LEGAL MEDICINE

• -branch of medicine that deals with the application of medical knowledge to the purposes of law and in the administration of justice

MEDICAL JURISPRUDENCE
• deals with the aspect of law and legal concepts in relation with the practice of medicine

MEDICAL JURISPRUDENCE includes:
• Licensure and regulatory laws; • Physician-patient-hospital relationship together with the other paramedical personnel, their rights, duties and obligations; • Liabilities for non-compliance with the law.

PURPOSES
• To protect the public from charlatans; • To promote professionalism and foster professional interrelationship; • To develop awareness of the rights, duties and obligations of the patient, physician, and the hospital; • To control the increasing number of medical malpractice suits against physicians; • To explain the purpose and procedure of certain legislation; • To study the need to amend, repeal our health care laws in harmony with the recent scientific and social development.

ADVERSARIAL TRIAL SYSTEM
• Philippine courts is a court litigation where there is competition of inconsistent version of facts and theories in law during trial; • Each party to the contest is given equal opportunity to investigate the case, gather and present all proofs in support of his allegation, and give argument that his contention is correct ; • Ultimate purpose is for a just solution.

” .it often undermines the pursuit of truth as the opposing parties seek to win at all cost without the obligation to reveal the facts which may be detrimental to their case.• “……. The lawyer aims to win the fight not to help the court discover facts or establish the truth.

BP. RA • Administrative acts. Letters. CA. Proclamation. Rules and Regulation • Local customs • Generally accepted principles of International law . Orders.SOURCES OF LAW • Constitution • Laws enacted by the legislative body • Decrees. orders.

. • 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.

control and regulation of the practice of medicine .LICENSURE AND REGULATORY LAWS • • • • • • • • • • • ADMINISTRATIVE BODIES BOARD OF MEDICAL EDUCATION Primarily concerned with the standardization and regulation of medical education PROFESSIONAL REGULATIONS COMMISSIONS To have general supervision and regulation of all professions requiring examinations which includes the practice of medicine BOARD OF MEDICINE Its primary duties are to give examinations for the registration of physicians and supervision.

4. 8. 7. To select.APMC Dean. To determine and prescribe the requirements for admission into a recognized college of Medicine. 3. PMA Council of Deans. To determine and prescribe the minimum number and qualifications of teaching personnel. To determine and prescribe requirements for the minimum physical facilities.Secretary of Education Members . determine and approve hospitals for training. .BOARD OF MEDICAL EDUCATION • • • • • • • • • • • • • • • • • • Composition: Chairman . To determine and prescribe the minimum required curriculum.Secretary of Health Director. To authorize the implementation of experimental curriculum. 5. 2. To accept applications for admission to a medical school. 6. prescribe and enforce the necessary rules and regulations. UP-College of Medicine Functions: 1. Bureau of Private Schools Chairman. To promulgate. Board of Medicine Representative.

executive and policymaking functions for the whole agency .PROFESSIONAL REGULATIONS COMMISSION • Composition: Commissioner Two Associate Commissioner • Exercise of Power and Functions of the Commission -exercise general administrative.

.Of good moral character and of recognized standing in the medical profession as certified by PMA. . .BOARD OF MEDICINE • • • • • • • • • Composition: Six members appointed by the president from a list submitted by the Executive Council of the PMA.Duly-registered physician. Qualifications: . • . .Natural-born citizen.In the practice of medicine for at least 10 years.Not a member of any faculty of any medical school (including any pecuniary interest).

To promulgate. To promulgate such rules and regulations for the proper conduct of the examinations. • • • . To administer oath.Powers. subpoena and subpoena duces tecum. correction and registration. rules and regulations in harmony with the provisions of the Medical Act of 1959 and necessary for the proper practice of medicine. 9. 6. To determine and prepare the contents of the licensure examinations. To suspend. To promulgate decisions on such administrative cases subject to the review of the Commission. Functions and Responsibilities: • • • • • • • 1. 4. 7. 8. 10. 3. To issue certificate of registration. To conduct hearings or investigations of administrative cases filed before them. revoke or reissue certificate of registration for causes provided by law or by the rules and regulations promulgated. issue summons. 5. 2. To study the conditions affecting the practice of medicine. To investigate violations. with the approval of PRC.

Minimum age requirement • . Certificate of Eligibility from the Board of Medical Education.at least 21 years of age • 2. Not convicted of any crime involving moral turpitude.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. Good moral character .

• Final or Complete Examination -Citizen of the Philippines or of any country who has submitted competent and conclusive . . .documentary evidence confirmed by the DFA showing that his country‟s existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof (RECIPROCITY RULE). Examination Requirements .• 3.Of good moral character.must have passed the corresponding Board Examination • Preliminary Examination -At least 19 years of age. -Have completed the first two years of the medical course.

. -Found guilty of immoral or dishonorable conduct after investigation by the Board of Medicine. -Declared to be of unsound mind. Holder of certificate of registration • No issuance to any candidate who has been: -Convicted by a court of competent jurisdiction of any crime involving moral turpitude.• 4.

Pharmacology and Therapeutics • Pathology • Medicine • Obstetrics and Gynecology • Pediatrics and Nutrition • Surgery and Ophthalmology. Ethics and Medical • Jurisprudence Scope of Examination: . • Otorhinolaryngology • Preventive Medicine and Public Health • Legal Medicine.Anatomy and Histology • Physiology • Biochemistry • Microbiology and Parasitology • Final .• Preliminary .

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. . or relieving bodily disease or conditions. • It is diagnosing and applying and the usage of medicine and drugs for curing. that is. mitigating. the Medical Act of 1959 as amended which has been promulgated by the State in the exercise of police power to protect its citizenry from unqualified practitioners of medicine.

ACTS CONSTITUTING THE PRACTICE OF MEDICINE (pursuant to Sec. III of the Medical Act of 1959 as amended): . Art.10.

• A) who shall for compensation. real or imaginary. deformity. physical. • C) who shall falsely use the title of M. mental. and diagnose.D. after his name. physically examine any person. operate or prescribe any remedy for human disease. or even without the same. operate. physical. injury. mental or psychical condition. shall be considered as engaged in the practice of medicine. reward in any form paid to him directly or through another. deformity. . fee. • B) who shall by means of signs. treat. injury. written or printed matter. cards. advertisement. prescribed or recommended. television or any other means of communication. or through the radio. either offer or undertake by any means or method to diagnose. or prescribe any remedy for human disease. treat. psychical condition or any ailment. regardless of the nature of the remedy or treatment administered.

• d) Nurse anesthesist . • b) Application of medicated massage.• By DECISIONS OF COURTS are not considered to constitute practice of medicine: • a) One who takes bp reading. • c) Hospital.

Exemptions • • • • • • By PROVISIONS OF LAW are not considered to constitute practice of medicine (Sec.11. Medical Act of 1959 as amended): a) Any medical student duly enrolled in an approved medical college. III. Art. g) Clinical psychologist with the prescription and direct supervision of a physician. nurse or midwife are not available. b) dentist. Prosthetist. e) Any person who renders any service gratuitously in cases of emergency or in places where the services of a physician. c) physiotherapist. d) optometrist. 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. 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).Faith Healing -There is nothing in the Medical Act of 1959 exempting it from the definition of the acts which constitute practice of medicine.

in the discretion of the court.28. Art. Penalties • Pursuant to Sec.ILLEGAL PRACTICE OF MEDICINE • Practice of medicine by any person not qualified and not duly-admitted to perform medical acts in compliance with law. IV. . Medical Act of 1959 as amended – Any person found guilty of “illegal practice” shall be punished by a fine of not less than one thousand pesos or more than ten thousand pesos with subsidiary imprisonment in case of insolvency or by imprisonment of not less than one year no more than five years. or by both such fine and imprisonment.

. 8.• 1. III. Art. Those who have complied with the prerequisites to the practice of medicine in accordance with Sec. Medical Act of 1959 as amended.

Attached to international bodies to perform certain definite work in the Phils. Commissioned medical officers stationed in the Phils in their own territorial jurisdiction. graduates of medicine and registered nurses who may be given limited and special authorization by the DOH. Medical students who have completed the first four years of medical course. .12. Exchange professors in special branches of medicine. III.• 2. Medical Act of 1959 as amended: Exclusive consultation in specific and definite cases. Art. Those who can have limited practice without any certificate of registration in accordance with Sec.

“Balikbayan” Physicians pursuant to PD 541. • . • Pay the corresponding income tax.Of good standing prior to their departure and in their adopted country. . Allowing Former Filipino Professionals to Practice Their Respective Professions in the Philippines • Proviso: • .• 3.Have registered with PRC and paid their professional fee.

12(d). • 5.Those that are governed by specific licensure laws . Art. Medical Students pursuant to Sec. Medical Act of 1959 as amended. Limited practitioners of medicine • .• 4. • 6.III.11(a) and Sec. Foreign physicians qualified to practice by Reciprocity Rule or by endorsement.

• -Deprivation of free choice of physicians . • -Professional relationship between the patient and the physician will be impaired. . • -Practice of medicine may be employed and controlled by unqualified physicians.Rationale why artificial persons cannot practice medicine • -Cannot be subjected to licensure examinations as required by law.

is legally licensed to practice medicine by the responsible authorities and is capable of undertaking the prevention.is a person who after completing his secondary education follows a prescribed course of medicine at a recognized university or medical school.” (WHO) .PHYSICIAN • “…. and treatment of human illness by the exercising independent judgment and without supervision. at the successful completion of which.. diagnosis.

• According to Justice Malholm • “ CONSTITUTION is that written instrument enacted by direct actions of the people by which the fundamental powers of the government are established. defined.” . and by which these powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.

(11Am. to assign to the several departments their respective powers and duties. and to establish certain first principles on which the government is founded.Purpose • To prescribe the permanent framework of a system of government. Jur. 606) .

ESSENTIAL PARTS OF A CONSTITUTION Constitution of Liberty Constitution of Government Constitution of Sovereignty .

• AMENDMENT isolated or piecemeal change in the constitution while REVISION is the revamp or the rewriting of the entire instrument .

NCC) .1305. to give something or to render some service(Art.PHYSICIAN-PATIENT RELATIONSHIP • Contract .is the meeting of minds between two persons whereby one binds himself with respect to the other.

based on mutual trust and confidence .based on mutual consent both parties • Fiduciary .Nature of the relationship • Consensual .

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 • .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.

Implied – the existence can be inferred from the acts of the contracting parties. Inferred by law as a matter of reason and justice for their acts or conduct . Expressed – explicitly stated orally or in writing 2.Forms of Physician-Patient Relationship 1.

Some Instances where there is no Physician-Patient Relationship by DECISIONS OF COURTS • 1. Pre-employment PE for purposes of determining whether an applicant is suitable for employment. • 4. • 5. PE for eligibility for insurance. Casual consultation in an unordinary place. • 2. • 3. In performing an autopsy. Physician appointed by court to examine the accused. .

anxiety and other distressing symptoms. This is characteristic in an emergency cases when the patient is unconscious.• PSYCHOLOGICAL PATTERNS OF PHYSICIANPATIENT RELATIONSHIP • ACTIVITY-PASSIVITY RELATION • No interaction between physician and patient because the patient is unable to contribute activity. he seeks help and willing to cooperate. . • GUIDANCE-COOPERATION RELATION • Patient is conscious and suffering from pain. • MUTUAL PARTICIPATION RELATION • It is in the nature of a negotiated agreement between equal parties. The physician is in a position of trust.

DUTIES and OBLIGATIONS Imposed on the Physician in the Physician-Patient Relationship .

the diligence is determined on what is applicable on a national standard basis • 3. He should posses the knowledge and skill of which an average physician is concerned. He is obliged to exercise the best judgment. . – “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 should use such knowledge and skill with ordinary care and diligence. • General practitioner vs Specialist • 2. • 4. He has the duty to observe utmost good faith.• 1.

it does not imply any promise or guaranty that the treatment will benefit the patient . • .it does not promise or guaranty that the treatment will not harm the patient .it does not imply any promise or guaranty that the treatment will produce certain result .N.it does not promise that the physician will not commit errors in an honest way .B.Physician-Patient relationship does not imply • • • • guaranty or any promise that the treatment will be successful .

DUTIES and OBLIGATIONS Imposed on the Patient in the Course of the PhysicianPatient Relationship .

He must cooperate and follow the instructions. orders and suggestions of the physician • 4. He must give an honest medical history. • He must exercise the prudence to be expected of an ordinary patient under the same circumstances.• 1. • 3. . He must state whether he understands the contemplated course of action. He must inform the physician of what occurred in the course of the treatment. • 2.

.STAGES OF PHYSICIAN-PATIENT RELATIONSHIP • COMMENCEMENT • It is the very time the physician is obliged to comply with the legal duties and obligations to his patient.

TERMINATION • It is the time when the duties and obligations by a physician to his patient ceases. Incapacity of the physician – 6. The following are some ways of termination of the relationship: – 1. Discharge of the physician by the patient. Expiration of the period as stipulated. – 7. – 8. – 4. when the physician of choice of the patient is already available or when the condition of emergency ceases. – 5. Fulfillment of the obligations stipulated in the contract. and b) patient is given ample time and notice. Withdrawal of the physician provided: a) with consent of the patient. – 3. – 9.Recovery of the patient or when the physician considers that his medical services will no longer be beneficial to the patient. Mutual agreement for its termination. – 2. Death of either party. In emergency cases. .

bill of rights. Philippine Constitution 1987 .RIGHTS OF PHYSICIAN INHERENT RIGHTS to choose patients to limit practice of medicine to determine appropriate management procedures to avail of hospital services INCIDENTAL RIGHTS right of way while responding to emergency right of exemption from execution of instruments and Library to hold certain public/private offices to perform certain services to compensation right to membership in medical societies RIGHTS GENERALLY ENJOYED BY EVERY CITIZEN Pursuant to the provisions of Art. III.

• • Related provisions • Art II. • Cannot be compelled to accept professional employment. Sec.2 Code of Ethics • “xxx…free to choose whom he will serve…xxx. • • NB: The law does not give any qualification the right of the physician to choose his patient.RIGHT TO CHOOSE PATIENTS • .always respond to any request for his assistance in emergency…. the Code of Medical Ethics and RA 6615 provides otherwise in cases of emergency.xxx” • .. however.Any person who is given right to practice medicine is not obliged to practice medicine.

xxx ….a physician should administer at least first aid treatment and then refer to a more qualified and competent physician ……xxx” • Sec. • 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 .• Art. II.3 Code of Ethics • “In cases of emergency.12.24 No. his failure to respond to it may not make him liable if in so doing. Sec.are required to render immediate emergency medical assistance…xxx.Although the ethical rule obliges a physician to attend to an emergency.” • Sec. Medical Act of 1959 • “”xxx…….1 RA 6615 • “All government and private hospitals…xxx . there is a risk to his life.

medical society. law. contract . professional ethics.RIGHT TO LIMIT HIS MEDICAL PRACTICE • • • • • • • • field of specialty private clinic or hospital within a political/geographical boundary certain days of the week/hours of the day certain class of people with due regard to dictate of conscience retirement imposed by the public. religion.

• • RIGHT OF WAY WHILE RESPONDING TO THE CALL OF EMERGENCY .RIGHT TO AVAIL OF HOSPITAL SERVICES • RIGHT TO DERTEMINE THE APPROPRIATE MANAGEMENT PROCEDURE • Doctrine of Superior Knowledge • .the physician has superior knowledge and the patient just follows orders or instructions and usually places himself in the command and control of the physician.

Rules of Court .RIGHT OF EXEMPTION FROM EXECUTION OF INSTRUMENTS AND LIBRARY Rule 39.12. Sec.

Membership in a medical society may be voluntary or involuntary Philippine Medical Care Act of 1969(RA 6111 as amended) provides that membership to the PMA is a requirement before a physician can practice medicine under the Medicare. • . .• RIGHT TO HOLD CERTAIN PUBLIC AND PRIVATE OFFICES which can only be filled up by physicians • RIGHT TO PERFORM CERTAIN SERVICES • RIGHT TO MEMBERSHIP IN MEDICAL SOCIETIES • .Any qualified medical practitioner has the right to become a member of the PMA through one of its component society.

Based on the physician-patient contractual relationship.RIGHT TO COMPENSATION • .Existence of friendship does not imply gratuitous services. • . .

Code of Ethics • “…should willingly render gratuitous service to a colleague.” Doctrine of Unjust Enrichment . 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 .“service rendered service paid” . 2. Sec. He should however. be furnished the necessary traveling expenses…xxx…this provision shall not apply to physicians who are no longer in the active practice….xxx.Art IV.

and the agent will share in the medical fee. Simple Contractual Fee – specifically stating the value of such medical service. either orally or in writing • 2. . Retainer Fee – measured by the space of time rendered by patient • 3.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.

” • 1. lab fees. medicines. Code of Ethics “xxx…. Straight Fee – for the amount tendered by the patient to the physician.Art. the latter shall be responsible for the payment of hospital bill. . III. directly or indirectly. through solicitors or agents. Sec 5.this kind of fee is unethical because the amount wagers with the unforceable contingencies . and other incidental expenses.solicitation of patients. • . is unethical.

c) The professional fee demanded is reasonable. d) The person liable for the payment is the defendant. b) The physician has rendered professional service to the patient. .Method of Collection of Payment for Medical Services • 1. Judicial methods Facts to be Proven in Court a) Physician employed is duly qualified and licensed. Extra judicial – billing or referral to a bill collection agency • 2.

4. • Implied promise to pay the physician by the benefactor of the medical services rendered in emergency cases. of the nearest degree. • If the patient dies or becomes legally incapacitated to pay. . spouse. medical fee shall be made from the following persons in order: 1. • NB. brothers and sisters. descendants. of sound mind and has the capacity to enter into a contractual relation. 2. 3.• The obligation to pay devolves on the patient himself provided he is of legal age. of the nearest degree. ascendants.

. health centers and other similar health units. Breach of contract. 5. 3. 8.Instances where the physician cannot recover professional fees: 1. When the physician cannot charge the patient pursuant to the Code of Ethics. 6. Rendered in private charitable institutions if expressly gratuitous to the indigent patients. In government charity hospitals. Agreement that the service is gratuitous. Waiver on the part of the physician. Those covered by Phil health. Medical services rendered under a contract of employment unless expressly provided otherwise. 2. 7. 4.

Right to choose his physician • 7. Right of privacy • 4.RIGHTS OF PATIENTS • 1. Right to disclosure of information • 5. Right to religious belief • 3. Right to give consent to diagnostic and treatment procedures • 2. Right to confidential information • 6. Right of treatment • Right to refuse necessary treatments .

” . Potential danger if not applied • 4. General nature of the contemplated procedure • 1. Risk involved • 2. Prospect of success • 3. Diagnosis • 2. Alternative methods of treatment • • “….patient is the final arbiter of what must be done with his body.RIGHT TO GIVE CONSENT TO DIANOSTIC PROCEDURES • Obligations of the Physician to Inform the Patient: • 1.

Patient‟s right to self-determination. • 3. Contractual relationship.Bases of Consent • 1. The physician-patient relationship is fiduciary in nature. • 2. .

To protect the patient from unnecessary/unwarranted procedure applied to him without knowledge • 2. To protect the physician from any consequences for failure to comply with legal requirements .Purposes • 1.

Instances When Consent Is Not Necessary • 1. When the law made it compulsory for everyone to submit to the procedure . In cases of emergency. there is an “implied consent” or the physician is “privilege because he is reasonably entitled to assume consent • 2.

Informed or enlightened consent • 2. Subject matter must be legal .Requisites of a Valid Consent • 1. Voluntary • 3.

Expressed consent – written or oral • 2.Forms of consent • 1. Implied consent may be deduced from the conduct of the patient .

General or Blanket consent • 2. Limited or conditional consent • 3. Non-liability or exculpatory clause .Scope of the Consent • 1.

Natured of proposed treatment or procedure. Nature of his condition. Risk involved. • 5. • 3. 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. Possible alternative methods. Chances of success or failure • Consent must be given freely or voluntarily . • 4. • 2.

. – 4. In the absence of the parents. eldest brother or sister. – 5. Patient .• Persons Who Can Give consent – 1. paternal grandparents having preference. If patient is minor. Other person who may give consent having substitute parental authority. consent must be obtained from the parents. consent of the grandparents must be obtained. – 2. In the absence of parents and grandparents. – 3. provided one is of age and not disqualified by law to give consent.

 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: • .

without discrimination or preference. III .Art. No religious test shall be required for the exercise of civil or political rights. 5.” . Sec. shall forever be allowed. 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.RIGHT TO RELIGIOUS BELIEF • .

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 .RIGHT OF PRIVACY • RIGHT OF DISCLOSURE OF INFORMATION • • the physician-patient relationship being fiduciary in nature.

as when the parties are bound by confidential elations. Civil Code states that “xxx……failure to disclose pacts.Art.” . 1339. constitutes fraud. when there is duty to reveal them.

a person authorized to practice medicine. except when it is required in the interest of justice.RIGHT OF CONFIDENTIAL INFORMATION • • Statutory Privileged Communication Pursuant to the Rules of Court. II. Sec. even after death. surgery or obstetrics cannot in a civil case.Sec. be examined as to any information which he may have acquired in attending such patient in a professional capacity. • . public health or public safety. without the consent of the patient. 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. He should never divulge this confidential information. which information was necessary to enable him to act in that capacity. or anything that may reflect upon the moral character of the person involved. Ethical/Professional Confidential Information Pursuant to Art. Rule 130. Code of Medical Ethics. 24(c).6. and which would blacken the character of the patient.

– 3. When the disclosure will serve public health and safety. – 2. When such disclosure is necessary to serve the best interest of justice.• Some instances where confidentiality is not applicable: – 1. When the patient waives its confidentiality. .

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. Sec.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. • • Sec.RIGHT TO CHOOSE HIS PHYSICIANS RIGHT TO TREATMENT • .” • • Art II.3 of the Code of Medical Ethics • “In cases of emergency. 1. RA 6615 • Provides that “xxx…. 1st par.” . wherein immediate action is necessary.In emergency cases the patient has the right to treatment.

every man of adult age and of sound mind has the right to determine what must be done in his own body. or his family or legal representative if incompetent to act on his own behalf. the patient has no right to refuse treatment • . A man is the master of his own self and may expressly prohibit a life-saving surgery or medical treatment. the choice of the patient.In the legal sense. and parents have no right to base it on religious beliefs or any other grounds.When the law provides for treatment. • .The social commitment of the physician is to sustain life and relieve suffering. the State has the right to assume guardianship when the child is neglected by the parents to have the child treated. should prevail. In the absence of the patient‟s choice or authorized proxy.RIGHT TO REFUSE TREATMENT • . Where the performance of one‟s duty conflicts with the other.Doctrine of parens patria. the physician must act in the best interest of the patient . • .

• CIVIL – Awarded against a physician to compensate for theinjury he suffered on account of the physician‟s act or omission as a breach of the contractual relationship of both parties. – Penalty: imprisonment and/or fine.”Penalty: damages . 100. – Laws. – Laws: Medical Act of 1959 as amended including the Code of Ethics and Rules and Regulations of the PRC. – Laws: Revised Penal Code and other special laws. • CRIMINAL – An act or omission which constitute a crime by the physician. to revocation of license. – Art. suspension. Civil Code of the Philippines and other related laws. – Penalty: reprimand. – A valid exercise of the police power of the State. RPC states that “ Every person criminally liable is civilly liable.LIABILITIES OF PHYSICIAN • ADMINISTRATIVE – Right to practice is temporarily withdrawn from the physician.

5. (Ang Tibay vs. Decision must have something to support itself. or at least contained in the record and disclosed to the parties. 3. 4. CIR) . and not simply accept the views of a subordinate in arriving at a decision. – 6.ADMINISTRATIVE LIABILITIES • Quantum of evidence needed: substantial evidence. 2. Decision must be based on the evidence adduced at the hearing. Right to hearing. Tribunal must consider the evidence presented. Evidence must be substantial. such relevant evidence as a reasonable mind might accept as adequate to support a conclusion • Administrative Due Process: – – – – – 1. The Board or its judges must act on its or their independent consideration of the facts and the law of the case.

GROUNDS FOR ADMINISTRATIVE LIABILITIES Sec.24, Art.III, Medical Act of 1959 as amended

Personal Disqualifications:
– 1. Immoral or dishonorable conduct; – 2. Insanity; – 3. Gross negligence, ignorance or incompetence resulting in an injury to or death of the patient; – 4. Addiction to alcoholic beverages or to any habitforming drug rendering him incompetent to practice medicine. –

Criminal Acts:
– 1. Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude – 2. Fraud in the acquisition of the certificate of registration; – 3. Performance of or aiding in any criminal abortion – 4. Knowingly issuing false medical certificate; – 5. Aiding or acting as dummy of an unqualified or unregistered person to practice medicine.

Unprofessional Conduct
– 1. False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned; – 2. Issuing any statement or spreading any news or rumor which is derogatory to the character and reputation of another physician without justification; – 3. Violation of any of the Code of Ethics as approved by the PMA.

CRIMINAL LIABILITIES
• A criminal act is an outraged to the sovereignty of the State so it must be instituted in the name of the sovereign people as party-plaintiff (People of the Philippines vs X)

• Quantum of evidence is proof beyond reasonable doubt. This does not mean absolute certainty as excluding possibility of error but only mean moral certainty, or that degree which produces conviction in an unprejudiced mind (Rule 133, Sec. 2, Rules of Court)

The crime wherein the physician was found guilty involved moral turpitude. – b. The law imposes revocation of the license. aside from imprisonment and/or fine. his registration may be cancelled or revoked if: – a.• Presumption of Innocence and Equipoise Rule • Conviction of a physician. .

shall suffer the penalty of arresto mayor in its maximum period to prision correctional in its medium period. would constitute a grave felony.365. • . Revised Penal Code • “Any person who.Art.” • • Imprudence – deficiency of action or failing to take the necessary precaution once they are foreseen. the penalty of arresto menor shall be imposed…xxx. the penalty of arresto mayor in its minimum periods shall be imposed. had it been intentional.Incidental to the practice of medicine: • Imprudence and Negligence. shall commit any act which. if it would have constituted a light felony. if it would have constituted a less grave felony. by reckless imprudence.

indicates a deficiency of perception or when the wrongful act maybe avoided by paying proper attention and using due diligence in foreseeing them. doing or failing to do an act which results from from material damage by reason of inexcusable lack of precaution on the part of the person performing the act. without malice. taking into consideration his employment or occupation. • • 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.• Reckless imprudence – voluntary. time and place. . degree of intelligence. • • Negligence. physical condition and other circumstances regarding persons.

CIVIL LIABILITIES • A civil suit filed against physician and/or hospitals is premised on recovery of damages for their wrongful act or of employees. .

he is liable for breach of contract even though he uses the highest possible professional skill. the negligence of the doctor is not an issue. for if the doctor makes contract to effect a cure and fails to do so. Breach of Contract – physician-patient relationship – specific stipulations in the contract • In an action for breach of contract.Cause of action for damages is based on: • 1. .

. Tort(Quasi-delict ) • . 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 • .Ordinarily.• 2.Primary basis is negligence or fault of the physician as the one directly responsible for the injury sustained by the patient • .

is obliged to pay for the damage done. there being fault or negligence. if there is no pre-existing contractual relation between the parties.• Art. Such fault or negligence .” . 2176 of the Civil Code provides that “Whoever by act or omission causes damage to another. is called quasi-delict…xxx.

. skill and diligence. – 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. The physician failed to perform such duty to his patient. The physician has a duty to the patient. As a consequence of the failure. • 4.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. • Criminal medical malpractice. • Elements: • 1. injury was sustained by the patient. • 3. The failure of the physician is the proximate cause of the injury sustained by the patient. • 2. as to treatment in a manner contrary to accepted standards of medicine resulting to injury to the patient.

• – 1.• Proximate Cause – is that cause. – 3. which. unbroken by an efficient intervening cause. in natural continuous sequence. The result must be the natural continuous and probable consequences. . – 2. produces the injury and without which the result would not have occurred. 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. There must be a direct physical connection between the wrongful act 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.• Doctrine Cause of Efficient Intervening In the causal connection between the negligence of the physician and the injury sustained by the patient.

LEGAL PRINCIPLES AND DOCTRINES APPLIED IN MEDICAL MALPRACTICE CASES • Doctrine of Vicarious Liability –o –o –o Doctrine of Ostensible Agent Borrowed Servant Doctrine Captain of the Ship Doctrine • • • • • • • Doctrine of Res Ipsa Loquitor Doctrine of Common Knowledge Doctrine of Contributory Negligence Doctrine of Assumption of Risk Doctrine of Last Clear Chance Fellow Servant Doctrine Rescue Doctrine .

DOCTRINE OF VICARIOUS LIABILITY • -Doctrine of Imputed Negligence/Command Responsibility. . who is not negligent. • -Vicarious liability means the responsibility of a person. for the wrongful conduct or negligence of another.

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 • “…. 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.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.• Art. 2180.” .

In cases wherein the employees are at the same time are independent contractors of the hospital. .DOCTRINE OF OSTENSIBLE AGENT • . • .(pathologist. the hospital must be held liable for their negligent acts.Because of this peculiar situation. radiologist. they are considered ostensible agents and therefore. anesthesiologist).

resident physicians. they are deemed borrowed from the hospital by someone and for any wrongful act committed by them during the period. 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.BORROWED SERVANT DOCTRINE • Ordinarily. • By fiction of law. their temporary employer must be held liable for the discharge of their acts and duties. • In the determination whether one is a borrowed servant. . • In some instances. nurses and other personnel of the hospital are employees or servants of the hospital.

.This doctrine innunciates liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has extension of control.CAPTAIN-OF-THE-SHIP DOCTRINE • .

the employer has to bear the loss when neither the employer nor the employee is at fault. • 3. To treat them as operating expense. The employer has the power to select his employee and to control his acts. Deep pocket theory. Since the employer benefits monetarily from the employee. • 4. .REASONS FOR APPLICATION OF THE DOCTRINE OF VICARIOUS LIABILITY • 1. • 2.

The accident must be of a kind which ordinarily does not occur in the absence of someone‟s negligence.General rule: expert testimony is necessary to prove that a physician has done a negligent act or that has deviated from the standard of medical practice. nature of the wrongful act or injury is suggestive of negligence. . • Requisites of Res Ipsa Loquitor Doctrine: • 1. – .“The thing speaks for itself”. It must be caused by an agency or instrumentality within the exclusive control of the defendant. • 2. It must not have been due to any voluntary action or contribution on the part of the plaintiff.DOCTRINE OF RES IPSA LOQUITOR – . • 1.

Removal of a wrong part of the body when another part wad intended.Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied: • 1. • 4. • 5. 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. Infection resulting from unsterilized instruments. • 3. . • 2.

• 2. • When an accepted method of medical treatment involves hazards which may produce injurious results regardless of the care exercised by the physician. • 3.In most medical malpractice suits. Mistake in the Diagnosis. • 4. there is a necessity for a physician to give his expert medical opinion to prove whether acts or omissions constitute medical negligence. Honest Errors of judgment as to Appropriate Procedure. • • . This doctrine has been regarded as rule of sympathy to counteract the „conspiracy of silence‟ . Bad Result Rule.Instances where the Doctrine of Res Ipsa Loquitor does not apply: • 1. Where the Doctrine of Calculated Risk is applicable.

” • • “…………we would be doing a disservice to the community at large if we were to impose liabilities on hospitals and doctors for everything that goes wrong. Doctors would be led to think more of their own safety than the good of the patients. Initiative would be stiffed and confidence shaken. 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.• According to one of the most distinguished jurist(Canada).” • .

contributing as a legal cause to the harm he has suffered. which falls below the standard which he is required to conform to his own protection. • .DOCTRINE OF CONTRIBUTORY NEGLIGENCE • . is the proximate cause of the injury. concurring with the defendant‟s negligence.It has been defined as conduct on the part of the plaintiff or injured party.It is the act or omission amounting to want of care on the part of the complaining party which. .Doctrine of Common Fault • .

” . 2179. the plaintiff may recover damages. But if his negligence was only contributory. but the court may mitigate the damages to be awarded. Civil Code • “ When the plaintiff‟s own negligence was the immediate and proximate cause of his injury. he cannot recover damages.Related Civil Code Provisions • Art. the immediate and proximate cause of injury being the defendant‟s lack of due care.

2214. Civil Code • In quasi-delicts. • 4. Leaving the hospital against the advice of the physician. . Failure to give the physician an accurate history.” Some Instances where there is contributory negligence: • 1. • 3. Failure to follow the treatment recommended by the physician. Failure to seek further medical assistance if symptoms persist. the contributory negligence of the plaintiff shall reduce the damages that he may recover.Art. • 2.

The patient just follows the instructions and orders of the physician and is usually inactive and virtually places himself in the command and control of the physician. • The defense of contributory negligence is available only when the patient‟s conduct is a truly flagrant disregard of his health and cannot apply where the patient is mentally ill. heavily sedated or of advanced age. the physician has superior knowledge over his patient.Doctrine of Superior Knowledge • In the physician-patient relationship. semiconscious. .

. he may be held liable if in the exercise of care and diligence he could have discovered the cause of nonresponse. fails to investigate non-response.DOCTRINE OF CONTINUING NEGLIGENCE • If the physician. after a prolonged treatment of a patient which normally produces alleviation of the condition.

if injured. • “…violenti non fit injuria”. 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. is barred from recovery. .DOCTRINE OF ASSUMPTION OF RISK • Predicated upon knowledge and informed consent.

appreciation. mental direction and lapse of sufficient time to effectually act upon impulse to save the life or prevent injury to another. . • .It implies thought.A physician who has the last clear chance of avoiding damage or injury but negligently fails to do is liable.DOCTRINE OF LAST CLEAR CHANCE • .

DOCTRINE OF FORESEEABILITY
• - A physician cannot be held accountable for negligence if the injury sustained by the patient is on account of unforeseen conditions but if a physician fails to ascertain the condition of the patient for want of the requisite skill and training is answerable for the injury sustained by the patient if injury resulted thereto. • - A physician owes duty of care to all persons who are foreseeably endangered by his conduct, with respect to the risk which make the conduct unreasonably dangerous.

FELLOW SERVANT DOCTRINE
• - This doctrine provides that if a servant (employee) was injured on account of the negligence of his fellow servant (employee), the employer cannot be held liable.

RESCUE DOCTRINE
• - If a physician who went to rescue a victim of an accident was himself injured, the original wrongdoer must be held liable for such injury.

SOLE RESPONSIBILITY vs SHARED
RESPONSIBILITY
• Sole responsibility • - when the negligent act or omission which is the proximate cause of the injury suffered by patient is attributed to the wrongful act of person. • • Shared responsibility • - when the injury suffered by the patient is caused by the negligent act of two or more persons, each of them acting concurrently and successively in the production of injury.

SPECIFIC ACTS OR OMISSIONS WHICH CONSTITUTE MEDICAL MALPRACTICE • • • • • • • • • • • • • • • 1. Failure to take medical history; 2. Failure to examine or make a careful and adequate examination; 3. Non-referral of the patient to a specialist; 4. Failure to consult prior physicians for previous management; 5. Non-referral of patient to a hospital with equipments and trained personnel; 6. Failure to use the appropriate diagnostic test; 7. Failure to diagnose infections; 8. Treatment resulting to addiction; 9. Abandonment of patients; 10. Failure to give proper instructions; 11. Failure to institute the proper prophylactic treatment; 12. Errors in blood transfusion; 13. Liabilities in administration of drugs; 14. Product liabilities of manufacturer; 15. Wrong baby cases.

.termination of the physician-patient relationship without the consent of the patient and without giving the patient adequate notice and opportunity to find another physician.Abandonment of patients • .

Abandonment must have been the cause of the injury or death of the patient. • 3. • 2. • 4. Continuing need of the patient for further medical treatment.Elements: • 1. The relationship is terminated without mutual consent of both parties. There is a physician-patient relationship. • 5. Unilateral termination of the contractual relationship by the physician. .

• 2.Some instances of abandonment: • 1. Failure to provide follow-up attention. • 3. • 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.B. Failure to arrange for a substitute physician during the time the physician is absent or unavailable. . and – b) If the substitute acts as agent of the attending physician in so far as carrying out a certain course of treatment in which case master-servant relationship is created. Refusal by a physician to treat a case after he has seen the patient needing medical treatment but before treatment is commenced. Refusal to attend to a case for which he has already assumed responsibility. Non-payment of bill cannot be a defense for abandonment. • 4.

LIABILITIES IN THE ADMINISTRATION OF DRUGS .

2. . Right dose. and Right route. 4. Right patient. Right drug.Five basic rights: • • • • • 1. 3. 5. Right time.

6. Administering medicine on the wrong route. Infection following an injection. Administration of the wrong medicine. Failure to administer the drug. Drug reaction. Failure to give warning of the side effects. 5. Overdosage. 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. 7. 3. . 8. 4.Negligence in the administration of a drug which causes injury to the patient may be attributed to: • • • • • • • • • • • • • • 1. Injury to the nerves 9. Administration of a drug on the wrong person.

• If the drug has side effects. A drug manufacturer is liable if his product is contaminated by any impurities which harm the user. . • Negligence or carefulness is not in issue in a case under the doctrine nor is any warranty or promise in issue. Once the physician has been forewarned.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. the manufacturer has no duty to insure that the warning reaches the patient in normal circumstances. even though the seller exercises every conceivable caution to prevent and discover the defects. 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.

disease. (Sec. cribs. according to Control and Financial Support: • 1. and care of individuals suffering from illness. building or place where there are installed beds. treatment. board or other agency thereof. or in need of obstetrical or other medical and nursing care. or city government or other political subdivision. provincial.• Sec. division. or by any department.2(a). RA4226) LIABILITIES OF HOSPITALS . The term „hospital‟ shall also be construed as any institution. 2(C).. Private – privately owned. RA 4226. bassinets for twenty-four hour use or longer by patients in the treatment of diseases. 2(b) RA 4226) • 2.” • • Classification. Public/Government – operated and maintained either partially or wholly by the national. or private capital or other means.xxx. especially established and operated with funds raised and contributed through donations.(Sec. …. municipal. Hospital Licensure Act • HOSPITAL means a place devoted primarily to the maintenance and operation of facilities for the diagnosis. injury or deformity.

Private charitable or eleemosynary – established for the public benefit and not conducted for the pecuniary gain of the management. .For purposes of determining liability of private hospitals: • 1. Private pay – established for profit and gain. • 2.

. • Breach of the confidential relationship in a physician-patient relationship.Rationale why hospital cannot practice medicine: • 1. A non-medical will be allowed to control a physician and through circumvention practice medicine. • 2. 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. • 3. To exercise reasonable care in the selection of the hospital staff.

• Invitee – one who is essential to the operation of a hospital or for whom the hospital has a purpose. It is only required of a hospital to refrain from taking positive steps to harm a trespasser. • 2. He is permitted. He has no contractual relation with the hospital. expressly or impliedly to be within the premises for his own interest and convinience. His presence is merely tolerated. Trespasser – one who enters the property of another without being granted the privilege to do so. Licensee – one who is neither a customer. servant or a trespasser. .Persons Coming Within the Premises of the Hospital • 1.

Liabilities of Hospitals for the Wrongful Acts of their Agents .

• . The government must not be sued because the government derives no profit from its activity unlike a private enterprise. • .A State cannot be sued without its consent. • .1.The immunity of the government from the official acts of its officers.Those established to perform government functions. Government or Public Hospitals • . The government goes down to the level of any private hospital.” • . it is immune from being sued. 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.Those performing proprietary function when it is established for profit.Rationale: Government funds should be spent for public purposes and not diverted to compensate for private injuries and public service should not be hindered. .

philantrophic acts and pays no dividends. contributions. Voluntary or eleemosynary for charity • .The determination whether a hospital was established for charity is the articles of incorporation and the constitution and by-laws of the corporation.A charity hospital is established and maintained from the donations. • . . Private Charitable.2.

3. . Private Hospital Operating for profit • .May be held vicariously liable for the negligent acts of its employees.

  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.  The fact that a hospital refuses to accept certain persons and others to pay in accordance with their means does not affect its charitable status. if it is operated for no profit.   A hospital established for profit even though some bed are devoted for charity is not deemed a charitable institution. .• N.B.   A hospital which allow the patient to pay if ever they have the capacity to do so and serve others gratuitously does not change the fundamental nature of the hospital as charity.

Doctrines Applied to Charitable Hospital Immunity for the Acts of its Employees .

The contributions are held only in trust by the governing body of the hospital. Diverting the money for the payment of damage will be utilizing the money not intended by the donor. care and treatment of charity patients.TRUST FUND DOCTRINE • Charitable hospitals derived support from voluntary contributions or donations for the reception. .

waives his right to claim damages. .IMPLIED WAIVER THEORY • A patient who enters a private hospital. knowing fully well that it is merely supported by contributions.

. It is doing an undertaking of the obligation of State for the preservation of life and maintenance of health.PUBLIC POLICY THEORY • It renders medical service without remuneration.

.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. .

may make the hospital 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. • Medical duties are by its nature beyond the ordinary routine in a hospital. .1. Any negligence of such hospital employees. Principle of administrative/ministerial as against professional/medical duties. the “borrowed servant doctrine” must be applied and the hospital may not be held vicariously liable.

Power of Control. .2.

the principle of independent contractor theory is applied.3. . Contract of Service. • If the contract has been entered with hospital to render professional services. the hospital may be held liable provided the negligent act was committed within the scope of employment. But if entered with the patient for contract of services.

4. . Independent Contractor Theory.

5. . Sole Responsibility vs Shared Responsibility.

• • 2. • Recent decisions of the court has extended hospital liability to patient for its failure to make careful selection. and supervision of independent physicians who are permitted to practice in the hospital. 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. review. . the established standard of conduct to which the corporation should conform. VICARIOUS Liabilities for the Acts of Hospital Employees.LIABILITIES OF HOSPITAL • 1.

The relationship between the hospital and the patient is contractual.Admission • 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. .

” .Attendance to emergency cases in hospitals • Sec. 1 RA 6615 substantially states that “…xxx hereby required to render immediate emergency medical assistance and to provide facilities and medicine within its capabilities to patients in emergency cases who are in danger of dying and/or who may have suffered serious injuries.

.Transfer of patients • It must be premised on desire and consent of the patient and when the condition of the patient would permit to do so.

a physician may order the discharge with or without condition. .Discharge of patients • After evaluation of the patient‟s condition. considers that further hospitalization is no longer indispensable.

1 and 6 • • Refusal of the patient to leave the hospital . Related laws: • Art. Sec. 268. 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.

.Premature discharge • The attending physician and the hospital any be held liable to the patient if the latter is discharged from the hospital in spite of the fact that further hospitalization is still necessary.

. 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 mentally ill. • A hospital any legally detain a patient against his will when he is detained or convicted prisoner.Detention of patient for non-payment of bill • A patient cannot be detained in a hospital for nonpayment of the hospital bill. or when the patient is suffering from a very contagious disease wherein his release is prejudicial to public health. that his release will endanger public safety.

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 ANCILLARY SERVICES • . the hospitals are responsible for their action if they can exercise control over them. • -Courts have held that even if contracts specify that physicians will be considered independent contractors. the medical staff therein are not considered employees of the hospital.Whenever the hospital administration enters into contract with a partnership of physicians to run the emergency room. .

• . 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.Two Aspects of Emergency Care • 1.

Negligence in the application of management procedures. .Liability in the emergency room may arise from the following: • 1. Failure to examine and/or treat. Failure to admit. • 2. • 3.

• A PHARMACY is a place or establishment where drugs. devices and poison are sold at retail and where medical and dental veterinary prescriptions are compounded and dispensed. • Hospital Pharmacy • Sec. 42. chemical products. RA 5921. However. . proprietary medicine of pharmaceutical specialties. pharmaceuticals.• An AMBULANCE is a motor vehicle specifically designed. • The criminal liability of an ambulance driver is the same as that of an ordinary driver. injured or wounded persons operated by trained • personnel for ambulance service. equipped and used for the transportation of the sick. active principles of drug. the civil liability arising therefrom the hospital must be held liable.

the physician. and treatment. coordinated into a document and made available for various uses to serve the patient. the institution in which the patient has been treated. the science of medicine and society as a whole. illness.Medical Records • It is compilation of the pertinent facts of the patient‟s life history. • It is a compilation of scientific data derived from many sources. .

Destruction of records is an evidence of negligence. As required by statutes (Hospital Licensure Law) • .An altered medical record may create suspicious intent to establish a defense and such alteration may be a proof of negligence. • . • 2. • .The hospital may be held liable for injury resulting from a breach of duty to maintain accurate records. • .Purpose of Maintenance of Medical Records • 1. For convenience and necessity in consonance with the purpose enumerated.Removal of a certain portion of the record may raise • the inference that they are remove deliberately in order to suppress evidence .

.Ownership of Medical Records • The guardian and owner of the medical records is the hospital. But ownership of the medical record is a limited one and absolute and considered primarily custodial.

or anything that may reflect upon the moral character of the person involved. II. Art. . 6. even after their death. 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. except when it is required in the interest of justice.VIOLATION OF THE CONFIDENTIAL NATURE OF RECORD • Sec. He should never divulge this confidential information. public health or safety.

xxx” • An additional penalty of revocation of license to practice his profession……xxx. Art. II. • The penalty of imprisonment ranging from 1 year to 6 years and a fine ranging from 10.• Sec.000.00 to 50.000. 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….” . Comprehensive Dangerous Drug Act of 2002 (Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Chemicals.

” . treatment and rehabilitation in any center….• Sec. spouse guardian or relative within the fourth degree of consanguinity or affinity.xxx. Comprehensive Dangerous Drug Act of 2002 (Confidentiality of Records Under the Voluntary Submission Program) • Judicial and medical records of drug dependents under the voluntary submission program shall be confidential and shall not be use against him for any purposes. except to determine how many time by himself or through his parent. 60. he voluntarily submitted himself to confinement. VIII.. Art.

or who was charged for violation of Sec.• Sec. taking into consideration public interest and the welfare of the drug-dependent. 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. Art. or who has escaped but did not surrender himself within the prescribed period. . However. VIII. 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. 15 of this act shall be covered under Sec 60 of this act. 64.

be examined as to any information. obstetrics cannot in civil case. surgery. Rule 130. . which information was necessary to enable him to act in that capacity.• Sec. Rules of Court (Privilege Communication) • A person authorized to practice medicine. which he may have acquired in attending such patient In a professional capacity. 21 (c). without the consent of the patient. and which would blacken the character of the patient.

Personal circumstances of the patient which are not ordinarily related to the treatment.Information for which no authorization is needed • 1. . Name of the patient and house officers associated with the treatment of a patient. • 2.

Upon a lawful order of the court. . At the most. • 3. When requested by the patient or by someone who could act in his behalf which must be made in writing. student and attending medical staff may freely consult such records as pertain to their work. • 2.When May the Contents of the Record be Disclosed • 1. • The attending patient has no legal right to determine who shall and who shall not see the record. • • Members of the resident staff.B. his approval or permission is only a matter of courtesy. When the law requires such disclosure. • N.

Rules of Court – Entries in the Course of Business • Entries made at. if such person made the entries in his professional capacity or in the performance of duty and in the ordinary course of business or duty. Rule 130. as the records are entries in the course of business. .• Sec. may be received as prima facie evidence. who was in a position to know the facts therein stated. • • Patient‟s record is admissible in evidence even if the person who made the entry is dead or not available. outside the Philippines or unable to testify. by a person deceased. or near the time of the transactions to which they refer. 37.

If the physician is found negligent in the performance of his professional services. he liable for the payment of damages for all the direct. If a suit is filed against a physician for a professional liability claims. the objective of the plaintiff is to recover damages. . natural and logical consequences of his act.DAMAGES • DAMAGES are the pecuniary compensations that may be recovered for breach of some duty or the violation of some rights recognized by law.

there being fault or negligence. is obliged to pay for the damages done. • • Art. contrary to law. willfully or negligently causes damage to another shall indemnify the latter for the same. by act or omission causes damage to another. . Civil Code • Every person who. 20. 2176.• Art. Civil Code • Whoever.

• Doctrine of Certainty of Damages • Damages must be certain both in its nature and in respect to the cause. To permit the Court to determine how much it must be. Recovery must not be contingent or speculative. .• Damages must be sufficiently proven by evidence. • The injured patient has the right to recover medical and hospital expenses from the wrongdoer even though the patient has been indemnified wholly or partially by an insurance company. cause and probable duration of the injury. extent. The proof must show the nature.

3. 6.TYPES OF DAMAGES • • • • • • 1. 5. Exemplary Nominal. 2. Moral. Liquidated . Temperate. Actual or Compensatory. 4.

but also that of the profits which the obligee failed to obtain. one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Civil Code • Except as provided by law or by stipulation. 2200. Such compensation is referred to as actual or compensatory damages. 2199. • • Art.ACTUAL OR COMPENSATORY DAMAGES • Art. . Civil Code • Indemnification for damages shall comprehend not only the value of the loss suffered.

. Lucro cesante – failure to receive the benefit which would have pertained to him. „Dano emergente‟ – the loss already suffered by the patient • 2.• Kinds: • 1.

Compensatory Damages Applied to Medical Malpractice 1. Surgical. Medical. Physical Disability 3. Death • Art. 2. Hospital.000. Loss of Earning Capacity 4. even though there may have been mitigating circumstances. Civil Code • The amount of damages for the death caused by a crime or quasi-delict shall be at least three thousand pesos(75.00). Funeral Expenses . and Related Expenses 5. Loss of Service or Support 6. 2206.

. fright. serious anxiety. mental anguish. Civil Code • Moral damages include physical suffering. moral shock. besmirched reputation.MORAL DAMAGES • Art. wounded feelings. moral damages may be recovered if they are the proximate result of the defendant‟s act or omission. social humiliation. Though incapable of pecuniary computation. and similar injury. 2217.

2. 2219. • • • • Physical Suffering Mental Anguish Fright and Moral Shock Besmirched Reputation and Social . Quasi-delict causing physical injuries. Civil Code • Moral damages may be recovered in the following and analogous cases: 1.• Art. A criminal offense resulting in physical injuries.

2230. in addition to the moral.EXEMPLARY OR CORRECTIVE DAMAGES • Art. liquidated or compensatory damages. • • Art. 2229. . Civil Code • In criminal offense. exemplary damages as part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. Civil Code • Exemplary or corrective damages are imposed. temperate. by way of example or correction for the public good.

• • Art. Civil Code • Exemplary damages cannot be recovered as a matter of right. reckless. 2232. the court will decide whether or not they should be adjudicated. exemplary damages may be granted if the defendant acted with gross negligence. • • Art.• Art. Civil Code • In contracts and quasi-contracts. oppressive and malevolent manner. . 2233. Civil Code • In quasi-delict. 2231. fraudulent. the court may award exemplary damages if the defendant acted in a wanton.

malicious or oppressive nature of the wrong committed. or that he acted with recklessness. . or with utter disregard to the effects of his act. oppression. • Punitive damages are recoverable from a physician in an action for malpractice where there is evidence tending to show that he has acted with malice. or that he is guilty of gross negligence in the performance of his profession. reckless. because of the wanton.• Punitive or exemplary damages are monetary compensation over and above actual or compensatory damages awarded as punishment or deterrence.

2221. • It is awarded to plaintiff as a vindication of a right violated. . may be vindicated or recognized not for the purpose of indemnifying the plaintiff for any loss suffered.NOMINAL DAMAGES • Art. Civil Code • Nominal damages are adjudicated in order that a right of the plaintiff. which has been violated or invaded by the defendant. • It is a trifling sum awarded to the plaintiff in an action where there is no substantial loss or injury to be compensated.

Civil Code • Liquidated damages are those agreed upon by the parties to a contract.LIQUIDATED DAMAGES • Art. to be paid in case of breach thereof. . 2226.

be proved with certainty. from the nature of the case. 2224. which are more than nominal but less than compensatory damages. may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot. Civil Code • Temperate or moderate damages. .TEMPERATE OR MODERATE DAMAGES • Art.

• Art. Civil Code • The party suffering from loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question .Obligation on the part of the plaintiff(patient) to minimize damages. 2203.

caused personal injury to another. 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. 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.Doctrine of Avoidable Consequences • Where one person has. • • .

When the defendant‟s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest. just and demandable claim. 7. In any other case where the court deems it just and equitable that attorney‟s fees and expenses of litigation should be recovered. (Art. In criminal cases of malicious prosecution against the plaintiff. 11. 9. 8.2208. • • • • • • • • • • • . 10. laborers and skilled workers. 5. In a separate civil action to recover civil liability. When exemplary damages are awarded. In actions for legal support. In case of clearly unfounded civil action or proceeding against the plaintiff. 4. other than judicial cost are not as rule recoverable except when the law specifically provides. In actions for indemnity under the workmen‟s compensation and employer‟s liability laws. In actions for the recovery of wages of household helpers.ATTORNEY‟S FEES • Attorney‟s fees and other related expenses in litigation. 2. When at least double judicial costs are awarded. 3. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff‟s plainly valid. 6. Civil Code) 1.

EMERGENCIES IN MEDICAL PRACTICE • An EMERGENCY is an unforeseen combination of circumstances which calls for an immediate action. It refers to a situation in which a patient has been suddenly or unexpectedly endangered to such an extent that immediate action is needed to save the life and limb or to avoid permanent damages. .

wherein immediate action is necessary. • Art. Sec. He may refuse calls. II. 2 • “ A physician is free to choose whom he will serve.Related Provisions of the Code of Medical Ethics • A condition of emergency is usually an exception to the observance of the standard ethical conducts. II. He should. other medical services for reasons satisfactory to his professional conscience.” . Sec. 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. always respond to any request for his assistance in an emergency…xxx. 3 • “In case of emergency. however.” • Art.

15 • “A physician should never examine or treat a hospitalized patient of another without the latter‟s knowledge and consent except in cases of emergency.• Art..xxx.\‟s immediate needs….xxx…. Sec. IV.xxx. Sec.should attend only to the patient.” • Art. IV.the first to arrive should be considered as physician in charge. unless the patient or his family has special • preference for some other one among those who are present…xxx. 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…. IV.” • Art.” ..

Sec.20 • When a physician is requested by a colleague to take care of a patient because of an emergency…xxx…The physician should treat the patient in the same manner and with the same delicacy as he would have wanted his own patient cared for under similar conditions…xxx.• Art.” . IV.

702. . otherwise known as An act prohibiting the demand or deposits or advance payments for the confinement or treatment of patients in hospital and medical clinics in certain cases. 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. • 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.

• 2. 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. 275.” .• Art. when he can render such assistance without detriment to himself. Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger or dying. Anyone who shall fail to help or render assistance to another whom he has accidentaqlly wounded or injured…xxx. unless such omission shall constitute a more serious offense.

. even though it later appears that he made a wrong decision yet prudent at that time.Standard of Care in Emergencies • - A physician cannot be held to the same conduct as one who had an opportunity to reflect.

Emergency Operations Without Consent • -When the situation is such that an immediate action is necessary to save the life or preserve the health of the patient. . the physician can legally proceed with his contemplated life-saving procedure. • . 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 in the exercise of his best judgment that the medical procedure is life-saving. • 2.Emergency Operation without Consent • 1. . The injured person must be unconscious or otherwise unable to give a valid consent. The situation must be such as it would make it actually and apparently necessary to act before there is an opportunity to obtain consent.

then consent must first be obtained before the commencement of a procedure. .Refusal to Give Consent During Emergency • If the patient is conscious. or if unconscious or is not in a capacity to give consent. but someone who could act on his behalf is present.

B. • The surgeon is authorized to extend the operation to any condition discovered when it will redound to the welfare of the patient. • N. an accident occurs. If no specified amount agreed upon.Extension of Operation in Cases of Emergency • If during an operation. but which is not covered by the consent. the surgeon is justified in extending the operation and be absolved of liability. . 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. or a condition maybe discovered which requires immediate action. the principle of quantum meruit shall be applied. In the absence of a clearly specific prohibition on the part of the patient. the physician should be privileged to perform such surgery within the operative field as is justified in the prevailing medical opinion.

• 2. When such duty can be delegated which will depend on the circumstances of the case. .DELEGATION OF A PHYSICIAN’S DUTIES • Requisites for a Valid Delegation • 1.. and the training and experience of the person to whom such duty is to be delegated. The person to whom such duty is delegated must be competent to perform such duty. • The patient consented expressly or impliedly such delegation of duty. Proper instructions must be given to the person who will perform the delegated duty. nature of the duty to be delegated. • 3.

.Liability for Injuries in the Negligent Performance of the Delegated Duties • The person performing the delegated duty cannot be held liable for any untoward or unexpected effects of his act if he had complied with all the requirements of a delegated duty and has exercised care and diligence in such execution.

THE MEDICAL WITNESS AND THE COURT • Court – an agency of the sovereign created directly or indirectly under its authority. authorized to exercise its power in the due course of law at times and places previously determined by lawful authority. . established and maintained for the purpose of hearing and determining issues of law and facts regarding legal rights and alleged violations thereof. constituting one or more officers. and of applying the sanction of the law.

4. . 2. to assist in the administration of justice on matters which are medico-legal in character. Sec. Supreme Court Court of Appeals Regional Trial Court Municipal or City Trial Court Military Commissions Art. Code of Medical Ethics • It is the duty of every physician.Different Courts in the Philippines • • • • • 1. 3. when called upon by the judicial authorities. III. 2. 5.

The person must have the organ and power of perception. and perceiving can make known their perception to others maybe witness…xxx. .PHYSICIAN AS AN ORDINARY WITNESS • Sec. Rule 130. and • He does not fall in any of the exception or disqualifications provided by the Rules of Court.” • Requisites of an Ordinary Witness • 1. • 2.all persons who. having organs of sense. 20. can perceive. The perception gathered by his organs of sense can be imparted to others. Rules of Court • “xxx….

except in a civil case by one against the other. Rules of Court • During their marriage. is such that they are incapable of intelligently making known their perception to others. Marriage . or in any criminal case for a crime committed by one against the other or the latter‟s direct ascendants or ascendants. at the time of their production for examination. • 2.Sec. 22. . Rule 130. Rule 130. 21. 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 – a) Those whose mental condition.Sec. neither the husband nor the • wife may testify for or against the other without the consent of the affected spouse.Disqualification by reason of: • 1. Mental Incapacity or immaturity .

in a criminal case.Sec. . • 4. Parental or filial Privilege . 25. or persons in • whose behalf a case is prosecuted. Death or Insanity . Rules of Court • Parties or assignors of parties to a case.Sec. cannot testify as to any matter of fact occurring before the death of such deceased person or before such person become of unsound mind. 23. against an executor or administrator or other representative of the deceased person. Rules of Court • No descendant can be compelled. • to testify against his parents and ascendants.• 3. Rule 130. upon a claim or demand against the estate of such deceased person or against such person of unsound mind. or against a person of unsound mind. Rule 130.

24. be examined as to any communication made by the client to him or his advice given thereon in the course of. or with a view to professional employment. nor can an attorney‟s secretary. without the consent of his client. The attorney cannot. without the consent of the client and his employer. The husband or the wife.• Disqualification by reason of Privileged Communication • Sec. . concerning any fact the knowledge of which has been acquired in such capacity. • 2. 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. stenographer or clerk be examined. Rules of Court – The following persons cannot testify as to matters learned in confidence in the following cases: • 1. or for a crime committed by one against the other or the latter‟s direct descendants and ascendants. during or after the marriage. Rule 130.

which information was necessary to enable him to act in that capacity. without the consent of the person making the confession. be examined as to any information which he may have acquired in attending such patient in a professional capacity. A person authorized to practice medicine. 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. . surgery or obstetrics cannot in a civil case. and which would blacken the reputation of the patient.• 3. without the consent of the patient. • 5. • 4.

• Sec. which information was necessary to enable him to act in that capacity. 24(c). be examined as to any information which he may have acquired in attending such patient in a professional capacity.Privileged Communication Between Physician and His Patient • Sec. public health. Art.” . 6. and which would blacken the character of the patient. II. except when it is required in the interest of justice. Rule 130. Rules of Court “A person authorized to practice medicine. He should never divulge this confidential information. Code of Medical Ethics • “The medical practitioner should guard as sacred trust anything that is confidential or private in nature that he may discover or that may be communicated to him in his professional relation with his patients. even after their death. and public safety. without the consent of the patient. surgery or obstetrics cannot in a civil case. or anything that may reflect upon the moral character of the person involved.

• 2. Interns. • Nurses and attendants who were present and assisting the physician when the communication was made. Confidential information obtained by one of the physicians practicing medicine in partnership with another physician whereby the patients of both are the patients of the firm.Extent of the Privileged Communication • 1. .

When Communication Is Not A Privileged Communication • 1. • 2. . Information acquired by an autopsy on the body of a person who was not. • 3. When the public interest so requires. a patient of the physician performing the autopsy. Information obtained by a technician from a patient is not privileged. • 4. for the purpose of testifying to solely qualify the physician to testify. When a person is examined at the instance of the law. prior to his death.

Scope of the Privilege • 1. certificates and reports made by the physician as exhibit in court. • 2. Affidavits. . Oral testimony by the physician in court. Hospital records. and • 3.

.Waiver of Privilege • Patient may expressly or impliedly waive their right to privilege communication.

Rule 130. 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. • As a general rule.HEARSAY EVIDENCE • An evidence not proceeding from personal knowledge of the witness. • “A witness can testify only to those facts which he knows of his own knowledge. The very nature of the evidence shows its weakness. it is NOT admissible in evidence. and it is admitted only in special cases because of necessity. • • Sec. but from mere repetition of what he had heard others say. . Rules of Court – Testimony generally confined to the personal knowledge of the witness. hearsay excluded. except as otherwise provided by these rules. 36. that is. which is derived from his own perception.

” . as evidence of the cause and surrounding circumstances of such death.• Sec. may be received in a criminal case wherein his death is the subject of inquiry. Rules of Court “The declaration of a dying person. 37. Rule 130. may be received in a criminal case wherein his death. made under a consciousness of an impending death.

or the immediate cause of his death. • Is the statement made by a person who is at the point of death. .Dying declaration • One of the exceptions in hearsay evidence rule. and in reference to the person who inflicted such injuries or in connection with such injuries of a person who is charged or suspected of having committed them. in reference to the manner in which he receives his injuries of which he is dying. and is conscious of his impending death. which statements are admissible in evidence in a trial where the killing of the declarant is the crime charged to the defendant.

• 2. and the mind is induced by the most powerful consideration to tell the truth. Trustworthiness – every motive of falsehood is silenced. .Grounds for Admissibility of Dying Declaration • 1. Necessity – death of the declarant makes it impossible to obtain his testimony in court.

. That the declaration is offered in a criminal case in which the declarant is the victim. • 2. the declarant was under the consciousness of impending death.Requisites of Dying Declaration • 1. That the declaration must concern the cause and surrounding circumstances of the declarant‟s death. • 3. That at the time the declaration was made. That the declarant is a competent witness. • 4.

medical textbooks are admissible in evidence to discredit a witness who has based his testimony upon it. • -The author of the books cannot be presented in court and be subjected to cross-examination.B. • N. . Medical witness may have the right to base his opinion from standard textbooks.Probative Value of Standard Medical Books in Court • -Medical textbooks are not admissible in evidence on account of the fact that they are hearsay. In cross-examination.

periodical or pamphlet is recognized in his profession or calling as expert in the subject. 46. Rules of Court “A published treatise. periodical or pamphlet on a subject of history. Rule 130.” .Learned Treatises Sec. science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice. or a witness expert in the subject testifies that the writer of the statement in the treatise.

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. .

The witness must have such skill. person or events perceived by a witness.Opinion or reference will probably aid the trier of facts in his search for the truth. two elements are required: • 1. and • 2. • An OPINION maybe defined as the belief. An opinion in the legal sense is something more than mere speculation or conjecture.The subject of inference must be so distinctly related to some science.• To warrant the use of expert testimony. business or occupation as to be beyond the knowledge of average layman. profession. judgment. inference. . or sentiment formed by the mind with regard to things. knowledge or experience in that field or calling as to make it appear that his • 3.

• Sec. 48, Rule 130, Rules of Court • General rule - The opinion of a witness is not admissible, except as indicated by the Rules. • • Sec. 49, Rule 130, Rules of Court • Opinion of Expert Witness - The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. •

• Sec. 50, Rule 130, Rules of Court
• Opinion of Ordinary Witness – The opinion of a witness for which proper basis is given, may be received in evidence regarding –
– a) the identity of a person about whom he has adequate knowledge; – b) A handwriting with which he has sufficient familiarity; and – c) The mental sanity of a person with whom he is sufficiently acquainted.

• The witness may also testify on his impressions of • emotion, behavior, condition or appearance of a person.

Distinctions Between an Ordinary and Expert Witness
• 1.An ORDINARY witness can only testify as a general rule, on those things which he has perceived with his own organs of perception, while an EXPERT witness may render his opinion, inference, conclusion or deduction on what he and others perceived;

• 2.An ORDINARY witness need not be skilled on the line he is testifying but an EXPERT witness must be skilled on the art, science or trade he is testifying.

ATTENDANCE OF A MEDICAL WITNESS IN COURT
• Sec. 1, Rule 21, Rules of Court • “Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him books, documents, or other things under his control, in which case it is called subpoena duces tecum.” •

Kinds of Subpoena
• 1. Subpoena ad testificandum • A process requiring a person to appear before a trial or hearing of an action or investigation conducted under our laws or for the taking of a deposition at a certain definite date, time and place to testify on some material issues. • 2. Subpoena duces tecum • A process which requires a person to produce at the trial some documents or papers which are under his control or possession that are pertinent to the issues of his controversy, at a certain date, time and place. • 3. Subpoena duces tecum and testificandum
• • N.B.
Failure to comply with a subpoena without justifiable reason is a ground for reprimand, suspension or revocation of the certificate of registration.

III.• Sec. 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. shall fail to lend his cooperation towards the administration of justice or other public service. Revised Penal Code • “The penalties of arresto mayor…xxx.” • Sec.” . or to a third party. Art.. Art. 233. Medical Act of 1959 as amended • “xxx…. 2.” • Refusal of a public officer to give assistance in the administration of justice is penalized by law • Art. if such failure shall result in serious damage to the public interest. or for suspending or revoking a certificate of registration as physician…xxx. III. Code of Medical Ethics • “It is the duty of every physician. 24. shall be imposed upon a public officer who. when called upon by the judicial authorities. upon demand from a competent authority.

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.”

xxx…if the prosecution is for felony punishable by an afflictive penalty.xxx.• 2.” . False Testimony favorable to a defendant: “Any person who shall give false testimony in favor of the defendant in a criminal case.. shall suffer the penalties of arresto mayor in its maximum period to prision correccional….. Revised Penal Code. 181. Art.

” . Revised Penal Code.• 3. 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. Art.000 pesos …xxx. 182.

shall testify under oath. shall commit any of the falsehoods mentioned in this and the three preceding articles of this section.• 4. Art. or make an affidavit. knowingly making untruthful statements and not being included in the provisions of the next preceding articles. • Any person. 183. shall suffer the respective penalties provided therein. Revised Penal Code. False testimony in other cases and perjury in solemn affirmation: “The penalty of arresto mayor …xxx. who in case of a solemn affirmation made in lieu of an oath. upon ant material before a competent person authorized to administer an oath in cases in which the law so requires.” .

Principle of “Falsus In Uno. Falsu In Omnibus” • When a witness falsified the truth on one point. • 3. • Requisites: • 1. That the witness deliberately or intentionally falsified the truth. That the other portions of the testimony to be discredited. • 2. unless corroborated by other unimpeached evidences. are not corroborated by circumstances or other unimpeached evidence. The false testimony must be on material point. . his testimony on other points may be disregarded.

When the error did not arise from the apparent desire to prevent the truth. .When there are sufficient corroborations in many grounds of the testimony.• When it is not applicable • 1.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. • 2. • 3.

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. may be summarily adjudged in contempt by such court…xxx.CONTEMPT • Sec. offensive personalities toward others.” . Rule 71. including disrespect toward the court. 1. Rule 21. the disobedience thereto shall be punished in accordance with the applicable law or Rule. 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. If the subpoena was not issued by a court.” • Sec. 9. or to subscribe an affidavit or deposition when lawfully required to do so. refusal to be sworn or to answer as witness.

. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. 3. Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt…. obstruct. process. Disobedience of or resistance to a lawful writ.. Rules of Court • Indirect contempt To Be Punished After Charged and Hearing – “After a charge in writing has been filed. The rescue of a person or property in the custody of an officer by virtue of an order.” . Rule 71. or degrade the administration of justice. Assuming to be an attorney…. – 2. a person guilty of any of the following acts may be punished for indirect contempt: – 1.. • But nothing in this section shall be construed as to prevent the court • from issuing process to bring the respondent to the court. or from holding him in custody pending such proceedings. – 5. – 6.• Sec. – 3. and an opportunity given to the respondent to comment thereon within such period…xxx…. order. – 4. or judgment of a court…. Any improper conduct tending directly or indirectly to impede..

He must answer the question provided those set of facts has the following requisites: • 1.Hypothetical questions propounded to a medical witness • A physician may be requested to draw his conclusions or opinions from asset of facts which may or may not known to him. he may be asked directly for his opinion. The hypothetical question is based upon facts which are in evidence and assumed facts within the limit of evidence. • When the expert is not familiar with the facts upon which it is based. • 3. . and upon the assumption of the facts so stated. he must base his opinion. without stating the facts upon which it is based. • • Where the expert is familiar with the facts by personal • observation and so testifies. • 2. The hypothetical question must not be unfair or misleading. 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. they must be stated to him hypothetically.

The testimony however impartial. • 2.Rationale on the Corroborative Probative Value of Medical Expert Testimonies • 1. The human mind is not absolutely impossible. may unconsciously favor one of the party litigants.The opinion of the medical expert is based on experience and treatise or books which may be divergent from the observation of others .

• Free to choose whom to serve. • Immediate action in cases of emergency. . • Sacred trust of information • Practice of medicine is not a business.CODE OF MEDICAL ETHICS • Art. • He must exercise good faith and strict honesty in expressing his opinion. I – General Principles • Primary objective of the practice of medicine is SERVICE to mankind. • Proper consultation and referral. II – Duties of Physicians to their Patients • To attend to his patients faithfully and conscientiously. • “friend of man” • • Art.

sanitation and health. Gratuitous services to the indigents. No solicitation and extravagant and false advertisements. To assist in the administration of justice. To protect the public from charlatans.• • • • • • Art. III – Duties of Physicians to the Community Cooperation with proper authorities. .

upright.To keep abreast to the advancements of medical science and contribute to its progress.Uphold the honor and dignity of the profession. .Proper consultation and referral.Should expose without fear or favor. . .He should be diligent. IV – Duties of Physicians to their Colleagues and to the Profession • • • • • • • • • .Should aid in safeguarding against the admission of those who are unfit or unqualified because of deficiency in moral character. sober. .Observe utmost caution. . .No advertising by means of untruthful or improbable statements in newspapers or exaggerated announcements. tact and prudence as regards professional conduct of another physician.Art. before the proper medical or legal tribunals corrupt and dishonest conduct of members of the profession.Gratuitous services to a colleague. . .Observe punctuality. modest and well-versed in both the science and art of medicine. • • . . -To refrain from making unfair and unwarranted criticisms of other physicians.

V – Duties of Physicians to Allied Professionals – To cooperate with and safeguard the interest.Art. . – Not to allow to be published any testimonial certifying the efficacy. • Penal Provisions • -Violation of the provisions of this Code constitute unethical and unprofessional conduct and therefore a sufficient ground for the reprimand. 12 of the Medical Act of 1959. value and superiority and recommendation of drugs. – Non-payment of commissions to any person who refers cases to help him acquire patients. par. 24. 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.

Art. • • In criminal actions. Board of Medical Examiners. 17. such as cancellation of his license to practice medicine.(Pascual vs. • “No person shall be compelled to witness against himself. 28 SCRA 345). on the reasonable assumption that the purpose of the interrogation will be to incriminate him. . • • The same principle shall apply to the respondent in an administrative proceeding where the respondent may be subjected to sanctions of a penal character. the accused may not be compelled to take the witness stand.” • • The right is available not only in criminal prosecutions but also in all other government proceedings.RIGHT AGAINST SELF-INCRIMINATION • Sec. Philippine Constitution states that. III. including civil actions and administrative or legislative investigations. It may be claimed not only by the accused but also by any witness to whom a question calling for an incriminating answer is addressed.

photographing. PE). 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.Scope: – The kernel of the right is not against all compulsion. paraffin testing. – 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. Fingerprinting. . – The prohibition extends to the compulsion for the production of documents. – It does not apply where the evidence sought to be excluded is not an incriminating statement but an OBJECT EVIDENCE(eg. but testimonial compulsion only. – It is simply against the legal process of extracting from the lips of the accused an admission of his guilt.

M.B. .. LL. REBOSA.Thank you very much and good day to everyone! ALBERT D.D.

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