Negligence And Medical Malpractice

NEGLIGENCE & MEDICAL MALPRACTICE ATTY. MALAYA M. CAPULONG, MD

NEGLIGENCE Negligence – want of care required by the circumstances.

NEGLIGENCE Negligence is the failure to observe that degree of care, precaution and vigilance which the circumstances justly demand resulting in injury to another person.

NEGLIGENCE The existence of negligence is determined by the behavior of the person in the situation.

NEGLIGENCE How do we determine if a person acted in a negligent manner? What is the standard of care?

NEGLIGENCE That which an ordinary prudent man would exercise under the same circumstances.

MEDICAL MALPRACTICE • Any act or failure to act by a member of the medical profession that results to harm, injury, distress, prolonged physical or mental suffering or the termination of life to a patient while that patient is under the care of that medical professional

MEDICAL MALPRACTICE • • • • • •

Doctors Nurses Midwives Pharmacists Dentists Physical Therapists

MEDICAL MALPRACTICE DUTY BREACH INJURY PROXIMATE

CAUSATION

MEDICAL MALPRACTICE DUTY

MEDICAL MALPRACTICE Duty to 

Possess medical knowledge



Possess the necessary skills



Exercise care



Use sound medical judgment

MEDICAL MALPRACTICE It is the responsibility of every doctor to practice medicine according

to

the

ethical

standards of his profession

MEDICAL MALPRACTICE Every member of the healthcare team should follow the ethical codes of their profession

MEDICAL MALPRACTICE Ordinary prudent man

Reasonably competent practitioner in the same class, acting in similar circumstances.

MEDICAL MALPRACTICE • DUTY

• BREACH

MEDICAL MALPRACTICE • Bad or unskillful practice by a physician or other professional in which the health or welfare of the patient is injured. • Failure of a professional to follow the accepted standards of practice of his profession.

MEDICAL MALPRACTICE • Failure to misdiagnosis.

diagnose

or

• Failure to provide appropriate treatment. • Unreasonable delay in treatment

MEDICAL MALPRACTICE • DUTY • BREACH

• INJURY

MEDICAL MALPRACTICE • DUTY • BREACH • INJURY

• PROXIMATE CAUSATION

MEDICAL MALPRACTICE Proximate Causation 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.

MEDICAL MALPRACTICE Failure to adhere to the standard of care

INJURY

MEDICAL MALPRACTICE “But for” the physician’s conduct the patient would not have been injured.

MEDICAL MALPRACTICE Doctrine of Res Ipsa Loquitor 

“The thing speaks for itself”



The fact of occurrence of

injury raises the presumption of negligence.

MEDICAL MALPRACTICE Doctrine of Res Ipsa Loquitor •The patient was injured in a manner that would not normally occur but for a breach of the applicable standard of care;

MEDICAL MALPRACTICE Doctrine of Res Ipsa Loquitor • He was injured by an agency or instrumentality within the exclusive control of the defendant;

MEDICAL MALPRACTICE Doctrine of Res Ipsa Loquitor 

Other possible causes are sufficiently eliminated by the evidence such that the jury could reasonably conclude that the negligence was, more probably than not, that of the defendant.

MEDICAL MALPRACTICE Doctrine of Vicarious Liability 

Liability for the tort of another



Secondary or indirect liability

MEDICAL MALPRACTICE Doctrine of Vicarious Liability 

Employer becomes liable for the

acts of an employee 

Employee must be acting within

the scope of their responsibilities

MEDICAL MALPRACTICE Doctrine of Vicarious Liability Employer – Employee relationship must exist and proven.

MEDICAL MALPRACTICE “Captain of the Ship” Doctrine Assumes that the doctor is in complete control of everything and everyone in the OR.

MEDICAL MALPRACTICE “Captain of the Ship” Doctrine Largely abandoned in other jurisdictions.

MEDICAL MALPRACTICE “Borrowed Servant” Doctrine The physician “borrows” the nurses, med tech, residents etc. employed by the hospital to help him provide medical care to his patients.

MEDICAL MALPRACTICE Doctrine of Apparent Authority Or Ostensible Agent - Fixes liability when there is no Employer-Employee relationship

MEDICAL MALPRACTICE Doctrine of Apparent Authority Or Ostensible Agent 1. The principal holds itself out to the public as a provider of medical services through advertising or by an express representation.

MEDICAL MALPRACTICE Doctrine of Apparent Authority Or Ostensible Agent 2. The patient “looked” to the hospital to provide competent medical care.

MEDICAL MALPRACTICE Is a Hospital Liable for Medical Malpractice?

NO

MEDICAL MALPRACTICE RAMOS vs. COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, ET. AL April 11, 2002

MEDICAL MALPRACTICE No Employee-Employer relationship between Drs. Hosaka and Gutierrez and De Los Santos Medical Center

MEDICAL MALPRACTICE Drs. Hosaka and Gutierrez are solely liable for their own negligent acts

MEDICAL MALPRACTICE Is a Hospital Liable for Medical Malpractice?

YES

MEDICAL MALPRACTICE Rogelio P. Nogales, et. al. vs. Capitol Medical Center, et. al. December 19 2006

MEDICAL MALPRACTICE Doctrine of Apparent Authority 2.

Plaintiff was led to believe that the negligent person was an employee or agent of the hospital – Appearance of authority

MEDICAL MALPRACTICE Doctrine of Apparent Authority 3.

The hospital knew that the person was claiming to be an agent/employee of the hospital

4.

The person relied upon the conduct of the hospital

MEDICAL MALPRACTICE • CMC granted hospital privileges to Dr. Estrada • On admission, consent forms were printed on CMC letterhead • The spouses Nogales were not informed that Dr. Estrada was an independent contractor

MEDICAL MALPRACTICE • Mr. & Mrs. Nogales chose Dr. Estrada because of his affiliation/employment with CMC which they characterized as a reputable hospital

MEDICAL MALPRACTICE PROFESSIONAL SERVICES, INC. vs. AGANA AGANA vs. JUAN FUENTES AMPIL vs. AGANA JANUARY 31, 2007

MEDICAL MALPRACTICE PSI’s (Medical City Hospital) liability is based on: Doctrine of Apparent Authority Doctrine of Corporate Negligence

MEDICAL MALPRACTICE Doctrine of Apparent Authority By accrediting Dr. Ampil & Dr. Fuentes and publicly advertising their qualifications the hospital created the impression that they were its agents.

MEDICAL MALPRACTICE Doctrine of Corporate Negligence The hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital.

MEDICAL MALPRACTICE Doctrine of Corporate Negligence The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by the hospitals commensurate with their inherent responsibility to provide quality medical care.

MEDICAL MALPRACTICE Duty of a hospital 2) the use of reasonable care in the maintenance of safe and adequate facilities and equipment; 3) the selection and retention of competent physicians;

MEDICAL MALPRACTICE Duty of a hospital 2) the overseeing or supervision of all persons who practice medicine within its walls; and 3) the formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients

MEDICAL MALPRACTICE QUESTIONABLE SPONGE COUNT SCRUB NURSE’ DUTY HOSPITAL LIABILITY

MEDICAL MALPRACTICE CHARITABLE, NON-PROFIT INSTITUTION

CORPORATE ENTERPRISE

MEDICAL MALPRACTICE • Criminal prosecution • Civil suit • Administrative complaint

MEDICAL MALPRACTICE Criminal Prosecution under the Revised Penal Code Art. 365 – Reckless Imprudence/Gross negligence resulting in 

Serious Physical Injuries



Less Serious Physical Injuries



Homicide

MEDICAL MALPRACTICE Distinguish Art. 365 from other provisions of the Revised Penal Code and other laws which makes certain acts criminal.

MEDICAL MALPRACTICE Art.

173, RPC – False Medical Certificates

Art.

253, RPC – Giving assistance to suicide

Art.

259,RPC – Abortion practiced by a physician or midwife and dispensing of abortives.

MEDICAL MALPRACTICE Sec. 17, RA 9165 – Maintenance and keeping of original records of transactions Sec. 18, RA 9165 – Unnecessary Prescription of Dangerous Drugs

MEDICAL MALPRACTICE Civil Suit for Negligence Civil Code – Art. 2176 – Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.

MEDICAL MALPRACTICE Administrative Liability Complaint for Negligence before the Professional Regulation Commission

THANK YOU AND HAVE A NICE WEEKEND!