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LEGAL MEDICINE PRELIMS LEGAL MEDICINE vs.

MEDICAL JURSIPRUDENCE Legal medicine is a branch of medicine which deals with the application of medical knowledge for the purposes of law or simply put medicine applied to legal cases. Medical jurisprudence is a branch of law which deals with the contractual obligations existing between practitioner and his patient and the duties imposed on the practitioner by the state. Legal medicine basically originate from the development of medical science, it being a branch of medicine,while medical jurisprudence emanates from acts of Congress, executive orders, administrative circulars,custom and usage and decisions of tribunal which have relation to the practice of medicine. Legal medicine is based on the principles of coordination, that legal medicines coordinate medicine to law and justice. On the other hand, medical jurisprudence is based on the principles of subordinations, that it is the duty of a physician to obey the laws in as much as our government. MEDICAL NEGLIGENCE vs. MEDICAL MALPRACTICE Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. Medical Negligence is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. Medical negligence can result in injury or harm to the patient, but not in all cases. Medical negligence is a part of medical malpractice. Negligence becomes medical malpractice, and the basis of a medical malpractice lawsuit, when it results in undue injury to a patient. However, not every instance of medical negligence is medical malpractice because not every medical negligence case results in harming a patient, and in some medical negligence cases, there is a lack of proof. Medical negligence lacks intent, medical malpractice includes the aspect of intent, and negligence may or may not have intent based on the situation. While every case is different, the inclusion of intent often provides a clue in determining the type of case. Common examples of medical negligence are failure to warn patients of the risk of treatment, failure to treat a patient, and a wrongful diagnosis. Another way to remember is the fact that while the doctor simply fails to do something that should have been done in medical negligence, doctors who commit malpractice perform their job in a way that is not the accepted standard of care which leads to serious injury or death. Medical malpractice is the illegal event in which the bond of trust between medical professional and client has in some form been breached with intention. It is under the umbrella of negligence, as it is the occurrence in which the malign negligence is committed by a health care provider. The malpractice exists when treatment is not provided as is standard and safe procedure, which thus results in injury or even death to the patient.Examples of medical malpractice are those in which the doctor does not perform their duties to the legal medical standards, which include wrongful death, mistake during childbirth, error in anesthesia, and surgical errors. Malpractice Negligence

A type of negligence, where a licensed Failure to exercise the care that a Definition: professional fails to provide services as per reasonably standards set by the governing body. Intentional?: Cases filed in: Yes Civil Courts prudent person would

exercise in like circumstances. Can be intentional or unintentional. Civil Courts

Criteria for proving the case:

Duty, Breach, Causation and Damages A doctor intentionally causing harm to his

Duty, Breach, Causation and Damages

Example:

patients due to not performing his duties as per the medical standards.

driver

causing

harm

to

the

passengers due to his carelessness.

FOUR ELEMENTS OF MEDICAL NEGLIGENCE There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. Duty refers to the standard of behavior which imposes restrictions on ones conduct. The standard in turn refers to the amount of competence associated with the proper discharge of the profession. A physician is expected to use at least the same level of care that any other reasonably competent doctor would use under the same circumstances. Breach of duty occurs when the physician fails to comply with these professional standards. If injury results to the patient as a result of this breach, the physician is answerable for negligence. And the proximate causation is the cause, which, in natural continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the result would not have occurred. In the causal connection between the negligence of the physician and the injury sustained by the patient, there may be an efficient intervening cause which is the proximate cause of the injury. MEDICO LEGAL DOCTRINES (define, describe and give 1 example each) RES IPSA LOQUITUR Literally, res ipsa loquitur means the thing speaks for itself. It is the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. Stated differently, where the thing which caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose from the defendants want of care, and the burde n of proof is shifted to him to establish that he has observed due care and diligence. From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the control and management of the thing which caused the injury. OR 1.The accident must be of a kind which ordinarily does not occur in the absence of someones negligence; 2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; 3. It must not have been due to any voluntary action or contribution on the part of the plaintiff. In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent or separate ground of liability, being a mere evidentiary rule. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied: 1. 2. 3. 4. 5. Objects left in the patients body at the time of caesarian section; Injury to a healthy part of the body; Removal of a wrong part of the body when another part was intended; Infection resulting from unsterilized instruments; Failure to take radiographs to diagnose a possible fracture;

Instances where the Doctrine of Res Ipsa Loquitor does not apply:

1. 2. 3. 4. 5.

Where the Doctrine of Calculated Risk is applicable; When an accepted method of medical treatment involves hazards which may produce injurious results regardless of the care exercised by the physician. Bad Result Rule; Honest Errors of judgment as to Appropriate Procedure; Mistake in the Diagnosis.

This doctrine has been regarded as rule of sympathy to counteract the conspiracy of silence EXAMPLE: Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. CONTRIBUTORY NEGLIGENCE Article 2179 of the Civil Code defines the concept of contributory negligence as follows, W hen the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. EXAMPLE: 1. 2. 3. 4. Failure to give the physician an accurate history; Failure to follow the treatment recommended by the physician; Leaving the hospital against the advice of the physician; Failure to seek further medical assistance if symptoms persist.

PROXIMATE CAUSATION Proximate cause is that which is nearest in the order of responsible causation, or that which stands next in causation to the effect, not necessarily in time or space but in causal relation. It is that cause, which, in natural and continuous sequence, unbroken by any sufficient intervening cause, produces the injury, and without which the result would not have occured. One point upon which cases agree is that defendants act need not be the sole cause of the injury, provided it be a proximate cause, actually contributing thereto. The critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiffs injuries; the plaintiff must plead and prove not only that he had been injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony. 1. 2. 3. There must be a direct physical connection between the wrongful act of the physician and the injury sustained by the patient. 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. The result must be the natural continuous and probable consequences.

EXAMPLE:

BORROWED SERVANT RULE Ordinarily, resident physicians, nurses and other personnel of the hospital are employees or servants of the hospital. Sometimes, they are temporarily under the supervision and control of another while performing their duties. They are deemed by fiction of law borrowed from the hospital by someone and any wrongful act committed by them during the period, their new and temporary employer or master must be held liable. In the determination whether one is a borrowed servant, 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. EXAMPLE: Borrowed servant doctrine considering that Dr. Estrada was an inde pendent contractor who was merely exercising hospital privileges. This doctrine provides that once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel, and any negligence associated with such acts or omissions, are imputable to the surgeon. While the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon the surgeon for their negligent acts under the doctrine of respondeat superior CAPTAIN OF THE SHIP RULE Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that goes wrong within the four corners of the operating room. It enunciates the 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. EXAMPLE: In this particular case, it can be logically inferred that petitioner, the senior consultant in charge during the delivery of Noras baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within petitioners exclusive control. [Cantre vs. Go, 522 SCRA 547(2007)] MEDICAL DOCUMENTATION - INFORMED CONSENT

AUTOPSY REASONS ALLOWING AND NOT ALLOWING An autopsy is the examination of the body of a dead person and is performed primarily to determine the cause of death, to identify or characterize the extent of disease states that the person may have had, or to determine whether a particular medical or surgical treatment has been effective. In academic institutions, autopsies sometimes are also requested for teaching and research purposes. Forensic autopsies are autopsies with legal implications and are performed to determine if death was an accident, homicide, suicide, or a natural event. The word autopsy is derived from the Greek word autopsia: "to see with one's own eyes." Kinds of Autopsies: A. Hospital or Non-Official Autopsy:

This is an autopsy done on a human body with the consent of the deceased person's relatives for the purpose of: 1) determining the cause of death; 2) providing correlation of clinical diagnosis and clinical symptoms; 3) determining the effectiveness of therapy; 4) studying the natural course of disease process; 5) educating students and physicians. Inasmuch, as previous consent of the next kin is necessary before a non-official autopsy can be performed, the Civil Code states who is the rightful person to give such consent. The order is provided in Articles 294-305. The consent shall be obtained from: 1) the spouse; 2) the descendants of the nearest degree; 3) the ascendants, also of the nearest degree; 4) the brothers and sisters (Art. 294, Civil Code) In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right (Art. 305, Civil Code).

B.

Medico-Legal or Official Autopsy:

This is an examination performed on a dead body for the purposes of: 1) determining the cause, manner (mode), and time of death; 2) recovering, identifying, and preserving evidentiary material; 3) providing interpretation and correlation of facts and circumstances related to death; 4) providing a factual, objective medical report for law enforcement, prosecution, and defense agencies; and 5) separating death due to disease from death due to external cause for protection of the innocent. In cases which require a medico-legal autopsy, the dead body belongs to the state for the protection of public interest until such time as a complete and thorough investigation into the circumstances surrounding the death and the cause thereof has been completed. The physician entasked to perform such autopsy is considered to be the authoritative agent and representative of the state who has the "property right" of the dead body. All that need to be turned over to the next of kin responsible for burial of the deceased is that remaining portion or portions of the body not needed for any medicolegal purposes. It is also worth mentioning two more types of autopsies Anatomical or Academic Autopsy performed by students of anatomy for study purpose only and Virtual or Medical Imaging Autopsies performed utilizing imaging technology only, primarily magnetic resonance imaging (MRI) and computed tomography (CT). When shall Autopsy be Performed Author Pedro P. Solis, Ll.B., M.D., enumerates the following manner of death that should be autopsied: a. b. c. d. e. f. g. Death by violence Accidental death Suicides Sudden death of persons who are apparently in good health Death unattended by physician Death in hospitals or clinics (D.O.A.) wherein a physician was not able to arrive at a clinical diagnosis as the cause of death Death occurring in an unnatural manner.

PD 856: Section 95. Autopsy and Dissection of Remains The autopsy and dissection of remains are subject to the following requirements: (a) Person authorized to perform these are: 1. Health officers; 2. Medical officers of law enforcement agencies; and 3. Members of the medical staff of accredited hospitals. (b) Autopsies shall be performed in the following cases: 1. Whenever required by special laws; 2. Upon orders of a competent court, a mayor and a provincial or city fiscal; 3. Upon written request of police authorities;

4. Whenever the Solicitor General, provincial or city fiscal as authorized by existing laws, shall deem it necessary to disinter and take possession of remains for examination to determine the cause of death; and 5. Whenever the nearest kin shall request in writing the authorities concerned to ascertain the cause of death. (c) Autopsies may be performed on patients who die in accredited hospitals subject to the following requirements: 1. The Director of the hospital shall notify the next of kin of the death of the deceased and request permission to perform an autopsy. 2. Autopsy can be performed when the permission is granted or no objection is raised to such autopsy within 48 hours after death. 3. In cases where the deceased has no next of kin, the permission shall be secured from the local health authority. 4. Burial of remains after autopsy After an autopsy, the remains shall be interred in accordance with the provisions in this Chapter. NOT NEEDED

DNA TEST Means Deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individuals DNA is unique for the individual, except for identical twins; (Sec.3.b. of the Rule on DNA Evidence) An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof. Confidentiality. DNA profiles and all results or other information obtained from DNA testing shall be confidential. Except upon order of the court, a DNA profile and all results or other information obtained from DNA testing shall only be released to any of the following, under such terms and conditions as may be set forth by the court: (a) Person from whom the sample was taken; (b) Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented; (c) Lawyers of private complainants in a criminal action; (d) Duly authorized law enforcement agencies; and (e) Other persons as determined by the court.

Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented. Where the person from whom the biological sample was taken files a written verified request to the court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or other information obtained from the DNA testing, the same may be disclosed to the persons named in the written verified request. Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction. Post-conviction DNA Testing. Remedy if the Results Are Favorable to the Convict . The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows: (a) In criminal cases: i. for not less than the period of time that any person is under trial for an offense; or, ii. in case the accused is serving sentence, until such time as the accused has served his sentence; and (b) In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become final and executory.

The court may allow the physical destruction of a biological sample before the expiration of the periods set forth above, provided that: a. A court order to that effect has been secured; or b. The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence. In a criminal case for Rape with Homicide (People vs. Yatar), the Supreme Court affirmed the conviction of the accused. Among the discussion relates to DNA: Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellants gene type. DNA is a molecule that encodes the genetic information in all living organisms. A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a

more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victims body during the assault. Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime. In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. In Daubert v. Merrell Dow, it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure.