• -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.
The lawyer aims to win the fight not to help the court discover facts or establish the truth.• “…….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.”
CA. Rules and Regulation • Local customs • Generally accepted principles of International law
.SOURCES OF LAW
• Constitution • Laws enacted by the legislative body • Decrees. Letters. RA • Administrative acts. orders. Orders. BP. Proclamation.
. • 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.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.
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. control and regulation of the practice of medicine
UP-College of Medicine
Functions: 1. To select. Bureau of Private Schools Chairman. 8. To determine and prescribe the requirements for admission into a recognized college of Medicine. 7. 5. To promulgate. To accept applications for admission to a medical school.APMC Dean. To determine and prescribe the minimum number and qualifications of teaching personnel. To determine and prescribe the minimum required curriculum. 3. PMA Council of Deans.
.Secretary of Health Director. To authorize the implementation of experimental curriculum. 2. To determine and prescribe requirements for the minimum physical facilities. 6. prescribe and enforce the necessary rules and regulations. determine and approve hospitals for training. Board of Medicine Representative. 4.Secretary of Education Members .BOARD OF MEDICAL EDUCATION
• • • • • • • • • • • • • • • • • • Composition: Chairman .
PROFESSIONAL REGULATIONS COMMISSION
• Composition: Commissioner Two Associate Commissioner • Exercise of Power and Functions of the Commission -exercise general administrative. executive and policymaking functions for the whole agency
.BOARD OF MEDICINE
• • • • • • • • • Composition: Six members appointed by the president from a list submitted by the Executive Council of the PMA. • . .Natural-born citizen. .Not a member of any faculty of any medical school (including any pecuniary interest).
.In the practice of medicine for at least 10 years.Duly-registered physician.
Qualifications: .Of good moral character and of recognized standing in the medical profession as certified by PMA.
To promulgate such rules and regulations for the proper conduct of the examinations. subpoena and subpoena duces tecum. To investigate violations. 6. 5. To administer oath. To issue certificate of registration. To study the conditions affecting the practice of medicine. 9. 8. 7. issue summons. correction and registration. To determine and prepare the contents of the licensure examinations. with the approval of PRC. To suspend. 3.Powers. revoke or reissue certificate of registration for causes provided by law or by the rules and regulations promulgated.To promulgate. rules and regulations in harmony with the provisions of the Medical Act of 1959 and necessary for the proper practice of medicine.
. 10. To conduct hearings or investigations of administrative cases filed before them. To promulgate decisions on such administrative cases subject to the review of the Commission. Functions and Responsibilities:
• • • • • • • 1. 4. 2.
Minimum age requirement • .ADMISSION TO THE PRACTICE OF MEDICINE
Prerequisites: • 1. Proper Educational Background Requirements for Admission in the College of Medicine Holder of a Bachelor‟s degree.at least 21 years of age • 2. Certificate of Eligibility from the Board of Medical Education.
. Not convicted of any crime involving moral turpitude. Good moral character .
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). -Have completed the first two years of the medical course. • Final or Complete Examination -Citizen of the Philippines or of any country who has submitted competent and conclusive . .must have passed the corresponding Board Examination • Preliminary Examination -At least 19 years of age.Of good moral character.
.• 3. Examination Requirements .
-Found guilty of immoral or dishonorable conduct after investigation by the Board of Medicine. -Declared to be of unsound mind.• 4. Holder of certificate of registration • No issuance to any candidate who has been: -Convicted by a court of competent jurisdiction of any crime involving moral turpitude.
• Preliminary .Anatomy and Histology • Physiology • Biochemistry • Microbiology and Parasitology • Final . Ethics and Medical • Jurisprudence
Scope of Examination:
. • Otorhinolaryngology • Preventive Medicine and Public Health • Legal Medicine.Pharmacology and Therapeutics • Pathology • Medicine • Obstetrics and Gynecology • Pediatrics and Nutrition • Surgery and Ophthalmology.
mitigating. that is.
. or relieving bodily disease or conditions. the Medical Act of 1959 as amended which has been promulgated by the State in the exercise of police power to protect its citizenry from unqualified practitioners of medicine. • It is diagnosing and applying and the usage of medicine and drugs for curing.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.
Art.10. III of the Medical Act of 1959 as amended):
.ACTS CONSTITUTING THE PRACTICE OF MEDICINE (pursuant to Sec.
mental or psychical condition. operate or prescribe any remedy for human disease. and diagnose. or through the radio.• A) who shall for compensation. shall be considered as engaged in the practice of medicine. • C) who shall falsely use the title of M. reward in any form paid to him directly or through another. treat. deformity. mental. injury. injury. • B) who shall by means of signs. written or printed matter. prescribed or recommended. deformity. regardless of the nature of the remedy or treatment administered. physical. advertisement. television or any other means of communication. real or imaginary.D. physical. fee. psychical condition or any ailment. after his name. or prescribe any remedy for human disease. treat.
. physically examine any person. either offer or undertake by any means or method to diagnose. cards. or even without the same. operate.
• d) Nurse anesthesist
. • c) Hospital. • b) Application of medicated massage.• By DECISIONS OF COURTS are not considered to constitute practice of medicine: • a) One who takes bp reading.
nurse or midwife are not available. e) Any person who renders any service gratuitously in cases of emergency or in places where the services of a physician.
• • •
. Prosthetist. b) dentist. g) Clinical psychologist with the prescription and direct supervision of a physician. d) optometrist. c) physiotherapist. III.11. Art. 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. f) Any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws.
• -Acted in pursuance of his religious belief and with the tenets of his church he professes.Faith Healing
-There is nothing in the Medical Act of 1959 exempting it from the definition of the acts which constitute practice of medicine. not deemed to be a
practice of medicine but part of his religious freedom. • -Related to constitutional guarantee to religious freedom (freedom to believe and freedom to act in accordance with one‟s belief).
28. in the discretion of the court. 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. IV.ILLEGAL PRACTICE OF MEDICINE
• Practice of medicine by any person not qualified and not duly-admitted to perform medical acts in compliance with law. or by both such fine and imprisonment. Penalties • Pursuant to Sec.
• 1. III. Art. Those who have complied with the prerequisites to the practice of medicine in accordance with Sec.
. 8. Medical Act of 1959 as amended.
. Exchange professors in special branches of medicine. Commissioned medical officers stationed in the Phils in their own territorial jurisdiction. Medical Act of 1959 as amended:
Exclusive consultation in specific and definite cases.12. 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. Art. III. Attached to international bodies to perform certain definite work in the Phils. Those who can have limited practice without any certificate of registration in accordance with Sec.
Allowing Former Filipino Professionals to Practice Their Respective Professions in the Philippines • Proviso: • . • .
.Of good standing prior to their departure and in their adopted country.Have registered with PRC and paid their professional fee. • Pay the corresponding income tax.• 3. “Balikbayan” Physicians pursuant to PD 541.
Art.Those that are governed by specific licensure laws
.III. Medical Students pursuant to Sec. • 5.12(d). Foreign physicians qualified to practice by Reciprocity Rule or by endorsement. Medical Act of 1959 as amended. • 6.• 4.11(a) and Sec. Limited practitioners of medicine • .
• -Deprivation of free choice of physicians .
.Rationale why artificial persons
cannot practice medicine
• -Cannot be subjected to licensure examinations as required by law. • -Professional relationship between the patient and the physician will be impaired. • -Practice of medicine may be employed and controlled by unqualified physicians.
• “…. and treatment of human illness by the exercising independent judgment and without supervision.is a person who after completing his secondary education follows a prescribed course of medicine at a recognized university or medical school. diagnosis. at the successful completion of which.” (WHO)
.. is legally licensed to practice medicine by the responsible authorities and is capable of undertaking the prevention.
• 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. defined.
• To prescribe the permanent framework of a system of government. to assign to the several departments their respective powers and duties. and to establish certain first principles on which the government is founded. (11Am.
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.PHYSICIAN-PATIENT RELATIONSHIP
• Contract . NCC)
.is the meeting of minds between two persons whereby one binds himself with respect to the other.1305.
based on mutual trust and confidence
.Nature of the relationship
• Consensual .based on mutual consent both parties • Fiduciary .
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 •
Implied – the existence can be inferred from the acts of the contracting parties. 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
• 4. • 3.
. PE for eligibility for insurance. Physician appointed by court to examine the accused. Pre-employment PE for purposes of determining whether an applicant is suitable for employment.Some Instances where there is no Physician-Patient Relationship by DECISIONS OF COURTS
• 1. In performing an autopsy. Casual consultation in an unordinary place. • 2. • 5.
This is characteristic in an emergency cases when the patient is unconscious. • MUTUAL PARTICIPATION RELATION • It is in the nature of a negotiated agreement between equal parties. • GUIDANCE-COOPERATION RELATION • Patient is conscious and suffering from pain. The physician is in a position of trust. anxiety and other distressing symptoms.
. he seeks help and willing to cooperate.• PSYCHOLOGICAL PATTERNS OF PHYSICIANPATIENT RELATIONSHIP • ACTIVITY-PASSIVITY RELATION • No interaction between physician and patient because the patient is unable to contribute activity.
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.
– “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” . He has the duty to observe utmost good faith. He is obliged to exercise the best judgment. He should use such knowledge and skill with ordinary care and diligence.the diligence is determined on what is applicable on a national standard basis
• 3. • General practitioner vs Specialist • 2.
.• 1. • 4.
• .it does not imply any promise or guaranty that the treatment will benefit the patient .B.Physician-Patient relationship does not imply
guaranty or any promise that the treatment will be successful .N.it does not imply any promise or guaranty that the treatment will produce certain result .it does not promise or guaranty that the treatment will not harm the patient .it does not promise that the physician will not commit errors in an honest way
DUTIES and OBLIGATIONS Imposed on the Patient in the Course of the PhysicianPatient Relationship
He must inform the physician of what occurred in the course of the treatment.• 1. orders and suggestions of the physician • 4. He must give an honest medical history.
. He must cooperate and follow the instructions. • 3. • 2. • He must exercise the prudence to be expected of an ordinary patient under the same circumstances. He must state whether he understands the contemplated course of action.
.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.
– 5. Expiration of the period as stipulated. – 7. In emergency cases. Discharge of the physician by the patient. – 8. – 4. – 2. Mutual agreement for its termination.TERMINATION • It is the time when the duties and obligations by a physician to his patient ceases.Recovery of the patient or when the physician considers that his medical services will no longer be beneficial to the patient. Fulfillment of the obligations stipulated in the contract. Withdrawal of the physician provided: a) with consent of the patient. and b) patient is given ample time and notice. The following are some ways of termination of the relationship:
– 1. Death of either party. Incapacity of the physician – 6. – 3. – 9. when the physician of choice of the patient is already available or when the condition of emergency ceases.
Philippine Constitution 1987
. bill of rights. III.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.
however.2 Code of Ethics • “xxx…free to choose whom he will serve…xxx.Any person who is given right to practice medicine is not obliged to practice medicine. 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.RIGHT TO CHOOSE PATIENTS
• .xxx” •
.always respond to any request for his assistance in emergency….. • • Related provisions • Art II. Sec. • Cannot be compelled to accept professional employment.
his failure to respond to it may not make him liable if in so doing. Medical Act of 1959 • “”xxx……. • 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
. xxx ….1 RA 6615 • “All government and private hospitals…xxx .3 Code of Ethics • “In cases of emergency.”
• Sec.Although the ethical rule obliges a physician to attend to an emergency. Sec.24 No. II.a physician should administer at least first aid treatment and then refer to a more qualified and competent physician ……xxx”
• Sec.12.are required to render immediate emergency medical assistance…xxx.• Art. there is a risk to his life.
. 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. law. religion. medical society.
RIGHT TO AVAIL OF HOSPITAL SERVICES
• RIGHT TO DERTEMINE THE APPROPRIATE MANAGEMENT PROCEDURE • Doctrine of Superior Knowledge • . • • RIGHT OF WAY WHILE RESPONDING TO THE CALL OF EMERGENCY
.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 EXEMPTION FROM EXECUTION OF INSTRUMENTS AND LIBRARY Rule 39.12. Rules of Court
• RIGHT TO HOLD CERTAIN PUBLIC AND PRIVATE OFFICES which can only be filled up by physicians • RIGHT TO PERFORM CERTAIN SERVICES • RIGHT TO MEMBERSHIP IN MEDICAL SOCIETIES
• .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. • .Any qualified medical practitioner has the right to become a member of the PMA through one of its component society.
Existence of friendship does not imply gratuitous services. • .Based on the physician-patient contractual relationship.
.RIGHT TO COMPENSATION
Doctrine of Unjust Enrichment .“service rendered service paid”
.Art IV. be furnished the necessary traveling expenses…xxx…this provision shall not apply to physicians who are no longer in the active practice…. to his wife and minor children or even parents provided the latter are aged and being supported by the colleague.no one must enrich himself at the expense of others .xxx. He should however. Code of Ethics
• “…should willingly render gratuitous service to a colleague. 2. Sec.
Retainer Fee – measured by the space of time rendered by patient • 3. either orally or in writing • 2.
.Kinds of Medical Fees:
• 1. 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. Simple Contractual Fee – specifically stating the value of such medical service. and the agent will share in the medical fee.
lab fees. Code of Ethics “xxx…. III. medicines.this kind of fee is unethical because the amount wagers with the unforceable contingencies . and other incidental expenses. is unethical. Straight Fee – for the amount tendered by the patient to the physician. • . directly or indirectly. Sec 5.Art. the latter shall be responsible for the payment of hospital bill.” • 1.solicitation of patients. through solicitors or agents.
b) The physician has rendered professional service to the patient. Judicial methods Facts to be Proven in Court
a) Physician employed is duly qualified and licensed.Method of Collection of Payment for Medical Services
• 1. d) The person liable for the payment is the defendant. c) The professional fee demanded is reasonable.
. Extra judicial – billing or referral to a bill collection agency • 2.
spouse. descendants.• The obligation to pay devolves on the patient himself provided he is of legal age. of the nearest degree. 3. medical fee shall be made from the following persons in order:
. brothers and sisters. 2. • NB. ascendants. of the nearest degree. 4. • If the patient dies or becomes legally incapacitated to pay. • 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.
. 7. 4. Rendered in private charitable institutions if expressly gratuitous to the indigent patients. Those covered by Phil health. Breach of contract. 6. Medical services rendered under a contract of employment unless expressly provided otherwise.Instances where the physician cannot recover professional fees:
2. When the physician cannot charge the patient pursuant to the Code of Ethics. Waiver on the part of the physician. health centers and other similar health units. 8. Agreement that the service is gratuitous. 3. In government charity hospitals. 5.
Right to choose his physician • 7. Right to give consent to diagnostic and treatment procedures • 2. Right of treatment • Right to refuse necessary treatments
.RIGHTS OF PATIENTS
• 1. Right to confidential information • 6. Right to religious belief • 3. Right of privacy • 4. Right to disclosure of information • 5.
Potential danger if not applied • 4. General nature of the contemplated procedure • 1. Diagnosis • 2.”
.patient is the final arbiter of what must be done with his body. Alternative methods of treatment • • “…. Risk involved • 2.RIGHT TO GIVE CONSENT TO DIANOSTIC PROCEDURES
• Obligations of the Physician to Inform the Patient: • 1. Prospect of success • 3.
Bases of Consent
• 1. Patient‟s right to self-determination. The physician-patient relationship is fiduciary in nature. • 3. Contractual relationship.
. • 2.
To protect the physician from any consequences for failure to comply with legal requirements
.To protect the patient from unnecessary/unwarranted procedure applied to him without knowledge • 2.Purposes
there is an “implied consent” or the physician is “privilege because he is reasonably entitled to assume consent • 2. When the law made it compulsory for everyone to submit to the procedure
.Instances When Consent Is Not Necessary
• 1. In cases of emergency.
Requisites of a Valid Consent
• 1. Voluntary • 3. Subject matter must be legal
. Informed or enlightened consent • 2.
Implied consent may be deduced from the conduct of the patient
. Expressed consent – written or oral • 2.Forms of consent
General or Blanket consent • 2. Non-liability or exculpatory clause
. Limited or conditional consent • 3.Scope of the Consent
• 5. • 4. • 2. Chances of success or failure • Consent must be given freely or voluntarily
. Nature of his condition. Possible alternative methods. • 3. Risk involved.
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. Natured of proposed treatment or procedure.
In the absence of parents and grandparents. Patient . provided one is of age and not disqualified by law to give consent. – 4. – 5.• Persons Who Can Give consent
– 1. In the absence of the parents.
. eldest brother or sister. Other person who may give consent having substitute parental authority. – 2. consent must be obtained from the parents. If patient is minor. paternal grandparents having preference. – 3. consent of the grandparents must be obtained.
. 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 • .Doctrine of parens patriae .
.consent of minor is not valid if the procedure will not benefit him • .NB:
shall forever be allowed.Art. III . No religious test shall be required for the exercise of civil or political rights.RIGHT TO RELIGIOUS BELIEF
. without discrimination or preference. Philippine Constitution • “No law shall be made respecting an establishment of religion or prohibiting the free exercise therof. The free exercise and enjoyment of religious profession and worship. Sec. 5.
RIGHT OF PRIVACY
• RIGHT OF DISCLOSURE OF INFORMATION • • the physician-patient relationship being fiduciary in nature. the physician is obliged to make full and frank disclosure to the patient or any person who may act on his behalf all he pertinent facts relative to his illness
Art. when there is duty to reveal them. Civil Code states that “xxx……failure to disclose pacts. 1339. as when the parties are bound by confidential elations. constitutes fraud.”
Sec. which information was necessary to enable him to act in that capacity. Rule 130.RIGHT OF CONFIDENTIAL INFORMATION
• • Statutory Privileged Communication Pursuant to the Rules of Court.6. or anything that may reflect upon the moral character of the person involved. 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. without the consent of the patient. surgery or obstetrics cannot in a civil case. except when it is required in the interest of justice. and which would blacken the character of the patient. II. He should never divulge this confidential information. 24(c). even after death. Ethical/Professional Confidential Information Pursuant to Art. be examined as to any information which he may have acquired in attending such patient in a professional capacity. public health or public safety. Code of Medical Ethics. a person authorized to practice medicine.
When the disclosure will serve public health and safety.
. When the patient waives its confidentiality. – 2. When such disclosure is necessary to serve the best interest of justice.• Some instances where confidentiality is not applicable:
– 1. – 3.
wherein immediate action is necessary.” • • Art II.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. 1.In emergency cases the patient has the right to treatment. Sec. RA 6615 • Provides that “xxx…. • • Sec.”
. 1st par. 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.3 of the Code of Medical Ethics • “In cases of emergency.RIGHT TO CHOOSE HIS PHYSICIANS
RIGHT TO TREATMENT • .
The social commitment of the physician is to sustain life and relieve suffering.When the law provides for treatment. the physician must act in the best interest of the patient
. the patient has no right to refuse treatment
• . the State has the right to assume guardianship when the child is neglected by the parents to have the child treated.Doctrine of parens patria. or his family or legal representative if incompetent to act on his own behalf. the choice of the patient.RIGHT TO REFUSE TREATMENT
• . • . In the absence of the patient‟s choice or authorized proxy. every man of adult age and of sound mind has the right to determine what must be done in his own body.In the legal sense. and parents have no right to base it on religious beliefs or any other grounds. should prevail. Where the performance of one‟s duty conflicts with the other. • . A man is the master of his own self and may expressly prohibit a life-saving surgery or medical treatment.
to revocation of license. Civil Code of the Philippines and other related laws. 100. RPC states that “ Every person criminally liable is civilly liable. – Penalty: reprimand.
– An act or omission which constitute a crime by the physician. – Laws: Medical Act of 1959 as amended including the Code of Ethics and Rules and Regulations of the PRC.LIABILITIES OF PHYSICIAN
– Right to practice is temporarily withdrawn from the physician. – Laws: Revised Penal Code and other special laws. – Art. – Penalty: imprisonment and/or fine.
– 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. – A valid exercise of the police power of the State.”Penalty: damages
. – Laws. suspension.
Decision must be based on the evidence adduced at the hearing. The Board or its judges must act on its or their independent consideration of the facts and the law of the case. or at least contained in the record and disclosed to the parties. – 6. such relevant evidence as a reasonable mind might accept as adequate to support a conclusion • Administrative Due Process:
– – – – – 1. Decision must have something to support itself. 2. 3. CIR)
• Quantum of evidence needed: substantial evidence. 4. Evidence must be substantial. and not simply accept the views of a subordinate in arriving at a decision. Right to hearing. 5. Tribunal must consider the evidence presented. (Ang Tibay vs.
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)
– b. his registration may be cancelled or revoked if:
– a.• Presumption of Innocence and Equipoise Rule
• Conviction of a physician. The law imposes revocation of the license. aside from imprisonment and/or fine.
. The crime wherein the physician was found guilty involved
” • • Imprudence – deficiency of action or failing to take the necessary precaution once they are foreseen. •
. would constitute a grave felony. shall suffer the penalty of arresto mayor in its maximum period to prision correctional in its medium period. the penalty of arresto mayor in its minimum periods shall be imposed. the penalty of arresto menor shall be imposed…xxx.Incidental to the practice of medicine:
• Imprudence and Negligence. if it would have constituted a light felony. by reckless imprudence. shall commit any act which. Revised Penal Code • “Any person who. had it been intentional.Art. if it would have constituted a less grave felony.365.
• • 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. 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. • • Negligence.• Reckless imprudence – voluntary. without malice. degree of intelligence.indicates a deficiency of perception or when the wrongful act maybe avoided by paying proper attention and using due diligence in foreseeing them. time and place.
. taking into consideration his employment or occupation. physical condition and other circumstances regarding persons.
• A civil suit filed against physician and/or hospitals is premised on recovery of damages for their wrongful act or of employees.
. the negligence of the doctor is not an issue. for if the doctor makes contract to effect a cure and fails to do so. he is liable for breach of contract even though he uses the highest possible professional skill.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.
Tort(Quasi-delict ) • .Ordinarily.• 2.
. any malpractice action is based on torts or quasi-delict in as much as negligence is usually a ground for injury.Legal wrongdoing independent of a contract • .Primary basis is negligence or fault of the physician as the one directly responsible for the injury sustained by the patient • .
Such fault or negligence . is called quasi-delict…xxx. is obliged to pay for the damage done. 2176 of the Civil Code provides that “Whoever by act or omission causes damage to another. if there is no pre-existing contractual relation between the parties. there being fault or negligence.• Art.”
• Elements: • 1. • 2. as to treatment in a manner contrary to accepted standards of medicine resulting to injury to the patient. • 3. The physician has a duty to the patient.
. As a consequence of the failure. 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. the act or omission complained of must be punishable by law at the time of commission or omission. The failure of the physician is the proximate cause of the injury sustained by the patient. injury was sustained by the patient.
• Criminal medical malpractice. The physician failed to perform such duty to his patient. • 4. – 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.
There must be a direct physical connection between the wrongful act of the physician and the injury sustained by the patient. in natural continuous sequence. unbroken by an efficient intervening cause. •
– 1. which. The result must be the natural continuous and probable consequences. 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. – 2.
. produces the injury and without which the result would not have occurred.• Proximate Cause – is that cause. – 3.
• 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
who is not negligent. for the wrongful conduct or negligence of another.DOCTRINE OF VICARIOUS
• -Doctrine of Imputed Negligence/Command Responsibility.
. • -Vicarious liability means the responsibility of a person.
.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. 2180. 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.• Art. 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 • “….
• .DOCTRINE OF OSTENSIBLE AGENT
• . the hospital must be held liable for their negligent acts.Because of this peculiar situation.(pathologist.
.In cases wherein the employees are at the same time are independent contractors of the hospital. anesthesiologist). radiologist. they are considered ostensible agents and therefore.
resident physicians. • In the determination whether one is a borrowed servant. they are deemed borrowed from the hospital by someone and for any wrongful act committed by them during the period. • In some instances. nurses and other personnel of the hospital are employees or servants of the hospital.BORROWED SERVANT DOCTRINE
• Ordinarily. • By fiction of law.
. they are under the temporary supervision and control of another other than their employer while performing their duties. 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. their temporary employer must be held liable for the discharge of their acts and duties.
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.CAPTAIN-OF-THE-SHIP DOCTRINE
.REASONS FOR APPLICATION OF THE DOCTRINE OF VICARIOUS LIABILITY
• 1. The employer has the power to select his employee and to control his acts. • 4. Since the employer benefits monetarily from the employee. the employer has to bear the loss when neither the employer nor the employee is at fault. • 2. Deep pocket theory. To treat them as operating expense.
. nature of the wrongful act or injury is suggestive of negligence.“The thing speaks for itself”. – .
• Requisites of Res Ipsa Loquitor Doctrine: • 1.The accident must be of a kind which ordinarily does not occur in the absence of someone‟s negligence. • 1. • 2. It must not have been due to any voluntary action or contribution on the part of the plaintiff.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. It must be caused by an agency or instrumentality within the exclusive control of the defendant.DOCTRINE OF RES IPSA LOQUITOR
Infection resulting from unsterilized instruments. • 5. • 2. • 4.
.Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied:
• 1. • 3. Objects left in the patient‟s body at the time of caesarian section. Injury to a healthy part of the body. Failure to take radiographs to diagnose a possible fracture. Removal of a wrong part of the body when another part wad intended.
• 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. • 4. there is a necessity for a physician to give his expert medical opinion to prove whether acts or omissions constitute medical negligence. Bad Result Rule.In most medical malpractice suits. This doctrine has been regarded as rule of sympathy to counteract the „conspiracy of silence‟
. • • . Where the Doctrine of Calculated Risk is applicable. • 2. • 3. Mistake in the Diagnosis.Instances where the Doctrine of Res Ipsa Loquitor does not apply:
” • • “…………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). 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. Initiative would be stiffed and confidence shaken.”
. Doctors would be led to think more of their own safety than the good of the patients.
is the proximate cause of the injury.It is the act or omission amounting to want of care on the part of the complaining party which.DOCTRINE OF CONTRIBUTORY
• . • . contributing as a legal cause to the harm he has suffered.Doctrine of Common Fault • . which falls below the standard which he is required to conform to his own protection. concurring with the defendant‟s negligence.
.It has been defined as conduct on the part of the plaintiff or injured party.
But if his negligence was only contributory. the plaintiff may recover damages. 2179.Related Civil Code Provisions
. 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. but the court may mitigate the damages to be awarded. he cannot recover damages.
. Failure to seek further medical assistance if symptoms persist. • 2.”
Some Instances where there is contributory negligence: • 1. • 3.2214. Failure to follow the treatment recommended by the physician. Civil Code
• In quasi-delicts. the contributory negligence of the plaintiff shall reduce the damages that he may recover. Failure to give the physician an accurate history. • 4. Leaving the hospital against the advice of the physician.
Doctrine of Superior Knowledge
• In the physician-patient relationship.
. heavily sedated or of advanced age. semiconscious. • 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 physician has superior knowledge over his patient. The patient just follows the instructions and orders of the physician and is usually inactive and virtually places himself in the command and control of the physician.
DOCTRINE OF CONTINUING NEGLIGENCE
• If the physician. after a prolonged treatment of a patient which normally produces alleviation of the condition.
. fails to investigate non-response. he may be held liable if in the exercise of care and diligence he could have discovered the cause of nonresponse.
is barred from recovery.
. • “…violenti non fit injuria”.DOCTRINE OF ASSUMPTION OF RISK
• Predicated upon knowledge and informed consent. if injured. which means that a person who assents and was injured is not regarded in law to be injured. anyone who voluntarily assumes the risk of injury from a known danger.
DOCTRINE OF LAST CLEAR CHANCE
• .A physician who has the last clear chance of avoiding damage or injury but negligently fails to do is liable. 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.
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.
Abandonment of patients
.termination of the physician-patient relationship without the consent of the patient and without giving the patient adequate notice and opportunity to find another physician.
Unilateral termination of the contractual relationship by the physician. • 4. Abandonment must have been the cause of the injury or death of the patient. • 5. Continuing need of the patient for further medical treatment. • 2.
. • 3.Elements:
• 1. The relationship is terminated without mutual consent of both parties. There is a physician-patient relationship.
• 3. 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.B. Refusal to attend to a case for which he has already assumed responsibility. Refusal by a physician to treat a case after he has seen the patient needing medical treatment but before treatment is commenced. Failure to arrange for a substitute physician during the time the physician is absent or unavailable. • 4. Non-payment of bill cannot be a defense for abandonment.Some instances of abandonment:
• 1. Failure to provide follow-up attention.
. • 2.
• N. • 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.
LIABILITIES IN THE ADMINISTRATION OF DRUGS
. 5.Five basic rights:
• • • • • 1. Right patient. 3. and Right route. Right drug. Right time. Right dose. 4.
Administration of a drug on the wrong person. Drug reaction. Administering medicine on the wrong route. Injury to the nerves 9. 6. Failure to give warning of the side effects. Infection following an injection. 8.
. Administration of the wrong medicine. 3. 7. Failure to administer the drug. failure to note history of allergy failure to test for signs of reaction failure to stop treatment when the drug reaction has been observed failure to provide adequate therapy to encounter a reaction treatment with a drug not proper for the illness 2. Overdosage. 4. 5.Negligence in the administration of a drug which causes injury to the patient may be attributed to:
• • • • • • • • • • • • • • 1.
even though the seller exercises every conceivable caution to prevent and discover the defects.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. 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. • Negligence or carefulness is not in issue in a case under the doctrine nor is any warranty or promise in issue.
. the manufacturer has no duty to insure that the warning reaches the patient in normal circumstances. • If the drug has side effects. Once the physician has been forewarned.
• Sec.(Sec. Hospital Licensure Act • HOSPITAL means a place devoted primarily to the maintenance and operation of facilities for the diagnosis. RA 4226. or by any department.xxx. municipal. treatment. according to Control and Financial Support: • 1. RA4226)
LIABILITIES OF HOSPITALS
.2(a). or private capital or other means. (Sec. Public/Government – operated and maintained either partially or wholly by the national. especially established and operated with funds raised and contributed through donations. 2(b) RA 4226) • 2. 2(C).” • • Classification. …. or in need of obstetrical or other medical and nursing care. division. The term „hospital‟ shall also be construed as any institution. cribs. board or other agency thereof. and care of individuals suffering from illness. disease. bassinets for twenty-four hour use or longer by patients in the treatment of diseases. provincial. building or place where there are installed beds. or city government or other political subdivision.. Private – privately owned. injury or deformity.
For purposes of determining liability of private hospitals:
Private charitable or eleemosynary – established for the public benefit and not conducted for the pecuniary gain of the management.
. Private pay – established for profit and gain. • 2.
A non-medical will be allowed to control a physician and through circumvention practice medicine.
.Rationale why hospital cannot practice medicine:
• 1. • 2. • Breach of the confidential relationship in a physician-patient relationship. The hospital cannot be subjected to government licensure examinations to determine whether it is qualified to practice medicine.
Primary Duties of a Hospital:
• 1. To furnish adequate and safe equipments. To furnish a safe and well-maintained building
and ground. • 2. To exercise reasonable care in the selection of the hospital staff. • 3.
expressly or impliedly to be within the premises for his own interest and convinience.Persons Coming Within the Premises of the Hospital
• 1. • Invitee – one who is essential to the operation of a hospital or for whom the hospital has a purpose.
. His presence is merely tolerated. Licensee – one who is neither a customer. servant or a trespasser. 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. Trespasser – one who enters the property of another without being granted the privilege to do so. • 2. He is permitted.
Liabilities of Hospitals for the Wrongful Acts of their Agents
A State cannot be sued without its consent. 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. The government must not be sued because the government derives no profit from its activity unlike a private enterprise. • . The government goes down to the level of any private hospital.The immunity of the government from the official acts of its officers. it is immune from being sued.Rationale: Government funds should be spent for public purposes and not diverted to compensate for private injuries and public service should not be hindered.
. • .1.Those established to perform government functions. • . Government or Public Hospitals
• .Those performing proprietary function when it is established for profit.” • .
A charity hospital is established and maintained from the donations. philantrophic acts and pays no dividends.The determination whether a hospital was established for charity is the articles of incorporation and the constitution and by-laws of the corporation.2. Voluntary or eleemosynary
for charity • . contributions.
. Private Charitable. • .
. Private Hospital Operating for profit
• .May be held vicariously liable for the negligent
acts of its employees.3.
The charging of the fee is not controlling but the purpose the fee will be use is the measure of charity. 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. if it is operated for no profit.B. 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.
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.
Doctrines Applied to Charitable Hospital Immunity for the Acts of its Employees
Diverting the money for the payment of damage will be utilizing the money not intended by the donor.
. care and treatment of charity patients. The contributions are held only in trust by the governing body of the hospital.TRUST FUND DOCTRINE
• Charitable hospitals derived support from voluntary contributions or donations for the reception.
IMPLIED WAIVER THEORY
• A patient who enters a private hospital.
. waives his right to claim damages. knowing fully well that it is merely supported by contributions.
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.
Principle of administrative/ministerial as against professional/medical duties. may make the hospital vicariously liable. • Medical duties are by its nature beyond the ordinary routine in a hospital.1.
. Any negligence of such hospital 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.
Power of Control.
Contract of Service.
• If the contract has been entered with hospital to render professional services.3. the principle of independent contractor theory is applied. the hospital may be held liable provided the negligent act was committed within the scope of employment. But if entered with the patient for contract of services.
Independent Contractor Theory.4.
Sole Responsibility vs Shared Responsibility.5.
• Recent decisions of the court has extended hospital liability to patient for its failure to make careful selection.LIABILITIES OF HOSPITAL
• 1. CORPORATE Liabilities • Those arising from failure of the hospital to furnish accommodations and facilities necessary to carry out its purpose or to follow in a given situation.
. VICARIOUS Liabilities for the Acts of Hospital Employees. and supervision of independent physicians who are permitted to practice in the hospital. the established standard of conduct to which the corporation should conform. • • 2. review.
• 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.
. 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.Attendance to emergency cases in hospitals
.Transfer of patients
• It must be premised on desire and consent of the patient and when the condition of the patient would permit to do so.
Discharge of patients
• After evaluation of the patient‟s condition. considers that further hospitalization is no longer indispensable. a physician may order the discharge with or without condition.
Related laws: • Art. 268. 1 and 6 • • Refusal of the patient to leave the hospital
. Revised Penal Code • 1987 Philippine Constitution.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. Sec.
• 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.
• A hospital any legally detain a patient against his will when he is detained or convicted prisoner.
. The law provides a remedy for them to pursue by filling the necessary suit in court for the recovery of such fee or bill. or when the patient is suffering from a very contagious disease wherein his release is prejudicial to public health. that his release will endanger public safety. or when the patient is mentally ill.Detention of patient for non-payment of bill
• A patient cannot be detained in a hospital for nonpayment of the hospital bill.
Consequently liability for negligence in the emergency room is shifted to the medical partnership. • -Patients are not bound by the secret limitations contained in a private contract between the hospital and the physician.LIABILITIES OF HOSPITAL FOR ITS
. 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. the medical staff therein are not considered employees of the hospital. • -Courts have held that even if contracts specify that physicians will be considered independent contractors.
Two Aspects of Emergency Care
• 1. Examination of the patient to determine his condition and need for emergency medical procedures • 2. •
. Performance of the specific medical or surgical procedure which are required without delay to protect the patient‟s health.
Liability in the emergency room may arise from the following:
• 1. • 3. • 2. Negligence in the application of management procedures. Failure to examine and/or treat.
. Failure to admit.
equipped and used for the transportation of the sick. proprietary medicine of pharmaceutical specialties.
. 42. RA 5921. devices and poison are sold at retail and where medical and dental veterinary prescriptions are compounded and dispensed. the civil liability arising therefrom the hospital must be held liable. active principles of drug.• An AMBULANCE is a motor vehicle specifically designed.
• Hospital Pharmacy • Sec. chemical products. injured or wounded persons operated by trained • personnel for ambulance service. pharmaceuticals. • The criminal liability of an ambulance driver is the same as that of an ordinary driver. • A PHARMACY is a place or establishment where drugs. However.
the institution in which the patient has been treated. illness.
. coordinated into a document and made available for various uses to serve the patient. the physician. and treatment. • 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. the science of medicine and society as a whole.
• 2.An altered medical record may create suspicious intent to establish a defense and such alteration may be a proof of negligence. • .Removal of a certain portion of the record may raise • the inference that they are remove deliberately in order to suppress evidence
. • . As required by statutes (Hospital Licensure Law) • . For convenience and necessity in consonance with the purpose enumerated. • .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.Purpose of Maintenance of Medical Records
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.
. 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. 6. Art. public health or safety. even after their death. or anything that may reflect upon the moral character of the person involved. He should never divulge this confidential information.VIOLATION OF THE CONFIDENTIAL NATURE OF RECORD
• Sec. except when it is required in the interest of justice. II.
Comprehensive Dangerous Drug Act of 2002 (Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Chemicals.00 to 50.xxx” • An additional penalty of revocation of license to practice his profession……xxx. II.000.000. Art. 17.”
.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….• Sec. • The penalty of imprisonment ranging from 1 year to 6 years and a fine ranging from 10.
Art.• Sec. VIII.”
.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.. treatment and rehabilitation in any center…. 60. 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.
However. 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. 64. or who was charged for violation of Sec. or who has escaped but did not surrender himself within the prescribed period. VIII.• Sec. Art. 15 of this act shall be covered under Sec 60 of this act.
. the records of a drug dependent who was not rehabilitated. shall be forwarded to the court and their use shall be determined by the court. taking into consideration public interest and the welfare of the drug-dependent.
be examined as to any information. without the consent of the patient.• Sec. which he may have acquired in attending such patient In a professional capacity. surgery. and which would blacken the character of the patient. Rules of Court (Privilege Communication) • A person authorized to practice medicine. 21 (c). Rule 130. obstetrics cannot in civil case.
. which information was necessary to enable him to act in that capacity.
• 2. 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.
.Information for which no authorization is
• N. • 3. Upon a lawful order of the court.B. • • Members of the resident staff. his approval or permission is only a matter of courtesy. • 2. • 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.
. At the most. When the law requires such disclosure. student and attending medical staff may freely consult such records as pertain to their work.When May the Contents of the Record be Disclosed
by a person deceased. or near the time of the transactions to which they refer. who was in a position to know the facts therein stated. Rules of Court – Entries in the Course of Business • Entries made at. outside the Philippines or unable to testify.
. Rule 130. may be received as prima facie evidence.• Sec. if such person made the entries in his professional capacity or in the performance of duty and in the ordinary course of business or duty. • • Patient‟s record is admissible in evidence even if the person who made the entry is dead or not available. as the records are entries in the course of business. 37.
the objective of the plaintiff is to recover damages.DAMAGES
• DAMAGES are the pecuniary compensations that may be recovered for breach of some duty or the violation of some rights recognized by law. he liable for the payment of damages for all the direct. natural and logical consequences of his act. If the physician is found negligent in the performance of his professional services.
. If a suit is filed against a physician for a professional liability claims.
20.• Art. willfully or negligently causes damage to another shall indemnify the latter for the same. Civil Code • Every person who.
. contrary to law. is obliged to pay for the damages done. 2176. there being fault or negligence. by act or omission causes damage to another. Civil Code • Whoever. • • Art.
To permit the Court to determine how much it must be. • 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. cause and probable duration of the injury. Recovery must not be contingent or speculative.• Damages must be sufficiently proven by evidence.
• Doctrine of Certainty of Damages
• Damages must be certain both in its nature and in respect to the cause. extent. The proof must show the nature.
. Temperate. Actual or Compensatory. 6. 5. Exemplary Nominal. 4.TYPES OF DAMAGES
• • • • • • 1. 2. Moral.
Such compensation is referred to as actual or compensatory damages. Civil Code • Indemnification for damages shall comprehend not only the value of the loss suffered. 2200. 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. Civil Code • Except as provided by law or by stipulation. • • Art.ACTUAL OR COMPENSATORY DAMAGES
• Kinds: • 1. Lucro cesante – failure to receive the benefit which would have pertained to him.
. „Dano emergente‟ – the loss already suffered by the patient • 2.
Hospital. Surgical. Loss of Earning Capacity 4.000.00). Medical. Funeral Expenses
. Death • Art. Civil Code • The amount of damages for the death caused by a crime or quasi-delict shall be at least three thousand pesos(75.Compensatory Damages Applied to Medical Malpractice
1. 2. Physical Disability 3. even though there may have been mitigating circumstances. Loss of Service or Support 6. 2206. and Related Expenses 5.
and similar injury.
• Art. besmirched reputation. moral damages may be recovered if they are the proximate result of the defendant‟s act or omission. serious anxiety. 2217. Civil Code • Moral damages include physical suffering. moral shock. mental anguish. wounded feelings. Though incapable of pecuniary computation. fright. social humiliation.
• Art. Quasi-delict causing physical injuries.
• • • •
Physical Suffering Mental Anguish Fright and Moral Shock Besmirched Reputation and Social
. 2. A criminal offense resulting in physical injuries. Civil Code • Moral damages may be recovered in the
following and analogous cases:
EXEMPLARY OR CORRECTIVE DAMAGES
• Art. in addition to the moral. Such damages are separate and distinct from fines and shall be paid to the offended party. exemplary damages as part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. 2230. temperate. • • Art. liquidated or compensatory damages. 2229. Civil Code • In criminal offense.
. Civil Code • Exemplary or corrective damages are imposed. by way of example or correction for the public good.
reckless. the court will decide whether or not they should be adjudicated.
. • • Art. 2233. fraudulent. oppressive and malevolent manner. Civil Code • In contracts and quasi-contracts. Civil Code • In quasi-delict.• Art. 2232. the court may award exemplary damages if the defendant acted in a wanton. 2231. • • Art. Civil Code • Exemplary damages cannot be recovered as a matter of right. exemplary damages may be granted if the defendant acted with gross negligence.
or that he is guilty of gross negligence in the performance of his profession. or with utter disregard to the effects of his act. or that he acted with recklessness. malicious or oppressive nature of the wrong committed. because of the wanton.• Punitive or exemplary damages are monetary
compensation over and above actual or compensatory damages awarded as punishment or deterrence. • 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. reckless. oppression.
may be vindicated or recognized not for the purpose of indemnifying the plaintiff for any loss suffered. • It is a trifling sum awarded to the plaintiff in an action where there is no substantial loss or injury to be compensated.NOMINAL DAMAGES
• Art. • It is awarded to plaintiff as a vindication of a right violated.
. 2221. Civil Code • Nominal damages are adjudicated in order that a right of the plaintiff. which has been violated or invaded by the defendant.
. 2226.LIQUIDATED DAMAGES
• Art. Civil Code • Liquidated damages are those agreed upon by the parties to a contract. to be paid in case of breach thereof.
TEMPERATE OR MODERATE
• Art. 2224. which are more than nominal but less than compensatory damages. be proved with certainty. from the nature of the case. may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot.
. Civil Code • Temperate or moderate damages.
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
.Obligation on the part of the plaintiff(patient) to
minimize damages. 2203.
. caused personal injury to another.Doctrine of Avoidable Consequences
• Where one person has. it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. through wrongful act. The person wronged cannot recover for any item of damage which could have been avoided.
The burden of proof that the injured could have prevented or mitigated the damages rests on the defendant.
• Attorney‟s fees and other related expenses in litigation. laborers and skilled workers. In criminal cases of malicious prosecution against the plaintiff. other than judicial cost are not as rule recoverable except when the law specifically provides. In a separate civil action to recover civil liability. Civil Code) 1.
• • • • • • • • • • •
. In case of clearly unfounded civil action or proceeding against the plaintiff. In any other case where the court deems it just and equitable that attorney‟s fees and expenses of litigation should be recovered. just and demandable claim. 9. (Art. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff‟s plainly valid. 8. 4. When exemplary damages are awarded. In actions for legal support. 3. In actions for indemnity under the workmen‟s compensation and employer‟s liability laws. In actions for the recovery of wages of household helpers. 7. When at least double judicial costs are awarded. When the defendant‟s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest. 10. 5.2208. 2. 11. 6.
. 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.EMERGENCIES IN MEDICAL
• An EMERGENCY is an unforeseen combination of circumstances which calls for an immediate action.
He may refuse calls. however.” • Art. Sec. always respond to any request for his assistance in an emergency…xxx. 2 • “ A physician is free to choose whom he will serve. other medical services for reasons satisfactory to his professional conscience. II. He should.Related Provisions of the Code of Medical Ethics
• A condition of emergency is usually an exception to the observance of the standard ethical conducts. 3 • “In case of emergency. 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.”
. wherein immediate action is necessary.
• Art. Sec. II.
• Art.• Art.\‟s immediate needs…. Sec. 17 • Whenever in the absence of the family physician several physicians have been simultaneously called in an emergency case • …xxx.. Sec. 16 • “A physician called upon to attend to a patient of another physician because of an emergency…. Sec.xxx.”
.should attend only to the patient. IV.. IV. 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. unless the patient or his family has special • preference for some other one among those who are present…xxx.the first to arrive should be considered as physician in charge.xxx….xxx..
.• 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.
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. • 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. amending BP Blg.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.
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.”
. when he can render such assistance without detriment to himself. unless such omission shall constitute a more serious offense. 275. Anyone who shall fail to help or render assistance to another whom he has accidentaqlly wounded or injured…xxx. 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.
.Standard of Care in Emergencies
A physician cannot be held to the same conduct as one who had an opportunity to reflect. even though it later appears that he made a wrong decision yet prudent at that time.
Emergency Operations Without Consent
• -When the situation is such that an immediate action is necessary to save the life or preserve the health of the patient. and getting a consent is prejudicial to the patient.The law gives him the right to act under the Theory of Implied Consent or that the physician is privileged to do whatever is sound for the benefit of the patient. • . • The refusal of the patient who is of legal age and of sound mind to submit to medical treatment shall prevail even if the danger to his life is eminent. the physician can legally proceed with his contemplated life-saving procedure.
The situation must be such as it would make it actually and apparently necessary to act before there is an opportunity to obtain consent. • 2.
. 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.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.Refusal to Give Consent During Emergency
• If the patient is conscious. then consent must first be obtained before the commencement of a procedure.
the surgeon is justified in extending the operation and be absolved of liability. In the absence of a clearly specific prohibition on the part of the patient.B. Surgery cannot be extended if an emergency is not present • • The law also implies an obligation on the part pf the patient to pay reasonable value of the emergency service. • The surgeon is authorized to extend the operation to any condition discovered when it will redound to the welfare of the patient. • N. but which is not covered by the consent. an accident occurs.Extension of Operation in Cases of Emergency
• If during an operation. or a condition maybe discovered which requires immediate action. the principle of quantum meruit shall be applied. If no specified amount agreed upon. the physician should be privileged to perform such surgery within the operative field as is justified in the prevailing medical opinion.
• The patient consented expressly or impliedly such delegation of duty.
. • 3.. • 2. Proper instructions must be given to the person who will perform the delegated duty. nature of the duty to be delegated. When such duty can be delegated which will depend on the circumstances of the case. and the training and experience of the person to whom such duty is to be delegated.DELEGATION OF A PHYSICIAN’S DUTIES • Requisites for a Valid Delegation
• 1. The person to whom such duty is delegated must be competent to perform such duty.
.Liability for Injuries in the Negligent Performance of the Delegated Duties
• The person performing the delegated duty cannot be held liable for any untoward or unexpected effects of his act if he had complied with all the requirements of a delegated duty and has exercised care and diligence in such execution.
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. authorized to exercise its power in the due course of law at times and places previously determined by lawful authority.
. and of applying the sanction of the law.THE MEDICAL WITNESS AND THE COURT
• Court – an agency of the sovereign created directly or indirectly under its authority.
. to assist in the administration of justice on matters which are medico-legal in character. when called upon by the judicial authorities. III.Different Courts in the Philippines
• • • • • 1. Sec. Code of Medical Ethics
• It is the duty of every physician. 4. 5. 2. 3. Supreme Court Court of Appeals Regional Trial Court Municipal or City Trial Court Military Commissions
20. can perceive.
• Requisites of an Ordinary Witness • 1. and • He does not fall in any of the exception or disqualifications provided by the Rules of Court. and perceiving can make known their perception to others maybe witness…xxx. The person must have the organ and power of perception. Rules of Court • “xxx…. The perception gathered by his organs of sense can be imparted to others. having organs of sense.PHYSICIAN AS AN ORDINARY WITNESS
• Sec. Rule 130.all persons who. • 2.
22. at the time of their production for examination. Rule 130. neither the husband nor the • wife may testify for or against the other without the consent of the affected spouse. Rule 130. Marriage .
. Mental Incapacity or immaturity .Sec. 21.Disqualification by reason of:
• 1. 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. Rules of Court
– a) Those whose mental condition.Sec. is such that they are incapable of intelligently making known their perception to others. except in a civil case by one against the other. or in any criminal case for a crime committed by one against the other or the latter‟s direct ascendants or ascendants.
• to testify against his parents and ascendants. against an executor or administrator or other representative of the deceased person. Rule 130. Parental or filial Privilege . or persons in • whose behalf a case is prosecuted. upon a claim or demand against the estate of such deceased person or against such person of unsound mind. in a criminal case.Sec. 25. cannot testify as to any matter of fact occurring before the death of such deceased person or before such person become of unsound mind. Rule 130.• 3.
. Rules of Court • No descendant can be compelled. Death or Insanity . • 4. or against a person of unsound mind. Rules of Court • Parties or assignors of parties to a case.Sec. 23.
. Rule 130. without the consent of the client and his employer.• Disqualification by reason of Privileged Communication
• Sec. stenographer or clerk be examined. cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other. or for a crime committed by one against the other or the latter‟s direct descendants and ascendants. 24. concerning any fact the knowledge of which has been acquired in such capacity. be examined as to any communication made by the client to him or his advice given thereon in the course of. The attorney cannot. The husband or the wife. Rules of Court – The following persons cannot testify as to matters learned in confidence in the following cases: • 1. without the consent of his client. nor can an attorney‟s secretary. during or after the marriage. or with a view to professional employment.
• 4. and which would blacken the reputation of the patient. without the consent of the patient.• 3. A person authorized to practice medicine. without the consent of the person making the confession. which information was necessary to enable him to act in that 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. when the court finds that the public interest would suffer by the disclosure. A minister or a priest cannot.
. A public officer cannot be examined during his term of office or afterwards as to communications made to him in official confidence. be examined as to any information which he may have acquired in attending such patient in a professional capacity.
and public safety. surgery or obstetrics cannot in a civil case.Privileged Communication Between Physician and His Patient
. 24(c). 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. 6. and which would blacken the character of the patient. without the consent of the patient. be examined as to any information which he may have acquired in attending such patient in a professional capacity. or anything that may reflect upon the moral character of the person involved. which information was necessary to enable him to act in that capacity. Rules of Court “A person authorized to practice medicine.
• Sec. Rule 130. II. even after their death. public health. He should never divulge this confidential information. except when it is required in the interest of justice.
• Nurses and attendants who were present and assisting the physician when the communication was made.
.Extent of the Privileged Communication
• 1. • 2. Interns. 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.
• 2. for the purpose of testifying to solely qualify the physician to testify. prior to his death. Information obtained by a technician from a patient is not privileged. When a person is examined at the instance of the law. • 4. 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
. • 3. a patient of the physician performing the autopsy.
Oral testimony by the physician in court. certificates and reports made by the physician as exhibit in court.
. and • 3. Affidavits.Scope of the Privilege
• 1. • 2. Hospital records.
.Waiver of Privilege
• Patient may expressly or impliedly waive their right to privilege communication.
• “A witness can testify only to those facts which he knows of his own knowledge. that is.HEARSAY EVIDENCE
• An evidence not proceeding from personal knowledge of the witness. • • Sec. The very nature of the evidence shows its weakness. 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. Rules of Court – Testimony generally confined to the personal knowledge of the witness. it is NOT admissible in evidence. except as otherwise provided by these rules. but from mere repetition of what he had heard others say. 36. which is derived from his own perception. hearsay excluded. • As a general rule. and it is admitted only in special cases because of necessity.
. Rule 130.
made under a consciousness of an impending death. Rules of Court “The declaration of a dying person. as evidence of the cause and surrounding circumstances of such death.”
.• Sec. 37. 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.
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. • Is the statement made by a person who is at the point of death.
. or the immediate cause of his death. which statements are admissible in evidence in a trial where the killing of the declarant is the crime charged to the defendant.Dying declaration
• One of the exceptions in hearsay evidence rule. in reference to the manner in which he receives his injuries of which he is dying. and is conscious of his impending death.
. Necessity – death of the declarant makes it impossible to obtain his testimony in court. Trustworthiness – every motive of falsehood is silenced. and the mind is induced by the most powerful consideration to tell the truth.Grounds for Admissibility of Dying Declaration
• 4.Requisites of Dying Declaration
• 1. the declarant was under the consciousness of impending death. That the declaration is offered in a criminal case in which the declarant is the victim.
. That the declarant is a competent witness. That the declaration must concern the cause and surrounding circumstances of the declarant‟s death. That at the time the declaration was made. • 2. • 3.
medical textbooks are admissible in evidence to discredit a witness who has based his testimony upon it. • N.
.B. In cross-examination. Medical witness may have the right to base his opinion from standard textbooks. • -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.
Sec. Rules of Court “A published treatise. periodical or pamphlet is recognized in his profession or calling as expert in the subject. periodical or pamphlet on a subject of history. science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice. Rule 130.”
. or a witness expert in the subject testifies that the writer of the statement in the treatise.
.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.
and • 2.
• An OPINION maybe defined as the belief. person or events perceived by a witness. or sentiment formed by the mind with regard to things. judgment. business or occupation as to be beyond the knowledge of average layman.• To warrant the use of expert testimony.
. two elements are required:
• 1.The witness must have such skill. profession. knowledge or experience in that field or calling as to make it appear that his • 3.The subject of inference must be so distinctly related to some science. inference. An opinion in the legal sense is something more than mere speculation or conjecture.Opinion or reference will probably aid the trier of facts in his search for the truth.
• 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.
. to assist in the administration of justice on matters which are medico-legal in character.(12) Violation of any of the provisions of the Code of Medical Ethics…shall be sufficient ground for reprimanding.” • Refusal of a public officer to give assistance in the administration of justice is penalized by law • Art. 24. Medical Act of 1959 as amended • “xxx…. if such failure shall result in serious damage to the public interest. Revised Penal Code • “The penalties of arresto mayor…xxx. III. or to a third party. when called upon by the judicial authorities. 2.• Sec. shall fail to lend his cooperation towards the administration of justice or other public service.” • Sec. or for suspending or revoking a certificate of registration as physician…xxx. Code of Medical Ethics • “It is the duty of every physician. shall be imposed upon a public officer who. Art. upon demand from a competent authority.”
. III. Art. 233.
When a Medical Witness Need Not Comply With a Subpoena
• 1. The Court issuing the subpoena has no jurisdiction over the subject matter of the case; • 2. When the place of residence is more than 100 kilometers from the court issuing the subpoena.
– Sec. 10, Art.21, Rules of Court – “ The provisions of sections 8 and 9 0f this rule (Compelling attendance and Contempt) shall not apply to a witness who resides more than 100 km from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained.”
• 3. When the patient is attending to an emergency and no one is available and competent enough to be his substitute to attend to such emergency. • 4. On account of illness incapacitating him to attend.
Sec. 3, Rule 132, Rules of Court, Rights and Obligations of a Witness
• “A witness must answer questions, although his answers may tend to establish a claim against him. However, it is the right of a witness:
i. To be protected from irrelevant, improper questions and from harsh or insulting demeanor; ii. Not to be detained longer than the interests of justice require; iii.Not to be examined except only as to matters pertinent to the issue; iv.Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or v. Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction of an offense.”
Instances when the medical witness may not be compelled to answer questions in court
• 1. It will tend to subject him to punishment for an offense; • Incriminatory questions may subject the witness to punishment or disclosure of which would form a necessary and essential part of a crime.
Sec. 17, Art. III, Phil Constitution – “No person shall be compelled to be witness against himself.
• 2. It will degrade his character, except when such degradation of character is the very fact at issue; • A medical witness may refer to memoranda, notes or other pertinent papers:
Impeachment of Medical Testimony
• 1.By contradicting testimonies by others of his own class or by any other competent witnesses; • 2.By showing that the medical witness is interested in the outcome of the case or bias; • 3.By an inconsistent statement made at another time; • 4. By not expressing the opinion testified to at the time when such expression might reasonably had been expected; and • When the scientific treatise which he relies on as the basis of his opinion does not sustain him.
Effects of False Testimony
• 1. Art. 180, Revised Penal Code, False testimony against a defendant: • “ Any person who shall give testimony against the defendant in any criminal case shall suffer:
– i. The penalty of reclusion temporal, if the defendant in said case shall have been sentenced to death; – ii. The penalty of prision mayor, if the defendant shall have been sentenced to reclusion temporal or perpetua; – iii. The penalty of prision correccional, if the defendant shall have been sentenced to any other afflictive penalty; and – iv. The penalty of arresto mayor, if the defendant shall have been sentenced to a correccional penalty or a fine, or shall have been acquitted.”
• 2. Revised Penal Code.”
.xxx. False Testimony favorable to a defendant:
“Any person who shall give false testimony in favor of the defendant in a criminal case. 181... Art. shall suffer the penalties of arresto mayor in its maximum period to prision correccional….xxx…if the prosecution is for felony punishable by an afflictive penalty.
. 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. Revised Penal Code. 182.• 3.
or make an affidavit. shall suffer the respective penalties provided therein. knowingly making untruthful statements and not being included in the provisions of the next preceding articles. who in case of a solemn affirmation made in lieu of an oath. Revised Penal Code. upon ant material before a competent person authorized to administer an oath in cases in which the law so requires. 183.• 4.”
. • Any person. shall testify under oath. False testimony in other cases and perjury in solemn affirmation: “The penalty of arresto mayor …xxx. Art. shall commit any of the falsehoods mentioned in this and the three preceding articles of this section.
are not corroborated by circumstances or other unimpeached evidence.
. The false testimony must be on material point. That the other portions of the testimony to be discredited.Principle of “Falsus In Uno. That the witness deliberately or intentionally falsified the truth.
• Requisites: • 1. • 2. unless corroborated by other unimpeached evidences. Falsu In Omnibus”
• When a witness falsified the truth on one point. his testimony on other points may be disregarded. • 3.
When the mistake was not in a very material point. but from innocent mistakes and the desire of the witness to exculpate himself though not completely.When there are sufficient corroborations in many grounds of the testimony. • 3. • 2.• When it is not applicable • 1.When the error did not arise from the apparent desire to prevent the truth.
If the subpoena was not issued by a court. Rule 21. Rules of Court • Contempt – “ Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of court from which the subpoena is issued. offensive personalities toward others. 1. the disobedience thereto shall be punished in accordance with the applicable law or Rule.CONTEMPT
• Sec. may be summarily adjudged in contempt by such court…xxx. refusal to be sworn or to answer as witness. 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. or to subscribe an affidavit or deposition when lawfully required to do so.”
. Rule 71. 9. including disrespect toward the court.
– 3. Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt…. Any improper conduct tending directly or indirectly to impede. 3. Assuming to be an attorney…. The rescue of a person or property in the custody of an officer by virtue of an order. – 5. Rules of Court • Indirect contempt To Be Punished After Charged and Hearing – “After a charge in writing has been filed..
• But nothing in this section shall be construed as to prevent the court • from issuing process to bring the respondent to the court. order. obstruct. Disobedience of or resistance to a lawful writ. or degrade the administration of justice. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. or from holding him in custody pending such proceedings. process. or judgment of a court…. – 2.... – 4. Rule 71. and an opportunity given to the respondent to comment thereon within such period…xxx….• Sec. – 6.”
. a person guilty of any of the following acts may be punished for indirect contempt:
• 3. • When the expert is not familiar with the facts upon which it is based. they must be stated to him hypothetically. without stating the facts upon which it is based. He must answer the question provided those set of facts has the following requisites: • 1. he may be asked directly for his opinion. It must be framed as to fairly represent those facts and not give a situation a false color by the way the statement was given. • 2. he must base his opinion. • • Where the expert is familiar with the facts by personal • observation and so testifies. 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.
. The hypothetical question is based upon facts which are in evidence and assumed facts within the limit of evidence. The hypothetical question must not be unfair or misleading.
may unconsciously favor one of the party litigants. • 2. The human mind is not absolutely impossible.The opinion of the medical expert is based on experience and treatise or books which may be divergent from the observation of others
.Rationale on the Corroborative Probative Value of Medical Expert Testimonies
• 1.The testimony however impartial.
• Free to choose whom to serve. • Immediate action in cases of emergency. • Sacred trust of information • Practice of medicine is not a business. • He must exercise good faith and strict honesty in expressing his opinion.
. II – Duties of Physicians to their Patients • To attend to his patients faithfully and conscientiously. I – General Principles • Primary objective of the practice of medicine is SERVICE to mankind.CODE OF MEDICAL ETHICS
• Art. • Proper consultation and referral. • “friend of man” • • Art.
. No solicitation and extravagant and false advertisements. To assist in the administration of justice.• • • • • •
Art. III – Duties of Physicians to the Community Cooperation with proper authorities. To protect the public from charlatans. sanitation and health. Gratuitous services to the indigents.
upright.No advertising by means of untruthful or improbable statements in newspapers or exaggerated announcements. -To refrain from making unfair and unwarranted criticisms of other physicians. sober.Proper consultation and referral.Uphold the honor and dignity of the profession.He should be diligent. . . . . .Should aid in safeguarding against the admission of those who are unfit or unqualified because of deficiency in moral character.Should expose without fear or favor. . tact and prudence as regards professional conduct of another physician.
. before the proper medical or legal tribunals corrupt and dishonest conduct of members of the profession.Observe punctuality.To keep abreast to the advancements of medical science and contribute to its progress.Observe utmost caution. IV – Duties of Physicians to their Colleagues and to the Profession
• • • • • • • • • . .Art. . . modest and well-versed in both the science and art of medicine.Gratuitous services to a colleague.
Art. value and superiority and recommendation of drugs. reputation and dignity of allied professional. suspension or revocation of the certificate of registration of the offending physician in accordance with the provisions of Sec. – Non-payment of commissions to any person who refers cases to help him acquire patients. 12 of the Medical Act of 1959. V – Duties of Physicians to Allied Professionals
– To cooperate with and safeguard the interest. 24. par.
• Penal Provisions • -Violation of the provisions of this Code constitute unethical and unprofessional conduct and therefore a sufficient ground for the reprimand. – Not to allow to be published any testimonial certifying the efficacy.
on the reasonable assumption that the purpose of the interrogation will be to incriminate him. Board of Medical Examiners. III. such as cancellation of his license to practice medicine. • • In criminal actions. Art. including civil actions and administrative or legislative investigations. Philippine Constitution states that.RIGHT AGAINST SELF-INCRIMINATION
.(Pascual vs. 17.” • • The right is available not only in criminal prosecutions but also in all other government proceedings. 28 SCRA 345). • • The same principle shall apply to the respondent in an administrative proceeding where the respondent may be subjected to sanctions of a penal character. the accused may not be compelled to take the witness stand. • “No person shall be compelled to witness against himself. 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.
– The kernel of the right is not against all compulsion. – It is simply against the legal process of extracting from the lips of the accused an admission of his guilt. – The prohibition extends to the compulsion for the production of documents. but testimonial compulsion only. photographing. 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. – It does not apply where the evidence sought to be excluded is not an incriminating statement but an OBJECT EVIDENCE(eg. – 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. paraffin testing.
. PE). Fingerprinting.
. REBOSA..B.D.Thank you very much and good day to everyone! ALBERT D. M.