LEGAL MEDICINE
• -branch of medicine that deals with the application
of medical knowledge to the purposes of law and
in the administration of justice
MEDICAL
JURISPRUDENCE
• deals with the aspect of law and legal
concepts in relation with the practice of
medicine
MEDICAL JURISPRUDENCE
includes:
• Licensure and regulatory laws;
• Physician-patient-hospital relationship
together with the other paramedical
personnel, their rights, duties and
obligations;
• Liabilities for non-compliance with the law.
PURPOSES
• To protect the public from charlatans;
• To promote professionalism and foster professional
interrelationship;
• To develop awareness of the rights, duties and obligations
of the patient, physician, and the hospital;
• To control the increasing number of medical malpractice
suits against physicians;
• To explain the purpose and procedure of certain
legislation;
• To study the need to amend, repeal our health care laws in
harmony with the recent scientific and social development.
ADVERSARIAL TRIAL SYSTEM
• Philippine courts is a court litigation where
there is competition of inconsistent version
of facts and theories in law during trial;
• Each party to the contest is given equal
opportunity to investigate the case, gather
and present all proofs in support of his
allegation, and give argument that his
contention is correct ;
• Ultimate purpose is for a just solution.
• “…….it often undermines the pursuit of truth as
the opposing parties seek to win at all cost without
the obligation to reveal the facts which may be
detrimental to their case. The lawyer aims to win
the fight not to help the court discover facts or
establish the truth.”
SOURCES OF LAW
• Constitution
• Laws enacted by the legislative body
• Decrees, Orders, Proclamation, Letters, CA, BP,
RA
• Administrative acts, orders, Rules and Regulation
• Local customs
• Generally accepted principles of International law
LAW AND THE PRACTICE
OF MEDICINE
• The State must maintain high standard of practice
by setting up rules and regulations with regards to
qualifications and procedure for the admission to
the profession. These are legal safeguards to
guarantee the safety of the patient and impose
liability to the practitioner who through his act or
omission causes damage or injury to the health
and welfare of the patient.
• The right to regulate the practice of medicine is
based on the police power of the state.
LICENSURE AND REGULATORY
LAWS
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ADMINISTRATIVE BODIES
BOARD OF MEDICAL EDUCATION
Primarily concerned with the standardization and regulation of medical
education
PROFESSIONAL
REGULATIONS COMMISSIONS
To have general supervision and regulation of all professions requiring
examinations which includes the practice of medicine
BOARD OF MEDICINE
Its primary duties are to give examinations for the registration of physicians
and supervision, control and regulation of the practice of medicine
BOARD OF MEDICAL EDUCATION
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Composition:
Chairman - Secretary of Education
Members - Secretary of Health
Director, Bureau of Private Schools
Chairman, Board of Medicine
Representative, PMA
Council of Deans,APMC
Dean, UP-College of Medicine
Functions:
1.
To determine and prescribe the requirements for admission into a recognized
college of Medicine;
2. To determine and prescribe requirements for the minimum physical facilities;
3.
To determine and prescribe the minimum number and qualifications of teaching
personnel;
4. To determine and prescribe the minimum required curriculum;
5. To authorize the implementation of experimental curriculum;
6. To accept applications for admission to a medical school;
7. To select, determine and approve hospitals for training;
8. To promulgate, prescribe and enforce the necessary rules and regulations.
PROFESSIONAL REGULATIONS
COMMISSION
• Composition:
Commissioner
Two Associate Commissioner
• Exercise of Power and Functions of the Commission
-exercise general administrative, executive and policymaking functions for the whole agency
BOARD OF MEDICINE
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Composition:
Six members appointed by the president from a
list submitted by the Executive Council of the PMA.
Qualifications:
- Natural-born citizen;
- Duly-registered physician;
- In the practice of medicine for at least 10 years;
- Of good moral character and of recognized standing in the medical
profession as certified by PMA;
• - Not a member of any faculty of any medical school (including any
pecuniary interest).
Powers, Functions and Responsibilities:
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1. To determine and prepare the contents of the licensure examinations;
2. To promulgate such rules and regulations for the proper conduct of the
examinations, correction and registration;
3. To administer oath;
4. To study the conditions affecting the practice of medicine;
5. To investigate violations, issue summons, subpoena and subpoena duces
tecum;
6. To conduct hearings or investigations of administrative cases filed before
them;
7. To promulgate decisions on such administrative cases subject to the review
of the Commission;
8. To issue certificate of registration;
9. To suspend, revoke or reissue certificate of registration for causes provided
by law or by the rules and regulations promulgated;
10.To promulgate, with the approval of PRC, rules and regulations in harmony
with the provisions of the Medical Act of 1959 and necessary for the proper
practice of medicine.
ADMISSION TO THE PRACTICE OF
MEDICINE
Prerequisites:
• 1. Minimum age requirement
•
- at least 21 years of age
• 2. Proper Educational Background
Requirements for Admission in the College of Medicine
Holder of a Bachelor’s degree;
Not convicted of any crime involving moral turpitude;
Certificate of Eligibility from the Board of Medical Education;
Good moral character
.
• 3. Examination Requirements
- must have passed the corresponding Board Examination
• Preliminary Examination
-At least 19 years of age;
- Of good moral character;
-Have completed the first two years of the medical course;
• Final or Complete Examination
-Citizen of the Philippines or of any country who has submitted
competent and conclusive
- documentary evidence confirmed
by the DFA
showing that his country’s existing laws permit citizens
of the Philippines to practice medicine
under the same rules and
regulations governing citizens thereof (RECIPROCITY RULE).
• 4. Holder of certificate of registration
• No issuance to any candidate who has been:
-Convicted by a court of competent jurisdiction of any crime involving
moral turpitude;
-Found guilty of immoral or dishonorable conduct after investigation
by the Board of Medicine;
-Declared to be of unsound mind.
Scope of Examination:
• Preliminary - Anatomy and Histology
•
Physiology
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Biochemistry
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Microbiology and Parasitology
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Final - Pharmacology and Therapeutics
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Pathology
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Medicine
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Obstetrics and Gynecology
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Pediatrics and Nutrition
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Surgery and Ophthalmology,
• Otorhinolaryngology
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Preventive Medicine and Public Health
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Legal Medicine, Ethics and Medical
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Jurisprudence
PRACTICE OF MEDICINE
• What is the “practice of medicine”?
• It is a privilege or franchise granted by the State to
any person to perform medical acts upon
• compliance with law, that is, the Medical Act of
1959 as amended which has been promulgated by
the State in the exercise of police power to protect
its citizenry from unqualified practitioners of
medicine.
• It is diagnosing and applying and the usage of
medicine and drugs for curing, mitigating, or
relieving bodily disease or conditions.
ACTS CONSTITUTING THE
PRACTICE OF MEDICINE
(pursuant to Sec.10, Art. III of
the Medical Act of 1959 as
amended):
• A) who shall for compensation, fee, reward in any form
paid to him directly or through another, or even without
the same, physically examine any person, and diagnose,
treat, operate or prescribe any remedy for human disease,
injury, deformity, physical, mental, psychical condition or
any ailment, real or imaginary, regardless of the nature of
the remedy or treatment administered, prescribed or
recommended;
• B) who shall by means of signs, cards, advertisement,
written or printed matter, or through the radio, television
or any other means of communication, either offer or
undertake by any means or method to diagnose, treat,
operate, or prescribe any remedy for human disease,
injury, deformity, physical, mental or psychical
condition;
• C) who shall falsely use the title of M.D. after his name,
shall be considered as engaged in the practice of
medicine.
• By DECISIONS OF COURTS are not
considered to constitute practice of
medicine:
• a) One who takes bp reading;
• b) Application of medicated massage;
• c) Hospital;
• d) Nurse anesthesist
Exemptions
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By PROVISIONS OF LAW are not considered to constitute practice of
medicine (Sec.11, Art. III, Medical Act of 1959 as amended):
a) Any medical student duly enrolled in an approved medical college;
b) dentist;
c) physiotherapist;
d) optometrist;
e) Any person who renders any service gratuitously in cases of emergency
or in places where the services of a physician, nurse or midwife are not
available;
f) Any person who administers or recommends any household remedy as
per classification of existing Pharmacy Laws;
g) Clinical psychologist with the prescription and direct supervision of a
physician;
Prosthetist.
Faith Healing
-There is nothing in the Medical Act of 1959 exempting it
from the definition of the acts which constitute practice of
medicine;
• -Related to constitutional guarantee to religious freedom
(freedom to believe and freedom to act in accordance with
one’s belief);
• -Acted in pursuance of his religious belief and with the
tenets of his church he professes, not deemed to be a
practice of medicine but part of his religious freedom.
ILLEGAL PRACTICE OF MEDICINE
•
Practice of medicine by any person not qualified and not
duly-admitted to perform medical acts in compliance with
law.
Penalties
• Pursuant to Sec.28, Art. IV, Medical Act of 1959 as
amended – Any person found guilty of “illegal practice”
shall be punished by a fine of not less than one thousand
pesos or more than ten thousand pesos with subsidiary
imprisonment in case of insolvency or by imprisonment of
not less than one year no more than five years, or by both
such fine and imprisonment, in the discretion of the court.
• 1. Those who have complied with the
prerequisites to the practice of medicine in
accordance with Sec. 8, Art. III, Medical Act of
1959 as amended;
• 2. Those who can have limited practice without any
certificate of registration in accordance with Sec.12,
Art. III, Medical Act of 1959 as amended:
Exclusive consultation in specific and definite cases;
Attached to international bodies to perform certain definite work in
the Phils;
Commissioned medical officers stationed in the Phils in their own
territorial jurisdiction;
Exchange professors in special branches of medicine;
Medical students who have completed the first four years of medical
course, graduates of medicine and registered nurses who may be
given limited and special authorization by the DOH;
• 3. “Balikbayan” Physicians pursuant to PD 541,
Allowing Former Filipino Professionals to
Practice Their Respective Professions in the
Philippines
• Proviso:
• - Of good standing prior to their departure and
in their adopted country;
• - Have registered with PRC and paid their
professional fee;
• Pay the corresponding income tax;
• 4. Foreign physicians qualified to practice by
Reciprocity Rule or by endorsement;
• 5. Medical Students pursuant to Sec.11(a) and
Sec.12(d), Art.III, Medical Act of 1959 as
amended;
• 6. Limited practitioners of medicine
• - Those that are governed by specific licensure
laws
Rationale why artificial persons
cannot practice medicine
• -Cannot be subjected to licensure examinations as
required by law;
• -Practice of medicine may be employed and
controlled by unqualified physicians;
• -Professional relationship between the patient and
the physician will be impaired;
• -Deprivation of free choice of physicians .
PHYSICIAN
• “…..is a person who after completing his
secondary education follows a prescribed course
of medicine at a recognized university or medical
school, at the successful completion of which, is
legally licensed to practice medicine by the
responsible authorities and is capable of
undertaking the prevention, diagnosis, and
treatment of human illness by the exercising
independent judgment and without supervision.”
(WHO)
• According to Justice Malholm
•
“ CONSTITUTION is that written
instrument enacted by direct actions of the people
by which the fundamental powers of the
government are established, defined, and by which
these powers are distributed among the several
departments for their safe and useful exercise for
the benefit of the body politic.”
Purpose
• To prescribe the permanent framework of a
system of government, to assign to the
several departments their respective powers
and duties, and to establish certain first
principles on which the government is
founded. (11Am. Jur. 606)
ESSENTIAL PARTS OF A
CONSTITUTION
Constitution of Liberty
Constitution of Government
Constitution of Sovereignty
• AMENDMENT isolated or piecemeal
change in the constitution while REVISION
is the revamp or the rewriting of the entire
instrument
PHYSICIAN-PATIENT
RELATIONSHIP
• Contract - is the meeting of minds between two
persons whereby one binds himself with respect
to the other, to give something or to render some
service(Art.1305, NCC)
Nature of the relationship
• Consensual - based on mutual consent both parties
• Fiduciary - based on mutual trust and confidence
Requisites of a contractual
relationship
•
Consent – manifested by the meeting of the offer and
the acceptance upon the thing and the cause which are to
constitute the contract (Art.1319NCC)
•
Object – the subject matter of the contract which is the
medical service which the patient wants to be rendered to
him by his physician
•
Cause – is the consideration or the factor that
instigated the physician to render the medical service to the
patient, which could be remuneratory or an act of liberality
•
Forms of Physician-Patient
Relationship
1. Expressed – explicitly stated orally or in writing
2.Implied – the existence can be inferred from the
acts of the contracting parties. Inferred by law as a
matter of reason and justice for their acts or
conduct
Some Instances where there is no Physician-Patient
Relationship by DECISIONS OF COURTS
• 1. Pre-employment PE for purposes of determining
whether an applicant is suitable for employment;
• 2. PE for eligibility for insurance;
• 3. Physician appointed by court to examine the accused;
• 4. In performing an autopsy;
• 5. Casual consultation in an unordinary place.
• PSYCHOLOGICAL PATTERNS OF PHYSICIANPATIENT RELATIONSHIP
• ACTIVITY-PASSIVITY RELATION
•
No interaction between physician and patient
because the patient is unable to contribute activity. This is
characteristic in an emergency cases when the patient is
unconscious.
• GUIDANCE-COOPERATION RELATION
•
Patient is conscious and suffering from pain, anxiety
and other distressing symptoms, he seeks help and willing
to cooperate. The physician is in a position of trust.
• MUTUAL PARTICIPATION RELATION
•
It is in the nature of a negotiated agreement between
equal parties.
DUTIES and OBLIGATIONS Imposed
on the Physician in the Physician-Patient
Relationship
• 1. He should posses the knowledge and skill of
which an average physician is concerned;
• General practitioner vs Specialist
• 2. He should use such knowledge and skill with
ordinary care and diligence;
– “locality rule” – the standard of care is measured by the degree of care
in the locality
– “similar locality rule” – diligence is determined when the other
physicians in the locality or similar locality could have acted the same
way
– “national standard of care” - the diligence is determined on what is
applicable on a national standard basis
• 3. He is obliged to exercise the best judgment;
• 4. He has the duty to observe utmost good faith.
N.B.
• - Physician-Patient relationship does not imply
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guaranty or any promise that the treatment will
be successful
- it does not imply any promise or guaranty that
the treatment will benefit the patient
- it does not imply any promise or guaranty that
the treatment will produce certain result
- it does not promise or guaranty that the
treatment will not harm the patient
- it does not promise that the physician will not
commit errors in an honest way
DUTIES and OBLIGATIONS Imposed on
the Patient in the Course of the PhysicianPatient Relationship
• 1. He must give an honest medical history;
• 2. He must inform the physician of what occurred
in the course of the treatment;
• 3. He must cooperate and follow the instructions,
orders and suggestions of the physician
• 4. He must state whether he understands the
contemplated course of action;
• He must exercise the prudence to be expected of
an ordinary patient under the same
circumstances.
STAGES OF PHYSICIAN-PATIENT
RELATIONSHIP
• COMMENCEMENT
•
It is the very time the physician is
obliged to comply with the legal duties
and obligations to his patient.
TERMINATION
• It is the time when the duties and obligations by a
physician to his patient ceases. The following are
some ways of termination of the relationship:
– 1.Recovery of the patient or when the physician considers that his
medical services will no longer be beneficial to the patient;
– 2. Withdrawal of the physician provided: a) with consent of the patient,
and b) patient is given ample time and notice;
– 3. Discharge of the physician by the patient;
– 4. Death of either party;
– 5. Incapacity of the physician
– 6. Fulfillment of the obligations stipulated in the contract;
– 7. In emergency cases, when the physician of choice of the patient is
already available or when the condition of emergency ceases;
– 8. Expiration of the period as stipulated;
– 9. Mutual agreement for its termination.
RIGHTS OF PHYSICIAN
INHERENT RIGHTS
to choose patients
to limit practice of medicine
to determine appropriate management
procedures
to avail of hospital services
INCIDENTAL RIGHTS
right of way while responding to emergency
right of exemption from execution of instruments and
Library to hold certain public/private offices to perform certain
services to compensation right to membership in medical societies
RIGHTS GENERALLY ENJOYED BY EVERY CITIZEN
Pursuant to the provisions of Art. III, bill of rights, Philippine
Constitution 1987
RIGHT TO CHOOSE PATIENTS
• - Any person who is given right to practice medicine is not obliged to
practice medicine.
• Cannot
be
compelled
to
accept
professional
employment.
•
• NB: The law does not give any qualification the right of the
physician to choose his patient, however, the Code of Medical
Ethics and RA 6615 provides otherwise in cases of emergency.
•
• Related provisions
• Art II, Sec.2 Code of Ethics
•
“xxx…free to choose whom he will serve…xxx..always
respond to any request for his assistance in emergency….xxx”
•
• Art. II, Sec.3 Code of Ethics
• “In cases of emergency, xxx ….a physician should administer at least
first aid treatment and then refer to a more qualified and competent
physician ……xxx”
• Sec.1 RA 6615
•
“All government and private hospitals…xxx .are required to
render immediate emergency medical assistance…xxx.”
• Sec.24 No.12, Medical Act of 1959
•
“”xxx…….Although the ethical rule obliges a physician to attend
to an emergency, his failure to respond to it may not make him liable if
in so doing, there is a risk to his life.
•
Refusal of a physician to attend to a patient in danger of death is
not a sufficient ground for revocation or suspension of his registration
if there is a risk to the physician’s life
RIGHT TO LIMIT HIS MEDICAL
PRACTICE
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field of specialty
private clinic or hospital
within a political/geographical boundary
certain days of the week/hours of the day
certain class of people
with due regard to dictate of conscience
retirement
imposed by the public, religion, professional
ethics, medical society, law, contract
RIGHT TO AVAIL OF HOSPITAL
SERVICES
• RIGHT TO DERTEMINE THE APPROPRIATE
MANAGEMENT PROCEDURE
• Doctrine of Superior Knowledge
•
- the physician has superior knowledge and the patient
just follows orders or instructions and usually places
himself in the command and control of the physician.
•
• RIGHT OF WAY WHILE RESPONDING TO THE
CALL OF EMERGENCY
RIGHT OF EXEMPTION
FROM EXECUTION OF
INSTRUMENTS AND
LIBRARY
Rule 39, Sec.12, Rules of
Court
• RIGHT TO HOLD CERTAIN PUBLIC AND
PRIVATE OFFICES which can only be filled up by
physicians
• RIGHT TO PERFORM CERTAIN SERVICES
• RIGHT TO MEMBERSHIP IN MEDICAL
SOCIETIES
• - Any qualified medical practitioner has the right to become a
member of the PMA through one of its component society.
• - Membership in a medical society may be voluntary or involuntary
Philippine Medical Care Act of 1969(RA 6111 as
amended) provides that membership to the PMA
is a requirement before a physician can practice
medicine under the Medicare.
RIGHT TO COMPENSATION
• - Based on the physician-patient contractual
relationship;
• - Existence of friendship does not imply
gratuitous services.
Art IV, Sec. 2, Code of Ethics
• “…should willingly render gratuitous service to a
colleague, to his wife and minor children or even
parents provided the latter are aged and being
supported by the colleague. He should however,
be
furnished
the
necessary
traveling
expenses…xxx…this provision shall not apply to
physicians who are no longer in the active
practice….xxx.”
Doctrine of Unjust Enrichment
- no one must enrich himself at the expense of
others
- “service rendered service paid”
Kinds of Medical Fees:
• 1. Simple Contractual Fee – specifically stating
the value of such medical service, either orally or
in writing
• 2. Retainer Fee – measured by the space of time
rendered by patient
• 3. Contingent Fee – depends upon the failure of
the treatment instituted
• Dichotomous Fee (Fee splitting) – the physician
may require the services of a person who may act
as agent to solicit patients, and the agent will share
in the medical fee.
Art. III, Sec 5, Code of Ethics
“xxx….solicitation of patients, directly or
indirectly, through solicitors or agents, is
unethical.”
• 1. Straight Fee – for the amount tendered by the
patient to the physician, the latter shall be
responsible for the payment of hospital bill, lab
fees, medicines, and other incidental expenses;
• - this kind of fee is unethical because the
amount wagers with the unforceable
contingencies .
Method of Collection of Payment for
Medical Services
• 1. Extra judicial – billing or referral to a bill
collection agency
• 2. Judicial methods
Facts to be Proven in Court
a) Physician employed is duly qualified and licensed;
b) The physician has rendered professional service to the patient;
c) The professional fee demanded is reasonable;
d) The person liable for the payment is the defendant.
• The obligation to pay devolves on the patient
himself provided he is of legal age, of sound
mind and has the capacity to enter into a
contractual relation.
• If the patient dies or becomes legally
incapacitated to pay, medical fee shall be made
from the following persons in order:
1. spouse;
2. descendants, of the nearest degree;
3. ascendants, of the nearest degree;
4. brothers and sisters.
• NB.
• Implied promise to pay the physician by the benefactor of
the medical services rendered in emergency cases.
Instances where the physician cannot
recover professional fees:
1. Agreement that the service is gratuitous;
2. In government charity hospitals, health centers and other
similar health units;
3. Rendered in private charitable institutions if expressly
gratuitous to the indigent patients;
4. Waiver on the part of the physician;
5. Breach of contract;
6. When the physician cannot charge the patient pursuant to
the Code of Ethics;
7. Those covered by Phil health;
8. Medical services rendered under a contract of
employment unless expressly provided otherwise.
RIGHTS OF PATIENTS
• 1.
Right to give consent to diagnostic and
treatment procedures
• 2. Right to religious belief
• 3. Right of privacy
• 4. Right to disclosure of information
• 5. Right to confidential information
• 6. Right to choose his physician
• 7. Right of treatment
• Right to refuse necessary treatments
RIGHT TO GIVE CONSENT TO
DIANOSTIC PROCEDURES
• Obligations of the Physician to Inform the
Patient:
• 1. Diagnosis
• 2. General nature of the contemplated procedure
• 1. Risk involved
• 2. Prospect of success
• 3. Potential danger if not applied
• 4. Alternative methods of treatment
•
• “….patient is the final arbiter of what must be
done with his body.”
Bases of Consent
• 1. The physician-patient relationship is
fiduciary in nature.
• 2. Patient’s right to self-determination.
• 3. Contractual relationship.
Purposes
• 1.To
protect
the
patient
from
unnecessary/unwarranted procedure applied
to him without knowledge
• 2. To protect the physician from any
consequences for failure to comply with
legal requirements
Instances When Consent Is Not
Necessary
• 1. In cases of emergency, there is an “implied
consent” or the physician is “privilege because he
is reasonably entitled to assume consent
• 2. When the law made it compulsory for everyone
to submit to the procedure
Requisites of a Valid Consent
• 1. Informed or enlightened consent
• 2. Voluntary
• 3. Subject matter must be legal
Forms of consent
• 1. Expressed consent – written or oral
• 2. Implied consent may be deduced from
the conduct of the patient
Scope of the Consent
• 1. General or Blanket consent
• 2. Limited or conditional consent
• 3. Non-liability or exculpatory clause

Informed/Enlightened Consent
• awareness and assent
• full disclosure of facts and willingness of the patient to submit
• Quantum of Information Necessary to Form the
Basis of a Valid Consent
• 1. Nature of his condition;
• 2. Natured of proposed treatment or procedure;
• 3. Possible alternative methods;
• 4. Risk involved;
• 5. Chances of success or failure
• Consent must be given freely or voluntarily
• Persons Who Can Give consent
– 1. Patient ;
– 2. If patient is minor, consent must be obtained from the parents;
– 3. In the absence of the parents, consent of the grandparents must
be obtained, paternal grandparents having preference;
– 4. In the absence of parents and grandparents, eldest brother or
sister, provided one is of age and not disqualified by law to give
consent;
– 5. Other person who may give consent having substitute parental
authority.
 Subject matter is legal
•
The subject matter or procedure applied
to the patient and which the patient
consented must not be that which the law
penalizes or against public policy.
NB:
• - consent of minor is not valid if the procedure
will not benefit him
• - expressed refusal of a minor to surgery shall not
prevail over the existing emergency
• - Doctrine of parens patriae , the court may grant
consent for the minor.
RIGHT TO RELIGIOUS
BELIEF
• - Art. III , Sec. 5, Philippine Constitution
•
“No law shall be made respecting an
establishment of religion or prohibiting the free
exercise therof. The free exercise and enjoyment
of religious profession and worship, without
discrimination or preference, shall forever be
allowed. No religious test shall be required for the
exercise of civil or political rights.”
RIGHT OF PRIVACY
• RIGHT
OF
DISCLOSURE
OF
INFORMATION
•
• the physician-patient relationship being fiduciary
in nature, the physician is obliged to make full and
frank disclosure to the patient or any person who
may act on his behalf all he pertinent facts relative
to his illness
Art. 1339, Civil Code states that
“xxx……failure to disclose pacts, when
there is duty to reveal them, as when the
parties are bound by confidential elations,
constitutes fraud.”
RIGHT OF CONFIDENTIAL INFORMATION
•
•
Statutory Privileged Communication
Pursuant to the Rules of Court, Rule 130, Sec. 24(c), a person
authorized to practice medicine, surgery or obstetrics cannot in a civil case,
without the consent of the patient, be examined as to any information which
he may have acquired in attending such patient in a professional capacity,
which information was necessary to enable him to act in that capacity, and
which would blacken the character of the patient.
•
Ethical/Professional Confidential Information
Pursuant to Art. II,Sec.6, Code of Medical Ethics, 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 death. He should never
divulge this confidential information, or anything that may reflect upon the
moral character of the person involved, except when it is required in the
interest of justice, public health or public safety.
• Some instances where confidentiality is not
applicable:
– 1. When such disclosure is necessary to serve
the best interest of justice;
– 2. When the disclosure will serve public health
and safety;
– 3. When the patient waives its confidentiality.
RIGHT TO CHOOSE HIS
PHYSICIANS
RIGHT TO TREATMENT
• - In emergency cases the patient has the right to treatment.
•
• Sec. 1, 1st par, RA 6615
• Provides that “xxx….all government and private hospital or clinics
duly licensed to operate are required to render immediate medical
assistance and to provide facilities and medicine within its capabilities
to patients in emergency cases who are in danger of dying and or
suffered serious physical injuries…xxx.”
•
• Art II, Sec.3 of the Code of Medical Ethics
•
“In cases of emergency, wherein immediate action is necessary, a
physician should administer at least 1st aid treatment and then refer the
patient to a more qualified and competent physician if the case does
not fall within his particular line.”
RIGHT TO REFUSE TREATMENT
• - In the legal sense, every man of adult age and of sound mind has the
right to determine what must be done in his own body. A man is the
master of his own self and may expressly prohibit a life-saving
surgery or medical treatment.
• - Doctrine of parens patria, the State has the right to assume
guardianship when the child is neglected by the parents to have the
child treated, and parents have no right to base it on religious beliefs
or any other grounds.
• - When the law provides for treatment, the patient has no right to
refuse treatment
• - The social commitment of the physician is to sustain life and relieve
suffering. Where the performance of one’s duty conflicts with the
other, the choice of the patient, or his family or legal representative if
incompetent to act on his own behalf, should prevail. In the absence
of the patient’s choice or authorized proxy, the physician must act in
the best interest of the patient
LIABILITIES OF PHYSICIAN
•
ADMINISTRATIVE
– Right to practice is temporarily withdrawn from the physician;
– A valid exercise of the police power of the State;
– Laws: Medical Act of 1959 as amended including the Code of
Ethics
and Rules and Regulations of the PRC;
– Penalty: reprimand, suspension, to revocation of license.
•
CRIMINAL
– An act or omission which constitute a crime by the physician;
– Laws: Revised Penal Code and other special laws;
– Penalty: imprisonment and/or fine.
•
CIVIL
– Awarded against a physician to compensate for theinjury he
suffered on account of the physician’s act or omission as a breach
of the contractual relationship of both parties;
– Laws. Civil Code of the Philippines and other related laws;
– Art. 100, RPC states that “ Every person criminally liable is
civilly liable.”Penalty: damages
ADMINISTRATIVE LIABILITIES
• Quantum of evidence needed: substantial
evidence, such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion
• Administrative Due Process:
–
–
–
–
–
1. Right to hearing;
2. Tribunal must consider the evidence presented;
3. Decision must have something to support itself;
4. Evidence must be substantial;
5. Decision must be based on the evidence adduced at the hearing, or at
least contained in the record and disclosed to the parties;
– 6.
The Board or its judges must act on its or their independent
consideration of the facts and the law of the case, and not simply accept
the views of a subordinate in arriving at a decision. (Ang Tibay vs.
CIR)
GROUNDS FOR ADMINISTRATIVE
LIABILITIES
Sec.24, Art.III, Medical Act of 1959 as
amended

Personal Disqualifications:
– 1. Immoral or dishonorable conduct;
– 2. Insanity;
– 3. Gross negligence, ignorance or incompetence resulting
in an injury to or death of the patient;
– 4.
Addiction to alcoholic beverages or to any habitforming drug rendering him incompetent to practice
medicine.
–

Criminal Acts:
– 1. Conviction by a court of competent jurisdiction of
any criminal offense involving moral turpitude
– 2. Fraud in the acquisition of the certificate of
registration;
– 3. Performance of or aiding in any criminal abortion
– 4. Knowingly issuing false medical certificate;
– 5. Aiding or acting as dummy of an unqualified or
unregistered person to practice medicine.
Unprofessional Conduct
– 1. False or extravagant or unethical advertisements
wherein other things than his name, profession,
limitation of practice, clinic hours, office and home
address, are mentioned;
– 2. Issuing any statement or spreading any news or
rumor which is derogatory to the character and
reputation of another physician without justification;
– 3. Violation of any of the Code of Ethics as approved
by the PMA.
CRIMINAL LIABILITIES
• A criminal act is an outraged to the sovereignty of the
State so it must be instituted in the name of the sovereign
people as party-plaintiff (People of the Philippines vs X)
• Quantum of evidence is proof beyond reasonable doubt.
This does not mean absolute certainty as excluding
possibility of error but only mean moral certainty, or that
degree which produces conviction in an unprejudiced
mind (Rule 133, Sec. 2, Rules of Court)
• Presumption of Innocence and Equipoise Rule
• Conviction of a physician, aside from
imprisonment and/or fine, his registration may be
cancelled or revoked if:
– a. The law imposes revocation of the license;
– b. The crime wherein the physician was found guilty involved
moral turpitude.
Incidental to the practice of medicine:
• Imprudence and Negligence- Art.365, Revised Penal Code
•
“Any person who, by reckless imprudence, shall commit any
act which, had it been intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its maximum period to
prision correctional in its medium period, if it would have constituted
a less grave felony, the penalty of arresto mayor in its minimum
periods shall be imposed; if it would have constituted a light felony,
the penalty of arresto menor shall be imposed…xxx.”
•
• Imprudence – deficiency of action or failing to take the necessary
precaution once they are foreseen.
•
• Reckless imprudence – voluntary, without malice, doing or
failing to do an act which results from from material damage by
reason of inexcusable lack of precaution on the part of the person
performing the act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
•
• Simple imprudence – consist in the lack of precaution displayed
in those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest.
•
• Negligence- indicates a deficiency of perception or when the
wrongful act maybe avoided by paying proper attention and
using due diligence in foreseeing them.
CIVIL LIABILITIES
• A civil suit filed against physician and/or hospitals is
premised on recovery of damages for their wrongful
act or of employees.
Cause of action for damages is based on:
• 1. Breach of Contract
– physician-patient relationship
– specific stipulations in the contract
•
In an action for breach of contract, the negligence of the
doctor is not an issue, for if the doctor makes contract to
effect a cure and fails to do so, he is liable for breach of
contract even though he uses the highest possible
professional skill.
• 2. Tort(Quasi-delict )
• - Legal wrongdoing independent of a contract
• - Primary basis is negligence or fault of the physician as
the one directly responsible for the injury sustained by the
patient
• - Ordinarily, any malpractice action is based on torts or
quasi-delict in as much as negligence is usually a ground
for injury.
• Art. 2176 of the Civil Code provides that
“Whoever by act or omission causes damage to
another, there being fault or negligence, is
obliged to pay for the damage done. Such fault
or negligence , if there is no pre-existing
contractual relation between the parties, is
called quasi-delict…xxx.”
MEDICAL MALPRACTICE
– failure of a physician to properly perform the duty which devolves upon
him in his professional relation to his patient which results to injury.
– It may be defined as bad or unskillful practice of medicine resulting to
injury of the patient or failure on the part of the physician to exercise the
degree of care, skill and diligence, as to treatment in a manner contrary to
accepted standards of medicine resulting to injury to the patient.
• Elements:
• 1. The physician has a duty to the patient;
• 2. The physician failed to perform such duty to his
patient;
• 3. As a consequence of the failure, injury was sustained
by the patient;
• 4. The failure of the physician is the proximate cause of
the injury sustained by the patient.
• Criminal medical malpractice, the act or omission complained of must
be punishable by law at the time of commission or omission.
• Proximate Cause – is that cause, which,
in
natural
continuous
sequence,
unbroken by an efficient intervening
cause, produces the injury and without
which the result would not have
occurred.
•
– 1. There must be a direct physical connection between
the wrongful act of the physician and the injury
sustained by the patient.
– 2. The cause or the wrongful act of the physician must
be efficient and must not be too remote from the
development of the injury suffered by the patient.
– 3. The result must be the natural continuous and
probable consequences.
• Doctrine
Cause
of
Efficient
Intervening
In the causal connection between the
negligence of the physician and the
injury sustained by the patient, there
may be an efficient intervening cause
which is the proximate cause of the
injury.
LEGAL PRINCIPLES AND DOCTRINES APPLIED IN
MEDICAL MALPRACTICE CASES
• Doctrine of Vicarious Liability
–o
–o
–o
•
•
•
•
•
•
•
Doctrine of Ostensible Agent
Borrowed Servant Doctrine
Captain of the Ship Doctrine
Doctrine of Res Ipsa Loquitor
Doctrine of Common Knowledge
Doctrine of Contributory Negligence
Doctrine of Assumption of Risk
Doctrine of Last Clear Chance
Fellow Servant Doctrine
Rescue Doctrine
DOCTRINE OF VICARIOUS
LIABILITY
• -Doctrine of Imputed Negligence/Command
Responsibility.
• -Vicarious liability means the responsibility of a
person, who is not negligent, for the wrongful
conduct or negligence of another.
• Art. 2180, Civil Code of the Philippines
•
Obligations is demandable not only for ones own acts or
omission but also fort those persons whom one is responsible
•
“….xxx the owners or managers of an establishment or
enterprise are likewise responsible for damages caused by
their employees in the service of the branches in which the
latter are employed or on the occassion of their functions…
•
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned task, even though the former are not engaged in
any business or industry…
•
The responsibility treated of this article shall cease when
the person herein mentioned prove that they observe all the
diligence of a good father of a family to prevent injury.”
DOCTRINE OF OSTENSIBLE AGENT
• - In cases wherein the employees are at the same
time are independent contractors of the hospital;
• - Because of this peculiar situation, they are
considered ostensible agents and therefore, the
hospital must be held liable for their negligent
acts.(pathologist, radiologist, anesthesiologist).
BORROWED SERVANT DOCTRINE
• Ordinarily, resident physicians, nurses and other personnel
of the hospital are employees or servants of the hospital;
• In some instances, they are under the temporary
supervision and control of another other than their
employer while performing their duties;
• By fiction of law, they are deemed borrowed from the
hospital by someone and for any wrongful act committed by
them during the period, their temporary employer must be
held liable for the discharge of their acts and duties;
• In the determination whether one is a borrowed servant, it
is necessary that he is not only subjected to the control of
another with regard to the work done and the manner of
performing it but also that the work to be done is for the
benefit of the temporary employer.
CAPTAIN-OF-THE-SHIP DOCTRINE
• - This doctrine innunciates 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.
REASONS FOR APPLICATION OF THE
DOCTRINE OF VICARIOUS LIABILITY
• 1. Deep pocket theory;
• 2. The employer has the power to select his
employee and to control his acts;
• 3. Since the employer benefits monetarily from
the employee, the employer has to bear the loss
when neither the employer nor the employee is at
fault;
• 4. To treat them as operating expense.
DOCTRINE OF RES IPSA LOQUITOR
– - “The thing speaks for itself”; nature of the wrongful act or injury
is suggestive of negligence.
– - General rule: expert testimony is necessary to prove that a
physician has done a negligent act or that has deviated from the
standard of medical practice.
• Requisites of Res Ipsa Loquitor Doctrine:
• 1.The accident must be of a kind which ordinarily does not
occur in the absence of someone’s negligence;
• 1. It must be caused by an agency or instrumentality within
the exclusive control of the defendant;
• 2. It must not have been due to any voluntary action or
contribution on the part of the plaintiff.
Some cases wherein the Doctrine of Res
Ipsa Loquitor has been applied:
• 1. Objects left in the patient’s body at the time of
caesarian section;
• 2. Injury to a healthy part of the body;
• 3. Removal of a wrong part of the body when
another part wad intended;
• 4.
Infection resulting from unsterilized
instruments;
• 5.
Failure to take radiographs to diagnose a
possible fracture;
Instances where the Doctrine of Res Ipsa
Loquitor does not apply:
• 1. Where the Doctrine of Calculated Risk is applicable;
• When an accepted method of medical treatment involves
hazards which may produce injurious results regardless of
the care exercised by the physician.
• 2. Bad Result Rule;
• 3.
Honest Errors of judgment as to Appropriate
Procedure;
• 4. Mistake in the Diagnosis.
•
• - In most medical malpractice suits, there is a necessity for
a physician to give his expert medical opinion to prove
whether acts or omissions constitute medical negligence.
This doctrine has been regarded as rule of sympathy to
counteract the ‘conspiracy of silence’
• According to one of the most distinguished jurist(Canada),
Justice Mignault:
•
•
“……the practice of medicine and surgery is
‘indispensable to humanity’ and should not be fettered by
rules and responsibility so strict as to exact an
‘infallibility’ on the part of the physician which he does
not possess.”
•
• “…………we would be doing a disservice to the
community at large if we were to impose liabilities on
hospitals and doctors for everything that goes wrong.
Doctors would be led to think more of their own safety
than the good of the patients. Initiative would be stiffed
and confidence shaken.”
•
DOCTRINE OF CONTRIBUTORY
NEGLIGENCE
• - Doctrine of Common Fault
• - It has been defined as conduct on the part of the
plaintiff or injured party, contributing as a legal
cause to the harm he has suffered, which falls
below the standard which he is required to
conform to his own protection.
• - It is the act or omission amounting to want of
care on the part of the complaining party which,
concurring with the defendant’s negligence, is the
proximate cause of the injury.
Related Civil Code Provisions
• Art. 2179, Civil Code
• “ 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 injury being the defendant’s
lack of due care, the plaintiff may recover
damages, but the court may mitigate the damages
to be awarded.”
Art.2214, Civil Code
• In quasi-delicts, the contributory negligence of the
plaintiff shall reduce the damages that he may
recover.”
Some Instances where there is contributory negligence:
• 1. Failure to give the physician an accurate history;
• 2. Failure to follow the treatment recommended by the
physician;
• 3.
Leaving the hospital against the advice of the
physician;
• 4. Failure to seek further medical assistance if symptoms
persist.
Doctrine of Superior Knowledge
• In the physician-patient relationship, the physician
has superior knowledge over his patient. The
patient just follows the instructions and orders of
the physician and is usually inactive and virtually
places himself in the command and control of the
physician.
•
The defense of contributory negligence is
available only when the patient’s conduct is a
truly flagrant disregard of his health and cannot
apply where the patient is mentally ill,
semiconscious, heavily sedated or of advanced
age.
DOCTRINE OF CONTINUING
NEGLIGENCE
• If the physician, after a prolonged treatment
of a patient which normally produces
alleviation of the condition, fails to
investigate non-response, he may be held
liable if in the exercise of care and diligence
he could have discovered the cause of nonresponse.
DOCTRINE OF ASSUMPTION OF
RISK
• Predicated upon knowledge and informed
consent, anyone who voluntarily assumes
the risk of injury from a known danger, if
injured, is barred from recovery.
•
“…violenti non fit injuria”, which
means that a person who assents and was
injured is not regarded in law to be injured.
DOCTRINE OF LAST CLEAR
CHANCE
• - A physician who has the last clear chance
of avoiding damage or injury but
negligently fails to do is liable.
• - It implies thought, appreciation, mental
direction and lapse of sufficient time to
effectually act upon impulse to save the life
or prevent injury to another.
DOCTRINE OF
FORESEEABILITY
• - A physician cannot be held accountable for
negligence if the injury sustained by the patient is
on account of unforeseen conditions but if a
physician fails to ascertain the condition of the
patient for want of the requisite skill and training
is answerable for the injury sustained by the
patient if injury resulted thereto.
• - A physician owes duty of care to all persons who
are foreseeably endangered by his conduct, with
respect to the risk which make the conduct
unreasonably dangerous.
FELLOW SERVANT DOCTRINE
• - This doctrine provides that if a servant
(employee) was injured on account of the
negligence of his fellow servant
(employee), the employer cannot be held
liable.
RESCUE DOCTRINE
• - If a physician who went to rescue a victim
of an accident was himself injured, the
original wrongdoer must be held liable for
such injury.
SOLE RESPONSIBILITY vs SHARED
RESPONSIBILITY
• Sole responsibility
•
- when the negligent act or omission which is
the proximate cause of the injury suffered by
patient is attributed to the wrongful act of person.
•
• Shared responsibility
•
- when the injury suffered by the patient is
caused by the negligent act of two or more
persons, each of them acting concurrently and
successively in the production of injury.
SPECIFIC ACTS OR OMISSIONS WHICH CONSTITUTE
MEDICAL MALPRACTICE
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
1. Failure to take medical history;
2. Failure to examine or make a careful and adequate examination;
3. Non-referral of the patient to a specialist;
4. Failure to consult prior physicians for previous management;
5.
Non-referral of patient to a hospital with equipments and trained
personnel;
6. Failure to use the appropriate diagnostic test;
7. Failure to diagnose infections;
8. Treatment resulting to addiction;
9. Abandonment of patients;
10. Failure to give proper instructions;
11. Failure to institute the proper prophylactic treatment;
12. Errors in blood transfusion;
13. Liabilities in administration of drugs;
14. Product liabilities of manufacturer;
15. Wrong baby cases.
Abandonment of patients
• - termination of the physician-patient
relationship without the consent of the
patient and without giving the patient
adequate notice and opportunity to find
another physician.
Elements:
• 1. There is a physician-patient relationship;
• 2. The relationship is terminated without mutual
consent of both parties;
• 3.
Unilateral termination of the contractual
relationship by the physician;
• 4.
Continuing need of the patient for further
medical treatment;
• 5. Abandonment must have been the cause of the
injury or death of the patient.
Some instances of abandonment:
• 1. Refusal by a physician to treat a case after he has seen the
patient needing medical treatment but before treatment is
commenced;
• 2. Refusal to attend to a case for which he has already assumed
responsibility;
• 3. Failure to provide follow-up attention;
• 4. Failure to arrange for a substitute physician during the time
the physician is absent or unavailable;
• The attending physician may be held liable for the acts of his
substitute in the following instances:
– a) the attending physician did not exercise due care and diligence in the
selection of the substitute; and
– b) If the substitute acts as agent of the attending physician in so far as
carrying out a certain course of treatment in which case master-servant
relationship is created.
• N.B.
Non-payment of bill cannot be a defense for abandonment.
LIABILITIES IN THE
ADMINISTRATION OF DRUGS
Five basic rights:
•
•
•
•
•
1.
2.
3.
4.
5.
Right drug;
Right patient;
Right dose;
Right time; and
Right route.
Negligence in the administration of a drug which causes
injury to the patient may be attributed to:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
1. Drug reaction;
failure to note history of allergy
failure to test for signs of reaction
failure to stop treatment when the drug reaction has been
observed
failure to provide adequate therapy to encounter a reaction
treatment with a drug not proper for the illness
2. Overdosage;
3. Failure to give warning of the side effects;
4. Administering medicine on the wrong route;
5. Administration of the wrong medicine;
6. Administration of a drug on the wrong person;
7. Infection following an injection;
8. Injury to the nerves
9. Failure to administer the drug.
Doctrine of Strict Liability
• A person injured by a defective product can recover
compensation from his injury from anyone in the
distributive chain who sold the product while the defect
was present, even though the seller exercises every
conceivable caution to prevent and discover the defects.
•
Negligence or carefulness is not in issue in a case
under the doctrine nor is any warranty or promise in issue.
A drug manufacturer is liable if his product is
contaminated by any impurities which harm the user.
•
If the drug has side effects, it is the duty of the
manufacturer to warn the physician of it either through the
literature attached or accompanying the drug or through
the services of the promoters. Once the physician has been
forewarned, the manufacturer has no duty to insure that the
warning reaches the patient in normal circumstances.
LIABILITIES OF HOSPITALS
• Sec.2(a), RA 4226, Hospital Licensure Act
•
HOSPITAL means a place devoted primarily to the maintenance
and operation of facilities 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.
The term ‘hospital’ shall also be construed as any institution, building
or place where there are installed beds, cribs, bassinets for twenty-four
hour use or longer by patients in the treatment of diseases, …..xxx.”
•
• Classification, according to Control and Financial Support:
• 1. Public/Government – operated and maintained either partially or
wholly by the national, provincial, municipal, or city government or
other political subdivision, or by any department, division, board or
other agency thereof. (Sec. 2(b) RA 4226)
• 2. Private – privately owned, especially established and operated with
funds raised and contributed through donations, or private capital or
other means.(Sec. 2(C), RA4226)
For purposes of determining liability of
private hospitals:
• 1.
Private charitable or eleemosynary –
established for the public benefit and not
conducted for the pecuniary gain of the
management.
• 2. Private pay – established for profit and gain.
Rationale why hospital cannot practice
medicine:
• 1. The hospital cannot be subjected to government
licensure examinations to determine whether it is
qualified to practice medicine;
• 2. A non-medical will be allowed to control a
physician and through circumvention practice
medicine;
• Breach of the confidential relationship in a
physician-patient relationship.
Primary Duties of a Hospital:
• 1. To furnish a safe and well-maintained building
and ground;
• 2. To furnish adequate and safe equipments;
• 3. To exercise reasonable care in the selection of
the hospital staff.
Persons Coming Within the Premises of the
Hospital
• 1. Trespasser – one who enters the property of
another without being granted the privilege to do
so. It is only required of a hospital to refrain from
taking positive steps to harm a trespasser.
• 2. Licensee – one who is neither a customer,
servant or a trespasser. He has no contractual
relation with the hospital. He is permitted,
expressly or impliedly to be within the premises
for his own interest and convinience. His presence
is merely tolerated.
• Invitee – one who is essential to the operation of a
hospital or for whom the hospital has a purpose.
Liabilities of Hospitals for the Wrongful
Acts of their Agents
1. Government or Public Hospitals
• - A State cannot be sued without its consent.
• - The immunity of the government from the official acts of
its officers, agents and employees is based on the legal
principle that “there can be no legal right against the
authority that makes the law which the right depends.”
• - Rationale: Government funds should be spent for public
purposes and not diverted to compensate for private
injuries and public service should not be hindered. The
government must not be sued because the government
derives no profit from its activity unlike a private
enterprise.
• - Those established to perform government functions, it is
immune from being sued.
• - Those performing proprietary function when it is
established for profit. The government goes down to the
level of any private hospital.
2. Private Charitable, Voluntary or eleemosynary
for charity
• - A charity hospital is established and maintained
from the donations, contributions, philantrophic
acts and pays no dividends.
• - The determination whether a hospital was
established for charity is the articles of
incorporation and the constitution and by-laws of
the corporation.
3. Private Hospital Operating for profit
• - May be held vicariously liable for the negligent
acts of its employees.
• N.B.
  A hospital which allow the patient to pay if ever they
have the capacity to do so and serve others gratuitously
does not change the fundamental nature of the hospital as
charity.
  The charging of the fee is not controlling but the
purpose the fee will be use is the measure of charity.

The fact that a hospital refuses to accept certain
persons and others to pay in accordance with their means
does not affect its charitable status, if it is operated for no
profit.
  A charitable hospital must not consist of rendering
charitable acts to few sporadic cases but must be extended
to the public over a period of time.
  A hospital established for profit even though some bed
are devoted for charity is not deemed a charitable
institution.
Doctrines Applied to Charitable Hospital
Immunity for the Acts of its Employees
TRUST FUND DOCTRINE
• Charitable hospitals derived support from voluntary
contributions or donations for the reception, care and
treatment of charity patients. The contributions are held
only in trust by the governing body of the hospital.
Diverting the money for the payment of damage will be
utilizing the money not intended by the donor.
IMPLIED WAIVER THEORY
• A patient who enters a private hospital, knowing fully well
that it is merely supported by contributions, waives his
right to claim damages.
PUBLIC POLICY THEORY
• It renders medical service without remuneration. It
is doing an undertaking of the obligation of State
for the preservation of life and maintenance of
health.
INDEPENDENT CONTRACTOR THEORY
• A patient who enters a private charitable hospital
does not have a contract with the hospital but with
the attending physician.
Rules applied in determining the vicarious
liability for the negligent acts of the
resident physicians, nurses and others
employees.
1. Principle of administrative/ministerial as
against professional/medical duties;
• The performance of all routinary duties which is
the very reason why he is appointed in the
ordinary sense constitutes administrative duties
and any negligent acts committed by such
employees in the course of their employment
which causes injury the patient, may make the
hospital vicariously liable.
• Medical duties are by its nature beyond the
ordinary routine in a hospital. Any negligence of
such hospital employees, the “borrowed servant
doctrine” must be applied and the hospital may not
be held vicariously liable.
2. Power of Control;
3. Contract of Service;
• If the contract has been entered with hospital to
render professional services, the hospital may be
held liable provided the negligent act was
committed within the scope of employment. But if
entered with the patient for contract of services,
the principle of independent contractor theory is
applied.
4. Independent Contractor Theory;
5. Sole Responsibility vs Shared
Responsibility.
LIABILITIES OF HOSPITAL
• 1. CORPORATE Liabilities
•
Those arising from failure of the hospital to
furnish
accommodations
and
facilities
necessary to carry out its purpose or to follow in
a given situation, the established standard of
conduct to which the corporation should
conform.
•
Recent decisions of the court has extended
hospital liability to patient for its failure to make
careful selection, review, and supervision of
independent physicians who are permitted to
practice in the hospital.
•
• 2. VICARIOUS Liabilities for the Acts of
Hospital Employees.
Admission
• A person has no absolute right to be admitted in a
hospital or to avail of hospital services. The
relationship between the hospital and the patient is
contractual.
• A government has no absolute privilege of choice
of patients inasmuch as it is established and
maintained by public funds except for justifiable
grounds.
Attendance to emergency cases in hospitals
• Sec. 1 RA 6615 substantially states that “…xxx
hereby required to render immediate emergency
medical assistance and to provide facilities and
medicine within its capabilities to patients in
emergency cases who are in danger of dying
and/or who may have suffered serious injuries.”
Transfer of patients
• It must be premised on desire and consent of the
patient and when the condition of the patient
would permit to do so.
Discharge of patients
• After evaluation of the patient’s condition,
considers that further hospitalization is no
longer indispensable, a physician may order
the discharge with or without condition.
Refusal to be hospitalized
• Refusal of the patient to remain in the hospital will
not be a lawful ground to detain him if he is of
sound mind and of legal age. Related laws:
•
Art. 268, Revised Penal Code
•
1987 Philippine Constitution, Sec. 1 and 6
•
• Refusal of the patient to leave the hospital
Premature discharge
• The attending physician and the hospital any be
held liable to the patient if the latter is discharged
from the hospital in spite of the fact that further
hospitalization is still necessary.
Detention of patient for non-payment of bill
• A patient cannot be detained in a hospital for nonpayment of the hospital bill. The law provides a
remedy for them to pursue by filling the necessary
suit in court for the recovery of such fee or bill.
•
A hospital any legally detain a patient against
his will when he is detained or convicted prisoner,
or when the patient is suffering from a very
contagious disease wherein his release is
prejudicial to public health, or when the patient is
mentally ill, that his release will endanger public
safety.
LIABILITIES OF HOSPITAL FOR ITS
ANCILLARY SERVICES
• - Whenever the hospital administration enters into contract
with a partnership of physicians to run the emergency
room, the medical staff therein are not considered
employees of the hospital. Consequently liability for
negligence in the emergency room is shifted to the medical
partnership.
• -Courts have held that even if contracts specify that
physicians will be considered independent contractors, the
hospitals are responsible for their action if they can
exercise control over them.
• -Patients are not bound by the secret limitations contained
in a private contract between the hospital and the
physician.
Two Aspects of Emergency Care
• 1. Examination of the patient to determine his
condition and need for emergency medical
procedures
• 2.
Performance of the specific medical or
surgical procedure which are required without
delay to protect the patient’s health.
•
Liability in the emergency room may arise
from the following:
• 1. Failure to admit;
• 2. Failure to examine and/or treat;
• 3. Negligence in the application of management
procedures.
• An AMBULANCE is a motor vehicle specifically designed, equipped
and used for the transportation of the sick, injured or wounded persons
operated by trained
• personnel for ambulance service.
• The criminal liability of an ambulance driver is the same as that of an
ordinary driver. However, the civil liability arising therefrom the
hospital must be held liable.
• Hospital Pharmacy
• Sec. 42, RA 5921.
• A PHARMACY is a place or establishment where drugs, chemical
products, active principles of drug, pharmaceuticals, proprietary
medicine of pharmaceutical specialties, devices and poison are sold at
retail and where medical and dental veterinary prescriptions are
compounded and dispensed.
Medical Records
• It is compilation of the pertinent facts of the
patient’s life history, illness, and treatment.
• It is a compilation of scientific data derived
from many sources, coordinated into a document
and made available for various uses to serve the
patient, the physician, the institution in which the
patient has been treated, the science of medicine
and society as a whole.
Purpose of Maintenance of Medical Records
• 1. For convenience and necessity in consonance with the
purpose enumerated;
• 2. As required by statutes (Hospital Licensure Law)
• - The hospital may be held liable for injury resulting from
a breach of duty to maintain accurate records.
• - Destruction of records is an evidence of negligence.
• - An altered medical record may create suspicious intent to
establish a defense and such alteration may be a proof of
negligence.
• - Removal of a certain portion of the record may raise
• the inference that they are remove deliberately in order
to suppress evidence
Ownership of Medical Records
• The guardian and owner of the medical records is
the hospital. But ownership of the medical record
is a limited one and absolute and considered
primarily custodial.
VIOLATION OF THE CONFIDENTIAL NATURE
OF RECORD
• Sec. 6, Art. II, Code of Medical Ethics
•
The medical practitioner should guard as a
sacred trust anything that is confidential or
private in nature that he may discover of that
may be communicated to him in his
professional relation with the patient, even after
their death. He should never divulge this
confidential information, or anything that may
reflect upon the moral character of the person
involved, except when it is required in the
interest of justice, public health or safety.
• Sec. 17, Art. II, Comprehensive Dangerous Drug Act of
2002 (Maintenance and Keeping of Original Records of
Transactions on Dangerous Drugs and/or Controlled
Precursors and Chemicals.
•
The penalty of imprisonment ranging from 1 year to 6
years and a fine ranging from 10,000.00 to 50,000.00 shall
be imposed upon any practitioner………xxx who violates
or fails to comply with the maintenance and keeping of the
original records of transactions on any dangerous
drugs….xxx”
•
An additional penalty of revocation of license to
practice his profession……xxx.”
• Sec. 60, Art. VIII, Comprehensive Dangerous Drug Act
of 2002 (Confidentiality of Records Under the Voluntary
Submission Program)
• Judicial and medical records of drug dependents under the
voluntary submission program shall be confidential and
shall not be use against him for any purposes, except to
determine how many time by himself or through his
parent, spouse guardian or relative within the fourth degree
of consanguinity or affinity, he voluntarily submitted
himself to confinement, treatment and rehabilitation in any
center…..xxx.”
• Sec. 64. Art. VIII, Comprehensive Dangerous Drugs Act of
2002(Confidentiality of Records Under the Compulsory Submission
Program)
•
The records of a drug dependent who was rehabilitated and
discharged from the Center under the compulsory submission program,
or who was charged for violation of Sec. 15 of this act shall be covered
under Sec 60 of this act. However, the records of a drug dependent
who was not rehabilitated, or who has escaped but did not surrender
himself within the prescribed period, shall be forwarded to the court
and their use shall be determined by the court, taking into
consideration public interest and the welfare of the drug-dependent.
• Sec. 21 (c), Rule 130, Rules of Court (Privilege
Communication)
•
A person authorized to practice medicine, surgery,
obstetrics cannot in civil case, without the consent of the
patient, be examined as to any information, which he may
have acquired in attending such patient In a professional
capacity, which information was necessary to enable him
to act in that capacity, and which would blacken the
character of the patient.
Information for which no authorization is
needed
• 1.
Name of the patient and house officers
associated with the treatment of a patient;
• 2. Personal circumstances of the patient which
are not ordinarily related to the treatment.
When May the Contents of the Record be
Disclosed
• 1. When requested by the patient or by someone who
could act in his behalf which must be made in writing;
• 2. When the law requires such disclosure;
• 3. Upon a lawful order of the court.
• N.B.
•
The attending patient has no legal right to determine
who shall and who shall not see the record. At the most, his
approval or permission is only a matter of courtesy.
•
•
Members of the resident staff, student and attending
medical staff may freely consult such records as pertain to
their work.
• Sec. 37, Rule 130, Rules of Court – Entries in the Course
of Business
•
Entries made at, or near the time of the transactions to
which they refer, by a person deceased, outside the
Philippines or unable to testify, who was in a position to
know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in
the ordinary course of business or duty.
•
• Patient’s record is admissible in evidence even if the
person who made the entry is dead or not available, as the
records are entries in the course of business.
DAMAGES
• DAMAGES are the pecuniary compensations that may be
recovered for breach of some duty or the violation of some
rights recognized by law. If a suit is filed against a
physician for a professional liability claims, the objective
of the plaintiff is to recover damages. If the physician is
found negligent in the performance of his professional
services, he liable for the payment of damages for all the
direct, natural and logical consequences of his act.
• Art. 20, Civil Code
•
Every person who, contrary to law, willfully
or negligently causes damage to another shall
indemnify the latter for the same.
•
• Art. 2176, Civil Code
•
Whoever, by act or omission causes damage to
another, there being fault or negligence, is obliged
to pay for the damages done.
• Damages must be sufficiently proven by evidence. To
permit the Court to determine how much it must be. The
proof must show the nature, extent, cause and probable
duration of the injury.
• Doctrine of Certainty of Damages
• Damages must be certain both in its nature and in respect
to the cause. Recovery must not be contingent or
speculative.
• The injured patient has the right to recover medical and
hospital expenses from the wrongdoer even though the
patient has been indemnified wholly or partially by an
insurance company.
TYPES OF DAMAGES
•
•
•
•
•
•
1.
2.
3.
4.
5.
6.
Actual or Compensatory;
Moral;
Exemplary
Nominal;
Temperate;
Liquidated
ACTUAL OR COMPENSATORY DAMAGES
• Art. 2199, Civil Code
•
Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages.
•
• Art. 2200, Civil Code
•
Indemnification for damages shall comprehend not
only the value of the loss suffered, but also that of the
profits which the obligee failed to obtain.
• Kinds:
• 1. ‘Dano emergente’ – the loss already suffered by the
patient
• 2. Lucro cesante – failure to receive the benefit which
would have pertained to him.
Compensatory Damages Applied to Medical
Malpractice
1. Death
• Art. 2206, Civil Code
•
The amount of damages for the death caused
by a crime or quasi-delict shall be at least three
thousand pesos(75,000.00), even though there may
have been mitigating circumstances.
2. Physical Disability
3. Loss of Earning Capacity
4. Medical, Surgical, Hospital, and Related Expenses
5. Loss of Service or Support
6. Funeral Expenses
MORAL DAMAGES
• Art. 2217, Civil Code
•
Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary computation,
moral damages may be recovered if they are the proximate
result of the defendant’s act or omission.
• Art. 2219, Civil Code
•
Moral damages may be recovered in the
following and analogous cases:
1. A criminal offense resulting in physical injuries;
2. Quasi-delict causing physical injuries.
•
•
•
•
Physical Suffering
Mental Anguish
Fright and Moral Shock
Besmirched Reputation and Social
EXEMPLARY OR CORRECTIVE
DAMAGES
• Art. 2229, Civil Code
•
Exemplary or corrective damages are imposed, by way of
example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.
•
• Art. 2230, Civil Code
•
In criminal offense, exemplary damages as part of the civil
liability may be imposed when the crime was committed with one or
more aggravating circumstances. Such damages are separate and
distinct from fines and shall be paid to the offended party.
• Art. 2231, Civil Code
•
In quasi-delict, exemplary damages may be granted if
the defendant acted with gross negligence.
•
• Art. 2232, Civil Code
•
In contracts and quasi-contracts, the court may award
exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive and malevolent manner.
•
• Art. 2233, Civil Code
•
Exemplary damages cannot be recovered as a matter
of right; the court will decide whether or not they should
be adjudicated.
• Punitive or exemplary damages are monetary
compensation over and above actual or compensatory
damages awarded as punishment or deterrence, because of
the wanton, reckless, malicious or oppressive nature of the
wrong committed.
• Punitive damages are recoverable from a physician in an
action for malpractice where there is evidence tending to
show that he has acted with malice, or that he acted with
recklessness, oppression, or with utter disregard to the
effects of his act, or that he is guilty of gross negligence in
the performance of his profession.
NOMINAL DAMAGES
• Art. 2221, Civil Code
•
Nominal damages are adjudicated in order that
a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or
recognized not for the purpose of indemnifying
the plaintiff for any loss suffered.
• It is a trifling sum awarded to the plaintiff in an
action where there is no substantial loss or injury
to be compensated.
• It is awarded to plaintiff as a vindication of a right
violated.
LIQUIDATED DAMAGES
• Art. 2226, Civil Code
• Liquidated damages are those agreed upon by the
parties to a contract, to be paid in case of breach
thereof.
TEMPERATE OR MODERATE
DAMAGES
• Art. 2224, Civil Code
•
Temperate or moderate damages, which are
more than nominal but less than compensatory
damages, may be recovered when the court finds
that some pecuniary loss has been suffered but its
amount cannot, from the nature of the case, be
proved with certainty.
Obligation on the part of the plaintiff(patient) to
minimize damages.
• Art. 2203, Civil Code
•
The party suffering from loss or injury must exercise
the diligence of a good father of a family to minimize the
damages resulting from the act or omission in question
Doctrine of Avoidable Consequences
•
•
•
Where one person has, through wrongful act, caused
personal injury to another, it is incumbent upon the latter to
use such means as are reasonable under the circumstances
to avoid or minimize the damages. The person wronged
cannot recover for any item of damage which could have
been avoided.
The burden of proof that the injured could have
prevented or mitigated the damages rests on the defendant.
ATTORNEY’S FEES
•
Attorney’s fees and other related expenses in litigation, other than judicial
cost are not as rule recoverable except when the law specifically provides.
(Art.2208, Civil Code)
•
•
1. When exemplary damages are awarded;
2. When the defendant’s act or omission has compelled the plaintiff to litigate
with third persons or to incur expenses to protect his interest;
3. In criminal cases of malicious prosecution against the plaintiff;
4. In case of clearly unfounded civil action or proceeding against the plaintiff;
5. Where the defendant acted in gross and evident bad faith in refusing to
satisfy the plaintiff’s plainly valid, just and demandable claim;
6. In actions for legal support;
7. In actions for the recovery of wages of household helpers, laborers and
skilled workers;
8.
In actions for indemnity under the workmen’s compensation and
employer’s liability laws;
9. In a separate civil action to recover civil liability;
10.
When at least double judicial costs are awarded;
11.
In any other case where the court deems it just and equitable that
attorney’s fees and expenses of litigation should be recovered.
•
•
•
•
•
•
•
•
•
EMERGENCIES IN MEDICAL
PRACTICE
• An EMERGENCY is an unforeseen combination
of circumstances which calls for an immediate
action. It refers to a situation in which a patient
has been suddenly or unexpectedly endangered to
such an extent that immediate action is needed to
save the life and limb or to avoid permanent
damages.
Related Provisions of the Code of Medical
Ethics
• A condition of emergency is usually an exception to the observance of
the standard ethical conducts.
• Art. II, Sec. 2
• “ A physician is free to choose whom he will serve. He may refuse
calls, other medical services for reasons satisfactory to his professional
conscience. He should, however, always respond to any request for his
assistance in an emergency…xxx.”
• Art. II, Sec. 3
•
“In case 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.”
• Art. IV, Sec. 15
•
“A physician should never examine or treat a hospitalized patient
of another without the latter’s knowledge and consent except in cases
of emergency...xxx.”
• Art. IV, Sec. 16
•
“A physician called upon to attend to a patient of another
physician because of an emergency….xxx….should attend only to the
patient;\’s immediate needs….xxx.”
• Art. IV, Sec. 17
•
Whenever in the absence of the family physician several
physicians have been simultaneously called in an emergency case
• …xxx..the first to arrive should be considered as physician in charge,
unless the patient or his family has special
• preference for some other one among those who are present…xxx.”
• Art. IV, Sec.20
•
When a physician is requested by a colleague to take care of a
patient because of an emergency…xxx…The physician should treat
the patient in the same manner and with the same delicacy as he would
have wanted his own patient cared for under similar conditions…xxx.”
Other related provisions of the law
• RA 6615
•
An act requiring government and private hospitals or clinics duly
licensed to extend medical assistance in emergency cases.
• RA 8344
•
An act penalizing the refusal of hospitals and medical clinics to
administer appropriate initial medical treatment and support in
emergency or serious cases, amending BP Blg. 702, otherwise known
as An act prohibiting the demand or deposits or advance payments for
the confinement or treatment of patients in hospital and medical clinics
in certain cases.
• Art. 275, Revised Penal Code
•
Abandonment of persons in danger and abandonment of one’s
own victim
•
The penalty of arresto mayor shall be imposed upon:
• 1. Anyone who shall fail to render assistance to any person whom he
shall find in an uninhabited place wounded or in danger or dying,
when he can render such assistance without detriment to himself,
unless such omission shall constitute a more serious offense.
• 2. Anyone who shall fail to help or render assistance to another whom
he has accidentaqlly wounded or injured…xxx.”
Standard of Care in Emergencies
• -
A physician cannot be held to the same
conduct as one who had an opportunity to reflect,
even though it later appears that he made a wrong
decision yet prudent at that time.
Emergency Operations Without Consent
• -When the situation is such that an immediate action is
necessary to save the life or preserve the health of the
patient, and getting a consent is prejudicial to the patient,
the physician can legally proceed with his contemplated
life-saving procedure.
• - The law gives him the right to act under the Theory of
Implied Consent or that the physician is privileged to do
whatever is sound for the benefit of the patient.
• The refusal of the patient who is of legal age and of sound
mind to submit to medical treatment shall prevail even if
the danger to his life is eminent.
Emergency Operation without Consent
• 1. The injured person must be unconscious or otherwise
unable to give a valid consent;
• 2. The situation must be such as it would make it actually
and apparently necessary to act before there is an
opportunity to obtain consent;
• The physician in the exercise of his best judgment that the
medical procedure is life-saving.
Refusal to Give Consent During Emergency
• If the patient is conscious, or if unconscious or is
not in a capacity to give consent, but someone
who could act on his behalf is present, then
consent must first be obtained before the
commencement of a procedure.
Extension of Operation in Cases of
Emergency
• If during an operation, an accident occurs, or a condition maybe
discovered which requires immediate action, but which is not covered
by the consent, the surgeon is justified in extending the operation and
be absolved of liability.
•
The surgeon is authorized to extend the operation to any
condition discovered when it will redound to the welfare of the patient.
In the absence of a clearly specific prohibition on the part of the
patient, the physician should be privileged to perform such surgery
within the operative field as is justified in the prevailing medical
opinion.
• N.B. Surgery cannot be extended if an emergency is not present
•
•
The law also implies an obligation on the part pf the patient to
pay reasonable value of the emergency service. If no specified amount
agreed upon, the principle of quantum meruit shall be applied.
DELEGATION OF A PHYSICIAN’S
DUTIES
• Requisites for a Valid Delegation
• 1. When such duty can be delegated which will depend
on the circumstances of the case, nature of the duty to be
delegated, and the training and experience of the person to
whom such duty is to be delegated.;
• 2. The person to whom such duty is delegated must be
competent to perform such duty;
• 3. Proper instructions must be given to the person who
will perform the delegated duty;
• The patient consented expressly or impliedly such
delegation of duty.
Liability for Injuries in the Negligent
Performance of the Delegated Duties
• The person performing the delegated duty cannot
be held liable for any untoward or unexpected
effects of his act if he had complied with all the
requirements of a delegated duty and has
exercised care and diligence in such execution.
THE MEDICAL WITNESS AND THE
COURT
• Court – an agency of the sovereign created directly or indirectly
under its authority, constituting one or more officers, established and
maintained for the purpose of hearing and determining issues of law
and facts regarding legal rights and alleged violations thereof, and of
applying the sanction of the law, authorized to exercise its power in the
due course of law at times and places previously determined by lawful
authority.
Different Courts in the Philippines
•
•
•
•
•
1.
2.
3.
4.
5.
Supreme Court
Court of Appeals
Regional Trial Court
Municipal or City Trial Court
Military Commissions
Art. III, Sec. 2, Code of Medical Ethics
•
It is the duty of every physician, when called upon by the judicial
authorities, to assist in the administration of justice on matters which
are medico-legal in character.
PHYSICIAN AS AN ORDINARY
WITNESS
• Sec. 20, Rule 130, Rules of Court
•
“xxx….all persons who, having organs of sense, can
perceive, and perceiving can make known their perception
to others maybe witness…xxx.”
• Requisites of an Ordinary Witness
• 1. The person must have the organ and power of
perception;
• 2. The perception gathered by his organs of sense can be
imparted to others; and
• He does not fall in any of the exception or disqualifications
provided by the Rules of Court.
Disqualification by reason of:
• 1. Mental Incapacity or immaturity - Sec. 21, Rule 130,
Rules of Court
– a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making known
their perception to others; and
– b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating
them truthfully.
• 2. Marriage - Sec. 22, Rule 130, Rules of Court
• During their marriage, neither the husband nor the
• wife may testify for or against the other without the
consent of the affected spouse, except in a civil case by
one against the other, or in any criminal case for a crime
committed by one against the other or the latter’s direct
ascendants or ascendants;
• 3.
Death or Insanity - Sec. 23, Rule 130, Rules of Court
• Parties or assignors of parties to a case, or persons in
• whose behalf a case is prosecuted, against an executor or administrator
or other representative of the deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such
deceased person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death of such
deceased person or before such person become of unsound mind;
• 4. Parental or filial Privilege - Sec. 25, Rule 130, Rules of Court
• No descendant can be compelled, in a criminal case,
• to testify against his parents and ascendants.
• Disqualification by reason of Privileged Communication
•
Sec. 24, Rule 130, Rules of Court – The following persons cannot
testify as to matters learned in confidence in the following cases:
• 1.
The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage except in
a civil case by one against the other, or for a crime committed by one
against the other or the latter’s direct descendants and ascendants;
• 2.
The attorney cannot, without the consent of his client, be examined
as to any communication made by the client to him or his advice given
thereon in the course of, or with a view to professional employment; nor
can an attorney’s secretary, stenographer or clerk be examined, without the
consent of the client and his employer, concerning any fact the knowledge
of which has been acquired in such capacity;
• 3.
A person authorized to practice medicine, surgery
or obstetrics cannot in a civil case, without the consent of
the patient, be examined as to any information which he
may have acquired in attending such patient in a
professional capacity, which information was necessary to
enable him to act in that capacity, and which would
blacken the reputation of the patient;
• 4.
A minister or a priest cannot, without the consent of
the person making the confession, be examined as to any
confession made to or any advice given him in his
professional character in the course of discipline enjoined
by the church to which he belongs;
• 5.
A public officer cannot be examined during his term
of office or afterwards as to communications made to him
in official confidence, when the court finds that the public
interest would suffer by the disclosure.
Privileged Communication
Between Physician and His Patient
• Sec. 6, Art. II, Code of Medical Ethics
•
“The medical practitioner should guard as 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 upon the moral
character of the person involved, except when it is required in the
interest of justice, public health, and public safety.
• Sec. 24(c), Rule 130, Rules of Court
“A person authorized to practice medicine, surgery or obstetrics cannot
in a civil case, without the consent of the patient, be examined as to
any information which he may have acquired in attending such patient
in a professional capacity, which information was necessary to enable
him to act in that capacity, and which would blacken the character of
the patient.”
Extent of the Privileged Communication
• 1. Interns;
• 2. Confidential information obtained by one of
the physicians practicing medicine in partnership
with another physician whereby the patients of
both are the patients of the firm.
• Nurses and attendants who were present and
assisting the physician when the communication
was made.
When Communication Is Not A Privileged
Communication
• 1. When a person is examined at the instance of
the law, for the purpose of testifying to solely
qualify the physician to testify;
• 2. Information acquired by an autopsy on the
body of a person who was not, prior to his death, a
patient of the physician performing the autopsy.
• 3. Information obtained by a technician from a
patient is not privileged.
• 4. When the public interest so requires.
Scope of the Privilege
• 1. Oral testimony by the physician in court;
• 2. Affidavits, certificates and reports made by the
physician as exhibit in court; and
• 3. Hospital records.
Waiver of Privilege
• Patient may expressly or impliedly waive their
right to privilege communication.
HEARSAY EVIDENCE
• An evidence not proceeding from personal knowledge of the witness,
but from mere repetition of what he had heard others say. I does not
derive its value solely from the credit of the witness but its value rests
mainly in the veracity and competency of other persons. The very
nature of the evidence shows its weakness, and it is admitted only in
special cases because of necessity.
•
As a general rule, it is NOT admissible in evidence.
•
• Sec. 36, Rule 130, Rules of Court – Testimony generally confined to
the personal knowledge of the witness; hearsay excluded.
•
“A witness can testify only to those facts which he knows of his
own knowledge; that is, which is derived from his own perception,
except as otherwise provided by these rules.
• Sec. 37, Rule 130, Rules of Court
“The declaration of a dying person, made under a
consciousness of an impending death, may be received in a
criminal case wherein his death, may be received in a
criminal case wherein his death is the subject of inquiry, as
evidence of the cause and surrounding circumstances of
such death.”
Dying declaration
• One of the exceptions in hearsay evidence rule.
• Is the statement made by a person who is at the point
of death, and is conscious of his impending death, in
reference to the manner in which he receives his injuries of
which he is dying, or the immediate cause of his death, and
in reference to the person who inflicted such injuries or in
connection with such injuries of a person who is charged
or suspected of having committed them; which statements
are admissible in evidence in a trial where the killing of the
declarant is the crime charged to the defendant.
Grounds for Admissibility of Dying
Declaration
• 1. Necessity – death of the declarant makes it impossible
to obtain his testimony in court.
• 2.
Trustworthiness – every motive of falsehood is
silenced, and the mind is induced by the most powerful
consideration to tell the truth.
Requisites of Dying Declaration
• 1. That the declaration must concern the cause and
surrounding circumstances of the declarant’s death;
• 2. That at the time the declaration was made, the declarant
was under the consciousness of impending death;
• 3. That the declarant is a competent witness;
• 4. That the declaration is offered in a criminal case in
which the declarant is the victim.
Probative Value of Standard Medical
Books in Court
• -Medical textbooks are not admissible in evidence on
account of the fact that they are hearsay.
• -The author of the books cannot be presented in court and
be subjected to cross-examination.
• N.B.
Medical witness may have the right to base his opinion
from standard textbooks.
In cross-examination, medical textbooks are admissible in
evidence to discredit a witness who has based his
testimony upon it.
Learned Treatises
Sec. 46, Rule 130, Rules of Court
“A published treatise, periodical or pamphlet on a subject
of history, science or art is admissible as tending to prove
the truth of a matter stated therein if the court takes judicial
notice, or a witness expert in the subject testifies that the
writer of the statement in the treatise, periodical or
pamphlet is recognized in his profession or calling as
expert in the subject.”
THE PHYSICIAN AS AN EXPERT
WITNESS
• An EXPERT WITNESS is one who has the
capacity to draw inference from the facts which a
court would not be competent to draw.
• To warrant the use of expert testimony, two elements
are required:
• 1.The subject of inference must be so distinctly related to some
science, profession, business or occupation as to be beyond the
knowledge of average layman; and
• 2.The witness must have such skill, knowledge or experience in that
field or calling as to make it appear that his
• 3.Opinion or reference will probably aid the trier of facts in his search
for the truth.
• An OPINION maybe defined as the belief, judgment,
inference, or sentiment formed by the mind with regard
to things, person or events perceived by a witness. An
opinion in the legal sense is something more than mere
speculation or conjecture.
• Sec. 48, Rule 130, Rules of Court
•
General rule - The opinion of a witness is not
admissible, except as indicated by the Rules.
•
• Sec. 49, Rule 130, Rules of Court
•
Opinion of Expert Witness - The opinion of a witness
on a matter requiring special knowledge, skill, experience
or training which he is shown to possess, may be received
in evidence.
•
• Sec. 50, Rule 130, Rules of Court
•
Opinion of Ordinary Witness – The opinion of a
witness for which proper basis is given, may be received in
evidence regarding –
– a)
the identity of a person about whom he has adequate
knowledge;
– b) A handwriting with which he has sufficient familiarity; and
– c) The mental sanity of a person with whom he is sufficiently
acquainted.
• The witness may also testify on his impressions of
• emotion, behavior, condition or appearance of a person.
Distinctions Between an Ordinary and
Expert Witness
• 1.An ORDINARY witness can only testify as a general
rule, on those things which he has perceived with his own
organs of perception, while an EXPERT witness may
render his opinion, inference, conclusion or deduction on
what he and others perceived;
• 2.An ORDINARY witness need not be skilled on the line
he is testifying but an EXPERT witness must be skilled on
the art, science or trade he is testifying.
ATTENDANCE OF A MEDICAL
WITNESS IN COURT
• Sec. 1, Rule 21, Rules of Court
•
“Subpoena
is a process directed to a person
requiring him to attend and to testify at the hearing or the
trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition. It
may also require him to bring with him books, documents,
or other things under his control, in which case it is called
subpoena duces tecum.”
•
Kinds of Subpoena
• 1. Subpoena ad testificandum
•
A process requiring a person to appear before a trial or hearing of
an action or investigation conducted under our laws or for the taking of
a deposition at a certain definite date, time and place to testify on some
material issues.
• 2. Subpoena duces tecum
•
A process which requires a person to produce at the trial some
documents or papers which are under his control or possession that are
pertinent to the issues of his controversy, at a certain date, time and
place.
• 3. Subpoena duces tecum and testificandum
•
•
N.B.
Failure to comply with a subpoena without justifiable reason is a ground
for reprimand, suspension or revocation of the certificate of registration.
• Sec. 2, Art. III, Code of Medical Ethics
• “It is the duty of every physician, when called upon by the judicial
authorities, to assist in the administration of justice on matters which
are medico-legal in character.”
• Sec. 24, Art. III, Medical Act of 1959 as amended
•
“xxx…..(12) Violation of any of the provisions of the Code of
Medical Ethics…shall be sufficient ground for reprimanding, or for
suspending or revoking a certificate of registration as physician…xxx.”
• Refusal of a public officer to give assistance in the administration of
justice is penalized by law
• Art. 233, Revised Penal Code
•
“The penalties of arresto mayor…xxx, shall be imposed upon a
public officer who, upon demand from a competent authority, shall fail
to lend his cooperation towards the administration of justice or other
public service, if such failure shall result in serious damage to the
public interest, or to a third party.”
When a Medical Witness Need Not Comply
With a Subpoena
• 1.
The Court issuing the subpoena has no jurisdiction
over the subject matter of the case;
• 2.
When the place of residence is more than 100
kilometers from the court issuing the subpoena.
–
Sec. 10, Art.21, Rules of Court – “ The provisions of sections 8 and 9
0f this rule (Compelling attendance and Contempt) shall not apply to a
witness who resides more than 100 km from his residence to the place
where he is to testify by the ordinary course of travel, or to a detention
prisoner if no permission of the court in which his case is pending was
obtained.”
• 3. When the patient is attending to an emergency and no
one is available and competent enough to be his substitute
to attend to such emergency.
• 4. On account of illness incapacitating him to attend.
Sec. 3, Rule 132, Rules of Court, Rights and
Obligations of a Witness
• “A witness must answer questions, although his answers
may tend to establish a claim against him. However, it is
the right of a witness:
i. To be protected from irrelevant, improper questions and from harsh
or insulting demeanor;
ii. Not to be detained longer than the interests of justice require;
iii.Not to be examined except only as to matters pertinent to the issue;
iv.Not to give an answer which will tend to subject him to a penalty
for an offense unless otherwise provided by law; or
v. Not to give an answer which will tend to degrade his reputation,
unless it be to the very fact at issue or to a fact from which the fact
in issue would be presumed. But a witness must answer to the fact
of his previous final conviction of an offense.”
Instances when the medical witness may not be
compelled to answer questions in court
• 1. It will tend to subject him to punishment for an offense;
• Incriminatory questions may subject the witness to
punishment or disclosure of which would form a necessary
and essential part of a crime.
Sec. 17, Art. III, Phil Constitution – “No person shall be compelled to be
witness against himself.
• 2. It will degrade his character, except when such
degradation of character is the very fact at issue;
• A medical witness may refer to memoranda, notes or other
pertinent papers:
Impeachment of Medical Testimony
• 1.By contradicting testimonies by others of his own class
or by any other competent witnesses;
• 2.By showing that the medical witness is interested in the
outcome of the case or bias;
• 3.By an inconsistent statement made at another time;
• 4. By not expressing the opinion testified to at the time
when such expression might reasonably had been
expected; and
• When the scientific treatise which he relies on as
the
basis of his opinion does not sustain him.
Effects of False Testimony
• 1. Art. 180, Revised Penal Code, False
testimony against a defendant:
• “ Any person who shall give testimony against the
defendant in any criminal case shall suffer:
– i. The penalty of reclusion temporal, if the defendant in said case
shall have been sentenced to death;
– ii. The penalty of prision mayor, if the defendant shall have been
sentenced to reclusion temporal or perpetua;
– iii. The penalty of prision correccional, if the defendant shall have
been sentenced to any other afflictive penalty; and
– iv. The penalty of arresto mayor, if the defendant shall have been
sentenced to a correccional penalty or a fine, or shall have been
acquitted.”
• 2. Art. 181, Revised Penal Code, False Testimony
favorable to a defendant:
“Any person who shall give false testimony in favor of the
defendant in a criminal case, shall suffer the penalties of
arresto mayor in its maximum period to prision
correccional….xxx…if the prosecution is for felony
punishable by an afflictive penalty,..xxx.”
• 3. Art. 182, Revised Penal Code, False Testimony in
Civil Cases:
“Any person found guilty of false testimony in civil cases
shall suffer the penalty of prision correccional…xxx if the
amount in controversy shall exceeds 5,000 pesos …xxx.”
• 4. Art. 183, Revised Penal Code, False testimony in
other cases and perjury in solemn affirmation:
“The penalty of arresto mayor …xxx, knowingly making
untruthful statements and not being included in the
provisions of the next preceding articles, shall testify under
oath, or make an affidavit, upon ant material before a
competent person authorized to administer an oath in cases
in which the law so requires.
•
Any person, who in case of a solemn affirmation
made in lieu of an oath, shall commit any of the falsehoods
mentioned in this and the three preceding articles of this
section, shall suffer the respective penalties provided
therein.”
Principle of “Falsus In Uno, Falsu In
Omnibus”
• When a witness falsified the truth on one point, his testimony on other
points may be disregarded, unless corroborated by other unimpeached
evidences.
• Requisites:
• 1. That the witness deliberately or intentionally falsified
the truth;
• 2.
That the other portions of the testimony to be
discredited, are not corroborated by circumstances or other
unimpeached evidence;
• 3. The false testimony must be on material point.
• When it is not applicable
• 1.When there are sufficient corroborations in many
grounds of the testimony;
• 2.When the mistake was not in a very material point;
• 3.When the error did not arise from the apparent desire to
prevent the truth, but from innocent mistakes and the
desire of the witness to exculpate himself though not
completely.
CONTEMPT
• Sec. 9, Rule 21, Rules of Court
•
Contempt – “ Failure by any person without adequate
cause to obey a subpoena served upon him shall be deemed a
contempt of court from which the subpoena is issued. If the
subpoena was not issued by a court, the disobedience thereto
shall be punished in accordance with the applicable law or
Rule.”
• Sec. 1, Rule 71, Rules of Court
•
Direct Contempt Punished Summarily – “A person guilty
of misbehavior in the presence of or so near a court as to
obstruct or interrupt the proceedings before the same,
including disrespect toward the court, offensive personalities
toward others, refusal to be sworn or to answer as witness, or
to subscribe an affidavit or deposition when lawfully required
to do so, may be summarily adjudged in contempt by such
court…xxx.”
• Sec. 3, Rule 71, Rules of Court
• Indirect contempt To Be Punished After Charged and Hearing –
“After a charge in writing has been filed, and an opportunity
given to the respondent to comment thereon within such
period…xxx…., a person guilty of any of the following acts may
be punished for indirect contempt:
– 1. Misbehavior of an officer of a court in the performance of his official duties or
in his official transactions;
– 2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court….;
– 3. Any abuse of or any unlawful interference with the process or proceedings of a
court not constituting direct contempt…;
– 4. Any improper conduct tending directly or indirectly to impede, obstruct, or
degrade the administration of justice;
– 5. Assuming to be an attorney…..;
– 6. The rescue of a person or property in the custody of an officer by virtue of an
order.
• But nothing in this section shall be construed as to prevent the
court
• from issuing process to bring the respondent to the court, or from
holding him in custody pending such proceedings.”
Hypothetical questions propounded to a
medical witness
• A physician may be requested to draw his conclusions or opinions
from asset of facts which may or may not known to him. He must
answer the question provided those set of facts has the following
requisites:
• 1. It must be framed as to fairly represent those facts and not give a
situation a false color by the way the statement was given;
• 2.
The hypothetical question is based upon facts which are in
evidence and assumed facts within the limit of evidence;
• 3. The hypothetical question must not be unfair or misleading.
•
• Where the expert is familiar with the facts by personal
• observation and so testifies, he may be asked directly for his opinion,
without stating the facts upon which it is based.
•
When the expert is not familiar with the facts upon which it is
based, they must be stated to him hypothetically, and upon the
assumption of the facts so stated, he must base his opinion.
Rationale on the Corroborative Probative
Value of Medical Expert Testimonies
• 1.The testimony however impartial, may unconsciously
favor one of the party litigants. The human mind is not
absolutely impossible;
• 2.The opinion of the medical expert is based on experience
and treatise or books which may be divergent from the
observation of others
CODE OF MEDICAL ETHICS
• Art. I – General Principles
• Primary objective of the practice of medicine is
SERVICE
to mankind.
• “friend of man”
•
• Art. II – Duties of Physicians to their Patients
• To attend to his patients faithfully and conscientiously.
• Free to choose whom to serve.
• Immediate action in cases of emergency.
• Proper consultation and referral.
• He must exercise good faith and strict honesty in expressing his
opinion.
• Sacred trust of information
• Practice of medicine is not a business.
•
•
•
•
•
•
Art. III – Duties of Physicians to the Community
Cooperation with proper authorities, sanitation and health.
To assist in the administration of justice.
To protect the public from charlatans.
No solicitation and extravagant and false advertisements.
Gratuitous services to the indigents.
Art. IV – Duties of Physicians to their Colleagues
and to the Profession
•
•
•
•
•
•
•
•
•
•
•
- Gratuitous services to a colleague.
- Proper consultation and referral.
- Uphold the honor and dignity of the profession.
- Observe punctuality.
- Observe utmost caution, tact and prudence as regards professional conduct
of another physician.
-To refrain from making unfair and unwarranted criticisms of other physicians.
- To keep abreast to the advancements of medical science and contribute to its
progress.
- He should be diligent, upright, sober, modest and well-versed in both the
science and art of medicine.
- No advertising by means of untruthful or improbable statements in
newspapers or exaggerated announcements.
- Should expose without fear or favor, before the proper medical or legal
tribunals corrupt and dishonest conduct of members of the profession.
- Should aid in safeguarding against the admission of those who are unfit or
unqualified because of deficiency in moral character.
Art. V – Duties of Physicians to Allied
Professionals
– To cooperate with and safeguard the interest, reputation and
dignity of allied professional.
– Not to allow to be published any testimonial certifying the efficacy,
value and superiority and recommendation of drugs.
– Non-payment of commissions to any person who refers cases to
help him acquire patients.
• Penal Provisions
• -Violation of the provisions of this Code constitute
unethical and unprofessional conduct and therefore a
sufficient ground for the reprimand, suspension or
revocation of the certificate of registration of the offending
physician in accordance with the provisions of Sec. 24,
par. 12 of the Medical Act of 1959.
RIGHT AGAINST SELF-INCRIMINATION
• Sec. 17. Art. III, Philippine Constitution states that,
• “No person shall be compelled to witness against himself.”
•
•
The right is available not only in criminal prosecutions but also
in all other government proceedings, including civil actions and
administrative or legislative investigations. It may be claimed not only
by the accused but also by any witness to whom a question calling for
an incriminating answer is addressed.
•
•
In criminal actions, the accused may not be compelled to take the
witness stand, on the reasonable assumption that the purpose of the
interrogation will be to incriminate him.
•
•
The same principle shall apply to the respondent in an
administrative proceeding where the respondent may be subjected to
sanctions of a penal character, such as cancellation of his license to
practice medicine.(Pascual vs. Board of Medical Examiners, 28 SCRA
345).
Scope:
– The kernel of the right is not against all compulsion, but
testimonial compulsion only.
– It is simply against the legal process of extracting from the lips of
the accused an admission of his guilt.
– It does not apply where the evidence sought to be excluded is not
an incriminating statement but an OBJECT EVIDENCE(eg.
Fingerprinting, photographing, paraffin testing, PE).
– The prohibition extends to the compulsion for the production of
documents, papers and chattels that may be used as evidence
against the witness except where the State has the right to examine
or inspect under the police power of the State.
– The right also protects the accused against any attempt to compel
him to furnish a specimen of his handwriting in connection with a
prosecution for falsification.
Thank you very much
and
good day to everyone!
ALBERT D. REBOSA, M.D., LL.B.