• -branch of medicine that deals with the application of medical knowledge to the purposes of law and in the administration of justice
• 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.
• 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.
CA. orders. Proclamation.SOURCES OF LAW
• Constitution • Laws enacted by the legislative body • Decrees. Letters. Orders. BP. RA • Administrative acts. 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.
. • The right to regulate the practice of medicine is based on the police power of the state. 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.
control and regulation of the practice of medicine
.LICENSURE AND REGULATORY LAWS
• • • • • • • • • • • 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.
APMC Dean. To determine and prescribe the requirements for admission into a recognized college of Medicine. 8. To promulgate. To determine and prescribe requirements for the minimum physical facilities. 5. Bureau of Private Schools Chairman.Secretary of Health Director. 2. To determine and prescribe the minimum required curriculum.
. 7. UP-College of Medicine
Functions: 1. prescribe and enforce the necessary rules and regulations. determine and approve hospitals for training. To authorize the implementation of experimental curriculum. To accept applications for admission to a medical school.Secretary of Education Members . PMA Council of Deans. To determine and prescribe the minimum number and qualifications of teaching personnel. To select. Board of Medicine Representative. 4. 6.BOARD OF MEDICAL EDUCATION
• • • • • • • • • • • • • • • • • • Composition: Chairman . 3.
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
.Not a member of any faculty of any medical school (including any pecuniary interest).BOARD OF MEDICINE
• • • • • • • • • Composition: Six members appointed by the president from a list submitted by the Executive Council of the PMA. . • .
Qualifications: . .
.Of good moral character and of recognized standing in the medical profession as certified by PMA.Natural-born citizen.In the practice of medicine for at least 10 years.Duly-registered physician.
issue summons.To promulgate. 6. 7. To determine and prepare the contents of the licensure examinations. To issue certificate of registration. 3. 9. 2. Functions and Responsibilities:
• • • • • • • 1. 4. To suspend. correction and registration. To promulgate decisions on such administrative cases subject to the review of the Commission. with the approval of PRC. 8. rules and regulations in harmony with the provisions of the Medical Act of 1959 and necessary for the proper practice of medicine. 10. To study the conditions affecting the practice of medicine.Powers. To promulgate such rules and regulations for the proper conduct of the examinations. revoke or reissue certificate of registration for causes provided by law or by the rules and regulations promulgated.
. To investigate violations. To administer oath. subpoena and subpoena duces tecum. 5. To conduct hearings or investigations of administrative cases filed before them.
ADMISSION TO THE PRACTICE OF MEDICINE
Prerequisites: • 1. Certificate of Eligibility from the Board of Medical Education. Not convicted of any crime involving moral turpitude.
. Good moral character . 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.
• Final or Complete Examination -Citizen of the Philippines or of any country who has submitted competent and conclusive .• 3.Of good moral character. -Have completed the first two years of the medical course. . Examination Requirements .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).
.must have passed the corresponding Board Examination • Preliminary Examination -At least 19 years of age.
. -Declared to be of unsound mind. 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.• 4. -Found guilty of immoral or dishonorable conduct after investigation by the Board of Medicine.
Pharmacology and Therapeutics • Pathology • Medicine • Obstetrics and Gynecology • Pediatrics and Nutrition • Surgery and Ophthalmology. • Otorhinolaryngology • Preventive Medicine and Public Health • Legal Medicine.Anatomy and Histology • Physiology • Biochemistry • Microbiology and Parasitology • Final . Ethics and Medical • Jurisprudence
Scope of Examination:
.• Preliminary .
mitigating. 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. or relieving bodily disease or conditions. • It is diagnosing and applying and the usage of medicine and drugs for curing.
. that is.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.
10. Art.ACTS CONSTITUTING THE PRACTICE OF MEDICINE (pursuant to Sec. III of the Medical Act of 1959 as amended):
regardless of the nature of the remedy or treatment administered. or even without the same. fee. physically examine any person. deformity. physical. mental. • C) who shall falsely use the title of M. psychical condition or any ailment. operate. prescribed or recommended.• A) who shall for compensation. or through the radio. after his name. advertisement. either offer or undertake by any means or method to diagnose. injury. and diagnose. reward in any form paid to him directly or through another. physical. • B) who shall by means of signs. shall be considered as engaged in the practice of medicine.D. cards. deformity.
. written or printed matter. treat. or prescribe any remedy for human disease. operate or prescribe any remedy for human disease. mental or psychical condition. television or any other means of communication. injury. real or imaginary. treat.
• b) Application of medicated massage. • c) Hospital.• By DECISIONS OF COURTS are not considered to constitute practice of medicine: • a) One who takes bp reading. • d) Nurse anesthesist
f) Any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws. nurse or midwife are not available. d) optometrist. III. Prosthetist. b) dentist.
• • •
. e) Any person who renders any service gratuitously in cases of emergency or in places where the services of a physician.11. Art. g) Clinical psychologist with the prescription and direct supervision of a physician. c) physiotherapist. Medical Act of 1959 as amended): a) Any medical student duly enrolled in an approved medical college.Exemptions
• • • • • • By PROVISIONS OF LAW are not considered to constitute practice of medicine (Sec.
not deemed to be a
practice of medicine but part of his religious freedom.
. • -Acted in pursuance of his religious belief and with the tenets of his church he professes. • -Related to constitutional guarantee to religious freedom (freedom to believe and freedom to act in accordance with one‟s belief).Faith Healing
-There is nothing in the Medical Act of 1959 exempting it from the definition of the acts which constitute practice of medicine.
IV. Penalties • Pursuant to Sec. 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.
.ILLEGAL PRACTICE OF MEDICINE
• Practice of medicine by any person not qualified and not duly-admitted to perform medical acts in compliance with law. in the discretion of the court.28. Art.
. Those who have complied with the prerequisites to the practice of medicine in accordance with Sec. 8. Art. III.• 1. Medical Act of 1959 as amended.
Medical Act of 1959 as amended:
Exclusive consultation in specific and definite cases. Commissioned medical officers stationed in the Phils in their own territorial jurisdiction.• 2. Those who can have limited practice without any certificate of registration in accordance with Sec.12. Exchange professors in special branches of medicine. III. Art.
. 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. Attached to international bodies to perform certain definite work in the Phils.
. Allowing Former Filipino Professionals to Practice Their Respective Professions in the Philippines • Proviso: • .Have registered with PRC and paid their professional fee. • .• 3. “Balikbayan” Physicians pursuant to PD 541.Of good standing prior to their departure and in their adopted country. • Pay the corresponding income tax.
• 6.11(a) and Sec.III. • 5.12(d). Art. Limited practitioners of medicine • .• 4. Medical Students pursuant to Sec. Foreign physicians qualified to practice by Reciprocity Rule or by endorsement. Medical Act of 1959 as amended.Those that are governed by specific licensure laws
• -Practice of medicine may be employed and controlled by unqualified physicians.
.Rationale why artificial persons
cannot practice medicine
• -Cannot be subjected to licensure examinations as required by law. • -Deprivation of free choice of physicians . • -Professional relationship between the patient and the physician will be impaired.
is legally licensed to practice medicine by the responsible authorities and is capable of undertaking the prevention.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.” (WHO)
. and treatment of human illness by the exercising independent judgment and without supervision. diagnosis.PHYSICIAN
defined.• 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. and by which these powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.”
Jur. and to establish certain first principles on which the government is founded. (11Am. 606)
• To prescribe the permanent framework of a system of government. to assign to the several departments their respective powers and duties.
ESSENTIAL PARTS OF A
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
to give something or to render some service(Art.is the meeting of minds between two persons whereby one binds himself with respect to the other. NCC)
• Contract .1305.
Nature of the relationship
• Consensual .based on mutual consent both parties • Fiduciary .based on mutual trust and confidence
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.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. which could be remuneratory or an act of liberality •
Expressed – explicitly stated orally or in writing 2.Forms of Physician-Patient Relationship
1. Inferred by law as a matter of reason and justice for their acts or conduct
.Implied – the existence can be inferred from the acts of the contracting parties.
Some Instances where there is no Physician-Patient Relationship by DECISIONS OF COURTS
• 1. PE for eligibility for insurance. Casual consultation in an unordinary place. • 3. In performing an autopsy. • 4.
. • 5. Physician appointed by court to examine the accused. • 2. Pre-employment PE for purposes of determining whether an applicant is suitable for employment.
anxiety and other distressing symptoms.
.• PSYCHOLOGICAL PATTERNS OF PHYSICIANPATIENT RELATIONSHIP • ACTIVITY-PASSIVITY RELATION • No interaction between physician and patient because the patient is unable to contribute activity. • MUTUAL PARTICIPATION RELATION • It is in the nature of a negotiated agreement between equal parties. he seeks help and willing to cooperate. • GUIDANCE-COOPERATION RELATION • Patient is conscious and suffering from pain. This is characteristic in an emergency cases when the patient is unconscious. The physician is in a position of trust.
DUTIES and OBLIGATIONS Imposed on the Physician in the Physician-Patient Relationship
He should posses the knowledge and skill of which an average physician is concerned. He is obliged to exercise the best judgment. • 4. • General practitioner vs Specialist • 2.
– “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.• 1. He should use such knowledge and skill with ordinary care and diligence. He has the duty to observe utmost good faith.
B.N.it does not promise or guaranty that the treatment will not harm the patient .it does not imply any promise or guaranty that the treatment will benefit the patient .it does not promise that the physician will not commit errors in an honest way
.it does not imply any promise or guaranty that the treatment will produce certain result .Physician-Patient relationship does not imply
guaranty or any promise that the treatment will be successful .
DUTIES and OBLIGATIONS Imposed on the Patient in the Course of the PhysicianPatient Relationship
He must state whether he understands the contemplated course of action.
. He must give an honest medical history. orders and suggestions of the physician • 4. • He must exercise the prudence to be expected of an ordinary patient under the same circumstances. He must inform the physician of what occurred in the course of the treatment. • 3. • 2. He must cooperate and follow the instructions.• 1.
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.
– 4. – 5. Withdrawal of the physician provided: a) with consent of the patient. – 2. Fulfillment of the obligations stipulated in the contract. – 7. – 9. Mutual agreement for its termination. The following are some ways of termination of the relationship:
– 1. – 3. Discharge of the physician by the patient. Incapacity of the physician – 6.
. – 8. Death of either party. In emergency cases.TERMINATION • It is the time when the duties and obligations by a physician to his patient ceases. Expiration of the period as stipulated. when the physician of choice of the patient is already available or when the condition of emergency ceases.Recovery of the patient or when the physician considers that his medical services will no longer be beneficial to the patient. and b) patient is given ample time and notice.
RIGHTS OF PHYSICIAN
to choose patients to limit practice of medicine to determine appropriate management procedures to avail of hospital services
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. Philippine Constitution 1987
. bill of rights. III.
• • Related provisions • Art II.2 Code of Ethics • “xxx…free to choose whom he will serve…xxx. • Cannot be compelled to accept professional employment. Sec. the Code of Medical Ethics and RA 6615 provides otherwise in cases of emergency. • • NB: The law does not give any qualification the right of the physician to choose his patient.Any person who is given right to practice medicine is not obliged to practice medicine.always respond to any request for his assistance in emergency….. however.RIGHT TO CHOOSE PATIENTS
• .xxx” •
Although the ethical rule obliges a physician to attend to an emergency.”
• Sec.are required to render immediate emergency medical assistance…xxx.a physician should administer at least first aid treatment and then refer to a more qualified and competent physician ……xxx”
• Sec. xxx …. Sec.3 Code of Ethics • “In cases of emergency. Medical Act of 1959 • “”xxx……. there is a risk to his life.1 RA 6615 • “All government and private hospitals…xxx .24 No. • 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
. his failure to respond to it may not make him liable if in so doing. II.12.• Art.
law. medical society. professional ethics.RIGHT TO LIMIT HIS MEDICAL PRACTICE
• • • • • • • • 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. 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
12. Rules of Court
. Sec.RIGHT OF EXEMPTION FROM EXECUTION OF INSTRUMENTS AND LIBRARY Rule 39.
Any qualified medical practitioner has the right to become a member of the PMA through one of its component society.• 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
• .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
• .Existence of friendship does not imply gratuitous services.
.Based on the physician-patient contractual relationship. • .
no one must enrich himself at the expense of others . He should however. Code of Ethics
• “…should willingly render gratuitous service to a colleague.“service rendered service paid”
. be furnished the necessary traveling expenses…xxx…this provision shall not apply to physicians who are no longer in the active practice…. 2.Art IV. Sec.xxx.”
Doctrine of Unjust Enrichment . to his wife and minor children or even parents provided the latter are aged and being supported by the colleague.
. 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. Retainer Fee – measured by the space of time rendered by patient • 3. and the agent will share in the medical fee. Simple Contractual Fee – specifically stating the value of such medical service.Kinds of Medical Fees:
• 1. either orally or in writing • 2.
and other incidental expenses. • . Code of Ethics “xxx…. through solicitors or agents. is unethical. medicines. directly or indirectly. the latter shall be responsible for the payment of hospital bill. III.
.this kind of fee is unethical because the amount wagers with the unforceable contingencies .Art. Straight Fee – for the amount tendered by the patient to the physician.” • 1. lab fees.solicitation of patients. Sec 5.
c) The professional fee demanded is reasonable.Method of Collection of Payment for Medical Services
• 1. d) The person liable for the payment is the defendant. b) The physician has rendered professional service to the patient. 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.
• NB. ascendants. 3. of the nearest degree. brothers and sisters.• The obligation to pay devolves on the patient himself provided he is of legal age.
. medical fee shall be made from the following persons in order:
1. • If the patient dies or becomes legally incapacitated to pay. of the nearest degree. spouse. 4. 2. • Implied promise to pay the physician by the benefactor of the medical services rendered in emergency cases. of sound mind and has the capacity to enter into a contractual relation. descendants.
When the physician cannot charge the patient pursuant to the Code of Ethics. 8. In government charity hospitals. Breach of contract. 4. Those covered by Phil health. Rendered in private charitable institutions if expressly gratuitous to the indigent patients. health centers and other similar health units. 5. 3. Agreement that the service is gratuitous. 7.Instances where the physician cannot recover professional fees:
2. Waiver on the part of the physician. 6. Medical services rendered under a contract of employment unless expressly provided otherwise.
Right to disclosure of information • 5. Right to confidential information • 6. Right of treatment • Right to refuse necessary treatments
. Right to religious belief • 3. Right of privacy • 4. Right to give consent to diagnostic and treatment procedures • 2.RIGHTS OF PATIENTS
• 1. Right to choose his physician • 7.
RIGHT TO GIVE CONSENT TO DIANOSTIC PROCEDURES
• Obligations of the Physician to Inform the Patient: • 1. Potential danger if not applied • 4.patient is the final arbiter of what must be done with his body. Prospect of success • 3. Risk involved • 2. Diagnosis • 2.”
. Alternative methods of treatment • • “…. General nature of the contemplated procedure • 1.
The physician-patient relationship is fiduciary in nature. Patient‟s right to self-determination. • 2. • 3. Contractual relationship.
.Bases of Consent
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
there is an “implied consent” or the physician is “privilege because he is reasonably entitled to assume consent • 2.Instances When Consent Is Not Necessary
• 1. In cases of emergency. When the law made it compulsory for everyone to submit to the procedure
Voluntary • 3.Requisites of a Valid Consent
• 1. Subject matter must be legal
. Informed or enlightened consent • 2.
Expressed consent – written or oral • 2. Implied consent may be deduced from the conduct of the patient
.Forms of consent
General or Blanket consent • 2. Non-liability or exculpatory clause
. Limited or conditional consent • 3.Scope of the Consent
• 2. Nature of his condition. Natured of proposed treatment or procedure. • 3. • 4. Risk involved. Possible alternative methods. Chances of success or failure • Consent must be given freely or voluntarily
. • 5.
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.
If patient is minor. paternal grandparents having preference. consent of the grandparents must be obtained.• Persons Who Can Give consent
– 1. In the absence of parents and grandparents. – 2. – 4. Other person who may give consent having substitute parental authority. eldest brother or sister. In the absence of the parents. Patient .
. provided one is of age and not disqualified by law to give consent. – 5. consent must be obtained from the parents. – 3.
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.
. the court may grant consent for the minor.expressed refusal of a minor to surgery shall not prevail over the existing emergency • .NB:
• .Doctrine of parens patriae .consent of minor is not valid if the procedure will not benefit him • .
without discrimination or preference. Sec. shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.”
. The free exercise and enjoyment of religious profession and worship.Art. 5.RIGHT TO RELIGIOUS BELIEF
• . III . Philippine Constitution • “No law shall be made respecting an establishment of religion or prohibiting the free exercise therof.
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
. constitutes fraud. 1339. when there is duty to reveal them. as when the parties are bound by confidential elations.Art. Civil Code states that “xxx……failure to disclose pacts.
a person authorized to practice medicine. II. except when it is required in the interest of justice.Sec. Rule 130. Code of Medical Ethics.RIGHT OF CONFIDENTIAL INFORMATION
• • Statutory Privileged Communication Pursuant to the Rules of Court. Ethical/Professional Confidential Information Pursuant to Art.6. and which would blacken the character of the patient. which information was necessary to enable him to act in that capacity. 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. public health or public safety. be examined as to any information which he may have acquired in attending such patient in a professional capacity. surgery or obstetrics cannot in a civil case. Sec. without the consent of the patient. or anything that may reflect upon the moral character of the person involved.
. even after death. 24(c). He should never divulge this confidential information.
When the patient waives its confidentiality. – 3.
. When such disclosure is necessary to serve the best interest of justice. – 2. When the disclosure will serve public health and safety.• Some instances where confidentiality is not applicable:
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.”
.” • • Art II.RIGHT TO CHOOSE HIS PHYSICIANS
RIGHT TO TREATMENT • . 1st par. 1. • • Sec.3 of the Code of Medical Ethics • “In cases of emergency.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.In emergency cases the patient has the right to treatment. RA 6615 • Provides that “xxx…. Sec. wherein immediate action is necessary.
should prevail. Where the performance of one‟s duty conflicts with the other. the State has the right to assume guardianship when the child is neglected by the parents to have the child treated.RIGHT TO REFUSE TREATMENT
• . the patient has no right to refuse treatment
• .When the law provides for treatment. the physician must act in the best interest of the patient
. every man of adult age and of sound mind has the right to determine what must be done in his own body.The social commitment of the physician is to sustain life and relieve suffering. and parents have no right to base it on religious beliefs or any other grounds. A man is the master of his own self and may expressly prohibit a life-saving surgery or medical treatment.In the legal sense.Doctrine of parens patria. the choice of the patient. In the absence of the patient‟s choice or authorized proxy. • . or his family or legal representative if incompetent to act on his own behalf. • .
– 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. – Laws: Medical Act of 1959 as amended including the Code of Ethics and Rules and Regulations of the PRC. – Laws: Revised Penal Code and other special laws. – A valid exercise of the police power of the State. Civil Code of the Philippines and other related laws. – Penalty: imprisonment and/or fine.
– An act or omission which constitute a crime by the physician. to revocation of license. – Penalty: reprimand.LIABILITIES OF PHYSICIAN
– Right to practice is temporarily withdrawn from the physician. 100. suspension. RPC states that “ Every person criminally liable is civilly liable. – Art.”Penalty: damages
Right to hearing. 4. such relevant evidence as a reasonable mind might accept as adequate to support a conclusion • Administrative Due Process:
– – – – – 1. (Ang Tibay vs. CIR)
. 3. Evidence must be substantial. or at least contained in the record and disclosed to the parties. 5. – 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. 2. Tribunal must consider the evidence presented.ADMINISTRATIVE LIABILITIES
• Quantum of evidence needed: substantial evidence. Decision must have something to support itself. Decision must be based on the evidence adduced at the hearing.
GROUNDS FOR ADMINISTRATIVE LIABILITIES Sec.24, Art.III, Medical Act of 1959 as amended
– 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. –
– 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.
– 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.
• 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)
his registration may be cancelled or revoked if:
– a. The crime wherein the physician was found guilty involved
moral turpitude. – b. aside from imprisonment and/or fine.
.• Presumption of Innocence and Equipoise Rule
• Conviction of a physician. The law imposes revocation of the license.
365.Art. had it been intentional. shall commit any act which. would constitute a grave felony.” • • Imprudence – deficiency of action or failing to take the necessary precaution once they are foreseen. by reckless imprudence.Incidental to the practice of medicine:
• Imprudence and Negligence. the penalty of arresto mayor in its minimum periods shall be imposed. •
. the penalty of arresto menor shall be imposed…xxx. if it would have constituted a less grave felony. Revised Penal Code • “Any person who. if it would have constituted a light felony. shall suffer the penalty of arresto mayor in its maximum period to prision correctional in its medium period.
without malice. • • Negligence. • • 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.
. physical condition and other circumstances regarding persons.indicates a deficiency of perception or when the wrongful act maybe avoided by paying proper attention and using due diligence in foreseeing them. 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.• Reckless imprudence – voluntary. degree of intelligence. time and place. taking into consideration his employment or occupation.
• A civil suit filed against physician and/or hospitals is premised on recovery of damages for their wrongful act or of employees.
for if the doctor makes contract to effect a cure and fails to do so. the negligence of the doctor is not an issue.
.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. he is liable for breach of contract even though he uses the highest possible professional skill.
Legal wrongdoing independent of a contract • . Tort(Quasi-delict ) • .Primary basis is negligence or fault of the physician as the one directly responsible for the injury sustained by the patient • . any malpractice action is based on torts or quasi-delict in as much as negligence is usually a ground for injury.• 2.
2176 of the Civil Code provides that “Whoever by act or omission causes damage to another. Such fault or negligence .”
. if there is no pre-existing contractual relation between the parties. is obliged to pay for the damage done.• Art. there being fault or negligence. is called quasi-delict…xxx.
• 2. – 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.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. • 4.
• Elements: • 1. • 3. The physician has a duty to the patient. the act or omission complained of must be punishable by law at the time of commission or omission.
. As a consequence of the failure. as to treatment in a manner contrary to accepted standards of medicine resulting to injury to the patient. The physician failed to perform such duty to his patient. injury was sustained by the patient. The failure of the physician is the proximate cause of the injury sustained by the patient.
• Criminal medical malpractice.
– 1. 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. produces the injury and without which the result would not have occurred.
.• Proximate Cause – is that cause. – 2. in natural continuous sequence. unbroken by an efficient intervening cause. The result must be the natural continuous and probable consequences. There must be a direct physical connection between the wrongful act of the physician and the injury sustained by the patient. – 3. which.
.• Doctrine Cause
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
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
• -Vicarious liability means the responsibility of a person. for the wrongful conduct or negligence of another.DOCTRINE OF VICARIOUS
• -Doctrine of Imputed Negligence/Command Responsibility. who is not negligent.
.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. 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 • “….• Art. 2180.
.In cases wherein the employees are at the same time are independent contractors of the hospital. they are considered ostensible agents and therefore. the hospital must be held liable for their negligent acts.DOCTRINE OF OSTENSIBLE AGENT
• . • . radiologist.Because of this peculiar situation.(pathologist. anesthesiologist).
they are under the temporary supervision and control of another other than their employer while performing their duties. • In the determination whether one is a borrowed servant. • In some instances. 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.
. resident physicians. • By fiction of law.BORROWED SERVANT DOCTRINE
• Ordinarily. their temporary employer must be held liable for the discharge of their acts and duties. they are deemed borrowed from the hospital by someone and for any wrongful act committed by them during the period. nurses and other personnel of the hospital are employees or servants of the hospital.
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.
• 3. Since the employer benefits monetarily from the employee. To treat them as operating expense. Deep pocket theory.REASONS FOR APPLICATION OF THE DOCTRINE OF VICARIOUS LIABILITY
. the employer has to bear the loss when neither the employer nor the employee is at fault. The employer has the power to select his employee and to control his acts. • 4. • 2.
. – .DOCTRINE OF RES IPSA LOQUITOR
– . • 2. It must not have been due to any voluntary action or contribution on the part of the plaintiff. • 1.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.“The thing speaks for itself”. nature of the wrongful act or injury is suggestive of negligence. It must be caused by an agency or instrumentality within the exclusive control of the defendant.
. • 4. Removal of a wrong part of the body when another part wad intended. Injury to a healthy part of the body. Objects left in the patient‟s body at the time of caesarian section. • 2.Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied:
• 1. Failure to take radiographs to diagnose a possible fracture. • 5. • 3. Infection resulting from unsterilized instruments.
• When an accepted method of medical treatment involves hazards which may produce injurious results regardless of the care exercised by the physician. Honest Errors of judgment as to Appropriate Procedure. This doctrine has been regarded as rule of sympathy to counteract the „conspiracy of silence‟
. • 3.In most medical malpractice suits. • 2. there is a necessity for a physician to give his expert medical opinion to prove whether acts or omissions constitute medical negligence.Instances where the Doctrine of Res Ipsa Loquitor does not apply:
• 1. Bad Result Rule. • 4. • • . Mistake in the Diagnosis. Where the Doctrine of Calculated Risk is applicable.
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.• According to one of the most distinguished jurist(Canada). Doctors would be led to think more of their own safety than the good of the patients.”
. Initiative would be stiffed and confidence shaken.
concurring with the defendant‟s negligence.It has been defined as conduct on the part of the plaintiff or injured party. • . is the proximate cause of the injury.
. 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.DOCTRINE OF CONTRIBUTORY
• .Doctrine of Common Fault • . contributing as a legal cause to the harm he has suffered.
2179. But if his negligence was only contributory. Civil Code • “ When the plaintiff‟s own negligence was the immediate and proximate cause of his injury. the immediate and proximate cause of injury being the defendant‟s lack of due care.”
. he cannot recover damages. but the court may mitigate the damages to be awarded. the plaintiff may recover damages.Related Civil Code Provisions
• In quasi-delicts. the contributory negligence of the plaintiff shall reduce the damages that he may recover. Leaving the hospital against the advice of the physician.Art.
. Failure to seek further medical assistance if symptoms persist.2214.”
Some Instances where there is contributory negligence: • 1. • 4. Failure to give the physician an accurate history. • 2. Failure to follow the treatment recommended by the physician. • 3.
the physician has superior knowledge over his patient. semiconscious.Doctrine of Superior Knowledge
• In the physician-patient relationship. heavily sedated or of advanced age. • 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.
. 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.
DOCTRINE OF CONTINUING NEGLIGENCE
• If the physician. he may be held liable if in the exercise of care and diligence he could have discovered the cause of nonresponse.
. fails to investigate non-response. after a prolonged treatment of a patient which normally produces alleviation of the condition.
which means that a person who assents and was injured is not regarded in law to be injured. if injured. • “…violenti non fit injuria”.
.DOCTRINE OF ASSUMPTION OF RISK
• Predicated upon knowledge and informed consent. is barred from recovery. anyone who voluntarily assumes the risk of injury from a known danger.
DOCTRINE OF LAST CLEAR CHANCE
• . appreciation.It implies thought. mental direction and lapse of sufficient time to effectually act upon impulse to save the life or prevent injury to another.A physician who has the last clear chance of avoiding damage or injury but negligently fails to do is liable. • .
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.
• - 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
• 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.
.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.Abandonment of patients
• 5. • 4. Continuing need of the patient for further medical treatment. Abandonment must have been the cause of the injury or death of the patient. • 2. Unilateral termination of the contractual relationship by the physician. • 3. The relationship is terminated without mutual consent of both parties. There is a physician-patient relationship.Elements:
Non-payment of bill cannot be a defense for abandonment. • 2. Failure to arrange for a substitute physician during the time the physician is absent or unavailable.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. Failure to provide follow-up attention.
. • 3. • 4.B. • 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. Refusal to attend to a case for which he has already assumed responsibility.
LIABILITIES IN THE ADMINISTRATION OF DRUGS
Right patient. and Right route. 4. Right drug. 5. Right time. 3.
. 2. Right dose.Five basic rights:
• • • • • 1.
. Failure to administer the drug. 8. 6. Administration of a drug on the wrong person. 5. Administering medicine on the wrong route. Failure to give warning of the side effects. 7. Overdosage. 4. Administration of the wrong medicine. 3.Negligence in the administration of a drug which causes injury to the patient may be attributed to:
• • • • • • • • • • • • • • 1. Drug reaction. Injury to the nerves 9. 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. Infection following an injection.
the manufacturer has no duty to insure that the warning reaches the patient in normal circumstances. • Negligence or carefulness is not in issue in a case under the doctrine nor is any warranty or promise in issue. even though the seller exercises every conceivable caution to prevent and discover the defects. • If the drug has side effects.
.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. A drug manufacturer is liable if his product is contaminated by any impurities which harm the user. Once the physician has been forewarned. 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.
injury or deformity. building or place where there are installed beds. cribs.. Public/Government – operated and maintained either partially or wholly by the national. division. municipal. …. or by any department. bassinets for twenty-four hour use or longer by patients in the treatment of diseases. RA 4226.• Sec. Private – privately owned.(Sec.” • • Classification. or city government or other political subdivision. (Sec. or private capital or other means. or in need of obstetrical or other medical and nursing care. disease. treatment. especially established and operated with funds raised and contributed through donations.xxx. 2(b) RA 4226) • 2. The term „hospital‟ shall also be construed as any institution. Hospital Licensure Act • HOSPITAL means a place devoted primarily to the maintenance and operation of facilities for the diagnosis. RA4226)
LIABILITIES OF HOSPITALS
. and care of individuals suffering from illness. according to Control and Financial Support: • 1. board or other agency thereof. provincial. 2(C).2(a).
For purposes of determining liability of private hospitals:
• 1. Private pay – established for profit and gain.
Private charitable or eleemosynary – established for the public benefit and not conducted for the pecuniary gain of the management. • 2.
The hospital cannot be subjected to government licensure examinations to determine whether it is qualified to practice medicine.
. • Breach of the confidential relationship in a physician-patient relationship. • 2.Rationale why hospital cannot practice medicine:
• 1. A non-medical will be allowed to control a physician and through circumvention practice medicine.
. To exercise reasonable care in the selection of the hospital staff. To furnish a safe and well-maintained building
and ground. To furnish adequate and safe equipments. • 3. • 2.Primary Duties of a Hospital:
• 2. expressly or impliedly to be within the premises for his own interest and convinience. Trespasser – one who enters the property of another without being granted the privilege to do so. Licensee – one who is neither a customer. • Invitee – one who is essential to the operation of a hospital or for whom the hospital has a purpose.Persons Coming Within the Premises of the Hospital
• 1. It is only required of a hospital to refrain from taking positive steps to harm a trespasser. He has no contractual relation with the hospital. He is permitted. His presence is merely tolerated.
. servant or a trespasser.
Liabilities of Hospitals for the Wrongful Acts of their Agents
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 immunity of the government from the official acts of its officers.Those performing proprietary function when it is established for profit. The government must not be sued because the government derives no profit from its activity unlike a private enterprise. • . Government or Public Hospitals
• .1.Those established to perform government functions.” • . it is immune from being sued. The government goes down to the level of any private hospital.A State cannot be sued without its consent.
. • . • .
• . philantrophic acts and pays no dividends.2. contributions.A charity hospital is established and maintained from the donations. Voluntary or eleemosynary
for charity • .The determination whether a hospital was established for charity is the articles of incorporation and the constitution and by-laws of the corporation.
. Private Charitable.
May be held vicariously liable for the negligent
acts of its employees.
. Private Hospital Operating for profit
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.
.• N. 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. 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. A hospital established for profit even though some bed are devoted for charity is not deemed a charitable institution. The charging of the fee is not controlling but the purpose the fee will be use is the measure of charity. if it is operated for no profit.
Doctrines Applied to Charitable Hospital Immunity for the Acts of its Employees
The contributions are held only in trust by the governing body of the hospital.
. care and treatment of charity patients.TRUST FUND DOCTRINE
• Charitable hospitals derived support from voluntary contributions or donations for the reception. Diverting the money for the payment of damage will be utilizing the money not intended by the donor.
waives his right to claim damages. knowing fully well that it is merely supported by contributions.
.IMPLIED WAIVER THEORY
• A patient who enters a private hospital.
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.
the “borrowed servant doctrine” must be applied and the hospital may not be held vicariously liable.
• 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.
. Principle of administrative/ministerial as against professional/medical duties. • Medical duties are by its nature beyond the ordinary routine in a hospital. may make the hospital vicariously liable. Any negligence of such hospital employees.1.
. Power of Control.
But if entered with the patient for contract of services.3. the hospital may be held liable provided the negligent act was committed within the scope of employment. Contract of Service.
. the principle of independent contractor theory is applied.
• If the contract has been entered with hospital to render professional services.
. Independent Contractor Theory.4.
.5. Sole Responsibility vs Shared Responsibility.
and supervision of independent physicians who are permitted to practice in the hospital. VICARIOUS Liabilities for the Acts of Hospital Employees. review. 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. • Recent decisions of the court has extended hospital liability to patient for its failure to make careful selection.
. • • 2. the established standard of conduct to which the corporation should conform.LIABILITIES OF HOSPITAL
• A person has no absolute right to be admitted in a hospital or to avail of hospital services. • A government has no absolute privilege of choice of patients inasmuch as it is established and maintained by public funds except for justifiable grounds.
. The relationship between the hospital and the patient is contractual.
.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.
. a physician may order the discharge with or without condition.Discharge of patients
• After evaluation of the patient‟s condition. considers that further hospitalization is no longer indispensable.
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. Revised Penal Code • 1987 Philippine Constitution. Related laws: • Art. Sec. 268. 1 and 6 • • Refusal of the patient to leave the hospital
• 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.
that his release will endanger public safety. • A hospital any legally detain a patient against his will when he is detained or convicted prisoner. or when the patient is mentally ill. The law provides a remedy for them to pursue by filling the necessary suit in court for the recovery of such fee or bill.Detention of patient for non-payment of bill
• A patient cannot be detained in a hospital for nonpayment of the hospital bill. or when the patient is suffering from a very contagious disease wherein his release is prejudicial to public health.
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.LIABILITIES OF HOSPITAL FOR ITS
• . • -Patients are not bound by the secret limitations contained in a private contract between the hospital and the physician. • -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.
.Whenever the hospital administration enters into contract with a partnership of physicians to run the emergency room.
.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.
. Negligence in the application of management procedures.Liability in the emergency room may arise from the following:
• 1. • 3. Failure to examine and/or treat. Failure to admit.
• An AMBULANCE is a motor vehicle specifically designed. However.
. • A PHARMACY is a place or establishment where drugs. 42. RA 5921. pharmaceuticals. chemical products. equipped and used for the transportation of the sick. • The criminal liability of an ambulance driver is the same as that of an ordinary driver. proprietary medicine of pharmaceutical specialties. the civil liability arising therefrom the hospital must be held liable. devices and poison are sold at retail and where medical and dental veterinary prescriptions are compounded and dispensed. active principles of drug.
• Hospital Pharmacy • Sec. injured or wounded persons operated by trained • personnel for ambulance service.
• It is a compilation of scientific data derived from many sources.Medical Records
• It is compilation of the pertinent facts of the patient‟s life history. 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. illness. and treatment. the science of medicine and society as a whole.
As required by statutes (Hospital Licensure Law) • .Destruction of records is an evidence of negligence. • .The hospital may be held liable for injury resulting from a breach of duty to maintain accurate records. • 2. • . For convenience and necessity in consonance with the purpose enumerated. • .Purpose of Maintenance of Medical Records
• 1.Removal of a certain portion of the record may raise • the inference that they are remove deliberately in order to suppress evidence
.An altered medical record may create suspicious intent to establish a defense and such alteration may be a proof of negligence.
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.
. 6. except when it is required in the interest of justice. He should never divulge this confidential information. II. Art. 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. public health or safety.VIOLATION OF THE CONFIDENTIAL NATURE OF RECORD
• Sec. or anything that may reflect upon the moral character of the person involved.
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. II.xxx” • An additional penalty of revocation of license to practice his profession……xxx. Art.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….”
.000.00 to 50. 17.• Sec.000.
treatment and rehabilitation in any center…..”
. 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. he voluntarily submitted himself to confinement. Art. VIII.• Sec. 60.xxx. spouse guardian or relative within the fourth degree of consanguinity or affinity. except to determine how many time by himself or through his parent.
taking into consideration public interest and the welfare of the drug-dependent. shall be forwarded to the court and their use shall be determined by the court. 15 of this act shall be covered under Sec 60 of this act. 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.• Sec. or who has escaped but did not surrender himself within the prescribed period. Art. VIII. or who was charged for violation of Sec. the records of a drug dependent who was not rehabilitated. 64.
surgery. and which would blacken the character of the patient. Rule 130. without the consent of the patient. obstetrics cannot in civil case.
. Rules of Court (Privilege Communication) • A person authorized to practice medicine. which information was necessary to enable him to act in that capacity. be examined as to any information. 21 (c).• Sec. which he may have acquired in attending such patient In a professional capacity.
Personal circumstances of the patient which are not ordinarily related to the treatment. Name of the patient and house officers associated with the treatment of a patient.
. • 2.Information for which no authorization is
Upon a lawful order of the court.B.When May the Contents of the Record be Disclosed
• 1. • • Members of the resident staff. • 3. • 2. When the law requires such disclosure. • The attending patient has no legal right to determine who shall and who shall not see the record. When requested by the patient or by someone who could act in his behalf which must be made in writing. student and attending medical staff may freely consult such records as pertain to their work. his approval or permission is only a matter of courtesy. At the most. • N.
• Sec. as the records are entries in the course of business. by a person deceased. or near the time of the transactions to which they refer. 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. Rule 130. may be received as prima facie evidence. • • Patient‟s record is admissible in evidence even if the person who made the entry is dead or not available. 37. Rules of Court – Entries in the Course of Business • Entries made at. who was in a position to know the facts therein stated.
. outside the Philippines or unable to testify.
• 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.
. If the physician is found negligent in the performance of his professional services. the objective of the plaintiff is to recover damages. he liable for the payment of damages for all the direct. natural and logical consequences of his act.
2176. Civil Code • Whoever. 20.
. is obliged to pay for the damages done. Civil Code • Every person who. contrary to law. by act or omission causes damage to another. • • Art. there being fault or negligence.• Art. willfully or negligently causes damage to another shall indemnify the latter for the same.
cause and probable duration of the injury. The proof must show the nature.
• Doctrine of Certainty of Damages
• Damages must be certain both in its nature and in respect to the cause.• Damages must be sufficiently proven by evidence. • 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. To permit the Court to determine how much it must be.
. Recovery must not be contingent or speculative. extent.
Exemplary Nominal. Actual or Compensatory. 4. Moral. 5. Temperate.TYPES OF DAMAGES
• • • • • • 1. 2. 3. 6. Liquidated
Civil Code • Except as provided by law or by stipulation.ACTUAL OR COMPENSATORY DAMAGES
• Art. Civil Code • Indemnification for damages shall comprehend not only the value of the loss suffered. one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. but also that of the profits which the obligee failed to obtain. 2200.
. 2199. • • Art. Such compensation is referred to as actual or compensatory damages.
„Dano emergente‟ – the loss already suffered by the patient • 2.• Kinds: • 1. Lucro cesante – failure to receive the benefit which would have pertained to him.
2. Funeral Expenses
.Compensatory Damages Applied to Medical Malpractice
1. Loss of Earning Capacity 4. Loss of Service or Support 6. even though there may have been mitigating circumstances.000. Medical. Surgical. Death • Art. Physical Disability 3.00). Hospital. Civil Code • The amount of damages for the death caused by a crime or quasi-delict shall be at least three thousand pesos(75. 2206. and Related Expenses 5.
• Art. wounded feelings. moral damages may be recovered if they are the proximate result of the defendant‟s act or omission. serious anxiety. mental anguish. and similar injury. besmirched reputation. social humiliation. 2217. Though incapable of pecuniary computation.
. Civil Code • Moral damages include physical suffering. moral shock.
Civil Code • Moral damages may be recovered in the
following and analogous cases:
1. Quasi-delict causing physical injuries. 2219.• Art. 2.
• • • •
Physical Suffering Mental Anguish Fright and Moral Shock Besmirched Reputation and Social
. A criminal offense resulting in physical injuries.
exemplary damages as part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. 2229. in addition to the moral. 2230. Such damages are separate and distinct from fines and shall be paid to the offended party.
. by way of example or correction for the public good. temperate. Civil Code • In criminal offense. liquidated or compensatory damages. • • Art.EXEMPLARY OR CORRECTIVE DAMAGES
• Art. Civil Code • Exemplary or corrective damages are imposed.
2233. Civil Code • In contracts and quasi-contracts. exemplary damages may be granted if the defendant acted with gross negligence.
. the court will decide whether or not they should be adjudicated. Civil Code • Exemplary damages cannot be recovered as a matter of right.• Art. the court may award exemplary damages if the defendant acted in a wanton. fraudulent. reckless. • • Art. 2231. Civil Code • In quasi-delict. oppressive and malevolent manner. • • Art. 2232.
malicious or oppressive nature of the wrong committed.• Punitive or exemplary damages are monetary
compensation over and above actual or compensatory damages awarded as punishment or deterrence. or that he acted with recklessness. • 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.
. oppression. or that he is guilty of gross negligence in the performance of his profession. reckless. or with utter disregard to the effects of his act. because of the wanton.
• Art. 2221. • It is a trifling sum awarded to the plaintiff in an action where there is no substantial loss or injury to be compensated.
. Civil Code • Nominal damages are adjudicated in order that a right of the plaintiff. may be vindicated or recognized not for the purpose of indemnifying the plaintiff for any loss suffered. • It is awarded to plaintiff as a vindication of a right violated. which has been violated or invaded by the defendant.
• Art. Civil Code • Liquidated damages are those agreed upon by the parties to a contract. 2226. to be paid in case of breach thereof.
which are more than nominal but less than compensatory damages. Civil Code • Temperate or moderate damages.
.TEMPERATE OR MODERATE
• Art. be proved with certainty. 2224. from the nature of the case. may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot.
Obligation on the part of the plaintiff(patient) to
minimize damages. 2203.
• Art. 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. The person wronged cannot recover for any item of damage which could have been avoided. caused personal injury to another.
The burden of proof that the injured could have prevented or mitigated the damages rests on the defendant.
. it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages.
When at least double judicial costs are awarded. 7. Civil Code) 1. 9. just and demandable claim. When exemplary damages are awarded.ATTORNEY‟S FEES
• Attorney‟s fees and other related expenses in litigation. In actions for the recovery of wages of household helpers. In any other case where the court deems it just and equitable that attorney‟s fees and expenses of litigation should be recovered. 3. When the defendant‟s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest. 11. (Art. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff‟s plainly valid. 10. In criminal cases of malicious prosecution against the plaintiff. 4. 5. In actions for legal support. 8.
• • • • • • • • • • •
.2208. 2. In a separate civil action to recover civil liability. other than judicial cost are not as rule recoverable except when the law specifically provides. In actions for indemnity under the workmen‟s compensation and employer‟s liability laws. In case of clearly unfounded civil action or proceeding against the plaintiff. laborers and skilled workers. 6.
EMERGENCIES IN MEDICAL
• 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.
2 • “ A physician is free to choose whom he will serve.
• Art. always respond to any request for his assistance in an emergency…xxx.”
. II. 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. He may refuse calls.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. He should. wherein immediate action is necessary. Sec. however. II. Sec. other medical services for reasons satisfactory to his professional conscience. 3 • “In case of emergency.
xxx…. Sec. Sec.should attend only to the patient. 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.”
• Art.• Art.xxx. 16 • “A physician called upon to attend to a patient of another physician because of an emergency…. 17 • Whenever in the absence of the family physician several physicians have been simultaneously called in an emergency case • …xxx.. IV. IV..xxx.the first to arrive should be considered as physician in charge.”
• Art. Sec. unless the patient or his family has special • preference for some other one among those who are present…xxx.\‟s immediate needs….
Sec.• Art.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.”
. amending BP Blg. • 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. 702.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. 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.
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 help or render assistance to another whom he has accidentaqlly wounded or injured…xxx.”
. Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger or dying. • 2.• Art. unless such omission shall constitute a more serious offense. when he can render such assistance without detriment to himself. 275.
.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. • . • 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.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 physician can legally proceed with his contemplated life-saving procedure. and getting a consent is prejudicial to the patient.
. The injured person must be unconscious or otherwise unable to give a valid consent. • The physician in the exercise of his best judgment that the medical procedure is life-saving. • 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.Emergency Operation without Consent
. 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.Refusal to Give Consent During Emergency
• If the patient is conscious.
the surgeon is justified in extending the operation and be absolved of liability. If no specified amount agreed upon. an accident occurs. 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. but which is not covered by the consent. • N.Extension of Operation in Cases of Emergency
• If during an operation. the physician should be privileged to perform such surgery within the operative field as is justified in the prevailing medical opinion. In the absence of a clearly specific prohibition on the part of the patient. or a condition maybe discovered which requires immediate action. • The surgeon is authorized to extend the operation to any condition discovered when it will redound to the welfare of the patient. the principle of quantum meruit shall be applied.B.
nature of the duty to be delegated. • 3.. • 2.
. The person to whom such duty is delegated must be competent to perform such duty. Proper instructions must be given to the person who will perform the delegated duty.DELEGATION OF A PHYSICIAN’S DUTIES • Requisites for a Valid Delegation
• 1. • The patient consented expressly or impliedly such delegation of duty. and the training and experience of the person to whom such duty is to be delegated. When such duty can be delegated which will depend on the circumstances of the case.
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.
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.THE MEDICAL WITNESS AND THE COURT
• Court – an agency of the sovereign created directly or indirectly under its authority. 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.
Supreme Court Court of Appeals Regional Trial Court Municipal or City Trial Court Military Commissions
Art. when called upon by the judicial authorities. 5.Different Courts in the Philippines
• • • • • 1. 2. Sec. III. 3. to assist in the administration of justice on matters which are medico-legal in character.
. 4. Code of Medical Ethics
• It is the duty of every physician. 2.
• 2. having organs of sense.PHYSICIAN AS AN ORDINARY WITNESS
• Sec. Rule 130. The perception gathered by his organs of sense can be imparted to others.all persons who. and • He does not fall in any of the exception or disqualifications provided by the Rules of Court. The person must have the organ and power of perception.”
• Requisites of an Ordinary Witness • 1. Rules of Court • “xxx…. and perceiving can make known their perception to others maybe witness…xxx.
. can perceive. 20.
Mental Incapacity or immaturity . or in any criminal case for a crime committed by one against the other or the latter‟s direct ascendants or ascendants. Marriage .
• 2.Disqualification by reason of:
• 1. Rules of Court
– a) Those whose mental condition.Sec. Rule 130.Sec. 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.
. Rules of Court • During their marriage. except in a civil case by one against the other. is such that they are incapable of intelligently making known their perception to others. Rule 130. 22. at the time of their production for examination. neither the husband nor the • wife may testify for or against the other without the consent of the affected spouse. 21.
Rules of Court • Parties or assignors of parties to a case. • 4. 23. Rules of Court • No descendant can be compelled. 25. Rule 130. Parental or filial Privilege .
. or persons in • whose behalf a case is prosecuted. cannot testify as to any matter of fact occurring before the death of such deceased person or before such person become of unsound mind. • to testify against his parents and ascendants. upon a claim or demand against the estate of such deceased person or against such person of unsound mind. or against a person of unsound mind. Rule 130.Sec.Sec. in a criminal case. against an executor or administrator or other representative of the deceased person. Death or Insanity .• 3.
The attorney cannot.
• 2. 24. without the consent of the client and his employer. 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. The husband or the wife. or for a crime committed by one against the other or the latter‟s direct descendants and ascendants. nor can an attorney‟s secretary. during or after the marriage.• Disqualification by reason of Privileged Communication
• Sec. concerning any fact the knowledge of which has been acquired in such capacity. Rule 130. stenographer or clerk be examined. without the consent of his client.
. or with a view to professional employment. Rules of Court – The following persons cannot testify as to matters learned in confidence in the following cases: • 1. be examined as to any communication made by the client to him or his advice given thereon in the course of.
A person authorized to practice medicine. when the court finds that the public interest would suffer by the disclosure. without the consent of the person making the confession. without the consent of the patient. and which would blacken the reputation of the patient.• 3. be examined as to any information which he may have acquired in attending such patient in a professional capacity.
. • 5. surgery or obstetrics cannot in a civil case. 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. A public officer cannot be examined during his term of office or afterwards as to communications made to him in official confidence. • 4. A minister or a priest cannot. which information was necessary to enable him to act in that capacity.
• Sec.Privileged Communication Between Physician and His Patient
• Sec. 24(c). Rule 130. without the consent of the patient.”
. He should never divulge this confidential information. be examined as to any information which he may have acquired in attending such patient in a professional capacity. Rules of Court “A person authorized to practice medicine. which information was necessary to enable him to act in that capacity. surgery or obstetrics cannot in a civil case. 6. except when it is required in the interest of justice. or anything that may reflect upon the moral character of the person involved. II. and which would blacken the character of the patient. even after their death. public health. and public safety. 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. Art.
• Nurses and attendants who were present and assisting the physician when the communication was made.
. 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. Interns. • 2.Extent of the Privileged Communication
Information obtained by a technician from a patient is not privileged. a patient of the physician performing the autopsy. • 2. prior to his death. • 3. for the purpose of testifying to solely qualify the physician to testify. • 4. When a person is examined at the instance of the law. Information acquired by an autopsy on the body of a person who was not. When the public interest so requires.
.When Communication Is Not A Privileged Communication
certificates and reports made by the physician as exhibit in court. Affidavits.
. Hospital records.Scope of the Privilege
• 1. • 2. and • 3. Oral testimony by the physician in court.
Waiver of Privilege
• Patient may expressly or impliedly waive their right to privilege communication.
that is.HEARSAY EVIDENCE
• An evidence not proceeding from personal knowledge of the witness.
. 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. except as otherwise provided by these rules. it is NOT admissible in evidence. Rule 130. The very nature of the evidence shows its weakness. which is derived from his own perception. • “A witness can testify only to those facts which he knows of his own knowledge. hearsay excluded. • • Sec. Rules of Court – Testimony generally confined to the personal knowledge of the witness. 36. but from mere repetition of what he had heard others say. and it is admitted only in special cases because of necessity. • As a general rule.
as evidence of the cause and surrounding circumstances of such death.• Sec.”
. 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 is the subject of inquiry. may be received in a criminal case wherein his death. Rule 130. 37.
which statements are admissible in evidence in a trial where the killing of the declarant is the crime charged to the defendant. or the immediate cause of his death.
• One of the exceptions in hearsay evidence rule. and is conscious of his impending death. • Is the statement made by a person who is at the point of 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. in reference to the manner in which he receives his injuries of which he is dying.
Grounds for Admissibility of Dying Declaration
. • 2. Necessity – death of the declarant makes it impossible to obtain his testimony in court. and the mind is induced by the most powerful consideration to tell the truth. Trustworthiness – every motive of falsehood is silenced.
. the declarant was under the consciousness of impending death. That the declarant is a competent witness. That the declaration is offered in a criminal case in which the declarant is the victim. • 4. That at the time the declaration was made. • 3.Requisites of Dying Declaration
• 1. That the declaration must concern the cause and surrounding circumstances of the declarant‟s death.
. • -The author of the books cannot be presented in court and be subjected to cross-examination.Probative Value of Standard Medical Books in Court
• -Medical textbooks are not admissible in evidence on account of the fact that they are hearsay. • N. medical textbooks are admissible in evidence to discredit a witness who has based his testimony upon it.B. In cross-examination. Medical witness may have the right to base his opinion from standard textbooks.
or a witness expert in the subject testifies that the writer of the statement in the treatise. 46.”
. Rules of Court “A published treatise.Learned Treatises
Sec. Rule 130. science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice. periodical or pamphlet is recognized in his profession or calling as expert in the subject. periodical or pamphlet on a subject of history.
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.
.The subject of inference must be so distinctly related to some science. profession.The witness must have such skill. business or occupation as to be beyond the knowledge of average layman. and • 2. or sentiment formed by the mind with regard to things. knowledge or experience in that field or calling as to make it appear that his • 3. two elements are required:
• 1. inference. judgment.
• An OPINION maybe defined as the belief.Opinion or reference will probably aid the trier of facts in his search for the truth. 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.
III. III. to assist in the administration of justice on matters which are medico-legal in character.• Sec. when called upon by the judicial authorities. shall fail to lend his cooperation towards the administration of justice or other public service.” • Refusal of a public officer to give assistance in the administration of justice is penalized by law • Art.(12) Violation of any of the provisions of the Code of Medical Ethics…shall be sufficient ground for reprimanding. Art. Code of Medical Ethics • “It is the duty of every physician. or for suspending or revoking a certificate of registration as physician…xxx. 233. shall be imposed upon a public officer who. upon demand from a competent authority.”
. if such failure shall result in serious damage to the public interest. 2. Revised Penal Code • “The penalties of arresto mayor…xxx. or to a third party..” • Sec. Art. Medical Act of 1959 as amended • “xxx…. 24.
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.”
shall suffer the penalties of arresto mayor in its maximum period to prision correccional…. Art.. 181.”
.xxx…if the prosecution is for felony punishable by an afflictive penalty. False Testimony favorable to a defendant:
“Any person who shall give false testimony in favor of the defendant in a criminal case.• 2.xxx.. Revised Penal Code.
. 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.• 3.
who in case of a solemn affirmation made in lieu of an oath. Revised Penal Code. shall commit any of the falsehoods mentioned in this and the three preceding articles of this section. shall testify under oath. False testimony in other cases and perjury in solemn affirmation: “The penalty of arresto mayor …xxx. upon ant material before a competent person authorized to administer an oath in cases in which the law so requires.• 4. shall suffer the respective penalties provided therein. • Any person.”
. 183. or make an affidavit. knowingly making untruthful statements and not being included in the provisions of the next preceding articles. Art.
• 3.Principle of “Falsus In Uno. are not corroborated by circumstances or other unimpeached evidence. • 2. The false testimony must be on material point. That the other portions of the testimony to be discredited. unless corroborated by other unimpeached evidences.
• Requisites: • 1.
. Falsu In Omnibus”
• When a witness falsified the truth on one point. his testimony on other points may be disregarded. That the witness deliberately or intentionally falsified the truth.
. but from innocent mistakes and the desire of the witness to exculpate himself though not completely.When the error did not arise from the apparent desire to prevent the truth.When there are sufficient corroborations in many grounds of the testimony. • 2.• When it is not applicable • 1.When the mistake was not in a very material point. • 3.
. offensive personalities toward others. Rule 71.”
• Sec. If the subpoena was not issued by a court. or to subscribe an affidavit or deposition when lawfully required to do so. Rule 21. 1. including disrespect toward the court. 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. refusal to be sworn or to answer as witness. the disobedience thereto shall be punished in accordance with the applicable law or Rule. may be summarily adjudged in contempt by such court…xxx. 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.CONTEMPT
• Sec. 9.
or from holding him in custody pending such proceedings. Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt…. – 6. Rules of Court • Indirect contempt To Be Punished After Charged and Hearing – “After a charge in writing has been filed. – 3. – 2. Assuming to be an attorney…. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions..
• But nothing in this section shall be construed as to prevent the court • from issuing process to bring the respondent to the court. – 4. or judgment of a court…. order.”
.. Rule 71. and an opportunity given to the respondent to comment thereon within such period…xxx…. process. 3.• Sec. Disobedience of or resistance to a lawful writ... a person guilty of any of the following acts may be punished for indirect contempt:
– 1. – 5. Any improper conduct tending directly or indirectly to impede. or degrade the administration of justice. The rescue of a person or property in the custody of an officer by virtue of an order. obstruct.
he must base his opinion. they must be stated to him hypothetically. and upon the assumption of the facts so stated.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. without stating the facts upon which it is based. • 2. The hypothetical question is based upon facts which are in evidence and assumed facts within the limit of evidence. • • Where the expert is familiar with the facts by personal • observation and so testifies. 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. he may be asked directly for his opinion.
. The hypothetical question must not be unfair or misleading. • When the expert is not familiar with the facts upon which it is based. • 3.
• 2.The testimony however impartial.The opinion of the medical expert is based on experience and treatise or books which may be divergent from the observation of others
. The human mind is not absolutely impossible.Rationale on the Corroborative Probative Value of Medical Expert Testimonies
• 1. may unconsciously favor one of the party litigants.
CODE OF MEDICAL ETHICS
. • He must exercise good faith and strict honesty in expressing his opinion. I – General Principles • Primary objective of the practice of medicine is SERVICE to mankind. II – Duties of Physicians to their Patients • To attend to his patients faithfully and conscientiously. • Immediate action in cases of emergency. • Sacred trust of information • Practice of medicine is not a business. • Free to choose whom to serve. • Proper consultation and referral. • “friend of man” • • Art.
. III – Duties of Physicians to the Community Cooperation with proper authorities. To assist in the administration of justice. Gratuitous services to the indigents. No solicitation and extravagant and false advertisements. To protect the public from charlatans. sanitation and health.• • • • • •
.Gratuitous services to a colleague. upright. .Should aid in safeguarding against the admission of those who are unfit or unqualified because of deficiency in moral character. IV – Duties of Physicians to their Colleagues and to the Profession
• • • • • • • • • .He should be diligent. sober. . before the proper medical or legal tribunals corrupt and dishonest conduct of members of the profession. . .Proper consultation and referral.Uphold the honor and dignity of the profession.Art. .No advertising by means of untruthful or improbable statements in newspapers or exaggerated announcements.To keep abreast to the advancements of medical science and contribute to its progress.Should expose without fear or favor.Observe utmost caution.Observe punctuality. . -To refrain from making unfair and unwarranted criticisms of other physicians. tact and prudence as regards professional conduct of another physician. . . modest and well-versed in both the science and art of medicine.
– Non-payment of commissions to any person who refers cases to help him acquire patients. 12 of the Medical Act of 1959.
. value and superiority and recommendation of drugs. reputation and dignity of allied professional. – Not to allow to be published any testimonial certifying the efficacy.
• Penal Provisions • -Violation of the provisions of this Code constitute unethical and unprofessional conduct and therefore a sufficient ground for the reprimand.Art. V – Duties of Physicians to Allied Professionals
– To cooperate with and safeguard the interest. par. suspension or revocation of the certificate of registration of the offending physician in accordance with the provisions of Sec. 24.
(Pascual vs. 28 SCRA 345). the accused may not be compelled to take the witness stand. Art. such as cancellation of his license to practice medicine. on the reasonable assumption that the purpose of the interrogation will be to incriminate him. Board of Medical Examiners. III.RIGHT AGAINST SELF-INCRIMINATION
• Sec. 17. including civil actions and administrative or legislative investigations. • • In criminal actions.” • • The right is available not only in criminal prosecutions but also in all other government proceedings. • “No person shall be compelled to witness against himself. • • The same principle shall apply to the respondent in an administrative proceeding where the respondent may be subjected to sanctions of a penal character.
. Philippine Constitution states that. 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.
Fingerprinting. – 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. – It is simply against the legal process of extracting from the lips of the accused an admission of his guilt. 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. paraffin testing.Scope:
– The kernel of the right is not against all compulsion. – It does not apply where the evidence sought to be excluded is not an incriminating statement but an OBJECT EVIDENCE(eg.
. PE). photographing. – The prohibition extends to the compulsion for the production of documents. but testimonial compulsion only.
REBOSA. LL.Thank you very much and good day to everyone! ALBERT D.