Medical Negligence.docx

MEDICAL MALPRACTICE (TORTS AND DAMAGES) Physicians are not warrantors of cures or insurers against personal injuries or death of the patient. Difficulties and uncertainties in the practice of profession are such that no practitioner can guarantee results. Error of judgment will not necessarily make the physician liable. (Torts and Damages, Timoteo B. Aquino) “Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi then already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand." Subsequently, Hippocrates wrote what was to become part of the healer's oath: "I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous . . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession is the preservation of life and maintenance of the health of the people. Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned. Xxx As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people, and State's compelling interest to enact measures to protect the public from "the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma." Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent and skill." (Dr. Victoria L. Batiquin and allan Batiquin v. Court of Appeals, et al, 258 SCRA 334 [1996]). Doctors or physicians are experts, who, because of their training and the very nature of their work, are required to exercise utmost diligence in the performance of their tasks. (Torts and Damages, Timoteo B. Aquino) However, proving medical malpractice in the Philippines is one of the more difficult civil cases. Its difficulty lies, among others, on the fact that medical

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procedures involve, to a great degree, technical matters, which must be clearly understood first, prior to pursuing a claim that a treatment was attended with malpractice. The rights and obligations of physicians, and the law that governs the relationship between doctors and patients are covered by the Medical Act of 1959 (R.A. No. 2382) which provides, among others, the standardization and regulation of medical education; the examination for registration of physicians; and the supervision, control, and regulation of the practice of medicine in the Philippines. Under the Medical Act, gross negligence, ignorance, or incompetence in the practice of medicine resulting in an injury to or death of the patient shall be sufficient ground to suspend or revoke the certificate of registration of any physician. However, R.A. 2382 has no provision imposing civil or criminal penalty for acts constituting gross negligence, ignorance, or incompetence. Nonetheless, a patient who dies or suffers injury because of the attendance of any of these circumstances when a physician attends to him/her may be prosecuted under Article 365 of the Revised Penal Code or seek an award of damages under the Civil Code such as an action based on quasi-delict. A. CRIMINAL LIABILITY "Doctors are protected by a special law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishap or unusual consequences. Furthermore they are not liable for honest mistake of judgment.” (Cruz versus Court of Appeals, 282 SCRA 188 [1997])

Criminal liability for medical negligence may be, however, brought under Article 365 of the Revised Penal Code (criminal imprudence and negligence). The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same 2

circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.” “Inexcusable lack of precaution” is defined as “whether or not a physician has committed an ‘inexcusable lack of precaution’ in the treatment of his [or her] patient is to be determined according to the standard of case observed by other members of the profession in good standing under similar circumstances bearing in mind another the advance state of the profession at the time of treatment or the present state of medical science.” In cases where the negligence is not reckless in nature, the doctor may be held liable instead for simple imprudence. However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple imprudence are as follows. 1. 2.

that there is lack of precaution on the part of the offender; and that the damage impending to be caused is not immediate of the danger is not clearly manifest.

In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence, and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well as a causal connection of such breach and the resulting injury of his patient. The connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. (Jarcia, Jr. v. People, 666 SCRA 336 (2012) B. CIVIL LIABILITY The injured party may hold the physician liable for damages based on tort, called quasidelicts under Article 2176 of the New Civil Code. In general, negligence suits require proof that a party failed to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. It is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. (Layugan vs. Intermediate Appellate Court, citing Black’s Law Dictionary, Fifth Edition, 930). 3

The Supreme Court had occasion to explain that doctors, because of their training and the very nature of their work, doctors or physicians are required to exercise utmost diligence in the performance of their tasks, to wit: Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi then already provided: “If a physician make a deep incision upon a man with his bronze lancet and cause the man’s death, or operate on the eye socket of a man with his bronze lancet and destroy the man’s eyes, they shall cut off his hand.” Subsequently, Hippocrates wrote what was to become part of the healer’s oath: “I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot.” At present, the primary objective of the medical profession is the preservation of life and maintenance of the health of the people. Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned. xxx

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As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people, and the State’s compelling interest to enact measures to protect the public from “the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma.” Indeed, a physician is bound to serve the interest of his patients “with the greatest of solicitude, giving them always his best talent and skill.” Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession’s rigid ethical code and in contravention of the legal standards set forth for professionals, in general, and members of the medical profession, in particular.” (Dr. Victoria L. Batiquin and Allan Batiquin vs. Court of Appeals, G.R. No. 118231, 05 July 1996.) When the evidence show the presence of negligence, such as when a doctor, hospital or medical professional failed to perform the necessary medical services on a patient according to the degree of skill required from an ordinary practitioner of their respective professions, then a cause of action arising from negligence or quasi-delict exists. However, being a distinct type of 4

tort, the Supreme Court stated that, to prove medical malpractice or medical negligence, four (4) elements have to be established, to wit: “A word on medical malpractice or negligence cases. In its simplest terms, the type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient. Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. As with any civil case, substantial evidence must be presented to establish the liability of the responsible party. If the elements of duty, breach, injury and proximate causation are established with substantial evidence, then a hospital, doctor, or other medical professional will be held liable for malpractice. Civil liability, in the form of damages, may be awarded by the court in such instances. When a doctor or hospital accepts a patient for treatment, a physicianpatient relationship is created. The first element of duty arises at this stage. By accepting a case, the doctor or hospital commenced the duty to render medical service in favor of the patient in accordance with the expected training and skill of a medical practitioner. This is in line with the ruling of the Supreme Court in the case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al, to wit: Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and skill in the treatment of their patients. They have a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these professional duties of skill and care, or their improper performance, by a physician surgeon whereby the patient is injured in body or in health, constitutes actionable malpractice. Consequently, in the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for negligence.

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The second element of breach is present when the hospital or doctor does treatment in breach of professional duties. An example of this would be a doctor that applies treatment without consulting the patient’s history. It is a standard operating procedure for all doctors to apprise themselves about the medical history of a person before they decide on taking him/her as a patient. This process is necessary so that the doctor can gauge whether he/she is capable of successfully helping the patient and also for the doctor to make the proper preparations and decisions with respect to how to treat said patient. It is also worthy to note that under Section 2 Article II of the Code of Ethics promulgated by the Board of Medicine to govern the conduct of doctors practicing medicine in the Philippines, a physician has the obligation not to abandon a patient under any circumstance, to wit: Section 2. A physician is free to choose whom he will serve. He may refuse calls, or other medical services for reasons satisfactory to his professional conscience. He should, however, always respond to any request for his assistance in an emergency. Once he undertakes a case, he should not abandon nor neglect it. If for any reason he wants to be released from it, he should announce his desire previously, giving sufficient time or opportunity to the patient or his family to secure another medical attendant. Thus, it can be said that when a doctor or hospital unjustifiably refuses to proceed with treatment, or just suddenly abandons his or her patient, the act can be considered as breach of duty. The presence of the third element arises where injury, liability or even death arises as a consequence of a negligent medical treatment or procedure. The last element to establish medical malpractice or medical negligence, is however, the most difficult one to prove. Medical procedures are fraught with varying consequences, and affected by innumerable factors such as the environment, personal health, health of the other members of the family, food intake, medicine, activities of the patient, such that it would be difficult to establish, to a convincing degree, whether the injury is the proximate result or directly arose from the procedure conducted. However, there are instances of medical malpractice or medical negligence that involve the application of the familiar doctrine res ipsa loquitur. The doctrine of res ipsa loquitur, which directly translates to “the thing speaks for itself”, governs cases where negligence is clear by a simple examination of the injury or the circumstances surrounding the medical treatment given, such as where a gauze or a pair of scissors are left inside the body cavity after it has been sutured, or blood of a different type is infused to a patient. 6

In sum, the difficulty in successfully prosecuting medical negligence lies in the fact that medicine is not an exact science. There are numerous life-saving procedures that are experimental, or even not experimental, but are fraught with consequences, such that even the best doctors cannot predict the outcome of the treatment. Also, countless environmental variable play a direct hand in the effectiveness of a treatment. All that any medical professional or hospital has to do to avoid medical malpractice is to study the procedure well including the patient’s history, keep the patient well-informed of the procedure which the doctor or hospital intends to perform, conduct the treatment in good faith, and with the required degree of competence, diligence and skill. This way, any claim of malpractice may be avoided.” An important element of medical negligence is the duty of a physician to a patient. For the physician to be obliged to perform her/her duties, there must be a doctor-patient relationship established. The relationship of doctor-patient begins when the patient engages the services of a physician, and the physician accepts the case. “a physician-patient relationship may be created when the professional services of a physician are rendered to and accepted by another for purposes of medical or surgical treatment. (Quirk v. Zukerman, June 30, 2003) An implied physician-patient relationship can be inferred also from the circumstances prevailing. This relationship of physicianpatient is usually contractual in nature. The liability of the doctor for negligence may arise from contract. In cases, where no contractual obligation is present, the doctor may still be held liable for gross negligence based on quasi-delict because even a doctor who unilaterally treated a patient without the latter’s consent must exercise due care in making such treatment. 

STANDARD OF CARE: Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally under similar conditions, and in like surrounding circumstances. (Reyes v. Sisters of Mercy Hospital, October 3, 2000) Whether a physician committed an inexcusable lack of precaution in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. (Cruz v. CA, Nov. 18, 1997)The standard referred to here is not the average merit among all known practitioners from the best to the worst and from the most to the least experienced, but the reasonable average merit among ordinarily good physicians. (Reyes v. Sisters of Mercy Hospital) 7

However, the standard of care demanded from a general practitioner is ordinary care and diligence in the application of his knowledge and skill in his practice of the profession. He ought to apply to his patient what other general practitioners will apply when confronted with similar situation. (Pedro P. Solis, medical Jurisprudence, 19988 Ed.) A “specialist” on the other hand, duty to the patient is generally considered to be that of an average specialist, not that of a average physician. a. Examples of Negligence of Doctors. A doctor may be considered negligent when he fails to attend to his patient and delays in attending his patient. In Ramos v. Court of Appeals, the fact that the doctor arrived almost three hours after the scheduled operation was taken against the said doctor. Negligence may consist in error in diagnosis and in treatment. Error in diagnosis and error in treatment may both result because of the incompetence or inexperience of the doctor. In either case, the liability of the doctor attaches. The doctor cannot use as an excuse his or her inexperience. Error in diagnosis or treatment may be the result of failure on the part of the doctor to take a full medical history. In cases involving surgery, pre-operative examination and evaluation is required. Thus, in Ramos v. Court of Appeals, the anaesthesiologist failed to perform pre-operative evaluation of the patient which, in turn, resulted in faulty intubation. Similarly, the doctor may be considered negligent if he failed to give the proper advice or is otherwise guilty of negligence in his communications to the patient. For instance, a doctor who fails to give proper instructions to the patient regarding the frequency and quantity of medication may be held liable for negligence. In Spouses Flores v. Spouses Pineda, a doctor was made liable for the death of the patient that resulted when the doctor decided to proceed with the "D & C" procedure despite the patient's hyperglycemia and without adequately preparing the patient. In Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan v. People. two doctors in the Emergency Room failed to conduct a thorough examination of the victim of a vehicular accident. The doctors failed to detect the fractures in the bone that caused fever, swelling of the right leg and misalignment of the right foot. The doctors made baseless assurances that everything was all right thereby depriving the victim of "adequate medical attention that placed him in a more dangerous situation than he was already in."

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Casumpang v. Cortejo, involved misdiagnosis of dengue and the patient was not timely treated for dengue as a consequence; instead of dengue, the diagnosis was bronchopneumonia. Rosit . Davao Doctors Hospital involved a dentist who failed to install the erect size of screws causing the sufferings of the patient; one of the screw struck the molar of the patient. b. General Practitioners v. Specialists. The "standard of care demanded from a general practitioner is ordinary care and diligence in the application of his knowledge and skill in his practice of the profession. He ought to apply to his patient what other general practitioners will apply when confronted with similar situation." On the other hand, "a specialist's legal duty to the patient is generally considered to be that of an average specialist, not that of an average physician. A physician who holds himself out as having special knowledge and skill in the treatment of a particular organ or disease or injury is required to bring to the discharge of his duty to a patient employing him as such as a specialist, not merely that of an average degree of skill possessed by general practitioners but that special degree of skill and care which physicians, similarly situated who devote special study and attention to the treatment of such organ, disease or injury ordinarily possess, regard being in the state of scientific knowledge at the time." The Court reiterated in Solidum v. People that the standard of care by which the specialist is judged is the care and skill commonly possessed and exercised by similar specialists under the circumstances. The specialty standard of care may be higher than that required of the general practitioner." Stated differently, the proper standard is whether the physician, of a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession. One holding out as a specialist should also be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession. In both cases, it is permissible to consider the resources available to the general practitioner and the specialist as one of the circumstances in determining the degree of skill and care required. c. National Standards. Each physician may with reason and fairness be expected to possess or have reasonable access to such medical knowledge as is commonly possessed or reasonably available to competent physician in the same specialty or general

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field of practice in the Philippines The standard is a national standard and not the standard of a particular community only. d. Locality Rule in Relation to Facilities. Each physician has a duty to have a practical working knowledge of the facilities, equipment, resources and options reasonably available to him or her as well as the practical limitations on the same. This includes knowledge of personnel in health related fields and their general knowledge and competence. The doctor must be aware of the specialized services or facilities available in his area. Hence, to a certain extent, local medical custom and the facilities in the community may affect the duty of care of doctors but only in the sense that the "content of the duty of care may be informed by local medical custom but never subsumed by it." "The duty of care, as it thus emerges from considerations of reason and fairness, when applied to the facts of the world of medical science and practice, takes two forms: (a) a duty to render a quality of care consonant with the level of medical and practical knowledge the physician may reasonably be expected to possess and the medical judgment he may be expected to exercise; and (b) the duty based upon the adept use of such medical facilities, services, and equipment and options as are reasonably available. With respect to this second form of the duty, [the Court] regard[s] that there remains a core of validity to the premise of the old locality rule." With respect to the first form (a), national standards apply. e. Neighborhood Rule. The Supreme Court articulated the General Neighborhood standard in Lucas v. Tuano observing that in treating his patient, a physician is under a duty to the patient to exercise that degree of care, skill, and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. The Court said that "proof of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill, and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. It is submitted that the term "neighborhood should not be used in the formulation of the standard of care that applies not only doctors but also to all persons in general. It is believed that inclusion of the word neighborhood" in the standard of care will only mal the rule vague if the term remains undefined; the word may eve lead into confusion regarding the true nature of the standard.

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Reference to the degree of care employed by persons in the same general neighborhood is strikingly similar to the formulation of the standard of care in common law. However, the rule in common law is different from the rule under the New Civil Code. In common law, neighborhood connotes proximity. Lord Atkin in Donoghue U. Stevenson made the classic announcement of the neighborhood rule where he opined that there must be some general conception of relations giving rise to a duty of care. He explained: "x x x Who, then, in law, is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called question." The neighborhood rule articulated by Lord Atkins was later elaborated in Anns v. Merton London Borough Council (LBC) where it was explained that in negligence cases in addition to foreseeability of damage, "one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is sufficient relationship of proximity or neighborhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises." Hence, Anns v. Merton LBC appears to treat proximity as synonymous with foreseeability. Negligence of Residents. "Resident doctors" are licensed doctors under training for a particular specialty. They are merely "subordinates who usually defer to the attending physician on the decision to be made and on the action to be taken." The attending physician, on the other hand, is primarily responsible for managing the resident's exercise of duties. While attending and resident physicians share the collective responsibility to deliver safe and appropriate care to the patients, it is the attending physician who assumes the principal responsibility of patient care. Because he/she exercises a supervisory role over the resident, and is ultimately responsible for the diagnosis and treatment of the patient, the standards applicable to and the liability of the resident for medical malpractice is theoretically less than that of the attending physician. These relative burdens and distinctions, however, do not translate to immunity from the legal duty of care for residents, or from the responsibility arising from their own negligent act." Nevertheless, they must exercise the same degree of care that is required of a physician. 1.05. ERROR OF JUDGMENT.

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Error on the part of the doctor does not necessarily result in the finding of negligence. Whether an error of judgment is negligent or not depends on the nature of the error. "If it is one that would not have been made a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, with ordinary care, might have made, then it is not negligence." 1.07. EXPERT TESTIMONY. Whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. Courts defer to the expert opinion of qualified physicians because of the court's realization that the qualified physicians possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should be offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion. What Must be Established Through an Expert. A doctor is duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these professional duties of skill and care, or their improper performance by a physician surgeon, whereby the patient is injured in body or in health constitutes actionable malpractice. As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. 1.08. RES IPSA LOQUITUR. Medical malpractice can also be established by relying on the doctrine of res ipsa loquitur. In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur: (1) The accident is of a kind 12

which ordinarily does not occur in the absence of someone's negligence; (2) It is caused by an instrumentality within the exclusive control of the defendant or defendants; and (3) The possibility of contributing conduct which would make the plaintiff responsible is eliminated. However, the application of the doctrine of res ipsa loquitur in medical malpractice cases is limited to cases where the court from its fund of common knowledge can determine the standard of care. These are cases where an ordinary layman can conclude that there was negligence on the part of the doctor. It is restricted to situations where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. If a layman cannot or is not in a position to say if due care has been exercised, the testimony of an expert would then be indispensable. 1.10. DOCTRINE OF INFORMED CONSENT. Unless excused, the doctor must secure the consent of his patient to a particular treatment or an investigative procedure. Consent is an integral part of the physician-patient relationship and doctors are duty bound to obtain an authorization for care carried out in their offices or elsewhere. However, consent of the patient may be express or implied. a. Nature of Liability. A doctor may be liable for quasi-delict under Article 2176 of the New Civil Code if he negligently failed to secure the consent of a patient to treatment. The liability may be imposed because the doctor failed to warn the patient. The nature of the liability of the doctor was explained in this wise: "A physician is under a duty to treat his patient skillfully but proficiency in diagnosis and therapy is not the full measure of his responsibility The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it. Due care may require a physician perceiving symptoms of bodily abnormality to alert the patient to the condition. It may call upon the physician confronting an ailment which does not respond to his ministrations to inform the patient thereof. It may command the physician to instruct the patient as to any limitations to be presently observed for his own welfare, and as to any precautionary therapy he should seek in the future. It may oblige the physician to advise the patient of the need for or desirable. ity of any alternative treatment promising greater benefit than that being pursued. Just as plainly, due care normally demands that the physician warn the patient of any risks to his well-being which contemplated therapy may involve.

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The context in which the duty of risk-disclosure arises is invariably the occasion for decision as to whether a particular treatment procedure is to be undertaken. To the physician, whose training enables a self satisfying evaluation, the answer may seem clear, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie. To enable the patient to chart his course understandably, some familiarity with the therapeutic alternatives and their hazards becomes essential. A reasonable revelation in these respect is not only a necessity, but, as [the Court] see[s] it, is as much a matter of physician's duty. It is a duty to warn of the dangers lurking in the proposed treatment, and that is surely a facet of due care. It is, too, a duty to impart information which the patient has every right to expect. The patient's reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with armslength transactions. His dependence upon the physician for information affecting his well-being, in terms of contemplated treatment, is well-nigh abject. x x x." b. Rationale and History of Liability for Informed Consent. "The negligence theory of consent puts the patient and the health practitioner on a more even footing that they were previously, particularly when inadequate disclosure of information is concerned." The existence of the negligence theory reinforces the need for greater diligence on the part of health personnel in providing pa ents with information relevant to their health care." In Dr. Rubi Li v. Spouses Soliman, the Supreme Court the Supreme Court explained the nature and history of the doctrine of informed consent as follows: "The doctrine of informed consent within the context of physicianpatient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure. In the United States the seminal case was Schoendorff v. Society of New York Hospital which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozo's oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages. From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the 14

proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits. Subsequently, in Canterbury v. Spence, the court observed that the duty to disclose should not be limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patient's right of selfdetermination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves. The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physician's responsibility. It is also his duty to warn of the dangers lurking in the proposed Treatment and to impart information which the patient has every right to expect. Indeed, the patient's reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with arms-length transactions. The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or no treatment. As to the issue of demonstrate. ing what risks are considered material necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a patient's decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice actions generally, there must be a causal relationship between the physician's failure to divulge and damage to the patient. Reiterating the foregoing considerations, Cobbs v. Grant deemed it as integral part of physician's overall obligation to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and potentially involved in each. However, the physician is not obliged to discuss relatively minor risks inherent in common procedures when it is common knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot evaluate data, and where the patient is a child or incompetent. The court, thus concluded that the patient's right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice. The scope of the physician's communications to the patient, then must be measured by the patient's need, and that need is whatever information is material to the decision. The test 15

therefore for determining whether a potential peril must be divulged is its materiality to the patient's decision. Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to inform patient, there must be causal relationship between physician's failure to inform and the injury to patient and such connection arises only if it is established that, had revelation been made, consent to treatment would not have been given." c. Elements of Liability. The presence of doctor-client relationship must be established before the doctrine of informed consent can be applied. In addition to this, the Supreme Court ruled that the plaintiff must establish of informed consent: four essential elements in a malpractice action based on the doctrine (1) The physician had a duty to disclose material risks; (2) The physician failed to disclose or inadequately disclosed those risks; (3) As a direct and proximate result of the failure to disclose consented to; and patient consent to treatment she otherwise would not have (4) The plaintiff was injured by the proposed treatment. The Court observed that "the gravamen in an informed consent case requires the plaintiff to 'point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it." e. Scope of Duty. What should be disclosed depends on the particular circum chances of a given case. "The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances. Thus, doctors must consider, on a case-to-case basis, various factors such as the medical steps preceding diagnosis, the nature and purpose of the proposed treatment, the risk of the treatment, treatment alternatives and the risk of doing nothing as an option. Captain of the Ship Doctrine This is especially true if the doctor is the head of the surgical team, the so-called captain of the ship, because as such he has the responsibility to see to it that those under him perform the task in the proper manner. Under the 16

"Captain of the Ship" Doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that goes wrong within the four corners of the operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has extension of control. 2. LIABILITY OF HOSPITALS. The Supreme Court clarified in its February 2, 2010 Resolution in Professional Services, Inc. v. Agana, the different bases of liability of hospitals in relation to the negligence of doctors: "While in theory a hospital as a juridical entity cannot practice medicine, in reality it utilizes doctors, surgeons and medical practitioners in the conduct of its business of facilitating medical and surgical treatment Within that reality, three legal relationships crisscross: (1) between the hospital and the doctor practicing within its premises; (2) between the hospital and the patient being treated or examined within its premises; and (3) between the patient and the doctor. The exact nature of each relationship determines the basis and extent of the liability of the hospital for the negligence of the doctor. Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 in relation to Article 2180 of the Civil Code or the principle of respondeat superior. Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in relation to Article 1431 and Article 1869 of the Civil Code or the principle of apparent authority. Moreover, regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation. The vicarious liability of a hospital as an employer or as a principal of an agent may also be based either on quasi-delict under Article 2180 of the New Civil Code and delict under Article 102 or 104 of the Revised Penal Code 119 A single negligent act or omission of an employee may give rise to different sources of vicarious liability of the hospital-employer quasi-delict and delict. These tort obligations based on delict and quasi-delict - may even concur with obligation arising from contract. This concurrence of causes of action is of course subject to proscription against double recovery. Note that the hospital may not escape liability by the mere fact that the patient used of health care plan or card. The only effect of the availment of the 17

patient's card benefits is that the choice of physician is limited only to physicians who are accredited with the health card provided. Thus, the patient's use of health care plan in this case only limited the choice of doctors (or coverage of services, amount etc.) and not the liability of doctors or the hospital. 2.01. VICARIOUS LIABILITY OF HOSPITAL AS EMPLOYER. As explained in the above-quoted ruling in Professional Health Services, Inc. v. Agana,12 the hospital itself may be vicariously liable for the act or omission of the physician if: (1) there is employer employee relationship between the hospital and the physician (under Article 2180), or (2) if the doctrine of apparent authority can be applied, that is, if the hospital holds out to the patient that the physician is an agent.123 The Supreme Court explained in its Resolution on the Motion for Reconsideration in Rogelio Ramos, et al. v. Court of Appeals, et al., that there was no employer-employee relationship between the hospital and the physician that will make the hospital liable under Article 2180. In Professional Services, Inc. v. Court of Appeals, the Supreme Court sustained the liability of hospitals based on the doctrine of corporate responsibility. The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. This is because the modern hospital now tends to organize a highly professional medical staff whose competence and performance need also to be monitored by the hospital commensurate with its inherent responsibility to provide quality medical care. Such responsibility includes the proper supervision of the members of its medical staff. Accordingly, the hospital has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. "The corporate negligence doctrine imposes several duties on a hospital:(i) to use reasonable care in the maintenance of safe and adequate facilities and equipment; (ii) to select and retain only competent physicians; (iii) to oversee as to patient care all persons who practice medicine within its walls; and (iv) to formulate, adopt, and enforce adequate rules and policies to ensure quality care for its patients. These special tort duties arise from the special relationship existing between a hospital or nursing home and its patients, which are based on the vulnerability of the physically or mentally ill persons and their inability to provide care for themselves."

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