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med_juris_lect.ppt

med_juris_lect.ppt

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Published by Rio Dizon
legal medicine
legal medicine

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Published by: Rio Dizon on Jul 22, 2013
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  • LICENSURE AND REGULATORY LAWS
  • PROFESSIONAL REGULATIONS COMMISSION
  • BOARD OF MEDICINE
  • Scope of Examination:
  • Nature of the relationship
  • Requisites of a contractual relationship
  • Forms of Physician-Patient Relationship
  • RIGHT TO CHOOSE PATIENTS
  • RIGHT TO LIMIT HIS MEDICAL PRACTICE
  • Method of Collection of Payment for Medical Services
  • RIGHTS OF PATIENTS
  • RIGHT TO CHOOSE HIS PHYSICIANS
  • CRIMINAL LIABILITIES
  • CIVIL LIABILITIES
  • MEDICAL MALPRACTICE
  • DOCTRINE OF FORESEEABILITY
  • FELLOW SERVANT DOCTRINE
  • Doctrine of Avoidable Consequences
  • Disqualification by reason of:
  • Dying declaration
  • Kinds of Subpoena
  • CONTEMPT

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.• “…….” .

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

. • The right to regulate the practice of medicine is based on the police power of the state.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. These are legal safeguards to guarantee the safety of the patient and impose liability to the practitioner who through his act or omission causes damage or injury to the health and welfare of the patient.

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

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

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

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

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

Proper Educational Background Requirements for Admission in the College of Medicine Holder of a Bachelor‟s degree. Good moral character . Minimum age requirement • . Not convicted of any crime involving moral turpitude.at least 21 years of age • 2. . Certificate of Eligibility from the Board of Medical Education.ADMISSION TO THE PRACTICE OF MEDICINE Prerequisites: • 1.

. Examination Requirements .• 3.Of good moral character.must have passed the corresponding Board Examination • Preliminary Examination -At least 19 years of age. . • 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). -Have completed the first two years of the medical course.

• 4. -Declared to be of unsound mind. . -Found guilty of immoral or dishonorable conduct after investigation by the Board of Medicine. 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.

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

or relieving bodily disease or conditions.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. . • 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.

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

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

11. III. Medical Act of 1959 as amended): a) Any medical student duly enrolled in an approved medical college. • • • .Exemptions • • • • • • By PROVISIONS OF LAW are not considered to constitute practice of medicine (Sec. e) Any person who renders any service gratuitously in cases of emergency or in places where the services of a physician. nurse or midwife are not available. d) optometrist. b) dentist. Art. c) physiotherapist. f) Any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws. g) Clinical psychologist with the prescription and direct supervision of a physician. Prosthetist.

• -Acted in pursuance of his religious belief and with the tenets of his church he professes. .Faith Healing -There is nothing in the Medical Act of 1959 exempting it from the definition of the acts which constitute practice of medicine. • -Related to constitutional guarantee to religious freedom (freedom to believe and freedom to act in accordance with one‟s belief). not deemed to be a practice of medicine but part of his religious freedom.

or by both such fine and imprisonment. . 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.28. Art. in the discretion of the court. IV. 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.

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

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

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

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

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

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

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

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 .

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

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

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.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. which could be remuneratory or an act of liberality • .

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

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

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

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

He should posses the knowledge and skill of which an average physician is concerned. – “locality rule” – the standard of care is measured by the degree of care in the locality – “similar locality rule” – diligence is determined when the other physicians in the locality or similar locality could have acted the same way – “national standard of care” . He is obliged to exercise the best judgment. He should use such knowledge and skill with ordinary care and diligence. He has the duty to observe utmost good faith.the diligence is determined on what is applicable on a national standard basis • 3.• 1. . • General practitioner vs Specialist • 2. • 4.

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

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

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

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

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

III.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. bill of rights. Philippine Constitution 1987 .

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

• Art.1 RA 6615 • “All government and private hospitals…xxx . Sec. xxx …. there is a risk to his life.” • Sec.a physician should administer at least first aid treatment and then refer to a more qualified and competent physician ……xxx” • Sec.24 No. his failure to respond to it may not make him liable if in so doing. Medical Act of 1959 • “”xxx…….3 Code of Ethics • “In cases of emergency.Although the ethical rule obliges a physician to attend to an emergency. II.12.are required to render immediate emergency medical assistance…xxx. • Refusal of a physician to attend to a patient in danger of death is not a sufficient ground for revocation or suspension of his registration if there is a risk to the physician‟s life .

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. contract . medical society. law. professional ethics. religion.

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

Sec. Rules of Court .12.RIGHT OF EXEMPTION FROM EXECUTION OF INSTRUMENTS AND LIBRARY Rule 39.

Any qualified medical practitioner has the right to become a member of the PMA through one of its component society.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 • . .

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

Art IV.xxx. to his wife and minor children or even parents provided the latter are aged and being supported by the colleague. Code of Ethics • “…should willingly render gratuitous service to a colleague.no one must enrich himself at the expense of others . Sec. He should however. 2.” Doctrine of Unjust Enrichment . be furnished the necessary traveling expenses…xxx…this provision shall not apply to physicians who are no longer in the active practice….“service rendered service paid” .

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

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

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. b) The physician has rendered professional service to the patient. . d) The person liable for the payment is the defendant. c) The professional fee demanded is reasonable.

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

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

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

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. Risk involved • 2. Diagnosis • 2. General nature of the contemplated procedure • 1.” . Potential danger if not applied • 4. Prospect of success • 3. Alternative methods of treatment • • “….

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

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

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

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

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

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

• 4. Chances of success or failure • Consent must be given freely or voluntarily . • 5. Informed/Enlightened Consent • awareness and assent • full disclosure of facts and willingness of the patient to submit • Quantum of Information Necessary to Form the Basis of a Valid Consent • 1. Natured of proposed treatment or procedure. • 3. Risk involved. • 2. Nature of his condition. Possible alternative methods.

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

. 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.

expressed refusal of a minor to surgery shall not prevail over the existing emergency • . .Doctrine of parens patriae .NB: • . the court may grant consent for the minor.consent of minor is not valid if the procedure will not benefit him • .

Sec.” . 5. No religious test shall be required for the exercise of civil or political rights.RIGHT TO RELIGIOUS BELIEF • . shall forever be allowed. without discrimination or preference. The free exercise and enjoyment of religious profession and worship.Art. III . Philippine Constitution • “No law shall be made respecting an establishment of religion or prohibiting the free exercise therof.

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.

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

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

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

” • • Art II. a physician should administer at least 1st aid treatment and then refer the patient to a more qualified and competent physician if the case does not fall within his particular line.3 of the Code of Medical Ethics • “In cases of emergency. • • Sec. 1.In emergency cases the patient has the right to treatment. 1st par.” . 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. RA 6615 • Provides that “xxx….RIGHT TO CHOOSE HIS PHYSICIANS RIGHT TO TREATMENT • . wherein immediate action is necessary.

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

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

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

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)

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

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

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. degree of intelligence.• Reckless imprudence – voluntary. time and place. physical condition and other circumstances regarding persons. .indicates a deficiency of perception or when the wrongful act maybe avoided by paying proper attention and using due diligence in foreseeing them. • • Negligence. 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.

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

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

• 2.Legal wrongdoing independent of a contract • . Tort(Quasi-delict ) • .Primary basis is negligence or fault of the physician as the one directly responsible for the injury sustained by the patient • .Ordinarily. any malpractice action is based on torts or quasi-delict in as much as negligence is usually a ground for injury. .

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

• 3.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. – 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. • 2. . As a consequence of the failure. skill and diligence. the act or omission complained of must be punishable by law at the time of commission or omission. The failure of the physician is the proximate cause of the injury sustained by the patient. as to treatment in a manner contrary to accepted standards of medicine resulting to injury to the patient. • Elements: • 1. • 4. injury was sustained by the patient. The physician has a duty to the patient. • Criminal medical malpractice.

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

. 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. .

even though the former are not engaged in any business or industry… • The responsibility treated of this article shall cease when the person herein mentioned prove that they observe all the diligence of a good father of a family to prevent injury.• Art. Civil Code of the Philippines • Obligations is demandable not only for ones own acts or omission but also fort those persons whom one is responsible • “….” . 2180.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.

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

they are deemed borrowed from the hospital by someone and for any wrongful act committed by them during the period. • In the determination whether one is a borrowed servant. . nurses and other personnel of the hospital are employees or servants of the hospital.BORROWED SERVANT DOCTRINE • Ordinarily. resident physicians. they are under the temporary supervision and control of another other than their employer while performing their duties. • In some instances. it is necessary that he is not only subjected to the control of another with regard to the work done and the manner of performing it but also that the work to be done is for the benefit of the temporary employer. their temporary employer must be held liable for the discharge of their acts and duties. • By fiction of law.

CAPTAIN-OF-THE-SHIP DOCTRINE • . .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.

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

The accident must be of a kind which ordinarily does not occur in the absence of someone‟s negligence. It must be caused by an agency or instrumentality within the exclusive control of the defendant.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. . • 1.“The thing speaks for itself”. • Requisites of Res Ipsa Loquitor Doctrine: • 1. It must not have been due to any voluntary action or contribution on the part of the plaintiff.DOCTRINE OF RES IPSA LOQUITOR – . • 2.

• 4. • 5. Injury to a healthy part of the body. Removal of a wrong part of the body when another part wad intended. Failure to take radiographs to diagnose a possible fracture. • 2. Infection resulting from unsterilized instruments. • 3. Objects left in the patient‟s body at the time of caesarian section. .Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied: • 1.

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

Initiative would be stiffed and confidence shaken.” • • “…………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. 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).

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

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

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

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

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

is barred from recovery. • “…violenti non fit injuria”. .DOCTRINE OF ASSUMPTION OF RISK • Predicated upon knowledge and informed consent. if injured. which means that a person who assents and was injured is not regarded in law to be injured. anyone who voluntarily assumes the risk of injury from a known danger.

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 • . mental direction and lapse of sufficient time to effectually act upon impulse to save the life or prevent injury to another. appreciation. .It implies thought. • .

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 • . .

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

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

LIABILITIES IN THE ADMINISTRATION OF DRUGS .

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

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

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. even though the seller exercises every conceivable caution to prevent and discover the defects. • 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. • If the drug has side effects. the manufacturer has no duty to insure that the warning reaches the patient in normal circumstances.Doctrine of Strict Liability • A person injured by a defective product can recover compensation from his injury from anyone in the distributive chain who sold the product while the defect was present. . A drug manufacturer is liable if his product is contaminated by any impurities which harm the user.

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

Private pay – established for profit and gain. . • 2. 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.

• Breach of the confidential relationship in a physician-patient relationship. • 2. The hospital cannot be subjected to government licensure examinations to determine whether it is qualified to practice medicine. . A non-medical will be allowed to control a physician and through circumvention practice medicine.Rationale why hospital cannot practice medicine: • 1.

• 3. • 2. . To furnish adequate and safe equipments. To furnish a safe and well-maintained building and ground.Primary Duties of a Hospital: • 1. To exercise reasonable care in the selection of the hospital staff.

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

Liabilities of Hospitals for the Wrongful Acts of their Agents .

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

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

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

• N.   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.   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 charging of the fee is not controlling but the purpose the fee will be use is the measure of charity. .B.   A hospital established for profit even though some bed are devoted for charity is not deemed a charitable institution. if it is operated for no profit.  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.

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

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

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

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

.INDEPENDENT CONTRACTOR THEORY • A patient who enters a private charitable hospital does not have a contract with the hospital but with the attending physician.

Rules applied in determining the vicarious liability for the negligent acts of the resident physicians. nurses and others employees. .

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. • 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. may make the hospital vicariously liable. • Medical duties are by its nature beyond the ordinary routine in a hospital.1.

2. Power of Control. .

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

4. Independent Contractor Theory. .

5. . Sole Responsibility vs Shared Responsibility.

LIABILITIES OF HOSPITAL • 1. VICARIOUS Liabilities for the Acts of Hospital Employees. • 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. • • 2. the established standard of conduct to which the corporation should conform. review. CORPORATE Liabilities • Those arising from failure of the hospital to furnish accommodations and facilities necessary to carry out its purpose or to follow in a given situation. .

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

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

.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.

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

268. Sec.Refusal to be hospitalized • Refusal of the patient to remain in the hospital will not be a lawful ground to detain him if he is of sound mind and of legal age. Revised Penal Code • 1987 Philippine Constitution. Related laws: • Art. 1 and 6 • • Refusal of the patient to leave the hospital .

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. .

or when the patient is mentally ill. The law provides a remedy for them to pursue by filling the necessary suit in court for the recovery of such fee or bill. that his release will endanger public safety. or when the patient is suffering from a very contagious disease wherein his release is prejudicial to public health.Detention of patient for non-payment of bill • A patient cannot be detained in a hospital for nonpayment of the hospital bill. . • A hospital any legally detain a patient against his will when he is detained or convicted prisoner.

• -Patients are not bound by the secret limitations contained in a private contract between the hospital and the physician. • -Courts have held that even if contracts specify that physicians will be considered independent contractors. Consequently liability for negligence in the emergency room is shifted to the medical partnership. the medical staff therein are not considered employees of the hospital.LIABILITIES OF HOSPITAL FOR ITS ANCILLARY SERVICES • .Whenever the hospital administration enters into contract with a partnership of physicians to run the emergency room. the hospitals are responsible for their action if they can exercise control over them. .

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.

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

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

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

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

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

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

17.• Sec. II. Comprehensive Dangerous Drug Act of 2002 (Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Chemicals. • The penalty of imprisonment ranging from 1 year to 6 years and a fine ranging from 10.00 shall be imposed upon any practitioner………xxx who violates or fails to comply with the maintenance and keeping of the original records of transactions on any dangerous drugs….000.xxx” • An additional penalty of revocation of license to practice his profession……xxx.00 to 50.000.” . Art.

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

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

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

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

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

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

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

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

• 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.• Damages must be sufficiently proven by evidence. • Doctrine of Certainty of Damages • Damages must be certain both in its nature and in respect to the cause. . Recovery must not be contingent or speculative. extent. cause and probable duration of the injury. To permit the Court to determine how much it must be. The proof must show the nature.

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

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

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. .

Loss of Earning Capacity 4. Funeral Expenses . even though there may have been mitigating circumstances.00). Loss of Service or Support 6. Death • Art. Medical. 2. Hospital. Civil Code • The amount of damages for the death caused by a crime or quasi-delict shall be at least three thousand pesos(75.000. Surgical. and Related Expenses 5. 2206.Compensatory Damages Applied to Medical Malpractice 1. Physical Disability 3.

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

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

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

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

malicious or oppressive nature of the wrong committed. because of the wanton. or that he is guilty of gross negligence in the performance of his profession. . oppression.• Punitive or exemplary damages are monetary compensation over and above actual or compensatory damages awarded as punishment or deterrence. or that he acted with recklessness. or with utter disregard to the effects of his act. reckless. • 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.

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. .NOMINAL DAMAGES • Art. Civil Code • Nominal damages are adjudicated in order that a right of the plaintiff. 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.

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

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

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

Doctrine of Avoidable Consequences • Where one person has. caused personal injury to another. through wrongful act. it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The burden of proof that the injured could have prevented or mitigated the damages rests on the defendant. The person wronged cannot recover for any item of damage which could have been avoided. • • .

9. 5. In a separate civil action to recover civil liability. Civil Code) 1. In actions for legal support. When exemplary damages are awarded. 2. laborers and skilled workers. In actions for indemnity under the workmen‟s compensation and employer‟s liability laws. 7. just and demandable claim. 11. other than judicial cost are not as rule recoverable except when the law specifically provides. When at least double judicial costs are awarded. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff‟s plainly valid. In criminal cases of malicious prosecution against the plaintiff. 3. 8. When the defendant‟s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest. (Art. 4. 10. • • • • • • • • • • • .2208.ATTORNEY‟S FEES • Attorney‟s fees and other related expenses in litigation. In actions for the recovery of wages of household helpers. In case of clearly unfounded civil action or proceeding against the plaintiff. In any other case where the court deems it just and equitable that attorney‟s fees and expenses of litigation should be recovered. 6.

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.

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

the first to arrive should be considered as physician in charge. Sec.\‟s immediate needs….” .. IV.” • Art. 16 • “A physician called upon to attend to a patient of another physician because of an emergency….• Art.xxx. unless the patient or his family has special • preference for some other one among those who are present…xxx.” • Art. Sec.should attend only to the patient. IV. Sec..xxx. IV.. 17 • Whenever in the absence of the family physician several physicians have been simultaneously called in an emergency case • …xxx. 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.xxx….

Sec.” . IV.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.

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. 702. amending BP Blg. • RA 8344 • An act penalizing the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency or serious cases. 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. .

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

. 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 law gives him the right to act under the Theory of Implied Consent or that the physician is privileged to do whatever is sound for the benefit of the patient. the physician can legally proceed with his contemplated life-saving procedure. and getting a consent is prejudicial to the patient. • The 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.Emergency Operation without Consent • 1. • 2. The situation must be such as it would make it actually and apparently necessary to act before there is an opportunity to obtain consent. The injured person must be unconscious or otherwise unable to give a valid consent.

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

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

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

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

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

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

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

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

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

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

which information was necessary to enable him to act in that capacity. be examined as to any information which he may have acquired in attending such patient in a professional capacity. without the consent of the patient. • 5.• 3. • 4. when the court finds that the public interest would suffer by the disclosure. surgery or obstetrics cannot in a civil case. A public officer cannot be examined during his term of office or afterwards as to communications made to him in official confidence. A minister or a priest cannot. . 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. and which would blacken the reputation of the patient. A person authorized to practice medicine. without the consent of the person making the confession.

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

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

• 4. prior to his death. for the purpose of testifying to solely qualify the physician to testify. When a person is examined at the instance of the law.When Communication Is Not A Privileged Communication • 1. 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. • 2.

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

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

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

• Sec. may be received in a criminal case wherein his death. Rule 130. Rules of Court “The declaration of a dying person. 37.” . may be received in a criminal case wherein his death is the subject of inquiry. as evidence of the cause and surrounding circumstances of such death. made under a consciousness of an impending 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. or the immediate cause of his death. and is conscious of his impending death. in reference to the manner in which he receives his injuries of which he is dying. which statements are admissible in evidence in a trial where the killing of the declarant is the crime charged to the defendant. 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. .

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

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

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

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

.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.

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

• 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.

Art. III. or to a third party.. when called upon by the judicial authorities. or for suspending or revoking a certificate of registration as physician…xxx. Art. Medical Act of 1959 as amended • “xxx…. 2. shall fail to lend his cooperation towards the administration of justice or other public service. 233.(12) Violation of any of the provisions of the Code of Medical Ethics…shall be sufficient ground for reprimanding.” • Refusal of a public officer to give assistance in the administration of justice is penalized by law • Art. to assist in the administration of justice on matters which are medico-legal in character. III.” • Sec. shall be imposed upon a public officer who. upon demand from a competent authority.• Sec.” . Code of Medical Ethics • “It is the duty of every physician. Revised Penal Code • “The penalties of arresto mayor…xxx. if such failure shall result in serious damage to the public interest. 24.

When a Medical Witness Need Not Comply With a Subpoena
• 1. The Court issuing the subpoena has no jurisdiction over the subject matter of the case; • 2. When the place of residence is more than 100 kilometers from the court issuing the subpoena.
– Sec. 10, Art.21, Rules of Court – “ The provisions of sections 8 and 9 0f this rule (Compelling attendance and Contempt) shall not apply to a witness who resides more than 100 km from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained.”

• 3. When the patient is attending to an emergency and no one is available and competent enough to be his substitute to attend to such emergency. • 4. On account of illness incapacitating him to attend.

Sec. 3, Rule 132, Rules of Court, Rights and Obligations of a Witness
• “A witness must answer questions, although his answers may tend to establish a claim against him. However, it is the right of a witness:
i. To be protected from irrelevant, improper questions and from harsh or insulting demeanor; ii. Not to be detained longer than the interests of justice require; iii.Not to be examined except only as to matters pertinent to the issue; iv.Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or v. Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction of an offense.”

Instances when the medical witness may not be compelled to answer questions in court
• 1. It will tend to subject him to punishment for an offense; • Incriminatory questions may subject the witness to punishment or disclosure of which would form a necessary and essential part of a crime.
Sec. 17, Art. III, Phil Constitution – “No person shall be compelled to be witness against himself.

• 2. It will degrade his character, except when such degradation of character is the very fact at issue; • A medical witness may refer to memoranda, notes or other pertinent papers:

Impeachment of Medical Testimony
• 1.By contradicting testimonies by others of his own class or by any other competent witnesses; • 2.By showing that the medical witness is interested in the outcome of the case or bias; • 3.By an inconsistent statement made at another time; • 4. By not expressing the opinion testified to at the time when such expression might reasonably had been expected; and • When the scientific treatise which he relies on as the basis of his opinion does not sustain him.

Effects of False Testimony
• 1. Art. 180, Revised Penal Code, False testimony against a defendant: • “ Any person who shall give testimony against the defendant in any criminal case shall suffer:
– i. The penalty of reclusion temporal, if the defendant in said case shall have been sentenced to death; – ii. The penalty of prision mayor, if the defendant shall have been sentenced to reclusion temporal or perpetua; – iii. The penalty of prision correccional, if the defendant shall have been sentenced to any other afflictive penalty; and – iv. The penalty of arresto mayor, if the defendant shall have been sentenced to a correccional penalty or a fine, or shall have been acquitted.”

” . 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…. Art..• 2.xxx.. Revised Penal Code. 181.xxx…if the prosecution is for felony punishable by an afflictive penalty.

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

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

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

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

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

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

The hypothetical question is based upon facts which are in evidence and assumed facts within the limit of evidence. they must be stated to him hypothetically. . It must be framed as to fairly represent those facts and not give a situation a false color by the way the statement was given. • 2. • When the expert is not familiar with the facts upon which it is based. without stating the facts upon which it is based. • • Where the expert is familiar with the facts by personal • observation and so testifies. and upon the assumption of the facts so stated. He must answer the question provided those set of facts has the following requisites: • 1. • 3. The hypothetical question must not be unfair or misleading. he may be asked directly for his opinion. he must base his opinion.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.

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 . The human mind is not absolutely impossible.The testimony however impartial. • 2.Rationale on the Corroborative Probative Value of Medical Expert Testimonies • 1.

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

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

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

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

• • In criminal actions.(Pascual vs. . 17. on the reasonable assumption that the purpose of the interrogation will be to incriminate him. 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. • “No person shall be compelled to witness against himself. • • The same principle shall apply to the respondent in an administrative proceeding where the respondent may be subjected to sanctions of a penal character. Philippine Constitution states that. Board of Medical Examiners. 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. Art.RIGHT AGAINST SELF-INCRIMINATION • Sec. such as cancellation of his license to practice medicine. including civil actions and administrative or legislative investigations. 28 SCRA 345). III.

– The right also protects the accused against any attempt to compel him to furnish a specimen of his handwriting in connection with a prosecution for falsification. – It is simply against the legal process of extracting from the lips of the accused an admission of his guilt.Scope: – The kernel of the right is not against all compulsion. Fingerprinting. photographing. papers and chattels that may be used as evidence against the witness except where the State has the right to examine or inspect under the police power of the State. paraffin testing. – The prohibition extends to the compulsion for the production of documents. PE). – 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. .

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

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