You are on page 1of 3


“Primum non nocere” – first do no harm

Atty. A. F. Daguplo, RMT, MD
4. the employer's power to control the employee with respect to the
means and methods by which the work is to be accomplished
([G.R. No. 112877. February 26,1996.] SANDIGAN SAVINGS vs. NLRC)

1. Doctrine


of Vicarious Liability – making one person liable for the
mistake of others

a. Doctrine of Ostensible Agent (Qui approvat non reprobat)
b. Borrowed Servant Doctrine – an example is nurses who

employees of the hospital and is “borrowed” by the surgeon
during surgeries. If the nurse makes a mistake in the operating
room, the surgeon would be held liable in accordance with the
next doctrine.

c. Captain-of-the Ship Doctrine – Since the surgeon is the leader of
the operative team, he shall be held liable even if the
anesthesiologist is the one who made a mistake. It is due to the
fact that the surgeon has the knowledge that enables him to
anticipate worst case scenarios.

Art. 2176 New Civil Code. “Whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for
the damages done….”

Art. 2180 New Civil Code. The obligation imposed by article 2176
is demandable not only for one’s own acts or omissions, but also from
those of persons from whom one is responsible.

The owners and managers of an establishment or
enterprise are likewise responsible for the damages caused by
their employees in the service of the branches in which the latter
are employed or on the occasion of their functions.
*Example of this is a traffic accident involving a bus. The bus driver is never
asked to pay for the damages because it is always the bus company who is
liable for these things.
*Involves the extraordinary diligence. To differentiate:
♥ Ordinary diligence – there is always presumption of innocence; the
burden of proof is on the person who is indicting you
♥ Extraordinary diligence – there is always presumption of
negligence/guilt; the burden of proof is on the doctor
Requisites of Liability:

1. The

employee was chosen by the employer personally or through

2. The services are to be rendered in accordance with orders which the
employer has the authority to give at all times; and

“The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence of
a good father of a family to prevent damage. The diligence of a good
father referred to means the diligence in the selection and supervision
of employees”
MCKEE vs. IAC([G.R. No. 68102. July 16, 1992.]; KOH, et. al vs. IAC;[G.R. No.
68103. July 16, 1992])
G.R. No. 124354 December 29, 1999 RAMOS et al. petitioners, vs.

Dr. Orlino Hosaka as the head of the surgical team. As the socalled "captain of the ship," 73 it is the surgeon's responsibility to see to
it that those under him perform their task in the proper manner.
Respondent Dr. Hosaka's negligence can be found in his failure to
exercise the proper authority (as the "captain" of the operative team) in
not determining if his anesthesiologist observed proper anesthesia
protocols ….
2. Doctrine of res ipsa loquitor - Doctrine of common knowledge

Where the thing causes injury is shown to be under the
management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have
management use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose from
want of care. (Ma-ao Central Co.Inc. v. CA, G.R. 83491, Aug 27, 1990)

“…the facts and circumstances accompanying an injury may be
such as to raise a presumption, to permit an inference, of negligence on
the part of the defendant, or some other person who is charged with
*There is the presumption that the doctor is negligent because of the
common knowledge that what the doctor did was wrong.
*Example: The doctor is performing a foot surgery; the scalpel fell and injured
the patient’s thigh.
*No expert witness is needed to prove the negligence
*Burden of proof is on the doctor.
Applicability of the Rule

1. The

accident was of a kind which does not ordinarily occur unless
someone is negligent;

3. The illicit act of the employee was on the occasion or by reason of the

2. That the instrumentality or agency which caused the injury was under

4. Execution against the employee is unsatisfied.

3. That the injury suffered must not have been due to any voluntary action

functions entrusted to him.

Employer-employee under Solis’ book

1. Extent of Control
2. Kind of occupation
3. Skill required in the particular occupation
4. Whether or not one is work is distinct
5. Whether or not instruments or tools were provided by employer
6. Length of time
7. Method of payment
8. Work is part of regular business of the employer
9. Belief by the parties
10. Whether the principal is or is not in business.

In determining the existence of an employer-employee
relationship, the following elements are generally considered:

1. the selection and engagement of the employee;
2. the payment of wages;
3. the power of dismissal; and
Transcribed by: KC

the exclusive control of the person charged with negligence; and
or contribution on the part of the person injured.

Where Rule not applicable:

1. Calculated risk – side effects of drugs or procedures because it is already

2. Bad result rule – example: nonrespondence due to antibiotic resistance

“Doctors are protected by a special rule of law. They
are not guarantors of care. They do not even warrant a good
result. They are not insurers against mishaps or unusual
(G.R. No. 122445 November 18, 1997 DR. NINEVETCH CRUZ,
petitioner, v. CA and LYDIA UMALI, respondents.)

3. Honest errors of judgment as to appropriate procedure
4. Mistakes in the diagnosis

“…..Furthermore they are not liable

for honest
mistakes of judgment . . .” (G.R. No. 122445 November 18, 1997
DR. NINEVETCH CRUZ, petitioner, v. CA and LYDIA UMALI,

Art. II Code of Medical Ethics, Sec. 1


1996. but the amount of damages will be mitigated due to his contributory negligence *Simply put. Meralco 16 Phil. his own conscience. 1996 DR. what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient. the attending nurses entered these remarks: “sponge count lacking two” announced to surgeon searched (sic) done but to no avail continue for closure. Worse. ➪ “It is the act or omission amounting to want of care on the part of the person injured which. might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. 1984. *Due diligence = early intervention and prompt action  NO INJURY 5. Second. in this regard.] LI vs. and an injury results. contributing as a legal cause to the harm he has suffered. Doctor will not be held liable if he treats this early on. he cannot recover damages. To our mind. the immediate and proximate cause of the injury being the defendant’s lack of due care. But if his negligence was only contributory. *Example is when a car overtakes and hits the car on the opposite lane. vs. 165).. stated broadly. RESPONDENTS ➪ In the corresponding Record of Operation dated April 11. car insurance companies included massive floods as one of the conditions in which you can claim insurance benefits. When the plaintiff’s own negligence was the immediate and proximate cause of his injury. Had he been more candid. 7. or when the nature of the obligation requires the assumption of risk. is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant.➪ As the sole tribunal to adjudge the physcian’s failure to fulfill his obligation to his patients is. The doctor will not be held liable in this case if he/she treats this immediately in every way possible so injury can be avoided.R. Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’s abdomen. February 7. 3. *Example of this is a psych patient who is on high suicide risk. you cannot be held liable because you voluntarily assumed that there is risk of harm that arose from your negligent act. but the court shall mitigate the damages to be awarded. were inevitable. by exercising reasonable care and prudence. the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril. CA) *Two parties are negligent. 2007] PROFESSIONAL SERVICES. No. No. Court of Appeals…. ➪ Art. The petitioners.R. If the contributory negligence was the proximate cause of the accident there can be no recovery (Taylor v. 115024. he even misled her that the pain she was experiencing was the ordinary consequence of her operation. January 31. Natividad could have taken the immediate and appropriate medical remedy to remove the gauzes from her body. the injured person is entitled to recovery (sic). if the effect is caused directly by the patient’s negligence. failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur.…. C. Doctrine of continuing negligence *This means that the injury caused by negligence is not instantaneous and requires time before it appears but is CORRECTABLE. the plaintiff can still recover damages. private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus. But this does not leave him free from any obligation. Because of that. 1174.R. because of the dangers attendant upon delay. INC. The doctrine. In other words. 4. the Court is not blind to the reality that there are times when danger to a patient’s life precludes a surgeon from further searching missing sponges or foreign objects left in the body. or when it is otherwise declared by stipulation. Batiquin. As the doctrine is usually stated. or which though foreseen. 1996.. the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas's body. in most cases. which. Torts and Damages.” ➪ Of course. [G. Doctrine of contributory negligence ➪ “Contributory negligence is conduct on the part of the injured party. v. is the proximate cause of the injury…” (Ma-ao Central Co..” G. the plaintiff may recover damages.. “Volenti non fit injuria” ➪ That to which a person assents is not esteemed in law an injury ➪ One is not legally injured if he has consented to the act complained of or was willing that it should occur.” [G. Example is car insurance terms prior to the floods caused by Ondoy. Effect of Contributory Negligence of Plaintiff: 1. concurring with the defendant’s negligence. providing an isolation room with a safe environment and maintenance of medications can help prevent the patient from killing himself 2 . C. the patient can still claim money but it’s lessened. Doctrine of assumption of risk ➪ “The general principle underlying the defense in assumption of risk is that a plaintiff who voluntarily assumes a risk of harm arising from the negligent act or reckless conduct of the defendant cannot recover for such harm” *If you properly disclose anything that happened to the patient intraoperatively and treat it accordingly. Since it is understood that the patient will find ways and means to kill himself. [G. ➪ Dr. (Sangco. petitioners. February 7. No. The overtaking car can claim for damages if there is a shoulder because the shoulder is the “last clear chance” of the other car to avoid the accident. since aside from the caesarean section. CA ➪ In this light. Except in case expressly specified by law.] VALENZUELA vs. PETITIONER. does not occur unless through the intersection of negligence. notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. 2179 NCC. needless to say. which falls below the standard to which he is required to conform for his own protection. no person shall be responsible for those events which could not be foreseen. Doctrine of Foreseeability *Applicable to avoiding complications by anticipating that it will happen and by preparing contingency measures. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas's abdomen and for all the adverse effects thereof. 4th Ed. Dr.A. Ampil did not inform Natividad about the missing two pieces of gauze. it is his legal duty to so inform his patient within a reasonable time thereafter by advising her of what he had been compelled to do. p. *This means that the first one who is negligent and caused the injury is the patient. both the doctor and the patient Basis of Contributory Negligence: ➪ Art. NATIVIDAD AND ENRIQUE AGANA. 6. BATIQUIN and ALLAN BATIQUIN. 118231 July 5.R. still. If the proximate cause was still the negligence of the defendant. a person who has the last clear chance or opportunity of avoiding an accident. he cannot claim money for damages. it stands to reason that such could only have been a by-product of the caesarean section performed by Dr. VICTORIA L. VS. No. There is no clause stated in the contract so a lot of people cannot claim the insurance benefits. 1986. But if the direct cause is the doctor’s Transcribed by: KC negligence but with contribution by the patient’s negligence.8) 2. 117944. 126297.Inc. *Applicable to experimental cases *Not applicable in events considered as “Acts of God” unless there is stipulation to the contrary. Doctrine of Last clear chance ➪ In Bustamante vs.A.

injuries caused by an employee to another would be prevented. *A scenario is: someone got hit by a car along EDSA and you were on the other side of the road. In this case. 9. References: ➪ Atty. you got hit by a car. Daguplo’s Powerpoint ➪ KC’s notes END OF TRANS Transcribed by: KC 3 . Fellow Servant doctrine *If there is a Workmen’s Compensation Commission (WCC). As you were crossing the street.8. Rescue Doctrine *Only applicable in the US. in order to respond to the emergency situation. the doctor can claim damages from the one who hit him AND the one who hit the patient that he is about to help.