
Entries made at or near the tirn'e of the transaction to
Which they refer, by a person deceased, outside of the Phil'—
ippin'es or unable to testify, who was in' a position to lmow the
facts therein stated, may be received as prirn'a facie evidence, if
such person made the ‘entries in' his professional capacity or in
the performance of duty and in’ the ordinary or regular courSe of
busrn'ess or duty.
The requisites for admissibility of busrn‘ess entries are:
1.
The entrant must be deceased, or outside the Philip—
pin'es, or unable to testify;
The entries must have been made at or near the time
of the transaction to which they refer;
The entries must have been made» by the entrant in' his
professional capacity or in' the performance of his
duty:
The entries must have been in' the ordinary or regular
course of busm‘ess or duty; and
The entrant must have been in’ a position to lmow the
facts therein stated.
14.2.
1.
What pan'ent’s ch1n"cal record includes
Patient’s medical history
Results of examinations
Records of treatment
Copies of laboratory reports
Notations of all instructions given
9%“?93!“
The cliru'cal record is useful for historical, research, and
teaching purposes. The re is no law as to how long such record
must be preserved. It is recommended that the record be kept
intact as longs possible or Within the prescriptive period of the
case if medico-legal and beyond the statute of limi'tations for
potential civtl' action.
269
Copies of all prescn'ptions and notes on refill authori—
zations
.‘1
268
Documentation of informed consent when applicable
Any other pertinent data
14.3.
Reasons for patient’s chm"cal record
1.
To provide the best medical care
2.
To supply statistical information
3.
To provide legal protection
14.4. Correctm'g a handwritten entry on patient’s
clin'ical record
1.
Draw a line through the error.
2.
Insert the correction above or immediately followtn'g.
3.
In the margin, write “correction” or “Corn,” your initials, and the date.
14.5. Right of access to medical record—The follow—
mg have right of access to medical record":
1.
The patze‘nt. —— The patient’s right of access to his
medical record does not include to physically possess
the original copy but only a certified photocopy of the
original. This is because the owner of the original copy
is the hospital. In case of lawsuits, the court, through a
Subpoena dare: tam/72 can order the hospital to bring the
272
B ASICS oF
2.
3.
PHIUP'Pc-.'E
MEDICAL j l:lUSPilUOE.'<CE. AND
Ennes
lost, destroyed, unavailable o r otherwise unobtainable.l
Chapter 15
Swtndary Evidena is that substitutio nary evidence
which becomes admissible, when the best evidence or
original document is lost, o r destroyed, or cannot be
produced in coun, o r is in the custody of the adverse
party.•
PHILHEALTH
Parol Evidma RN!e me2ns that parol or oral evidence of
prio1' or contemporaneous agreements is not admissible to vary, mod.ify, o r contradict the written agreement.
15.1.
1.
2.
Pertinent laws
&pt~b!U A d No. 787.5-National Heal~ Insurance Act
of 1995 or "An Act Instituting a Nauonal H ealth Insurance Program For AU Filipinos and Establishing
the Philippine He2lth l nsurance Corporation For the
Purpose" which was signed into law on February 14,
1995 by Pres. Fidel Ramos.
RtpMb!U Ad No. 924 1-An Act amending RA 7875
Section 54 thereof provides that "Congress shall conduct a regular review of the National Health Insurance
Program which shall entail a systematic evaluation of
the Program's performance, impact o r accomplishments with respect to its objectives or goals. Such review shall be undertaken by the Committees of the
Senate and the House of Representatives which have
legisl1ltive jurisdiction over the Progtam, The National
Economic and Development Authority, in coordination with the National Statistics Office and the National Institutes of Health of the University of the
Philippines shall undertake studies to validate the accomplishments of the program. The budget required
ro undertake such study shall come from the income
of PhilHealth."
r
I
274
BASICS OF PHJUPPINE M£DICAL j UIUSPRUOBNCE AND ETHJCS
3.
PHI~EIJ..TH
Section. 2, Article XIII of the 1987 Constitution of the
Republic of the Philippines declares that the State
shall adopt an integrated and comprehensive approach
to health development which shall endeavor to make
essential goods, health and other social services available to all the people at affordable cost. P riority of the
needs c-£ the- underprivileged, sick, elderly, disabled,
women, and children shall be recognized. Likewise, it
shall be the policy of the State to provide free medical
care to paupers.
(a)
Philippine Health Insurance Corporation
(PHIC) or more commonly known as Philhealth, is a Philippine
agency which assumed the responsibility of the former Medicare
Program for government and private sector employees.
Exemptions from
taxtJ
and dNtits1-Philhealth is exempt
from the payment of taxes on all contributions
thereto and all accruals on its income or investment
earnings.
Any donation, contribution, bequest, subsidy or finan -
cial aid which may be made to Philhealth shall constitute as allowable deduction from the income of the
donor for income tax purposes and shall be exempt
from do nor's tax, subject to such conditions as provtded for in the National lnternal Revenue Code, as
amended.
11!111jiotdioNL-Philhealth shall have the fo.llowlfljJ powen aod functions:
2.
pqMrS
~ fv.l -A~t (IU; : ; . a N&bl.lt'lal Hnlth
ltul.lftl\CC
~..t!abll~ the Pti&IJWUllt Heald\ lna~
~~ (a.
I
k.
7 7.,), $15.
.., '\6-,
flro&mll ~t.r AU Hhpln~ and
PQt tht ~
('ocponQOQ
To administer the National Health Insurance
Program;
15.2.
1.
275
•
(b)
To formulate and promulgate policies for the
sound administration of the Program;
(c)
To set standards, rules, and regulations necessary to ensure quality of care, appropriate utilization of services, fund viability, member satisfaction, and overall accomplishment of Program objectives;
(d)
To formulate and implement guidelines on contributions and benefits; portability of benefits,
cost containment and quality assurance; and
health care provider arrangements, payment,
methods, and referral sys- terns;
(e)
To establish branch offices as mandated in Article V of R.A. 787 5;
(t)
To receive and manage grants, donations, and
other forms of assistance;
(g)
To sue and be sued in court;
(h)
To acquire property, real and personal. which
may be necessar)' Ol' e..xpedient for the attainment of the purposes of R.A. 7875;
(\)
To collect, depo.~t, invest, administer, and disb~e the 1ational HC"alth lnsurance Fltn l io
accOtdance \\~th tht provisions of R . 7875;
(j)
To negotiat( and enter int\) CO.Otn\etS with
health care insrinatioos, protess.ional , llt'\d vther
perso.o~ iufidi1.'al <IX natural. ~rdi~ tht ptk'it~ pa ·ment med\at"U.~l\$. de~ Clnd imp~
mtntatt\\t\
Qt' ~Ktmil\IStn\twe <t.t\d ()~'*~
, , .,
...
276
Pt iiiJI IWlll
~sthand ~rocedures,
· "'IU
(k)
~)
(m)
servtces;
z:n
financing, and delivery of
nnd other thu.a pertinent w the Implementation
of the Progr11m and puhiJSh a synop11is of auch
report in two (2) newspapers of gene~ circubtion;
To a~thori~e Local H eruth Insurance Offices tO
negonnte and enter imo contracts in the name
and .on behalf of the Corporation with any nccredi.ted government or private sector health
proVIder or~zation, including but not limited
t~ health ma•.ntenance organizations, cooperan-ves and medical foundations, for the provision
of at least the minimum package of personal
health services prescribed by Philhealth;
To determine requirements and issue guidelines
for the accreditation of health care providers
for the Program in accordance with llA. 7875;
3.
To organize its office, fix the compensation of
and appoint personnel as may be deemed necessary and upon the recommendation of the
president o f the Corporation;
(o)
T o submit to the President of the Philippines
and to both Houses of Congress its Annual Report which shall contain the status of the Natio nal Health Insurance Fund, its total disbursements, reserves, average costing to beneficiaries, any request for additional appropriation,
To keep records of the operations o f Philheahh
and investments o f the National f-le2lth lnsur·
ance Fund; and
(CJ)
To perform such other acts as 1t may deem
appropriate for the anainment of the o b jectives
of Philhealth and for the pro per enforcement
of the provisions of R.A.7875.
QNati-jNdirial powtrs.l-The Corporation, to a rry out
its tasks more effectively, is vested with the foUowing
powers:
To supervise the provision of health benefits
with the power to inspect medical and financial
records of health care providers and patients
who are participants in or members of the Program, and the power to emer and inspect accredited health care institutions, subject to the
rules and regulations to be promulgated by Philhealth;
(n)
(p)
(a)
l
R.A. 7875, §17.
To conduct investigations for the determin2tion
of a question, controversy, complaint, o r unresolved grievance brought to its attention, ~d
render decisions, orders, or resolutions thereon.
It shall proceed to hear and determine the ase
even in the absence of any party who bas been
properly served with notice tO appear. It shall
conduct its proceedings or any pan thereof in
public or in executive session; adjourn its hearings to any time and place; refer technical matters or accounts to an expen and to accept his
reporrs as evidence; direct parties ro be joined in
or excluded from the proceedings; and give all
such directions as it may deem necessary or expedient in the determination of the dispute before it;
278
B.uu:s .,,.
(b)
(c)
PHlUPPtHc MIIDICAI ju.J! PII.UDI!Ncn ANO
Ennes
To summon the parties to a controversy, issue
subpoenas requiring the attendance and testimony of witnesses o r the production of documents and other materials necessary to a just determirution of the ose under investigation;
To suspend temporarily, revoke permanently, or
restore the accreditation of a health care provider o r the right to benefits of a member
and/or impose fines after due notice and hearing. The decision shall immediately be executory, even pending appeal, when the public interest so requires and as may be provided for in
the implementing rules and regulations. Suspentaon o f a.ccredie~tion shall not exceed twentyfour (24) months. Suspension of the rights of
membeB 1h211 not exceed six (6) mo nths.
PHII.HilALTH
(u)
The Secretary of Labor and Employment o r his representative;
(ill)
The Secretary of the Interior ~d Local
Government o r his Representauve;
(iv)
The Secretary of Social Welfare and Development o r his Representative;
(v)
The President of th~ Corpor.~.tion;
(vt)
A representative of the labor sector;
(vii)
A representative of employers;
(viii)
The SSS Administrntor or his representative;
The GSIS General Manager o r his representative;
The Vice chairperson for the basic sector of the National Anti-Poverty Commission o r his reptesentative;
(tx)
(x)
The revocation o f a health care provider's accred•ution thaJJ o perate to disqualify him from
obwrung another accreclitation in his own
n~ under a different name, or thro ugh ano thc,'pcrll111, whether nuural o r juriuical.
11\t Corporaunn tha.ll O(Jt be: bound by the
t~chnJcal rule• of ~idcncc.
~.
1J. &tlnl t( 01NI/Jrt4
(a)
C1Mpt#llht111. -The Corpur~t.inn t hall br Mnvcmed by a &ani of Dtre( tt1rt hc:relntAfttr rc
~ rrcd ''' •• the: Bc~ard. tompotcd of the fulluw
inR mcmlxtt:
{e)
Tt..: Secretary of Hslth;
'
l
• Il l\ .,ii~.
• ~ bt ll A 9J4 \ , \ll
279
(:o)
A representative of Filipino overseas
workers;
(xh)
(xiii)
(xiv)
A representative of the self-employed
sector, and
A representative o f health care providers
to be endorsed by the national associations of health care institutions and
medical health professionals.
The Secretary of Health shall be the 1x
officio Chairperson while the ~resident of
the President of the Corporauon shall be
the Vice Chairperson of the Board.
280
BASics oF
(b)
PHIUl'l'L"~E
MEDICAL jl.1USPRllD E.."'CE A.'ID ETHJcs
Apf~n~mt and Jtmm.-The President of the
Philippmes shall appoint the Members of the
Board upon the recommendation of the Chairman of the Board and in consultation with the
sectors concerned. Members of the Boards shall
have a term of four (4) years each, renew.lble
for a maximum of two (2) years, except for
members whose terms shall be co-terminous
with their respective positions in government.
Any vacancy in the Board shall be filled in the
manner in which the original appointment was
made and the appointee shall serve only the unexpired term of his predecessor.
(c)
Meetings and qNontm.-The Board shall hold
regular meetings at least once a month. Special
meetings may be convened at the call of the
Chairperson or by a majority of the members of
the Board The presence of a majority of all the
members shall constitute a quorum. In the absence of the GW.rpersoo and Vice Chairperson,
a temporary presiding officer shall be designated
by the majority of the quorum.
(d)
Ailm»anas tmd per dimt.!.-The members of the
Bo ard shall rctt.ive a per dian for every meering
actWilly attended subject co dt.e peni.ocnt bodgetzy laws, rul.es and regulations on compauatWt:t. &ononri2 md a.Uowmces."'
tS..1. Histocy. -In 1963, DOH Sea~ fnnrisco
Quimson ~ ~ the: formarfoa of a NatimW Hullh
Suvi£e of the ~ amfJa the acfmirri~ oi ~
Oimd:n.fp
~
281
[n 1969 President Ferdinand Marcos signed into l2w R.A.
6111 or the Philippine Medical Care Act.
' In 1972, Medicare Program Phase I was surted with
SSS/.GSIS members as target beneficiaries; while Medicue
Program Phase II was started in 1983 with low-income and
non-salary based populations not covered by Phase I as w:get
beneficiaries and was tied-up with LGUs and HMOs.
In the early 1990s, the Health Finance Development Project (HFDP) which is a DOH project funded by USAID-MSH
conducted several studies regarding social health insurance that
were crucial in the creation of PhilHealth.
On February 14, 1995, R.A. 7875 was signed into law.
In October 1997, GSIS transferred the Medicare Program
to PhilHealth, while SSS transferred the same in April 1998.
With this tranSfer clUlle the turnover of the health insurance funds, initially totaling one hundred and five million pesos
(Pl 05,000,000.00) from the GSIS and founeen billion pesos
(Pl4,000,000,000.00) from the SSS. The amount covers employee and employers' slmes in the medical are program. On
the other hand, funds ~·orth fifty-three million and two hundred
thousand pesos (P53.,200,000.00) contributed by the local government units (LGUs) for the premium comn"butioos of indi~
gent members, were also ent:rosted to the agency in 1CJ'J7 and
1998.
to prepuation for the NHIP"s fui1 implemo:rcnion in 1998,
Pbi!Hoith obtained ~ from the ~ of Bcdgtt
and Management (DB~ fix the creation of9')5 regular pbmi!b.
~a; move
will make Ph!IH:ealm ~ m the
a.ceds of NHI.Ys. lil\lC1jflfters aaric:Jmride.
rna
()n ftU:ti!llS! 10~ ~'14, lL'\. ~-U
lJ!I!NTfkdllA. ~
\
282
B ASICS OF P HIUPPINE MEDICAL j URISPRUDDNCI:. AND ETHICS
PIIII I IJ!AJ:OI
.
15.4. Definition of Terms.s__For the purpose of Naoonal Health Insurance Act of 1995, the following terms shall be
defined as follows:
1.
Bentjidary - Any person entitled to health care benefits under this Act.
2.
~entjit Package Its members.
3.
Capitation - A payment mechanism where a fixed
~te, wh~ther p~r person, family, household or group,
IS negonated wtth a health care provider who shall be
responsible in delivering or arranging for the delivery
o f health services required by the covered person under the conditions of a health care provider contract.
4.
from congenital disability, either physical or mental, o r
any clisability acquired that renders them totally dependent on the member of our support; 4) the parents
who are sixty (60) years old or above whose monthly
income is below an amount to be determjned by the
Corporation in accordance with the guiding principles
set forth in Article I of R.A.7875.
Services that the Program offers ro
Contrib11tion - The amount paid by or in behalf of a
member ro the Program for coverage, based on salaries or wages in the case o f formal sector employees,
and on household earnings and assets, in the case of
self-employed, o r on other criteria as may be defined
by the Corporation in accordance with the guiding
principles set forth in Article 1 of R.A. 7875.
5.
Coveragt -
6.
gram.
DepmJnst- The leg.aJ dependents of a member are: 1)
7.
Diagnostic proctdun - Any procedure to identify a disease or conditio n through analysis and examination.
8.
Emergenry - An unforeseen combination of circumstances which calls for immediate action to preserve
the life of a person or to preserve the sight of one or
both eyes; the heacing of o ne or both ears; or one or
two limbs at or above the ankJe or wrist.
9.
Employee- Any person who performs services for an
employer in which either or both mental and physical
efforts are used and who receives compensation fo r
such services, where there is an employer-employee
relationship.
10.
Employer- A natural or juridical person who employs
the services of an employee.
The entitlement of an individual, as a
member o r as a dependent~
~ )cguima~
to
the benefits of the pro-
spouse who JS not a member; 2) the
and unemployed legnimu~ legjrimtted, illegmma~ .cknowiodged children IS appeanng in the
but.h cc:n:i.ba~ iqpl}y adopted or step-children below
ra~w...aoe (21) years o f age; 3) ch.ildren who ue
~"·~ (21 ) ~ old and above b"t suffering
283
Em"'iiment -
11 .
The process to be determined by the
Corporation in order to enlist individuals as members
or dependents covered by the Program.
12.
Ftt for smia- A reasonable and equitable health care
payment system under which physicians and other
health care providers receive a payment that does not
exceed their billed charge for each unit of service pro-
~mmarriod
vided.
13.
GitJbal b.dgtl- An approach ro the purchase of medical services by which health are provider negotiations
conceming the costS of providing 11 specific pa.cbge
284
PH ILHIW.nt
of medical benefits is based solely on a predetermined
wd ftxed budget. Purchase of medical services by
which h~th care provider negotiations concerning
the cosrs of providing a specific package of medical
benefits is based solely on a predetermined and fLxed
budget.
14.
~llt1"11JJN11I Sm:ia ln.JJtrana Syslult -The Government
Service Insurance System created under Commonwealth Act o. 186, as amended.
15.
Hlailh Cur Prollitkr- Refers to:
(a)
age of designated health services needed by plan
members for a fixed prepaid premium; or
(d)
Heallh lniNrana ldtntificalion (ID) Card- The document issued by the Corporation to members and dependents upon their enrollment to serve as the instrument for proper identification, eligibility verification, and utilization recording.
17.
lndigml- A person who has no visible means of income, or whose income is insufficient for the subsistence of his family, as identified by the Local Health
Insurance Office and based on specific criteria set by
the Corporation in accordance with the guiding principles set forth in Article I of R.A.7875.
18.
(c)
a health care profcttlonal. who it any doctor uf
mcdlcine, nui'IC, m1dwafe, dentist. ur uther
health care profelllonal or rl"llctiuoner duly h
ccnsed to pracucc ln the PhJlipplncJ a.nd cered
1ttll by the Corporauun; o r
a health mamtcn nee organization~ which i• en
uty thst provulcs, ufTm, or ~~ for cover-
T11porimt ttiMcation patletJiJ~- A set of informational services made available t:o an individual who is confined
in 11. hospiw to afford him with knowledge about his
illness and its t:reaonent, and of the means available,
particularly lifestyle changes, to prevent the recurrence
o r aggravation of such illness and to promote his
helllth in general.
wtuch they may be dett14f12tc:d; or
(b)
a community-based health organization, which
is an association of indigenous members of the
community organized for the purpose of i~­
proving the health status of that commu~ty
through preventive, promotive and curaove
health services.
16.
a heaJth care institution, which is duly licensed
and accredited devoted primarily to the maintenance and operation of facilities for health promarion, prevention, cliagnosis, injury, disability,
o r deformity, drug addiction or in need of obstetrical o r o ther medical and nursing care. It
stu.ll also be conscrued as wy institution, building. o r place where there are instaUed beds,
cnbs, o r ba.ssmetS for twenty-four hour use or
longer by paoents in the treatment of eli eases,
mjuries, deformiciet, o r abnormal physical and
ment:a.J statet, maternity cues or sanitllrial core;
o r infinnanes, nurJCriet, ditpensaries, rehnbilitauon centers and tuch other aimllat name ~ by
285
\9.
M•htr- Any person whose premiums have been
regularly paid to the National Health Insurance Probe a paying member, or a pensioner/ retiree member.
gram. He may
Mttms tut -
A protocol administered at the barangay
level to determine the ability of individuals o r house-
286
BAstes OF PHJuPPINE MEDICAL j u RJSPRUDE.NCE A.'ffi
ETHics
PIIIUIEALTII
holds to pay varying levels of contributions to the
Program, ranging from the indigent in the community
whose contributions should be totally subsidized by
the government, to those who can afford to subsidize
part but not all the required contributions for the Program.
21.
M~dJ'ca~ - The health insurance program currently
bemg ~m~lemented by the Philippine Medical Care
from organized profession medical societies, medical
academe and the pharmaceutical indll!try, and which
is updated every year.
27.
Portability- The enablement o f a member to avail of
Program benefits in an area o ucside the jurisdiction o f
his Local Health Insurance Office.
28.
Pmcription drug- A drug which has been approved by
the Bureau of Food and Drug and which can be dis-
Comauss10n. It consists of:
22.
(a)
Program I, which covers members of the SSS
and GSIS including their legal dependents; and
(b)
Program II, which is intended for those not
covered under Program I.
23.
29.
Public health services- Services that strengthen preventive and promotive health care through improving
conditions in partnership with the community at large.
These include control of communicable and noncommunicable diseases, health promotion, public information and education, water and sanitation, environmental protection, and health-related data collection, surveillance, and outcome monitoring.
30.
Quality msurance - A formal set of activities to review
and ensure the quality of services provided. Qw.li.ry
Pensioner -
An SSS or GSIS member who receives
pensions therefrom.
assurance includes quality assessment and corrective
actions to remedy any deficiencies identified in the
quality of direct patient, administrative, and support
services.
Per1onal Health Servicu -
24.
Health Services in which
benefits accrue to the individual person. These are
categorized into inpatient and outpatient services.
25.
Philippine Medical Care Commiuion -
26.
pensed only pursuant to a prescription order from a
physician who is duJy licensed to do so.
National Health Insurance Program- The compulsory
heaJth insurance program of the government as established in this Act, which shall provide universal health
insurance coverage and ensure affordable, acceptable,
available and accessible heaJth care services for all citizens of the Philippines.
The Philippine
Medical Care Commission created under Republic Act
No. 61 11, as amended.
31.
Residence -
The place where the member actually
lives.
32.
Retiree- A member of the Program who has reached
the age of retirement or who was retired on account
of disability.
Philippine National Drug Formulary -
The essential
drugs list for the Philippines whkh is prepared by the
National Drug Committee of the Departme~t . of
Health in ConsuJtation with experts and spectahsts
287
33.
Se!femployed- A person who works fo r himself and is
therefore both employee and employer at the same
time.
288
8 ASIC.S OF PIIILIPPIN E MEDI CAL j UlUSPRUDE!NCE AND ETHICS
34.
Social Security System- The Social Security System created under Republic Act No. 1161, as amended.
35.
Treatmenl proced11re - Any method used to remove the
symptoms and cause of a disease.
36.
Utilization review- A formal review of a patient utilization or of the appropriateness of health care services, on a prospective, concurrent or retrospective
basis.
37.
38.
& habilitation center- Refers to a facility, which undertakes rehabilitatio n of drug dependents. It includes institutions, agencies and the like which have for their
purpose, the development o f skills, or which provides
co unseling, o r which seeks to inculcate, social and
m oral values tO clientele who have a drug problem
with the pain of weaning them from drugs and making
them drug-free, adapted to their families and peers,
and readjusted into the community as law-abiding,
useful and productive citizens.
P HILH EAI TH
1.
The basic bentfil fond - This fund shall finance the
availment of the basic minimum benefit package by
eligible beneficiaries. All liabilities associated with the
extension of entitlement to the basic minimum benefit
package to the enrolled population s~all be borne .by
the basic benefit fund. It shall be consoruted and roamrained through the following process;
(a)
Upon the determination of th~ amoun~ o f government subsidies and donaoons available for
paying fully or partially the premium o f indigent
beneficiaries, a basic minimum benefit package
affordable for enrolling as many of the indigent
beneficiaries as possible shall be defined. The
government subsidies will then be ~o~rituted as
premium payments for enrolled mdigents and
contributed into the basic benefit fund;
(b)
For extending coverage of this same minimum
benefit package to non-indigents who are not
members of Medicare, premium prices for specific population shall be actuar:ially determined
based on variations in risk, capacity to pay, and
projected costs of services utilized The
amounts co rresponding to the premium required, including costs of direct benefit payments, all costs of administration, and provision
of adequate reserves, for extending the coverage
of the basic minimum benefit package for such
population groups shall be contributed into the
basic benefit fund;
Home cart and mtdUal rehabilitation .Jervices - Refer to
skilled nursing care, which members get in their
homes/clinks for the treatment of an illness or injury
that ~erely affects their activities or daily living.
Ho me a re and medic21 rehabilitation services include
hospice or palliative care for people who are te~­
nal.ly ill but does not indude custoetial and no n-skilled
pcrsonaJ care."
15.5. National Health Irwutance Fund. 6- The N2tiosul Hulth Insurance Fund shall have the following componen t~:
'R.A 707S, ps.
289
(c)
Fo r the population enrolled through ~edicare
Program I under SSS, the corresponding premium for the basic minimum benefit package,
including costs of direct benefit payments, all
I'IIIIII1 1AIIII
n~lmlnl~t rt\llon 1 "nd prpvlftlon of 1\d •
CJIU\Ul reMervell, tthal\ he h1uR~d to tho healrh In ~
ftt~t'ance f"n'l of the SSS and p11ld huo the bnal
cwna nf
ban ~ nt
(d)
plnrn ntnry h n Ott~ llhllll hr nnanr d hy wh~.f ~V r
amnw1t11 n•·~ uvallnhl~ fl fr·N d~d~.•ctlnp; 1h t~ c:wH • o f pm
vl,llnv- thr bn11k mlnl111urn ht:nuf1 t pacl~o~t., inrlmling
co~ r ll of 01rtscr hent! fl l pnyrncntH, all m tA o f udmini -
fund;
lltrn tlnn , unrl prcJvlt~lon o f nd~(jllfll (' rcllNVcli. Allllob lli
tlt~s a11aoch1r ed wl rh rhe cnuensJon Q( ILlJlJ'! IC!mrnl ry
bcnel1rt1 ro rhe deflned group of enrol l~t:ll •h~ll he
For the populndon enrollecl rhcouRh MedlcnrCl
Program T under GSIS, the cmrcRpondlng p·remlum for the bnalc minimum bonol1t pneka~e.
includJng costK of direct benef1t pnyment !l, nll
costa of adminln rntion, and provision nf ndequate reserves, ~t hal l be charged to the henlth ln-
borne exclusively by the rellpecdve supplemctnrary
beneflr f~•nd , U pon rht implemenuuJon o f R.A.7875 ,
the foUuwing 11~1p pl ememary beneflc fundff r;hA.Il be e•
mbll11hed:
(a)
Supplementary benefit fu nd fo r SSS-M edica.re
Rurance fund o f the GSlS and paid jnro the ba-
sic benefit fund; and
(e)
2.
members and beneftcillries. A fte r deducting the
amount corresponding to the premium of' the
basic minimum benefit package, the balance of
the SSS-Health Insurance Fund (HIF) shall be
constituted into a supplementary benefit fund to
finance the extension of benefits in addjtio n to
the minimum basic package to SSS members
and beneficiaries; and
For groups enrolled through any of the exlsrJng
o r future health insurance schemes and plans, includjng those created under Medicare Program
U and those organ ized by local government
units, natio nal agencies, cooperatives, and other
simi lar organizations, the corresponding premium, jncludjng costs of ru rect benefit payments, all costs o f administrati on, and provision of adequate reserves, for extending the
basic minimum benefit package to their respec·
tive enrollees wjij be charged to their respective
funds and paid into che bask benefit fund.
(b)
SHpj>lementary benefitjtmdJ - These are separate and distinct supplementary benefit fund s created by the Cor·
poration as eligible for use to provide supplementary
coverage to various groups o f the population enjoying
the basic benefit coverage as are affordable by their re·
spective funding sources. Each supplementary benefit
fund shall finance the extension and availment of additional benefits no t included in the basic minimum
benefi.t package but approved by the Board. Such sup-
3.
7
Supplementary benefit fund fo r GSIS- M edicare
members and beneficiaries. After d educting the
amount corresponding to the premium for the
basic minimum benefit package, the balance of
the GSIS-HIF plus the arrearages o f the Government of the Philippines with the GSIS for the
said HIF shall be constituted into a s upplementary benefit fund to finance the extension of
benefits. in addition to the minimum basic package to GSIS members an d beneficiaries.
ReJ6rvt fund' - Philhealth shall set aside a portion
of its accumulated revenues not needed to meet the
R.A. 7875, §26.
292
'B ASICs 01' PHJUPPrNe M£o1CAL j~m5PU.'DENCE A."'D
Enno
293
cost of the current year's expencliwres as reserved
funds: Provided, That the total amount of reserves shall
not exceed a ceiling equivalent to the amount acwarially estimated for two years' projected Program expenditures: Provided, further, That whenever actual resttves
exceed the required ceiling at the end of the Corporation's fiscal year, the Program's benefits shall be increased or member contributions deer~ prospectively in order to adjust expenclitures or revenues to
meet the required ceiling for reserve funds. Such portions of the reserve fund as are not needed to meet the
current expenditure obligations shall be invested io
short-term investtnents to earn an average annwl income at prevailing rates of interest and shall be
known as the ..Investment Reserve Fund" which shall
be invested in any or all of the following.
(a)
In interest-bearing bonds, securities or other
evidences of indebtedness o f the Govemmcnt
of the Philippines, or in bonds, securities,
promissory notes and other evidences of indebtedness to which full faith and credit aru:l
uncooditional guarantu of the Republic of the
Philippines is pledged;
(b)
In iot.erest~bearing deposits and loam to or securities in any domcltic b2nk doing business in
the Philippines: PtrJIIiJed, 11w in the ase of web
deposits this Jlull not txcud at any rime the un~ apiu! and twplus or wa1 ~vau: ~­
posit~ of die dcpositoty lnok, whichtv« IJ
IIDalla'; PffltliMJ, f1111her, That f2id b2nk thall fim
have been ~ 21 2 dcpofiwry for dUJ
~ bJ cbe ~ Bo2td of che 8411~
SMJral_. Pilpilkl1; aaJd
(c)
In preferred awcks of any solvent corporation
o r institution created or existing under the l2W1
of the Philippines: PrrwiJed, lb2t the issujng, u-sumng, or guaranruing entity or ill predea!sor bas p2id regubr ruvidends upon its preferred or guannteed swcks for a period of at
least three (3) years immediately pr«eding the
date of investment in such preferred or guaranteed swcks: Provided, furthtr, That if the stoeks
are gwranteed the 2mOUOt of stoeks so guanoteed is not in excess of fifty percent (50%) of
the amount of the preferred common stocks as
the case may be of the issuing corpourion: Provided, f11rlhtrmqn, That if the corporuion or institution has not paid dividends upon its preferred
stocks, the corporation or institution has sufficient retained earnings to declare dividends for
at least two (2) years on such preferred stOCks
and in common stocks option or wurants ro
common stocks of any solvent corpotation or
institution created or existing under the bws of
the Philippines in the stock achange with
proven trade. record of profitability and payment
of dividends over the last thcec (3) years or in
common stocb of a newly organiud corporaDon about to be listed in lhe stock adnngr:
Pnwided, ft1141!J, lbat such duly organiud corpoatioo shall have been raud 'N double •NJ or
triple 'Ns by autboriu:d :acaedit:ed domestic eating 2geocics Of by the Corpoarioo ~ in muwaJ
fundi including 2llial inve:tUDClU.
l
1~.6.
I.
Mantbcr•hlp
(b)
initial !lll f!lbm 1111995
(c)
(d)
(e)
SSS/GS1S members, retireea, pcnsionen and
their dependent• under Medicare Program J
Tho&c enroUed in local government unit sponsored health insurance plaru (who are motdy
indigents and lowly-paid workers) under the
Medicare Program II
4.
Members o f other government-initiated heAlth
insurance programs, communi ty bued health
care organizations, cooperatives or private nonprofit health insurance plans who are subsequently accredited by PhilHealth
2.
(i)
Government employee
(ii)
Private Sector employee including househelps and sea-based OFWs
(ill)
Individually-Paying Member including
fishermen, farmers, businessmen, professionals, (doctors, lawyers, etc.) land-based
O FWs
(b)
Indigmt member
(c)
Pn'11alefy-.;ponsored member
(d)
Non-pqying member or NPM (retiree-members of
SSS/ GSIS including personnel of AFP, PNP,
Requirementfor registration. Any of the following:
(a)
Birth certificate
of dlpenJntls
(a)
(b)
(c)
(d)
Marriage contract/nurmgc cerafiau
(e)
Marriage Contract of the patent 2nd sup&therI stepmother and birth certificate of me dc-
Birth/ MptiJmal certificate
Court ord~r on adoption
Birth/baptismal ccnificue of the member and
dependent parents
pendent s~hildren
Pqying Members
BFP and BJMP)
3.
~IJNirrmt,IJ for tktlaralifJfl
Ckusifitafion of ts~mnl members
(a)
UsputmaJ ccrufu.atc
GSIS/SSS member'• 10
Paatpon
Any other vahd 10/doc.umcnt acapable ~
Phil health
5.
(f)
J oint affidavit of two disinterested peaom and
other relevant information (cbte of binh, ett..)
attesting to the fact of the rebrion&hip of me
dependents to the supposed membc:rs aapt
declaration of spouse
(g)
Certificate from the DSWD or Punong Bataogay attesting to the fact of the rdation&hip of
the dependents to the supposed members
(h)
Any other valid ID or document acceptabk to
the Corporation
Rtquirements for registration oftmplt!Jm
(a)
For single proprietorships - DTI registration
(b)
For partnerships and corporations- SEC registration
Ptiii i iiiM 111
(r)
(rl)
(t)
15.7.
I.
For t;,u~'t.lft.'\on und other nnn-['rnt1t
don~ - b.(. ~~~ltttt'\ltlnn
For
~oop~nltlves
-
m~''nl.,,.
Must t:tdopt oil rofc:rroJ protocoiA, CPGs, P"Y
mcnt mcchllnlftrlHI, hen lth resource 1h1trin~ ~tr
Coor~mtlvc Devdopn'\ct"'t
:\~athut'lt (CD r\ ) ~~lstmtlon
run~ement s
Ft•r hi\Ck) rd ind\.HHri~~/ v~nt\.ltc~ IU\d n'licro
bu inc~s cntt-~riscs - Uatrnngl\y Ct'rtlnc"Lion
tmd/ ur M~yor ~ Permit
tJcnrll
MuM comply with stil info rmAtion sy11tem re
(I)
R~l~~,·n/ii!Nttll
I tc lth c"re in~timtion mullt be opemtit'g for the:
wawt:d if:
Man~A.ging h c:11lth care pro fcssio nc.l hus
h~td working experience in 11nother accredited he~tlth cs.rc: In s titutio n for At lel\st
3 ycnrs
(ii)
Operates
(iii)
Operates in a LGU whe re the accredited
health care: pro vider cannot adequately o r
fully service its p o pulatio n
(iv)
RS
o tertiary faci Uty
(k)
2.
Adc:quate quaUty human resources, equipment
llnd physical Structure
(c)
All personnel mus t b e members o f the NHIP
(d)
Physician mus t be registe red members of PMA
and/or its specialty o rganization s
(e)
Health care providers mus t have their own ongoing fo rmal progrlllTl o f quality assurance
Must comply with all requirements and provisio ns of RA 7875 as amended by RA 924 1
Additional reqNirrments for botpilaiJ
(a)
Licensed by D O H
(b)
Comply at all times with RA 4226 o r "The
Hospital Licensure Act" and its implementing
rules and regulations
(c)
Must be a member of good standing o f any national associatio n o f licensed hospitals in the
Philippines
(d)
All secondary hospitals must establish a therapeutic committee and other committees that will
ensure rational drug use
(e)
All tertiary hospital must establish therapeutics
and infection control committees and other
committees that will ensure ratio nal drug use
O the r conditio n s set by the Corpo ration
(b)
quirc:mc:nts s<:t by the Corpcm\clon
Musr. llcccpt llny nnd nil corrcclivc: actions prescrib ed by the: Corporation
Must aUow the Corpo ratio n to inspect and sc:·
cure reproduction o f certi fied true copie11 of
their medicnl 11nd fman cial reco rds and to visit,
enter and inspect their respective premises and
fllcilities
f\1\!tt thn:-c: )'CQn!. ~fhis three-year require.m cnt i:<
(i)
ofrhe NIIIP
Mulll recoRni~e nnd rcspcel rhe right11 of pa-
Accr.:di httlon
(ll)
297
Ptll U{llAI.Tl I
3..
Atf.U...Ujw~
•..f
(b)
Outpatient care
(a)
PRC licmse
(t)
Services of health care professionals
(b)
Must be Philhealth membc.rs themselves
(ti)
(c)
Must submit ttrtifica.te of good standing from
respec~ national associations
Diagnostic, laboratory and o ther medical
examination services
(w)
Personal preventive services
~lust
(tv)
Prescription drugs and biologicals, subject
to limitations stated in Section 37 of RA
7875
(d)
abide by the Code o f Ethics as prescrib«l
under Section 24, Paragraph 12 of the Medical
Act of 1959
{e)
Must comply with practice guidelines or protocols, peer review and payment mechanisms of
NHIP
Must oot ch2rge ottr and above the professio02l fees provided by the NHIP for members
admitted tO 2 Philhe2.lth bed
(f)
{g)
Must comply with any other requirements set by
Philhc:alth '
Benefit package
15.8.
J.
299
TIN betrefiJ ptxhzge indMiks tht fogq.,;"l.:
{a)
Inpatient hospital care
(i)
Room and board
(u)
Services of bc:aJth care professionals
(w)
Diagnostic, 12borato ry and other medical
ex:unilution services
(iv)
Use of surgical or medical equipment and
facilities
(v)
Prescription drugs and biologicals; subject
to limitations stated in Section 37 o f RA
7875
2.
(c)
Health Education Packages
(d)
Emergency and transfer services
(e)
Other heal'th care services that Philhealth shall
determine to be appropriate and cost-effective
The follo»>ing an exriMdtd 11nless re«Jmmmdtd by PhilhtaJJh
(a)
non-prescription drugs and devices
(b)
drug/alcohol abuse or dependency treatment
(c)
cosmetic surgery
(d)
optometric services
(e)
fifth and subsequent normal obstetrical delivery
(f)
cost ineffective procedures which shall be defined by Philhealth
15.9. Premium contributions.-The amount of premium contribution shall NOT exceed 3% of the members'
respective monthly salaries to be shared equally by the employer
and employee. The member's monthly contribution shall be
automatically deducted by the employer from the former's
salary, wage or earnings.
300
BASIC.S oP PH IUPPL'Ie MEDICAL J u ruSPRUDI!Nc e AND
Enucs
P enalties .8--A.ny violation of the provisions of
R.A. 7875, after due notice and hearing, shall suffer the following penalties:
15.10.
A fine of not less than ten thousand pesos (ill 0,000) nor
more than fifty thousand pesos ~50,000) in case the violation is
committed by the hospital management or provider. In addhion,
its accreditation shall be suspended or revoked from three (3)
months to the whole term of accreditation: Provided, howevtr, That
recidivists may not anymore be accredited as a participant of
the Program;
A fine of not less than five hundred pesos (PSOO) nor more
than five thousand pesos ~5,000) and imprisonment of not less
than six (6) months nor more than one (1) year in case the violation is committed by the member.
Where the violations consist of failure or refusal ro deduct
contributions from the employee's compensation or ro remit the
same to the Corporation, the penalty shall be a fine of not less
than five hundred pesos (PSOO) but not more than one thousand
pesos (Pl ,000) multiplied by the total number of employees
employed by the firm and imprisonment of not less than six (6)
months but not more than one (1) year: PT"'ffitkd, .forthu, That in
the C2Se of self-employed members, failure to remit one's own
contribution shall be penalized with a fine of not less than five
hundred pesos (P500) but not more than one thousand pesos
(P1 ,000).
Any employer or any officer authorized to collect conmbucioos under R.A. 7875 who, aher collecting or deducting the
monthly contributio ns from his employee's compensarion, fails
tO mWl me said contributions to Philhe2Jth within thirty (30)
days from w d:.ate tbq- become due shall be presumed to h2ve
301
PHIUIIJ.ALTII
misappropriated such contribution and shaJJ suffer the penalties
provided for in Article 315 of the Revised PenaJ Code.
Any employer who shall deduct direcdy o r iru:lirectly from
the compensation of the covered employees or ot.herwiK recover from them his own contribution oo beh2Jf of such employees shall be punished by a fine not exceed.i.ng ooe thous~
pesos (Pt ,000) multiplied by the total number of employees
employed by the fum, o r imprisonment not exceeding one (1)
year, or both fine and imprisonment, at the cliscrerion of the
Court.
If the act or omission penalized by lLA. 7875 is committed
by an association, partnership, corporation or any other i.nstirution, its managing clicectocs or partners o r p resident o r general
manager, or other persons responsible for the commission of the
said act shall be liable for the penalties provided for in ILA... 7875
and o ther laws for the offense..
Any employee of Philhealtb who receives or keeps funds
or property belonging. payable or deliverable to Pbi.lhealth, and
who shall appropriate the S2.1De, or shall take or misappropri2tr
or shall consent, or through ab2ndorunent or negligence shall
permit.any other .pers~n to ~e such property or funds wholly
or panially, shalllike"WlSe be fulble for mis2ppropriarioo of funds
o r property and shall suffer imprisonment of not less than six
{6) years and not more than twelve ( 12) years and a fine of tllX
less than tm thousand pesos (P10,000) nor more than twenty
thousand pesos ~.000). Anr shortlge of the funds o.r loss of
the property upon audit s1Wl be deemed~ j;t::R ~--idotce of
the offense.
All Other '-iolations invoh--ing funds of Pbilh~abh shall be
govemed by me a:pplicahle pro"risions of me Revised p~
Code or other~ taking into coosi.demtion the roles ()0 collection,. remi~ and in'\"'eStOllent of funds as m:a'\" be nn'Wn....
ulgated hr Phi1health.
•
r-.._.-
Chapter 16
16.3. Definition of temu
1. EthkP-Ethics is two things. Fs.rst, edUcs refers ro
wen based standards of rigbt and wrong that pxescribe
wfnt humans ought ro do, usually in tet:rnS of ~ts,
obliglltions, benefits to society, fairness, o r specific
virtues. Ethics, for eumple, refers to those standards
that impose the reasonable obligations to refrain from
rape, stealing, murder, assau1t, slander, and fraud
MEDICAL ETHICS
16.1. Ethic•.'--Ethks concerns the thoughts, judgments,
and actions on iKues that have the greater implications of moral
"right" and " wrong." A "morally right'' attitude is usually understood to be directed toward an ideal form of human character or action, wruch should culminate in the highest good for
humanity. Prom the desi re to achieve this good comes the sense
of moral duty :a.nd a system of interpersonal moral obligations.
Ethical standards also include those that enjoin virtues
of honesty, compassion, and loyalty. And, ethical
standards include standards relating to rights, such as
the right to life, the right to freedom from iniwy, and
the right to privacy. Such st20dards are adequate st:ancbrds of ethics because they ace supported by consistent and well founded rosoos.
Medical etiquette should not be confused with medical ethics. Etiq~~elle deals with courtesy, customs, and manners; ethics
concerns itself with the underlying philosophies in the ideal
relationships of humans. These relationships are often formally
set forth in social contracts and codes.
16.2. Medical ethica..-Medkal ethics deals with the
moral principles which should gujde members of medical profusion i.n their dealings with one another, with their patients
:a.nd with their State. Por instance a doctor is not e?tpected to
refuse treatment tO a patient on religious grounds. Similarly he is
not expected ro ask for a "cut'' from hjs colleague, to whom he
refers rus patient for some special investigation. If he asks fo r a
"cur", and geu it, both doctors are guiJry of breaching medkal
ethics. To give another example, a doctor is not expected to
em ploy touts for furtherance of their medkal practice. If some
docto r does it, he breaches the code of medkal eth.ics.2
1
KiM, Maty E. and Derge, Elttnot' P.• Tbt Mttlk al Altillalll, 6"' cd. (1988), 32.
2
Internee . http:/ /www.gcrad tt.com/anll/lj/vol_002._.no_001/ul!f.XJ2.
Secondly, ethics refers to the study and development
of one's ethical st2nda.cds. As mentioned above, feelings, laws, and social norms an deviate from what is
ethical. So it is necessary to const20tly ex-2Illine one's
standards to ensure th2t they ace reasonable and wellfounded. Ethics also means, then, the continuous effort of studying ow: own moral beliefs and our moral
conduct, and striving to ensure that we, and the institutions we help to shape, live up to standards that ace
reasonable and solidly-based.
~
I
2.
_00 l _ l .hcml acecued on June 29. 2008.
302
3
Medical tJlqNtlk--Medical etiquette deals with the conventional laws and customs of courtesy observed between members of the medical profession. For instance, a doctor is not expected to charge for giving
medical advice and/ or medicines to another doctor.
He is also expected to see him out of tum. If he fol-
Internet- http:/ / www.scu.edu/ ethics/ publica.tions/ iic/vlnl / whatis..html.
304
MBotCAL
En uc.s
305
lows these guidelines, be is said to have observed
proper medical etiquette.4
(b)
3.
Bioetbit::s--etcs concerning life. s
(c)
4.
Biottbiuzl ir.f116-Sllbjeas that raise concerns or right
and wrong in rmners involving human life. i.e.:
Nonmalejitencl-d.uty to prevent or avoid doing
harm whether intentional or unintentional.
(d)
juJfic6-the duty to treat all patients fairly, without regard to age, socioeconomic status, or
other variables.
(e)
Fidelity-the duty to be faithful
(f)
V uad!J-the duty to tell the truth.
Ethi£al dilemi1Ja--'J. situation involving competing rules
or principles that appears to have no satisfactory solution o r a choice between 2 or more equally undesirable alternatives.'
6.
Mfffai ~~ process of considering and selecting
appro2Ches to resolve ethical issues.8
7.
V a~Mes--beliefs which are considered very important
and f.requendy influence an individual's behavior.9
8.
9.
Moral MnarlaiJt!Y---3 situation which exists when the
indindual is uosure which mof31 principle or values
apply in a given situarion. to
Moral qr ttbUal prinapferl-fundamental values or assumptions about the way individuals should be treated
and cued for. These include
(a)
AldiJ~
patient's right to self-determination without outside control.
• lntcmd _hnp://www.geradcs.com/tnii/•J/voL002~no_OO I /ug002_001_t.
html a«CSJed oo June 29, 2008.
.
•
1 ~.JoAnn and Claborn, Jo Carol, NllffhV, T~ TtriiCJJhVfl t~N11n.Jr
(l99.tf). p. 282.
• t.U.
' IW
.,.,
to
actively do good for pa-
tients.
Eurb:masia, Abortion.6
5.
Benefiancl-d.uty
to
com.miunent.
16.4. Thinking ethically.12-Moral issues greet us each
morning in the newspaper and bid us farewell on the evening
news. We are bombarded daily with questions about the morality of surrogate motherhood, the legitimacy of publicizing the
names of AIDS victims, the ethics of exposing the private lives
of political candidates, the justice of welfare and the rights of
the homeless.
Dealing with these moral issues is often perplexing. How,
exactly, do we think through an ethical issue? What questions
should we ask? What factors should we consider?
The first step in analyzing moral issues is an obvious one:
get all the facts. Some moral issues create controversies simply
because people do not bother to check out the facts. This first
step of analysis, although obvious, is also the most important
one and the one that is most frequently overlooked.
But having the facts is not enough. Facts by themsdves
only tell us what is; they do not tell us what ought to be. In
addition to getting the facts, resolving an ethical issue also
requires an appeal to values. Three kinds of value systems have
ttW
•o tlltJ.
" IW, ~t pp. 282-286.
u By Claire And~ and Manuel Velasquez., lnremec · http:/ / www.st:u.edu/ ethi.cs/
publications/ uc/ v \ n2/ pregnant.html.
306
MEDJC.~L ETHJCS
been developed by philosophers to deal with moral issues. One
such system is called "utilitarianism."
Utilitari2.nism was developed in the nineteenth century by
Jeremy Bentham and John Stuart Mill to help legislators determine which laws were the morally best ones. Both Bentham and
.Mill suggested that ethical actions are those that provide the
greatest balance of good over evil. To analyze an issue using the
utilitarian approach, we must first identify the various courses of
action available to us. Second, we must ask who will be affected
by each actio n and what benefits o r harm will be d~rived fro~
ach action. And third, we choose the course of actton that will
produce the grearest benefits and the least harm. The ethical
2Ction is the one dut provides " the greatest good for the great-
est a~."
The second important approach
ethics is one t_h at has its
roots in the philosophy of the eighteenth century thin~er, . !~­
manuel Kant, and o theo like rum, who focused on the UlclivtduaJ's, right to c~ fo r herself o r himself. According to these
phi)osophen, wh2t m2kcs hWTWl beings different . fro~ . mere
dUngJ is t.Mt people have a cli~ty ~~ on thetr ability co
freefv c h()()te what they will do WJth then lives, and they have a
fun.clameow right to have these cho ice& r_espected. Peop~e ~re
not ob)c:cu tl) be marupulatcd; it is a violaoo n of human digntcy
to UK people in ways they do no r freely choose.
tO
There are, o f course, many different but related rights betldct thiJ lntic one. These other rigtm can be thought of llS
different aspecu of the basic right to be treated as we freely
choose to be tr~ted:
The . ht to the cruth: People have: • right to be told
1. the ~h and w be mformed about matters that tffcct
thetr c ho tcel in 11gnHicant wtys.
307
2.
The right of privacy: People have the right to do, believe and say whatever they choose in their personal
lives, so long as they do not violate the rights of others.
3.
The right not to be injured: Individuals have a right
not to be unwillingly harmed o r injured, unless they
freely and knowingly did something deserving of punishment or they freely and knowingly chose to risk
such injuries.
4.
The right to what is agreed: People have a right to
what they have been promised by those who freely
chose to enter a contract or agreement with them.
In deciding whether an action is moral o r immoral using
this second approach, then, we must ask: ''Does the action
respect the moral rights of everyone?" Actions are wrong to the
extent that they violate the rights of individuals, and the more
serious the violation, the more wrongful the action.
A third approach to ethics is one that focuses on the concepts of justice and fllimess. lt has its roots in the saying of the
ancient Greek philosopher, Aristotle, who wrote that "equals
should be treated equally and unequals unequally." The basic
moral question in this approach is, how fair is an action? Does it
treat everyone the same, or does it show favoritism o r cliscriminacion? Justice requires that we treat people in ways that are
consistent, and not arbitrary. Basically, this means that actions
are ethical only if they treat people the same, except when there
are justi6able reasons for treating them differently. Favoritism is
giving benefits to some people without a justifiable reason for
singling them out, while discrimination is imposing burdens on
people who are no different from those on whom burdens are
not imposed. Both favoritism and discrimination are unjust and
wrong.
,
----~---
308
These three approaches suggest that once the facts have
been asceruined, there are three questions we should ask when
trying to resolve a moral issue: (1) What benefits and what
harms will each course of action produce, and which will produce the greateSt benefits or the least harm for the public as a
whole? (2) What moral rights do the affected parties have, and
which course of action best respects these moral rights? (3)
Whkh course of action treats everyone the same except where
there is a justif~able reason not to? Does the course of action
show favoritism or discrimination?
This method, of course, does not provide an automatic solution to moral problems. It is not meant to. The method is
merely meant to hdp identify most of the important factors that
should be considered when thlnking about a moral issue, and
the questions that are important tO ask. In some situations, the
three approaches may conflict. The course of action that will
produce the most benefits for everyone may also violate the
rights of some or may be unjust to some, or perhaps several
conflicting rights are involved. What should be done in such
cases? When conflicts like these arise, we must weigh the various moral values identified by each of the three approaches and
make up our own minds about which values are decisive. Are
the overall benefits so large that limiting the rights of some is
justified? Docs our commionem to justice require us tO forego
the greatest good for the greatest number? Is ~s right o~ that
one the more sJg!Uficant one? In the end, mor~ •ssues are ·~s ues
wt each penon must decide for herself or himself, keepmg a
arefuJ eye on the facts, and on the benefits, the righu and the
jusuce Ul'Votvcd.
16.4. Approachc:• to ethlc:aJ dilemma.U.- Moral i$Sues
gred us each mommg m the ncwsp:aper and bid us farewell on
the cveosng ~. We arc bombarded <Wty with questions about
MEDICAl.
Enno
309
the morality o f surrogate motherhood, the legitimacy of publicizing the names of AIDS victims, the ethics of exposing the
private ~ves of po~tical candidates, the justice of welfare and the
rights of the homeless.
D ealing with these moral issues is often perplexing. How,
exactly, do we think through an ethical issue? What questions
should we ask? What factors should we consider?
1.
Beneficmce. The jirrt step in analyzing moral issues is
an obvious one: get all the facts. Some moral issues
create controversies simply because people do not
bother to check out the facts. This first step of analysis, although obvious, is also the most important one
and the one that is most frequently overlooked.
But having the facts is not enough. Facts by themselves only tell us what is; they do not tell us what
ought to be. In addition to getting the facts, resolving
an ethical issue also requires an appeal to values.
Three kinds of value systems have been developed by
philosophers to deal with moral issues. One such system is called " utilitarianjsm."
UlifitarianiJ111 was developed in the nineteenth century
by Jeremy Bentham and John Stuart Mill to help legislators detc:nnine which laws were the mora.Uv best
ones. Both Bentham and Mill suggested that ~cal
actions are those that provide the greatest baJance of
good over evil. To analyze an issue using the utilitarian
approach, we must jim identify the various courses of
action available to us. Suomi, we must ask who will be
affected by each action and what benefits or bum will
be derived from each action. And Jhird. we choose the
coune of action that will produce the greatest benefir.s
and the least harm. The ethical action is the one that
provides "the grearest good for the greatest number."
..
310
BASICS OF PHJUPPINB MBOICAL J UtuSPRUO&."lC..S AND ETHICS
2.
The setOnd important approach to ethics is
o ne that has its roots in the philosophy of the eighteenth century thinker, Immanuel Kant, and others like
him, who focused on the individual's right to choose
for herself o r himself. According to these philosophers, what makes human beings different from mere
things is that p eople have a dignity based on their ability co freely choose what they will d o with their lives,
and they have a fundamental right to have these
choices respected. People are no t objects to be manipulated ; it is a violation of human dignity to use
people in ways they d o oot freely choose.
i\lt!otCAL En ucs
A Ntono"!).
There are, of course, many different but related rights
besides this basic one. These o ther rights can be
thought o f as different aspects o f the basic right to be
treated as we freely choose to be treated:
(a)
The right to the truth: People have a right to be
told the truth and to be info rmed about matters
that affect their choices in sjgnificant ways.
(b)
The right of privacy: People have the right ~o
do, believe and say whatever they choose. m
their personal lives, so long as they do not vaolate the rights o f others.
(c)
The right nor to be injured: Individuals. h.ave a
right not to be unwilnngly .harme~ or mJur~d,
unless they freely and knoWJngJy dJd something
deservin g of punishment o~ .th~y freely and
knowingly chose to risk such mJunes.
(d)
The right to what is agreed: People have a right
to what they have been promised by those who
freely chose to enter a con tract or agreement
with them .
311
In deciding whether an action is moral or ammoral using this second approach, then, we must ask: "Does
the action respect the moral rights of everyone?" Actions are wrong to the extent that ~ey violate. the
rights of individuals, and the more senous the VIOlation, the more wrongful the action.
3.
j11tlia. A third approach to ethi~s is one that. focuses
on the concepts of justice and frurness. It has Jts r~cs
in the saying of the ancient G reek philosopher, Aris·
totle, who wrote that "equals should be treated e~u~~y
and unequals unequally." The basic moral ques~on lJl
this approach is, how fair i~ an action? I?~es at tr~at
everyone the same, or does tt show favonosm or di~­
ccimination? Justice requires that we treat people 111
ways that are consistent, and no t arbitrary. Basically,
this means that actions are ethical only if they treat
people the same, except when there are justifiable reasons for treating them differently. Favoritism is giving
benefits to some people without a justifiable reason
for singling them out, while cl.iscrimination is imposing
burdens on people who are no different from those
on whom burdens are not imposed. Both favoritism
and discrimination are unjust and wrong.
These three approaches suggest that once the facts have
been ascertained, there are three questions we should ask when
trying to resolve a moral issue: (1) What benefits and wbat
harms will each course of action produce, and whicb will produce the greatest benefits or the least harm for the public as a
whole? (2) What moral rights do the affected parties have, and
which course of action best respects these moral rights? (3)
Which course of action treats everyone the same except where
there is a justifiable reason not to? D oes the course of action
•
• •
•
;>
show favoritism or dise:rurunaoon.
310
MEDICAL E THICS
A•'
!f· ibc sa-o.J important approach to ethics is
ooc that hu its roots in the philosophy of the eighteenth century thinker, Immanuel Kant, and others like
him. who focused o n the individual's right to cho ose
fU bcndf o r himself. According to these philoso pbcn. what makes human beings different &om mere
things is that people h2ve a dignity based on their ability to fftdy choose wbtt they will do with thei.r lives,
and they batt a fundamental right to have these
choices respcaed People are not o bjects to be rnaoipuba:d; it is a violation o f human dignity to use
people in wsys they do not freely choose.
"1"bctt ~ of coune. 1D211f different but related rights
bes1des this basic one. These o ther rights can be
rhought of as different aspects of the basic right to be
uaud u we fredy choose to be t:re2ted:
(a )
(b)
(C)
(d)
agtu w the uuth: People have a right to be
told cbc cnn:b snd tO be info rmed about matters
dw affca thcU choices in t.igni6ca.nt ways.
1bc 118fu of pnv.cy: People have the right ~
do ~c and uy whatever they choose m
~ pcnoo.aJ ltvn. 10 long aJ they d o no t vio~
lau~ the ng,hrt of Qthc-rt.
~ nght not w M tnturcd: lndlvidu•J~ have Q
nghl nD' to M unwallingly harmed u r an jured,
~· t hey (r« ly and knC1W•nf'ly dlu •nmc:•hinJe
ddcrving of puruthmcnt C>r they (ruly a.nd
ILnQW1ngfy chCJK w n,.k 8UCh tn)UtKt.
The
The nght w what 11 ~~Vffd: l"ff'}'lc h~An " riMht
to whaJ the-y hne been promlted by thuse whr>
frcdy chose ,., ertu.•r • conmct n r q recm1ent
with &hem.
311
In deciding whether an action is moral or immoral us-
ing this second approach, then, we must ask: " Does
the action respect the moral rights of everyone?" Actions are wrong to the extent that they violate_ the
rights of individuals, and the more serious the vtolatioo, the more wrongful the action.
3.
JN.Itia.
A JhirrJ approach tO ethics is one that. focuses
on the concepts o f justice and fairness. It has 1ts r~ts
in the saying o f the ancient Greek philosopher, Aristotle; who wrote that ..equals should be treated e~~y
wd unequals uneqmilly." The basic moral ques?-oo 10
this approach is, how fair is an action? Does 1t tr~at
everyone the same, o r does it show favoritism or di~­
c.rirnination? Justice requires that we treat people m
Wllys t:ha,t att consistent, and not arbitrary. Basically,
this means that actio ns arc ethical only if they treat
people the same, except when there arc i_u_s tifi~ble_ ~­
son s for treating them differently. Favontlsm 1s gtVlng
benefi ts to some people without a justifiable reason
for singling them out, while discrimination is imposing
burdens on people who are no different fro m tho se
o n whom b urdens ~ not imposed. Both favo ritism
and discrimination att unjust and wrong.
Thue three approaches suggest that o nce the facts have
been uc-enained, th~ are three questions we should ask when
trying to tt oh~ a mo ral issue: (1) What benefi~ an~ what
h!U'ms ·will each coune o f action p roduce, and which wtll produ« the g...-eatest benefits or the least harm fo r th_e public as a
whnle? (2) \Vhat moral rights do the affected paroes ~ave, and
which t"aunc o f action best respects these moral nghts? (3)
Which course o f action treats everyone the same except wh~re
tht~ is a jl.lstifiable reason not to? D oes the course o f acuon
ahow fsvo ritism o r discriminAtion?
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Conr C>l' En uc.s
Chapter 17
CODE OF ETHICS
17 .1. Code of E thics.- A code of ethics provides a means
by which professional standards of practice are established,
maintained, and improved. It is essential to a profession. Codes
of ethics are formal guidelines for professional action. They are
shared by the persons within the profession and should be
generally compatible with a professional member's personal
values.
One of the notable accomplishments of the Philippine
Medical Association (PMA) is the promulgation of the Code of
Ethics of the Philippine Medical Association (PMA) Medical
Profession.
When people enter the medical profession, other members
of the profession assume that they accept the established code
of ethks. New physicians inherit the trust and responsibility to
any out ethical practices and to exhibit ethical conduct.
17.2. H istorical Codes.l-£thic.F-judgment of right
and wrong-have always been a concern of human beings. lt is
not surprising that for centuries the medical professio~ has set
for itself a rigid standard of ethical conduct to~ard patients and
coUeagues. The earliest wriuen code of ethical conduct for
medical practice was conceived around 2250 BC by the Babylo·
nians and was called the Code of Hammurabi. It went into
much detail regarding the conduct expected of a physician, even
1 KJnn,
Muy E. and l)c:cgc, eleanor P., '1'111 Mtdltal Astistanl, 6~' ed. (1988), 32.
314
315
prescribing the fees that could be charged. Probably because of
its length and detail it did not survive the ages.
About 400 BC Hippocrates, the Greek physician known as
the Father of Medicine, developed a brief statement of principles, which has come down through history and remains an
inspiration to the physician of today. The Oath of Hippocrates
has been administered to che medical graduates in many European universities for centuries.
The most significant contribution to ethical history subse·
quem to Hippocrates was made by Thomas Percival, a physi·
cian, philosopher, and writer from Manchester, England. In
1803, he published his Code of Medical Ethics, Percival's personality, his interest in sociologic matters, and his close association with the Manchester Infirmary led to the preparation of a
"scheme of professional conduct relative to hospitals and other
charities," from which he drafted the code that bears his name.
1.
Oath and Law of Hppotrates.-HIPPOCRATES, the
celebrated Greek physician, was a contemporary of
the historian Herodorus. He was born in the island of
Cos between 470 and 460 B.C., and belonged to the
family that claimed descent from the mythical Aesculapius, son of Apollo. There was already along medical
tradition in Greece before his day, and this he is sup·
posed to have inherited chieOy through his predecessor Herod.icus; and he enlarged his education by extensive travel. He is said, though the evidence is unsat·
isfacrory, to have taken part in the efforts to check the
great plague which devastated Athens at the beginning
of the Peloponnesian war. He died at Larissa between
380 and 360 B.C. The works attributed to Hippocrates
are the earliest extant Greek medical writings, but very
many of them are certainly not his. Some five or six,
however, are generally granted to be genuine, and
31 7
316
among these is the f2mous "Oath." This interesting
document shows that in 1m time physicians were alre2dy o rg.mized into a co rporation or guild, with regulations for the training of disciples, and with an espril
de (Qr/JJ and a professional ideal which, with slight exceptions, can hardly yet be regarded as out of date.
One saying occurring in the wo rds of Hippocrates has
achieved universal currency, though few who quote it
today are aware that it o riginally referred to the art o f
the physici2o. It is the first of his "Apho risms": " Life
is short, and the An long; the occasio n fleering; experience fallacious, and judgment difficult. The physician must no t o nly be prepared to do what is right
himself, but also to make the patient, rhe attendants,
and externals cooperate.2
The: H ippocratic Oath js the o ldest recorded statement
of professio nal ttrucs. Ic recognizes that medk.inc,
mo re than any o ther calJing, requires that its practicio·
ners be men and wo men o f good mora.l character and
behaviour. W itho ut chis, the trust needed to create an
effective d octor-patient relatio nship cannot be established .}
2.
Tht Oa1h qf Hippotralu
r SWfi.AR by ApoUo the physician, Aesculapius, ~tnd
Health, and All-heal, and aJI the gods and goddesses,
thar, according to my abiUry and judgement, I wiiJ
keep Lhis O ath wd this stipulatio n, to recko n him
who 01ught me this Art equally dear ro me as my parCOil , to share my substance with him, and reJjeve hiR
From .. Hunrd Oau~cs Volume 38" Copyn&ht 1910 by P.F. Collier and Son,
tnwne1 • brtp://membcn.mpoct com/ nlu.iuro/ tuppocra.htm acceu ed on
Much l I, 2008.
' Wbadoclt. Chuck. M.U_, (200 1). p. 91.
l
necessities if requjred; to look up his offJPring in d1e
u me footing as my own btOthen, ~ "? toKh them
this art. if they shalJ wish to learn tt. wtthout fee Of"
stipulation; and that .., pr~. lcaure, 2nd every
other mode o f instruc'U011, I will unpart ~ ~
o f the Art to my own IOOS, and those of my ~ben.
and to disciples bound by a stipohrioo 20d 02th ~~
cording the law of medicine, but to oonc other.
I WILL FOLLOW that method of ttut:rnent which,
according to m y ~bility arui j~t, I comider for
the bendit o f my patients, and abtwn from whatever
is deleterioLU ~nd mischievous. 1 will give no ~1
medicine to any o ne if as~ nor suggest any such
co unsel; and in like martner 1 will not give a w oriWl ~
pen ary to produce abortion.
WITH PURI'IY AND WITH HOLINESS l will pus
my life and practice my An. I will no t cut persons 1.2boring under the stone, but will leave thjJ w be done
by men who are practitio ners of thi! wo rk. lntO whatever ho uses 1 enter, 1 wiU go into them fo e the bene£t
o f the sick, and will abstain from every voluntary act
o f mjschief and corruptio n; and, further from the seductio n of females or males, bond o r free .
WHATEVE R, IN CONNE CflON with my professional practice o r not, in co nnectio n with it, I see or
hear, in the life o f men, which ought no t to be spoken
o f abroad, 1 will not divulge, as reckoning that all such
should be kept secret.
WHILE 1 CONTINUE to keep this Oath unviolated,
may it be granted to me to enjoy life and the practice
of the act, respected by all men, in all times! But
shoUld I trespass and violate this Oath, may the reverse be my loti
318
B ASICS OF PHJUPPINE MEniCAL jUIUSPRIJDENCE AND ETHICS
17.3. Philippine Medical Association. -There is no integrated professional medical o rganizatio n. There exists the
Philippine Medical Association, Inc. (PMA), an organization of
doctors licensed to practice medicine. The PMA is one of the
most prestigious organizations in the Philippines, the umbrella
organization of the medical profession of the country. It is duly
registered with the Securities and Exchange Commission as a
non-stock, non p ro fit organization and is the m other association
o f all medical organizations in the Philippines.
Organized September 15, 1903, the first association of
medical practitioners started as a single city chapter named
Manila Medico Society. When its application for membership
with the American Medical Society (AMS) was refused because
the latter was looking for a national o rganization, a nation.al
medical association was constituted which was named the Philippine Islands Medical Association. Later, it was renamed the
P hilippine Medical Association (PMA).
The early years of PMA were dominated by Am~ri~an practitioners. In the early 1920's all p ositions in the Assoaatlon were
occupied by Filipinos with Dean Antonio. Sison of the UP-~GH
as its President. The first Filipino Prestdent was Dr. Ariston
Bautista (1908).
The PMA gained PRC accreditation ~~ the nationally organized professional organization of physlcJans o n September
18, 1975.
For several years now, it has assumed leadership in healthrelated services here and abroad . .It co- founde~ the Confederad
tion o f Medical Association in AsJ.a and Ocearua (~MAAO) .an
the Medical Association of South east Astan NatJons
(MASEAN).
Cooe
OF
En ucs
319
Among the biggest professional organizations in the Philippines, it boasts of 26,000 active members and 103 co mponent
societies, 8 specialty divisions and 30 specialty societies with
their respective affiliates and sub-specialties under the 8 specialty divisions (Pathology, Radiology, Anesthesiology, Surgery,
Physicians, Pediatrics, Obstetrics & Gynecology and Family
Medicine) and o ther 59 affiliate societies. With a Board of Governors in almost all regions of the country, it seeks to build a
strong and solid association, restore the honor and dignity of the
profession, and become an active partner of the government in
improving health conditions in the Philippines. The Board of
Governors exercise control and supervision over the regional
councils and the component societies. The Board of Governo rs
has the power to realign regions and component societies, to
create new component society and to delist existing one.
Aside from its by-laws which were duly registered with the
Securities and Exchange Commission, the PMA has codes
governing its affairs and the conduct of its members. Among its
codes are the Administrative Code, the Code o n Continuing
Medical Education, Code of E thics, the Election Code and
Mutual Aid Code and Guidelines of Protocol and Procedures
and Guidelines on Affiliate Societies.
For the benefit of its members, the PMA and its specialty
societies periodically conduct seminars, worksho ps and conventions in order to educate its members on the latest medical
technology and medicine. Its specialty societies determine who
the specialists in several fields of medicine are.
There is no other medical organization that possesses the
breadth, composition, membership and nationwide coverage of
the PMA. In almost all matters affecting health o r the medical
profession, the government seeks the advice of the PMA.
320
B.\Slcs oF
P HllJPI>n.,o"E ME.otCAL jL"a~SPRL'DE.\ICE A.\ID
Enucs
Coou Of' ETHics
17 .4.
sion ."
321
PMA Code of Ethics of the Medical Profes-
Arliclt 1-Gmtral Pn'napks
Article !1-Dutte.r to Patt'entt
1.
H ealth is a fundamental human right, and it is the obligation of society to make it possible for the individual to att~ a
The physician's principal responsibility is the patient's
welfare, both insofar as the state of his health is concerned, as
well as his status as a human being deserving dignjty and respect.
level of health consistent with the resources of the commuruty
in which he lives. The individual has a right to expect, therefo re,
provision o f general meas~es directed ~~ards public heal~, as
well as m o re specific serv1ces and facilioes for those afflicted
with illness and disease.
2. Recognizing that the patient has the right to choose his
physici:m, the physician is likewise under no obligatio n to accept
an~ patient..If he cannot care for the patient he should guide the
patient or his family o n what to d o.
1.
2. The physician belongs to a noble profession ;vhose
primary purpose is to provide competent and compass1onate
medical care.
In the pursuit of his professio n, the ?hysician's ~ri­
mary objective is the best interest of the paoent, respec~g
human dignity regardless o f stage _o_f dev~opmen~ socioeco nomic status, religion, gender, poliocal beliefs, rac1al background o r o ther circum stances.
3.
4. In the context o f his primary respo nsibility to his pacient, the physician must consider the concerns of othe_r groups,
including the patient's relati~es, other health care provtders and
the co mmunity in which he lives.
The physician also has duties ~ the co~ muni~ in
which he lives as well as to the professiOn of whJch he IS a
member.
5.
6. The basis for the physician's ethical compliance ~ h ould
be the standards estabushed by the C?de ~f Ethics o f hiS profession and a co nscience sensitized to ldeno fy and re~ect o n the
ethical aspects of his pro fessional and personal behavto r.
• tnt.erne~ .
hnp:/ / www.pmll.eom.ph/ Downloads/ FTNAL-PMA·
COD£0FET HLCS2008.pdf acceued o n June 28, 2008.
.
3. . It is the duty of the physician to infonn the patient or
~s relattves of the nature o f the illness, progress of his conditton, common accepted treatment, alternatives, risks and probable cos:s, obtain a voluntary informed consent for any p roce~ure ~e mtends to perform except in emergency cases o r other
sttuaoons.
The ~hysician is ~bliged to respect the confidentiality
of all _mformaoon he
the basis of his professional
capaaty, and shall no t divulge this information to third p~.....:
nl
h
. I
.... ues,
u ess t ere ts a aw, a court order, or a waiver from the patient
o r when the common good so requires. Such o bligation extends
even after the d eath of the patient.
4:
ac~wres o~
. 5. The physician is obliged with the co nsent of the pattent to re~er the c~se to another appropriate physician. Whenever there ts doubt Ln terms of diagnosis and treatment
h
1
·
f ·
0 r w en
t 1e pa~ent or amily request it, or if the case requires procedures
for whtch the physician is not adequately trained.
. . 6. !he physician should be fair and considerate in deterrntrung hts professio~al fee, taking into account the complexity
of the case, the duratlon o f care, his expertise, current fees and
the economic status of the patient.
( ;,JI) H tJ!'
7. The l'h -.lrll\n IR (')bllw:d to tlptlnte h\11 knuwlctl~c und
$lull. *n chat he Ctfl r rovldc: mc:tllc91 cure In lltcordnncc with
\JM"t'nt stllnd"ttl~ of p1ulcru c~trc: .
.,lrlltl# Tll- D•hn ~~ P~ylitiolf to CDIIt~uu
'fhc physici~An is obliged to respect the c.Ugnity 1\ncl
name of his fellow physicians.
1.
~
. 2. Physid2ns ~h.ouJd work together in harmony. Physicta.ns who have legtumatc complaints or grievances against
colic gues should tint seek relief through private fraternaJ
reconciliation or through their own institutional process, and
uJomalely to the medical society to which he and his coiJeague
belong for adjudication before litigation. They should refrain
from pubhcizing thear disputes.
gnw.t
323
A rtk/6 1V- Duliulo llu Comtllllfli{Y
1. The physician b:~s an obligation w the c:ommunjty in
which he lives and of which he is a part, in provicling medical
care to his patients, to initiate and to participate in efforts clirected to public heaJth.
2. The physician should be cognizant that because o f hu
status, he is viewed u a leader and therefore, obliged w bve up
to this speciaJ role by the example he tets and the image he
projects, and his participation in the community.
3. The physician is obliged to protect the h~th of his
community by warning them against improper practices, particularly of untrained persons. He can best do this through an
organized society of medical profc:ssionaJs.
4. The Physician to whom a patient is referred for a particular purpose should encourage the patient to return to his
orig.rnal attending physician upon completion of his specific
4. The physician should exercise high ethical standards in
the. m~nner in which he makes his services known and always
mamt:un the decorum pro~r to his status as a physician. Any
~~uncement should only tnclude the name, extend of practice,
clime hours, office address, and membership in PMA and recognized specialty society. A physician working in an institution
should not allow announcements other the aforementioned
information.
uu k.
.
3. The physician should not degrade the nobility of profcuton by eng2ging in practices unfair to his colleagues. He
should not solici t ~t.ients nor provide comrrussions, rebates or
referral fees to physkiaru and institution.
5. The physicutn should acknowledge a colleague: fo r performing a procedure Qnd should nC)t misrepresent himself to the
patient aa the one having performed the procedure.
6. A physician shaJI waive his profc:u ional fees to a col
league, his spo use, children and parent who are finnncially
dependent on him.
.s. The physici~ should exercise prudence and good faith
h1s appearances m the media and in the endorsement o f
commercial and medical products so that he projects a balanced
evidence based view of medicine that will benefit the community and the pnlctice of the profession.
tn
6. The physician should exercise the greatest care to make
sure thllt new findings and trends are first reported to professional societies or in professional publications, so that they may
be adequately evaluated before the general public is made aware
or them.
324
Cooe OP
BASICS OF PHIUPPINU MEDICAL juRJSPRUOI:NCE ANO ETHICS
Article V-Duties to Special Groups
1. The physician should respect and cooperate with
members of other health professions in the delivery of health
care.
2. The physician.may be involved in organizations or enterprises including drug industries as a result of which there may
arise situations where there are conflicts in interest that involve
the best interests of his patients. The physician should be transparent in his relations with organizations and enterprises. He
should be especially careful to remain faithful to his primary
duty to his patient.
Article VI- D11ties to the Profession
1. The physician bas the duty to protect and enhance the
image and reputation of the medical profession through his
personal and professional conduct.
2. The physician bas the duty, by the example he sets, to
attract highly principled young men and women to the profession, and thereby insure that future physicians are worthy of
their calling.
3. Some of the obligations of a physician are best complied with by an organized professional body, and to the extent
that this is necessary and important, a physician has the duty to
associate himself with and participate in these efforts.
Article VJI-Implementing Provisions
1. This Code of Ethics shall be published in the Journal
of the Philippine Medical Association and copies shall be made
available to all m.c:mb~ rQ. at a frequency to be determined by the
Board of Governors, distributed to all new physicians immediately following their oath taking and included in the curriculum
of all medical schools.
f!TtffCS
325
2. Violations of the provisions of the Code shall contti·
cute unethical and unprofessional conduce. and shall be grounds
for reprimand, suspension or expulsion.
3. Jmplementing Guidelines tO specific provisions of this
Code may be issued when deemed desirable by the Board of
Governors, based on recommendations of the Commissio n on
Ethics. These implementing guidelines shall have the force of
the Code until revoked or superseded by new guidelines.
4. This Code shall take effect 60 days after its publication
in the Journal of the Philippine Medical Association. Implementing guidelines shall be considered effective 90 days after
they have been circulated to the component and af6.J..iare societies of the Association.
Article VIII-Amendments
1. ~e Board of Governors of the Association upon recommendation of the Commission on Ethics may amend or
repeal this code by 2/ 3 votes of the members of the board.
These am~ndme?ts are subsequently rarified by the General
Assembly tmmecliately following the approval of the Board.
17.5.
Board of Medicine Code ofEthics (1965)
Article 1-Genera/ Principles
~eccio~ 1. The primary objective of the practice of medi~~ ts. servtce .to mank!nd irrespective of race, creed or political
~ in sh uld b
a at.ton. 1n ltS .practtce, reward of financial oo
e a
sub ordinate consideration.
.
Section ~· .on entering his profession a physician assumes the obligation of maintaining the honorable tradition th
confers upo.n him the well deserved title of "friend of man". Ha;
should chensh a proper pride in his calling, conduct himself as a
gentleman, and endeavor to exalt the standards and extend the
326
B ASICS OF PHlUJ>PINE MEDICAL j i.!PJSPRUOEl'-<CE /\NO ETHlCS
sphere of usefulness of his profession. He should adhere to the
generally accepted principles of the International Code of Medical Ethics adopted by the Third General Assembly of the World
Medical Association at London, England in October, 1949 as
part of his professional conduct.
Section 3.
In his relation to the state and to the community, a physician should fulfill his civic duties as a good
citizen, conform to the laws and endeavor to cooperate with the
proper authorities in the due application of medical knowledge
for the promotion of the common welfare.
Section 4. In his relation to the state and to the community, a physician should fulfill his civic duties as a good citizen,
conform to the laws and endeavor to cooperate with the proper
authorities in the due application of medical knowledge for the
promo tion of the common welfare.
Section 5. With respect to the relation of the physician to
his colleagues, he should safeguard their leg1timate interests,
reputation, and dignity-bearing always in mind the golden rule
"whatever ye would that man sho uld do unto you, do you even
so to them."
Section 6. The ethical principles actuating and governing
a clinic or a group of physicians a.re exactly t~e ~arne as t~ose
applicable to the individual physician. Specialoes tn the ~an~us
fields of medical sciences are not exempt from the appiJcaoon
of these principles.
Article ll-DJtties of Physicians to their Patients
Section 1. A physician should attend to hjs patients f~th­
fully and conscientiously. He should secure ~or. them. all poss1ble
benefits that may depend upon his prof~s~Jo~al ~kill and care.
As the sole tribunal to adjudge the physJcJa11 s failure to fulflll
rus obligation to hls patients is, in most cases, hls own con-
Cooe oP
ETHICS
327
science, and violation of this rule on his part is discreditable and
inexcusable.
' Section 2. A physician is free to choose whom he will
serve. He may refuse calls, or other medical services for reasons
satisfactory to his professional conscience. He should, however,
always respond to any request for his assistance in an emergency. Once he undertakes a case, he should not abandon no.r
neglect it. If for any reason he wants to be released from it, he
should announce his desire previously, giving sufficient time or
opportunity to the patient or his family to secure another medical attendant.
Section 3. In cases of emergency, wherein immediate action is necessary, a physician should administer at least first aid
treatment and then refer the patient tO a more qualified and
competent physician if the case does not fall within his particular line.
Section 4. In serious cases whlch are difficult to diagnose
and treat, or when the circumstances of the patient or the family
so demand or justify, the attending physician should seek the
assistance of his colleagues in consultation.
Section 5. A physician must exercise good faith and strict
honesty in expressing his opinion as to the diagnosis, prognosis,
and treatment of the cases under his care. Timely notice of the
serious tendency o f the disease should be given to the family or
friends of the patients, and even to the patient himself if such
information will serve the best interest of the patient and his
family. It is highly unprofessional to conceal the gravity of the
patient's condition, or to pretend to cure or alleviate a disease
for the purpose of persuading the patient to take o r continue the
course o f treatment, knowing that such assurance is without
accepted basis. It is also unprofessional to exaggerate the condition of the patient.
328
a ,,stcs oF PtuUPI' INn M aotCAL J t;lUSP'Rt:DE.' ICE AND Enttcs
Section 6. The medical practitioner should guard as a sacred trust anything that is confidential or private in nature that
he may discover or that may be communicated to him in his
professional relation with his patients, even after their death. He
should never divulge this confidential information, or anything
that may reflect upo n the moral character of the person involved, except when it is required in he interest of justice, pubhc
health, or public safety.
Section 7. The medical profession not being a business
and service its primary concern, a physician should not charge
exorbitant or excessive fees. In detennining the amount of the
fee, he should always consider the financial status of the patient,
the nature of the case, the time consumed, his professional
standing and skill and the average fees charged by physicians of
the same standing in the same locality.
Article III-Duties of Physicians to the Commum!Y
Section 1. Physician should cooperate with the proper
authorities in the enforcement of sanitary laws and regulations
and in the education of the people on matters relating to the
promotion of the health of the individual as well as of the
community. They should enlighten the public on the dangers of
communicable diseases and other preventable diseases, and on
all the measures for their prevention and cure, particularly in
times of epidemic or public calamity. On such occasions, it is
their duty to attend to the needs of the sufferers, even at the risk
of their own lives and without regard to financial returns. At all
times, it is the duty of the physician to notify the properly constituted public health authorities of every case of communicable
disease under his care in accordance with the laws, rules and
regulations of the health authorities of the Philippines.
C OOL Ul 1-!ltUC.:J
129
ection 2. It i the duty of every phyatc12n. w hen c.a11ed
upon by the Judicial authorities, to assist in the adm.nisruuon o f
justice on matters which are medico-legal Jn ch2ta.c:ttr.
ection 3. It is the duty of physicians to wam the pubbc
agrunst rhe dangers and false pretensions o f charlatan• and
quacks, since, their deceitful practice may cause injury w he2Jm
and even loss of life.
Section 4. A physician should never cover up, hdp, aJd
or act as a dummy of any illeg2l practitioner, quack or ctwiat2n.
Section 5. Solicitations of patients, directly or indirecdy.
through solicitors or agents, is unethical. Modest advertising
may be allowed through professional cards, classified advertising, directories or signboard. In all these advertisemenu only the
name, title or profession, office hours and office and residence
addr~sses should appear. In case of physicians specializing on a
de~te .branc~ of .m~dicine, the s~e~ia~~ may be advertised by
stattng 'Practtce limited to (speciality) or by merely sraring"Obste.~cian", "Orthopedic surgeon", "Ophthalmologist"', etc.
AdverttsJ.ng and publishing personal superiority, possession of
spec~al certificates or diplomas, post-graduate training abr<nd.,
speCific methods of treatment or operative techniques or advertising former connection with hospitals or clinics are likcwi.se
unethical. Guaranteeing or warranting treatments or operations
is objectionable.
. Sec~o.n 6. No physician should advertise thro ugh the a clio, teleV1s1on or moVles nor allow the publication of reports or
commen~ on cases or ~ethods of treatment in any newspaper
or magazme. Only medical articles which will contribute to the
knowledge and education of the public on general health Dl2tters may be published and the author may be identified provided
the article is neither self-laudatory not in any way related to his
clinical practice. In case any picture of a laudatory anide IS
330
B ASICS OF PHlUPPINE MEDICAL ) URlSPRI...'Dl'.i'lCE Ai'ffi ETHICS
published by any body without the consent or knowledge of the
physician concerned, the latter should make a written protest
and disclaimer to be published in the same newspaper or magazine where the original article in question was published. A copy
of this letter should also be furnished the component society to
whom the physician belongs and to the PMA Secretariat.
Section 7. The physician-columnist must be well informed and up-to-date in the subject matter of his column. The
scope o f the medical column should be in the form of general
information, of education value and of public interest, such as
needs for yearly periodic consultations, preventive measures,
formation of good health habits, explanation of need for diagnostic sides, emergency measures, and other topics of general
interest to the health of the public. Medical columns should not
make specific diagnosis or therapy or be projec~ed to. indi~d.ual
cases. The physician-columnist should not be rn aco.ve clinical
practice. If however, the physician-columnist is in active clinical
practice, his authorship must be in the form o f pseudo.nym or
the columns may be published under the sponsorship of a
medical society or a specialty society to which he belongs.
Section 8. Humanity requires every physician to rend~r
his services gratuitously to poor and ind.ige~t p~rsons who ar~ 10
need of his attendance. The endowed msuruoon and o rgaruzation for mutual benefit or for accident, sickness or life insurance
or for analogous purposes have no claim upon physicians for
unremunerated service.
Artide JV- Dutiu of Phyticians to tbeir Colleagues and lo lbe Profusion
Section 1. Physician hould labor together in harmony,
each giving freely to other whatever advantage he msy hav to
contribute.
ection 2.
phy ician should willingly render gt1ltuitous
service to coUe'ilgue, to his wife and minor children or even to
CODE. OP ETHICS
331
his father or mother provided the latter are aged and are being
supported by the colleague. He should however, be furnishe?
the necessary traveling expenses and compensated for all medicines and supplies necessary in the treatment of the patient. ~s
provision shall not apply to physicians who are no longer ~
practice not to physicians who are engaged only or purely m
business.
Section 3. In difficult and serious cases or in those which
are outside the competence of the attending physician, he
should always suggest and ask consultation. Only experienced
physicians who are senior to the attending physician or who
have had special training and experience in a particular line of
medicine should be selected by the latter as consultants.
Section 4. Out of consideration for the object of consultation and for the physician's duty to uphold the honor and
dignity of his profession, no physician should meet in consultation with anyone who is not qualified by law to practice medicine. In arranging for a consultation the attending physician
should fix the hours of the meeting. However, it is his duty to
make the appointment in a way satisfactory to the consultant.
Section 5. Every physician participating in a consultation
should endeavor to observe punctuality. Unless the cause of
delay is known, if the attending physician does not arrive within
a reasonable time after the appointed hour, the consultant
should, according to the circumstances attending the case, be at
liberty either to regard the consultation as postponed or to see
the patients alone. In the latter case1 he should leave his concluions in \vtiting in a sealed envelope. On the other hand, if the
con ultsnt does not appear at the fixed time, the attending
physician, after a reasonable period of waiting, and with the
consent of the patient, or his family, may either arrange for
another consultation or give permission for the consultant to
examine the patient and forward to him a written opinion, the
332
consultant must see to it that the opinion is under seal and t:rult
his statements are courteously word~
Section 6. The attending physician should give the consultant all necessary information relating to the case. This should
be done in a place away from the patient and his family. After
this, the consultant should be brought in and introduced to the
patient by the attending physician, who may examine the patient
~ if he thinks it necessary to note any possible ~
before turning his patient over to the consultant. The: latter then
should proceed to make a thorough ex2min~tion. During the
examination, the attending physician may make patient remarks
or observation. While in the presence of the patient or of his
family , the co nsultant should not make any remarks about the
diagnosis, etiology, prognosis, or treatment or hint of any possible error of the attending physician.
Section 7. In a seclude place away from the tntient, the
physicians should discuss the case and determine the course of
treatment to be followed. Neither statement nor discussion of
the case should take place before the patient o r his family or
friend, not only to save the attending physician from possible
embarrassment, but also to prevent all possible misapprehension
which susceptible lay persons might easily derive from the plain
discussion usually unavoidable in such cases.
Section 8. Once the discussion is terminated, the result
of the deliberations should be announced. The duty of announcing it to the patient's family or friends should be mutually arranged between the attending physician and the co~sultant, an~
00 opinion or information should be announced wtthout prevtous deliberation and concurrence.
Section 9. Differences of opinion should not be divulged; but when there is an irreconcilable disagreement, the
arcunutAncc should be frtnidy, GCNI'&C:tJQUy. and ampa
explained to the patient's fvnily or f~.
'Section tO. When a conauJwir.m " rKcr 1nd the phyu·
cian in charge is designated, the bttct '
be rupoMtbk f~
the care and treatment of tbe patient. He nuy. however,~
calling in any other phys.icia.n whom he regud1 at compcunr to
help or to advise. He may at anytime chansc or 2bandr,n the
course of treattnent outlined and agreed upon u cbe coos
cion, if and when, in his opinion, auch 2COOO is ~rd by the
condition of the patient. If he does thiJ, he .boaid at dtc oa.t
consultation state his reasons for departing from cbe counc
previously agreed upon because it is his duty to follnw ~
treatment, outlined and refrain from changing if for uiTi2l
motives. If an emergency occurs and the physicim in chz~F. is
not available, the consultant should attend to ~ C2K umii the
arrival of his colleague, but should not take funber cbarF of ir
except with the consent of the attending physician.
Section 11. Cases which appear to be out of me propu
line of practice of the physician in charge or refnctory in spitt
of the usual clinical treatment, or with a grave prognosu sbluJd
be referred to those who specialize in that class of ailrneoa b 15
desirable that the patient brings with him a letter of introducuoo
giving the history of the case, its diagnosis and ttormcnt. 2nd
the details that may be of service to the specialist. The brett
should, in turn reply in writing to the: physician in ~ &i' wg
his opinion of the case together with the coo.rsc of ttc::atmrot be
recommends. These opinions or suggestions must be regarded
as strictly confidentiaL
Section 12. A physician should o~ utmost caution.
tact and prudence, both in words and in ~ as ~ dtc
professional conduct of another pbysi~ pa.niculady ~ it
concerns a patient previously ttei.ted by t:M latter or: ~
under his care. In his dealings with patients nOt under his ~
334
Cooe
~ shouJd oot say or do anything that might lessen the patient's
coo6dencc reposed in the attending physician.
Section 13. Whenever a physician is compelled to make a
social or business caU on a patient under the professional care of
aoocher pbysaaan., be should not make inquiries or comments as
m the cOology diagnosis.. treatment, or prognosis of the case.
Tbc most mat ouy be mentioned is the general physical condition of me parieot or otbc:r topics foreign to the case.
Seaioo 14. A physician should not t2ke charge of or pretenbc for a parieot aJrc.dy under the care of another physician,
unless the case is one of emetgmcy, or the physician in anen-
dana has rdinquilhed the asc, or the services of the attending
JC)Iician has been dispcmcd with.
Seaioo JS6 A pbysiciats lbould never cumine or ttcat a
botpieaited pmcm wUhous cbt baa's koowledgc and consent
ncep in caa of anaFXJ, but in the buer instmce, the
pby.., tbouJd noc COMMMJC me creatment but return the
, _ , . co hn •awliag pbJ'Iic:ian
mer me
emergency has
OF
Enucs
335
in charge, unless the patient or his family has special preference
for some other one among those who are present. As a matter
of courtesy, the acting physician in charge should request, at the
start, that the family physician be called. When the patient is
taken to the hospital, the attending physician of the hospi~
likewise should communicate with the family physician so as to
give him the option of attending the ase.
Section 18. Public interest demands that the relation between government and private pbysici2ns should be friendly and
cordial for the promotion and proteaion of public hwth depend gteady upon the coopc:ation of government and private
physicians.
Section 19. The pbysicim should carefully refrain from
making ~ ~ ~WtiDDCI:d criticism of other physicians
and, even m JU!riied cucumsranc:a. airici~m should be Dl2dc in
a_ ~uuc:tive way aod ooJy ciiRcdy and privately to the physiaan.s UJVolYed. Wbcorvtt rhcR is an i.m:conc:ibble difference of
opinion. or coofbct of interest ~-een Professional v ......... 1.....:0 n
Commiuion.
•-&Y&.AW
FUnd
5ecooo 16. A pbJ SICiatl a!led upon to aa.cnd a pacimt of
~ ph'lidan cishft beaatt ol an~. or bcautc
pllj ..can
(J~ .... ?I .. nt)C ....ab.blt, thould
-lid tdy to cbc ,.._,. mtrJCdt•c nccd:t. H amndanu
cea~a wbm die
• f7!rG ot cJtJ chc anWal Q( thr
pbp.-o .,
after be
~ chc uJftdioon (11Uftd
die
....
lftd he lhould fti1C (
It~~ tw snnc.a wifhouc the ~ tJI the
pltyl.-.n.
.. ootf 11. ~.. .. dw abtcncc (,(the
the , ..
~
,.,_, phr
um~~~
~ m
.,...__ , .
lftd~oldwl
stn.Wbc
cd ph~
Secaoo 20. When • ph)'lician iJ requested by a collclgue
alc.e care of a pii.XOl duri"l hit canporuy absence or when
bccau~ of an cmc:rgcncy be 11 ukcd to sec ~ ~t of
~ ~ ph,..a.n abou.ld ttcal the patient in the
mannu lftd With lbc umt dct;. .:y u bt would have wanted his
'""" f»ball cared (Of undu umilar c.ondicioru. The parieot
tbouJd be mumal
chc are of ~ attending phyticWl u
aonn
bk.
to
,am:
SccCJOo 21 . Whm • phyucian att.enda a woman in labor
II\ the lbtacc ol U10Cha who ha.t been engagt4 to aumd, tuch
php;c~~n lhr.JUid raoq...n the paaimt ao che one firat ~
upon ... tniVJ1. The ~ • emidcd tn ~ («
d~C" profaUOMJ tm'JC.ft he may bwc rend«~.
336
BASICS OF PHiliPPI NE MEDICAL j UJUSPI\UOENCE AND ETHICS
Secti?n 22. A true physician does not base his practice
on exclustve dogma or sectarian system for meclicine is a liberal
profession. It has no creed, no party, no master. Neither is it
subject to any bond except that of truth. A physician should
keep abreast o f the advancement of meclical science; contribute
to its progress; and associate with his colleagues in any of the
recognized meclical societies, so that he may broaden his horizon through the exchange of ideas, and in order that he may
contribute his time, energy, and means towards making these
societies represent the ideas of the profession. The medical
journal is one of the most important instruments through which
these objectives may be accomplished. It is therefore necessary
that editors and members o f editorial boards of medical journals
should p ossess adequate qualifications. And to the end in view
all editors and members of the eclitorial boards of national
meclical journals will be recommended by the Philippine Association of Medical Writers, Inc. to the Executive Council, and in
case of specialry and component medical society journals, the
appointment of editors and members of editori~ boards. will be
left at the discretion of their respective affiliate speaalty or
component medical societies concerned. Furthermore, the
contents o f medical journals should con form co accepted standards as p rovided for by the Philippine Association of Medical
Writers, Inc.
Section 23. A physician should be upright, diligent, sober, modes t and well-versed in both the science and the ~~t of
his profession. Extravagance, intemperance, an~ su~ersot1ons
are most destructive co the professional rep.utaoon, tnfluence,
and confidence; and they are not only finaoaa lly but also mor·
ally disastrous.
24 Advertising by means o f untruthful or im·
·
Secoon
.
bli .
probable statements in newspapers or other . pu caoons, or
exaggerated announcements on shingles and stgnboards, caku·
CooF. oP ETHJc:s
337
laced to mislead or deceive the public, or made in manner not
consistent with good moral and right professional dealings with
a patient, is unprofessional. Announcements in newspaper, or in
sjgnboards or shingles, should be restricted to the facts about
the location of clinics, office hours, and limitation of practice. It
is equally incompatible with honorable standing in the profes·
sion to solicit patients by circulars, by advertisementS, of by
personal relations to procure patients indirectly through solicitors or agents.
Section 25. It is unprofessional for a physician to help or
to employ unqualified persons for the purpose of evading the
legal restriction governing the practice of medicine.
Section 26. It is degrading to the good name of the
medical profession to prescribe, dispense or manufacture secret
remedies or to promote their use in any way. It is likewise unprofessional to promise or boast for radical cures or to exhibit
publicly testimonial of success in the treatment of diseases.
Section 27. It is degrading to the professional character
for physicians to deliberately to prolong the progress of treat·
mem of diseases for questionable motives, or to establish an
unjust competition among physicians in the community by
unwarranted lowering of fees.
Section 28. When a patient is referred by one physician
to another fo r consultation or for treatment whether the physician in charge accompanies the patient or nor, it is unprofessional to give or to receive commission by whatever term it may
be called or under any guise or pretext whatsoever. It is unprofessio nal for a physician to pay or offer to pay, or to receive or
solicit commission for the purpose of gaining patients or for
recommending professional service.
Section 29. Physicians should expose without fear o r favor, before the proper medical or legal tribunals, corrupt or
338
Coon
BASIC5 OF PHILIPPINE MEDICAL jURISPRUDENCE AND ETHICS
dishonest conduct o f members of the profession. All questions
affecting the professional reputation of a member or members
of the medical society should be considered o nly before proper
medical tribunals, in executive sessions or by special or duly
appointed committees on ethical relations. Every physician
should aid in safeguarding the profession against the admission
to its ranks of those who are unfit or unqualified because of
def1ciency in moral character or education.
Article V-Duties of Physicians to Allied Professionals
Section 1. Physicians should cooperate with and safeguard the interest, reputation, and digruty of every ~ha~ac~st,
dentist, and nurse; because all o f them have as thru obJectiVe
the amelioration of human suffering. But, should they violate
their respective professional ethics, they th~reby forfeit ~
claims to favorable considerations of the public and of physicians.
Section 2. Physicians should never sign or allow to be
published any testimonial certifying the efficacy value. ~d superiority and recommending the use of any drug, r:nedicme, food
product, instrument o.r appliance or any oth~r ob)~Ct or product
related to their practice specially when publishe~ 1..0 a lay ~e~s­
paper or magazine or broadcast ~ough the radio or ~elevtsio~ .
When such testimonials are published or broadcast wtthout his
knowledge and consent, he shoU:d imr:nediately make the necessary rectification and o rder the discontmuance thereof.
Section 3. A physician should neither pay commissions
to any person who refers cases to or hel~ him in acquiring
patient no r receive commission fro m dr~ggtst, .laboratory men,
radiologists o r other co-workers in the diagnosis and treatment
of patients fo r referring patients to them .
Of'
P..nfJl t
339
Arlic/6 VI- Amendmmts
Section 1. The House of Delegates of the Philipp~ne
Me~cal Association, upon recommendatio n of the E :xecuove
Council, by a majority vote of all the delegates may amend. o r
repeal this Code or adopt new Code of Ethics o f the Medical
Profession in the Philippines. Any amendment shall be a part of
this Code of Medical Ethics and such amendments shall become
effective after thirty (30) days following the co mpletion of its
publication in the Official Gazette.
Article VII-Penal Provisions
Section 1. This Code of Ethics shall be published in the
Official G azette to have the force and effect of law. Copies of
this Code shall be distributed every year to all physicians during
their Annual Conventions and published once a year in all
medical journals published in the Philippines for the proper
information and guidance of all physicians both in private practice and in the government service and shall also be distributed
among all new physicians immediately following their oath
taking. It shall be included in the curriculum of all medical
schools as part of the course of study of legal medicine, ethics
and medical jurisprudence.
Section 2. Violation of anyone of the provisions of this
Code o f Ethics shall constitute unethical and unprofessional
co nduct and therefore a sufficient ground for the repriman~
suspensions, or revocation of the certificate of registration of
the o ffending physician in accordance with the provisions of
Section 24, paragraph (12) of the Medical Act of 1959, Republic
Act 2382.
341
Chapter 18
CASE STUDIES ON MEDICAL ETHICS
18.1.. Case study re: cultural misunderstandings in
the medacal care of cancer patient.' -Farhad Tn.brizi a 69year-old imm~grnnt , from .Irnn, is brought to the eme,rgency
room at t. .Vmcent s Medical Center (a private urban hospital)
afr~r coughmg up blood. He presents with severe coughing,
faogue, chest pain, shortness of breath, and headaches. After
stabilizing Mr. Tabriz.i, the emergency room team admits him to
the hospital, where he is given (over the course of a few days) a
thorough workup, including chest x-rays, CT scans, mediastinascopy, and a PET scan.
At the scan of the visit, the nurses attempt to gather a detailed health history; but this proves difficult, since Mr. Tabrizi
spe2ks aJmost no English. He does speak fluent Farsi, but there
are no Farst-speaking medical person nel readily available. However, Mr. Tabrizi is accompanied on-and-off by his aduJt son,
who is reasonably fluent in both English and Farsi. He is also
accompanied imermittentJy by his wife, who speaks only Farsi.
(The WJfe makes it a point o f regularly offering prayers for her
husband's health.) The nurses attempt to gather a health history
whenever the son is present, which is not always easy, since his
vJstn are unpredictable. Even when his son is present to h~lp
translate, Mr. Tabrizt seems ex tremely uncom fortable offermg
up any dct,ajled information about his own or hill famil y's hcnJth
• Peterson fycr, Karen, "Cll1cer: A P.Wurc to Communjctt(!,'' rmemct • hitp://
www.scu edu/ etNcs/ practicing/ focutarcat/medlc:t.l/ cultura.lly·cornpetent •CQre/
canccr.htm.l acccued Junc 2 1, 2008.
340
history, causi ng high level11 of frustration among the medical
staff.
• Additionally, Mr. Tabrizi appears cx cremel y reluctant w eat
whatever food is offered him in the hospital. This is ~o&t . pt~·
nounced when he is alone-if neither his son nor hJS ~1fe Jt
present at a mealtime. On the second day of
stay, htt ~on
explains co the flus tered nurses that Mr. Tabnz1 ts fearful :nat
the hospital food may contain hidden pork by-producu. Smce
he is a devout Muslim, he feels ic is safest to refuse the food
altogether unless he is absolutely certain. Although ~he son hu
attempted to persuade Mr. Tabrizi that he (as a stck P.erson)
must eat Mr. Tabrizi apparently is determined to eat as IJtde as
possible.' The ch.ief nurse curtly replies chat, ~hile relig;ous ~elief
is important, Mr. Tabrizi needs to keep h.is stre?gth .up 1f he
hopes ever to go home; thus he will need to nounsh himself by
eating more. She says that she will "see what we can do" about
ensuring that there is no pork used in the hospital's food preparation. The son thanks her fo r her help. From then on he and
his mother attempt to bring outside food to Mr. Tabrizi whenever they visit.
."!a.
After almost three days in the hospital, the results of the
various scans are in; and the attending physician, Dr. Looke, sits
down with Mr. Tabrizi to discuss his situation. His son and wife
are aJso present. Dr. Looke first offers a handshake to Mr.
Tabrizi's son. He inquires explicitly about the extent of his
English skills and asks if the son would be willing to translate
what he is about to say to Mr. Tabrizi. He agrees, while Mr.
Tabrizi nnd his wife sit by. The doctor then gazes directly into
Mr. Tn.brizi's eyes and tells rum that he has extensive small cell
lung cancer.
After a moment of stunned silence, the son turns to his father and tells him in Farsi that the doctor believes that he is very
sick, with some "growths" in his body. Dr. Looke goes on to
342
B ASIC:S OF PHJUPPINE M EDICAL Jue•
"'SPRl!DENCE • "0
'""
ETHI CS
say that Mr. Tabrizi most like! d
?actor holds up two fingers (;t :~c~ot ~ave long t? live. The
tncreasingly alarmed and ao-it d) d po~n~ the patlent grows
o· ate , escnbtog th
th
b · all "
.
astc y two possible treatm ents " available
fo atthi ere are
c h emocherapy and radiatio n· D L k
·
r
s cancer:
·
.
• r. oo e strongly
c
rung wtth the first (chemoth
) I
.
prerers beginalarm and confused expressi:p~h dn spJte of Mr. Tabrizi's
th
'
e octor presses o th
.
gwen e apparently advanced stage of th d .
n ac,
rhcrnpy wo uld be very unlikely ro p
.d e tsease, even chemoroVJ e a complete cur b ·
couJ d provide some relief and length ch
.
c, ut tt
Th
·
.
en e remrundcr of his life
h. .
e son, agrun silent for several moments then t
facher and aJso holds up two fingers He teU's hi
hurnsh to JS
h
.
·
m t at t c doctor says e must do two lhmg.r to care for himself: eat well Rnd et
more rest. He also relays that his father could t:ak
" g
eli · , h · h
e some strong
m e .o.nes w JC would m osr likely help him ro get better. Mr.
TabnzJ looks extremely uncomfortable but says nothing.
'
CASn Sruoms os
M I!Dl(.AL
Ennu
343
::<'hat could/should the doctor/hospital have done differ·
ently tn order to handle this case in a more helpful and culturally
competent manner?
I.
Opinion
f2
The primary issue that presents itself vividly in this case is
and the central role commurucauon plays
tn our lives. WhiJe the health care setting today boasts numerous
crea~ve innovations chat have saved the lives of many, there are
cerrrun aspects of the provision of U.S. healthcare that remain
quite prim.itive, alth ~ugh. they are crucial to patient weU-being.
Lar1guage tnterprctatwn ts one of these. H ere, the hospital had
three days to gather Mr. Tabrizi's complete history, whjch could
hav~ been arranged ~rough the use of phone interpreution
servtces or through an tnterpreter from an agency. Yet it instead
relies on the availability of the son co translate.
~hac of .ince rpre~tion,
After a few more moments, M.r. Tabrizi, somewhat confuse~, asks (via his son) what the "strong medicines" would
consist o f. The doctor replies by describing (in some derail)
whac the course o f chemotherapy would Jook like--how often it
wouJd be adminis tered and that the treatments would last for
several weeks. He also describes char ir may produce severe side
effects such as nausea, vomiting, increased fatigue, and elevated
d sk o f infectio n. ln spite of his hesitations, the son attempts to
rranslate the bare outlines of this information (leaving out the
cerm "chemotherapy'}, at which p oint Mr. Tabrizi declares flatout thac he doesn't want any such cumbersome treatments; they
wo uld compromise his relario nshjps with his family and fri ends
and place too heavy a burden on his wife. Further, he doesn't
reaJJy know what might be in such a strong medication that
could help him get better. ins tead, he will simply do the two
things the doc to r had recommended-improve his diet and get
a Hamza, Doha Raik, ''Reflections" on the Case Study "Cancer. A Failure to
http://www.scu.edu/ethics/practic.ing/focusCommunicate," Internet
m or e rest.
arC'-s/ medical/culrurally·competcnt-care/cancer-h.amza.btml accessed on June
. ~r. Ta~riz i's .reluctance to share facts about his personaJ or
familial medtcal history could be a manifestation of his lack of
trust in the medical team. 1-Us trust only deteriorates as he remains adamant about consuming a minimum amount of hospital food for fear of the presence of pork products. An effort to
provide d.etails on the nutritio nal ingredients of the hospital
meals, whJch can generally be obtained from nutritional services
might ha~~. been a simp!~ .gesture. that could have helped g~
Mr. Tabnzt s trust and facilitated his cooperation with the medical team. If we try for a moment to see the world from Me.
Tabrizi's eyes, we will probably see a 69-year old isolated male
who speaks no English, in an unfamiliar hospital setting, sick,
and anxious for test results. It aU indicates a very vulnerable and
21,2008.
CAllII
fnlgde person \ ith nn c. cerbtued sense o f helplessness nne!
fru uurion for llcking the \bilit • to rclny his own bnsie needs
tlnd wishes. One emp thizes with the medicnl tenm nnd the
manv procedtlrt and qunlity of care thnt need ro be provided
equally to all pntienrs, but it is little gestures like theseprovuling culturally co mpetent imerprerocion, ensuring 1hc
pntient is awnre o f the food ingredients, providing rending
material in the patient's nntive langunge, etc.-that could very
weU have bridged the gap between the patient and the medical
team and provided an avenue fo r culturally competent communication.
Yet. despite the warning signs, Dr. Looke, having received
the test results, proceeds to tell Mr. Tabrizi the grave diagnosis
through his son. If we analyze the conversation, we will note the
follo wing cultural pack2ging of news that the son remarkably
accomplishes, in s pite o f tremendous stress:
Dr. Loolu
Mr. Tabri7j's son
Mr. Tabnz1 has extensjve small The doctor believes that Mr.
Tabrizj is very sick.
cel1 lung cancer.
Mr. Tabrizi most likely do es not [There is oo indication that
the son translated this statehave lo ng to hve.
ment.)
There are bas1cally " two poss~·
ble u:eatmenu" available fo r trus
chemo therapy
and
cancer:
The docto r says he must do
two things to care for himself:
eat well and get more rest.
rad iation;
Mr. Tabrizi could take some
Looke strongly prefers
..strong medicines" ~hich
begJOrung wilh the lin t (chemo·
would most Jjkely help h tm to
therapy).
get better.
Dr.
S1'lliiiiiA ON
MltiJJI AI. 11. 1I II(II
As the encounter nbovc clearly ahow,., whal the son docs,
given the grave dlagno~tis, 111 to l1lter out any terms thnt could
cnusu cmouu nnl dlstress to hill father, a choice of action th~t we
can !ltty it~ generally preBent among Muslim patients. What j~
puzzling nbout the difficult conversation that Dr. Looke h~s
with Mr. Tnbrizi and his son is thnt each party does what 11
culturally expected o f it to do. Per hospital and ethical mandates,
D r. Looke makes sure fully to info rm the l'~u ienr o f his diagnosis. The son, on the other hand, makes su re to shield his father
from the emotional impact o f bad news, perceived to cause a
negative impact tantamount to oc more severe than the diagno sis itself-especially given how sudden and grave the news is.
Many Muslim patientS seem to cope better with a culturally-sensitive packaging of grave news, and that almost always
also implies a gradual disclosure of a negative prognosis, an
approach that may not be available to Dr. Looke, given the
other patients he has to see and the limited time he can spend
with Mr. Tabrizi and his family. After such a stressful encounter
as the one described here, one would hear the sad lamentation,
"They just do not understand us!" from some Muslim patients
and their families. Dr. Looke as well as the Tabrizi family would
have been in a better position if the docto r had sought to ascertain whether or not Mr. Tabrizi wished to be fully info rmed o f
his medical condition. If the patient had forfeited his right to
know, the family could then have chosen to disclose the information as grndually as it wanted to.
The issues described in this case are not easy to resolve,
since for all parties involved, they revolve around what is perceived as crucial to a patient's wellbeing, i.e. to be fully informed
o f the medical condition (Dr. Looke's position), and not to be
told bad news for fear of its impact (the T abcizi family's position). Perhaps the answer lies in a resolution.as ~escribe~ above,
one that could clear the clinician of any ethical1mpropnety and
346
B ASICS OF PHILIPPINE MEDICAL ]UlUSPRUD
E.'ICE AND
ETHics
WE SnJDrES ON M EDICAL ETHICS
nevertheless respect the patient's 1
· th lini. .
. cu tural requests. Such resolucion might bnng
e c etans out of their comfo
are asked to respect cultural values that th
rt zone as th~y
embrace.
ey may not necessarily
Finally Mr T b · .,
'
: a nzJ s case highlights the crucial need for
more collaboration
between hospitals and thett
. local M usli.m
.
..
commu~~es, or on a national level between the healthcare
co~rnuruttes and the U.S. Muslim umbrella organizations. The
frwt of su~h collaboration could be community outreach programs, devts_ed by both entities and focused on Muslim patients'
need~ and _Issues . such as: patient autonomy, explanation of
~usli~ patlents' nghts and responsibilities, advance healthcare
dire~ves, pallia~ve care, and organ donation. In fact, the discussJ?n o f such ~_POrtant topics is almost non-existent in many
Muslim commuruues, yet Muslims, as patients, continue to face
them every day when a loved one falls sick, and they often
s truggle to fmd satisfactory answers alone. Such a preemptive
program could provide an open forum for discussion of sensitive to pics, with the involvement o f concerned individuals, such
as Muslim religious scholars, physician s, and patients. Such
discussions are s ure to raise awareness and generate practical
and helpful recommendations for the healthcare organizations
and for Muslim patiems.
This colla bo ration could also prove very helpfuJ in identifying local Muslim individuals who are willing to provide support
to their co-religionists in cases o f em ergency. These individuals,
such as local Imams, chaplains, or trained Muslim volunteers,
could act as a bridge between the medical. team and Muslim
patients, which wouJd have been invaluable in the case of Mr.
Tabrizi.
2.
347
Opinion 23
.Comments:
Let us begin with two general questions:
(a)
Was a biopsy done to establish the diagnosis of
small cell carcinoma?
(b)
Did the nurses attempt to schedule a meeting
with the patient's son and/or wife to obtain information?
Specific comments on the case:
(a)
One must be sensitive to both religious and cultural values. Muslims from different cultures,
even within the same country, may have different values and may interpret some aspects of
the religion of Islam differently.
(b)
The nurses/ physicians caring for the patient
could have arranged a set time for the son to be
interviewed with the patient to obtain the history. This could also have been done by telephone. Of course, federal law (HIPAA) necessitates that the patient's permission must be obtained. It is preferable that communication with
the patient be done via a non-family member in
order to reduce the likelihood of not telling the
"whole trUth." The best option would be a professional translator. The son probably wanted to
protect the father from the bad news and felt he
was helping him; but in reality he may have
harmed him, because not knowing the serious-
J Hlsun, Dr. Sheik and F2del, Dr. Hossam E., "Reflections" on the Case Study
"Cancer: A Failure to Communicate," Internet - http:/ /www.scu.edu/
ethics/pr2cticing/ focusareas/ medical/cultur2lly-competent-care/cancerha.ssan&fadel.html accessed on June 21,2008.
CASE STUDIES ON MEDICAL E THJCS
ness of the disease may have led the father to
refuse treaanem that may have been beneficial.
(c)
(d)
{e)
someone translate his findings and plans. Recognizing that the patient does not speak Englis~ Dr. Looke could have presented the bad
news to the son away from the patient flrst.
1bis would allow the son to clarify any questions he had, and he would have been more
.
prepared to inform his father of the dia~osts
and treatment options. Since Dr. Looke did not
speak Farsi, he could have allowed the son to
discuss the matter with the patient. He would
later enter the room to answer any additional
questions.
Mu~ ~ prohibited from eating pork or
anything W1th pork products. This includes
~ood.s dut nuy have been prepared with pork or
ns products (before or after cooking), even if
the products are removed before serving. Thus
any Muslim who is following the religion of Isbm to any degree v.~ not take such food. Some
Muslims will t2ke the food if they are assured
tNt the food w.as prepared without pork or
pork products. Other Muslims may not take the
food even with assurances, but particularly if
they h.avc had (or have he2rd of) prior expericncn where pork or its products were found in
the ~ despir.e assurances to the contrary.
(We h.ave personally experienced trus sort of
tit02cion sevccal rimes in the past.) The chief
nurte't comment that " ... while religious belief
,. unporunt ... "' min.immt the religious belief
and thow• a lack of sen11oviry U> rhe values of
the paucnr. She t hould htve aftured them that
•he WfJUid u lc the dlcwy department to prepare
pork (tee muJt for Mr. ·rtbrizi. Sh4e alto should
hne vojccd t uong tuppmt •ntJ ~nwuraucrnrnt
c,f rtw famaJy and fmnd '" bring OUl'Jde fw K.l
for tht pauau.
M ott Amcncant an awatc th t Mut~m• pnay
fi•c um dady The nulk' m dueror l t klnM the
p ur nt whac the hmpar•l c n tftJ tu (td~uu hi•
pnytn wuuJd llkdy h11vc pined his cun£W nee.
Dt. J.ookt- conducted bJ.tnsdf lppropnatcly
when he ukcd the pa~nt'a pcmuuion to M\'e
349
(f)
Dr. Looke should have explained the consequences of no treatment and contraSted those
consequences with the possible improvement in
the patient's quality of life, even for the relatively short period of additional survival that the
tre1ltment would bring about. He also should
have more carefully described the side effects of
the therapy in ~a w11y that I\{r. Tabrizi could have
better understood them.
3. Opilfi• J4
The rel1u:ionshlp
Western-style physician in and
ou~ide thl' ~·est ~d a p-atient from a non-Western tradition is
mo t oft"Cn chmcterilecl b)' a sense of hope and trust; but it
mA tl u be very fragile and sensitive. In fact, trus relationship
usually sWtS with the patient's (and h.is or her relatives') firm
trui l In the knowledge and the "magic touch" of the Western
\)et\Ve("n a
• Yam.N, ~bclcld'llkk. "Rcf\ccoona" on the Case Study "Cancer. A Failure to
~tt,''
lnternct • http:// www.scu,edu/ethics/ practiclng!focuaMedKtl/ eult\lt'illy-compctenl-can:/a.tlcer-yamani.htm accessed on June
21. 2001.
350
B ASICS OF P HlUPPINE MEDICAL Jca·sPRUD
"'
ENCE AND
ETHJcs
doctors. As a result, sometimes a simple
eli .
.
me cme prescnbed b
the d actor can accomplish miracles 0
kin
.
· nee the d actor startsy
spe.a g about a sp~ctfic .length of time before the death of the
pao.en~ ~owever, this pattent and his or her relatives, regardless
of tbelt' mtellectual
.
. or Western upbrinoing
o· , willlike1y start 1osmg
h
t at respect
.
. and mstead come to view the dactor as someone
w~o IS pla}'lng the role o f God. Thus will the patient probably
reJect the d?cto r's suggestions and even come to a osition of
complete ll'UStrust.
p
Dr. Looke and Mr. Tabri:(j
. Dr. Looke does act in an ethical and professional manner
~ntil he ·~s about the death of the patient in a short period of
bme ..
sends an overwhelmingly negative message to Mr.
TabnzJ, who now most likely thinks that Dr. Looke is interfering with the . will of Allah and as such should no longer be
tru~ted. At th1s stage, Mr. Tabrizi and his son and wife probably
believe Dr. Looke does not know what he is talking about and
may even want to do harm to the patient.
!his
Of course, Mr. Tabrizi's son doubtless agrees with the patient and hence does not want to bother translating word for
word the doctor's message about Mr. Tabrizi's hopeless future.
Moreover, he must know that, by this time, Mr. Tabrizi himself
understands, through the docto r's facial expression and tone of
voice, that he ts o ffering a negative prognosis.
In fact, even if the son believes the doctor, there is no way
fo r him to convey exactly what Lhe doctor says, since he would
want to be the bearer o f such negative news. That is Dr.
Looke's second major mistake. And, in addition to his harsh Rnd
-ude approach ~n the eyes o f the patient and his visiton), the
;on may have never heard of words such as txltnfiv~ small r11i l1111g
·emrer, ch,tolhlrapy and radiation. Hence, Or. Looke mAy as well be
.pc:akmg French to him; he very likely has no idea what to make
10 t
CASe Sn.:DJI!S
oN
MrnJCAL Enucs
351
of the doctor's complex medical vocabulary. To overcome this,
Or. Looke, could and should have sought the help of a professional. translator.
As for feeding Mr. Tabrizi, it is widely understood and well
accepted by all Muslims living in the West that, if they have any
doubt about whether or nm meat is Halal (Kosher), they can eat
vegetables. Muslims are allowed to eat the food of the people of
the book, in this case Jews and Christians, as the son alluded tO.
However, Muslims are not allowed to eat pork except in extreme circumstances where there is nothing else to eat. Yet in
this case, the rules of that which is unlawful do not apply, for
the life of the individual is more important than anything else,
according to Islam.
Mr. Tabrizi's extreme reluctance to offer up any information about his own or his family's health--causing high levels of
frustration among the medical staff-is a very natural attitude.
The reason, no doubt, is that Mr. Tabrizi considers that information to be part of his private life, not something he would
reveal to any stranger. To obtain the information needed, the
medical staff could have asked the son. At fust, he might have
shown some resistance, but if he had been made aware of the
danger to his father' s health and well-being, he would most
likely have provided all that was necessary to save his father's
life.
Conclusion
Like a smile, the effects of language are powerful and reach
deep into a person's psyche. Many Westerners would have done
anything to get well here, including complete submission to the
wiU of the doctor. This is not true of many Muslim patientS,
particularly when:
352
B ASICS OF
(a)
PHtUPP~t.
ME.otCAL j L1USl'RU0e..'CE
.:.....
"'";n ETHlcs
~e doctor speaks of death within a specific period o f
ome.
(b) The doctor
uses unfamiliar vocabulary. (In this case,
.
unfamili. ar language is automatically trnnslated into
something n egative.)
(c)
The translator is a relative. (There are a number of
f~y and traditional structures that prohibit a close
relative, such as a son, from disclosing very negative
news to someone like a father or a dear friend.)
In this case, a pro fessional translator should have been engaged to help bridge .the communication gaps and convey the
doctor's news in a more effective and sensitive manner. lbis
small step would very likely have helped to prevent the vast
cultural communication gap that prevailed.
4.
Opinion 45
The case of Farhad T abrizi presents several challenging yet
familiar issues vis-a-vis the provision of culturally competent care
to Muslim immigrants. The patient here experiences profound
communication gaps with hjs caregivers; his family attempts to
protect rum from a negative prognosis; and he has difficulty
negotiating the requirements of his Muslim faith in the context
of a clinicaJ setting that is at ti mes uncomprehending, perplexed,
or even o utwardJy hostile towards those requirements. Mr.
Tabrizi's case also includes the additional challenges associated
with a frank cliscussjo n of death-something that is difficul t
even in the absence o f cultural and language barriers.
353
Here we are confronted with the complexity of a pari.ent
who is, on the one hand, an autonomous indn-idU2l and, on the
other hand, a rustorically-embedded perso~ roo~ ia a c.oocretC
family, religion, and culture. While dlls is true of most ~
the complexity is heightened when we perceive that a patient's
cultural background includes a particubrly strong pbtt for
family ties and culturally based roles different from £hose of
mainstream U.S. society. The irnpon:ance Western bioethics
accords to respect for individual autonomy (and decisioo making) does not always mesh cleanly with such communal cultural
realities and expectations.
Mr. Tabri.zi is of course capable of personal decision m.Uing, but it is not dear that he would dxxm ro be dte primary
recipient of such a negative prognosis. There may be culwral
factors at work here; in much of the Middle East, including han,
very serious news is conveyed only gradually, and o ften conveyed first ro select family members rather than simply ro the
patient him- or hersel£.6 Whether or not that is Mr. Tabrizi's
expectation, his son appears to harbor hesitations about delivering the news to his father-hence his attempt to "editorialize" the
medical diagnosis/ prognosis into a gentler version for his father
to hear. Writing on the difficulties of cross-cultural communication specifically with patients from Arabian culnu:es, Patricia
AbuGharbieh argues that communicating a grave diagnosis is
o ften viewed as cruel and tactless, since it easily deprives the
patient of hope-something few family members would want ro
do.7 While Mr. Tabrizi is Persian (not Arabian), the point may
nevertheless be instructive. Dr. Looke., like many Western-
Juliene G . Lipson and Homeyra Ha6n, "Iranians," T ranscultunl Hetit:b Cue:
A Culturally Competent Approach, ed. Lauy D. Purnell and Betty ]. PauJaob
(Philadelphia: P.A. Davis Company. 1998): 330.
7 Patricia AbuGharbieh, "Anb-Amcricaos," Ta:nsculrunl Health Care: A
Culturally Competent Approach, ed. Lany D. Pumc:II and Betty J. Paulanb
(Philadelphia: F.A. Davis Company, 1998): 155.
6
s Peterson-lyer, Karen, "Reflections" on the Cue Scudy ".Cancer: ~ .Failure co
Commurucate " Internet • htrp:/ /www.scu.edu/ethlcs/pr1lctlCJng/focus;.reu./medic culturally-competent-care/ cancer-peten on-iyer.ht:ml accessed on
June 21 , 2008.
all
i54
BA.SJc.s
OF PHlUPPINE MEotCAJ.. j t..'RlSPRtJDeNCE AND
Enucs
~e? pthihysicians, has a markedly direct style of communicalon, to
s case emphasizing the relative nearness of tb
· t' d
e paten s eath. Many Nonh Americans would appreciate this
pproach as honest and straightforward, even respectful. Yet,
rom another c~tural per~pective, the very same candid ap'roach can seem mappropnately blunt and insensitive unn
_
aril · ·
,
eces
.Y Jatnng the patient and his family into a mode marked by
taruc and/ or hopelessness.
In spite of the communication gap, and as A bdelmalek
'amani poims out in his reflecti on on this case, there exists a
tistinct possibility that Mr. Tabriz.i does understand that he has
ancer, having read between the lines of his son's words. But we
annat know that for certain. Mr. Tabrizi may or may not grasp
he full contours of .his siruation, since his son has shielded him
rom the sharpest edges of this distressing news. For this reao n, it is clifficult accurately to evaluate whether Mr. T abrizi is
1aking an informed decision when he refuses treatment.
Again, it probably wo uld have been best, and most respect...tl, for Dr. Looke to have asked Mr. Tabrizi o utright whether or
ot he wouJd like to learn o f his medical situation directly, or via
IS son. The disclosure of his prognosis couJd have been done
10re gradually, by the doctor if possible o r by the son (if Mr .
'abrizj designates him as an appropriate recipient o f the infor1ation). Mr. Tabrizi shouJd not be derued the chance to make
!nse o f his own prognosjs, But respect fo r hlm as a patient
emands that he be respected not just as a free-floating individaJ but rather as a person with cultural and familial needs, somene who (like all o f us) is to a certain extent autonomous bu t
.so deeply embedded in reJacio nships, including culturallylfo rmed relanonships.
Rather than asking the son jf he wo uld be willing to transte, Dr. Locke couJd have asked the patient who m he would
ke to be th e first recipient of his mtdkal cUagnosis/prognosis.
CAse Sn;o!E.S
ON MEDICAL
Ennes
355
T o do this would have required engaging a translator other ~n
the son himself-ideally, someone within the hospital setting.
but if, that were not possible, then an outside (professional)
translator. If such a person could not be located, there a:re
services available to help do this over the teLephone. Engaging a
professional translator would also have been helpful in communicating medical language with which the son may not have
been entirely familiar. In fact, all three of the o ther respondents
to this case- Hamza, Yama.ni, and Hassan/Fade~uggest that
the hospital should have utilized the services of a professional
translator in various ways.
Mr. T abrizi also faces hurdles related to the interface of his
medical needs with the requirements of his Muslim faith. The
dietary issues that he raises-the proscription o n eating pork,
for instance--are very real issues that commonly arise for Muslim patients in clinical settings. Since pork products can ..hide"
in many foods-gelatin, lard, sauces, etc.-Mr. Tabrizi's fears
are no t unrealistic. Nor is it an extraordinary expectation that
the hospital sho uld be asked to accommo date his dietary needs .
The nursing staff could have been proactive here, communicating his needs to the kitchen and encouraging his son and wife to
feel free to bring in outside food . This is more than simply a
logistical issue; it is a moral one. This son of effon is exactly
what is needed in order to hono r the values o f inclusio n, equity,
and diversity. Mo reover, one o f the central bioethical values that
health
. care p roviders serve is. the value o f beneficence-that is ,
acovely to p romote the paoent's well-being. It is impossible
adequately to serve a patient's well-being while ignoring central
aspects o f his o r her needs, including dieury / religious needs .
Along similar lines, Mr. Tabrizi•s fear that the recom mended treatments may present hurdles to his ability to pray,
visit the mosque, and intenct with family and friend s is also
reasonable, especially given his lack of familiarity with the side
356
B AS ICS OF P HJLn>PlNE Ml!DICAL j URISPRUDE",...,
"'-"' AND
E
THJCS
CASE
effec~s of chem~therapy. However, since most of the standard
Muslim prayer umes are somewhat flexible it would b h
. fear direcdy with ' the
e doove
D r. Lo o ke to addr ess this
.
hi
famil y, perhaps with the help of a Muslim r~lia~ent aln d s
Moreover, as Hassan and Fadel point out most Amgtou~ ea er.
encans are
.
'
aware that devout Muslims pray several times per day. It would
not have bee~ particularly difficult for Dr. Looke and the hospital staff to discuss the matter with Mr. Tabrizi and h 1 hi
·d
·fy
.
ep m
I en?
ways to rntegrate his medical needs with his religious
reqwrements.
.
Finally there exists in this case the strong possibility of an
lnterpreta~ve gap regarding the very negative prognosis that D r.
Looke delivers. In the United States, there has historically been
an assumption, at times problematic, that a medical team should
do everything possible to prolong a patient's physical life in the
face o f a diagnosis of this son . Although this pattern has begun
to shift over the past few decades, whether and when to discontinue .Jjfe-sustai.ning treatments, or to withhold them at the
patient's request, continue to be points of heated public debate.
Of course, it does not make sense to speak of Mr. Tabrizi's
treatmem in these terms; his disease is still at a (relatively) early
s tage. Nevertheless, some patients--and perhaps Mr. Tabrizi is
among them-would, under these circumstances, elect not to
undergo chemotherapy treatments because of potentially severe
side effects. This would be a rational choice, even if not a choice
that all patients wo uld make. Moreover, it is a c.h?ice that is
deeply intertwined with personal , cuJrural, and reli~ous norms
and values. Islam affirms the sanctity o f human life and the
necessity of seeking medkal treatment; bu t it al so affirms that
8
treatments holding no pro rruse cease to be mandatory.
MP.DJCAL ETHI<.S
357
The underlying point here is that these decisions and values
may not be similarly assumed in all cuJrures or by all patients. ln
the case of some patients, including some Muslim patients,
countervailing beliefs about the will and reason of God may lead
to alternative approaches to end-of-life care. Minimally, Mr.
Tabrizi's health care team should open itself to the possibilir:y
that a refusal of treatment might in fact be a rational decision,
given his own value system. It is of course debatable whether or
not Mr. Tabrizi should at this point be counted as a "dying''
patient. Nevertheless, once the health care team has done what
it can accurately to communicate the prognosis to Mr. Tabrizi
(even if that involves communicating it at a more gradual pace
than usual, and via the son rather than the patient himself); and
once Dr. Looke has done everything he can to address Mr.
Tabrizi's fears about the treatments themselves; and once the
health care team has worked to make Mr. Tabrizi as comfortable
as possible in the hospital setting, given his dietary and other
religious needs-it must then step back and accept the possibility th.at the patient may refuse the recommended treatment. This
is of course true for any patient. However, sorting our a patient's "autonomous" choice becomes markedly more difficult
in the face of culturally diverse communication sr:yles, practices,
and expectations.
18.2. Case study re: raising issues of culturally comp etent health care for a muslim woman.9- Leyla Ansari 30
, '
a recent immigrant from Mghanistan who is 22 weeks pregnant,
is admitted to East Valley Hospital--a large, suburban, nonteaching hospital- with severe cramping. A preliminary ultrasound in dicates brain abnormalities with her fetus. She is accompanied by her husband o f eight years (also an inunignmt)
Peterson-Iyer, Karen, "Confronting a Few Abnormality," lntemethttp: I www.scu.edu/ethics/ practicing/ focusarC2S/ medical/culturallycompetent-care/ few-abnormality.html accessed on June 21, 2008.
9
• Hauan Hathout, R.eadmg the Muslim Mmd (Burr Ridge, lL: Ametican Trust
Publ.tcaoons, t 995), 135.
STt:OI~ ON
358
B UIC.:. Of PfllUPPI'f MEDICAL jl'RISP Rl'DE.'<CE ....-.o
ETHlQ
and her mother, \\'ho speaks no English and li
couple. Mrs Ansan (Leyla) also speaks very little
~es wtth
En lithe
h
th oug h s h e does understand some; her husb d
ak • g ~ ,
be
th
h
an spe s English
ner,
oug somewhat halungh·. . Th e.tr
. pnmary
.
Dan
language lS
Mrs ..\nsan is sta~~ed, and funher scans are conducted
on
the
r
· a fflj
d fetus. The .phrstaans soon discern char th e 1etus
1s
cte u•1th a r~laovely severe encephalocele; its size and locacon make SUIVIYal outstde the womb extremely• unlike! Th
din
h •·
Y·
e
atten
g p ystctan, Dr. Fox, is not previously acquainted with
the paoent, smce any earlier prenatal care she obtained was
mconststent and not at this facility.
Dr. Pox enters Mrs. Ansari's hospttal room, where she had
been meecin~ u1th an Afghan female friend (who apparently
aJso speaks English reasonably well) while waiting for news of
the fetuo; u·irh her husband and mother, all of whom appear
ag~tated and anxJOus. ~1rs. Ansari's other children (all guls, ages
2, 5, and 6) are Jn the outside waiung area, accompanied by an
aunt. Before Dr h>x begins to speak, Mr. Ansari, noticmg a
look of deep concern on the doccor's face, asserts that his wtfe
is s1ck w1th fear and amuery and that she herself would prefer
rhar hu hushand handle any n~·s of the Situation. He requests
that Dr Fox meet separately with h1m first, outside of hJs w1fe\
ro<•r 1 \f,reovcr, 11 is the rradiuonal ume for Mushms to offer
pravers and smcc he and h1s (;umly arc. devout Mushms, they
wo~lt! ;>rcfc; to diJ li'' before any thfficult convero.auon., arc had
wJth the doct,r. Mrs. An• ~ri, (JhVtflusly upset but rcmalmn~
stlcnl, makes no vJ'iiblc obJet uon w her husbA!ld's wJ:,hc.,. 'J he
fncnd salsu '" o;tlcnt. Mr. Aman repeat., h1' request that the
d(.)ctor meet "cp.u;~tcly with h1m.
Vr.
h>x, umure of how to proceed but not wancinK to
stre s Mn Ano;art further, agree'\ to meet the husband sepnrately
acr,ss the hall, u1 :.an empty office; but he aho 111rorm~ Mr.
Ct..sE
ST\:Uil'
t :-.
Mt r>u 111 hnuc.\
359
Ansan that they must talk now, for he docs not have ume to
wair for him to complete his prayers. Mr. Ano;ari s1lently follows
the doctor to the empry office, where Dr rox discloses the
most recent scan results to Mr. Ansan. Dr £·me recommends
termination of the pregnancy. Stunned, Mr. Aman s1ts m s1lence
for several minutes.
After several moments, there is a knock on the door from
Mrs. Ansari's mother. She Immediately discerns from the husband's face that something is terribly wrong, and assertS (in
Dari) that her daughter must not be wid anything of the situa·
cion uncil she is in a better frame of mind. She converses for
some rime with Mr. Ansari, becoming tncrcasingly agitated
through the course of the conversation. Dr. Fox eventually
interrupts and asks the husband to translate, which he does,
relaying that Mrs. Ansari's mother insists that the mecLcal informacion from the scans may be faulty, and It would be bad
luck for her daughter to learn the scan results at this point. In
fact, she asserts, her daughter may "lose the baby" from stress
over the results. She wtshes for the hospital to keep her stable
and let the fetus continue to grow instde her uterus in order to
see "what God intends." She herself firmly believes (though
there has been no informaoon 10 this regard) that thJs baby is
the long-anticipated boy that the entire family has been hoping
for, and that God would not visit such an unhappy result on
~uch a devout family.
l\lr. t\nsari d1en rums back to Dr. Fox and insists that the
doctor refroin from telling Mrs. Ansari the scan resulrs, assuring
htm that he wtll tell his wife himself once she 1s emotionally
re:1dy fo r the news. The doctOr, increasingly frustrated with the
direction of the conversation, informs the husband that such a
choice is not his to make. He gets up and proceeds back across
the haU, where he walks in on Mrs. Ansari awkwardly perfo rmIng her p rayers. Dr. Fox interrupts her and asks the friend (who
360
B.\~11 ~ OF Ptfllii'PINI ' I
• ' ~~ 1'-DIC:AI jUIIJSI'MI!OiiNC;Il ANO CTIIICS
c. .~·· SH ·I)n•.~ liN Mtl)fc"'
is still present) co help h im tmnslate his news ~
.
.
lle then gently but fi m,ly . f.
'li. J
• 0 ~ M 1s. Ansart.
I
.
• tn orms •v rs. Anson of th .
~su ts, :lS the fnend awkwu.rdl) translates fo r he
. e sc~t~
has st~lyed across the hal l
-' A'l ·
.
r. M1· Anson
• • nn ct tv t s. Ansart's mother rc
.
w.ultn~. to the \~liung room. Irs An ' ·\r·1 tr
I
tre:us,
•
1.
•
"
~.
s ugg es to keep her
tc.trS .u uay .1s she hstens ro the doctor.
I.
Opi,tun I Ill
. \\ c 11 ~ prc'\cntc:d. in this case with
:t cbssical confrontation
e thics nnd Muslim cu lttue. T he tntcrRcuon dl"scrtb~d m tlus cusc study is unfortunnrely common
bc-1"\,-cen cll.ntcJ.tnS .tnd ~~ us lim f:umltes. '!'he case highlights twn
•mp()rt.lm ts~uc:. when It come~ lO pm"iding cnre to M uslim
~uenrv tnfom1cd consent and the usc of family members ns
~~~ ecn
\\e-. rem
.mcdJ~tl
tnrcrprercr:..
f-rnm the moment rhe f:uruh senses something is terribly
\\ron~ '' Hh [he: long anccJp.ued b.lb)', rhey msist o n shi"ldinR
t~e p.wcm from the: b.ld news for fear of its harmful impact. D r.
l-o~. on rhe ocher hand, 1s n firm believer m Mrs. Ansari's nghr
to know what IS wr<>nj.t with her baby. l ienee he relucmntly mlks
to the hu~bJnd fi~t. then ~•ngle handcill} and tn a dramatic
scene decides to mform che r.IUen t of the gr~l\ e sicuntion, nfter
mrerrupcin~ her
It
prayer.
i~
tmponant to note rhac the nmion of "One does not
teU h.ad new~. period" IS as eso;enn«tl w Muslim-; who embrace It
as is the nouon of "Fvery p.1t1ent has :1 nght to know" to mnnr
heahh care practitioners tn U
dln~t.d settings. 'J'hnt is why this
cLl~h '" <.JUHe se' ere: I£ is a d.tsh between what we ns humnn::.
ro H.mu a, D"ta Rlllk, " Rcllc:cuom" on (li S~ ~ntdy "Confronting 1\ Fetlll
Abnonna!Jt), Internee
hctp.// wv. w.~cu cJu/ erhJcs/ ptacuctnKffocusareu/
mr~cal / culruraJiv cornpcttlll·care/ fctoAI ·abnormaLty h"m7a.hunl accessed t>ll
June 21, 2008
~Title ,
361
have deemed to be basic assumptions, i.e. unequivocal truths of
hfc thnt are rarely chaUenged, 1f ever.
· But what could have been a more amicable rcsoluuon to
rwo seemingly contradictory courses of act1ons? I believe clinicians hnve to come to terms with the fac t t ha[ "the pauent's
t i~h t· not to know" is as valid as "the patient's right to know." In
the cnsc scenario, we only need to ascertain ~ r,. Ano;ari's voluntary consent LO her right not to know.
One is especially frustrated by Dr. [·ox's atutude and rnsJs
tcnce on "fixing" the situatinn, totally neglecung that:
(a)
After being dischnr~ed, Mrs. Ansan will conunue to
live within her cuJtu rc and mleract with her family.
(b) Dr. rox may not even remember Mrs. Ansari's name
six months from the incident.
(c)
lf M r. Ansari were in a similar c;ituaoon hunsclf, Mrs.
Ans:lri would probably try to shield the.; grave news
from her husband in an effort to avoid any harmful
emotional impact.
ln addition to neglecting the patient's right not co know as
an a.sp~ct of he r in fo r:med consent, D r. Fox extenstvcly relies on
fnm cly rnterpreters. lie does this despite rhe presence of several
warning signs, such ns M rs. Ansari's a nJ her family's limited
l ~nglish, nnd the nature of the news lhat D r. Fox intends to
rclny to the family. \XIhere language is limited, the use of family
i? te rpreters is ndvantageous when it comes to asce..rroining
stmple req uests such as whether the patient is having pain o r
not. lt becomes risky, however, when it comes to relaying grave
new for the fo llo wing reasons:
(a)
Naturally, family interpreters are emotionally involved
with the patient Fo r the purpose of ascertaining the
362
BASICS Of'
P1 UUPPINF.
M ROICAI. j URISPRt:OP.N< I' AND ETtUC$
patient's informed consent, they therefore may not be
the most accurate or reliable.
(b)
(c)
Medical interpreting requjres being familiar With
medical terminology. This may not be the case for
many family interpreters. This is especially true for
those who may not have had formal training in the
English language--such as immigrants--or in the language they try to interpret. This latter situation is often
true of immigrants' children who tend to leam their
parents' language informally, as they speak it at home,
and wh o thus usually have limi ted vocabulary.
In this case, Dr. Fox creates an unneeded tension between the Ansari family and Mrs. Ansari's friend by
asking her to translate the grave news. While Dr. Fox
continues to see patients, Mrs. Ansari, her family, and
her friend will continue to deal with the ramifications
o f rus decision.
It is important to n o te here that we cannot describe the behavior of Mrs. Ansari and her family as "typical Muslim" behavior. Muslims differ in their level of adherence to Islamic teachings, in their degree of acculrura?on to ~e soci.eties in which
they live, in their levels of educaoon, an~ m myoad oth~ ways
that make the experience o f each Muslim paoent ~d his/her
famiJy unique and shaped by very particular life expenences.
A cultu ralJy astute clinjcian cannot be expecte~ to ~ow
every detail abo ut Muslim cultures, details that someomes tnfluence the way p eople behave to a greater e~ten t than th~ religion
of Islam h sel f. It is helpful then to equrp onesel.f w1th. so~e
practical roofs and attitudes that could be useful ~~ navJgaong
crucial issues with the Muslim patient- or any p aoent fo r chat
matter:
(a)
The health-care team mutt show Oenbihcy and cUdbc
wi!J1ngneas to learn and und«nund, sn the be$c f'O"M·
ble seo~e. the cultural and rel~ous values that •e
shaping the patient's and his/her (~!ly't bchavtM
(b)
Health-care personnel mutt be kecnty aware uf mar
own cultura.l values in order to avoKi un~ng mat
own views of health and dec1~ion rnak.ing on their pa·
tients. Dr. Fox's sincerely-intentioned eff~rt gently but
fi rmly to relay to Mrs. Ansari the grave news 1ikdy
stems in part from his wish to be informed t:>f his ~
medical condition should he c:ver find humclf l.ll a
similar situation .
(c) The clinician needs to rely more frequmdy on tbe
health care team personnel and mobilize cesourca
that can be of gteat value specifially when dealing
with critical issues like those in the 1\.n.sari ase. A social worker might have been a very hdpful ce5()U;ttt
here for navigating the dynamjcs o f dec•sion making
within this famil y and fo r undeatanding tbe cu1.tnal
values that are shaping family members' bchavim. Interpreter services may not have M.d a 02ri,/Fuss
speaking person but might have axranged a pbooe
conversation or an interpreter specif:Joally to come
speak to Mrs. Ansari and het family. A chapbin might
have been o f assistance in explaining W:nple msm::rs.
such as the fact that the Islamic prayer uJu:s only 6"-e
minutes to perform, o r t:Mt an Imam ought to be
called since the family seems quite devOUt ~ might
need r:eligious guilince with such. a cruc:W deolion.
Little actio ns can culminate in a mega imp1CL Wb.at: apttience teaches us is that an ouccry like the one ~ the end of chis
case is rarely the product of a single event. but rather the nacun1
result of many small action&that went wrong. .lt is dut teria of
364
B ASIC'-'> m • PHIUPPINII M A.Olt:IIL J u iUSPilUDL\.'10\ ""o
E.nu<".i
small actions that makes the reaction of some patients and/ or
their family members so powerful. First Or. Fox relies h~vily
on the patient and her family for interpretation; then he refuses
to wait until the husband d oes a five minute prayer; then he
relays some very heavy news to the husband , interrupts the
patient while she is praying and gives one final blow b y insisting
on flatly telling the patient all the details. He does this only to
face a response from the patient and h er fam ily for which hospi
tal security might be needed. H ad the doctor shown more ac
commodatio n of the simple and reasonable requests from the
patient and/ or her fam ily from the beginning, he might have
received a m ore agreeable response. Minimally, he might have
been able to discuss calmly what could be d o ne, what would be
in the patient's best interest, and which measures she could
voluntarily agree to.
The case study again teaches us that cultur21 competency is
not about remaining in one's own comfort zone and merely
applying empty rules and regulations. Rather, it is about a creative interaction between human beings of differing experiences
and backgrounds that could, if h o nestly sought and correctly
harnessed, become an exhilarating learning experience fo r all
involved.
2.
Opinion 211
The following points should be considered when addressing the case involving Leyla Ansari and her family.
(a)
First, it- is impo rtant to determine how much if any
Mrs. Ansari knows about her medical situation. For
example, was she made aware of the possible fetal ab-
" Hassan, Sheik N. and Fadel, Hossam E ., "Reflections" on Case Study "~on­
fronting a Fetal Abnormality," Internet - http:/ / www.scu.edu/.ethics/
practicing/ focus areas/ medical/ culturally-competent-care/ fetal-abnormalityhassan&fadel.html accessed on June 21, 2008.
nonnahty hued un the pn·bmJRU} .anr h would
have ~en bcucr to 1et her knaw dull thc'fc
• ..,...
picton of an •hN,rm~tty. ,, ahc •ull ~~ ..~ac
ctllmps" when ln, p,,, cnrt>n the rc,,m~
(b)
(c)
Dr. l'ox ahould hav~ a\Ccnaanc.d hom Mn. AnMd
herself if she wanted h.n hutband w h2ndk .ny ~
rather than rc:lyinK un the hutband tf) uy 'o 1..-a ..,
rhe case, when the husband 2:tkt Dr. fos not w
'-">
Mrs. Ansari, the doctor thould have llsc.ened bell 8Did
the husband, .. Be sure to td1 your wife the factS
l
told you . Then l will N.vc: to talk to her penoaaDy
be s ure she was told all the facti and chKustiOCl .ad
that she understands aU the impon2nt points."
Dr. Fox demonstrateS imenlitiviry to the p:merw"s
(and her family's) religious values when be iou:uapa
he r prayers. Prayers five tim~ daily are cucnri:al foe
Muslims. All except one pra.yet (tbc cve:oing pajer)
have a window o f 90 OT more minuteS dun.o& wlucb
they may be o ffered. The window for the evening
prayer is ten minutes. Some Muslims hold finn to lhr
tenet, "one sh ould not delay one's pmJer." buy
Muslims will therefo1:e offtt their pt:ayet5 at
beginning of the prayer time radler than at tbe eod of
the time. Thus, it would ~ve been hc:ner f<X DL Fox
either to wait for a few minutes for the hosband m
perform prayers o r to schedule a time thn he could
have returned to discuss the situation with him-unless it was really inconvenient for him to do so. lf
he had other commitmentS, he could h~ attended to
those and later returned to the pati.enl. U the otha
commitments were a'iny from the hospital, he couki
have waited a few minutes, since each payer lasts
3 -5 minutes. Alternatively, Dr. Fox could have a-
me
ooli
_.. ..
{d)
·~·
<"..._. 011~.-n-n
(~ chic tw t.d
mtlde u dJffiaah mt t.n tn ..-t
pUaned ro the
tN I
·-
Or. ...,. thouid han ec.tiC'd dw
Mn
et•,.,...-,......
'
AnMI1 by <tuc:u--. hn ..~ o•"'"'~
•huwln« tua C4XKXm for ha h ,. UlldMr ,..._ ..,_
ahe .,.,, an dv ho.pta! bcftJft ctw 6 • .,.., Olf ..,
•
'*'
CC'phUocdc .,..... m.dc .nd ~...,. d'W ~·
~~wd by the tim«' l>t FQI rntc"red hrr ...,..,. ""
to her • hout ~ ftu! nv.l~ n.
••
should have utnKd dw
nllt.,........t r-r
tctm labm.
pc....,.,.,
(e)
While dis.cu uinft the "tuauun ~ dw ~...bM-d,. Or
Fo x sho uld have atated dwt. wtuk ttw t • . - • Cft
taut, the p~•is is leu aftU\ h tt &t~~Ac..a to Pftdic t with absolute cenamey a( an enf. . wwch <mec~·
locde v.-ill s urviv e and for how lana \,.,..... houD.
days. etc.) M o n:o"-er. tf the: \n{an( ~ docllll'l
mus t assess whether m~ is an~· chance b suqpc.1
treatment and ho w ~ thc: ctWd·a dt:•~ ••al
problems v.>\U be.
(f)
Instead o f te<:Ommcnding termin.aDoo of me pasnancy. Dr. Fox shouJd haV"C offerui il as an option.
He should then have described what coWd h lf'PCD if
tbe pregnancy ~ to continue He should ba'~ offered counseling by a team consisting of a rnurrnalfetal medicine specialist (lf that is oot his own specialty}, an ethicist. a religious leader (m this case an
imam). a pediatric neurologist. tnd a social worker.
(g)
In response to the motbet's skepticism about the diagnosis and her desire to wait and Stt '<what God intends," Dr. Fox should have assured her that, while he
does not mean to belittle her belief and trust in God.
it is his responsibility to give tbe medical &.as/
afw t .
l
hila
• '9'f.;.allaJ
ttwn " ~.. ~ t drM .,...,.
tr'l
dfll"' trf tlwd,
1111
re••ki.
{ tpm)
CJCIC'
~·
•
kamp
~an
~~n•• tum llw•
*'
•
<h
- .. ~:11111--··
ttult he wrun drNI'I\ ' -
d!Nd•. a.nd ~dwr tw
•
,_,.,..._.c.
.-.
bkto...S"
Scb.,..
'1"tw •• one ol 1hc
M
Mohammad cha' MwGm
ow
d~ rdaccd to • feb.~~ U\ the ~ "" dw SW'lld:lilbr. ~~~. . . . . .
that reu.. a faw bccoma
b.
..at ...1
ct.r- (W me fint ~ mt~ 01 by . . . ~ ol . . . . . - ~ · and cbut. become.. . cna:w..
.......
bw (ex ma.u-'ah) co .bon a pro.....-! b _, ••~-. .-:.ov~. C"Yen when theft ..- a taiiQa ~ • . _ ~
•
.._
~ Mualim tcbobn haYe . . . •fi t llCI>Dell
'~­
woman an ~ ba- P'' I"W "l· -ta • 4Daa
tO make 5UJ'C chcre a DO . . . .. .C - • • , . ,. . . . . dw ~.
not vUb6e. ln keep.• ...t, ct. Ql Mpd.. a 11'11-IIQaiiiJ li. . . . .
doctof' •houJd nlidacc cbc d • • sa ..t
•·•-~
tion tO ~ h pcte&JI!i!M(I("f-
f., . . . ,. .
_1&
wa- •
From a c:ulmnl p '+" ••--. - • -M • • •
tbcir P"'S'
ws b liM 6lil
not t o tcm:Una~~e
BASICS oP PHwPPINE Ml!oiCAL j u RJSPRUDENCB A<"~D
368
negatively judged by the entire community. In this regard, while
religion may permit termination, culture often inhibits women
from this decision. In such a case, a woman who contemplates
abortion may be treated as if she doesn't accept the will of Allah
(God) d espite knowing that the fetus will not be viable or will
Hve under severe conditions.
In the case at hand, Leyla and her entire family may not
know about the Islamic ruling, but they are all aware of the
cultural stand with regard to their fetus. Under the circumseances of the case, there is no way the family will accept terminating the pregnancy. The question then becomes: If a doctor is
sure o f the medical diagnosis, how can he or she convince this
family to accept his or her suggestion?
Before answering this question, let us first look at the data
we have:
(a)
(b)
(c)
CA.SR STUOIIJI> ON M EDICAL E!TI II CS
Enucs
The country of origin and the primary language inclicate that the docto r is in the presence of a very devout
Muslim family, which is also well rooted in Afghan
culture. This means that any treatment o r decision
should take both religion and culture into consideration.
Because of the above, the famil y is expecting Leyla to
be treated humanely and emotionally well. In fact,
given che circumstances, the doctor/patient relationship IS not intellectual but rather emo tional. The fam ily js expecting Leyla to be treated softly and with love,
respect, and deep understanding. Also, by taking this
step and visiting a hospital, the fa mily seems tf) indicate that it js desp erate for a doctor who willoc1 wisely
and patiently, as a caretaker, a sA.vior, and a frienu.
The presence of the husband, mother, aunt, c hildren,
and a friend show that Leyla enjo ys the full support of
her family. It also means that any decis ion should ~
made collectively with the consent of all the family
members.
(d) Mrs. Ansari already has three daughters. Thus, ~ the
mind o f this famil y, there is a good chance that this f~. any sc1eno
·
"fi c basJs
tus is a boy, whether or not there IS
.
for such a belief. I n fact, starting with the ft.r~t c~.
the family has been hoping for a baby boy. ThJS des~e
grew bigger with the birth of the second and the third
daugh ters. A baby boy, in this case, means a second
man of the house, a caretaker when parents r each oLd
age and most imp ortantly a protector for his three sisters. I n a sen se, he will be key to all future h ope and
goodness.
D oes D r. Fox keep the above items in mind? It seems clear
that he does not.
Instead, D r. Fox commits the following mistakes:
(a)
D r. Fox does not take the time to get to know the
family and acquaint himself with each member. B e cause he does n ot do so, D r. Fox is not able to s urmount the psychological obstacle between himself and
his patient and her family, and thus he is unable to
find himself a place in the heart and the mind of this
family.
(b)
~r. Fox is not relaxed and thus not welcoming. Commg .from a tribal background, each mem ber of the
family would be well-versed in reading o n e another 's
face~ to deduce mea~g. It is probably easy for them
to discern th~t there 1~ s~mething w rong going o n and
that D r. Fox 1s not bnngmg glad tidings. This con tributes to a sense o f resentment and rejection o f anything
D r. Fox says.
370
B ASI CS OF PHI WPPtNR M EDICAL jUIUSPRUD" w ··
'"' '-"" lt,~O
E
THICS
111
(c)
Dr. Fox does not listen to Mr An . h
·
san w en h
k
mm to talk outside which indi
th
e as s
•
cates at he does not
un d erstand the negative d ynamics he has
helped to create.
already
L:
(d)
(e)
(f)
Dr. Fox wrongly insists on his own timing. Instead he
should have tried to make the husband feel comfortable by encouraging him to go and pray.
Dr. F~x is too blunt and too unconsidered in the wa}'
he delivers the news to the husband . At this moment
Mr. Ansari is likely driven completely by his emotions:
Instead, a soft, slow, and brief introduction could have
paved the way for his news.
Dr. Fox interrupts the communication/ argument between the husband and his mother-in-law. Instead, he
should have waited until they had finished. The husband would likely have translated without Dr. Fox
asking him to do so.
(g) D r. Fox should have listened to Mr. Ansari's request
and let him tell his wife and deal with the entire situation instead of Dr. Fox. Dr. Fox should not have assumed the validity of his own assertion that "such a
choice is not yours to make." In the mind of the husband, only two people can make that decision: Mr.
Ansari and his mother-in-law.
(h) Dr. Fox breaks the Jaws of respect and intimacy by invading a woman's space witho ut the consent o f her
husband. According to Islamic tradition, a man should
not enter a house or a place where a woman is without
asking perm.jssion fust. H e also interrupts her prayer.
(0
Dr. Fox forces the friend to get involved without asking whether it is o k to include her and share the news
with her or not.
(j)
Or. h>x ahow~ nu mtrc.y 1n relung rhc new• Jnd ell~
not care about the uutll>me.
What couJd Dr. Fox have dcmc to deal With the 11u.taOOCJ~
FoUowing is one posstble scen_1rio:
Dr. Fox has never deaJt with a Mushm '" Afgh2ru family,
and has no knowledge of the religious or cultural dtrectivet w
follow in order for hjm to work effectively tn tlus caJe. Know·
ing the gravity o f the news he is bringing U> ~ fam.iJy and the
impact that such news may have on Mrs. Anun, he deci~ not
to act randomly. Instead, he calls a knowledgeable Muslim
friend and asks him to teU rum about the bas1c1 of Islam, the
Afghani culture, the family structure and the role o f gender in
everyday life and particularly in decision malwlg.
Armed with the necessary information he needs, he t2kcs
rus time, composes himself, puts a nice smile on his face, and
knocks at the door of the room where Mrs. Ansui is waiting.
The husband welcomes him warmly. H e shakes his h2od aod
invites him in. Without looking around, Dr. Fox looks Me.
Ansari in the eye, briefly asks him about what he does in lift;
about rus family, the health of his children., the neighborhood
where they live, and even about the last time he visited Afghanistan. Once he feels that Mr. Ansari is relaxed and that the 6unily
welcomes him, Dr. Fox turns gently to the mother-in-law, men
to Mrs. Ansari's girlfriend, and greets them without shaking
their hands or looking at their faces for a long time. Ft.n:ally, Dr.
Fox smiles and greets Leyla, asks her a few questions about be:r
health, praises her family members for their support, and assures
her that everything will be fine. Then he asks permission ro Wk
to the husband outside and in private.
Once outside, be alludes to the fact that be is about to rdJ
the husband something very important and that if he wants to,
he can ask his mother-in-law to join them. (In most cases like
C...Sn Sn:ou;.s oN Mr..oiCAL ETHICS
this, ir is the mother-in-law who should be consulted first or in
me C01Df>2DY of the husband. She should not be left out, for she
is a key member of the famil}•). Mr. Ansari thanks Dr. Fox, goes
back and returns with his mother-in-law. Dr. Fox asks them to
folJo~'
him ro his office. Once they sit comfortably, he pulls out
the images of a healthy fetus. He goes through a small e.xplanacion of wh2r a fetus should look like; thea he pulls out the actual
picru.res and shows bow an ill fetus looks, and what the future
babrs life rruay be like jf the pregnancy continues. Dr. Fox talks
about the danger and the risk (if any) that a pregnant woman
may undergo. He also describes how many women who have
chosen to terminate pregnancies have been able ro live happily
and have more children.
By now, the husband and the mother-in-law already know
dur something is nor right and that the doctOr is about relay
neg:auve news about either Ley1a or her fetus, or both. Their
eyes beco me wide and they pay full attention to what Dr. Fox is
saying. C2lrnly, Dr. Fox cells them about the conditions of their
ferus, about the fact rll2t this lnby may not be able to live, and
dull they may consider renn.inating the pregnancy now, before it
porenb2.Uy unpaas Leyb's health and weJJbeing. Without waiting for rhetr answer, Dr. Fox shows them rus sympathy and
understanding and asks them n o r w make any decision at the
moment. He advises them to get together and pray for guidance
from Anah.
In summary, there are many unspoken religious and cuirural values that come in co play 111 tius case (as it origina.Uy is
wntren), values that rema.in unspoken and unexpressed. I ~yla
111d her fatruly arc not part of Dr. Fox's cohon group . Thus,
~ are no commonalities to connect rum r<> their religiou~ :tnd
cultural values. He assumes many things about the family and as
such he fa.&ls in hu rrussjon to convey very impomnt medical
373
infonnacion to the family. J-lis main failing is his inability
e.xpress the universal value of respect.
4.
to
Opinion 4 13
One of the most troubling CJUescions that arises in this case
has to do with informacion sharing and how the health ~are
ream communicates sensitively and effectively with the p~oent.
Traditional Western bioethics and Jaw upholds the pracoce of
communicating medical informacion directly to the pati~t.
Moreover, an increasing emphasis since the 1970s o n paoent
autonomy-partly to counter the paternalistic practice~ that had
come to mark docror-pacient interactions before that om.e--has
meant that patient privacy (of information) is now conside~e~ a
paramount value in clinical encounters. H ence, for a phystoan
to communicate test results to anyone but the patient him- or
herself would be an ethical violation. Similarly, it is the patientnot the husband or parent or any other family member-who is
the decision maker vis-a-vis any procedures which the health
care team advises.
This practice works well in a culture that emphasizes the
patient first and foremost as an autonomous individuaL It does
not work as well when the patient is seen, and sees herself, as
one part o f a fiunily and cultural system where it is not part of
her role to be the primary recipient of all information (rnclucling
negative information) o r to communicate decisions. In many
(albeit not all) Middle Eastern families, family interdependence
constitutes identity in a far more central way than it does in
m ost subcultures of the modem United States. While no culture
is m o nolithic, cultural tradition must be taken into account
,, Peterson-Iyer, K.t.reo, "Reflections" on Case Study "Confronting a Fetal
Abnormality," lnternet - http:/ / www.scu.edu/ethics/practicing/focusa.reas/
medical/ culturally-competent-care/ fetaJ-abnormality-peterson-iyer.htm1
accessed on June 21 , 2008.
r
374
C.un
B ASICS 01' PHJUPPINE MEDICAL ) UIUSPRI:OENCE AND ETHICS
when we reason ho w best to n uance ethical norms appropriately
in cJjfferent siruations.
It would be a mistake to deprive Mrs. Ansari of the respect
for autonomy that Western bioethics ttacJjtionally calls for and
upholds. Bur it also wo uld be a mistake to use adherence to this
(or any) norm as a bioethical stick with which to banish any
non-U.S. practices o r beliefs from the moral landscapes we
encounter in cross-culrural clinical settings. Whatever action is
taken in this case needs to find an appropriate means of hono ring Mrs. Ansari as both an incJjvidual and as a product of her
family and c ultural environment. In other words, respecting her
autonomy must be done in a way that also respec ts her relationaliry and her culru.ral, familial, and historical embeddedness.
One p ossible approach to this issue wo uld be to accom modate rhe cultural expectation that tl1e informatio n sho uld be
communicated fir sr to Mrs. Ansari's h usband, and perhaps her
mother as well. llis may indeed be the exp ectation held by M rs.
Ansan ~yla) herself; but we do n o t know that for sure. Personal identi ty is always a complex mixture of traits; and, while
culrure is an imporunt part of individual identity, an incJjvidual
should also never be unde rstood as simply a product of his o r
her culture. Thus, H is poss1ble char Leyla Ansari herself is uncomforrable wah the cultural and familial expectation that she
wJJI M pro tected from knowing her ferus' diagnosis.
The be<,t way ro find this informacion o ut would be to ask
her, rn as culrurally appro priate a manner as possible, how m uch
she w1shes to be mvolved m the information sharing nnd deci
sion malong attendant w her medJcal situation. This is in f.'lCt
the .1ppm.1ch t.aken by D o ha Raile Hamza, in h er analysil!l of the
case. Do~s Mn. Ansari w1sh to commurucacc directly with her
doctor, to leAve such communication to her husband Gnd/ or
mother, or to rake some other approach? Perhaps a fem:tlc
doctor, nunc, chaplain, or social worker- prefenably one with
I'
I
STt:OJ& oN M ro1CAL
Ennes
37 5
belief
some connection to Afghan culture or at least to M uslim
.
system s---<:ould be recruited to help with s uch a convecsanon .
r
_...
· o t's a u wnoT his approach would manifest respect , or u•e paoe
.
mous choke while still honoring the s pecific fo nns o f rel~oo
that characterize her culrural and religious b ackgt"o und I n ~ . e r
· di Vl'd u a1 deClSJth
OO
words fo rcina Mrs. Ansari into the role o f r.n
'
--o
d
te
e
m aker (as D r. Fox essen tially does) would not emonstra
respect for her personhood that in fact underlies the ~estern
dj,rective to respect autonomy; yer automatically disallo~ h e r
the opportunity to make such a (counter -cultural) c h o tce m a y
also cJjsr especr he r individual personhood. The attempt to have
a culturally sensitive conversation with Mrs. Ansari may b e the
best way co serve the value of auto n o m y while n ot insisting on a
tho ro ughly individualistic interp retation of it. While ultimately
the decision would then rest with her , she would be trea ted a s a
rela tional, culrurally embedded person, n ot a s a n ahis torical
individual.
I n addition to q uestions about how and w h en t o communicate information with Mrs. Ansari, Dr. Fox faces the challenge
of how to accommodate--or refuse to a ccommo date-religious
and cultural practices which he finds unusuaL F o r ins tance as
p racticing M~slirns, Mrs . Ansari and he r family find it irnpor:aot
:md comfornng to keep the regular M u slim prayer rituals, praytog at five specific times p e r day. Dr. Fox s h o uld have allowed
his p~tienr (and her family) the time and space necessary fo r this
pracuc~, . b o th out .of respect fo r her and o ut of a r e c ognition
thar spmtua.J_ praco ce is con sidered by many to be an integral
part of healing and reco very. Hence, it is incumbent on the
do ctor -~d, indeed , on the entir e health care team, to r e spect
11.nd facilitate Mrs. Ansari's desire to p ray. As several o f the o ther
case respond e nts m ake clear, this would b e a relativ ely easy
accommodation for the he aJth c are te am to m ake. Ideally, the
heal~ car~ _team m ight have con tacted a Jocal imam or other
Muslim spmtual c are provider to help Mrs. Ansari integrate her
l 71
376
B ASICS
o•· P~llurrrNn
Meo1CI\1 j L<aJSI'ai.IDE.~ "-.. D
cnuu
- stress ·mall acconunodaCJC.t1't, t uch
. , ,.,dml( dn~Jt:tC
to h....
.
u talk•• ~~~
contaCt or touch, or ta.lung • few manutc-t ( f , " Nnot
mnd
hann~ morT scnnus dJScuaaJonJ WJrh ~r (rK wuh hct hua~
"'uuJd hkeh· h11ve gone • long way wwarda bndgJit" '~ c ~
gaps. H ere: d1e classac vJ rtues of tcm~ran<:e MWf ~..m
- weu, rau1er
.L than a .u,,..,••-...a. ~ lhCu~ an
have served Or. l·ox
respect for individual auto nomy.
MusLim beliefs with the choices she and her family face, vis-2-vis
the fetus.
Dr. Fox's unwillingness to allow Mrs. Ansari and her family
the time necessary co pray was driven b y the strict hospital
schedule and sense of priorities in a U.S. medicaJ setting. ~
values are pare of the medical cultu.re which Dr. Fo x brings to
the situation. Thus, the cultural disconnect which occurs heff is
not simply between Muslim o r Afghan practices and U.S. practices; it is between the patient's culture and the clinical culture of
the hospital setting. Dr. Fox and the rest of the health care td.m
would certainly benefit from a greater awareness that this ..doctor culture" includes assumptions (fo r instance, regarding time
and physician availability) that may be efficient or expedjent but
are not always in the patient's best interest.
In a related vein, Dr. Fox is challenged by the need to relate to Mrs. Ansari and her family in a way that they do no r find
overly blunt or o therwise offensive. An open discussion o f such
a grave diagnosis, with little effort given to first establishing
rapport and trust, likdy came across as tactless or eveo cruel
Dr. Fox, who probably felt that his honesty demonstrated a
basic level of respect for his patient and her family, may not
have realized that his straightforwardness potentially suggested
to the family an inappropriate lack of hope. Certainly when the
doctor became frustrated and increasingly confrontational,
bursting into Mrs. Ansari's room and interrupting her prayers,
his style substantially escalated an already difficult situation.
As Abdulmalek Yam ani points out in his response to the
case, Dr. Fox should have slowed down and taken the time to
think about the cultural needs of his patient. While he cannot be
expected to know every detail of every cultural background he
encounters in patients, he might have guessed (from Mrs. Ansari's behavior and from her husband's requests) that unannounced, direct, and difficult conversation with her would add
I
Fanally. there is the concrete qucsoon of tam~ of <be
pregnancy usel f. The sancticy of hutn211 life JS a st~Ottf9y ~
value 10 Muslim thought. Muslim scho12n genuaUy ~
that b•ological life begins at conception, but hunun bfc bcgiPt
when "ensouJment" takes place (e1ther 40 o r 12/) cbp a6.er
fertilizati o n, according to different schools of lhougtlt}. .Afta"
this time, abortion is strongly cliscoura.ged or even forbidden
except to save the mother's life o r, in some cases, hcafrh.. Acco rding to the Islamic MeclicaJ Association of Nortb A.mc:aca,
"fetal congenital malformations in which abortion can be ~agbt
and is permitted are lethal maJforrrutions not comprarib&e widt
extra uterine life .... But even in these sjtuations it is pc:cfcrabk
to do it before the 120th day after fertilization or 19 wcrks of
gestatio~. :· Hence, since Mrs. Ansari here is 22 weeks pa:g•a:ux.,
the decJsJOn of w~ether or not to terminate cbe pa-g•nocy
would .depend heavily on the medical opinion of w~ or ooc
~ connnued pregnancy would seriously endanger the health (c.life) of Mrs .. Ansari. Dr. Fox sh ould have educated bimwlf
about how his own recommendation fit into this luger ·
ei~e~ by cons~ti.ng ~th a Muslim medica.l coJJe.guc~
bnngmg a Muslim religious leader into the mnversarina Minimally, ~e could have couched his own recommendatioo (ie. to
abort) m terms of the relative danger to M.rs. Ansari
Eac~ .of these issues, taken by itself, presents a hw:dle in
the proVJslon of culturally competent (and indeed d:Tective)
health care for Leyla Ansari. Taken together, bowe"'c:r, they
,,,,
tta.tr .,,,,,.,.. ~lid ,.._,
JlUIHIIIIlLIIJiW•t, IWd th1• JIIU flf W~ 4 fl1 tfw 1/IU'UtfV' t WI UM .
"lw I• ll ttuhutrd ttflJI put 'Ill :. Vt' ntlll4tllf, Mv:r '"''' ti t• 1A
Ulltlhittrk• llfld ViKflr')lll IW llitflilly~' th~t Vl'nlt VJ f.-r h' ~
ht:t~t•r, hut •llr luu mtulrt-tl rtltraJntl Ill Woj) h.n f rllfn f..UU~
I)Ut ti ~J: hrc:uthlnK tLJb'" ~lld wla11~,., .,, •hlr dl,.rt flllf •ry IJJ Nl
rhe IC:LJ 11trd'f.
, mrrwm y f iJIIIII phyw '"" ' ''"•uh• wut,
18.3. Caae atudy re: public guardian in charge of the
medical care for a conserved padent.'"-Mrs. Doe is con
serv~d because o f her severe dementia and has been n nursln~
hon:e patient on Medi-Cal for more than five years. She has no
family and left no written instructions about her health care
wishes. In the past two years, she has become unable to walk or
to foUow any simple commands. She has not spoken .in months.
D uring the past year, she has required spoon-feeding, and she
has been talcing progressively longer to eat each meal. Because
o f episodes o f coughing and possibly choking, her diet has been
changed to puree with thick liquids. She still seems to prefer
some foods, and the staff can tell you which foods she will
usually spit out. She has been hospitalized twice for pneumonia
in the past year but has recovered without needing ICU treatment.
One Saturday evening, Mrs. Doe is congested. She begins
running a fever, and her breathing seems labored. The nursing
home staff calls 911 and sends the patient to the hospital. The
Menkin, Elizabeth, "End-of-Life Decision Making: Case 1," Internet http://www.scu.edu/ ethics/practicing/ focusarcas / medical/ con~er:ed. .
puicnt/casel.html accessed on June 21 , 2008. EI.J.zabcth Menkin 1s a phystoan
in gemtric and internal medicine at Kaiser-Pecmanente S~ Jose/.~a.nta Teresa
and the founder of Coda Alliance, a Silicon Valley commurury coaJioon for end-
Vol) rornt 10 •ct" Mrtt. J)nr 1n rN! JC,lJ t)ll M!M2y t(flf·
noon. ( )n ynur way to see her, y11u ~~ t. na.tli~ chat the nun
lng home hu juu celled Y''u 111 au i{ Mr.. Dtx: wdl have a
feeding Luhe pl~tced while ahe ia in t.he hotpiral. They point out
that she: hall been l()lling wei~hr and utlu• ao long w ear • meal
rhat it is impacting the staff's abtlity w get mh.er y>bt duftc,
When you :arrive in the lCU, the patient iJ arill on the ventilau>r,
and each wrist h:~.s a binder that tecure. h.er tO the bed frame.
Although she is somewhat Redated, ahe aeema uncomfortable,
and there is still an aura of panic that penetrate' her drug hue.
The ICU physician is glad to see you because he has lotJ of
questions about what happens next with the rntienc.
1.
Is she is "full code"? Should they "do everything'? i.e., should she be resuscitated if she suffers t cardi2c
arrest?
2.
Do you give permission for them to continue ro restrain her arms so that she does not pull out the
tubes?
3.
Can the nursing home do IV antibiotics?
4.
Will the nursing home accept her back if she OVerst2)'S
her seven-day bed hold?
5.
Will she be transferred back to the hospiw again for
her next bout of pneumonia?
14
of-ufe care.
380
BASICS OF PHIUPPINf. Mt:DICAI. j URISPRl:OE.:••CE "'-"0 ETHJC!i
381
18.4. Case study re: public guardian in charge of
.h
.
an
ld
o .woman ~t multtple illness~~-ts_The public guardian
h as JUSt been granted healthcare dec1s1on making power for Ms.
~on~, a 78 .y~ar-old woman with severe dementia, diabetes with
unprured vtston, and poor kidney function, recent recurrent
~neur.nonia, .and prior strokes. You are seeing her for the first
ttme tn a s~ed n ursing facility. She was transferred there yesterday followmg a four-month hospitalization.
·
When you arrive at the skilled nursing facility to see Ms.
Long, she looks very thin, and the nurse tells you that there is a
large necrotic pressure sore on her sacrum. The aides are repositioning her so th at the speech therapist can do her evaJuation.
There is an I V running fluids in the patient's left arm, and her
righ t arm lies limp on the bed. Some of the time she seems to
look at a face and track movements, but sometimes not. She
does not give any answers to simple questions, either verbally or
with nods or shaking her head, and does not consistently lo ok at
the person who is calking to her. She does not give any social
smile in response to the speech therapist's attempts to engage
her. You notice that the patient grimaces when she's moved, and
cries in apparent p ain when she is rolled o n her back. She opens
her mouth when offered a straw but does not suck on the straw.
She takes a small amount of ice cream that is offered by spoon,
but after two more tries by the speech therapist she pushes it
away and slaps using her left hand.
Questions:
1.
Is Ms. Long terminally ill?
2.
What are the treatment decisions at this point?
3.
Artificial nutri tion and hydration?
ts Menk.in, Elizabeth, "End-of-Life Decision Maki~g: Case 2" Inrerner h rrp://www.scu.edu/ethics/ practicing/ focusareas/ medical/ conservedpatiem/case2.html accessed on June 21 , 2008.
4.
CPR I DNAR?
5.
On what basis wtU thc:ae dccis1ons be made(
18.5. Case study re: prevention va. treatment in
HIV I AIDS program.IL-Paul Champton works m the nonprofit sector at a grassroots II IV I AIDS program tn the & y
Area. As with many such organt1.aoo n1, thiS small no npro6r
struggled with funding and had to reorgama Its programs.
" Given the limited resources, there were o ften debates
amongst leaders under fmancial pressure tn the HIVI Al~S
nonprofit world about what resources should be gtven pn~ ty:
prevention or treatment,'' says Paul. Supporung prevenooo
would mean d evoting funds to educational efforts and co ndom
distribution. Supporting treatment would mean devoting funds
co medical care fo r the already infected. With limued funds, ~
organization couldn't support both approaches. M a lobbyist
for the organization, PauJ had a heavy hand in the process. He
advocated for a small advancement in both the preveono a 2.00
treatment sector o f the organization, instead of a large change ro
favor one or the other. Paul felt this would best serve the community they were charged with helping because it wo uld put
funds toward two segments that surround the issue of HIVI
AID S--those who are at risk and those who have been diagnosed.
But those above Paul felt differendy. ''\'X"e pl2y a cnoce
beneficial role by focusing on treatment," said Paul's boss.. The
upper management reasoned that money and sen'lces '*~
have a greater impact if it focused on the treatment opnon.
Those needing treatment were a defined population, whereas
16 Silliman, Jessica, " Balancing Nonprofit Interests," lnternet - http://
www.scu.edu/ ethics/ dialogue/ cnndc/ cases/ nonprofir-mterestS.hanl a~
on June 21, 2008. Jessica Silliman, a 2006-07 Hackworth Fellow at The llf.arltkub.
Center for Applied Ethics.
382
B.wcs OF
II
PH!uPPJNE MEDICAL j u RISPRL'DE.'ICE ,...,,.n
ETHics
CASe
Sn-ores
o;.; MEDICAL E THICS
383
I
those in prevention were hard to define or narrow as an area to
serve. Wi~ so little money to work with, the upper management
felt that Jt would be better to devote significant funds to one
faction, with the possibility of making a difference, rather than
splitting their time and money, thereby reducing the effectiveness and possible impact on the community. Their reasoning
was sharply questioned by others who felt favoring prevention
was a better option, even if the long-term result would reduce
the number of infections.
"HIV infections are more likely to continue absent strong
prevention programs," says Paul. "But a focus on treatment
comes at the expense of the prevention programs--even at the
ruttional Jevel."
Paul's job changed with the decision. He no longer was
able to advocate for both trearmenc and prevention. Instead, his
grant writing and petitions for government funding were focused o n treatment The organization still supported prevention,
but only in theory.
After fighting a losing battle for six months, Paul Jeft the
no n-profit. "Even guys in white bars--organizations ~esigned
ro do good-face ethical challenges created by financraJ pressures," said Paul.
DimmionQ11ulionJ:
1.
What should rhe goal of a nonprofit HN I AIDS organization be?
2.
Once the upper management mad: its decision co favor treatment, should Paul have res1gned?
3.
D o you think Paul's decision was frur to the community served?
4.
Should Paul have gone to the newspaper or o ther media outlets?
I
I
I
18.6. Cas e study re: decision to dis continue lifesus taining treatment.l7- When seriously ill patients .ask .ro
discontinue life-sustaining treatment, depression may be Uilp-a'~­
ing their ability to make decisions. In this case study, a ~m­
cian discusses how a physician might work through the ethics of
this situation.
At 80, R.L. Jives with his wife in a retirement community.
He has always valued his independence, but rece~rly he has b~n
having trouble caring for himself He is having diffic~ty walking
and managing his medications for diabetes, heart disease, and
kidney problems.
His doctor diagnoses depression after noting that RL. has
lost interest in the things he used to enjoy. Lethargic and sleepless, R.L. has difficulty maintaining his weight and talks ab.o ut
killing himself with a loaded handgun. He agrees tO try medication for the mood disorder.
Two weeks later, before the effect of the medicine can be
seen, R.L. is hospitalized for a heart attack. The heart is damaged so severely it can't pump enough blood to keep the kidneys
working.
Renal dialysis is necessary to keep RL alive, at least until
it's clear whether the heart and kidneys will recover. This involves moving him three times a week to the dialysis unit, where
needles are inserted into a large artery and a vein to connect him
to a machine for three to four hours.
After the second treatment, RL. demands that dialysis be
stopped and asks ro be allowed to die.
,, Lee, Melinda, "The Cue of tbc Dcp~ Patient," lntattct •
hnp://www.scu.edu/edtics/dialoguc/candc/cutj/pmmt.hanl 2e.eeNed o.o
June 21, 2008. Mclind2 !..«,M.D. (Santa~ Unlv~sny. '69), iJ an ~ace
professor of medicine at Oregon HC21tb Scicncu Uruvct~~q and a gm.unaan
with Providence Elder Pba in Portland.
CASB STCDIES
384
o :-.
M eDICAL
En uc.s
385
B ASICS O F PHII. IPPINh M HDICAL }URISPRUO I!.NCH AN D E THICS
You are R.L.'s physician. What should~ do?
R.L.'s was an actual case that presented his physicians with
a commo n dilemma in treating patients with serious illnesses:
Had depression rendered him incapable of making a legitimate
life -and-death decisio n?
When patien tS agree to undergo or refuse medical treatment, they are supposed to reach the decision by a process
called informed consem. The do ctor discloses informatio n
abo ut the medical condition, treatment options, possible complicatio ns, and expected o utcomes with or without treatment.
To give informed co nsent or refusal, the patient must be
acting voluntarily and must have the capacity to make the decision. That means the paciem must be able to understand the
informacion, appreciate its personal implications, weigh the
optio ns based on personal values and life goals, and communicare a d ecision. From an ethical point of view, informed consent
is based o n the philosophical principles o f autonomy and bene ficence. ln R.L.'s case, these two principles are in conilict.
F1rst, R.L. 's prognosis is unclear, and the physician does not
know if the benefits o f dialysis will o utweigh the burdens. Under
normal circumstances, this decision would be made by R.L., but
the physician suspects the patient's capacity for autonomous
decis1on making is impaired by depression.
Depression is a mood disorder that can profoundly affect a
person's ability to think positively, experience pleasure, or imagine a brigh ter future. Depressed people frequently have little
energy, po or appetites, and disrurbed sleep. They may have
difficulty concentrating, or they may be troubled by feelings of
guilt and hopelessness. Preoccupation with death is common
and, in some cases, may incJude con templating suidde.
Because R.L. was suicidal before his heart artack, .oo one
was sure whether his refusal o f dlaJysis represented an authentic
exercise o f his right to st<:>P ~fe-saving treacm~nt ~r ~fct~~v=~~;
means to passively end hts life. On the o ther an ,
. h to
co ntinued dialysis, he would be d~nying R.L. the sam~ rl~estsed
refuse treatment that another paoenc who was not ep
wou ld have.
When patientS ask to have life-sustaining treatment wi.thheld doctors have been taught to co nsider wheth~r depreshi~todn
•
"·
jjf
is driving
the request, because the con d ttton
ts ~n rwo
. -t r s
of those who are treated with anti-depressant meclicaoons. !he
presumption is that once the problem has cleared, the paoent
will look at treaonent decisions differently.
Recent research has challenged that p resum ption by showing depressed patients d on't necessarily choose to h~s.ten d eath
in the first place and they often make the same deos1ons after
they recover from depression.
Thus, depressed patients may be able to give informed con sent, but doctors and loved ones m ust consider w h ether the
decisio n to refuse m edical treaonent is logical, internally consistent, and conforms with past life choices and values.
In R.L.'s case, the doctor, in consulta tio n with a psychiatrist, decided to continue the course o f anti depressant m edica tion to see if, when it be~n to take effec t, R.L. would change
his mind about treatmen t. In the mean time, his dialysis was
continued.
After five weeks, R.L. showed no improvem ent, and he be-
gan to refuse medicatio ns and foo d. His wife was asked to give
consent for a feecling tube.
O n conferring with the rest of the family, R.L. 's wife derued the d octor's request. Her husband's repeated refusal of
dialysis had convinced the family R.L. really did want to die. Io
addition, RL's unchanged physical condition indicated that, if
386
B...stcs o F
P HtUPPTNE Me.otCAL j lJRJSPRCD&'<cE !u'ffi
ETHics
he survived to disch~e, he would probably need nursing home
care, a fate he had reststed even before his depression.
Ul~ately,. the physician shared the family's assessment
that R.L. s consistent refusals indicated an authentic wish to halt
treatm~nt. He was taken off dialysis and put on comfort measures. Sl.X days later, he died.
How would you sort through the ethics of this situation?
18.7. Case study o n addressing ethical issues confronting governments, NGOs, and pharmaceutical companies when faced with an epidemic.ts_On October 15' 2003 ,
health officials in the central African country of Mubanda reported the outbreak of a new flu-like illness resistant to conventional antibiotics. Rural clinics reported a number of deaths
attributable to the new illness.
In the four weeks preceding the announcement, 45 cases of
the unknown illness, which was being called SALS (severe acute
liver syndrome), had been reported to the national health authorities. Ten of these cases had resulted in death. The disease
seemed to be transmitted easily and therefore to be spreading
rapidly. While the victims of the new disease were poor and
were less likely to travel than urban victims, there were indications that the disease might spread to urban areas and might
have already spread across the bo rder tO a neighboring country.
•• Hanson KJrk 0 ., "The Outbreak," lntcrnet -http:/ /www.scu.edu/~thic~
dialogue/ candc/ cases/ outbreak.hunl acceu ed on June 21, 2008. Kirk ·
Hanson i5 exc:cucivc: director of the Markkula Center for Applied Ethics at Santa
Clara Univermy. 'The case: wu developed for discussion Cit th.e October 3, 2003,
conference on The Future of Pharma.ceuucala: Legal lll'ld Ethical Cha.!Jcngea,. Co·
sponsored by the JiJgh Tech Lew Institute of the School of Law, Sant~ Cl~ril.
Uruvcrsity, and the Mukkula Center for AppiJed Ethics, Santa Clati. Unl;e.rstty.
The cue does not preaent the effective or Ineffective hwdllrtg of an admtrustnl·
ove attuaoon, but it des1gned to promote classroom dlscuss~on an~ dialogue on
important poUcy issues In taw, health care:, and bU51ness adminlatnnon.
CASE
Sn:oms
ON ME.otCAL
ETHics
387
The modem political border split the historical homeland of one
of Mubanda's tribes and was irrelevant to most tribal members
who freely crossed it daily as their ancestors had for centuries.
Mubanda one of south central Africa's poorest countries,
was uniquely ~prepared to cope with a new health crisis. The
country was already coping with the effects of the AIDS ~­
dernic and had few health resources or funds to cope wtth
another outbreak.
A Possible Cu~
The Mubanda health minister, a British-trained physician,
was encouraged by preliminary word from one of her health
bureaus that the disease seemed to respond to a new drug,
Holizan, recently marketed for other indications by a small
American biotech/pharmaceutical firm, Rosendahl Meds, Inc.
Rosendahl, a 10-year-old firm, had only two pharmaceuticals on the market. Its prospects were heavily tied to Holizan,
which represented a development investment of approximatdy
$500 million. In its 10 year history, Rosendahl had successfully
raised several rounds of venture financing and then, as its first
product had shown evidence of a promising technology platform, had attracted substantial investments from two larger
pharmaceutical firms. Representatives of both the venture
investors and the large pharmaceutical f1rtns served o n the
board, as did two university scientists who had advised Rosendahl closely over its short life. Rosendahl's CEO was Craig
Elliott, who had earlier worked for two other San Francisco Bay
Area biotechnology firms.
MHbanda's Oph'ons
As the Mubanda health minister evaluated the situation, she
and the country had several options:
8 \SID
"88
l.
nl' P HllJPPI:--.E i.\IF DICAL j L'RlSI>RUD !i."'Cil "'
o Ennes
Dh·ert ''rhat resources she could from HIV I AIDS
programs to buy supplies of Holizan at the current
global price tO try to stem the outbreak. A treatment
regimen would cost approximately $450 per treated
indi,;dual. Given this cost, she thought it unlikely that
she could free up enough cash to stem the rapidly
progressing outbreak in time to prevent its spread to
the urban areas.
2.
Ask Rosendahl to make supplies of Holizan available
free or perhaps at production cost, rumored be approximately $22 per regimen.
3.
Arrange with a generic drug fum in South Africa t O
produce a Holizan equivalent without permission from
or payment to Rosendahl. A recently passed Mubanda
Jaw allowed the health minister to abrogate patent
rights in time of national emergency, which this might
be--or at least could become if untreated. It was less
clear whether the health minister had the right in this
case to arrange with a drug company in a third country
for this productio~ although the World Trade Orgaruzarion had recently adopted exceptions that indicated such a step would be permissible under WTO
rules under certain specific conditions.
4.
Wait and see how the crisis developed. The health
minister was acutely aware, however, that the Chine.se
government had been severely criticized in 2002 for Its
slowness in the SARS o utbreak. She also knew that
the Chinese health minister had been fired in response
to international criticism .
Rosemi.aJJ/1 Dilemma
For Rosendahl, the news that its drug Holizan mi~ht ~tem
the tide of the new Mubanda disease was mixed, to put 1t mildJy.
CASt\ S n .:l) IIJ.\
uN Mt•Olc AL
Enuc'
389
To make the fledgling company a success 1\n.d to support the
level of its stock price, CEO EUiott believed the company had
to make Holizan a blockbuster.
Elliott worried that Mubanda's health minister would not
be sympathetic in any way to the impact of her decision on
Rosendahl's prospects or its stockholders. He specifically feared
that Mubanda would move unilaterally to violate its patents and
have a generic Holizan manufactured somewher~ ~ Africa.
Elliott doubted that a generic manufacturer would lim1t the sale
of generic Holizan just to Mubanda or that it would stop production once the crisis had passed. Would the black market
forever be flooded with generic Holizan, thereby destroying the
market for the drug, not just in Africa but also possibly in Asia
and even in Europe?
Elliott knew that Rosendahl's plight was not unique. Large
and small pharmaceutical firms had faced a similar dilemma due
to the HIVI AIDS epidemic in Africa. Faced with local emergency laws permitting the violation of patent rights, the wro,
under pressure from the United States, had permitted countries
to produce the emergency generics in the country where they
would be used. Many African countries protested that they did
not have a generic drug industry and that these measures
blocked their access to drugs needed in emergencies. In early
September 2003, the United States gave in to world opinion and
cooperated in the development of new wro exceptions which
permitted arranging for generic production elsewhere in times
of genuine crisis. The exception p rohibited a generic manufacturer from exporting such drugs to any other country and tightened up the deftnition of a genuine health crisis. Whether the
Mubnnda situation fulfilled the WfO crisis conditions was not
clear.
Despite the American change of heart over the wro rules,
critics in non-governmental organizations argued the rules did
390
B.\SICS
OF PHJUPPINE MEDICAL ]l:RlSPR.L'DE..'<CE
"-'~D ETHJcs
ChSE. Sn.'DJES ON MEDICAL ETHICS
nor go far eno ugh. Stating that the WTO rules "will not make a
significant d.tfference to the millions of sick people who d1e
unnecessarily in the third world every year," Ceiine Charveriat of
OXFru'\f told the New York Times that the rules requiring a
health crists were too strict. She implied that poverty alone in
the third world ought to justify violating parent rights on a very
broad set of drugs.
Ell..tott was also aware that the U.S. government had become worried about just the kind of situation Rosendahl was
facmg. While the United States had finally supported the new
WTO policies, the h ead of the Food and Drug Administracion
had wven a major address in late September 2003, stating that
recent p ressures on drug pricing and patentS worldwide had
forced the U.S. health care co nsumer to shoulder much of the
cost of drug deveJopment through higher domestic prices.
"~ew drugs are truly global products," the FJ?A cornmis.sio~~r
stated. "They must be paid for by aU countnes and thetr Cltl zens.
..
Tht I .l)n_i.tr T""'
\'("h1Je facmg rhjs paracular dilemma regar~g Ho li~an,
EJJJ(m wondered what the threat of this type of dilemma mtght
mean for the longterm profitabllJty and sun:ivaJ ~f his firm. He
kne~ Bmwl-Mycrs S<:turbh had recencly g•ven In to pressure
from the ,c,entific commum ty to relax its pat~nts overclrwo
ATDS drugs allowm~ manufacturcn rn s,u th Afnca tO pro ucc
' f o r Ioca
. l use . And another Bay Area
firm,
cheaper copreo;
r:
•
.a MaX}'
••
.
clerable
favorable
p
ress
ro
r
Ill!
uC
uc;n had garncrccJ consr
kCISICHl
n
'
. h
lO J·•
rnaMc lls
ro panncr
wll
nrJn gt>vernmentaJ or~nizations
,.,·•
cost
around
lhe
wo
r
u.
nxy
1 , drug av.;u J:.t l/, e m re d uCc u
;~ .l~:, obvJou~ly a~ccpun~ a smaller return on ics inve!ltmet1l
than It mrght otherwise recerve.
391
Rosendahl had recently been asked by BIO, the Biotechnology Industry Organization, one o f the trade associations .to
which Rosendahl belonged, to constder a partnership With
universities, research institutes, and the Gates Foundation, to
develop new drugs for third world diseases off ItS current technologies. Such arrangements usually required the bio or pharmaceutical fum to license the resulting drugs co a non-profit
international health initiacive.
What longterm strategies regarding the availability of its
drugs in the third world, Elliott wondered, would serve the
interests of his investors and the company itself? Would the
possibility that its property rights might be abrogated reduce ~e
value of its stock? Would it be better to get out front and wm
some good will by doing some cooperative deals on third world
disease?
18.8. Case Study on what sh ould a physical therapist
do wh en s he suspects that her p atient isn't being entirely
honest with his physicia.n.'9-After suffering a back injury at
work, Lowell Baxter has completed three weeks of physical
therapy. \Xfhile unable to work, LoweiJ has been going three
times per week to see therapist Eve Nyc who has been working
for three months at a new clinic and IS still learning the ropes.
After Mr. Baxter's ninth treatment, his physician, Dr. Fdton Cmnz, explained that he had made good progress. Lowell
no longer needed PT but was unable to return to his physically
demancling job. He continued the home exercise regimen that
Ms. ye had given him. Dr. Cranz, who was not adverse to
o rdering adclitional physical therapy if necessary, told Lowell to
call him if he had any further problems.
19 Wolfe, Pat, Smith, Paula, McLean, Margaret, and Sh~s. Thomas,
"Shhhhhhhhh, Don't Tell," Internet -http://www.scu.edu/eth.ics/dlalogue/-
candc/cases/tell.htm1 June 21,2008.
392
BASICS OF PHJUPPIN E MEOJC.>u. jL"RISPRL'DENCE AND ETHICS
393
One month later, Mr. Baxter called Dr. Cranz's office and
told the
that
__ ,nurse
.. :
. there had been "a flare up" in his 1ower b ac k.
Aft
. er UUJUng wtth the doctor, the nurse called Lowell and told
him that Dr. Cranz ordered another round of PT-3 times per
week for 3 weeks-that he should begin right away.
During his third session, while telling Eve about his recent
activities, Lowell mentioned that he slipped and fell on a rainy
night while coaching his daughter's soccer team. He said th~t
this happened "a- couple of days" before the "flare up". Eve
asked if he told his doctor about this latest fall. Surprised at the
question, Lowell replied, ''Well, no. Why would I? Anyway, I
was having some painful twinges in my back before 1 slipped.
Besides 1 fell on the soft grass. I'm sure I didn't hurt myself
when I slipped. D r. Cranz is always so busy and I don't need to
waste his time with this. H e told me after I finished my sessions
a month ago that I might need another round of PT anyway. I
feel better after our therapy sessions. So, how about those
Sharks-the men in teal?"
When Ms. Nye saw Mr. Baxter on his fifth visit, he complained of increased pain with radiation d~wn ~s left le?. During her evaluatio n, Eve concluded that his pam was different
from the pain he experienced after the first ~all and_was almost
certainly related to the second fall. She expla111ed this to Lowell
and s ugges ted to him chat he talk to his doct~r ~o ensure that ~e
r ecieved the appropriate treatment. Lowell illSISted that he did
not want to bother his doctor with this.
Now, on his seventh visit, Mr. Baxter is visibly fatigued a~d
short-tempered. He complains of weakness and. numbness tn
the left leg. Eve str ongly encour ages him to talk w1th Dr. Cr.anz.
He adamantly refLises.
"Well, perhaps I should talk with Dr. Cranz for. you. I
could tcU hjm about your fal l at the soccer game and thts onset
of numbness and weakness in your leg. You know, Dr. Ct20Z
looks at the notes I wnte."
" No," bluns Mr. Baxter. " J dnn't want you to") anything.
It's none of rour bustness! Tha II my InJUry, and I don't vnnt to
bother him with this. You have w respect my W1shes. Your job
is to do therapy; not to interfere. N()W, let's get o n Wlr:h se'
What should Eve N ye do now' Why?
What might Eve Nye have done cuba?
How would you have dealt with Lowell Butet:?
18.9. Case Study on the ethical q uestions involved
when a company is the o nly supplier of a high-risk, lifesaving product.20-The heart pacemaker is a modem wooda.
The device has a timer that resets itself every rime the paricm':.
heart beats. If the heart does not beat on schedule (say, within
1.2 seconds), the pacemaker gives a stimulus that causes a bonbeat
But the technology was not always so sophisticated, and its
early limitations form the background of this auc story. told to
Markkula Center for Applied Ethics Director 1bomas Slwtks,
S.J., by one of the participants. Although the events luppened
20 years ago, the ethical issues they r:use are still relen.ot.
It's 1975, and you are on the board of chrectoD of a company that makes transistors. Among the many companies with
whom you have a contract is one that makes heart pacemakns..
Pacemaker technology is in its infancy. When doctOrs implant a pacemaker, the patient's normal heartbeat is disabled,
w Shanks, Thomas, "The Case of the Sole Re~m~ning Supplier," lnt.cmet
http:/ 1www.scu.edu/ ethics/dJalogue/ cande/ cases/ suppi.Jer.hanl a.ccesK.d on
June 21, 2008. Thomas Shanks, S.J ., is Execuove D1t«t0r of the Ma.rkkula
Center for Applied Ethics.
394
8.\SICS OF f>HrUPPI:-.E MEDICAL jt.:R.lSPRl:I>E:..;CE A.'\ID ETHICS
and
· •s
h he o r she relies entirely on the device· If it fails, the paoent
eart stops .. D octors are not ve~ adept at installing the pacemakers, whi~h are extreme!~ delicate; there is even a story of a
person yawrung deepJy, pulling the pacemaker wire in his chest
and dying.
'
CASr: Sn;oiF.s
ON M EDICAL
Ennes
395
Our only obligation is to our shareholders. And how clid we get
so stupid that we're the last source? I'm telling you, we don't
need this." Finally, the chair o f the board says, "OK. Let's make
a decision."
What do you do?
After that and many similar incidents, the board begins to
recons1der whether your company should sell to the pacemaker
company. Members of the board feel this situation is a major
lawsuu JUSt waiting to happen and your company, as well as the
compan} you supply, will be liable. In adclition, you feel the
specs the pacemaker company uses to test the transistors are not
very strong.
You and the board decide to get out of the business before
It's roo late. You tell the pacemaker company representatives
about your conclusion, and they respond, "You can't stop
selling us the transistors. You are the sole remaining supplier for
us. Everyone else has backed out for the same reasons you're
g~vmg. If you don't sell us the product, we'll go out of business.
Pretty soon, no one will be mai<Jng heart pacemakers, and many
people need them. Without the pacemaker, people don't even
have a chance."
You take that mformauon back to the board . People
around the t2ble have. dJffcrcnt opimons. One person s:~ys,
..This Jo; ., b ..d deal, and 11 rsn't our problem. We don't make
en,JuKh 110 rh1 ... ~ale CfJ make the mk wt>rthwhilc:" Another
person c;ayo;, "~'c:. drm't knrJw hnw other companieS u~c d~c
tran~mor~ we selJ them, why o;hould we be ctmccmcd abou t thts
one? Whar about that baby who cited when the tran'II'IIOJ 1n the
incub.unr f<.ulcd~ Wt: d1dn't know how that compnny wa ~ u'lltlg
rhe rran5!'ror." Another pcr!loll '!ay11, " I 1hrnk we're m1ssinJ( t lw
real 1 ~ 5 ue here Don't wt h ave <~fl ethical oblig~llion to t~cll the
product [I) tht pacemaker c:ompany:> What ..ws!l happen ir we
dtm't ell to them?'' Another ptrson says, G sve me: a break.
18.10. Case Study whether physicians have a duty to
re fer patients to alterna tive forms of therapy.2'--Does a
patient have the right to access to non-Western form s of medical treatment? Anh Tran, S.J., Markkula Center for Applied
Ethics Associate Director of Health Care Ethics, discusses the
issues in this case of a doctor's refusal to refer a patient for
acupuncture.
Mr. Chen, a 40 year-old patient originally from China, has
had lumbar problems for one year. The conclition includes dull
pain in his right leg and the inability to sit still fo r long periods.
X-ray examination reveals a prolapsed lumbar elise. He has been
treated with conventional pain meclication with minimal effect.
His physician, Dr. Robert Olson, recommends back sur gery, but Mr. Chen is reluctant to take this option. instead, he
asks the doctor to refer him to an acupuncturist because his
insunwce coverage requires physician's approval for "alternative" therapy. He mentions to the physician that he has tried
ncupuncture berore, and it has helped him .
But Dr. Olson is skeptical about any kind of alternative
therapy. Thi denves partly from his belief that allopathic medicine, the approach taught in Western medical schools, is the
mo t efficacious because it has been scientifically proven
through clinical trials. He has also had extensive positive experience with surgical treatment for Mr. Chen's coodjtion. In his
Tran, Anh SJ., ''The Acupuncture Alternative," Internet • http:/ /www.scu.edu/ ethics/ chalogue/candc/ cases/acupunctute.html accessed on June 21, 2008.
ll
396
B ASJCS oF
PHIUPPJ;-.~E
MEDICAL j u JUSPRUDENcE AND
Enucs
I
I
I
II
CASE
Sn:oiF.S
ON MEDICAL
ETHics
397
I
view, other fo rms of medicine are at best placebos and h d
·
his d
,
e oes
not see It as
uty to recommend them. He refuses to order
th e acupuncture.
Did the physician act ethically?
This .case illustrates a common scenario in doctors' offices.
Many patients seek alternative therapies because conventional
~eclicine has not brought them satisfaction. Must their physic~s mak~ these referrals? As you answer the question, you
mJght consJder these ethical issues:
CNIIural Sm.ritivi!J
First, it is important to define what is "conventional" and
what is "al terruttive." Dr. Olson has overlooked the fact that for
Mr. Chen, as for many of his Asian patients, acupuncture and
herbal therapy are consjdered conventional treatment. In East
Asi2 (China, Japw, Korea, and Vietnam), there is a dual system
o f medicine--Oriental, o r "ttaclitional," and Western, or "modem." Each type of meclicine has its sphere of influence, and they
are not considered muruaJJy exclusive.
Ahhough acupuncrure and Chinese meclicine have been a
part of the regular health care sys ~m in East Asia for millennia,
they did nor become popular in the Unjced Scates until the
J970s. Since then, acupuncwre h21 been used by millio ns of
Amencan patitnr$ and performed by tho usands of health care
profe, wmals, mcJudmg physicians, dentists, and acupuncturists.
.t\fter two dccadts of reseatchmg and reviewtng the body
of knowledge on acupuncture, rhe U.S. food and Drug Admini·
u.rauon recmdy remov~J acupuncture necdJes from the cate·
gory C)( ..expenmentaJ medJoaJ devices"; ic now regulat e!! rhem
juu .u 1t doe5 ,ur~ca.l ~eaJpels and hypodcnruc ayringes. In
1CJCJ7, the N,uioru..l ln•ututts of I feaJth pubJJShcd a consc:n us
statement recognwng the efficacy of acupuncture as a rhcrapcu-
tic intervention for conditions ranging from post-operative pain
and chemotherapy nausea to addiction and stroke rehabilitation.
According to the NIH report, acupuncture "may be useful as an
adjunct treatment or an acceptable alternative or be included in a
comprehensive management program."
While acupuncture is now readily available in the United
States, there can still be cultural clifferences in the way American
and Asian patients approach thjs treatment. People who grow
up in an environment where Chinese meclicine is a regular part
of health care tend to value it for what it's worth, but they will
not hesitate rouse Western rneclicine whenever necessary.
On the other hand, many non-Asian patients who seek alternative treatments are often unhappy with conventional medicine. They want a more relational style of health care; they wish
to alleviate symptoms gendy o r with fewer side effects; they
wish co prevent disease or enhance wellness. Some of them look
at Chinese medicine as the answer to all their problems. These
patients are in a more vulnerable position because they often are
desperate to tty anything. They are less critical of alternative
therapies and expect more out of them. As a result, they are
often victims of medical frauds that can cost them money, time,
and health.
Mtdital Nttd vs. Duire
Dr. Olson does no t want Mr. Chen to become such a victim. Despite agreement on the efficacy of acupuncture for
conditions like Mr. Chen's, Dr. Olson believes that his patient
would be better served by back surgery. Is he obligated to accede ro Mr. Chen's wishes? Should the patient's desire for alternative treaanenrs always be respected?
This question touches on the issue of patient autonomy. To
what extent should a person control his or her own care? Here,
398
8:\SICS OF P Hil..IPPlNE Ms.otCAL j UJUSPR\;'DENCE AND ETHICS
physicians face a dilemma· A patient
.
·
. ·h
r:rug
t
want all kinds of
treatments ~d the.raptes, some of which might be effective and
some of which rrught actually be harmful Must
..
auto matically comply?
·
the phystclan
risks vs. the benefits of acupuncrure as a part of Ctunetc mecU·
cine, which might include herbal thenpy. Jn any type of treat·
ment, there is always a cerwn level of risk. '1'1K qLW:scion 11 how
much?
Some doctors refuse to consider any form f aJ
.
th
·
.
o
temat:Ive
erapy as a senous opnon fo r their patients Thi . h
· h d A
· ·
·
s 1S s ons~g te . t rmrumum, physicians should educate themsdves
about the benefits and limitations of alternative th eraptes
· so ..1.
u•ey
b
: an e a good ~ource for referrals. Acupuncture, for elWnple, is
~ot ~ appropnate tr:atm~nt for every disease, but it has proven
~ffecnve for complaints like Mr. Chen's. By informing himsdf
1bout what acupuncture can and can't do, Dr. Olson would be
~etter able to act in his patient's best interests rather than simply
?rotecting his turf.
In addition, many health insurance companies ooJy cover
tlternative therapies if there is a doctor's referral. If the patient's
nsurance co mpany is willing to pay for acupuncture, the physi:ian's refusal to re fer will create an unnecessary financial burden
)n the patient.
Dr. Olson is still not obligated to recommend acupuncture
f, in his considered o pinion, it is not the best option. H e can,
towever, explain his p osition to Mr. Chen and offer to re fer
lim to another physician who is more open to considering
uternative therapies. Patients are entitled to a second o pinion
t.nd options when it comes to major (and irreversible) medical
nterventio ns such as surgery.
jvaluating Risks
Obviously, a physician 's decision-making process about ree rrals to alternative therapies must weigh the risks. Because in
he United States a licensed acupuncturist is also often a Chinese
1erbalist (the reverse is not true), it is important to consider the
Chinese medicine has mirumtzed risb, but it JS nOt nskfree. Reported problems include delayed c:Wgnotrs or ueaunenc
from a conventional point of v1ew, aUergic reactiom c2.used by
interactions between prescription drugs aruf ~ rem~es,
and possible infections or physical injury 2.Jsocwed with acupuncture treatment.
apen·
These risks are often linked to the educ2.cioo and
ence of Chinese medicine practitioners. lt is imporuot for the
patient-consumer to check the credentials and training of these
health care providers. In California, as of 2000, there were 4378
active acupuncturists whose licenses were regulated by
Medical Board of California; at least 300 of these were physicians. At this writing Qune 2001), herbalists-Western or Chinese-were not regulated by any government agency.
me
Patients should beware of an acup uncturist who claims to
treat any and every disease. While these treatments are effiacious for many conditions, some practitioners tend to e.uggcrate the therapeutic effects. Physicians and patients should coosuit the 1979 World Health O rganization list and ~ 1997
National Institutes of Health list for conditions that ace appropriate for acupuncture treatment.
If patients tum to acupuncture for these 2.pproved indkations, are the risks acceptable? And who should decide the
patient or the physician? This evaluation is a sh:l.red responsibil-
ity. Physicians should educate themselves and patients on me
benefits vs. the risks of acupuncture. Patiems have an obliguion
to disclose to their physicians what type of therapy they undergo
so that risks can be minimized. This can be achieved if thc:re is
400
BASICS OF PHIUPPINE. MEDICAL ]U1USPRUOENCE. Al'.l) ETHICS
mutual trust between physicians and patients. Physicians should
b.e open-min~e? ~ut critical. Patients should be willing to constder the phystctan s recommendation seriously.
18.11. C~se study re: maternal vs. fetal rights.22-Janet
Rowen may be Incarcerated because she is pregnant. Her doctor,
Marion Smyth, thinks Janet drinks too much alcohol and has
repeatedly advised her of the risks her drinking poses to the
child she has chosen to have. Heavy alcohol use during pregnancy can result in "fetal alcohol syndrome." Infants with this
syndrome suffer from mental retardation and physical deformities and have an increased chance of dying shordy after binh.
Janet is unwilling to cut down on her drinking. Dr. Smyth is
seeking a court order that would incarcerate Janet for the duration of her pregnancy, forcing her to follow Dr. Smyth's medical
advice.
Research in medicine continues to reveal more and more
ways in which a baby's health can be jeopardized by what a
woman does during pregnancy. And, developments in genetics
and obstetrics continue to provide us with more and more
prenatal diagnostic tests and medical treatments that enable us
to prevent birth defects. Most women welcome these developments. There are some, however, who are unwilling to avoid
those activities or behaviors that could harm their offspring and
who refuse to undergo medical treatments that would prevent
birth defects.
As our knowledge of prevention and prenatal harm grows,
so too has public pressure to change the behavior of "noncompliant" pregnant women. Almost half of the maternal-fetal
specialists surveyed in a recent national study thought that
Andre, Oaue Andre and Velasquez, Manuel, "Forcing Pregnant Women to do
as they're Told: Matemal vs. Fet2.l Rights," Internet - By Claire Andre and
Manuel Velasque:t, Internet - http:/ / www.scu.edu/ ethics/pubtications/ iie/
22
v\ n2/ pregmmt.htmI.
CAS~ Sn'OII..S 0~ MF.OICAJ ETIU(-'
pregnant women who refused medJcal adv1ce and ~hereby . en·
dangered their future children ~hould be detained Jn hospttals
and forced to "follow doctors orders." A growing number of
legal cases throughout the U.S. show a trend wward forud
treatment of pregnant women--court ordered C2es~ean KC·
cions, mandatory diet restrictions and, as 1n Janet's case, ~­
ceration for failing to follow medical advice. But d~s I()Ciet1
have a right to control the behavior of pregnant women? Moral
opinion is sharply divided on the matter.
Those opposed to forced treatment of pregnant women argue that every person has a fundamental right to freedom o f
choice and control over his or her own life. Forcing a pregnant
woman to undergo medical treatment against her will or ro
behave in ways she does not freely choose violateS ~ righL
The decisions a woman makes during pregnancy are based on
her own circumstances, her own values, and her own preferences. Others have no right to impose on her r:hcir own judgments about what they think is best for her artd her fetUS, depriving her of her freedom to make her own choices and ro
control her own life.
The threat to freedom posed by forced treatment of pregnant women is not a minor threat, either. It is rare for a WOID20
to refuse medical advice that promises to benefit her fews and
poses little risk to her, and it is troubling when it happens. But if
we allow society to intervene in these cases, what will prevent us
from assuming wholesale control of women's lives during pregnancy? If pregnartt women are incarcerated to prevent them
from he~'! drinkir_tg, will we also seize them for drinking coff~
or exerctsmg too little, each of which could pose some risk to a
fetus according to some doctors. If pregnant women are com~
pelled to undergo surgery that would prevent their future child
from being born with handicaps, will they also be compelled to
402
BASIC~'
( ll' PIHI.JI'I'INU
M
IIOIC.AI. J1 ' RI!il'l\l lOI!NCU AN" ._,
"" r ,TIIICS
unde rgo amniocen tesis or g
.
h
h
·
cnettc scrceni
·
t ose andtcaps thnt could b
ng In order to detect
,
e prevented by such surgery?
[·urthermore fo rcin
en! treatment for ~he snkego~r~e~a~t wom~n t<~ submit to medi
tion on them that we d
.r ctuses l S to tmpose an obtiga
.
o not 1mposc o n oth
A
. .
re qwres that al l person s b
d
ers. nd, Jusuce
e treate equaUy 1
·
allow p eople t h e right to refuse med ' 1 . n our society, we
to refu
.
lCa treatment and the right
th
se to subordinate their desi res o r needs to the needs of
o .e rs .. We d o n 't, fo r example, force some people to donate
thelr kid neys,. b o ne marro w o r blood in order to benefit or even
to save th e lives o f o the r peo ple. Why, then, should pregnant
w o mer: be fo rced to undergo surgery o r to change their life·
styles tn . o rder to benefit a fetus? To requiie this of pregnant
women ts to demand from them something over and above
what we demand from the rest of society.
Finally, compelling a pregnant woman to foUow medical
advice in o rde r to benefit her fetu s will only cause more harm
than good. T o avoid being treated against their will or to avoid
being incarcerated, w o men with high·risk pregnancies and
there fo re the greatest need fo r prenatal care, will avoid doctors
o r will w ithho ld impo rtant informacion from their doctors
concerning their health. As a result, the health o f the fetus will
be placed in even greater jeopardy.
Those who suppo rt forced treatment o f pregnant .women
agree that every p e rson h as a right to freedom of ch01ce. But
when a woman decides to carry her pregnancy to. term, we .can
exp ect that a c hild will be born, and this fut~re child .has a n~ht
to be pro tecte d fro m avoidable harm. Certatn behavtors d~r~g
pregnancy are known to cause har~ to ~ffspring. P oor nutntlO~
can retard fetal gro wth and impau bratn development. Use o
.
ul . c tal ddiction Heavy alco h ol use can cause
her01 n can res t m 1e
a
·
.
.
,
mental retardation and physical malforrnaoons. Alten~g on~ s
diet o r refraining fro m alcoho l o r d rugs presents n o seoous o sk
to a
pre~nant wom2n'a hfe or hc:Urh Wh
h h d ..J
•
c:n a prewnnt woman
w n llS ectoed to giVe birth to a child engage~ tn aai¥laa rha
sh e .' couhld reaclsonably avoid and that will damage that du1d.
soc1ety as a uty to protect the future child even 1f thu ~
forc ing the pregnant woman to change her ~havsm.
Furthermore, it is argued, there are casea in wtuch a pn::gnan.t wo ma~·s. ri~ht to freedom of choice must be w~
agamst a child s nght to be born in a he:llthy auu:. There ue s
number of established prenatal medtcal treatmcnu w p«event
birth defects that pose little risk to pregnant women. including
the administration of certain drugs or low-risk in-utero surgesy.
The discomfort or inconvenience of taking a medication oc
undergoing a low-risk surgical procedure is a snu.ll price tO pay
to prevent a child from being born with hand.ic2ps. Society b2s a
right to prevent pregnant women who choose to h2ve children
from refusing to undergo medical treatments th2t would prevent
birth defects when such treatments pose little risk to their own
lives or health.
And, supporters contend, we need not fear t:btt for:a:d
treatment of pregnant women will lew to the public assuming
wholesale control of women's lives during pr~cy. Just as we
draw lines as to what does or doesn't constitute child abuse and
thus are grounds for taking a child from his or her p2tentS, so
we can distinguish between what does or doesn't constirute
harmful prenatal conduct, and thus are grounds for forced
treatment of pregnant women.
Mother or fetus? Where do our obligations lie? Our answer
will require a careful balancing of the values of ~om and
self-determinacion, and the value we place on the right to be
protected from harm.
404
CAsE Sn:OIES 0 :-1 M eDICAL ETIUO
18.12.
Case study on assisted
405
. "d
Donnelly loved life. But Matth
D
swct e.2.L_Matthew
the past thirty
ew onnelly wanted to die. For
uhse of X-rays. ~=: :.~;·~d:~d~:.:~ ~n ~e
ing in suicide is. Whether or not we as a society should pass laws
sanctioning "assisted suicide" has generated intense moral
controversy.
0
ad lost his nose, his left hand tw fin
. . Y· e
d
f hi .
'
o
gers on his nght hand
~ o . s Jaw. Hew~ left blind and was slowly deteriorat~
mg. ~ pam ~ .unrelentlng. Doctors estimated that he had a
year to liv e. Lymg 111 bed with teeth clenched from the ex
.
·
· h
.cruaatmg paul, : pleaded to be put out of his misery. Matthew
wanted to die now. His pleas went unanswered. Then one day
Matthew's brother H~old, ~ble to ignore Matthew'~ repeated
cry, remove.d a .30 caliber p1Stol from his dresser drawer, walked
to the hospital, and shot and killed his brother. Harold was tried
for murder.
:m
Rapid and dramatic developments in medicine and technology have given us the power to save more lives than was ever
possible in the past. Medicine has put at our disposal the means
to cure o r to reduce the suffering of people afflicted with diseases that were once fatal or r
tv.~ioful.
At the same time' however,
medical technology has given us the power to sustain the lives
(or, some would say, prolong the deaths) of patients whose
physical and mental capabilities cannot be restored, whose
degenerating conditions cannot be reversed, and whose pain
cannot be eliminated. As medicine struggles to pull more and
more people away from the edge of death, the plea that tortured,
deteriorated lives be merdfuUy ended grows louder and more
frequent. Califo rnian s are now being asked to support an initiative, entitled the Humane and Dignified Death Act, that would
allow a physician to end the life of a terminally ill paLient upon
the request of the pat.ient, pursuant to properly executed legal
documents. Under present law, suicide is not a crime, but assistAndre, Claire Andre and Veluc.tue, Manuel, "Au istcd Suicide: A Right or ll
Wrof18?" lnterner
http:/ /www.acu.edu/cthica/pubUcations/iie/vl n1I ·
IUtcide.hlml.
21
Supponers of legislation legalizing assisted suicide cl2.im
that all persons have a moral right to choose freely what they
will do with their lives as long as they inflict no harm on others.
This right of free choice includes the right to end one's life
when we choose. For most people, the right to end one's life is a
right they can easily exercise. But there are many who want to
die, but whose disease, handicap, or condition renders them
unable to end their lives in a dignified manner. When such
people ask for assistance in exercising their right to die, their
wishes should be respected.
Furthermore, it is argued, we ourselves have an obligation
to relieve the suffering of our fellow human beings and to
respect their dignity. Lying in our hospitals today are people
afflicted with excruciatingly painful and terminal conditions and
diseases that have left them permanently incapable of functioning in any dignified human fashion. They can only look forward
to lives filled with yet more suffering, degradation, and deterioration. When such people beg for a merciful end to their pain
and indignity, it is cruel and inhumane to refuse their pleas.
Compassion demands that we comply and cooperate.
Those who oppose any measures permitting assisted suicide argue that society has a moral duty to protect and to preserve all life. To allow people to assist others in destroying their
lives violates a fundamental duty we have to respect human life.
A society committed to preserving and protecting life should
not commission people to destroy it.
Further, opponents of assisted suicide claim that society
has a duty to oppose legislation that poses a threat to the lives of
innocent persons. And, laws that sanction assisted suicide inevi-
406
B Astes OF PHIUPPlNE MEDICAL J URISPRUDENCE AND ETHICS
tably will pose such a threat. If assisted suicide is allowed on the
basis of mercy or compassion, what will keep us from "assisting
in" and perhaps actively urging, the death of anyone whose life
we deem worthless or undesirable? What will keep the inconvenienced relatives of a patient from persuading him or her to
"voluntarily'' ask for death? What will become of people who,
once having signed a request to die, later change their minds,
but, because of their conditions, are unable to make their wishes
known? And, once we accept that only life of a certain quality is
worth living, where will we stop? When we devalue one life, we
devalue all lives. Who will speak for the severely handicapped
infant or the senile woman?
Finally, it is argued that sanctioning assisted suicide would
violate the rights of others. D octors and nurses might ft.nd
themselves "pressured, to cooperate in a patient's suicide. In
o rder to satisfy the desires of a patient wanting to die, ies unjust
to demand that others go again t their own deeply held convic.
tlons.
The ca e for a i t d uicid i
po erful one-appealing
our ca city £ r comp · n nd n obli tion to support
individu 1 hoic nd lf d t m1in ti n. . ut the case against
a i ted ui id
r ul ~ r it
t u of a fundat
n th ri ~k f hurlin down a slippery
p " t f r li~ . ith \ gi lation in the
h
hi 'h
u . are most unpor . .
>w. r l ~
of an • w •r
t nt , n 1t >
• .. t t
•r \' )t
.